**TABLE OF CONTENTS**     ARTICLE 1. DEFINED TERMS  1 1.1 Definitions  1 1.2 Rules of Construction  16 ARTICLE 2. Loan  16 2.1 Loan  16 2.2 Available Amount  16 2.3 Borrowing Notice  17 2.4 Promissory Notes  17 2.5 Overnight Advances  17 2.6 Lender Records  18 2.7 Use of Proceeds  18 2.8 Lender Funding Failure  18 2.9 Overnight Lender Funding Failure  18 2.10 Reduction of Aggregate Revolving Commitment; Voluntary Increases  18 2.11 Treatment of Existing Advances  20 ARTICLE 3. LETTER OF CREDIT FACILITY  20 3.1 Letters of Credit  20 3.2 Issuance of Letters of Credit  21 3.5 Reimbursement Obligation Unconditional  22 3.6 Cash Collateral Account  22 ARTICLE 4. INTEREST, FEES AND COSTS  23 4.1 Interest  23 4.2 Additional Provisions for LIBO Rate  23 4.3 Additional Costs of Maintaining Loan  25 4.4 Capital Requirements  25 4.5 Default Interest Rate  26 4.6 Interest Calculation  26 4.7 Fees  26 ARTICLE 5. PAYMENTS; FUNDING LOSSES  27 5.1 Principal Payments  27 5.2 Interest Payments  27 5.3 Application of Principal Payments  27 5.4 Manner of Payment  27 
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     5.5 Voluntary Prepayments  27 5.6 Mandatory Prepayments  28 5.7 Funding Losses  28 5.8 Distribution of Principal and Interest Payments  28 ARTICLE 6.CoBank EQUITIES  28 6.1 CoBank Equities  28 6.2 CoBank Capital Plan  29 ARTICLE 7. SECURITY  29 7.1 Security Interest  29 ARTICLE 8. REPRESENTATIONS AND WARRANTIES  29 8.1 Organization, Good Standing, Etc.  30 8.2 Corporate Authority, Due Authorization; Consents  30 8.3 Litigation  30 8.4 No Violations  30 8.5 Binding Agreement  30 8.6 Compliance with Laws  31 8.7 Principal Place of Business  31 8.8 Payment of Taxes  31 8.9 Licenses and Approvals  31 8.10 Employee Benefit Plans  31 8.11 Equity Investments  32 8.12 Title to Real and Personal Property  32 8.13 Financial Statements  33 8.14 Environmental Compliance  33 8.15 Fiscal Year  34 8.16 Material Agreements  34 8.17 Regulations U and X  34 8.18 Intellectual Property  34 8.19 No Default on Outstanding Judgments or Orders  34 8.20 No Default in Other Agreements  34 8.21 Labor Disputes and Acts of God  35 8.22 Governmental Regulation  35 8.23 Solvency  35 ARTICLE 9. CONDITIONS TO ADVANCES  35 
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     9.1 Conditions to Closing  35 9.2 Conditions to Advance  37 ARTICLE 10. AFFIRMATIVE COVENANTS  38 10.1 Books and Records  38 10.2 Reports and Notices  38 10.3 Eligibility  40 10.4 Maintenance of Existence and Qualification  41 10.5 Compliance with Legal Requirements and Agreements  41 10.6 Compliance with Environmental Laws  41 10.7 Taxes  41 10.8 Insurance  41 10.9 Maintenance of Properties  42 10.10 Payment of Liabilities  42 10.11 Inspection  42 10.12 Required Licenses; Intellectual Property  42 10.13 ERISA  42 10.14 Maintenance of Commodity Position  43 10.15 Financial Covenants  43 ARTICLE 11. NEGATIVE COVENANTS  43 11.1 Borrowing  43 11.2 No Other Businesses  44 11.3 Liens  44 11.4 Sale of Assets  45 11.5 Liabilities of Others  45 11.6 Loans  46 11.7 Merger; Acquisitions; Business Form; Etc.  46 11.8 Investments  46 11.9 Transactions With Related Parties  47 11.10 Restricted Payments  47 11.11 Change in Fiscal Year  47 11.12 ERISA  47 11.13 Member Loans  48 ARTICLE 12. INDEMNIFICATION  49 12.1 General; Stamp Taxes; Intangibles Tax  49 
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     12.2 Indemnification Relating to Hazardous Substances  50 ARTICLE 13. EVENTS OF DEFAULT; RIGHTS AND REMEDIES  51 13.1 Events of Default  51 13.2 No Advance  53 13.3 Rights and Remedies  53 ARTICLE 14. AGENCY AGREEMENT  53 14.1 Funding of Syndication Interest  53 14.2 Lenders’ Obligations to Remit Funds  54 14.3 Lender’s Failure to Remit Funds  54 14.4 Agency Appointment  55 14.5 Power and Authority of the Administrative Agent  55 14.6 Duties of the Administrative Agent  56 14.7 Indemnification as Condition to Action  57 14.8 Consent Required for Certain Actions  57 14.9 Distribution of Principal and Interest  59 14.10 Distribution of Certain Amounts  59 14.11 Possession of Loan Documents  59 14.12 Collateral Application  59 14.13 Amounts Required to be Returned  60 14.14 Reports and Information to Lenders  60 14.15 Standard of Care  60 14.16 No Trust Relationship  60 14.17 Sharing of Costs and Expenses  61 14.18 Lenders’ Indemnification of the Administrative Agent  61 14.19 Books and Records  61 14.20 Administrative Agent Fee  62 14.21 The Administrative Agent’s Resignation or Removal  62 14.22 Representations and Warranties of All Parties  62 14.23 Lenders’ Independent Credit Analysis  63 14.24 No Joint Venture or Partnership  63 14.25 Purchase for Own Account; Restrictions on Transfer; Participations  63 14.26 Certain Participants’ Voting Rights  64 14.27 Method of Making Payments  64 14.28 Replacement of Non-Consenting Lenders and Delinquent Lenders  65 
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     14.29 Withholding Taxes  65 14.30 Amendments Concerning Agency Function  67 14.31 Further Assurances  67 ARTICLE 15. MISCELLANEOUS  67 15.1 Costs and Expenses  67 15.2 Service of Process and Consent to Jurisdiction  67 15.3 Jury Waiver  68 15.4 Notices  68 15.5 Liability of Administrative Agent  68 15.6 Successors and Assigns  69 15.7 Severability  69 15.8 Entire Agreement  69 15.9 Applicable Law  69 15.10 Captions  69 15.11 Amendments  69 15.12 Replacement Notes  69 15.13 Liberal Construction  70 15.14 Counterparts  70 15.15 Confidentiality  70 15.16 Prior Credit Agreement  70 15.17 Release  70 
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**EXHIBITS**   Exhibit 1.21 Form of Compliance Certificate   Exhibit 1.76 Subsidiaries   Exhibit 2.3 Form of Borrowing Notice   Exhibit 2.4 Form of Note   Exhibit 8.3 Litigation   Exhibit 8.9 Required Licenses   Exhibit 8.10 Employee Benefit Plans   Exhibit 8.11 Equity Investments   Exhibit 8.18 Intellectual Property   Exhibit 11.1 Existing Indebtedness   Exhibit 11.3 Existing Liens   Exhibit 11.8 Existing Investments   Exhibit 11.13(b) Member Loan Documentation   Exhibit 14.25 Assignment and Assumption   Exhibit 14.27 Wire Instructions   Schedule 1 Individual Commitments
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     THIS AMENDED AND RESTATED CREDIT AGREEMENT (this “**Credit Agreement**”) is entered into as of the31st day of January, 2011, by and among NATIONAL COOPERATIVE REFINERY ASSOCIATION, a cooperativemarketing association formed under the laws of the State of Kansas (“**Borrower**”), the several banksand other financial institutions from time to time party hereto as lenders (the “**Lenders**”), andCOBANK, ACB, a federally chartered banking organization, in its capacity as administrative agentfor the Lenders (in such capacity, the “**Administrative Agent**”).     Borrower, certain financial institutions from time to time party thereto as lenders, and theAdministrative Agent are parties to a 2003 Amended and Restated Credit Agreement (2-Year RevolvingLoan) dated as of December 16, 2003 (as amended, restated, supplemented or otherwise modified todate, the “**Prior Credit Agreement**”).     Borrower and, subject to the terms and conditions set forth herein, the Administrative Agentand the Lenders now desire to amend and restate the Prior Credit Agreement in its entirety.     ACCORDINGLY, in consideration of the premises and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree asfollows:**ARTICLE 1. DEFINED TERMS**     1.1 Definitions. As used herein:     “**Additional Costs**” has the meaning set forth in Section 4.3.     “**Administrative Agent’s Office**” means that address set forth for the AdministrativeAgent in Section 15.4 as it may change from time to time by notice to all parties to thisCredit Agreement.     “**Advance**” means a loan of funds by a Lender to Borrower under the Facility.     “**Advance Date**” means a day (which shall be a Banking Day) on which an Advance is made.     “**Advance Payment**” has the meaning set forth in Section 14.1.     “**Affiliate**” means, with respect to Borrower, (a) a Subsidiary of Borrower and (b) anyPerson which, directly or indirectly, owns more than fifty percent (50%) of the outstandingstock or other equity interests of Borrower or has the power to elect at least a majority ofthe directors of Borrower; provided, however, that in no event shall any ofJayhawk Pipeline, L.L.C., Osage Pipe Line Company or Kaw Pipe Line Company be deemed anAffiliate of Borrower for purposes of this Credit Agreement and the other Loan Documents.     “**Aggregate LC Commitment**” means $15,000,000, unless the same shall be adjusted inaccordance with Section 2.10.

 
     “**Aggregate Revolving Commitment**” means $15,000,000, unless the same shall be adjustedin accordance with Section 2.10.     “**Applicable Lending Office**” means, for each Lender, the lending office of such Lenderdesignated on Schedule 1 hereto or in the applicable Assignment and Assumption, or suchother office as such Lender may from time to time specify to the Administrative Agent andBorrower as the office by which its Advances are to be made and maintained.     “**Assignment and Assumption**” means an assignment and assumption entered into by a Lenderand an assignee of that Lender’s interest, in substantially the form of Exhibit 14.25 or anyother form approved by the Administrative Agent.     “**Authorized Officer**” has the meaning set forth in Section 9.1(d).     “**Availability Period**” means the period commencing on the Closing Date and expiring onthe Maturity Date.     “**Available Amount**” means the amount at any time by which the Aggregate RevolvingCommitment exceeds the sum of (a) the aggregate principal amount outstanding under theFacility (including, without duplication, the amount of all outstanding Overnight Advances),plus (b) the amount of all Committed Advances, plus (c) the undrawn face amount of alloutstanding Letters of Credit.     “**Banking Day**” means any day (a) other than a Saturday or Sunday and other than a daywhich is a Federal legal holiday or a legal holiday for banks in the States of Colorado orKansas, and (b) if such day relates to a borrowing of, a payment or prepayment of principalof or interest on, a continuation of or conversion into, or a LIBO Rate Period for, a LIBORate Loan, or a notice by Borrower with respect to any such borrowing, payment, prepayment,continuation, conversion, or LIBO Rate Period, any day other than a day on which dealings inU.S. dollar deposits are carried on in the London interbank eurodollar market.     “**Banking Services Obligations**” means each and every debt, liability and otherobligation (whether direct or indirect, absolute or contingent, due or to become due, nowexisting or hereafter arising) of every type and description owing by Borrower or anySubsidiary to any Person that was a Lender or an affiliate of a Lender when such debt,liability or obligation arose, with respect to (a) credit cards, (b) credit card processingservices, (c) debit cards, (d) purchase cards, (e) treasury and cash management or relatedservices (including controlled disbursement, automated clearinghouse transactions, returnitems, overdrafts and interstate depository network services), and (f) any agreementproviding for an swap, cap, cap and floor, contingent participation or other hedgingmechanisms relating to fluctuations in commodity prices, currency values or interest rates.     “**Base Rate**” means a rate per annum announced by the Administrative Agent on the firstBanking Day of each week, which shall be the sum of (a) the highest of (i) 225 basis pointsgreater than the higher of the one week or one month LIBO Rate, (ii) the
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Federal Funds Rate plus 50 basis points or (iii) the Prime Rate, and (b) 75 basispoints; provided, however, if no LIBO Rate can be determined or if, in the AdministrativeAgent’s discretion, a reasonable basis for a LIBO Rate does not exist (including withoutlimitation as a result of the circumstances described in Section 4.2 hereof), then “BaseRate” shall mean a rate per annum equal to the sum of (x) 75 basis points plus (y) thehigher of (i) the Federal Fund Rate plus 50 basis points or (ii) the Prime Rate.     “**Base Rate Advance**” means any Advance that bears interest at a rate determined byreference to the Base Rate.     “**Base Rate LIBO Alternative**” means, within the definition of Base Rate, the applicationof the one week or one month LIBO Rate under clause (a)(i) thereof.     “**Base Rate Loan**” means any Loan that bears interest at a rate determined by referenceto the Base Rate, including Base Rate Advances.     “**Bonds**” means the Taxable Industrial Revenue Bonds Series 2006 (National CooperativeRefinery Association) in the original principal amount of $325,000,000 (with a currentprincipal balance of $1,000,000) issued by the City of McPherson, Kansas, pursuant to thatcertain Trust Indenture between the City of McPherson, Kansas, as issuer, and Security Bankof Kansas City, as trustee.     “**Borrower Benefit Plan**” means (a) any funded “employee welfare benefit plan,” as thatterm is defined in Section 3(1) of ERISA; (b) any “multiemployer plan,” as defined inSection 3(37) of ERISA; (c) any “employee pension benefit plan” as defined in Section 3(2)of ERISA; (d) any “employee benefit plan”, as such term is defined in Section 3(3) of ERISA;(e) any “multiple employer plan” within the meaning of Section 413 of the Code; (f) any“multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA; (g)any “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9)of the Code; (h) any “welfare benefit fund” within the meaning of Section 419 of the Code;or (i) any employee welfare benefit plan within the meaning of Section 3(1) of ERISA for thebenefit of retired or former employees; which, in each case, is maintained by Borrower orany of its Subsidiaries or ERISA Affiliates or in which Borrower or any of its Subsidiariesor ERISA Affiliates participates or to which Borrower or any of its Subsidiaries or ERISAAffiliates is obligated to contribute.     “**Borrower Pension Plan**” means each Borrower Benefit Plan that is an “employee pensionbenefit plan” as defined in Section 3(2) of ERISA that is intended to satisfy therequirements of Section 401(a) of the Code.     “**Borrowing**” means a borrowing by Borrower under the Facility, consisting of theaggregate of all Advances made by the Lenders to Borrower pursuant to a Borrowing Notice.     “**Borrowing Notice**” has the meaning set forth in Section 2.3.     “**Business Plan**” has the meaning set forth in Section 10.2(k).
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     “**Capital Leases**” means any lease of property (whether real, personal or mixed) by aPerson which has been or should be, in accordance with GAAP, reflected on the balance sheetof such Person as a capital lease.     “**Cash Collateral Account**” has the meaning set forth in Section 3.6.     “**Change in Law**” means the occurrence, after the Closing Date, of any of the following:(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change inany law, rule, regulation or treaty or in the administration, interpretation or applicationthereof by any Governmental Authority or (c) the making or issuance of any request,guideline or directive (whether or not having the force of law) by any GovernmentalAuthority; provided, however, for purposes of this Credit Agreement and the other LoanDocuments and to the extent permitted by applicable laws, the Dodd-Frank Wall Street Reformand Consumer Protection Act and all requests, guidelines or directives in connectiontherewith are deemed to have gone into effect and adopted after the Closing Date.     “**Closing Date**” means the date hereof.     “**CoBank**” means CoBank, ACB.     “**CoBank Equities**” has the meaning set forth in Section 6.1.     “**Code**” means the Internal Revenue Code of 1986, as amended.     “**Commitment Fee**” has the meaning set forth in Section 4.7(a).     “**Commitment Fee Factor**” means 37.5 basis points per annum.     “**Committed Advances**” means the aggregate principal amount of all Advances which anyLender is obligated to make as a result of (a) such Lender having received a Funding Noticepursuant to Section 2.3 hereof, or (b) if such Lender is the Overnight Lender, Borrowerhaving made an Overnight Advance Request pursuant to Section 2.5 hereof, but which, ineither case, has not been funded.     “**Compliance Certificate**” a certificate of the Vice President of Finance or corporatetreasurer of Borrower in the form attached hereto as Exhibit 1.21.     “**Contributing Lenders**” has the meaning set forth in Section 14.3.     “**Covenant Compliance Date**” means the last day of each Fiscal Quarter.     “**Covenant Computation Period**” means the four consecutive Fiscal Quarters immediatelypreceding and ending on a Covenant Compliance Date.     “**Default**” means any event that, with giving of notice or lapse of time or both, wouldconstitute an Event of Default.
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     “**Default Interest Rate**” means a rate of interest equal to 200 basis points in excess ofthe interest rate otherwise in effect with respect to the Loans.     “**Delinquency Interest**” has the meaning set forth in Section 14.3.     “**Delinquent Amount**” has the meaning set forth in Section 14.3.     “**Delinquent Lender**” means any Lender, as determined by the Administrative Agent, that(a) has failed to make an Advance or fund its participation in any Overnight Advance withinone Banking Day of the date by which it is required to do so hereunder, (b) has otherwisefailed to pay to the Administrative Agent or any other Lender any other amount required tobe paid by it hereunder within one Banking Day of the date by which it is required to do sohereunder, except to the extent that such amount is the subject of a good faith dispute, (c)has notified the Administrative Agent, Borrower or any other Lender that it does not intendto comply with one or more obligations under this Agreement, (d) has made a public statementto the effect that it does not intend to or will be unable to comply with its fundingobligations generally under agreements in which it commits to extend credit, or (e) hasbecome insolvent or has become the subject of a bankruptcy, insolvency or similarproceeding, or has had a receiver, conservator, trustee, custodian or similar officialappointed for it, or has taken any action in furtherance of, or indicating its consent to,approval of or acquiescence in any such proceeding or appointment, or has a parent companythat has become insolvent or has become the subject of a bankruptcy, insolvency or similarproceeding, or has had a receiver, conservator, trustee, custodian or similar officialappointed for it, or has taken any action in furtherance of, or indicating its consent to,approval of or acquiescence in any such proceeding or appointment; provided that aLender shall not be a Delinquent Lender solely by virtue of the ownership or acquisition ofany ownership interest in such Lender or a parent company thereof or the exercise of controlover a Lender or Person controlling such Lender by a Governmental Authority or aninstrumentality thereof.     “**EBIT**” means, for any period, the Net Income of Borrower plus the sum of (a) InterestExpense, plus (b) federal and state income taxes, plus (c) extraordinarylosses, minus (d) extraordinary gains, and minus (e) non-cash patronageincome; in each case, to the extent deducted from (or added to, as the case may be) revenuesto arrive at net income for such period, all as determined by GAAP.     “**EBITDA**” means, for any period, the Net Income of Borrower plus the sum of (a) InterestExpense, plus (b) federal and state income taxes, plus (c) extraordinarylosses, plus (d) depreciation and amortization expenses, minus (e)extraordinary gains, and minus (f) non-cash patronage income; in each case, to theextent in each case deducted from (or added to, as the case may be) revenues to arrive atnet income for such period, all as determined by GAAP.     “**Environmental Laws**” means any federal, state or local law, statute, ordinance, rule,regulation, administration order or permit now in effect or hereinafter enacted, pertainingto the public health, safety, industrial hygiene, emissions, discharges, releases ofpollutants, contaminants, hazardous or toxic materials, or wastes into ambient air,
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surface water, ground water or land, or otherwise relating to the manufacture,processing, distribution, use, treatment, storage, disposal, transport or handling ofpollutants, contaminants or hazardous or toxic materials or wastes, or other environmentalconditions on, under, about or otherwise with respect to any of Borrower’s property,including, without limitation, the Comprehensive Environmental Response, Compensation andLiability Act of 1980 as amended, 42 U.S.C. 9601-9657 and the Resource Conservation andRecovery Act of 1976, 42 U.S.C. 6901-6987.     “**ERISA**” means the Employee Retirement Income Security Act of 1974, as amended.     “**ERISA Affiliate**” means any corporation or trade or business which is a member of thesame controlled group of corporations (within the meaning of Section 414(b) of the Code) asBorrower or is under common control (within the meaning of Section 414(c) of the Code) withBorrower, provided, however, that for purposes of provisions herein concerning minimumfunding obligations (imposed under Section 412 of the Code or Section 302 of ERISA), theterm “ERISA Affiliate” shall also include any entity required to be aggregated with Borrowerunder Section 414(m) or 414(o) of the Code.     “**Event of Default**” has the meaning set forth in Section 13.1.     “**Excess Working Capital**” means the amount of Borrower’s Working Capital in excess of$20,000,000.     “**Excluded Taxes**” means, with respect to any Lender or any other recipient of anypayment to be made by or on account of any obligation of Borrower hereunder, (a) taxesimposed on or measured by its overall net income (however denominated), and franchise taxesimposed on it (in lieu of net income taxes), by the jurisdiction (or any politicalsubdivision thereof) under the laws of which such recipient is organized or in which itsprincipal office is located or in which its applicable lending office is located, (b) anybranch profits taxes imposed by the United States of America or any similar tax imposed byany other jurisdiction in which Borrower is located and (c) in the case of a Foreign Lender,any withholding tax that is imposed on amounts payable to such Foreign Lender at the timesuch Foreign Lender becomes a party hereto (or designates a new lending office) or isattributable to such Foreign Lender’s failure or inability (other than as a result of aChange in Law) to comply with Section 14.29(q), except to the extent that such ForeignLender (or its assignor, if any) was entitled, at the time of designation of a new lendingoffice (or assignment), to receive additional amounts from Borrower with respect to suchwithholding tax pursuant to Section 14.29(m).     “**Facility**” means the revolving credit facility being made available to Borrower by theLenders pursuant to Articles 2 and 3, under which Advances are made and Letters of Creditare issued.     “**Farm Credit Lender**” means a lending institution organized and existing pursuant to theprovisions of the Farm Credit Act of 1971 and under the regulation of the Farm CreditAdministration.
