Tri_State_Exhibit_10_1



		

			Exhibit 10.1

		


		

			Execution Copy

		





		
			 
		

		
			 
		

		
			Published CUSIP Number:
		

		
			CREDIT AGREEMENT

Dated as of April 25, 2018

among

TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.,
as the Borrower,

The LENDERS Party Hereto,

and

NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION,
as Administrative Agent, Sole Lead Arranger and Sole Bookrunner,
Swing Line Lender, and an L/C Issuer,

and

U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agent and an L/C Issuer,

and

MUFG BANK, LTD.,
as Co-Documentation Agent
		

		
			 
		

		
			 
		

		
			 
		

		
			


		 


		

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			TABLE OF CONTENTS
		

			
					
						 

					
					
						 

					
					
						 

				
	
					
						Section

					
					
						 

					
					
						Page

				
	
					
						CREDIT AGREEMENT

					
1
				
	
					
						ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS

					
1
				
	
					
						1.01

					
					
						Defined Terms

					
1
				
	
					
						1.02

					
					
						Other Interpretive Provisions

					
23
				
	
					
						1.03

					
					
						Accounting Terms

					
24
				
	
					
						1.04

					
					
						Rounding

					
25
				
	
					
						1.05

					
					
						Times of Day

					
25
				
	
					
						1.06

					
					
						Letter of Credit Amounts

					
25
				
	
					
						ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS

					
25
				
	
					
						2.01

					
					
						Committed Loans

					
25
				
	
					
						2.02

					
					
						Borrowings, Conversions and Continuations of Committed Loans

					
26
				
	
					
						2.03

					
					
						Letters of Credit.

					
27
				
	
					
						2.04

					
					
						Swing Line Loans.

					
37
				
	
					
						2.05

					
					
						Prepayments.

					
40
				
	
					
						2.06

					
					
						Termination or Reduction of Commitments

					
41
				
	
					
						2.07

					
					
						Repayment of Loans.

					
42
				
	
					
						2.08

					
					
						Interest.

					
42
				
	
					
						2.09

					
					
						Fees

					
43
				
	
					
						2.10

					
					
						Computation of Interest and Fees

					
43
				
	
					
						2.11

					
					
						Evidence of Debt

					
43
				
	
					
						2.12

					
					
						Payments Generally; Administrative Agent’s Clawback

					
44
				
	
					
						2.13

					
					
						Sharing of Payments by Lenders

					
46
				
	
					
						2.14

					
					
						Increase in Commitments

					
46
				
	
					
						2.15

					
					
						Cash Collateral.

					
48
				
	
					
						2.16

					
					
						Defaulting Lenders.

					
49
				
	
					
						2.17

					
					
						Extension of Maturity Date.

					
51
				
	
					
						2.18

					
					
						CoBank Equities.

					
53
				
	
					
						ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY

					
53
				
	
					
						3.01

					
					
						Taxes.

					
53
				
	
					
						3.02

					
					
						Illegality

					
57
				




		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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						3.03

					
					
						Inability to Determine Rates

					
58
				
	
					
						3.04

					
					
						Increased Costs.

					
59
				
	
					
						3.05

					
					
						Compensation for Losses

					
60
				
	
					
						3.06

					
					
						Mitigation Obligations; Replacement of Lenders.

					
61
				
	
					
						3.07

					
					
						Survival

					
62
				
	
					
						ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

					
62
				
	
					
						4.01

					
					
						Conditions of Initial Credit Extension

					
62
				
	
					
						4.02

					
					
						Conditions to all Credit Extensions

					
65
				
	
					
						ARTICLE V. REPRESENTATIONS AND WARRANTIES

					
65
				
	
					
						5.01

					
					
						Existence, Qualification and Power; Compliance with Laws

					
65
				
	
					
						5.02

					
					
						Authorization; No Contravention

					
66
				
	
					
						5.03

					
					
						Governmental Authorization; Other Consents

					
66
				
	
					
						5.04

					
					
						Binding Effect

					
66
				
	
					
						5.05

					
					
						Financial Statements; No Material Adverse Effect.

					
66
				
	
					
						5.06

					
					
						Litigation

					
67
				
	
					
						5.07

					
					
						No Default

					
67
				
	
					
						5.08

					
					
						Ownership of Property; Liens

					
67
				
	
					
						5.09

					
					
						Maintenance of Properties

					
67
				
	
					
						5.10

					
					
						Environmental Compliance

					
67
				
	
					
						5.11

					
					
						Insurance

					
68
				
	
					
						5.12

					
					
						Taxes

					
68
				
	
					
						5.13

					
					
						ERISA Compliance.

					
68
				
	
					
						5.14

					
					
						Subsidiaries; Equity Interests

					
69
				
	
					
						5.15

					
					
						Margin Regulations; Investment Company Act.

					
70
				
	
					
						5.16

					
					
						Disclosure

					
70
				
	
					
						5.17

					
					
						Compliance with Laws

					
70
				
	
					
						5.18

					
					
						Taxpayer Identification Number

					
70
				
	
					
						5.19

					
					
						Intellectual Property; Licenses, Etc

					
70
				
	
					
						5.20

					
					
						Material Agreements and Liens.

					
71
				
	
					
						5.21

					
					
						Solvency

					
71
				
	
					
						5.22

					
					
						Wholesale Power Contracts

					
71
				
	
					
						5.23

					
					
						Reserved.