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     “**Federal Funds Rate**” means, for any day, the rate set forth in the weekly statisticalrelease designated as H.15(519), or any successor publication, published by the FederalReserve Bank of New York (including any such successor publication, “H.15(519)”) on thepreceding Banking Day opposite the caption “Federal Funds (Effective)”; or, if for anyrelevant day such rate is not so published on such preceding Banking Day, the rate for suchday will be the arithmetic mean as determined by the Administrative Agent of the rates forthe last transaction in overnight federal funds arranged prior to 9:00 a.m. (New York Citytime) on that day by each of the three leading brokers of federal funds transactions in NewYork City, as selected by the Administrative Agent in its discretion.     “**Fee Letter**” means one or more separate agreements between Borrower and theAdministrative Agent, setting forth certain fees to be paid by Borrower to theAdministrative Agent for the Administrative Agent’s own account or for the account of theLenders, as more fully set forth therein.     “**Fiscal Quarter**” means the three-month period beginning on the first day of each of thefollowing months: September, December, March and June.     “**Fiscal Year**” means a year commencing on September 1 and ending on August 31.     “**Foreign Lender**” means any Lender that is organized under the laws of a jurisdictionother than the United States of America, any state thereof or the District of Columbia.     “**Funded Debt**” means, for any period, without duplication, all of the followingindebtedness of Borrower: (a) the current portion of all long term debt; (b) all long termdebt; (c) all obligations under Capital Leases; (d) obligations under the Facility; and (e)all reimbursement obligations under all issued and outstanding Letters of Credit, andincluding any of the foregoing created or assumed by such Person either directly orindirectly, including obligations secured by Liens upon property of such Person and uponwhich such Person customarily pays the interest.     “**Funding Loss Notice**” has the meaning set forth in Section 5.7.     “**Funding Losses**” has the meaning set forth in Section 5.7.     “**Funding Notice**” has the meaning set forth in Section 2.3.     “**Funding Share**” means the amount of any Advance which any Lender is required to fund,which shall be determined as follows: (a) the principal amount of a Borrowing requested byBorrower under a Borrowing Notice multiplied by such Lender’s Individual Pro Rata Share asof, but without giving effect to, such Advance; and (b) for an Overnight Advance, the amountdetermined as provided in Section 2.5 hereof.     “**GAAP**” means generally accepted accounting principles as in effect on the Closing Dateand applied on a basis consistent with the accounting practices applied in
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the financial statements of Borrower referred to in Section 8.13, except for any changein accounting practices to the extent that, due to a promulgation of the FinancialAccounting Standards Board changing or implementing any new accounting standard, Borrowereither (a) is required to implement such change, or (b) for future periods will be requiredto and for the current period may in accordance with generally accepted accountingprinciples implement such change, for its financial statements to be in conformity withgenerally accepted accounting principles (any such change is hereinafter referred to as a“**Required GAAP Change**”), provided that (x) Borrower shall fully disclose in such financialstatements any such Required GAAP Change and the effects of the Required GAAP Change onBorrower’s income, retained earnings or other accounts, as applicable, and (y) the financialcovenants set forth in Section 10.15 shall be adjusted as necessary to reflect the effectsof such Required GAAP Change, provided that if the Required Lenders and Borrower cannotagree on such adjustments, the financial covenants set forth in Section 10.15 will becalculated without giving effect to the Required GAAP Change.     “**Good Faith Contest**” means the contest of an item if (a) the item is diligentlycontested in good faith by appropriate proceedings timely instituted, (b) either the item is(i) bonded or (ii) adequate reserves are established with respect to the contested item ifand to the extent required in accordance with GAAP, (c) during the period of such contest,the enforcement of any contested item is effectively stayed, and (d) the failure to pay orcomply with the contested item could not reasonably be expected to result in a MaterialAdverse Effect.     “**Governmental Authority**” means any nation or government, or any political subdivisionthereof, whether state or local, and any agency, authority, instrumentality, regulatorybody, court, central bank or other entity exercising executive, legislative, judicial,taxing, regulatory or administrative powers or functions of or pertaining to government(including any supra-national bodies such as the European Union or the European CentralBank).     “**Hazardous Substances**” means dangerous, toxic or hazardous pollutants, contaminants,chemicals, wastes, materials or substances, as defined in or governed by the provisions ofany Environmental Laws or any other federal, state or local law, statute, code, ordinance,regulation, requirement or rule relating thereto (“**Environmental Regulations**”), includingbut not limited to urea formaldehyde, polychlorinated biphenyls, asbestos,asbestos-containing materials, nuclear fuel or waste, and petroleum products, or any otherwaste, material, substances, pollutant or contaminant which would subject an owner ofproperty to any damages, penalties or liabilities under any applicable EnvironmentalRegulations.     “**Indebtedness**” means, as to any Person: (a) indebtedness or liability of such Personfor borrowed money, or for the deferred purchase price of property or services (includingtrade obligations); (b) all obligations of such Person evidenced by bonds, debentures, notesor other similar instruments; (c) obligations of such Person as lessee under Capital Leases;(d) obligations of such Person arising under bankers’ or trade acceptance facilities; (e)all guarantees, endorsements (other than for collection or deposit in the ordinary course ofbusiness), and other contingent obligations of such Person to
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purchase any of the items included in this definition, to provide funds for payment, tosupply funds to invest in any other Person, or otherwise to assure a creditor of anotherPerson against loss; (f) all obligations secured by a Lien on property owned by such Person,whether or not the obligations have been assumed; (g) all obligations of such Person underany agreement providing for swap, cap, cap and floor, contingent participation or otherhedging mechanisms relating to fluctuations in commodity prices, currency values or interestrates; (h) all obligations, contingent or otherwise, with respect to the face amount ofletters of credit (whether or not drawn) and bankers’ acceptances issued for the account ofsuch Person; (i) all redeemable capital stock of such Person; and (j) all obligations ofsuch Person to advance funds to, or purchase assets, property or services from, any otherPerson in order to maintain the financial condition of such Person.     “**Indemnified Agency Parties**” has the meaning set forth in Section 14.18.     “**Indemnified Parties**” has the meaning set forth in Section 12.1.     “**Indemnified Taxes**” means Taxes other than Excluded Taxes.     “**Individual Commitment**” means, with respect to any Lender, the amount shown as itsIndividual Commitment on Schedule 1 hereto, subject to adjustment in the event of the saleof all or a portion of a Syndication Interest in accordance with Section 14.25 hereof.     “**Individual Lending Capacity**” means, with respect to any Lender, the amount at any timeof its Individual Commitment less its Individual Outstanding Obligations.     “**Individual Outstanding Obligations**” means, with respect to any Lender, the sum of (a)the aggregate outstanding principal amount of all Advances made by such Lender (including,without duplication, Overnight Advances made by such Lender in its capacity as an OvernightLender); plus (b) the amount determined by multiplying (i) such Lender’s IndividualPro Rata Share times (ii) the undrawn face amount of all outstanding Letters of Credit; plus(c) all of such Lender’s Committed Advances.     “**Individual Pro Rata Share**” means, with respect to any Lender, a fraction, expressed asa percentage (rounded to 9 decimal points), where the numerator is such Lender’s IndividualCommitment less such Lender’s Individual Outstanding Obligations; and the denominator is theAggregate Revolving Commitment less the sum of the Individual Outstanding Obligations of allof the Lenders, determined (a) in the case of LIBO Rate Loans, at 12:00 noon (Eastern time)on the Banking Day Borrower delivers a Borrowing Notice pursuant to which Borrower requestssuch LIBOR Loan, and (b) in all other cases, 12:00 noon (Eastern time) on the Banking DayBorrower delivers a Borrowing Notice or requests a Letter of Credit.     “**Intellectual Property**” has the meaning set forth in Section 8.18.
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     “**Interest Coverage Ratio**” means, as of any Covenant Compliance Date, the ratio of (i)EBIT to (ii) Interest Expense, in each case during the Covenant Computation Period ending onsuch date.     “**Interest Expense**” means, for any period, all cash paid, accrued, and capitalized forfees and interest expense on all Funded Debt of Borrower as measured in accordance withGAAP.     “**Investment**” means, with respect to any Person, (a) any loan or advance by such Personto any other Person, (b) the purchase or other acquisition by such Person of any capitalstock, obligations or securities of, or any capital contribution to, or investment in, orthe acquisition by such Person of all or substantially all of the assets of, or any interestin, any other Person, (c) any performance or standby letter of credit where (i) that Personhas the reimbursement obligation to the issuer, and (ii) the proceeds of such letter ofcredit are to be used for the benefit of any other Person, (d) the agreement by such Personto make funds available for the benefit of another Person to either cover cost overrunsincurred in connection with the construction of a project or facility, or to fund a debtservice reserve account, (e) the agreement by such Person to assume, guarantee, endorse orotherwise be or become directly or contingently responsible or liable for the obligations ordebts of any other Person (other than by endorsement for collection in the ordinary courseof business), (f) an agreement to purchase any obligations, stocks, assets, goods orservices but excluding an agreement to purchase any assets, goods or services entered intoin the ordinary course of business, (g) an agreement to supply or advance any funds, assets,goods or services, or (h) an agreement to maintain or cause such Person to maintain aminimum working capital or net worth or otherwise to assure the creditors of any Personagainst loss.     “**Issuance Fee**” means an amount equal to 0.125% of the face amount of the Letter ofCredit.     “**LC Request**” has the meaning set forth in Section 3.1(a).     “**Lender**” means each of the Persons listed on Schedule 1 hereto as having an IndividualCommitment, and each of such additional Persons as shall from time to time execute anAssignment and Assumption substantially in the form of Exhibit 14.25 hereto signifying itselection to purchase all or a portion of the Syndication Interest of any Lender, inaccordance with Section 14.25 hereof, and to become a Lender hereunder.     “**Lender Advance Date**” has the meaning set forth in Section 14.2.     “**Letter of Credit**” has the meaning set forth in Section 3.1.     “**Letter of Credit Bank**” means CoBank, ACB.     “**Letter of Credit Fee**” means a fee equal to 225 basis points multiplied by the faceamount of the Letter of Credit.
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     “**LIBO Rate**” means the rate obtained by dividing (a)(i) with respect to a LIBO RatePeriod applicable to a LIBO Rate Loan, the rate per annum determined by the AdministrativeAgent as of approximately 11:00 a.m. London time on the date two Banking Days before thecommencement of such LIBO Rate Period by reference to the British Bankers’ AssociationInterest Settlement Rates for deposits in dollars offered on the London interbank dollarmarket for a period corresponding to the term of such LIBO Rate Period and in an amountcomparable to the aggregate amount of the relevant LIBO Rate Loan (as displayed in theBloomberg Financial Markets system or any successor thereto or any other service selected bythe Administrative Agent that has been nominated by the British Bankers’ Association as anauthorized information vendor for the purpose of displaying such rates), (ii) with respectto a Base Rate Loan, the rate per annum determined by the Administrative Agent as ofapproximately 11:00 a.m. London time on the first Banking Day of each calendar week byreference to the British Bankers’ Association Interest Settlement Rates for deposits indollars offered on the London interbank dollar market for a one-week or one-month period, asapplicable, and in an amount comparable to the aggregate amount of the relevant Base RateLoan (as displayed in the Bloomberg Financial Markets system or any successor thereto or anyother service selected by the Administrative Agent that has been nominated by the BritishBankers’ Association as an authorized information vendor for the purpose of displaying suchrates), or (iii) if such rate cannot be determined, the rate per annum equal to the ratedetermined by the Administrative Agent to be a rate at which U.S. dollar deposits areoffered to major banks in the London interbank eurodollar market for funds to be madeavailable on the first day of such LIBO Rate Period and maturing at the end of such LIBORate Period, in each case rounded upwards, if necessary, to the nearest 1/100 of 1%; by (b)a percentage equal to 1.00 minus the applicable percentage (expressed as a decimal)prescribed by the Board of Governors of the Federal Reserve System (or any successorthereto) for determining the maximum reserve requirements applicable to eurodollar fundings(currently referred to as “Eurocurrency Liabilities” in Regulation D) or any other maximumreserve requirements applicable to a member bank of the Federal Reserve System with respectto such eurodollar fundings.     “**LIBO Rate Advance**” means any Advance (excluding any Base Rate Advance) that bearsinterest at a rate per annum equal to the LIBO Rate plus the LIBOR Margin.     “**LIBO Rate Loan**” means any Loan (excluding any Base Rate Loan) that bears interest at arate per annum equal to the LIBO Rate plus the LIBOR Margin.     “**LIBO Rate Period**” means, relative to any LIBO Rate Loan, the period beginning on (andincluding) the date on which such LIBO Rate Loan is made, or continued as, or convertedinto, a LIBO Rate Loan pursuant to Section 4.1(b) and shall end on (but exclude) the daythat numerically corresponds to such date 1, 2, 3 or 6 months thereafter (or, if such monthhas no numerically corresponding day, on the last Banking Day of such month), as Borrowermay select in its relevant Borrowing Notice or LIBO Request; provided, however, that:     (a) no more than five different LIBO Rate Periods may be outstanding at any onetime;
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     (b) if a LIBO Rate Period would otherwise end on a day that is not a BankingDay, such LIBO Rate Period shall end on the next following Banking Day (unless suchnext following Banking Day is the first Banking Day of a month, in which case suchLIBO Rate Period shall end on the next preceding Banking Day); and     (c) no LIBO Rate Period applicable to a Loan may end later than the MaturityDate.     “**LIBO Request**” has the meaning set forth in Section 4.1(b).     “**LIBOR Margin**” means 225 basis points per annum.     “**Licensing Laws**” has the meaning set forth in Section 8.4.     “**Lien**” means any mortgage, deed of trust, pledge, security interest, hypothecation,assignment for security purposes, encumbrance, lien (statutory or other), or other securityagreement or charge, or encumbrance of any kind or nature whatsoever (including, withoutlimitation, any conditional sale, Capital Lease or other title retention agreement relatedto such asset).     “**Loan**” or “**Loans**” means the loan or loans represented by Advances (including OvernightAdvances) made under the Facility pursuant to this Credit Agreement.     “**Loan Documents**” means this Credit Agreement, the Notes and the Fee Letter.     “**Material Adverse Effect**” means, with respect to any event or circumstance, a materialadverse effect on (a) the business, financial condition, operations, property or prospectsof Borrower; (b) the ability of Borrower to perform its obligations under any Loan Documentto which it is a party; or (c) the validity, enforceability or collectibility of any LoanDocument. In determining whether any individual event or circumstance could reasonably beexpected to have a Material Adverse Effect, notwithstanding that such event or circumstancedoes not of itself have such effect, a Material Adverse Effect shall be deemed to haveoccurred if the cumulative effect of such event or circumstance and all other then-existingevents and circumstances could reasonably be expected to have a Material Adverse Effect.     “**Material Agreement**” means each agreement of Borrower, the termination or breach ofwhich, based upon Borrower’s knowledge as of the date of making any representation withrespect thereto, would have a Material Adverse Effect.     “**Maturity Date**” means December 16, 2011.     “**Member**” means each of the following Persons: CHS, Inc., Growmark, Inc. and MFA OilCompany.     “**Member Loans**” means loans made from time to time by Borrower to a Member which meetthe requirements and limits contained in Section 11.13 hereof.
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     “**Member Percentage**” means (a) with respect to CHS, Inc., 74.429%, (b) with respect toGrowmark, Inc., 18.616%, and (c) with respect to MFA Oil Company, 6.955%.     “**Multiemployer Plan**” means a multiemployer plan (as defined in section 4001(a)(3) ofERISA) to which Borrower or any ERISA Affiliate contributes or is obligated to contribute.     “**Net Income**” means, for any period, the net after tax income (or loss) attributable toBorrower for such period determined in accordance with GAAP; provided that there shall beexcluded from such calculation any extraordinary gains or extraordinary losses.     “**Net Worth**” means the total assets of Borrower (as determined in accordance with GAAP)minus the total liabilities of Borrower (as determined in accordance with GAAP).     “**Non-Consenting Lender**” has the meaning set forth in Section 14.28.     “**Note**” or “**Notes**” has the meaning set forth in Section 2.4.     “**Obligations**” means (a) each and every debt, liability and other obligation of everytype and description arising under or in connection with any of the Loan Documents whichBorrower may now or at any time hereafter owe to any Lender, the Overnight Lender or theAdministrative Agent, whether such debt, liability or obligation now exists or is hereaftercreated or incurred, whether it is direct or indirect, due or to become due, absolute orcontingent, primary or secondary, liquidated or unliquidated, or sole, joint, several orjoint and several, and including specifically (but not limited to) due and owing to a Lenderfrom Borrower, all indebtedness, liabilities and obligations of Borrower arising under orevidenced by the Notes and Borrower’s obligations to purchase CoBank Equities and (b)Banking Services Obligations.     “**Operating Lease**” means any lease of property (whether real, personal or mixed) by aPerson under which such Person is lessee, other than a Capital Lease.     “**Organization Documents**” means (a) with respect to any corporation, the articles orcertificate of incorporation and bylaws of such corporation, (b) with respect to anypartnership, the partnership agreement and certificate of limited partnership, ifapplicable, of such partnership, (c) with respect to any limited liability company, thearticles of organization and operating agreement of such company, and (d) with respect toany entity, any and all other shareholder, partner or member control agreements and similarorganizational documents relating to such entity.     “**Other Taxes**” means all present or future stamp or documentary taxes or any otherexcise or property taxes, charges or similar levies arising from any payment made hereunderor under any other Loan Document or from the execution, delivery or enforcement of, orotherwise with respect to, this Agreement or any other Loan Document.
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     “**Overnight Advance**” has the meaning set forth in Section 2.5.     “**Overnight Advance Request**” has the meaning set forth in Section 2.5.     “**Overnight Funding Commitment**” means $5,000,000.     “**Overnight Lender**” means CoBank, ACB.     “**Overnight Maturity Date**” has the meaning set forth in Section 2.5.     “**Overnight Rate**” has the meaning set forth in Section 2.5.     “**Patronage Refunds**” means the “Patronage Refunds” as so identified, and as determinedfrom time to time, by a resolution of Borrower’s Board of Directors pursuant to theprovisions and limitations of Borrower’s Organization Documents.     “**Payment Account**” has the meaning set forth in Section 14.9.     “**Payment Distribution**” has the meaning set forth in Section 14.9.     “**PBGC**” means the Pension Benefit Guaranty Corporation.     “**Percentage**” means, with respect to any Lender, the ratio of the Individual Commitmentof such Lender to the Aggregate Revolving Commitment.     “**Permitted Encumbrances**” has the meaning set forth in Section 8.12.     “**Person**” means any individual, sole proprietorship, partnership, joint venture, trust,unincorporated organization, association, corporation, limited liability company,cooperative association, institution, or government or governmental agency (whethernational, federal, state, provincial, country, city, municipal or otherwise, includingwithout limitation, and instrumentality, division, agency, body or department thereof), orother entity.     “**Prime Rate**” means a rate of interest per annum equal to the “prime rate” as publishedfrom time to time in the Eastern Edition of the *Wall Street Journal*as the average primelending rate for seventy-five percent (75%) of the United States’ thirty (30) largestcommercial banks, or if the *Wall Street Journal*shall cease publication or cease publishingthe ‘prime rate” on a regular basis, such other regularly published average prime rateapplicable to such commercial banks as is acceptable to the Administrative Agent in itsreasonable discretion.     “**Prior Credit Agreement**” has the meaning set forth in the recitals hereto.     “**Prohibited Transaction**” means any transaction prohibited under Section 406 of ERISA orSection 4975 of the Code.     “**Quarter**” means the quarters of the calendar year commencing as of January 1, April 1,July 1 and October 1.
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     “**Required Lenders**” means one or more Lenders (including Voting Participants inaccordance with Section 14.26) having an aggregate Percentage in excess of fifty percent(50%); provided, however, the Percentage of any Delinquent Lender shall be excluded from anydetermination of Required Lenders; provided, further, that at any time during which only oneLender that is not a Delinquent Lender exists, “Required Lenders” means the Lender.     “**Regulatory Change**” has the meaning set forth in Section 4.3.     “**Reportable Event**” means a reportable event (as defined in section 4043 of ERISA),other than an event for which the 30-day notice requirement under ERISA has been waived inregulations issued by the PBGC.     “**Required Licenses**” has the meaning set forth in Section 8.9.     “**Restricted Payments**” means any dividend or other distribution (whether in cash,securities or other property), including any cash patronage refunds to patrons or Members,with respect to any shares of any class of capital stock or other equity interests of, orcooperative membership interest or accounts with, Borrower or any Subsidiary of Borrower, orany payment (whether in cash, securities or other property), including any sinking fund orsimilar deposit, on account of the purchase, redemption, retirement, revolvement,acquisition, cancellation or termination of any such shares of capital stock, other equityinterest or cooperative membership interest of Borrower or any Subsidiary of Borrower, orany option, warrant or other right to acquire any such shares of capital stock, other equityinterest or cooperative membership interest of Borrower or any Subsidiary of Borrower.     “**Subordinated Member Loans**” means loans from any Member to Borrower so long as paymentthereof is subordinated to payment of the Obligations pursuant to an agreement (in form andsubstance) satisfactory to the Administrative Agent, executed and delivered by such Memberin favor of the Administrative Agent     “**Subsidiary**” means, with respect to any Person, (a) any corporation in which suchPerson, directly or indirectly, (i) owns more than fifty percent (50%) of the outstandingstock or other equity interests thereof, or (ii) has the power under ordinary circumstancesto elect at least a majority of the directors thereof, or (b) any partnership, association,joint venture, limited liability company, or other unincorporated organization or entitywith respect to which such Person, directly or indirectly, (i) owns more than fifty percent(50%) of the equity interest thereof, or (ii) directly or indirectly owns an equity interestin an amount sufficient to control the management thereof. All of Borrower’s Subsidiariesowned as of the Closing Date are set forth on Exhibit 1.76 hereto.     “**Successor Agent**” has the meaning set forth in Section 14.21.     “**Syndication Interest**” has the meaning set forth in Section 14.1.
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     “**Taxes**” means all present or future taxes, levies, imposts, duties, deductions,withholdings, assessments, fees or other charges imposed by any Governmental Authority,including any interest, additions to tax or penalties applicable thereto.     “**Transfer**” has the meaning set forth in Section 14.25.     “**Voting Participant**” has the meaning set forth in Section 14.26.     “**Voting Participant Notification**” has the meaning set forth in Section 14.26.     “**Wire Instructions**” has the meaning set forth in Section 14.27.     “**Working Capital**” means current assets (determined in accordance with GAAP) minuscurrent liabilities (determined in accordance with GAAP).     1.2 Rules of Construction. For all purposes of this Credit Agreement, except asotherwise expressly provided or unless the context otherwise requires: (a) the terms defined in thepreamble have the meanings therein assigned to them; (b) the terms defined in this Credit Agreementinclude the plural as well as the singular; (c) all accounting terms not otherwise defined hereinhave the meanings assigned to them in accordance with GAAP; (d) references to documents (includingthis Credit Agreement) shall be deemed to include all subsequent amendments and other modificationsthereto and restatements thereof, but only to the extent such amendments, modifications andrestatements are not prohibited by the terms of any Loan Document; and (e) the words “include”,“includes” and “including” shall be deemed to be followed by the phrase “without limitation”.**ARTICLE 2. LOAN**     2.1 Loan. On the terms and conditions set forth in this Credit Agreement, includingspecifically satisfaction of all conditions set forth in Section 9.2, each of the Lenders severallyagrees to make Advances to Borrower from time to time during the Availability Period, in anaggregate principal amount outstanding at any time not to exceed the Aggregate RevolvingCommitment, subject to the following limits:     (a) Individual Lending Capacity. No Lender shall be required to make Advanceswhich would exceed its Individual Lending Capacity as in effect at the time of theAdministrative Agent’s receipt of the Borrowing Notice requesting such Advance.     (b) Individual Pro Rata Share. No Lender shall be required to make Advancesunder the Loan in excess of an amount equal to its Individual Pro Rata Share multiplied bythe amount of the requested Advance. Each Lender severally agrees to fund its Individual ProRata Share of each Advance, except as provided in Section 2.5 hereof regarding OvernightAdvances.     2.2 Available Amount. Borrower shall not be entitled to request an Advance under theLoan in an amount which would exceed the Available Amount.
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     2.3 Borrowing Notice. Borrower shall give the Administrative Agent prior writtennotice (“**Borrowing Notice**”) by facsimile or email transmission (effective upon receipt) of eachrequest for a Borrowing on or before 12:00 noon (Eastern Time) at least one Banking Day (for BaseRate Loans) or three Banking Days (for LIBO Rate Loans) prior to the date of making such Borrowing(subject to the minimum amount requirements set forth in this Section 2.3). Each Borrowing Noticemust be in substantially the form of Exhibit 2.3 hereto and must specify (a) the amount of suchBorrowing, (b) the proposed date of such Borrowing, (c) whether the Borrowing is to include BaseRate Loans, LIBO Rate Loans or both, and (d) in the case of a LIBO Rate Loan, the initial LIBO RatePeriod applicable thereto. The principal amount of any Loan must be a minimum of $1,000,000 or ahigher integral multiple of $1,000,000. The Administrative Agent shall, on or before 1:00 P.M.(Eastern Time) of the same Banking Day, notify each Lender (“**Funding Notice**”) of its receipt ofeach such Borrowing Notice and the amount of such Lender’s Funding Share thereunder. Not later than2:00 P.M. (Eastern Time) on the date of the proposed Borrowing, each Lender will make available tothe Administrative Agent at the Administrative Agent’s Office, in immediately available funds, anAdvance equal to such Lender’s Funding Share of such Borrowing. After the Administrative Agent’sreceipt of such funds, but not later than 3.:00 P.M. (Eastern Time), and upon fulfillment of theapplicable conditions set forth in Article 9 hereof, the Administrative Agent will make theBorrowing available to Borrower, in immediately available funds.     2.4 Promissory Notes. Borrower’s obligation to repay the principal of and interest onthe Advances made by each Lender and all Overnight Advances made by the Overnight Lender shall beevidenced by a promissory note of Borrower, in substantially the form of Exhibit 2.4 hereto, dulycompleted, in the stated maximum principal amount equal to such Lender’s Individual Commitment,dated the date such Lender becomes a Lender, payable to such Lender for the account of itsApplicable Lending Office, and maturing as to principal on the Maturity Date (each a “**Note**” andcollectively, the “**Notes**”).     2.5 Overnight Advances. In addition to Borrower’s right to request Advances underSection 2.1 hereof, Borrower may, subject to the terms and conditions of this Section, at any timebefore 3:00 P.M. (Eastern Time) on a Banking Day, request the Overnight Lender to make an Advanceto Borrower under the Facility on the same Banking Day (“**Overnight Advance**”) in accordance with theprovisions of this Section 2.5. On each Banking Day by 11:30 A.M. (Eastern Time), the OvernightLender shall notify Borrower of the interest rate (“**Overnight Rate**”) that it will charge on allOvernight Advances made that Banking Day, which rate may not be in excess of the Base Rate.Borrower’s request for an Overnight Advance (“**Overnight Advance Request**”) may be madetelephonically or in writing by facsimile or email transmission (and if telephonically, shall beconfirmed in writing on the same Banking Day), must be directed to the Overnight Lender, and mustspecify (a) the amount of such Advance, and (b) the date when such Overnight Advance will be dueand payable (“**Overnight Maturity Date**”), which may not be later than the fifth Banking Daythereafter. If Borrower submits an Overnight Advance Request, the Overnight Lender shall promptly,but not later than 3:30 P.M. (Eastern Time) on the same Banking Day, fund such Overnight Advance.Each Overnight Advance shall bear interest at the applicable Overnight Rate and shall be payable infull, including interest, on the Overnight Maturity Date applicable to such Overnight Advance. Suchpayment may, at Borrower’s discretion, and subject to the conditions of this Credit Agreement, bemade by a Borrowing under the Facility (in which case, for thepurpose of such Advance, the amount of
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such Overnight Advance shall not be considered indetermining the Available Amount or the Individual Obligations of the Overnight Lender). OvernightAdvances shall be made only by the Overnight Lender. Borrower’s entitlement to receive, and theOvernight Lender’s obligation to fund, any Overnight Advance shall be subject to the conditions andlimitations set forth in Sections 2.1 and 9.2, and the other conditions and limitations applicableto Advances generally, and, in addition, the aggregate outstanding principal amount of all suchOvernight Advances shall not at any time exceed the Overnight Funding Commitment.     2.6 Lender Records. Each Lender shall record on its books and records the amount ofeach Advance (including Overnight Advances with respect to those Lenders which are also OvernightLenders) made by such Lender, the rate and interest period applicable thereto, all payments ofprincipal and interest, and the principal balance from time to time outstanding. The Lender’srecord thereof shall be prima facie evidence as to all such amounts and shall be binding onBorrower absent manifest error.     2.7 Use of Proceeds. The proceeds of the Facility will be used by Borrower to (a)refinance Borrower’s obligations under the Prior Credit Agreement, (b) provide for Borrower’spurchases of crude oil and other working capital requirements, (c) issue the Letters of Credit and(d) pay fees and expenses in connection with the negotiation, execution and delivery of the LoanDocuments and all other matters related thereto. Borrower agrees not to request or use suchproceeds for any other purpose. Borrower will not, directly or indirectly, use any part of suchproceeds for the purpose of purchasing or carrying any margin stock within the meaning ofRegulation U of the Board of Governors of the Federal Reserve System or to extend credit to anyPerson for the purpose of purchasing or carrying any such margin stock.     2.8 Lender Funding Failure. The failure of any Lender to make its Funding Share of anyrequested Borrowing under the Facility on the date specified for such Borrowing shall not relieveany other Lender of its obligation to make its Funding Share of any such Borrowing on such date. NoLender shall be responsible for the failure of any other Lender to make any Advance to be made bysuch other Lender.     2.9 Overnight Lender Funding Failure. In the event the Overnight Lender fails to makeany requested Overnight Advance to be made by it on the date specified for such Advance, and,except where the Overnight Lender and the Administrative Agent are the same Person, theAdministrative Agent will, in its role and capacity of the Administrative Agent, advance such fundsto Borrower on behalf of such Overnight Lender, notwithstanding limitations, if any, containedherein relating to the Administrative Agent in its role as a Lender, including its IndividualCommitment or Individual Lending Capacity, as applicable. In the event of any such Advance by theAdministrative Agent, the Overnight Lender will be treated as a Delinquent Lender under Section14.3 hereof, and the Administrative Agent will be treated as a Contributing Lender under suchSection.     2.10 Reduction of Aggregate Revolving Commitment; Voluntary Increases. Borrower may,from time to time, reduce or increase the Aggregate Revolving Commitment as follows:     (a) Reduction. Borrower may, by written facsimile notice to the AdministrativeAgent on or before 10:00 A.M. (Eastern time) on any Banking Day, make
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a one-time irrevocablereduction in the Aggregate Revolving Commitment; provided that (i) such reduction must be inmultiples of five million dollars ($5,000,000), and (ii) Borrower must simultaneously makeany principal payment necessary (along with any applicable Funding Losses on account of suchprincipal payment) so that (x) the Available Amount does not exceed the reduced AggregateRevolving Commitment on the date of such reduction, and (y) the Individual OutstandingObligations owing to any Lender do not exceed the Individual Commitment of such Lender(after reduction thereof in accordance with the following sentence). In the event theAggregate Revolving Commitment is reduced as provided in the preceding sentence, theIndividual Commitment of each Lender shall be reduced in accordance with the Percentage ofsuch Lender, as determined before giving effect to the reduction in the Aggregate RevolvingCommitment.     (b) Request to Increase. Provided that no Event of Default has occurred and iscontinuing, Borrower may from time to time, but in no event more than two times prior to theMaturity Date, propose to increase the Aggregate Revolving Commitment in accordance withthis Section 2.10. The aggregate principal amount of the increase to the AggregateRevolving Commitment made pursuant to this Section 2.10 (the amount of any such increase,the “**Increased Facility Amount**”) shall not exceed $35,000,000, which for the avoidance ofdoubt shall increase the Aggregate Revolving Commitment to an amount not to exceed$50,000,000, and each increase shall be at least $10,000,000. Borrower shall provide noticeto the Administrative Agent (which shall promptly provide a copy of such notice to theLenders) of any requested Increased Facility Amount. The Administrative Agent may, in itssole discretion, offer one or more Lenders the opportunity (but not the obligation), for aperiod of thirty days following receipt of such notice, to elect by notice to Borrower andthe Administrative Agent to subscribe to participate in the Increased Facility Amount.Lenders that fail to respond to such notice shall be deemed to have elected not toparticipate in the Increased Facility Amount.     (c) Allocation of Unsubscribed Amounts. If any Lender elects not to increaseits Individual Commitment pursuant to this Section 2.10, the Administrative Agent may placesuch unsubscribed amount with one or more other financial institutions selected by theAdministrative Agent and mutually agreed upon by Borrower and the Administrative Agent(each, an “**Additional Lender**”), which may (but need not) be existing Lenders (in which case,such Lender may subscribe to participate in the Increased Facility Amount in excess of itsPercentage, as determined before giving effect to the increase in the Aggregate RevolvingCommitment). The sum of the portion of the Increased Facility Amount subscribed under thisSection 2.10 and the amount placed pursuant to the preceding sentence shall not exceed theIncreased Facility Amount.     (d) Conditions Precedent. Any increase in the Aggregate Revolving Commitmentunder this Section 2.10 shall become effective upon receipt by the Administrative Agent of:     (i) an amendment to this Credit Agreement, duly signed by Borrower, theAdministrative Agent, each Lender whose Individual Commitment will be increased andeach Additional Lender (if any), which amendment modifies the
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definition of“Aggregate Revolving Commitment Amount”, sets forth any other agreements ofBorrower, the Administrative Agent, such Lenders and any Additional Lender includingwithout limitation pricing affecting the Increased Facility Amount, and incorporatesthe agreement of each Additional Lender to become a Lender under this CreditAgreement and the other Loan Documents and bound by all the terms and provisionshereof and thereof;     (ii) amendments to any other Loan Documents reasonably requested by theAdministrative Agent in relation to the Increased Facility Amount, which amendmentsthe Administrative Agent is hereby authorized to execute and deliver on behalf ofthe Lenders;     (iii) Notes, duly executed by Borrower, as any Lender or any Additional Lendermay require;     (iv) evidence of appropriate corporate authorization on the part of Borrowerwith respect to the Increased Facility Amount and the execution and delivery of thedocuments described in this subsection 2.10(d);     (v) such opinions of counsel to Borrower and other assurances as theAdministrative Agent may reasonably request; and     (vi) reimbursement of the Administrative Agent’s out-of-pocket costs andexpenses (including reasonable attorney’s fees) incurred in connection therewith.     2.11 Treatment of Existing Advances. All amounts outstanding under the Prior CreditAgreement and the other loan documents (as defined therein) shall, as of the Closing Date, betreated as outstanding Advances under the Facility and constitute Obligations hereunder.**ARTICLE 3. LETTER OF CREDIT FACILITY**     3.1 Letters of Credit. On the terms and conditions set forth in this Credit Agreement,including without limitation satisfaction of all conditions set forth in Section 9.2, Borrower mayrequest the issuance of one or more standby letters of credit (each a “**Letter of Credit**”) by theLetter of Credit Bank pursuant to the conditions and limitations set forth below.     (a) Request for Letter of Credit. Borrower may request issuance of a Letter ofCredit by sending, not later than 11:00 A.M. (Eastern time) on a Banking Day, a writtenrequest therefore (“**LC Request**”) to the Letter of Credit Bank. The LC Request shall setforth (i) the face amount and expiry date, (ii) the beneficiary, (iii) the terms thereof,and (iv) such other information as the Letter of Credit Bank shall request. Letters ofCreditshall be issued under the Facility. In no event may the expiry date be later than three(3) Banking Days prior to the Maturity Date.     (b) Notification of the Administrative Agent. If the Letter of Credit Bank isdifferent than the Administrative Agent, Borrower shall, no later than 3:00 P.M. (EasternTime) on the date of issuance, notify the Administrative Agent by facsimile or email
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transmission of the face amount, beneficiary and expiry date with respect to each Letter ofCredit issued. The Letter of Credit Bank shall also, no later than 3:00 P.M. (Eastern Time)on the date of issuance, notify the Administrative Agent by facsimile or email transmissionof the face amount, beneficiary and expiry date with respect to each Letter of Credit issuedby such Letter of Credit Bank.     (c) Letter of Credit Documents. Each Letter of Credit will be issued under andpursuant to the terms and conditions of such letter of credit documents as the Letter ofCredit Bank may reasonably require. If any of the terms of any such letter of creditdocument are inconsistent with the terms and provisions of this Credit Agreement, the termsand provisions of this Credit Agreement shall govern.     3.2 Issuance of Letters of Credit. No later than 12:00 noon (Eastern Time) on theBanking Day of the receipt by the Letter of Credit Bank of an LC Request, the Letter of Credit Bankshall issue the requested Letter of Credit for any expiry period from seven (7) days to the latestexpiry date allowable under Subsection 3.1(a) hereof, subject to the following:     (a) Available Amount. The face amount of the requested Letter of Credit maynot exceed the lesser of (i) an amount which, when added to the aggregate IndividualOutstanding Obligations of all Lenders, would exceed the Aggregate Revolving Commitment, or(ii) an amount which, when added to the undrawn face amount of all Letters of Credit thenoutstanding, would exceed the Aggregate LC Commitment.     (b) Availability. Letters of Credit may be requested for issuance at any timeprior to the date thirty (30) days prior to the Maturity Date.     (c) Fees. Borrower shall, on the date of issuance or reissuance of each Letterof Credit (i) pay to the Administrative Agent, for the benefit of all Lenders in accordancewith their Individual Pro Rata Share in effect on the date of such issuance or reissuance,the Letter of Credit Fee and (ii) pay to the Letter of Credit Bank the Issuance Fee for suchissuance or reissuance of each Letter of Credit.     (d) Treatment of Draws. Each draw under a Letter of Credit shall be funded bythe Lenders as a Borrowing under the Facility in accordance with each Lender’s IndividualPro Rata Share as of the date of issuance of such Letter of Credit. Whenever a draftsubmitted under a Letter of Credit is paid by the Letter of Credit Bank, the Letter ofCredit Bank shall so notify the Administrative Agent, and the Administrative Agent shall sonotify each Lender. The Lenders shall fund such Borrowing for purposes of reimbursing theLetter of Credit Bank for the amount of such draft so paid by the Letter of Credit Bank. Iffor any reason or under any circumstance (including the occurrence ofa Default or Event of Default or the failure to satisfy any of the conditions set forthin Section 9.2) the Lenders do not make such Borrowing, Borrower shall nonetheless beobligated to reimburse the amount of the draft to the Letter of Credit Bank, with interestthereon from and after the date such draft is paid by the Letter of Credit Bank until theamount thereof is repaid to the Letter of Credit Bank in full.
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     3.5 Reimbursement Obligation Unconditional. The obligation of Borrower under thisCredit Agreement to reimburse the Letter of Credit Bank for a drawing under a Letter of Creditshall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms ofthis Credit Agreement under all circumstances, notwithstanding:     (a) any lack of validity or enforceability of this Credit Agreement, any Letter ofCredit, any of the documents referenced in any Letter of Credit, or any other agreement orinstrument related to any such documents;     (b) any change in the time, manner or place of payment of, or in any other term of, allor any of the obligations of Borrower in respect of any Letter of Credit or any otheramendment or waiver of or any consent to departure from any agreement or instrument relatedto such Letter of Credit;     (c) the existence of any claim, setoff, defense or other right which Borrower may haveat any time against any beneficiary or any transferee of any Letter of Credit (or any Personfor whom any such beneficiary or any such transferee may be acting), the Letter of CreditBank, any Lender or any other Person, whether in connection with this Credit Agreement, thetransactions contemplated hereby or any unrelated transaction;     (d) any statement, draft, demand, certificate or any other document presented under anyLetter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect,or any statement therein being untrue or inaccurate in any respect whatsoever or the drawcertificate was otherwise unauthorized, it being expressly understood and agreed by Borrowerthat neither the Letter of Credit Bank nor any Lender shall have any liability on account ofany lack of authorization or forgery and any recovery from third parties on account of suchlack of authorization or such forgery shall be the sole responsibility of Borrower;     (e) payment of a draw against presentation of a draft or certificate which does notstrictly comply with the terms of that Letter of Credit, unless such payment is made as aresult of the gross negligence or willful misconduct of the Letter of Credit Bank asdetermined by a final, non-appealable judgment of a court of competent jurisdiction, or anypayment made under any Letter of Credit to any Person purporting to be a trustee inbankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,receiver or other representative of or successor to any beneficiary or any transferee of anyLetter of Credit, including any arising in connection with any insolvency proceeding;     (f) any other circumstance or happening whatsoever, whether or not similar to any ofthe foregoing, including any other circumstance that might otherwise constitute a defenseavailable to, or a discharge of, Borrower or any other Person.     3.6 Cash Collateral Account. Upon the occurrence of an Event of Default, Borrowershall immediately (a) establish an account with the Administrative Agent or with such otherfinancial institution as shall be approved by the Required Lenders and subject to the control ofthe Administrative Agent (“**Cash Collateral Account**”); (b) grant to the Administrative Agent afirst-priority security interest in such Cash Collateral Account; (c) deposit by wire transferfunds
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into such Cash Collateral Account in an amount equal to 100% of the undrawn face amount ofall Letters of Credit then outstanding; and (d) take such action, including the execution anddelivery (and, where requested, obtaining the execution thereof by third parties) of securitydocuments, account control agreements, financing statements, and/or such other documents as theAdministrative Agent may require, in order to grant to the Administrative Agent, on behalf of theLenders, a first priority security interest in and Lien on such Cash Collateral Account and thefunds on deposit therein. Notwithstanding any other provision contained in this Credit Agreement orany of the other Loan Documents, draws made against any Letter of Credit on or after the date offunding of the Cash Collateral Account shall, at the sole discretion of the Letter of Credit Bank,be funded out of the funds on deposit in the Cash Collateral Account rather than out of Advances.**ARTICLE 4. INTEREST, FEES AND COSTS**     4.1 Interest. Interest on Advances under the Loan shall be calculated as follows:     (a) Base Rate Loans. Unless Borrower requests and receives a LIBO Rate Loanpursuant to Subsection 4.1(b) hereof, each Borrowing shall be funded by the Lenders as BaseRate Advances.     (b) LIBO Rate Loans. From time to time, and so long as no Event of Default hasoccurred and is continuing, Borrower may request in any Borrowing Notice that all or anypart of any Borrowing be funded by the Lenders as LIBO Rate Advances. In addition, fromtime to time, and so long as no Event of Default has occurred and is continuing, Borrowermay convert any Base Rate Loan to a LIBO Rate Loan, or continue a LIBO Rate Loan, by makinga written request therefore (“**LIBO Request**”) to the Administrative Agent by facsimile oremail transmission, not later than 12:00 noon (Eastern Time) on a Banking Day that is atleast three Banking Days prior to the date of the requested conversion or continuation,specifying (i) the date of such conversion or continuation, which must be a Banking Date,(ii) the principal amount that is to bear interest at the LIBO Rate, which must be a minimumof $1,000,000 or a higher integral multiple of $1,000,000 and (iii) the requested LIBO RatePeriod therefor. The Administrative Agent shall incur no liability in acting upon a requestwhich it believed in good faith had been made by a properly authorized representative ofBorrower. Following the expiration of the LIBO Rate Period for any LIBO Rate Loan, unlessBorrower requests and receives another LIBOR Rate Loan as provided hereunder orprepays the principal of an outstanding LIBO Rate Loan at the end of such LIBO RatePeriod, each Lender shall automatically and without request of Borrower convert each LIBORate Loan to a Base Rate Loan on the last day of the relevant LIBO Rate Period     4.2 Additional Provisions for LIBO Rate.     (a) Limitation on LIBO Rate. Anything herein to the contrary notwithstanding,if, on or prior to the determination of the LIBO Rate or the Base Rate LIBO Alternative:
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     (i) the Administrative Agent or any Lender determines that deposits in U.S.dollars (in the applicable amounts) are not being offered in the London interbankeurodollar market;     (ii) the Administrative Agent or any Lender otherwise determines that by reasonof circumstances affecting the London interbank eurodollar market adequate andreasonable means do not exist for ascertaining a LIBO Rate or a Base Rate LIBOAlternative;     (iii) any Lender determines (which determination shall be conclusive) that therelevant rates of interest referred to in the definition of LIBO Rate or Base RateLIBO Alternative upon the basis of which the rate of interest is to be determined donot adequately and fairly cover the cost to that Lender of making or maintaining anyLoan, or that the making or funding of any Loan has become impracticable as a resultof an event occurring after the date of this Credit Agreement that in the opinion ofthat Lender materially affects any Loan; or     (iv) any change in (including the adoption of any new) applicable laws orregulations, or any change in the interpretation of applicable laws or regulationsby any governmental authority, central bank, comparable agency or any otherregulatory body charged with the interpretation, implementation or administrationthereof, or compliance by a Lender with any request or directive (whether or nothaving the force of law) of any such authority, central bank, comparable agency orother regulatory body, should make it or, in the good faith judgment of the affectedLender, shall raise a substantial question as to whether it is unlawful for suchLender to make, maintain or fund any Loan,then the Administrative Agent or the affected Lender shall give Borrower and (if applicable)the Administrative Agent prompt notice thereof, and so long as such condition remains ineffect, the affected Lenders shall be under no obligation to make or continue any Loan ascalculation by reference to the LIBO Rate or the Base Rate LIBO Alternative) or convert BaseRate Loans into LIBO Rate Loans, and Borrower shall either prepay such Loans or such Loansshall automatically be converted into a Base Rate Loan (as calculated without reference tothe Base Rate LIBO Alternative) in accordance with Section 4.1 hereof.     (b) LIBO Rate Unlawful. If any Change in Law shall make it unlawful for anyLender to (i) advance its Funding Share of any Loan or (ii) maintain its share of all or anyportion of any Loan, such Lender shall promptly, by telephone (in which case it must bepromptly followed by a writing) in writing by facsimile or email transmission, notify theAdministrative Agent thereof, and of the reasons therefor and the Administrative Agent shallpromptly notify Borrower thereof and shall provide a copy of such written notice toBorrower. In the former event, any obligation of any such Lender to make available itsFunding Share of any future Loan shall immediately be canceled (and, in lieu thereof shallbe made as a Base Rate Loan (ascalculated without reference to the Base Rate LIBOAlternative), and in the latter event, any such unlawful Loans or portions thereof thenoutstanding shall be converted, at the option of such Lender, to a Base Rate Loan (as
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calculated without reference to the Base Rate LIBO Alternative); provided, however, that ifany such Change in Law shall permit the LIBO Rate to remain in effect until the expirationof the LIBO Rate Period applicable to any such unlawful Loan, then such Loan shall continuein effect until the expiration of such LIBO Rate Period. Upon the occurrence of any of theforegoing events on account of any Change in Law, Borrower shall pay to the AdministrativeAgent immediately upon demand such amounts as may be necessary to compensate any such Lenderfor any fees, charges, or other costs incurred or payable by such Lender as a result thereofand which are attributable to any Loan made available to Borrower hereunder, and anyreasonable allocation made by any such Lender among its operations shall be conclusive andbinding upon Borrower absent manifest error.     4.3 Additional Costs of Maintaining Loan. Borrower shall pay to the AdministrativeAgent from time to time such amounts as the Administrative Agent may determine to be necessary tocompensate any Lender for any increase in costs to such Lender which the Administrative Agentdetermines, based on information presented to it by such Lender, are attributable to such Lender’smaking or maintaining an Advance hereunder or its obligation to make such Advance, or any reductionin any amount receivable by such Lender under this Credit Agreement or the Notes payable to it inrespect to such Advance or such obligation (such increases in costs and reductions in amountsreceivable being herein called “**Additional Costs**”), resulting from any Change in Law or by anycourt or governmental or monetary authority charged with the interpretation or administrationthereof (“**Regulatory Change**”), which: (a) changes the basis of taxation of any amounts payable tosuch Lender under this Credit Agreement or the Notes payable to such Lender in respect of suchAdvance (other than taxes imposed on the overall net income of such Lender); or (b) imposes ormodifies any reserve, special deposit, or similar requirements relating to any extensions of creditor other assets of, or any deposits with or other liabilities of, such Lender; or (c) imposes anyother condition affecting this Credit Agreement or the Notes payable to such Lender (or any of suchextensions of credit or liabilities). The Administrative Agent will notify Borrower of any eventoccurring after the date of this Credit Agreement which will entitle such Lender to compensationpursuant to this Section as promptly as practicable after it obtains knowledge thereof anddetermines to request such compensation. The Administrative Agent shall include with such notice acertificate from such Lender setting forth in reasonable detail the calculation of the amount ofsuch compensation. Determinations by the Administrative Agent for purposes of this Section of theeffect of any Regulatory Change on the costs of such Lender of making or maintaining an Advance oron amounts receivable by such Lender in respect ofAdvances, and of the additional amounts required to compensate such Lender in respect of anyAdditional Costs, shall be conclusive absent manifest error, provided that such determinations aremade on a reasonable basis.     4.4 Capital Requirements. In the event of any Change in Law, Regulatory Change orcompliance by any Lender or any corporation controlling any such Lender with any guideline orrequest from any Governmental Authority (whether or not having the force of law) has the effect ofrequiring an increase in the amount of capital required or expected to be maintained by such Lenderor any corporation controlling such Lender, and such Lender certifies that such increase is basedin any part upon such Lender’s obligations hereunder with respect to the Facility, and othersimilar obligations, Borrower shall pay to such Lender such additional amount as shall be