					
72
				
	
					
						5.24

					
					
						Indenture and Supplements

					
72
				




		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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						5.25

					
					
						Collateral Documents

					
72
				
	
					
						5.26

					
					
						OFAC; Anti-Terrorism Laws.

					
73
				
	
					
						5.27

					
					
						EEA Financial Institutions

					
73
				
	
					
						ARTICLE VI. AFFIRMATIVE COVENANTS

					
73
				
	
					
						6.01

					
					
						Financial Statements

					
73
				
	
					
						6.02

					
					
						Certificates; Other Information

					
74
				
	
					
						6.03

					
					
						Notices

					
75
				
	
					
						6.04

					
					
						Payment of Obligations

					
76
				
	
					
						6.05

					
					
						Preservation of Existence, Etc

					
76
				
	
					
						6.06

					
					
						Maintenance of Properties

					
77
				
	
					
						6.07

					
					
						Maintenance of Insurance

					
77
				
	
					
						6.08

					
					
						Compliance with Laws

					
77
				
	
					
						6.09

					
					
						Compliance with Indenture and Wholesale Power Contracts

					
77
				
	
					
						6.10

					
					
						Books and Records

					
77
				
	
					
						6.11

					
					
						Inspection Rights

					
77
				
	
					
						6.12

					
					
						Use of Proceeds

					
78
				
	
					
						6.13

					
					
						Preparation of Environmental Reports

					
78
				
	
					
						6.14

					
					
						Restricted Subsidiaries.

					
78
				
	
					
						6.15

					
					
						CoBank Equities

					
78
				
	
					
						6.16

					
					
						Evidence of Financing Statements, etc.

					
78
				
	
					
						6.17

					
					
						OFAC; Patriot Act Compliance

					
79
				
	
					
						6.18

					
					
						Further Assurances

					
79
				
	
					
						ARTICLE VII. NEGATIVE COVENANTS

					
79
				
	
					
						7.01

					
					
						Liens

					
79
				
	
					
						7.02

					
					
						Investments

					
79
				
	
					
						7.03

					
					
						Indebtedness

					
80
				
	
					
						7.04

					
					
						Fundamental Changes

					
80
				
	
					
						7.05

					
					
						Dispositions

					
80
				
	
					
						7.06

					
					
						Restricted Payments

					
80
				
	
					
						7.07

					
					
						Change in Nature of Business

					
80
				
	
					
						7.08

					
					
						Wholesale Power Contracts, Organization Documents.

					
80
				
	
					
						7.09

					
					
						Transactions with Affiliates

					
81
				
	
					
						7.10

					
					
						Restrictive Agreements

					
81
				




		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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						7.11

					
					
						Use of Proceeds

					
81
				
	
					
						7.12

					
					
						Changes in Accounting Policies, Fiscal Periods.

					
81
				
	
					
						7.13

					
					
						Financial Covenants

					
81
				
	
					
						7.14

					
					
						Sanctions

					
82
				
	
					
						ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES

					
82
				
	
					
						8.01

					
					
						Events of Default

					
82
				
	
					
						8.02

					
					
						Remedies Upon Event of Default

					
84
				
	
					
						8.03

					
					
						Application of Funds

					
85
				
	
					
						ARTICLE IX. ADMINISTRATIVE AGENT

					
86
				
	
					
						9.01

					
					
						Appointment and Authority

					
86
				
	
					
						9.02

					
					
						Rights as a Lender

					
86
				
	
					
						9.03

					
					
						Exculpatory Provisions

					
86
				
	
					
						9.04

					
					
						Reliance by Administrative Agent

					
87
				
	
					
						9.05

					
					
						Delegation of Duties

					
88
				
	
					
						9.06

					
					
						Resignation and Removal of Administrative Agent

					
88
				
	
					
						9.07

					
					
						Non-Reliance on Administrative Agent and Other Lenders

					
89
				
	
					
						9.08

					
					
						No Other Duties, Etc

					
89
				
	
					
						9.09

					
					
						Administrative Agent May File Proofs of Claim

					
89
				
	
					
						9.10

					
					
						Administrative Agent to Hold Note

					
90
				
	
					
						9.11

					
					
						Lender Representations Regarding ERISA

					
90
				
	
					
						ARTICLE X. MISCELLANEOUS

					
92
				
	
					
						10.01

					
					
						Amendments, Etc

					
92
				
	
					
						10.02

					
					
						Notices; Effectiveness; Electronic Communication.

					
94
				
	
					
						10.03

					
					
						No Waiver; Cumulative Remedies; Enforcement

					
96
				
	
					
						10.04

					
					
						Expenses; Indemnity; Damage Waiver.

					
96
				
	
					
						10.05

					
					
						Payments Set Aside

					
98
				
	
					
						10.06

					
					
						Successors and Assigns.

					
99
				
	
					
						10.07

					
					
						Treatment of Certain Information; Confidentiality

					
104
				
	
					
						10.08

					
					
						Right of Setoff

					
105
				
	
					
						10.09

					
					
						Interest Rate Limitation

					
106
				
	
					
						10.10

					
					
						Counterparts; Integration; Effectiveness

					
106
				
	
					
						10.11

					
					
						Survival of Representations and Warranties

					
106
				
	
					
						10.12

					
					
						Severability

					
106
				




		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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						10.13

					
					
						Replacement of Lenders

					
107
				
	
					
						10.14

					
					
						Governing Law; Jurisdiction; Etc.