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certifiedby such Lender to the Administrative Agent and to Borrower to be the net present value (discountedat the Base Rate) of (x) the amount by which such increase in capital reduces the rate of return oncapital which such Lender could have achieved over the period remaining until the Maturity Date,but for such introduction or change, (y) multiplied by the product of such Lender’s Individual ProRata Share times the applicable Aggregate Commitment(s). The Administrative Agent will notifyBorrower of any event occurring after the date of this Credit Agreement that will entitle any suchLender to compensation pursuant to this Section as promptly as practicable after it obtainsknowledge thereof and of such Lender’s determination to request such compensation. TheAdministrative Agent shall include with such notice a certificate from such Lender setting forth inreasonable detail the calculation of the amount of such compensation. Determinations by any Lenderfor purposes of this Section of the effect of any increase in the amount of capital required to bemaintained by any such Lender and of the amount of compensation owed to any such Lender under thisSection shall be conclusive absent manifest error, provided that such determinations are made on areasonable basis.     4.5 Default Interest Rate. All past due payments on the Notes and all otherObligations not paid when due hereunder (whether as a result of nonpayment by Borrower when due, atmaturity, or upon acceleration) shall bear interest at the Default Interest Rate from and after thedue date for the payment, or from and after the date of maturity or acceleration, as the case maybe. Notwithstanding anything in this Credit Agreement to the contrary, at no time shall Borrowerbe obligated or required to pay interest on any Obligation at a rate that could subject theAdministrative Agent, any Lender or the Letter of Credit Bank to either civil or criminal liabilityas a result of being in excess of the maximum interest rate that Borrower is permitted to becharged by applicable law. If, under the terms of this Credit Agreement or any other Loan Document,Borrower is at any time required or obligated to pay interest on any Obligation at a rate in excessof such maximum rate, the applicable interest rate shall be deemed to be immediately reduced tosuch maximum rate and all previous payments in excess of the maximum rate shall be deemed to havebeen payments in reduction of principal and not on account of any interest thereon due hereunder.All sums paid or agreed to be paid to the Administrative Agent, a Lender or the Letter of CreditBank for the use, forbearance or retention of any Obligation, shall, to the extent permitted byapplicable law, be amortized, prorated, allocated and spread throughout the full stated term of theObligation to which such payment applies until payment in full so that the rate or amount ofinterest on account of any such Obligation does not exceed the maximum lawful rate of interest fromtime to time in effect and applicable to such Obligation for so long as the Obligation isoutstanding.     4.6 Interest Calculation. Interest on Base Rate Loans and LIBO Rate Loans shall becalculated on the actual number of days that the principal owing thereunder is outstanding with thedaily rate calculated on the basis of a year consisting of 360 days.     4.7 Fees. Borrower shall pay or cause to be paid the following fees:     (a) Commitment Fee. A fee for each day during the Availability Period(“**Commitment Fee**”) for each Facility (i) payable in arrears by the tenth calendar dayfollowing the close of each Quarter, and (ii) determined for each day during such Quarter by(x) multiplying the Commitment Fee Factor (expressed as a daily rate on the basis of a yearof 360 days) times (y) the difference between the Aggregate Revolving Commitment
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and the outstanding principal balance owing under the Loans as of the close of theAdministrative Agent’s business on such day. The Commitment Fee shall be payable by Borrowerto the Administrative Agent, and the Administrative Agent shall distribute the CommitmentFee to the Lenders based on their Individual Pro Rata Share.     (b) Fee Letter. Borrower shall pay to the Administrative Agent all feesrequired to be paid pursuant to the Fee Letter.**ARTICLE 5. PAYMENTS; FUNDING LOSSES**     5.1 Principal Payments. The aggregate unpaid principal amount of all OvernightAdvances shall be due and payable on the applicable Overnight Maturity Date and the aggregateunpaid principal amount of all other Advances and other Obligations shall be due and payable on theMaturity Date. Voluntary prepayments may be made only as provided in Section 5.5 hereof andMandatory Prepayments must be made as provided in Section 5.6 hereof.     5.2 Interest Payments. Interest shall be payable as follows: (a) interest on Base RateLoans shall be payable monthly in arrears on the first Banking Day of the next month; (b) intereston LIBO Rate Loans shall be payable on the last day of the LIBO Rate Period therefor, but no lessfrequently than each three month anniversary of the first day of such LIBO Rate Period; (c)interest on all Loans then accrued and unpaid shall be payable on the Maturity Date; and (d)interest on Overnight Advances shall be payable on the applicable Overnight Maturity Date.     5.3 Application of Principal Payments. Principal payments and prepayments shall beapplied first to Overnight Advances, then to Base Rate Loans, and then to LIBO Rate Loans unlessBorrower directs otherwise in writing. However, upon the occurrence and during the continuance of aDefault or Event of Default, all principal payments shall be applied, in such order as theAdministrative Agent in its sole discretion shall determine, to any fees, accrued and unpaidinterest or principal indebtedness under the Notes, or any other Obligations.     5.4 Manner of Payment. All payments, including prepayments, that Borrower is requiredor permitted to make under the terms of this Credit Agreement shall be made to the AdministrativeAgent (a) in immediately available federal funds, to be received no later than 1:00 P.M. EasternTime of the date on which such payment is due (or the following Banking Day if such date is not aBanking Day) by wire transfer through Federal Reserve Bank, Kansas City, in accordance with theWire Instructions (or to such other account as the Administrative Agent may designate by notice);and (b) without setoff or counterclaim and free and clear of and without deduction for any taxes,levies, impost, duties, charges, fees, deductions, withholding, compulsory loans, restrictions orconditions of any nature now or hereafter imposed or levied by any jurisdiction or any politicalsubdivision thereof or taxing or other authority therein unless Borrower is required by law to makesuch deduction or withholding.     5.5 Voluntary Prepayments. Borrower shall have the right to prepay all or any part ofthe outstanding principal balance under the Loans at any time in integral multiples of $1,000,000(or the entire outstanding balance, if less) and subject to a $1,000,000 minimum prepayment (or theentire outstanding balance, if less), on any Banking Day; provided that in the event of
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prepaymentof any LIBO Rate Loan, (a) Borrower must provide three (3) Banking Days notice to theAdministrative Agent prior to making such prepayment, and (b) Borrower must, at the time of makingsuch prepayment, pay all accrued interest on such partial prepayment through the date of prepaymentplus all Funding Losses applicable to such prepayment. Principal amounts paid or prepaid under theLoans may be reborrowed under the terms and conditions of this Credit Agreement.     5.6 Mandatory Prepayments. In the event the sum of (a) the outstanding principal underall Loans; plus (b) the undrawn face amount of all outstanding Letters of Credit; plus (c) theamount of all Committed Advances; plus (d) without duplication, the amount of all outstandingOvernight Advances, exceeds the Aggregate Revolving Commitment, Borrower shall, within one (1)Banking Day make a prepayment in the amount of such excess.     5.7 Funding Losses. In the event of any prepayment of any LIBOR Loans, whethervoluntary or mandatory, and including on account of acceleration, Borrower must, at the time ofmaking such prepayment, pay all Funding Losses applicable to such prepayment. “**Funding Losses**”shall be determined on an individual Lender basis as the amount which would result in such Lenderbeing made whole (on a present value basis) for the actual or imputed funding losses (including,without limitation, any loss, cost or expense incurred by reason of obtaining, liquidating oremploying deposits or other funds acquired by such Lender to fund or maintain such LIBO Rate Loan)incurred by such Lender as a result of such prepayment (regardless of whether the Lender actuallyfunded with such deposits). In the event of any such prepayment, each Lender which had funded theLoan being prepaid shall, promptly after being notified of such prepayment, send written notice(“**Funding Loss Notice**”) to the Administrative Agent by facsimile or email transmission settingforth the amount of attributable Funding Losses and the method of calculating the same. TheAdministrative Agent shall notify Borrower orally or in writing of the amount of such FundingLosses. A determination by a Lender as to the amounts payable pursuant to this Section shall beconclusive absent manifest error.     5.8 Distribution of Principal and Interest Payments. The Administrative Agent shalldistribute payments of principal and interest among the Lenders in accordance with their respectiveIndividual Pro Rata Shares, provided that principal and interest payments on Overnight Advancesshall be remitted only to the Overnight Lender.**ARTICLE 6. COBANK EQUITIES**     6.1 CoBank Equities.     (a) So long as CoBank is a Lender hereunder, Borrower will acquire equity in CoBank insuch amounts and at such times as CoBank may require in accordance withCoBank’s Bylaws and Capital Plan (as each may be amended from time to time), exceptthat the maximum amount of equity that Borrower may be required to purchase in CoBank inconnection with the Loans made by CoBank may not exceed the maximum amount permitted by theBylaws and the Capital Plan at the time this Agreement is entered into. Borroweracknowledges receipt of a copy of (i) CoBank’s most recent annual report, and if morerecent, CoBank’s latest quarterly report, (ii) CoBank’s Notice to Prospective Stockholdersand (iii) CoBank’s Bylaws and Capital Plan, which describe
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the nature of all of Borrower’sstock and other equities in CoBank acquired in connection with its patronage loan fromCoBank (the “**CoBank Equities**”) as well as capitalization requirements, and agrees to bebound by the terms thereof.     (b) Each party hereto acknowledges that CoBank’s Bylaws and Capital Plan (as each maybe amended from time to time) shall govern (i) the rights and obligations of the partieswith respect to the CoBank Equities and any patronage refunds or other distributions made onaccount thereof or on account of Borrower’s patronage with CoBank, (ii) Borrower’seligibility for patronage distributions from CoBank (in the form of CoBank Equities andcash) and (iii) patronage distributions, if any, in the event of a sale of a participationinterest. CoBank reserves the right to assign or sell participations in all or any part ofits Individual Commitments or outstanding Loans hereunder on a non-patronage basis.     (c) Each party hereto acknowledges that CoBank has a statutory first lienpursuant to the Farm Credit Act of 1971 (as amended from time to time) on all CoBankEquities that Borrower may now own or hereafter acquire, which statutory lien shall be forCoBank’s sole and exclusive benefit. The CoBank Equities shall not constitute security forthe Obligations due to any other Lender. To the extent that any of the Loan Documents createa Lien on the CoBank Equities or on patronage accrued by CoBank for the account of Borrower(including, in each case, proceeds thereof), such Lien shall be for CoBank’s sole andexclusive benefit and shall not be subject to pro rata sharing hereunder. Neither the CoBankEquities nor any accrued patronage shall be offset against the Obligations except that, uponthe occurrence of an Event of Default, CoBank may elect, solely at its discretion, to applythe cash portion of any patronage distribution or retirement of equity to amounts due underthis Agreement. Borrower acknowledges that any corresponding tax liability associated withsuch application is the sole responsibility of Borrower. CoBank shall have no obligation toretire the CoBank Equities upon any Event of Default, Default or any other default byBorrower, or at any other time, either for application to the Obligations or otherwise.     6.2 CoBank Capital Plan. Borrower shall retain eligibility to make such investmentsin CoBank as may from time to time be required in accordance with the Farm Credit Act of 1971, asamended, the regulations of the Farm Credit Administration and the Bylaws and Capital Plan ofCoBank, all as may be amended from time to time.**ARTICLE 7. SECURITY**     7.1 Security Interest. The Advances made under this Credit Agreement are being madeon an unsecured basis, except (a) with respect to the Cash Collateral Account as provided inSection 3.6, and (b) the statutory first lien in favor of CoBank, but not in favor of any otherLender, in the CoBank Equities.**ARTICLE 8. REPRESENTATIONS AND WARRANTIES**     Borrower represents and warrants to the Administrative Agent, each Lender and the Letter ofCredit Bank as follows:
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     8.1 Organization, Good Standing, Etc. Borrower: (a) is duly organized, validlyexisting, and in good standing as a cooperative marketing association under the laws of its stateof incorporation, which is Kansas; (b) is duly qualified to do business and is in good standing ineach jurisdiction in which the transaction of its business makes such qualification necessary,except to the extent that the failure to so qualify has not resulted in, and could not reasonablybe expected to cause, a Material Adverse Effect; and (c) has all authority and all requisitecorporate and legal power to own and operate its assets and to carry on its business, and to enterinto and perform the Loan Documents to which it is a party.     8.2 Corporate Authority, Due Authorization; Consents. The execution, delivery andperformance by Borrower of the Loan Documents to which it is a party, and the Letters of Credit andAdvances from time to time obtained hereunder, have been duly authorized by all necessary corporateaction and do not and will not (a) require any consent or approval which has not been obtainedprior to the date hereof; (b) require any authorization, consent or approval by, or registration,declaration or filing (other than filing of financing statements and recording of mortgages ascontemplated hereunder) with, or notice to, any governmental department, commission, board, bureau,agency or instrumentality, domestic or foreign, or, any third party, except such authorization,consent, approval, registration, declaration, filing or notice as has been obtained, accomplishedor given prior to the date hereof; or (c) result in, or require, the creation or imposition of anyLien of any nature upon or with respect to any of the properties now owned or hereafter acquired byBorrower (other than as required hereunder in favor of the Administrative Agent or as otherwisepermitted by this Credit Agreement).     8.3 Litigation. Except as described on Exhibit 8.3 hereto, there are no pending legalor governmental actions, suits, claims, proceedings or investigations to which Borrower is a partyor to which any property of Borrower is subject which might reasonably be expected to result in anyMaterial Adverse Effect and, to Borrower’s knowledge, no such actions, suits, claims, proceedingsor investigations are threatened or contemplated by any Governmental Authority or any other Person.     8.4 No Violations. The execution, delivery and performance of its obligations underthe Loan Documents will not: (a) violate any provision of Borrower’s Organization Documents, or anylaw, rule, regulation (including, without limitation, Regulations T, U, and X of the Board ofGovernors of the Federal Reserve System), or anyjudgment, order or ruling of any court or governmental agency; (b) violate, require consentunder (except such consent as has been obtained), conflict with, result in a breach of or, with thegiving of notice or the expiration of time or both, constitute a default under, any existing realestate mortgage, indenture, loan or credit agreement, lease, security agreement, contract, note,instrument or any other agreements or documents binding on Borrower or affecting its property; or(c) violate, conflict with, result in a breach of, constitute a default under, or result in theloss of, or restriction of rights under, any Required License or any order, law, rule, orregulation under or pursuant to which any Required License was issued or is maintained (“**LicensingLaws**”).     8.5 Binding Agreement. Each of the Loan Documents to which Borrower is a party is, orwhen executed and delivered, will be, the legal, valid and binding obligation of Borrower,enforceable in accordance with its terms, subject only to limitations on enforceability imposed by
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applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’rights generally and by general principles of equity.     8.6 Compliance with Laws. Borrower is in compliance with all federal, state, and locallaws, rules, regulations, ordinances, codes and orders, including without limitation allEnvironmental Laws and all Licensing Laws, with respect to which noncompliance would result in aMaterial Adverse Effect.     8.7 Principal Place of Business. Borrower’s place of business, or chief executiveoffice if it has more than one place of business, and the place where the records required bySection 10.1 hereof are kept, is located at 1391 Iron Horse Road, McPherson, Kansas 67460.     8.8 Payment of Taxes. Borrower has filed all required federal, state and local taxreturns and has paid all taxes as shown on such returns as they have become due, and has paid whendue all other taxes, assessments or impositions levied or assessed against Borrower or its businessor properties, except where the failure to make such filing or payment could not reasonably beexpected to result in a Material Adverse Effect. Proper and accurate amounts have been withheld byBorrower from its respective employees for all periods in compliance with the tax, social securityand any employment withholding provisions of applicable federal and state law, and proper andaccurate federal and state returns have been filed by Borrower for all periods for which returnswere due with respect to employee income tax withholding, social security and unemployment taxes,and the amounts shown thereon to be due and payable have been paid in full or provision thereforincluded on the books of Borrower in accordance with and to the extent required by GAAP. Borroweris unaware of any pending investigation by any taxing authority.     8.9 Licenses and Approvals. Borrower has ownership of, or license to use, or has beenissued, all franchises, certificates, approvals, permits, authorities, agreements, and licenseswhich are used or necessary to permit it to own its properties and to conduct the business aspresently being conducted as to which the termination or revocation thereof could reasonably beexpected to have a Material Adverse Effect (“**Required Licenses**”). Each Required License isidentified on Exhibit 8.9 hereto and is in fullforce and effect, and there is no outstanding notice of cancellation or termination or, toBorrower’s knowledge, any threatened cancellation or termination in connection therewith, nor hasan event occurred with respect to any Required License which, with the giving of notice or passageof time or both, could result in the revocation or termination thereof or otherwise impairBorrower’s rights with respect thereto, which impairment could reasonably be expected to have aMaterial Adverse Effect.     8.10 Employee Benefit Plans. Exhibit 8.10 sets forth as of the Closing Date a trueand complete list of each Borrower Benefit Plan, Borrower Pension Plan, and Multiemployer Plan thatis maintained by Borrower or any of its Subsidiaries or ERISA Affiliates or in which Borrower orany of its Subsidiaries or ERISA Affiliates participates or to which Borrower or any of itsSubsidiaries or ERISA Affiliates is obligated to contribute, in each case as of the Closing Date.Except as disclosed on Exhibit 8.10, neither Borrower nor any of its ERISA Affiliates (i) maintains(or contributes to) or has maintained (or contributed to) any Borrower Pension Plan that is subjectto Title IV of ERISA or Section 412 of the Code, (ii) contributes or has contributed to anyMultiemployer Plan or (iii) provides or has provided post-retirement medical or insurance benefitsor has any post-retirement medical or insurance liabilities with respect to
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employees or formeremployees (other than benefits required under Section 601 of ERISA, Section 4980B of the Code orcomparable state law). Borrower has not nor, except as could not reasonably be expected to have aMaterial Adverse Effect, has any of its ERISA Affiliates, received any notice or has any knowledgeto the effect that it is not in substantial compliance with any of the requirements of ERISA, theCode or applicable state law. Except as could not reasonably be expected to have a MaterialAdverse Effect, no Reportable Event has occurred in connection with any Borrower Pension Plansubject to Title IV of ERISA. Each Borrower Pension Plan that is intended to be a tax-qualifiedplan under Section 401(a) of the Code is so qualified, and no fact or circumstance exists that mayhave an adverse effect on the Borrower Pension Plan’s tax-qualified status. Borrower has not nor,except as could not reasonably be expected to have a Material Adverse Effect, has any of its ERISAAffiliates, with respect to any Borrower Pension Plan (i) failed to satisfy the minimum fundingstandard specified in Section 302(a)(2) of ERISA or Section 412(a)(2) of the Code with respect toany plan year, or (ii) incurred any material liability under Section 4201 or 4243 of ERISA for anywithdrawal, partial withdrawal, reorganization or other event under any Multiemployer Plan.Borrower does not have nor, except as could not reasonably be expected to have a Material AdverseEffect, do any of its ERISA Affiliates have any knowledge of any facts or circumstances that couldbe reasonably likely to result in any material liability to the PBGC, the Internal Revenue Service,the Department of Labor or any participant in connection with any Borrower Benefit Plan (other thanroutine claims for benefits under the Borrower Benefit Plan). With respect to each BorrowerPension Plan subject to Section 430 of the Code, as of the most recent determination made forpurposes of Section 430 of the Code, the “funding shortfall” (as defined in Section 430(c)(4) ofthe Code, without reduction of assets under Section 430(f)(4)(B) of the Code) of the BorrowerBenefit Plan, if paid to the Borrower Benefit Plan in a lump-sum payment, could not reasonably beexpected to have a Material Adverse Effect, and the funding target attainment percentage (asdefined in Section 430(d)(2) of the Code, without reduction of assets under Section 430(f)(4)(B) ofthe Code) of the Borrower Benefit Plan equals at least 80%. There is no Lien on assets of Borroweror any ERISA Affiliate that has arisen under Section 430(k) of the Code. Except as could notreasonably be expected to have a Material Adverse Effect, other than claims for benefits in theordinary course of business, there are no actions,suits, disputes, arbitrations or other material claims pending or, to Borrower’s knowledge,threatened with respect to any Borrower Benefit Plan.     8.11 Equity Investments. Borrower does not now own any stock or other voting or equityinterest, directly or indirectly, in any Person valued at the greater of book value or market valueat $5,000,000 or more, other than: (a) the CoBank Equities, and (b) as set forth on Exhibit 8.11hereto.     8.12 Title to Real and Personal Property. Borrower has good and marketable fee orleasehold title, as the case may be, to all of its properties and assets, real and personal,including the properties and assets and leasehold interests reflected in the financial statementsof Borrower referred to in Section 8.13 hereof, except (a) any properties or assets disposed of inthe ordinary course of business, and (b) for defects in title and encumbrances which could notreasonably be expected to result in a Material Adverse Effect. None of the properties of Borrowerare subject to any Lien, except as permitted by Section 11.3 hereof (“**Permitted Encumbrances**”). Allsuch property is in good operating condition and repair, reasonable wear and tear excepted, andsuitable in all material respects for the purposes for which it is being utilized except where its
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failure to be in good operating condition could not reasonably be expected to result in a MaterialAdverse Effect. All of the leases of Borrower which constitute Material Agreements are in fullforce and effect and afford Borrower peaceful and undisturbed possession of the subject matterthereof.     8.13 Financial Statements. The consolidated balance sheet of Borrower and itsSubsidiaries as of August 31, 2010, and the related consolidated statements of operations, cashflows and consolidated statements of capital shares and equities for the Fiscal Year then ended,and the accompanying footnotes, together with the unqualified opinion thereon, dated August 31,2010 of Pricewaterhouse Coopers LLP, independent certified public accountants, copies of which havebeen furnished to the Administrative Agent and the Lenders, fairly present in all material respectsthe financial condition of Borrower and its Subsidiaries as at such dates and the results of theoperations of Borrower and its Subsidiaries for the periods covered by such statements, all inaccordance with GAAP consistently applied. Since August 31, 2010, there has been no materialadverse change in the financial condition, results of operations, business or prospects of Borroweror any of its Subsidiaries. As of the Closing Date, there are no liabilities of Borrower or any ofits Subsidiaries, fixed or contingent, which are material but are not reflected in the financialstatements of Borrower and its Subsidiaries referred to above or referred to in the notes thereto,other than liabilities arising in the ordinary course of business since August 31, 2010. ThisAgreement, together with each other Loan Document and the exhibits, schedules, attachments, writtenor oral statements, documents, certificates and other items prepared or supplied to theAdministrative Agent, the Letter of Credit Bank or any Lender by or on behalf of Borrower or any ofits Subsidiaries with respect to the transactions contemplated hereby or thereby, does not containany untrue statement of a material fact or omit a material fact necessary to make each statementcontained herein or therein not misleading (and, as to projections, valuations or pro formafinancial statements, all of such information presents a good faith opinion based on reasonableassumptions as of the date made as to such projections, valuations and pro forma condition andresults). There is no fact that Borrower has not disclosed to the Administrative Agent, the Letterof Credit Bank and the Lenders in writing and of which any of Borrower’sofficers, directors or executive employees is aware and that has had or could reasonably beexpected to have a Material Adverse Effect. Notwithstanding the foregoing, the AdministrativeAgent, the Letter of Credit Bank and the Lenders acknowledge that the financial projections and proforma information as to future periods contained therein are subject to general business conditionsand economic factors that may be beyond Borrower’s or its Subsidiaries’ control or otherunanticipated future events that could have an unforeseen impact on the performance or condition ofBorrower and its Subsidiaries, it being understood that all such financial projections will besubject to uncertainties and contingencies and that no representation is given that any particularfinancial projection will ultimately be realized.     8.14 Environmental Compliance. Borrower and its Subsidiaries have obtained allpermits, licenses and other authorizations which are required under all applicable EnvironmentalLaws, except to the extent failure to have any such permit, license or authorization could notreasonably be expected to result in a Material Adverse Effect (with respect to Borrower or any suchSubsidiary). Borrower and its Subsidiaries, and all activities of Borrower and each of itsSubsidiaries, are in compliance with all Environmental Laws and the terms and conditions of therequired permits, licenses and authorizations, and are also in compliance with all otherlimitations, restrictions, obligations, schedules and timetables contained in those Environmental
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Laws or contained in any plan, order, decree, judgment, injunction, notice or demand letter issued,entered, promulgated or approved thereunder, except to the extent, in each case, failure to complyhas not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect(with respect to Borrower or any such Subsidiary).     8.15 Fiscal Year. Each fiscal year of Borrower begins on September 1 of each calendaryear and ends on August 31 of each calendar year.     8.16 Material Agreements. Neither Borrower nor, to Borrower’s knowledge, any otherparty to any Material Agreement, is in default thereunder, and no facts exist which with the givingof notice or the passage of time, or both, would constitute such a default.     8.17 Regulations U and X. No portion of any Advance will be used for the purpose ofpurchasing, carrying, or making loans to finance the purchase of any “margin security” or “marginstock” as such terms are used in Regulations U or X of the Board of Governors of the FederalReserve System, 12 C.F.R. Parts 221 and 224.     8.18 Intellectual Property. Set forth on Exhibit 8.18 hereto is a complete andaccurate list of all patents, trademarks, trade names, service marks and copyrights, and allapplications for any of the foregoing that are owned or licensed by Borrower (collectively,“**Intellectual Property**”) and are registered with any federal or state Governmental Authority andall licenses thereof, showing as of the date hereof the jurisdiction in which registered, theregistration number, the date of registration and the expiration date or, if registration is notyet complete, the date of the application therefor and the application number and title, if any,and indicating whether Borrower owns or licenses each such item of Intellectual Property. Borrowerowns or licenses all Intellectual Property that it utilizes in its business as presently beingconducted and as anticipated to be conducted, except where the failure to do socould not reasonably be expected to result in a Material Adverse Effect. The IntellectualProperty is in full force and effect, and Borrower has taken or caused to be taken all actionnecessary to maintain the Intellectual Property in full force and effect and has not taken orfailed to take or cause to be taken any action which, with the giving of notice, or the expirationof time, or both, could result in any such Intellectual Property being revoked, invalidated,modified, or limited.     8.19 No Default on Outstanding Judgments or Orders. Borrower has satisfied alljudgments and Borrower is not in default with respect to any judgment, writ, injunction, decree,rule or regulation of any court, arbitrator or federal, state, municipal or other GovernmentalAuthority, commission, board, bureau, agency or instrumentality, domestic or foreign, except to theextent such failure to satisfy any or all such judgments or to be in such a default has notresulted in, and could not reasonably be expected to result in, a Material Adverse Effect.     8.20 No Default in Other Agreements. Borrower is not a party to any indenture, loan orcredit agreement or any lease or other agreement or instrument or subject to any certificate ofincorporation or corporate restriction which has resulted in, or could reasonably be expected toresult in, a Material Adverse Effect. Borrower is not in default in any respect in theperformance, observance or fulfillment of any of the obligations, covenants or conditions containedin any agreement or instrument where such failure to perform, observe or fulfill has resulted in,or could reasonably be expected to result in, a Material Adverse Effect.