					
108
				
	
					
						10.15

					
					
						Waiver of Jury Trial

					
109
				
	
					
						10.16

					
					
						No Advisory or Fiduciary Responsibility

					
109
				
	
					
						10.17

					
					
						Electronic Execution of Assignments and Certain Other Documents

					
109
				
	
					
						10.18

					
					
						USA PATRIOT Act

					
110
				
	
					
						10.19

					
					
						Time of the Essence

					
110
				
	
					
						10.20

					
					
						Acknowledgement and Consent to Bail-In of EEA Financial Institutions

					
110
				
	
					
						10.21

					
					
						Advertising Materials

					
111
				
	
					
						10.22

					
					
						ENTIRE AGREEMENT

					
111
				
	
					
						SIGNATURES

					
					
						S-1

				



		
			 
		

		
			
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			SCHEDULES
		

			
					
						 

					
					
						 

				
	
					
						2.01

					
					
						Commitments and Applicable Percentages

				
	
					
						5.06

					
					
						Litigation

				
	
					
						5.10

					
					
						Environmental Matters

				
	
					
						5.13(d)

					
					
						Pension Plans

				
	
					
						5.14

					
					
						Subsidiaries; Equity Interests

				
	
					
						5.19

					
					
						Intellectual Property Matters

				
	
					
						5.20

					
					
						Material Agreements and Liens

				
	
					
						5.22

					
					
						Wholesale Power Contracts

				
	
					
						10.02

					
					
						Administrative Agent’s Office; Certain Addresses for Notices; Taxpayer Identification Number

				
	
					
						10.06(e)

					
					
						Voting Participants

				



		
			 
		

		
			EXHIBITS
		

			
					
						 

					
					
						 

				
	
					
						A

					
					
						Form of Committed Loan Notice

				
	
					
						B

					
					
						Form of Swing Line Loan Notice

				
	
					
						C

					
					
						Form of Note

				
	
					
						D

					
					
						Form of Compliance Certificate

				
	
					
						E

					
					
						Form of Assignment and Assumption

				



		
			 
		

		
			 
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			CREDIT AGREEMENT
		

		
			This CREDIT AGREEMENT  (this “Agreement”) is entered into as of April 25, 2018, among TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC. (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, as Administrative Agent, Sole Lead Arranger and Sole Bookrunner, Swing Line Lender and an L/C Issuer, and U.S. BANK NATIONAL ASSOCIATION, as an L/C Issuer.
		

		
			The Borrower has requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
		

		
			In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
		

			
	
			
				ARTICLE I.
			
DEFINITIONS AND ACCOUNTING TERMS




			
	
			
				 1.01
			Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:




		
			 
		

			
	
			
				
			“Accounting Requirements” has the meaning specified in the Indenture; provided that references to the “Company” shall be deemed to be references to the Borrower.




			
	
			
				
			“Adjusted LIBOR Rate” means, for the Interest Period for any LIBOR Rate Loan, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.




			
	
			
				
			“Administrative Agent” means CFC in its capacity as administrative agent under any of the Loan Documents, or any successor in such capacity.




			
	
			
				
			“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.




			
	
			
				
			“Administrative Questionnaire” means an Administrative Questionnaire in any form approved by the Administrative Agent.




			
	
			
				
			“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.    




			
	
			
				
			“Aggregate Commitments” means the Commitments of all the Lenders.  The initial amount of the Aggregate Commitment in effect on the Closing Date is SIX HUNDRED FIFTY MILLION DOLLARS ($650,000,000).




			
	
			
				
			“Agreement” has the meaning specified in the introductory paragraph hereto.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate for such day plus 0.50% and (c) the Adjusted LIBOR Rate (taking into account any LIBOR Rate floor under the definition of LIBOR Rate) for a one-month Interest Period for such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that in no event shall the Alternate Base Rate at any time be less than 0.00% per annum.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Adjusted LIBOR Rate for a one-month Interest Period shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or the Adjusted LIBOR Rate for a one-month Interest Period, as the case may be.




			
	
			
				
			“Anti-Corruption Laws”  means all laws, rules, and regulations of any jurisdiction applicable to the Borrower from time to time concerning the regulation or legislation of bribery or corruption (including, without limitation, the FCPA).




			
	
			
				
			“Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.16.  If the commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.




			
	
			
				
			“Applicable Rate” means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:




			
					
						 

					
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						Pricing Level

					
					
						Debt Ratings
S&P/Moody’s/Fitch

					
					
						Commitment Fee

					
					
						LIBOR
Rate Loan +
Letters of Credit

					
					
						Base Rate
Loan

				
	
					
						1

					
					
						AA-/Aa3/AA-
or higher

					
0.060%
					
0.800%
					
0.000%
				
	
					
						2

					
					
						A+/A1/A+

					
0.080%
					
0.900%
					
0.000%
				
	
					
						3

					
					
						A/A2/A

					
0.100%
					
1.000%
					
0.000%
				
	
					
						4

					
					
						A-/A3/A-

					
0.125%
					
1.125%
					
0.125%
				
	
					
						5

					
					
						BBB+/Baa1/BBB+

					
0.175%
					
1.250%
					
0.250%
				
	
					
						6

					
					
						BBB/Baa2/BBB
or lower

					
0.300%
					
1.500%
					
0.500%
				



		
			 
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			As of the Closing Date, the Applicable Rate shall be determined based upon Pricing Level 3.  Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective, in the case of an upgrade, during the period commencing not later than five days after the date of delivery by the Borrower to the Administrative Agent of notice thereof pursuant to Section 6.03(f) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
		

			
	
			
				
			“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.