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     8.21 Labor Disputes and Acts of God. Neither the business nor the properties ofBorrower are currently affected by any fire, explosion, accident, strike, lockout or other labordispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or othercasualty (whether or not covered by insurance) which has resulted in, or could reasonably beexpected to result in, a Material Adverse Effect.     8.22 Governmental Regulation. Borrower is not subject to regulation under the PublicUtility Holding Company Act of 1935, the Investment Company Act of 1940, the Interstate CommerceAct, the Federal Power Act or any statute or regulation, in each case, limiting its ability toincur indebtedness for money borrowed as contemplated hereby, and neither Borrower nor any companycontrolling Borrower is required to be registered as an “investment company” within the meaning ofthe Investment Company Act of 1940.     8.23 Solvency. Both before and after giving effect to all of the loans, guaranties andother financial accommodations contemplated herein, Borrower (a) will be able to pay its debts asthey become due, (b) will have funds and capital sufficient to carry on its business and allbusinesses and transactions in which it is about to engage, (c) will own property in the aggregatehaving a value both at fair valuation and at fair saleable value in the ordinary course ofBorrower’s business greater than the amount required to pay its Indebtedness, including for thispurpose unliquidated, contingent, and disputed claims; (d) was not and will not be insolvent, asthat term is used and defined in Section 101(32) of the United States Bankruptcy Code and Section 2of the Uniform Fraudulent Transfer Act; (e) does not, byexecuting, delivering or performing its obligations under the Loan Documents to which it is aparty or by taking any action with respect thereto, intend to hinder, delay or defraud either itspresent or future creditors; and (f) does not contemplate filing a petition in bankruptcy or for anarrangement or reorganization or similar proceeding under any law any jurisdiction or country, and,to the best knowledge of Borrower, is not the subject of any bankruptcy or insolvency proceedingsor similar proceedings under any law of any jurisdiction or country threatened or pending againstBorrower.**ARTICLE 9. CONDITIONS TO ADVANCES**     9.1 Conditions to Closing. The obligation of the Lenders and the Letter of Credit Bankto make any Advances or issue any Letters of Credit hereunder is subject to satisfaction, in thesole discretion of the Administrative Agent, the Letter of Credit Bank and the Lenders, of each ofthe following conditions precedent:     (a) Loan Documents. The Administrative Agent shall have received this CreditAgreement and the Notes, duly executed by Borrower.     (b) Approvals. The Administrative Agent shall have received evidencesatisfactory to it that all consents and approvals of governmental authorities and thirdparties which are with respect to Borrower, necessary for, or required as a condition of thevalidity and enforceability of the Loan Documents to which it is a party.     (c) Certificate of Good Standing. The Administrative Agent shall have receiveda good standing certificate (or equivalent), dated no more than thirty (30) days
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prior tothe Closing Date, for Borrower from the Secretary of State (or the appropriate official) ofits state of formation.     (d) Certificate of Assistant Secretary. The Administrative Agent shall havereceived certificates of the assistant secretary or other appropriate officer of Borrower(i) certifying that the execution, delivery and performance of the Loan Documents and otherdocuments contemplated hereunder to which Borrower is a party have been duly approved by allnecessary action of the governing board of Borrower, and attaching true and correct copiesof the applicable resolutions granting such approval, (ii) certifying that attached to suchcertificate are true and correct copies of the Organization Documents of Borrower, togetherwith such copies, and (iii) certifying the names of the officers of Borrower that areauthorized to sign the Loan Documents and other documents contemplated hereunder (each an“**Authorized Officer**”), together with the true signatures of such Authorized Officers. TheAdministrative Agent, the Letter of Credit Bank and the Lenders may conclusively rely onsuch certificate until the Administrative Agent receives a further certificate of theassistant secretary or other appropriate officer of Borrower canceling or amending the priorcertificate and submitting the signatures of the officers named in such further certificate.     (e) Evidence of Insurance. Borrower shall have provided the AdministrativeAgent with insurance certificates and such other evidence, in form and substancesatisfactory to the Administrative Agent, of all property insurance required to bemaintained by it under the Loan Documents, together with endorsements showing theAdministrative Agent as lender loss payee thereunder; provided, however, that insurancecertificates and such other evidence, in form and substance satisfactory to theAdministrative Agent, of all liability insurance required to be maintained by it under theLoan Documents, together with endorsements showing the Administrative Agent as additionalinsured thereunder, shall be provided to the Administrative Agent not later than two BankingDays after the date hereof.     (f) Appointment of Agent for Service. The Administrative Agent shall havereceived evidence satisfactory to the Administrative Agent that Borrower has appointedNational Registered Agents, Inc. (or other Person reasonably acceptable to theAdministrative Agent) to serve as its agent for service of process at such agent’s Denver,Colorado office, and that National Registered Agents, Inc. (or other acceptable Person) hasexecuted its written acceptance of such appointment by Borrower.     (g) No Material Change. No change shall have occurred in the condition,financial or otherwise, or operations or prospects of Borrower since August 31, 2010, whichcould reasonably be expected to result in a Material Adverse Effect.     (h) Fees and Expenses. Borrower shall have paid the Administrative Agent, bywire transfer of immediately available federal funds all fees and expenses then due andpayable pursuant to the Fee Letter and Sections 4.7 and 15.1 hereof.     (i) Opinion of Counsel. Borrower shall have provided a favorable opinion of itscounsel addressed to the Administrative Agent, the Letter of Credit Bank and each of
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thepresent and future Lenders, covering such matters as the Administrative Agent may reasonablyrequire.     (j) Compliance Certificate. Borrower shall have provided to the AdministrativeAgent a Compliance Certificate effective as of November 30, 2010.     (k) Further Assurances. Borrower shall have provided and/or executed anddelivered to the Administrative Agent such further assignments, documents or financingstatements, in form and substance satisfactory to the Administrative Agent, that Borrower isto execute and/or deliver pursuant to the terms of the Loan Documents or as theAdministrative Agent may reasonably request.     9.2 Conditions to Advance. The Lenders’ obligation to fund each Advance is subject toreceipt by the Administrative Agent of a properly completed Borrowing Notice; and the Lenders’obligation to fund each Advance and the obligation of the Letter of Credit Bank to issue a Letterof Credit is subject to the satisfaction, in the sole discretion of the Administrative Agent orLetter of Credit Bank, as applicable, of each of the following conditions precedent, as well asthose set forth in Section 9.1 hereof, and each Borrowing Request and each LC Request by Borrowershall constitute a representation by Borrower, upon which the Administrative Agent, Lenders, andLetter of Credit Bank, as applicable, may rely, that the conditions set forth in this Section havebeen satisfied and that theamount of the Advance does not exceed the limits set forth in this Credit Agreement (includingwithout limitation Sections 2.1, 2.2 and 2.5 hereof) or that the amount of the requested Letter ofCredit does not exceed the limits set forth in this Credit Agreement (including without limitationSection 3.1 and 3.2 hereof), as applicable:     (a) Member Loans. As of the Advance Date, there shall be no outstanding MemberLoans.     (b) Default. As of the Advance Date, no Default or Event of Default shall haveoccurred and be continuing or would result from the disbursing of the amount of therequested Advance or requested Letter of Credit.     (c) Representations and Warranties. The representations and warranties ofBorrower herein shall be true and correct in all material respects on and as of the date onwhich the Advance is to be made or a Letter of Credit is issued as though made on and as ofsuch date. Borrower shall have paid the Administrative Agent, by wire transfer ofimmediately available U.S. funds all fees and expenses then due and payable pursuant to theFee Letter and Sections 4.7 and 15.1 hereof.
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**ARTICLE 10. AFFIRMATIVE COVENANTS**     From and after the date of this Credit Agreement and until the Obligations are indefeasiblypaid in full, all Letters of Credit have expired or been fully drawn, the Letter of Credit Bank hasno obligation to issue further Letters of Credit, and the Lenders have no obligation to make anyAdvance, Borrower agrees that it will observe and comply with the following covenants for thebenefit of the Administrative Agent, the Letter of Credit Bank and the Lenders:     10.1 Books and Records. Borrower shall at all times keep proper books of record andaccount, in which correct and complete entries shall be made of all its dealings, in accordancewith GAAP.     10.2 Reports and Notices. Borrower shall provide to the Administrative Agent thefollowing reports, information and notices:     (a) Annual Financial Statements. As soon as available, but in no event laterthan ninety (90) days after the end of each Fiscal Year of Borrower occurring during theterm hereof, one copy of the audit report for such year and the following accompanyingfinancial statements prepared on a consolidated and consolidating basis (including allfootnotes thereto), including a consolidated balance sheet, a consolidated statement ofearnings, a consolidated statement of capital, and a consolidated statement of cash flow forBorrower and its Subsidiaries, showing in comparative form the figures for the previousFiscal Year, all in reasonable detail, prepared in conformance with GAAP consistentlyapplied and certified without qualification by PricewaterhouseCoopers LLP, or otherindependent public accountants of nationally recognized standing selected by Borrower andsatisfactory to the Administrative Agent, and to be accompanied by a copy of the managementletter of such accountants addressed to the board of directors ofBorrower related to such annual audit. Such annual financial statements requiredpursuant to this Subsection shall be accompanied by a Compliance Certificate signed byBorrower’s Vice President of Finance, corporate treasurer, or other officer of Borroweracceptable to the Administrative Agent.     (b) Quarterly Financial Statements. As soon as available but in no event morethan forty-five (45) days after the end of each Fiscal Quarter (except the last FiscalQuarter of Borrower’s Fiscal Year) the following financial statements prepared on aconsolidated and consolidating basis or other information concerning the operations ofBorrower and its Subsidiaries for such Fiscal Quarter, the Fiscal Year to date, and for thecorresponding periods of the preceding Fiscal Year, all prepared in accordance with GAAPconsistently applied: (i) a balance sheet, (ii) a summary of earnings, (iii) a statement ofcash flows, and (iv) such other statements as the Administrative Agent may reasonablyrequest. Such quarterly financial statements required pursuant to this Subsection shall beaccompanied by a Compliance Certificate signed by Borrower’s Vice President of Finance,corporate treasurer, or other officer of Borrower acceptable to the Administrative Agent(subject to normal year-end adjustments).
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     (c) Notice of Default. As soon as the existence of any Default or Event ofDefault becomes known to any officer of Borrower, prompt written notice of such Default orEvent of Default, the nature and status thereof, and the action being taken or proposed tobe taken with respect thereto.     (d) ERISA Reports. As soon as possible and in any event within ten (10) daysafter Borrower or any Subsidiary knows or has reason to know that (i) any Reportable Eventor Prohibited Transaction has occurred with respect to any Borrower Benefit Plan, (ii) anyevent or circumstance has occurred that has resulted or could reasonably be expected toresult in liability to Borrower or any of its ERISA Affiliates under Title IV of ERISA to aBorrower Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount that couldreasonably be expected to have a Material Adverse Effect, (iii) the PBGC or Borrower or anySubsidiary has instituted or will institute proceedings under Title IV of ERISA to terminateany Borrower Benefit Plan, or (iv) Borrower, any Subsidiary or any ERISA Affiliate hascompletely or partially withdrawn from a Multiemployer Plan, or that a Borrower Benefit Planwhich is a Multiemployer Plan is in reorganization (within the meaning of Section 4241 ofERISA), is insolvent (within the meaning of Section 4245 of ERISA) or is terminating, acertificate of the Vice President of Finance or corporate treasurer of Borrower or suchSubsidiary or ERISA Affiliate setting forth details as to such Reportable Event orProhibited Transaction or Borrower Benefit Plan termination or withdrawal or reorganizationor insolvency and the action Borrower or such Subsidiary or ERISA Affiliate proposes to takewith respect thereto, together with a copy of the notice of such Reportable Event to thePBGC; provided, however, that notwithstanding the foregoing, no reporting is required underthis subsection unless the matter(s), individually or in the aggregate, result, or could bereasonably expected to result, in aggregate obligations or liabilities of Borrower and/orits Subsidiaries or ERISA Affiliates in excess of five million dollars ($5,000,000).     (e) Pension Plans. As soon as possible and in any event within ten (10) daysafter Borrower fails to make any quarterly contribution required with respect to anyBorrower Pension Plan under Section 430(j)(3) of the Code, or fails to make a contributionrequired (or seeks a waiver of any contribution required) with respect to any BorrowerPension Plan under Section 412 of the Code, a statement of Borrower’s Vice President ofFinance or corporate treasurer setting forth details as to such failure and the action thatBorrower proposes to take with respect thereto, together with a copy of any notice of suchfailure required to be provided to the PBGC, or contribution waiver request filed with theInternal Revenue Service.     (f) Notice of Litigation. Promptly after the commencement thereof, notice ofall actions, suits, arbitration and any other proceedings before any Governmental Authority,affecting Borrower which, if determined adversely to Borrower, could reasonably be expectedto require Borrower to have to pay or deliver assets having a value of five million dollars($5,000,000) or more (whether or not the claim is covered by insurance) or, independent ofthe amount to be paid or the value of the assets to be delivered, could reasonably beexpected to result in a Material Adverse Effect.
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     (g) Notice of Material Adverse Effect. Promptly after Borrower obtainsknowledge thereof, notice of any matter which, alone or when considered together with othermatters, has resulted, or could reasonably be expected to result, in a Material AdverseEffect.     (h) Notice of Environmental Proceedings. Without limiting the provisions ofSection 10.2(f) hereof, promptly after Borrower’s receipt thereof, notice of the receipt ofall pleadings, orders, complaints, indictments, or other communication alleging a conditionthat may require Borrower or any Subsidiary to undertake or to contribute to a cleanup orother response under Environmental Regulations, or which seeks penalties, damages,injunctive relief, or criminal sanctions related to alleged violations of such laws, orwhich claims personal injury or property damage to any person as a result of environmentalfactors or conditions or which, if adversely determined, could reasonably be expected tohave a Material Adverse Effect.     (i) Regulatory and Other Notices. Promptly after Borrower’s receipt thereof,copies of any notices or other communications received from any Governmental Authority withrespect to any matter or proceeding the effect of which could reasonably be expected to havea Material Adverse Effect.     (j) Adverse Action Regarding Required Licenses and Intellectual Property. Assoon as Borrower learns that any petition, action, investigation, notice of violation orapparent liability, notice of forfeiture, order to show cause, complaint or proceeding ispending, or, to the best of Borrower’s knowledge, threatened, to seek to revoke, cancel,suspend, modify, or limit any of the Required Licenses or any of the Intellectual Property,prompt written notice thereof. Borrower shall contest any such action in a Good FaithContest.     (k) Annual Business Plan. No later than September 15 of each year, a copy ofBorrower’s annual business plan (“**Business Plan**”) showing financial statement forecasts forthe Fiscal Year commencing on September 1 of such year, and including a summary of capitalexpenditures, details of costs, yields and expenses, and other assumptions used in preparingthe forecasts.     (l) Evidence of Insurance. No later than 30 days after the end of each FiscalYear of Borrower, updated certificates of insurance showing the Administrative Agent asadditional insured and lender loss payee thereunder, and otherwise satisfying allrequirements specified in the Loan Documents.     (m) Additional Information. With reasonable promptness, such other informationrespecting the condition or operations, financial or otherwise, of Borrower or anySubsidiary as the Administrative Agent, the Letter of Credit Bank or any Lender may fromtime to time reasonably request.     10.3 Eligibility. Borrower shall preserve and maintain its status as an entityeligible to borrow from CoBank.
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     10.4 Maintenance of Existence and Qualification. Borrower shall maintain its corporateexistence in good standing under the laws of its state of organization. Borrower will qualify andremain qualified as a foreign corporation in each jurisdiction in which such qualification isnecessary in view of its business, operations and properties except where the failure to so qualifyhas not and could not reasonably be expected to result in a Material Adverse Effect.     10.5 Compliance with Legal Requirements and Agreements. Borrower shall: (a) complywith all laws, rules, regulations and orders applicable to Borrower or its business unless suchfailure to comply is the subject of a Good Faith Contest; and (b) comply with all agreements,indentures, mortgages, and other instruments to which it is a party or by which it or any of itsproperty is bound; provided, however, that the failure of Borrower to comply with this sentence inany instance not directly involving the Administrative Agent or a Lender shall not constitute anEvent of Default unless such failure would have a Material Adverse Effect. In addition, Borrowershall (i) ensure that no Person who owns a controlling interest in or otherwise controls Borroweris or shall be listed on the Specially Designated Nationals and Blocked Person List or othersimilar lists maintained by the Office of Foreign Assets Control (“**OFAC**”), the Department of theTreasury or included in any Executive Orders, (ii) not use or permit the use of the proceeds of anyAdvance to violate any of the foreign asset control regulations of OFAC or any enabling statute orExecutive Order relating thereto, and (iii) comply with all applicable Bank Secrecy Act laws andregulations, as amended.     10.6 Compliance with Environmental Laws. Without limiting the provisions of Section10.5 of this Credit Agreement, Borrower shall, and shall cause each Subsidiary to, comply in allmaterial respects with, and take all reasonable steps necessary to cause all Persons occupying orpresent on any properties owned or leased by Borrower (or any Subsidiary, as applicable) to complywith, all EnvironmentalRegulations, the failure to comply with which would have a Material Adverse Effect (withrespect to Borrower or any such Subsidiary) or unless such failure to comply is the subject of aGood Faith Contest.     10.7 Taxes. Borrower shall cause to be paid when due (a) all taxes, assessments, andother governmental charges upon it, its income, its sales, its properties, (b) federal and statetaxes withheld from its employees’ earnings, and (c) all lawful claims for labor, materials andsupplies that, if unpaid, might by law become a Lien or charge upon any properties of Borrower, ineach case unless (i) the failure to pay such taxes, assessments, or other charges or claims couldnot reasonably be expected to result in a Material Adverse Effect, or (ii) such taxes, assessments,or other charges or claims are the subject of a Good Faith Contest and Borrower has establishedadequate reserves therefor in accordance with GAAP.     10.8 Insurance. Borrower shall keep all of its insurable property insured at all timesby an insurance carrier or carriers approved by the Administrative Agent, against all risks coveredby a special form policy as well as liability, worker’s compensation, business interruption, boilerand machinery and such other insurance as the Administrative Agent may reasonably require, whichinsurance shall be primary and in amounts and with deductibles or maximum payouts customarilycarried by entities in similar lines of business. Borrower shall also maintain fidelity coverage(including employee dishonesty) on such officers and employees and in such amounts as customarilycarried by corporations engaged in comparable businesses and comparably
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situated. The policy orpolicies evidencing all insurance referred to in this Section and receipts for the payment ofpremiums thereon or certificates of such insurance satisfactory to the Administrative Agent shallbe delivered to and held by the Administrative Agent. No later than forty (40) days prior toexpiration, Borrower shall give the Administrative Agent (a) satisfactory written evidence ofrenewal of all such policies with premiums paid, or (b) a written report as to the steps beingtaken by Borrower to renew or replace all such policies, provided that notwithstanding the receiptof such written report, the Administrative Agent may at any time thereafter give Borrower writtennotice to provide the Administrative Agent with such evidence as described in clause (a), in whichcase Borrower must do so within ten (10) days of such notice. Borrower agrees to pay all premiumson such insurance as they become due, and will not permit any condition to exist which would whollyor partially invalidate any insurance thereon.     10.9 Maintenance of Properties. Borrower shall maintain, keep and preserve all of itsmaterial properties (tangible and intangible) necessary or used in the proper conduct of itsbusiness in good working order and condition, ordinary wear and tear excepted, and shall cause tobe made all repairs, renewals, replacements, betterments and improvements thereof, all as in thesole judgment of Borrower may be reasonably necessary so that the business carried on in connectiontherewith may be properly and advantageously conducted at all times.     10.10 Payment of Liabilities. Borrower shall pay all liabilities (including, withoutlimitation: (a) any indebtedness for borrowed money or for the deferred purchase price of propertyor services; (b) any obligations under leases which have or should have been characterized asCapital Leases; and (c) any contingent liabilities, suchas guaranties, for the obligations of others relating to indebtedness for borrowed money orfor the deferred purchase price of property or services or relating to obligations under leaseswhich have or should have been characterized as Capital Leases) as they become due beyond anyperiod of grace under the instrument creating such liabilities, unless (with the exception of theObligations) (x) the failure to pay such liabilities within such time period could not reasonablybe expected to result in a Material Adverse Effect, or (y) they are subject to a Good FaithContest, and such contesting will not result in a Material Adverse Effect.     10.11 Inspection. Borrower shall permit the Administrative Agent, the Letter of CreditBank or any Lender or their agents, during normal business hours or at such other times as theparties may agree, to examine, and make copies of or abstracts from, Borrower’s properties, books,and records, and to discuss Borrower’s affairs, finances, operations, and accounts with itsrespective officers, directors, employees, and independent certified public accountants; provided,that, in the case of each meeting with the independent accountants Borrower is given an opportunityto have a representative present at such meeting.     10.12 Required Licenses; Intellectual Property. Borrower shall duly and lawfullyobtain, protect and maintain in full force and effect all Required Licenses and IntellectualProperty as appropriate for the business being conducted and properties owned by Borrower at anygiven time.     10.13 ERISA. Borrower shall make or cause to be made, and cause each Subsidiary tomake or cause to be made, all payments or contributions to all Borrower Benefit Plans covered
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byTitle IV of ERISA, which are necessary to enable those Borrower Benefit Plans to continuously meetall minimum funding standards or requirements.     10.14 Maintenance of Commodity Position. Borrower shall observe risk managementpolicies, including protection of its commodity inventory holdings or commitments to buy or sellcommodities against adverse price movements through hedge agreements or otherwise, to minimizelosses and protect margins in commodity production, storage, processing and marketing, whichpolicies shall be consistent with its existing risk management policies, shall be policies as arerecognized as financially sound and reputable by prudent business persons in the commoditybusiness, and shall be consistent with risk management policies observed in the petroleum refiningand distribution industry in general.     10.15 Financial Covenants. Borrower shall maintain the following financial covenants,measured as a consolidation of the results of Borrower and its Subsidiaries:     (a) Funded Debt to EBITDA. As of each Covenant Compliance Date, a ratio ofFunded Debt divided by EBITDA of not greater than 3.00 to 1.00 during the CovenantComputation Period ending on such date.     (b) Minimum Net Worth. As of each Covenant Compliance Date, Net Worth of notless than $600,000,000.     (c) Interest Coverage Ratio. As of each Covenant Compliance Date, the InterestCoverage Ratio of not less than 4.00 to 1.00 during the Covenant Computation Period endingon such date.     (d) Minimum Working Capital. At all times, Working Capital of not less than$75,000,000.**ARTICLE 11. NEGATIVE COVENANTS**     From and after the date of this Credit Agreement until the Obligations are indefeasibly paidin full, all Letters of Credit have expired or been fully drawn, the Letter of Credit Bank has noobligation to issue further Letters of Credit, and the Lenders have no obligation to make anyAdvance, Borrower agrees that it will observe and comply with the following covenants:     11.1 Borrowing. Borrower shall not create, incur, assume or permit to exist, directlyor indirectly, any Indebtedness, except for: (a) Indebtedness of Borrower arising under thisCredit Agreement and the other Loan Documents; (b) trade payables arising in the ordinary course ofbusiness; (c) current operating liabilities (other than for borrowed money) incurred in theordinary course of business; (d) Indebtedness on the date hereof as set forth in Exhibit 11.1attached hereto; (e) Indebtedness arising out of Subordinated Member Loans; (f) Indebtedness underthe Bonds so long as Borrower is the sole owner and holder of all of the Bonds; and (g) otherIndebtedness, including without limitation, Indebtedness arising under guarantees permitted underSection 11.5 hereof and Indebtedness arising under Capital leases, in an aggregate maximum amountof principal outstanding at any one time of $40,000,000.