			
	
			
				
			“Arranger” means CFC, in its capacity as sole lead arranger and sole book runner.




			
	
			
				
			“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.




			
	
			
				
			“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.




			
	
			
				
			“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its subsidiaries for the Fiscal Year ended December 31, 2017, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Borrower and its subsidiaries, including the notes thereto.




		
			“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
		

		
			“Auto-Reinstatement Letter of Credit” has the meaning specified in Section 2.03(b)(iv).
		

			
	
			
				
			“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.




			
	
			
				
			“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.




			
	
			
				
			“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Balloon Indebtedness” means a  promissory note repayable in periodic installments of a specified amount usually representing interest, with a much larger final payment, which may be the entire principal amount.




			
	
			
				
			“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.




			
	
			
				
			“Base Rate Loan” means a Loan that bears interest based on the Alternate Base Rate.




		
			“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
		

			
	
			
				
			“Bond Documents” means, with respect to any Bonds, any trust indenture or similar document pursuant to which such Bonds are issued and any loan agreement, promissory note or similar document that provides security or a source of funding for the debt service on such Bonds.




			
	
			
				
			“Bond Letter of Credit” means any Letter of Credit that provides credit or liquidity support for Bonds.




			
	
			
				
			“Bonds” means any bonds, notes or other evidences of indebtedness issued by or on behalf of the Borrower or any Subsidiary of the Borrower.




			
	
			
				
			“Borrower” has the meaning specified in the introductory paragraph hereto.




			
	
			
				
			“Borrower Materials” has the meaning specified in Section 6.02.




			
	
			
				
			“Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.




			
	
			
				
			“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any LIBOR Rate Loan, means any such day that is also a London Banking Day.




			
	
			
				
			“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuers or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable).   “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.




			
	
			
				
			“CFC” means National Rural Utilities Cooperative Finance Corporation.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“CFC Line of Credit Rate”  means, for any day, a rate per annum equal to the rate published by CFC from time to time, by electronic or other means, for similarly classified lines of credit, but, if not so published, the CFC Line of Credit Rate shall be the rate per annum determined by CFC for such lines of credit from time to time.




			
	
			
				
			“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.




			
	
			
				
			“Change of Control” means, with respect to the Borrower, (a) failure to be a member owned cooperative corporation or (b) a majority of the Members existing on the date hereof cease to be Members of the Borrower; provided that for purposes of this definition of “Change of Control” no acquisition or merger between Members existing on the date hereof shall be deemed to affect the calculation of such percentage of Members.




			
	
			
				
			“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.




			
	
			
				
			“CoBank” means CoBank, ACB.




			
	
			
				
			“CoBank Equities” has the meaning specified in Section 6.15.




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




			
	
			
				
			“Collateral” has the meaning given to “Mortgaged Property” in the Indenture.




			
	
			
				
			“Collateral Documents” means, collectively, the Indenture and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Trustee for the benefit of the Secured Parties.




			
	
			
				
			“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower pursuant to Section 2.01,  (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of LIBOR Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.




			
	
			
				
			“Committed Loan” has the meaning specified in Section 2.01.




			
	
			
				
			“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of LIBOR Rate Loans, pursuant to Section 2.02(b),  which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower




			
	
			
				
			“Compliance Certificate” means a certificate substantially in the form of Exhibit D.




			
	
			
				
			“Connection Income Taxes” means Other Connection Taxes which are imposed on or measured by net income (however denominated) or which are franchise Taxes or branch profits Taxes.




			
	
			
				
			“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.




			
	
			
				
			“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.




			
	
			
				
			“CP Backup Sublimit” means an amount equal to the lesser of (a) FIVE HUNDRED MILLION DOLLARS ($500,000,000) and (b) the Aggregate Commitments.  The CP Backup Sublimit is part of, and not in addition to, the Aggregate Commitments.




			
	
			
				
			“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.




			
	
			
				
			“Debt Rating” means, as of any date of determination, the rating as determined by any of S&P, Moody’s or Fitch as the Borrower’s long-term senior secured non-credit enhanced debt rating; provided that, (a) in the event that the Borrower has three Debt Ratings, (i) if two of the three Debt Ratings are at the same level, then the applicable rating level shall be the level of the two Debt Ratings that are the same and (ii) if none of the three Debt Ratings are the same, the middle Debt Rating will apply, (b) in the event that the Borrower only has two Debt Ratings, (i) if the two Debt Ratings fall into different rating levels and one of such Debt Ratings is no more than one rating level lower than the other of such Debt Ratings, then the applicable rating level shall be the higher of such ratings and (ii) if the two Debt Ratings fall into different rating levels and one of such Debt Ratings is two or more rating levels lower than the other of such Debt Ratings, then the applicable Rating level shall be determined by reference to a hypothetical Debt Rating that would fall into the rating level that is one higher than the rating level into which the lower of such 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Debt Ratings falls; and (c) if the Borrower has only one Debt Rating, then the applicable rating level shall be such Debt Rating,  and (d) if the Borrower does not have any Debt Rating, Pricing Level 6 shall apply.