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     11.2 No Other Businesses. Borrower shall not engage in any material respects in anybusiness activity or operations other than operations or activities (a) in the petroleum refiningand distribution industry, or (b) which are not substantially different from or are related to itspresent business activities or operations.     11.3 Liens. Borrower shall not create, incur, assume, or suffer to exist any Lien onany of its real or personal properties (including, without limitation, leasehold interests,leasehold improvements and any other interest in real property or fixtures, now owned or hereafteracquired), except:     (a) Liens for taxes or assessments or other charges or levies of any GovernmentalAuthority, that are not delinquent or if delinquent (i) are the subject of a Good FaithContest but in no event past the time when a penalty would be incurred, and (ii) theaggregate amount of liabilities so secured (including interest and penalties) does notexceed $10,000,000 at any one time outstanding;     (b) Liens imposed by law, such as mechanic’s, worker’s, repairman’s, miner’s,agister’s, attorney’s, materialmen’s, landlord’s, warehousemen’s and carrier’s Liens andother similar Liens which are securing obligations incurred in the ordinary course ofbusiness for sums not yet due and payable or if due and payable which are the subject of aGood Faith Contest;     (c) Liens under workers’ compensation, unemployment insurance, social security orsimilar legislation (other than ERISA), or to secure payments of premiums for insurancepurchased in the ordinary course of business, or to secure the performance of tenders,statutory obligations, surety and appearance bonds and bids, bonds for release of anattachment, stay of execution or injunction, leases, government contracts, performance andreturn-of-money bonds and other similar obligations, all of which are incurred in theordinary course of business and not in connection with the borrowing of money;     (d) Any attachment or judgment Lien, the time for appeal or petition for rehearing ofwhich shall not have expired or in respect of which Borrower is protected in all materialrespects by insurance or for the payment of which adequate reserves have been provided,provided that the execution or other enforcement of such Liens is effectively stayed and theclaims secured thereby are the subject of a Good Faith Contest, and provided further thatthe aggregate amount of liabilities of Borrower so secured (including interest andpenalties) shall not be in excess of $1,000,000 at any one time outstanding;     (e) Easements, rights-of-way, restrictions, encroachments, covenants, servitudes,zoning and other similar encumbrances which, in the aggregate, do not materially interferewith the occupation, use and enjoyment by Borrower of the property or assets encumberedthereby in the normal course of its business or materially impair the value of the propertysubject thereto;     (f) Liens on land, buildings and equipment existing at the time of their acquisition orLiens to secure the payment of all or any part of the purchase price of such
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land, buildingsor equipment or to secure Funded Debt incurred prior to, at the time of, or withinone-hundred eighty (180) days after the acquisition of such property for the purpose offinancing all or any part of the purchase price thereof, provided that any such Liens shallnot encumber any other property of Borrower;     (g) Liens on assets acquired in a permitted merger and acquisition, but only to theextent that such Liens shall not encumber any other property of Borrower;     (h) Liens on financed property created or incurred in connection with leases,mortgages, conditional sales contracts, security interests or arrangements for the retentionof title entered into by Borrower to secure “industrial revenue bonds” as defined in Section103(b)(2) of the Code and treated as obligations described in legislation similar to theprovisions of said Sections of the Code enacted in any State of the United States or PuertoRico, which are issued to finance property useful and intended to be used in carrying on thebusiness of Borrower, provided that upon creation of any such Lien Borrower shall incurIndebtedness secured thereby only in conformity with the provisions of Section 11.1 hereof;     (i) CoBank’s statutory Lien in the CoBank Equities, and (without limiting theforegoing) Liens of any cooperative on Investments by Borrower in the stock, participationcertificates, or allocated reserves of such cooperative owned by Borrower;     (j) All precautionary filings of financing statements under the Uniform Commercial Codewhich cover property that is made available to or used by Borrower pursuant to the terms ofan Operating Lease or Capital Lease;     (k) Liens securing its reimbursement obligations under any letter of credit issued inconnection with the acquisition of an asset; provided that (i) the Lien attaches only tosuch asset, and (ii) the Lien is released upon satisfaction of such reimbursementobligation; and     (l) Liens in existence on the date hereof as set forth in Exhibit 11.3 attached hereto.     11.4 Sale of Assets. Borrower shall not sell, convey, assign, lease or otherwisetransfer or dispose of, voluntarily, by operation of law or otherwise, any material part of its nowowned or hereafter acquired assets, except: (a) the sale of inventory, equipment and fixturesdisposed of in the ordinary course of business, (b) the sale or other disposition of assets nolonger necessary or useful for the conduct of its business, and (c) the sale or other dispositionof assets in an aggregate amount not to exceed $12,000,000 during any Fiscal Year (valued at thegreater of book or market value).     11.5 Liabilities of Others. Borrower shall not assume, guarantee, become liable as asurety, endorse, contingently agree to purchase, or otherwise be or become liable, directly orindirectly (including, but not limited to, by means of a maintenance agreement, an asset or stockpurchase agreement, or any other agreement designed to ensure any creditor against loss), for or onaccount of the obligation of any Person, except (a) by the endorsement of negotiable instrumentsfor deposit or collection or similar transactions in the ordinary course of Borrower’s
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business,and (b) subject to the limitations contained in Section 11.1 hereof, guarantees made from time totime by Borrower in the ordinary course of its business.     11.6 Loans. Borrower shall not lend or advance money, credit, or property to anyPerson, except (a) trade credit extended in the ordinary course of business; (b) loans toBorrower’s wholly-owned Subsidiary Jayhawk Pipeline, L.L.C., provided that all such loans toJayhawk Pipeline, L.L.C., when aggregated with all of the Investments in Jayhawk Pipeline, L.L.C.made pursuant to, and as permitted in, Section 11.8(i) hereof, do not exceed $75,000,000; and (c)loans to Borrower’s partially-owned Subsidiary Kaw Pipe Line Company in an aggregate amount not toexceed $5,000,000.     11.7 Merger; Acquisitions; Business Form; Etc. Borrower shall not liquidate, dissolve,terminate or suspend its business operations or otherwise fail to operate its business in theordinary course, or merge into or consolidate with any other Person, or permit any other Person tomerge into or consolidate with it, or sell, lease, assign, transfer or otherwise dispose of all orsubstantially all of its assets, or acquire all or substantially all of the assets of any Person,or form or create any new Subsidiary or Affiliate, change its business form from a cooperativecorporation, or commence operations under any other name, organization, or entity, including anyjoint venture; provided that Borrower may, so long as there is no Default or Event ofDefault which has occurred and iscontinuing, acquire all or substantially all of the assets of any Person so long as (a) theaggregate consideration for all such acquisitions does not exceed $5,000,000 during any FiscalYear, and (b) Borrower has provided the Administrative Agent with pro-forma financial statementsand calculations demonstrating to the Administrative Agent’s satisfaction that Borrower will be incompliance with all financial related covenants contained in this Credit Agreement after givingeffect to each such acquisition.     11.8 Investments. Except for the purchase of CoBank Equities, Borrower shall not own,purchase or acquire any stock, obligations or securities of, or any other interest in, or make anycapital contribution to, any Person, except that Borrower may own, purchase or acquire:     (a) commercial paper maturing not in excess of one year from the date of acquisitionand rated PI by Moody’s Investors Service, Inc. or Al by Standard & Poor’s Corporation onthe date of acquisition;     (b) certificates of deposit in North American commercial banks rated C or better byKeefe, Bruyette & Woods, Inc. or 3 or better by Cates Consulting Analysts, maturing not inexcess of one year from the date of acquisition;     (c) obligations of the United States government or any agency thereof, the obligationsof which are guaranteed by the United States government, maturing, in each case, not inexcess of one year from the date of acquisition;     (d) repurchase agreements of any bank or trust company incorporated under. the laws ofthe United States of America or any state thereof and fully secured by a pledge ofobligations issued or fully and unconditionally guaranteed by the United States government;
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     (e) registered investment funds which invest solely in one or more of the Investmentsdescribed in subparts (a) through (d) of this Section 11.8;     (f) Investments made prior to the Closing Date in Persons identified on Exhibit 11.8hereto;     (g) Investments in the form of non-cash patronage dividends in any Person;     (h) the Bonds;     (i) Investments made on and after October 25, 2007 in Borrower’s wholly ownedSubsidiary Jayhawk Pipeline, L.L.C.; provided that all such Investments, when aggregatedwith the amount of all loans to Jayhawk Pipeline, L.L.C., do not exceed $75,000,000;     (j) the CoBank Equities and any other stock or securities of, or Investments in, CoBankor its investment services or programs; and     (k) Investments, in addition to those permitted by clauses (a) through (j) above, in anaggregate amount not exceeding $15,000,000.     11.9 Transactions With Related Parties. Borrower shall not purchase, acquire, provide,or sell any equipment, other personal property, real property or services from or to any Affiliateor Subsidiary of Borrower, except in the ordinary course and pursuant to the reasonablerequirements of Borrower’s business and upon fair and reasonable terms no less favorable than wouldbe obtained by Borrower in a comparable arm’s-length transaction with an unrelated Person.     11.10 Restricted Payments. Borrower shall not, in any Fiscal Year (a) make anyRestricted Payment (other than revolvements and retirements of equity) (i) in an aggregate amountthat would exceed Borrower’s Patronage Refunds from the current Fiscal Year, or (ii) if a Defaultor an Event of Default has occurred and is continuing at the time of such Restricted Payment orwould result therefrom; or (b) make any revolvement or retirements of equity if a Default or anEvent of Default has occurred and is continuing at the time of such Restricted Payment or wouldresult therefrom; provided that regardless of whether a Default or an Event of Default has occurredand is continuing at the time of such Restricted Payment or would result therefrom, Borrower may(x) make cash payments to its Members in an aggregate amount in any Fiscal Year that does notexceed twenty-one percent (21%) of Borrower’s Patronage Refunds for the current Fiscal Year and (y)make age retirement, estate or similar payments.     11.11 Change in Fiscal Year. Borrower shall not change its Fiscal Year from a yearending on August 31 unless required to do so by the Internal Revenue Service, in which caseBorrower agrees to amend the terms Fiscal Quarter and Fiscal Year, as used herein, as theAdministrative Agent reasonably deems necessary.     11.12 ERISA. Borrower shall not: (a) engage in or permit any transaction which couldresult in a Prohibited Transaction or in the imposition of an excise tax pursuant to Section 4975of the Code; (b) engage in or permit any transaction or other event which could result in a
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Reportable Event for any Borrower Pension Plan; (c) fail to make full payment when due of allamounts which, under the provisions of any Borrower Benefit Plan, Borrower is required to pay ascontributions thereto; (d) permit to exist any funding shortfall (as such term is defined inSection 430(c)(4) of the Code) in excess of $25,000 with respect to any Borrower Pension Plan; (e)fail to make any payments to any Multiemployer Plan that Borrower may be required to make under anyagreement relating to such Multiemployer Plan or any law pertaining thereto; or (f) terminate anyBorrower Pension Plan in a manner which could result in the imposition of a lien on any property ofBorrower pursuant to Section 4068 of ERISA. Borrower shall not terminate any Borrower Pension Planso as to result in any liability to the PBGC. Borrower’s failure to comply with any of theforegoing provisions of this Section shall not constitute a breach of this Credit Agreement or anEvent of Default unless such failure has a Material Adverse Effect.     11.13 Member Loans. Notwithstanding any provision in this Credit Agreement, including,without limitation, any restriction contained in Sections 11.6, 11.8, or 11.10 hereof, Borrowermay, at any time so long as all Advances,including all Overnight Advances, have been repaid in full and there is no pending BorrowingNotice or Overnight Advance Request in existence, make Member Loans to its Members funded byBorrower’s cash on hand, subject to the following conditions and limitations:     (a) Aggregate and Individual Amounts. The aggregate committed amount of allsuch Member Loans may not exceed Borrower’s Excess Working Capital; and the aggregatecommitted and (without duplication) outstanding amount of Member Loans to any individualMember may not, except as provided in Subsection 11.13(c) hereof, exceed the product of suchindividual Member’s Member Percentage multiplied by Borrower’s Excess Working Capital asmeasured at the time of making such commitment.     (b) Member Loan Documentation and Maturity Date. Each Member Loan must beevidenced by a written credit and security agreement and revolving loan note insubstantially the form of Exhibit 11.13(b) hereto, which must be dated no later than thedate of the first advance thereunder, and, as to any advance thereunder, must be payable infull as to interest and principal within no more than thirty-one (31) days after the date ofsuch advance; provided that, notwithstanding the provisions contained in the formattached hereto as Exhibit 11.13(b), Borrower may, at its discretion, make any Member Loanon an unsecured basis.     (c) Additional Aggregate Individual Amounts. The aggregate committed and(without duplication) outstanding amount of Member Loans to any individual Member may exceedthe product of such individual Member’s Member Percentage multiplied by Borrower’s ExcessWorking Capital; provided that the following conditions are satisfied: (i) such amount maynot exceed the lesser of the following: (x) two times the product of such individualMember’s Member Percentage multiplied by Borrower’s Excess Working Capital as measured atthe time of making such commitment, or (y) the sum of (A) the product of such individualMember’s Member Percentage multiplied by Borrower’s Excess Working Capital, plus (B) theamount of available credit such Member has under a credit facility satisfactory to Borrower(“**Revolving Credit Facility**”), in each case as measured at the time of (but without takinginto effect the
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consequences of) making such commitment; (ii) such Member Loan is evidencedby a written credit and security agreement and revolving loan note in substantially the formof Exhibit 11.13(b) hereto which must contain (1) a representation by such Member that theamount of credit available to such Member under the Revolving Credit Facility is in excessof the difference between (A) the face amount of such note and (B) the product of suchindividual Member’s Member percentage multiplied by Borrower’s Excess Working Capital, (2) acovenant that such Member will at no time request an advance in an amount which would resultin the outstanding balance under its Member Loan exceeding the limits set forth in clause(i) of this Subsection 11.13(c), and (3) a covenant that such Member will promptly upondiscovery, advise Borrower of the fact and amount of any decrease in the amount of creditavailable to such Member under the Revolving Credit Facility; provided thatnotwithstanding the provisions contained in the form attached hereto as Exhibit 11.13(b),Borrower may, at its discretion, make any Member Loan on an unsecured basis.**ARTICLE 12. INDEMNIFICATION**     12.1 General; Stamp Taxes; Intangibles Tax. Borrower agrees to indemnify and hold theAdministrative Agent, the Letter of Credit Bank and each Lender and their respective directors,officers, employees, agents, professional advisers and representatives (“**Indemnified Parties**”)harmless from and against any and all claims, damages, losses, liabilities, costs or expenseswhatsoever which any Indemnified Party may incur (or which may be claimed against any suchIndemnified Party by any Person), including attorneys’ fees incurred by any Indemnified Party,arising out of or resulting from: (a) the material inaccuracy of any representation or warranty ofor with respect to Borrower in this Credit Agreement or the other Loan Documents; (b) the materialfailure of Borrower to perform or comply with any covenant or obligation of Borrower under thisCredit Agreement or the other Loan Documents; (c) the exercise by any Indemnified Party of anyright or remedy set forth in this Credit Agreement or the other Loan Documents; or (d) all acts oromissions of the beneficiary of any Letter of Credit, and for such purposes, such beneficiary shallbe deemed Borrower’s agent; provided that Borrower shall have no obligation to indemnify anyIndemnified Party against claims, damages, losses, liabilities, costs or expenses to the extentthat a court of competent jurisdiction renders a final non-appealable determination that theforegoing are solely the result of the willful misconduct or gross negligence of such IndemnifiedParty. In addition, Borrower agrees to indemnify and hold the Indemnified Parties harmless from andagainst any and all claims, damages, losses, liabilities, costs or expenses whatsoever which theany Indemnified Party may incur (or which may be claimed against any such Indemnified Party by anyPerson), including attorneys’ fees incurred by any Indemnified Party, arising out of or resultingfrom the imposition or nonpayment by Borrower of any stamp tax, intangibles tax, or similar taximposed by any state, including any amounts owing by virtue of the assertion that the propertyvaluation used to calculate any such tax was understated. Borrower shall have the right to assumethe defense of any claim as would give rise to Borrower’s indemnification obligation under thisSection with counsel of Borrower’s choosing so long as such defense is being diligently andproperly conducted and Borrower shall establish to the Indemnified Party’s satisfaction that theamount of such claims are not, and will not be, material in comparison to the liquid andunrestricted assets of Borrower available to respond to any award which may be granted on accountof such claim. So long as the conditions of the preceding sentence are met, Indemnified Party shallhave no
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further right to reimbursement of attorneys’ fees incurred thereafter. The obligation toindemnify set forth in this Section shall survive the termination of this Credit Agreement and theother Loan Documents.     12.2 Indemnification Relating to Hazardous Substances. Borrower shall not locate,produce, treat, transport, incorporate, discharge, emit, release, deposit or dispose of anyHazardous Substance in, upon, under, over or from any property owned or held by Borrower, except inaccordance with all Environmental Regulations; Borrower shall not permit any Hazardous Substance tobe located, produced, treated, transported, incorporated, discharged, emitted, released, deposited,disposed of or to escape in, upon, under, over or from any property owned or held by Borrower,except in accordance with Environmental Regulations; and Borrower shall comply with allEnvironmental Regulations which are applicable to such property. Borrower shall indemnify theIndemnified Parties against, and shall reimburse the Indemnified Parties for,any and all claims, demands, judgments, penalties, liabilities, costs, damages and expenses,including court costs and attorneys’ fees incurred by the Indemnified Parties (prior to trial, attrial and on appeal) in any action against or involving the Indemnified Parties, resulting from anybreach of the foregoing covenants in this Section or the covenants in Section 10.6 hereof, or fromthe discovery of any Hazardous Substance in, upon, under or over, or emanating from, such property,it being the intent of Borrower and the Indemnified Parties that the Indemnified Parties shall haveno liability or responsibility for damage or injury to human health, the environmental or naturalresources caused by, for abatement and/or clean-up of, or otherwise with respect to, HazardousSubstances as the result of any Indemnified Party exercising any of its rights or remedies withrespect thereto, including but not limited to becoming the owner thereof by foreclosure orconveyance in lieu of foreclosure of a judgment lien; provided that such indemnification asit applies to the exercise by any Indemnified Party of its rights or remedies with respect to theLoan Documents shall not apply to claims arising solely with respect to Hazardous Substancesbrought onto such property by such Indemnified Party while engaged in activities other thanoperations substantially the same as the operations previously conducted on such property byBorrower. The foregoing covenants of this Section shall be deemed continuing covenants for thebenefit of the Indemnified Parties, and any successors and assigns of the Indemnified Parties,including but not limited to any transferee of the title of the Administrative Agent, the Letter ofCredit Bank or any Lender or any subsequent owner of the property, and shall survive thesatisfaction or release of any Lien, any foreclosure of any Lien and/or any acquisition of title tothe property or any part thereof by any Indemnified Party, or anyone claiming by, through or underany Indemnified Party or Borrower by deed in lieu of foreclosure or otherwise. Any amounts coveredby the foregoing indemnification shall bear interest from the date incurred at the Default InterestRate, which interest shall be payable on demand. The indemnification and covenants of this Sectionshall survive the termination of this Credit Agreement and the other Loan Documents.
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**ARTICLE 13. EVENTS OF DEFAULT; RIGHTS AND REMEDIES**     13.1 Events of Default. The occurrence of any of the following events (each, an “**Eventof Default**”) shall, at the option of the Administrative Agent, make all Obligations immediately dueand payable (provided, that in the case of an Event of Default under Subsection 13.1(f) all amountsowing under the Notes and the other Obligations shall automatically and immediately become due andpayable without any action by or on behalf of the Administrative Agent), and the AdministrativeAgent may exercise all rights and remedies for the collection of any amounts outstanding hereunderand take whatever action it deems necessary to secure itself, all without notice of default,presentment or demand for payment, protest or notice of nonpayment or dishonor, or other notices ordemands of any kind or character:     (a) Failure of Borrower to pay within five (5) days of the date when due, whether byacceleration or otherwise, any of the Obligations in accordance with this Credit Agreementor the other Loan Documents.     (b) Any representation or warranty set forth in any Loan Document, any BorrowingNotice, any financial statements or reports or projections or forecasts, or inconnection with any transaction contemplated by any such document, shall prove in anymaterial respect to have been false or misleading when made or furnished by Borrower.     (c) Any default by Borrower in the performance or compliance with the covenants,promises, conditions or provisions of Sections 10.3, 10.8, 10.11, 10.15, 11.1, 11.3, 11.4,11.5, 11.7, 11.10, 11.12, or 11.13 of this Credit Agreement.     (d) Any default by Borrower in the performance or compliance with the covenants,promises, conditions or provisions of Sections 10.12, 10.13, 11.6, 11.8, 11.9, or 11.11 ofthis Credit Agreement, and such default continues for fifteen (15) days after Borrowerlearns of such default, whether by Borrower’s own discovery or through notice from theAdministrative Agent.     (e) The failure of Borrower to pay when due, or failure to perform or observe any otherobligation or condition with respect to any of the following obligations to any Person,beyond any period of grace under the instrument creating such obligation: (i) anyindebtedness for borrowed money or for the deferred purchase price of property or services,(ii) any obligations under leases which have or should have been characterized as CapitalLeases, or (iii) any contingent liabilities, such as guaranties and letters of credit, forthe obligations of others relating to indebtedness for borrowed money or for the deferredpurchase price of property or services or relating to obligations under leases which have orshould have been characterized as Capital Leases; provided that no such failure will bedeemed to be an Event of Default hereunder unless and until the aggregate amount owing underobligations with respect to which such failures have occurred and are continuing is at least$1,000,000.     (f) (i) Borrower shall be or become insolvent, however defined; or admit in writing itsinability to pay debts as they mature; or make a general assignment for the benefit of itscreditors; or cease to do business in the ordinary course; or (ii) Borrower
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shall instituteany bankruptcy, insolvency, reorganization, dissolution, liquidation or similar proceedingrelating to itself under the laws of any jurisdiction; or Borrower shall take any action toauthorize any such proceeding; or any such proceeding shall be instituted against Borrowerand shall not be dismissed or discharged within 60 days after its commencement; or Borrowershall admit all of the material allegations with respect to any such proceeding; or an orderfor relief or similar order shall be entered in any such proceeding; or (iii) Borrower shallapply for the appointment of any receiver, trustee or similar officer for itself or for allor substantially all of its property; or Borrower shall take any action to authorize anysuch appointment; or an action for any such appointment shall be commenced by any otherPerson and such action shall not be dismissed or discharged within 60 days after itscommencement; or Borrower shall admit all of the material allegations with respect to anysuch action; or any such appointment shall be made, with or without the consent of Borrower;or (iv) a warrant, writ of attachment, execution or similar process shall be issued orlevied against any substantial part of the property of Borrower and shall not be fullyreleased, stayed, vacated or bonded within 60 days after such issuance or levy; or (v) apetition shall be filed by Borrower under the United States Bankruptcy Code naming Borroweras debtor; or an involuntary petition shall be filed against Borrower under the UnitedStates Bankruptcy Code, and suchpetition shall not have been dismissed within 60 days after such filing; or an orderfor relief shall be entered in any case under the United States Bankruptcy Code namingBorrower as debtor.     (g) Any default by Borrower in the performance or compliance with any other provisionof this Credit Agreement or any other Loan Document not constituting an Event of Defaultunder any of the preceding subparagraphs of this Section 13.1, and such default continuesfor thirty (30) days after Borrower learns of such default, whether by Borrower’s owndiscovery or through notice from the Administrative Agent.     (h) The entry of one or more judgments in an aggregate amount in excess of $1,000,000against Borrower not subject to a Good Faith Contest, or discharged or paid, in each case,within thirty (30) days after entry.     (i) In the event (i) CHS, Inc. shall (A) cease to own more than sixty-seven percent(67%) of the total voting power generally entitled to vote in the election of directors,managers or trustees of Borrower or (B) cease to own more than sixty-seven percent (67%) ofall non-voting classes of capital stock of Borrower, or (ii) the members or stockholders, asapplicable, of Borrower shall approve any plan for the liquidation or dissolution ofBorrower.     (j) Any Loan Document or any provision thereof ceases to be in full force and effectfor any reason other than as expressly permitted hereunder or thereunder; or Borrowerattempts to reject, terminate or rescind any Loan Document to which it is a party or anyprovision thereof, or contests in any manner the validity, binding nature or enforceabilityof any Loan Document to which it is a party or any provision thereof.     (k) Any Reportable Event that the Administrative Agent or the Required Lendersdetermine in good faith would reasonably be expected to constitute grounds for
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thetermination of any Pension Plan under Section 4042 of ERISA or for the appointment by theappropriate United States District Court of a trustee to administer any Borrower PensionPlan, shall have occurred and be continuing 30 days after written notice to such effectshall have been given to Borrower by the Administrative Agent; or the PBGC shall haveinstituted proceedings to terminate any Borrower Pension Plan or to appoint a trustee toadminister any Borrower Pension Plan; or Borrower or any of its ERISA Affiliates shall havefiled for a distress termination of any Borrower Pension Plan under Title IV of ERISA; orthere is imposed any liability under Title IV of ERISA, other than for PBGC premiums due butnot delinquent under Section 4007 of ERISA, on Borrower or any of its ERISA Affiliates; orthere is a determination that any Borrower Pension Plan is considered an at-risk plan or aplan in endangered or critical status within the meaning of Sections 430 or 432 of the Codeor Sections 303 or 305 of ERISA; or Borrower or any of its ERISA Affiliates, shall havefailed to make any quarterly contribution required with respect to any Borrower Pension Planunder Section 430(j) of the Code or fails to make a contribution required (or seeks a waiverof any contribution required) with respect to any Borrower Pension Plan under Section 412 ofthe Code, that the Administrative Agent or the Required Lenders determine in good faith mayby itself, or in combination with any such failures that the Administrative Agent or theRequired Lenders may determine arelikely to occur in the future, result in the imposition of a Lien on Borrower’s assetsin favor of the Borrower Pension Plan; or any withdrawal, partial withdrawal, reorganizationor other event occurs with respect to a Multiemployer Plan that results or would reasonablybe expected to result in a material liability of Borrower to the Multiemployer Plan underTitle IV of ERISA.     13.2 No Advance. Upon the occurrence and during the continuance of a Default or anEvent of Default, (a) the Lenders shall have no obligation to make any Advance, and (b) neither theLetter of Credit Bank nor the Lenders shall have any obligation to issue, reissue, or extend anyLetters of Credit.     13.3 Rights and Remedies. In addition to the remedies set forth in Section 13.1 and13.2 hereof, upon the occurrence of an Event of Default, the Administrative Agent shall be entitledto exercise, subject to the provisions of Subsection 14.6(d) hereof, all the rights and remediesprovided in the Loan Documents and by any applicable law. Each and every right or remedy granted tothe Administrative Agent pursuant to this Credit Agreement and the other Loan Documents, or allowedthe Administrative Agent by law or equity, shall be cumulative. Failure or delay on the part of theAdministrative Agent to exercise any such right or remedy shall not operate as a waiver thereof.Any single or partial exercise by the Administrative Agent of any such right or remedy shall notpreclude any future exercise thereof or the exercise of any other right or remedy.**ARTICLE 14. AGENCY AGREEMENT**     14.1 Funding of Syndication Interest. Each Lender, severally but not jointly, herebyirrevocably agrees to fund its Funding Share of the Advances (“**Advance Payment**”) as determinedpursuant to the terms and conditions contained herein and in particular, Article 2 hereof. EachLender’s interest (“**Syndication Interest**”) in each Advance hereunder shall be
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without recourse tothe Administrative Agent or any other Lender and shall not be construed as a loan from any Lenderto the Administrative Agent or any other Lender.     14.2 Lenders’ Obligations to Remit Funds. Each Lender agrees to remit its FundingShare to the Administrative Agent as, and within the time deadlines (“**Lender Advance Date**”),required in this Credit Agreement. Unless the Administrative Agent shall have received notice froma Lender prior to the date on which such Lender is to provide funds to the Administrative Agent foran Advance to be made by such Lender that such Lender will not make available to the AdministrativeAgent such funds, the Administrative Agent may assume that such Lender has made such fundsavailable to the Administrative Agent on the date of such Advance in accordance with the terms ofthis Credit Agreement and the Administrative Agent in its sole discretion may, but shall not beobligated to, in reliance upon such assumption, make available to Borrower on such date acorresponding amount. If and to the extent such Lender shall not have made such funds available tothe Administrative Agent by 2:00 P.M. (Eastern Time) on the Banking Day due, such Lender agrees torepay the Administrative Agent forthwith on demand such corresponding amount together with interestthereon, for each day from the date such amount is made available to Borrower untilthe Banking Day such amount is repaid to the Administrative Agent (assuming payment isreceived by the Administrative Agent at or prior to 2:00 P.M. (Eastern Time), and until the nextBanking Day if payment is not received until after 2:00 P.M.), at the customary rate set by theAdministrative Agent for the correction of errors among banks for three (3) Banking Days andthereafter at the Base Rate. If such Lender shall repay to the Administrative Agent suchcorresponding amount, such amount so repaid shall constitute such Lender’s Advance for purposes ofthis Credit Agreement. If such Lender does not pay such corresponding amount forthwith upon theAdministrative Agent’s demand therefor, the Administrative Agent shall promptly notify Borrower,and Borrower shall immediately pay such corresponding amount to the Administrative Agent with theinterest thereon, for each day from the date such amount is made available to Borrower until thedate such amount is repaid to the Administrative Agent, at the rate of interest applicable at thetime to such Advance.     14.3 Lender’s Failure to Remit Funds. If a Delinquent Lender fails to remit itsFunding Share in full by the date and time required (the unpaid amount of any such payment beinghereinafter referred to as the “**Delinquent Amount**”), in addition to any other remedies availablehereunder, any other Lender or Lenders may, but shall not be obligated to, advance the DelinquentAmount (the Lender or Lenders which advance such Delinquent Amount are referred to as the“**Contributing Lenders**”), in which case (a) the Delinquent Amount which any Contributing Lenderadvances shall be treated as a loan to the Delinquent Lender and shall not be counted indetermining the Individual Outstanding Obligations, as applicable, of any Contributing Lender, and(b) the Delinquent Lender shall be obligated to pay to the Administrative Agent, for the account ofthe Contributing Lenders, interest on the Delinquent Amount at a rate of interest equal to the rateof interest which Borrower is obligated to pay on the Delinquent Amount plus 200 basis points(“**Delinquency Interest**”) until the Delinquent Lender remits the full Delinquent Amount and remitsall Delinquency Interest to the Administrative Agent, which will distribute such payments to theContributing Lenders (pro rata based on the amount of the Delinquent Amount which each of them (ifmore than one) advanced) on the same Banking Day as such payments are received by theAdministrative Agent if received no later than 11:00 A.M. (Eastern Time) or the next Banking Day ifreceived by the Administrative Agent thereafter. In addition, the Contributing Lenders shall beentitled to share,
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on the same pro rata basis, and the Administrative Agent shall pay over to them,for application against Delinquency Interest and the Delinquent Amount, the Delinquent Lender’sPayment Distribution and any fee distributions or distributions made under Section 14.10 hereofuntil the Delinquent Amount and all Delinquency Interest have been paid in full. For votingpurposes the Administrative Agent shall readjust the Individual Commitments of such DelinquentLender and the Contributing Lenders from time to time first to reflect the advance of theDelinquent Amount by the Contributing Lenders, and then to reflect the full or partialreimbursement to the Contributing Lenders of such Delinquent Amount. As between the DelinquentLender and the Contributing Lenders, the Delinquent Lender’s interest in its Note shall be deemedto have been partially assigned to the Contributing Lenders in the amount of the Delinquent Amountand Delinquency Interest owing to the Contributing Lenders from time to time. For the purposes ofcalculating interest owed by a Delinquent Lender, payments received on other than a Banking Dayshall be deemed to have been received on the next Banking Day, and payments received after 2:00P.M. (Eastern Time) shall be deemed to have been received on the next Banking Day. Notwithstandingthe foregoing, if no Lender advances the Delinquent Amount, Borrower shall within two Banking Daysfollowing notice by the Administrative Agent(x) first, prepay all outstanding Overnight Advances, and (y) second, cash collateralize theundrawn face amount of all Letters of Credit then outstanding to the extent of such DelinquentLender’s Individual Pro Rata Share. Further, the Overnight Lender shall not be required to fundany Overnight Advance and the Letter of Credit Bank shall not be required to issue, amend orincrease any Letter of Credit, unless it is satisfied that the related exposure will be 100%covered by the Individual Commitments of the non-Delinquent Lenders in a manner consistent withthis Section 14.3 and/or cash collateral will be provided by Borrower in accordance with thisSection 14.3.     14.4 Agency Appointment. Each of the Lenders hereby designates and appoints theAdministrative Agent to act as agent to service and collect the Loans, its respective Notes and theother Obligations and to take such action on behalf of such Lender with respect to the Loans, Notesand other Obligations, and to execute such powers and to perform such duties, as specificallydelegated or required herein, as well as to exercise such powers and to perform such duties as arereasonably incident thereto, and to receive and benefit from such fees and indemnifications as areprovided for or set forth herein, until such time as a successor is appointed and qualified to actas the Administrative Agent.     14.5 Power and Authority of the Administrative Agent. Without limiting the generalityof the power and authority vested in the Administrative Agent pursuant to Section 14.4 hereof, thepower and authority vested in the Administrative Agent includes, but is not limited to, thefollowing:     (a) Advice. To solicit the advice and assistance of each of the Lenders, theLetter of Credit Bank and Voting Participants concerning the administration of the Facilityand the exercise by the Administrative Agent of its various rights, remedies, powers, anddiscretions with respect thereto. As to any matters not expressly provided for by thisCredit Agreement or any other Loan Document, the Administrative Agent shall in all cases befully protected in acting, or in refraining from acting, hereunder in accordance withinstructions signed by all of the Lenders, the Letter of Credit Bank or the RequiredLenders, as the case may be (and including in each such case, Voting Participants), and anyaction taken or failure to act pursuant thereto shall be binding on
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all of the Lenders, theLetter of Credit Bank, the Voting Participants, and the Administrative Agent.     (b) Documents. To execute, seal, acknowledge, and deliver as the AdministrativeAgent, all such instruments as may be appropriate in connection with the administration ofthe Facility and the exercise by the Administrative Agent of its various rights with respectthereto.     (c) Proceedings. To initiate, prosecute, defend, and to participate in, actionsand proceedings in its name as the Administrative Agent for the ratable benefit of theLenders and the Letter of Credit Bank.     (d) Retain Professionals. To retain attorneys, accountants, and otherprofessionals to provide advice and professional services to the. Administrative Agent,with their fees and expenses reimbursable to the Administrative Agent by Lenderspursuant to Section 14.17 hereof.     (e) Incidental Powers. To exercise powers reasonably incident to theAdministrative Agent’s discharge of its duties enumerated in Section 14.6 hereof.     14.6 Duties of the Administrative Agent. The duties of the Administrative Agenthereunder shall consist of the following:     (a) Possession of Documents. To safekeep one original of each of the LoanDocuments other than the Notes (which will be in the possession of the Lender named as payeetherein).     (b) Distribute Payments. To receive and distribute to the Lenders payments madeby Borrower pursuant to the Loan Documents, as provided in Article 5 hereof. Unless theAdministrative Agent shall have received notice from Borrower prior to the date on which anypayment is due to any Lender hereunder that Borrower will not make such payment in full, theAdministrative Agent may assume that Borrower has made such payment in full to theAdministrative Agent on such date and the Administrative Agent in its sole discretion may,but shall not be obligated to, in reliance upon such assumption, cause to be distributed toeach Lender on such due date an amount equal to the amount then due such Lender. If and tothe extent Borrower shall not have so made such payment in full to the Administrative Agent,each Lender shall repay to the Administrative Agent forthwith on demand such amountdistributed to such Lender together with interest thereon, for each day from the date suchamount is distributed to such Lender until the date such Lender repays such amount to theAdministrative Agent at the customary rate set by the Administrative Agent for thecorrection of errors among banks for three (3) Banking Days and thereafter at the Base Rate.     (c) Loan Administration. Subject to the provisions of Section 14.8 hereof, to,on behalf of and for the ratable benefit of all Lenders, in accordance with customarybanking practices, exercise all rights, powers, privileges, and discretion to which theAdministrative Agent is entitled to administer the Loans, including, without limitation: (i)monitor all borrowing activity, Individual Commitment balances, and maturity dates of
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allLIBO Rate Loans; (ii) monitor and report Credit Agreement and covenant compliance, andcoordinate required credit actions by the Lenders; (iii) manage the process for futurewaivers and amendments if modifications to the Credit Agreement are required; and (iv)administer, record, and process all assignments to be made for the current and futureLenders.     (d) Action Upon Default. Each Lender agrees that upon its learning of any factswhich would constitute a Default or Event of Default, it shall promptly notify theAdministrative Agent by a writing designated as a notice of default specifying in detail thenature of such facts and default, and the Administrative Agent shall promptly send a copy ofsuch notice to all other Lenders. The Administrative Agent shall be entitled to assume thatno Event of Default or Default has occurred or is continuing unless an officerthereof primarily responsible for the Administrative Agent’s duties as such withrespect to the Loans or primarily responsible for the credit relationship between theAdministrative Agent and Borrower has actual knowledge of facts which would result in orconstitute a Default or Event of Default, or has received written notice from Borrower ofsuch fact, or has received written notice of default from a Lender. In the event theAdministrative Agent has obtained actual knowledge (in the manner described above) orreceived written notice of the occurrence of a Default or Event of Default as provided inthe preceding sentences, the Administrative Agent may, but is not required to exercise orrefrain from exercising any rights which may be available under the Loan Documents or at lawon account of such occurrence and shall be entitled to use its discretion with respect toexercising or refraining from exercising any such rights, unless and until theAdministrative Agent has received specific written instruction from the Required Lenders torefrain from exercising such rights or to take specific designated action, in which case itshall follow such instruction; provided that the Administrative Agent shall not be requiredto take any action which will subject it to personal liability, or which is or may becontrary to any provision of the Loan Documents or applicable law. The Administrative Agentshall not be subject to any liability by reason of its acting or refraining from actingpursuant to any such instruction.     (e) Forwarding of Information. The Administrative Agent shall, within areasonable time after receipt thereof, forward to the Lenders and the Voting Participantsnotices and reports provided to the Administrative Agent by Borrower pursuant to Section10.2 hereof.     14.7 Indemnification as Condition to Action. Except for action expressly required ofthe Administrative Agent hereunder, the Administrative Agent shall in all cases be fully justifiedin failing or refusing to act hereunder unless it shall have received further assurances (which mayinclude cash collateral) of the indemnification obligations of the Lenders under Section 14.18hereof in respect of any and all liability and expense which may be incurred by it by reason oftaking or continuing to take any such action.     14.8 Consent Required for Certain Actions. Except as provided in Section 14.3 hereof,and notwithstanding the fact that this Credit Agreement may otherwise provide that theAdministrative Agent may act at its discretion, the Administrative Agent may not take any of thefollowing actions (nor may the Lenders or the Voting Participants take the action described in
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Subsection 14.8(a)(iii)) with respect to, or under, the Loan Documents without the prior writtenconsent, given after notification by the Administrative Agent of its intention to take any suchaction (or notification by such Lenders as are proposing the action described in Subsection14.8(a)(iii) of their intention to do so), of:     (a) Unanimous. Each of the Lenders and Voting Participants before:     (i) Agreeing to an increase in the Aggregate Revolving Commitment or anextension of the Availability Period or the Maturity Date;     (ii) Agreeing to a reduction in the amount, or to a delay in the due date, ofany payment by Borrower of interest, principal, or fees with respect to the Loans;provided, however, this restriction shall not apply to a delay in payment ofinterest or fees granted by the Administrative Agent in the ordinary course ofadministration of the Loans and the exercise of reasonable judgment, so long as suchpayment delay does not exceed five (5) days; or     (iii) Amending the definition of “Required Lenders” any provision set forth inthis Subsection 14.8(a); or     (iv) Agreeing to waive any material provisions of this Credit Agreement or anyof the other Loan Documents.     (b) Required Lenders. The Required Lenders before:     (i) Consenting to any action, amendment, or granting any waiver with respect tothe Loans or the other Obligations not covered in Subsection 14.8(a) or (c); or     (ii) Agreeing to amend Article 14 of this Credit Agreement (other thanSubsection 14.8(a)(iii)).     (c) Action Without Vote. Notwithstanding any other provisions of this Section,the Administrative Agent may take the following action without obtaining the consent of theLenders or the Voting Participants:     (i) Determining (x) whether the conditions to an Advance have been met, and (y)the amount of such Advance;     (ii) Determining (x) whether the conditions to the issuance of a Letter ofCredit have been met, and (y) the amount of such Letter of Credit.If no written consent or denial is received from a Lender within five (5) Banking Days afterwritten notice of any proposed action as described in this Section is delivered to such Lender bythe Administrative Agent, such Lender shall be conclusively deemed to have consented thereto forthe purposes of this Section. Notwithstanding any other provision of this Section 14.8, any FeeLetter may be amended by the agreement of the parties thereto.
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     14.9 Distribution of Principal and Interest. The Administrative Agent will receive andaccept all payments (including prepayments) of principal and interest made by Borrower on the Loansand the Notes and will hold all such payments in trust for the benefit of all present and futureLenders, and, if requested in writing by the Required Lenders, in an account segregated from theAdministrative Agent’s other funds and accounts (“**Payment Account**”). After the receipt by theAdministrative Agent of any payment representing interest or principal on the Loans, theAdministrative Agent shall remit to each Lender its share of such payment as provided in Article 5hereof (“**Payment Distribution**”) no later than the same Banking Day as such payment is received bythe Administrative Agent if received no later than 11:00 A.M. (Eastern Time) or the next BankingDay if received by the Administrative Agent thereafter. Any Lender’s rights to its PaymentDistribution shall be subject to the rights of any Contributing Lenders to such amounts as setforth in Section 14.3 hereof.     14.10 Distribution of Certain Amounts. The Administrative Agent shall (a) receive andhold in trust for the benefit of all present and future Lenders, in the Payment Account and, ifrequested in writing by the Required Lenders, segregated from the Administrative Agent’s otherfunds and accounts and (b) shall remit to each Lender the amount of any Funding Losses paid byBorrower to the Administrative Agent in connection with a prepayment of any portion of a LIBO RateLoan, in accordance with the Funding Loss Notice such Lender provided to the Administrative Agent,no later than the same Banking Day that payment of such Funding Losses is received by theAdministrative Agent, if received no later than 11:00 A.M. (Eastern Time), or the next Banking Dayif received by the Administrative Agent thereafter.     14.11 Possession of Loan Documents. The Loan Documents (other than the Notes) shall beheld by the Administrative Agent in its name, for the ratable benefit of itself and the otherLenders without preference or priority.     14.12 Collateral Application. The Lenders shall have no interest in any other loansmade to Borrower by any other Lender other than the Loans, or in any property taken as security forany other loan or loans made to Borrower by any other Lender, or in any property now or hereinafterin the possession or control of any other Lender, which may be or become security for the Loanssolely by reason of the provisions of a security instrument that would cause such securityinstrument and the property covered thereby to secure generally all indebtedness owing by Borrowerto such other Lender. Notwithstanding the foregoing, to the extent such other Lender applies suchfunds or the proceeds of such property to reduction of the Loans, such other Lender shall sharesuch funds or proceeds with all Lenders according to their respective Individual Pro Rata Shares.In the event that any Lender shall obtain payment, whether partial or full, from any source inrespect of the Loans, including without limitation payment by reason of the exercise of a right ofoffset, banker’s lien, general lien, or counterclaim, such Lender shall promptly make suchadjustments (which may include payment in cash or the purchase of further syndications orparticipations in the Loans) to the end that such excess payment shall be shared with all otherLenders in accordance with their respective Individual Commitments. Notwithstanding any of theforegoing provisions of this Section or Article 7 hereof, no Lender other than CoBank shall haveany right to, or to the proceeds of, or any right to the application to any amount owing to suchLender hereunder of any the proceeds of, any CoBank Equities issued to Borrower by CoBank or onaccount of any statutory lien held by CoBank on such CoBank Equities.