			
	
			
				
			“Debt Service Ratio” has the meaning specified in the Indenture.




			
	
			
				
			“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.




			
	
			
				
			“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.




			
	
			
				
			“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to the Alternate Base Rate plus  2.00% per annum;  provided that with respect to a LIBOR Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus  2.00% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus  2.00% per annum.




			
	
			
				
			“Defaulting Lender” means, subject to Section 2.16, any Lender that (a) has failed to (i) fund any portion of the Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within two Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its obligations under the Loan Documents, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	such a capacity, or (e) become the subject of a Bail-In Action;  provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16) upon delivery of written notice of such determination to the Borrower, each L/C Issuer, the Swing Line Lender and each Lender.




			
	
			
				
			“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any Mortgaged Property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.




			
	
			
				
			“Dollar” and “$” mean lawful money of the United States.




			
	
			
				
			“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.




			
	
			
				
			“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.




			
	
			
				
			“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.




			
	
			
				
			“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).




			
	
			
				
			“Engagement Letter” means that certain letter agreement, dated March 12, 2018, among the Administrative Agent, CFC, as the Lead Arranger, and the Borrower, as amended, modified or supplemented from time to time.




			
	
			
				
			“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment, or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.




			
	
			
				
			“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or patronage equities or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.




			
	
			
				
			“Equity to Capitalization Ratio” has the meaning specified in the Indenture.




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




			
	
			
				
			“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).




			
	
			
				
			“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure by the Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules or the filing of an application for the waiver of the minimum funding standards under the Pension Funding Rules; (c) the incurrence by the Borrower or any ERISA Affiliate of any liability pursuant to Section 4063 or 4064 of ERISA or a cessation of operations with respect to a Pension Plan within the meaning of Section 4062(e) of ERISA; (d) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or insolvent (within the meaning of Title IV of ERISA); (e) the filing of a notice of intent to terminate a Pension Plan under, or the treatment of a Pension Plan amendment as a termination under, Section 4041 of ERISA; (f) the institution by the PBGC of proceedings to terminate a Pension Plan; (g) any event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (h) the determination that any Pension Plan is in at-risk status (within the meaning of Section 430 of the Code or Section 303 of ERISA) or that a Multiemployer Plan is in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (i) the imposition or incurrence of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; (j) the engagement by the Borrower or any ERISA Affiliate in 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; (k) the imposition of a lien upon the Borrower pursuant to Section 430(k) of the Code or Section 303(k) of ERISA; or (l) the making of an amendment to a Pension Plan that could result in the posting of bond or security under Section 436(f)(1) of the Code.




		
			“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
		

			
	
			
				
			“Event of Default” has the meaning specified in Section 8.01.




			
	
			
				
			“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, an L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it, by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(i),  (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 3.06 or Section 10.13), any United States federal withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a) or (c), and (e) any Taxes imposed under FATCA.




			
	
			
				
			“Existing Credit Agreement” means that certain Credit Agreement dated July 29, 2011, as amended, among the Borrower, Bank of America, N.A., as administrative agent, and a syndicate of lenders.




		
			“Existing Maturity Date” has the meaning specified in Section 2.17(a).
		

		
			“Extension Date” has the meaning specified in Section 2.17(a).
		

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




			
	
			
				
			“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.




			
	
			
				
			“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	onerous to comply with), and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.




		
			“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
		

			
	
			
				
			“Federal Funds Rate”  means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




			
	
			
				
			“Fee Letter” means the Engagement Letter and any L/C Issuer Fee Letter.




			
	
			
				
			“Fiscal Year” means the fiscal year adopted by Borrower for the Borrower from time to time.  Unless the Administrative Agent is notified otherwise in writing by the Borrower, the Fiscal Year of the Borrower ends on December 31.




			
	
			
				
			“Fitch” means Fitch, Inc., Fitch Ratings Ltd. or, in each case, any successor or assignee of the business of such company in the business of rating securities.




			
	
			
				
			“Foreign Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.




			
	
			
				
			“FRB” means the Board of Governors of the Federal Reserve System of the United States.




			
	
			
				
			“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuers, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.




			
	
			
				
			“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.




			
	
			
				
			“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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




			
	
			
				
			“Guarantee” has the meaning specified in the Indenture.




			
	
			
				
			“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.




		
			“Honor Date” has the meaning specified in Section 2.03(c)(i).
		

			
	
			
				
			“Indebtedness” has the meaning given to the term “Debt” in the Indenture; provided that references to the “Company” shall be deemed to be references to the Borrower.




			
	
			
				
			“Indemnified Taxes” means Taxes other than Excluded Taxes.




			
	
			
				
			“Indemnitees” has the meaning specified in Section 10.04(b).




			
	
			
				
			“Indenture” means the Master First Mortgage Indenture, Deed of Trust and Security Agreement dated as of December 15, 1999 (as supplemented, amended or otherwise modified from time to time) between the Borrower and the Trustee, a copy of which has been provided to CFC and the Lenders.




			
	
			
				
			“Information” has the meaning specified in Section 10.07.




			
	
			
				
			“Interest Payment Date” means, (a) as to any LIBOR Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided that if any Interest Period for a LIBOR Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date; and (c) as to any Swing Line Loan, the day that such Loan is required to be repaid.




			
	
			
				
			“Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice, or such other period that is twelve months or less requested by the Borrower and consented to by all the Lenders; provided that:




			
	
			
				 (a)
			any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (b)
			any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and




			
	
			
				 (c)
			no Interest Period shall extend beyond the Maturity Date.




			
	
			
				
			“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of Section 7.02(i), the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.




			
	
			
				
			“IP Rights” has the meaning specified in Section 5.19.




			
	
			
				
			“IRS” means the United States Internal Revenue Service.




			
	
			
				
			“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).




			
	
			
				
			“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower or in favor of the applicable L/C Issuer and relating to such Letter of Credit.




			
	
			
				
			“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.




			
	
			
				
			“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.




			
	
			
				
			“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.




			
	
			
				
			“L/C Issuer” means CFC or U.S. Bank National Association, in each case in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.




			
	
			
				
			“L/C Issuer Fee Letter” means any letter agreement between an L/C Issuer and the Borrower providing for the payment of a fronting fee to such L/C Issuer, in each case, as amended, modified or supplemented from time to time.




			
	
			
				
			“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.




			
	
			
				
			“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.




			
	
			
				
			“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.




			
	
			
				
			“Letter of Credit” means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder.  Notwithstanding anything to the contrary contained herein, a letter of credit issued by an L/C Issuer other than CFC shall not be a “Letter of Credit” for purposes of the Loan Documents until such time as the Administrative Agent has been notified in writing of the issuance thereof by the applicable L/C Issuer and has confirmed with such L/C Issuer that there exists adequate availability under the Aggregate Commitments to issue such letter of credit.




			
	
			
				
			“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.




		
			“Letter of Credit Commitment” means, with respect to CFC, $75,000,000 and, with respect to U.S. Bank National Association, $37,500,000.
		

			
	
			
				
			“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).




			
	
			
				
			“Letter of Credit Fee” has the meaning specified in Section 2.03(h).




			
	
			
				
			“Letter of Credit Report” has the meaning specified in Section 2.03(k).




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Letter of Credit Sublimit” means an amount equal to SEVENTY FIVE MILLION DOLLARS ($75,000,000).  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.




			
	
			
				
			“LIBOR Rate” means, for any Interest Period with respect to a LIBOR Rate Loan, the LIBOR Screen Rate as of approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits for such Interest Period;  provided that if a LIBOR Screen Rate shall not be available at the applicable time for the applicable Interest Period, then the LIBOR Rate shall be, for any Interest Period, the rate per annum reasonably determined by the Administrative Agent in consultation with the Borrower as the rate of interest at which Dollar deposits in the approximate amount of such LIBOR Rate Loan would be offered by major banks in the London interbank eurodollar market to other major banks in the London interbank eurodollar market at their request at or about 10:00 a.m., London time, two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period;  provided,  further, that in no event shall the LIBOR Rate for any Interest Period at any time be less than 0.00% per annum.




			
	
			
				
			“LIBOR Rate Loan” means a Committed Loan that bears interest at the Adjusted LIBOR Rate.




			
	
			
				
			“LIBOR Screen Rate” means the London interbank offered rate administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for Dollars for a period equal in length to such Interest Period as displayed on page US001 of the Reuters screen or, in the event such rate does not appear on such Reuters screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion.




			
	
			
				
			“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).




			
	
			
				
			“Liquidity Drawing” means, in respect of any Bonds supported by a Bond Letter of Credit, any drawing under such Bond Letter of Credit the proceeds of which are used to pay the purchase price of such Bonds tendered for purchase by the Borrower (or any Subsidiary of the Borrower) and not otherwise remarketed.




			
	
			
				
			“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.




			
	
			
				
			“Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this Agreement, and the Fee Letter.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
		

			
	
			
				
			“Long-Term Debt” has the meaning given it in accordance with Accounting Requirements.




			
	
			
				
			“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Borrower to perform its obligations under any Loan Document or Collateral Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document or Collateral Document to which it is a party.




			
	
			
				
			“Maturity Date” means the later of (a) April 25, 2023 and (b) if the Maturity Date is extended pursuant to Section 2.17, such extended Maturity Date as determined pursuant to such Section; provided,  however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.




			
	
			
				
			“Member” means each holder of a voting membership interest in the Borrower.




			
	
			
				
			“Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee of the business of such company in the business of rating securities.




			
	
			
				
			“Mortgaged Property” has the meaning specified in the Indenture.




			
	
			
				
			“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.




			
	
			
				
			“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.




		
			“New Maturity Date” has the meaning specified in Section 2.17(a).
		

			
	
			
				
			“Non-Consenting Lender” has the meaning specified in Section 10.03.




			
	
			
				
			“Non-Defaulting Lender” means at any time each Lender that is not a Defaulting Lender as such time.




		
			“Non-Extending Lender” has the meaning specified in Section 2.17(b).
		

		
			“Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).
		

		
			“Non-Reinstatement Deadline” has the meaning specified in Section 2.03(b)(iv).
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C.




		
			“Notice Date” has the meaning specified in Section 2.17(b).
		

			
	
			
				
			“Notice of Extension Amendment” means, with respect to any Bond Letter of Credit, a written notice signed by the L/C Issuer with respect to such Letter of Credit and delivered to the Borrower and the trustee for the applicable Bonds evidencing the extension of the expiry date of such Letter of Credit.