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     14.13 Amounts Required to be Returned. If the Administrative Agent makes any paymentto a Lender in anticipation of the receipt of final funds from Borrower, and such funds are notreceived from Borrower, or if excess funds are paid by the Administrative Agent to any Lender asthe result of a miscalculation by the Administrative Agent, then Lender shall, on demand of theAdministrative Agent, forthwith return to the Administrative Agent any such amounts, plus interestthereon (from theday such amounts were transferred by the Administrative Agent to the Lender to, but notincluding, the day such amounts are returned by Lender) at a rate per annum equal to the customaryrate set by the Administrative Agent for the correction of errors among banks for three (3) BankingDays and thereafter at the Base Rate. If the Administrative Agent is required at any time to returnto Borrower or a trustee, receiver, liquidator, custodian, or similar official any portion of thepayments made by Borrower to the Administrative Agent, whether pursuant to any bankruptcy orinsolvency law or otherwise, then each Lender shall, on demand of the Administrative Agent,forthwith return to the Administrative Agent any such payments transferred to such Lender by theAdministrative Agent but without interest or penalty (unless the Administrative Agent is requiredto pay interest or penalty on such amounts to the person recovering such payments).     14.14 Reports and Information to Lenders. The Administrative Agent shall usereasonable efforts to provide to Lenders, as soon as practicable after actual knowledge thereof isacquired by an officer thereof primarily responsible for the Administrative Agent’s duties as suchwith respect to the Loans or primarily responsible for the credit relationship between theAdministrative Agent and Borrower, any material factual information which has a material adverseeffect on the creditworthiness of Borrower, and Borrower hereby authorizes such disclosure by theAdministrative Agent to the Lenders (and by the Lenders to any of their participants). Failure ofthe Administrative Agent to provide the information referred to in this Section or in Subsection14.6(d) hereof shall not result in any liability upon, or right to make a claim against, theAdministrative Agent except where a court of competent jurisdiction renders a final non-appealabledetermination that such failure is a result of the willful misconduct or gross negligence of theAdministrative Agent. Lenders acknowledge and agree that all information and reports receivedpursuant to this Credit Agreement will be received in confidence in connection with theirSyndication Interest, and that such information and reports constitute confidential information andshall not, without the prior written consent of the Administrative Agent or Borrower, asapplicable, be (x) disclosed to any third party (other than the Administrative Agent, anotherLender or potential Lender, or a participant or potential participant in the interest of a Lender,which disclosure is hereby approved by Borrower), except pursuant to appropriate legal orregulatory process, or (y) used by the Lender except in connection with the Loans and itsSyndication Interest.     14.15 Standard of Care. The Administrative Agent shall not be liable to Lenders forany error in judgment or for any action taken or not taken by the Administrative Agent or itsagents, except for its gross negligence or willful misconduct as determined by a final,non-appealable judgment of a court of competent jurisdiction. The Administrative Agent may rely onthe advice of counsel concerning legal matters and on any written document it believes to begenuine and correct and to have been signed or sent by the proper Person or Persons.     14.16 No Trust Relationship. Neither the execution of this Credit Agreement, nor thesharing in the Loans, nor the holding of the Loan Documents in its name by the Administrative
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Agent, nor the management and administration of the Loans and Loan Documents by the AdministrativeAgent (including the obligation to hold certain payments and proceeds in the Payment Account intrust for the Lenders), nor any other right, duty or obligation of the Administrative Agent underor pursuant to this Credit Agreementis intended to be or create, and none of the foregoing shall be construed to be or create, anyexpress, implied or constructive trust relationship between the Administrative Agent and anyLender. Each Lender hereby agrees and stipulates that the Administrative Agent is not acting astrustee for such Lender with respect to the Loans, this Credit Agreement, or any aspect of either,or in any other respect.     14.17 Sharing of Costs and Expenses. To the extent not paid by Borrower, each Lenderwill promptly upon demand reimburse the Administrative Agent for its proportionate share (based onits Individual Pro Rata Share), for all reasonable costs, disbursements, and expenses incurred bythe Administrative Agent on or after the date of this Credit Agreement for legal, accounting,consulting, and other services rendered to the Administrative Agent in its role as theAdministrative Agent in the administration of the Loans, interpreting the Loan Documents, andprotecting, enforcing, or otherwise exercising any rights, both before and after default byBorrower under the Loan Documents, and including, without limitation, all costs and expensesincurred in connection with any bankruptcy proceedings; provided, however, that the costs andexpenses to be shared in accordance with this Section shall not include any costs or expensesincurred by the Administrative Agent solely as a Lender in connection with the Loans, nor to theAdministrative Agent’s internal costs and expenses.     14.18 Lenders’ Indemnification of the Administrative Agent. Each of the Lenders agreeto indemnify the Administrative Agent, including any Successor Agent, and their respectivedirectors, officers, employees, agents, professional advisers and representatives (“**IndemnifiedAgency Parties**”), to the extent not reimbursed by Borrower, and without in any way limiting theobligation of Borrower to do so, ratably based on its Individual Pro Rata Share, from and againstany and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,expenses or disbursements of any kind whatsoever which may at any time (including, withoutlimitation, at any time following the payment of the Loans and/or the expiration or termination ofthis Credit Agreement) be imposed on, incurred by or asserted against the Administrative Agent (orany of the Indemnified Agency Parties while acting for the Administrative Agent or for anySuccessor Agent) in any way relating to or arising out of this Credit Agreement or the LoanDocuments, or the performance of the duties of the Administrative Agent hereunder or thereunder orany action taken or omitted while acting in the capacity of the Administrative Agent under or inconnection with any of the foregoing; provided that the Lenders shall not be liable for the paymentof any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,suits, costs, expenses or disbursements of an Indemnified Agency Party to the extent that any ofthe forgoing result from the gross negligence or willful misconduct of that Indemnified AgencyParty as determined by a final, non-appealable judgment of a court of competent jurisdiction. Theagreements and obligations in this Section shall survive the payment of the Loans and theexpiration or termination of this Credit Agreement.     14.19 Books and Records. The Administrative Agent shall maintain such books of accountand records relating to the Loans as it maintains with respect to other loans of similar type andamount, and which shall clearly and accurately reflect the Syndication Interest of each
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Lender. Lenders, or their agents, may inspect such books of account and records at allreasonable times during the Administrative Agent’s regular business hours.     14.20 Administrative Agent Fee. CoBank and any Successor Agent shall be entitled tothe Administrative Agent Fee for acting as the Administrative Agent. In the event the SuccessorAgent is contractually entitled to an additional fee, each Lender will be responsible for itsproportionate share (based on its Individual Pro Rata Share) thereof.     14.21 The Administrative Agent’s Resignation or Removal. The Administrative Agent mayresign at any time by giving at least sixty (60) days’ prior written notice of its intention to doso to each of the Lenders and Borrower. After the receipt of such notice, the Required Lendersshall appoint a successor (“**Successor Agent**”). If (a) no Successor Agent shall have been soappointed which is either (i) a Lender, or (ii) if not a Lender, which is a Person approved byBorrower, such approval not to be unreasonably withheld (provided that Borrower shall have noapproval rights upon the occurrence and during the continuance of an Event of Default), or (b) ifsuch Successor Agent has not accepted such appointment, in either case within forty-five (45) daysafter the retiring Administrative Agent’s giving of such notice of resignation, then the retiringAdministrative Agent may, after consulting with, but without requiring the approval of, Borrower,appoint a Successor Agent which shall be a bank or a trust company organized under the laws of theUnited States of America or any state thereof and having a combined capital, surplus and undividedprofit of at least $250,000,000. Any Administrative Agent may be removed upon the written demand ofthe Required Lenders, which demand shall also appoint a Successor Agent. Upon the appointment of aSuccessor Agent hereunder, (x) the term “Administrative Agent” shall for all purposes of thisCredit Agreement thereafter mean such Successor Agent, and (y) the Successor Agent shall notifyBorrower of its identity and of the information called for in Subsection 15.4(b) hereof. After anyretiring Administrative Agent’s resignation hereunder as the Administrative Agent, or the removalhereunder of any Administrative Agent, the provisions of this Credit Agreement shall continue toinure to the benefit of such Administrative Agent as to any actions taken or omitted to be taken byit while it was the Administrative Agent under this Credit Agreement.     14.22 Representations and Warranties of All Parties. The Administrative Agent and eachLender represents and warrants that: (a) the execution and delivery of, and performance of itsobligations under, this Credit Agreement is within its power and has been duly authorized by allnecessary corporate and other action by it; (b) this Credit Agreement is in compliance with allapplicable laws and regulations promulgated under such laws and does not conflict with norconstitute a breach of its charter or bylaws nor any agreements by which it is bound, and does notviolate any judgment, decree or governmental or administrative order, rule or regulation applicableto it; (c) no approval, authorization or other action by, or declaration to or filing with, anygovernmental or administrative authority or any other Person is required to be obtained or made byit in connection with the execution and delivery of, and performance of its obligations under, thisCredit Agreement; and (d) this Credit Agreement has been duly executed by it, and constitutes thelegal, valid, and binding obligation of such Person, enforceable in accordance with its terms,except as such enforceability may be limited by applicable bankruptcy,insolvency, reorganization, moratorium or other similar laws affecting the rights of creditorsgenerally and general equitable principles (regardless of whether such enforceability is consideredin a proceeding at law or in equity). Each Lender that is a state or national bank
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represents andwarrants that the act of entering into and performing its obligations under this Credit Agreementhas been approved by its board of directors or its loan committee and such action was duly noted inthe written minutes of the meeting of such board or committee, and that it will furnish theAdministrative Agent with a certified copy of such minutes or an excerpt therefrom reflecting suchapproval.     14.23 Lenders’ Independent Credit Analysis. Each Lender acknowledges receipt of trueand correct copies of all Loan Documents (other than any Note payable to another Lender) from theAdministrative Agent. Each Lender agrees and represents that it has relied upon its independentreview (a) of the Loan Documents, and (b) any information independently acquired by such Lenderfrom Borrower or otherwise in making its decision to acquire an interest in the Loans independentlyand without reliance on the Administrative Agent. Each Lender represents and warrants that it hasobtained such information as it deems necessary (including any information such Lenderindependently obtained from Borrower or others) prior to making its decision to acquire an interestin the Loans. Each Lender further agrees and represents that it has made its own independentanalysis and appraisal of an investigation into each Borrower’s authority, business, operations,financial and other condition, creditworthiness, and ability to perform its obligations under theLoan Documents and has relied on such review in making its decision to acquire an interest in theLoans. Each Lender agrees that it will continue to rely solely upon its independent review of thefacts and circumstances related to Borrower, and without reliance upon the Administrative Agent, inmaking future decisions with respect to all matters under or in connection with the Loan Documentsand the Loans. The Administrative Agent assumes no responsibility for the financial condition ofBorrower or for the performance of Borrower’s obligations under the Loan Documents. Except asotherwise expressly provided herein, no Lender shall have any duty or responsibility to furnish toany other Lenders any credit or other information concerning Borrower which may come into itspossession.     14.24 No Joint Venture or Partnership. Neither the execution of this Credit Agreement,the sharing in the Loans, nor any agreement to share in payments or losses arising as a result ofthis transaction is intended to be or to create, and the foregoing shall not be construed to be,any partnership, joint venture or other joint enterprise between the Administrative Agent and anyLender, nor between or among any of the Lenders.     14.25 Purchase for Own Account; Restrictions on Transfer; Participations. Each Lenderother than CoBank represents that it has acquired and is retaining its interest in the Loans forits own account in the ordinary course of its banking or financing business and not with a viewtoward the sale, distribution, further participation, or transfer thereof. Each Lender other thanCoBank agrees that it will not sell, assign, convey or otherwise dispose of (“**Transfer**”) to anyPerson, or create or permit to exist any Lien on all or any part of its interest in the Loans,without the prior written consent of the Administrative Agent and Borrower, which consent will notbe unreasonably withheld (provided that Borrower shall have no approval rights upon theoccurrence and during the continuance of an Event of Default); provided that: (a) any suchTransfer except a Transfer to another Lender or a Transfer by CoBank must be in a minimum amount of$5,000,000; (b) each Lender must maintain an Individual Commitment of no less than $5,000,000,unless it Transfers its entire Syndication Interest; (c) the transferee must execute an Assignmentand Assumption and assume all of the transferor’s obligations hereunder and execute such documentsas the Administrative Agent may reasonably require; and (d) the Lender
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making such Transfer mustpay the Administrative Agent an assignment fee of $3,500. Any Lender may participate any part ofits interest in the Loans to any Person with the prior written consent of the Administrative Agentand Borrower, which consent will not be unreasonably withheld (provided that Borrower shall have noapproval rights upon the occurrence and during the continuance of an Event of Default), providedthat no such consent shall be required where the participant is a Person at least fifty percent(50%) the equity interest in which is owned by such Lender or which owns at least fifty percent(50%) of the equity interest in such Lender or at least fifty percent (50%) of the equity interestof which is owned by the same Person which owns at least fifty percent (50%) of the equity interestof such Lender, and each Lender understands and agrees that in the event of any such participation:(x) its obligations hereunder will not change on account of such participation; (y) except asprovided in Section 14.26 hereof, the participant will have no rights under this Credit Agreement,including, without limitation, voting rights or the right to receive payments or distributions; and(z) the Administrative Agent shall continue to deal directly with the Lender with respect to theLoans (including with respect to voting rights) as though no participation had been granted andwill not be obligated to deal directly with any participant. Notwithstanding any provisioncontained herein to the contrary, any Lender may at any time pledge or assign all or any portion ofits interest in the Loans to any Federal Reserve Bank or the Federal Farm Credit. Bank inaccordance with applicable law. CoBank reserves the right to sell participations on a non-patronagebasis.     14.26 Certain Participants’ Voting Rights. Notwithstanding anything in Section 14.25to the contrary, any Farm Credit Lender that (i) is the owner of a participation in an IndividualCommitment (including Advances outstanding thereunder) initially in the amount of at least$5,000,000; (ii) is, by written notice to Borrower and the Administrative Agent (a “**VotingParticipant Notification**”), designated by the selling Lender as being entitled to be accorded therights of a voting participant hereunder (any Farm Credit Lender so designated being called a“**Voting Participant**”); and (iii) receives the prior written consent of Borrower (unless an Event ofDefault has occurred and is continuing) and the Administrative Agent to become a VotingParticipant, shall be entitled to vote for so long as such Farm Credit Lender owns suchparticipation and notwithstanding any subparticipation by such Farm Credit Lender (and the votingrights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as ifsuch Voting Participant were a Lender, on any matter requiring or allowing a Lender to provide orwithhold its consent, or to otherwise vote on any proposed action. To be effective, each VotingParticipant Notification shall, with respect to any Voting Participant, (A) state the full name, aswell as all contact information required for an assignee in the Assignment and Assumption; and (B)state the dollar amount of the participation purchased. The selling Lender and the VotingParticipant shall notify the Administrative Agent and Borrower within three (3) Banking Days of anytermination of, reduction or increase in the amount of, such participation. Borrower and theAdministrative Agent shall be entitled to conclusively rely on information contained in noticesdelivered pursuant to this subsection 14.26.The voting rights hereunder are solely for the benefit of the Voting Participants and shallnot inure to any assignee or participant of a Voting Participant.     14.27 Method of Making Payments. Payment and transfer of all amounts owing or to bepaid or remitted hereunder, including, without limitation, payment of the Advance Payment byLenders, and distribution of principal or interest payments or fees or other amounts by the
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Administrative Agent, shall be by wire transfer in accordance with the instructions contained onExhibit 14.27 hereto (“**Wire Instructions**”).     14.28 Replacement of Non-Consenting Lenders and Delinquent Lenders. If any Lender (a“**Non-Consenting Lender**”) refuses to consent to an amendment to or waiver of any Loan Document orprovision thereof, which amendment or waiver requires unanimous consent of all the Lenders in orderto be effective, or if any Lender is a Delinquent Lender, then the Administrative Agent may orBorrower may (but neither shall be obligated to), upon notice to the Non-Consenting Lender orDelinquent Lender (and the Administrative Agent, if applicable), require the Non-Consenting Lenderor Delinquent Lender to assign and delegate, without recourse (in accordance with and subject tothe restrictions contained in Section 14.25) all of its interests, rights, duties and obligationsunder this Agreement and the Loan Documents to another Person that shall assume such obligations(which assignee may be a Lender, if a Lender accepts such assignment); provided that:     (i) if it is an assignment at the request of Borrower, Borrower shall have received theprior written consent of the Administrative Agent and the Letter of Credit Bank, whichconsents shall not be unreasonably withheld,     (j) if it is an assignment at the request of the Administrative Agent and there is noEvent of Default, Borrower and the Letter of Credit Bank shall have consented to suchassignment, which consents shall not be unreasonably withheld,     (k) in the case of a Non-Consenting Lender, the interests, rights, duties andobligations of all Non-Consenting Lenders are similarly assigned to other Persons, and     (l) the Non-Consenting Lender or Delinquent Lender shall have received payment of anamount equal to the outstanding principal of its Loans, accrued interest thereon, accruedfees and all other amounts payable to it hereunder and under the other Loan Documents, fromits assignee (to the extent of such outstanding principal, accrued interest and accruedfees) or Borrower (in the case of all other amounts).     14.29 Withholding Taxes.     (m) Payments Free of Taxes. Any and all payments by or on account of anyobligation of Borrower hereunder or under any other Loan Document shall be made free andclear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,provided that if Borrower shall be required by applicable law to deduct any IndemnifiedTaxes (including any Other Taxes) from such payments, then (i) the sum payable shall beincreased as necessary so that after making all required deductions (including deductionsapplicable to additional sums payable under this Section) theLender entitled thereto receives an amount equal to the sum it would have received hadno such deductions been made, (ii) Borrower shall make such deductions, and (iii) Borrowershall timely pay the full amount deducted to the relevant Governmental Authority inaccordance with applicable law.
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     (n) Payment of Other Taxes by Borrower. Without limiting the provisions ofparagraph (m) above, Borrower shall timely pay any Other Taxes to the relevant GovernmentalAuthority in accordance with applicable law.     (o) Indemnification by Borrower. Borrower shall indemnify each Lender within 10Banking Days after demand therefor, for the full amount of any Indemnified Taxes or OtherTaxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable toamounts payable under this Section) paid by such Lender, and any penalties, interest andreasonable expenses arising therefrom or with respect thereto, whether or not suchIndemnified Taxes or Other Taxes were correctly or legally imposed or asserted by therelevant Governmental Authority. A certificate as to the amount of such payment or liabilitydelivered to Borrower by a Lender (with a copy to the Administrative Agent) shall beconclusive absent manifest error.     (p) Evidence of Payments. As soon as practicable after any payment ofIndemnified Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shalldeliver to the Administrative Agent the original or a certified copy of a receipt issued bysuch Governmental Authority evidencing such payment, a copy of the return reporting suchpayment or other evidence of such payment reasonably satisfactory to the AdministrativeAgent.     (q) Status of Lenders. Any Foreign Lender that is entitled to an exemption fromor reduction of withholding tax under the law of the jurisdiction in which Borrower isresident for tax purposes, or any treaty to which such jurisdiction is a party, with respectto payments hereunder or under any other Loan Document shall deliver to Borrower (with acopy to the Administrative Agent), at the time or times prescribed by applicable law orreasonably requested by Borrower or the Administrative Agent, such properly completed andexecuted documentation prescribed by applicable law as will permit such payments to be madewithout withholding or at a reduced rate of withholding. In addition, any Lender, ifrequested by Borrower or the Administrative Agent, shall deliver such other documentationprescribed by applicable law or reasonably requested by Borrower or the Administrative Agentas will enable Borrower or the Administrative Agent to determine whether or not such Lenderis subject to backup withholding or information reporting requirements.     (r) Treatment of Certain Refunds. If any Lender determines, in its solediscretion, that it has received a refund of any Taxes or Other Taxes as to which it hasbeen indemnified by Borrower or with respect to which Borrower has paid additional amountspursuant to this Section, it shall pay to Borrower an amount equal to such refund (but onlyto the extent of indemnity payments made, or additional amounts paid, by Borrower under thisSection with respect to the Taxes or Other Taxes giving rise to such refund), net of allout-of-pocket expenses of such Lender and without interest (other thanany interest paid by the relevant Governmental Authority with respect to such refund),provided that Borrower, upon the request of a Lender will repay the amount paid over toBorrower (plus any penalties, interest or other charges imposed by the relevant GovernmentalAuthority) to such Lender in the event such Lender is required to repay such refund to suchGovernmental Authority. This paragraph shall not be construed to
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require any Lender to makeavailable its tax returns (or any other information relating to its taxes that it deemsconfidential) to Borrower or any other Person.     14.30 Amendments Concerning Agency Function. The Administrative Agent shall not bebound by any waiver, amendment, supplement or modification of this Credit Agreement or any otherLoan Document which affects its duties hereunder or thereunder unless it shall have given its priorwritten consent thereto.     14.31 Further Assurances. The Administrative Agent and each Lender agree to takewhatever steps and execute such documents as may be reasonable and necessary to implement thisArticle 14 and to carry out fully the intent thereof.**ARTICLE 15. MISCELLANEOUS**     15.1 Costs and Expenses. To the extent permitted by law, Borrower agrees to pay to theAdministrative Agent, the Letter of Credit Bank and the Lenders, on demand, all reasonableout-of-pocket costs and expenses (a) incurred by the Administrative Agent (including, withoutlimitation, the reasonable fees and expenses of counsel retained by the Administrative Agent, andincluding fees and expenses incurred for consulting, appraisal, engineering, inspection, andenvironmental assessment services) in connection with the preparation, negotiation, execution,delivery and administration (including without limitation processing the Borrowing Notices) of thisCredit Agreement and the other Loan Documents and the transactions contemplated hereby and thereby,and any amendments, modifications or waivers of the provisions hereof or thereof; and (b) incurredby the Administrative Agent, the Letter of Credit bank or any Lender (including, withoutlimitation, the reasonable fees and expenses of counsel retained by the Administrative Agent, theLetter of Credit Bank and the Lenders) in connection with the enforcement or protection of the itsrights under the Loan Documents upon the occurrence of an Event of Default, upon the commencementof an action by Borrower against the Administrative Agent, the Letter of Credit Bank or any Lender,including without limitation collection of the Loans (regardless of whether such enforcement orcollection is by court action or otherwise), and in connection with any workout, restructuring ornegotiations in respect of the Obligations. Borrower shall not be obligated to pay the costs orexpenses of any Person whose only interest in the Loans is as a holder of a participation interest.     15.2 Service of Process and Consent to Jurisdiction. Borrower hereby agrees that anylitigation with respect to this Credit Agreement or the other Loan Documents or to enforce anyjudgment obtained against Borrower for breach of any Loan Document shall be brought in a state orfederal court sitting in Denver, Colorado, as the Administrative Agent may elect; and, by executionand delivery of this Credit Agreement, Borrower irrevocably submits to such jurisdiction. Withrespect to litigationconcerning this Credit Agreement or under the Notes or other Loan Documents within thejurisdiction of a state or federal court sitting in Denver, Colorado, Borrower hereby irrevocablyappoints, until six (6) months after the expiration of the Maturity Date (as it may be extended atanytime), a Person, such as The Corporation Company, with offices in Denver, Colorado and otherwisereasonably acceptable to the Administrative Agent to serve as the agent of Borrower to receive forand on behalf of Borrower at such agent’s Denver, Colorado office, service of process, whichservice may be made by mailing a copy of any summons or other legal process to Borrower in care ofsuch agent. Borrower agrees that
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Borrower shall maintain a duly appointed agent in Colorado forservice of summons and other legal process as long as Borrower remains obligated under this CreditAgreement and shall keep the Administrative Agent advised in writing of the identity and locationof such agent. The receipt by such agent and/or by Borrower of such summons or other legal processin any such litigation shall be deemed personal service and acceptance by Borrower for all purposesof such litigation.     15.3 Jury Waiver. IT IS MUTUALLY AGREED BY AND AMONG THE ADMINISTRATIVE AGENT, THELETTER OF CREDIT BANK, EACH LENDER AND BORROWER THAT THEY EACH IRREVOCABLY WAIVE TRIAL BY JURY INANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS CREDITAGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY INSTRUMENTS OR DOCUMENTS DELIVERED THEREUNDER.     15.4 Notices. All notices, requests and demands required or permitted under the termsof this Credit Agreement or any other Loan Document shall be in writing and (a) shall be addressedas set forth below or at such other address as either party shall designate in writing, (b) shallbe effective (i) when received, if sent by facsimile, email transmission, hand delivery orovernight courier; or (ii) three Banking Days after the date when sent by registered or certifiedmail, postage prepaid.     (a) Borrower:National Cooperative Refinery Association