			
	
			
				
			“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower or any of its Affiliates thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.




			
	
			
				
			“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.




			
	
			
				
			“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.




			
	
			
				
			“Other Connection Taxes” means, with respect to the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of Borrower under any Loan Document, Taxes imposed as a result of a present or former connection between such Person and the jurisdiction imposing such Tax (other than connections arising from such Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced by any Loan Document or Collateral Document, or sold or assigned an interest in any Loan, Loan Document or Collateral Document).




			
	
			
				
			“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar  Taxes or any other excise or property taxes, charges or similar levies that arise from any payment made under, from the execution, delivery, or enforcement of, or otherwise with respect to, any Loan Document or Collateral Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment other than an assignment made pursuant to Section 3.06(b).




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Outstanding Amount” means (a) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.




			
	
			
				
			“Participant” has the meaning specified in Section 10.06(d).




			
	
			
				
			“Participant Register” has the meaning specified in Section 10.06(d).




			
	
			
				
			“Patriot Act” has the meaning specified in Section 10.18.




			
	
			
				
			“PBGC” means the Pension Benefit Guaranty Corporation.




			
	
			
				
			“Pension Act” means the Pension Protection Act of 2006.




			
	
			
				
			“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412,  430,  431,  432 and 436 of the Code and Sections 302,  303,  304 and 305 of ERISA.




			
	
			
				
			“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.




			
	
			
				
			“Permitted Liens and Encumbrances” has the meaning specified in the Indenture.




			
	
			
				
			“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.




			
	
			
				
			“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees or with respect to which the Borrower has any liability.




			
	
			
				
			“Platform” has the meaning specified in Section 6.02.




			
	
			
				
			“Prime Rate” means the rate of interest per annum published from time to time as the “Prime Rate” by the Eastern Edition of The Wall Street Journal, or, if the Eastern Edition of The Wall Street Journal ceases publishing a “Prime Rate,” any successor publication selected by the Administrative Agent in its reasonable discretion; each change in the Prime Rate shall be effective from and including the date such change is publically announced as being effective.  The “Prime Rate” published by the Eastern Edition of The Wall Street Journal or any such successor 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	publication is a reference rate and does not necessarily represent the lowest or best rate charged by financial institutions to their customers.  The Lenders may make commercial loans or other loans at rates of interest at, above or below the “Prime Rate” published by the Eastern Edition of The Wall Street Journal or any such successor publication.




			
	
			
				
			“Prudent Utility Practice” means any of the practices, methods and acts which, in the exercise of reasonable judgment, in light of the facts, including, but not limited to, the practices, methods and acts known to, engaged in, or approved by a significant portion of the electric utility industry prior thereto, known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with reliability, safety and expedition.  It is recognized that Prudent Utility Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather is a spectrum of possible practices, methods or acts which could have been expected to accomplish the desired result at a reasonable cost consistent with reliability, safety and expedition.




		
			“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
		

			
	
			
				
			“Public Lender” has the meaning specified in Section 6.02.




			
	
			
				
			“Register” has the meaning specified in Section 10.06(c).




			
	
			
				
			“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.




			
	
			
				
			“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, including the movement of Hazardous Materials through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.




			
	
			
				
			“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.




			
	
			
				
			“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.




			
	
			
				
			“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligations of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Lenders;  provided,  further, that the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.




			
	
			
				
			“Responsible Officer” means the president and chairman, vice chairman, or treasurer of the Board of Directors, or the chief executive officer, chief financial officer or general counsel of the Borrower, and solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary or the treasurer of the Board of Directors and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the Borrower so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the Borrower designated in or pursuant to an agreement between the Borrower and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.




			
	
			
				
			“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof), including without limitation return to its Members patronage capital allocated to such Members.




			
	
			
				
			“Restricted Subsidiary” means any Subsidiary which has become a Restricted Subsidiary pursuant to Section 6.14 of this Agreement.  Restricted Subsidiaries on the Closing Date of this Agreement are listed on Schedule 5.14 to this Agreement.




			
	
			
				
			“Revenues” has the meaning given to it in accordance with Accounting Requirements.




			
	
			
				
			“S&P” means Standard & Poor’s  Global Ratings, a subsidiary of The McGraw-Hill Companies, Inc. or any successor or assignee of the business of such division in the business of rating securities.




			
	
			
				
			“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).




			
	
			
				
			“Sanctioned Person” means at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	a Sanctioned Country, or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clause (a) or (b).




			
	
			
				
			“Sanctions” means any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the United States Government (including without limitation, OFAC or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury in the United Kingdom or other relevant sanctions authority.




			
	
			
				
			“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.




			
	
			
				
			“Secured Note” means the secured promissory note dated as of April 25, 2018, and executed by the Borrower in favor of the Administrative Agent for the benefit of each of the Lenders which constitutes the ‘Series 2018A Secured Obligation’ (as defined in Supplement 41 to the Indenture).




			
	
			
				
			“Secured Obligations” means all Long-Term Debt of the Borrower entitled to the benefit of the lien of the Indenture.




			
	
			
				
			“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuers, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.




			
	
			
				
			“Solvent” means, with respect to any Person on a particular date, that (a) the book value of the total assets (net of depreciation) of such Person is greater than the total amount of the liabilities, including contingent liabilities, of such Person, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, and (c) such Person is not engaged in business, and is not about to engage in business, for which such Person’s property would constitute unreasonably small capital.




			
	
			
				
			“Statutory Reserve Rate” means, for the Interest Period for any LIBOR Rate Loan, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the arithmetic mean, taken over each day in such Interest Period, of the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the U.S. Federal Reserve System to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board of Governors of the U.S. Federal Reserve System).  Such reserve percentages shall include those imposed pursuant to such Regulation D.  LIBOR Rate Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person; provided that “Subsidiary” shall not mean, except in the case of Springerville Unit 3 Partnership LP, Springerville Unit 3 OP LLC, Springerville Unit 3 Holding LLC or Elk Ridge Mining and Reclamation, LLC, any corporation, partnership, joint venture, limited liability company or other business entity of which the total net worth does not exceed the Threshold Amount.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.




			
	
			
				
			“Supplement 41 to the Indenture” means the Supplemental Master Mortgage Indenture No. 41 dated as of April 25, 2018 (as supplemented, amended or otherwise modified from time to time) between the Borrower and the Trustee.




			
	
			
				
			“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.




			
	
			
				
			“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).




			
	
			
				
			“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.




			
	
			
				
			“Swing Line Lender” means CFC in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			“Swing Line Loan” has the meaning specified in Section 2.04(a).




			
	
			
				
			“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approve by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower




			
	
			
				
			“Swing Line Sublimit” means an amount equal to the lesser of (a) ONE HUNDRED MILLION DOLLARS ($100,000,000) and (b) the Aggregate Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.




			
	
			
				
			“System” has the meaning specified in the Indenture; provided that references to the “Company” shall be deemed to be references to the Borrower and references to a “Restricted Subsidiary” shall be deemed to be references a Restricted Subsidiary.




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




			
	
			
				
			“Threshold Amount” means FIFTY MILLION DOLLARS ($50,000,000).




			
	
			
				
			“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.




			
	
			
				
			“Trustee” means Wells Fargo Bank, National Association, in its capacity as trustee under the Indenture until any successor “Trustee” shall have become “Trustee” pursuant to the applicable provisions of the Indenture, and thereafter means any such successor “Trustee”.




			
	
			
				
			“Type” means, with respect to a Committed Loan, its character as a Base Rate Loan or a LIBOR Rate Loan.




			
	
			
				
			“United States” and “U.S.” mean the United States of America.




			
	
			
				
			“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).




			
	
			
				
			“Voting Participant” has the meaning specified in Section 10.06(e).




			
	
			
				
			“Voting Participant Notification” has the meaning specified in Section 10.06(e).




			
	
			
				
			“Withholding Agent” means the Borrower and the Administrative Agent.




			
	
			
				
			“Wholesale Power Contracts” means those certain contracts listed on Schedule 5.22 hereto for electric service between the Borrower and each of its Members and any future Members of the Borrower, as each may be amended, restated or supplemented from time to time.




			
	
			
				
			“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.




			
	
			
				 1.02
			Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:




		
			 
		

			
	
			
				 (a)
			The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, and except with respect to the Indenture, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and any reference to any Law or regulation shall, unless otherwise specified, refer to such Law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.




			
	
			
				 (b)
			Notwithstanding Section 1.02(a)(i),  any reference to the Indenture (or any Section thereof) shall be to the Indenture (and each such Section) as it exists as of the Closing Date; and, only as hereafter modified with the prior written consent of the Required Lenders, or the Lenders, in accordance with Section 10.01.  If the Required Lenders,  or the Lenders, do not consent to any amendment to the Indenture, in accordance with Section 10.01, all references to the Indenture (and each such Section) shall be as it exists as of the date of this Agreement.




			
	
			
				 (c)
			In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”




			
	
			
				 (d)
			Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of any Loan Document.




			
	
			
				 1.03
			Accounting Terms.  




		
			 
		

			
	
			
				 (a)
			Generally.  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, Accounting Requirements applied on a consistent basis, as in effect from time to time, except as otherwise specifically prescribed herein.




			
	
			
				 (b)
			Changes in Accounting Requirements.  If at any time any change in Accounting Requirements would affect the computation of any financial ratio or requirement set forth in any Loan Document or Collateral Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in Accounting Requirements (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with Accounting Requirements prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in Accounting Requirements.




			
	
			
				 (c)
			Consolidation of Variable Interest Entities.  All references herein to consolidated financial statements of the Borrower and its subsidiaries or to the determination of any amount for the Borrower and its subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.




			
	
			
				 1.04
			Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).




		
			 
		

			
	
			
				 1.05
			Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).




		
			 
		

			
	
			
				 1.06
			Letter of Credit Amounts.    Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.




		
			 
		

			
	
			
				ARTICLE II.
			
THE COMMITMENTS AND CREDIT EXTENSIONS




			
	
			
				 2.01
			Committed Loans.  Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided that after 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment and (iii) the aggregate Outstanding of Committed Loans advanced to provide liquidity to the Borrower’s commercial paper program shall not exceed the CP Backup Sublimit.  Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01.  Committed Loans may be Base Rate Loans or LIBOR Rate Loans, as further provided herein.




		
			 
		

			
	
			
				 2.02
			Borrowings, Conversions and Continuations of Committed Loans.  Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of LIBOR Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice.  Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (Eastern time) (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of LIBOR Rate Loans or of any conversion of LIBOR Rate Loans to Base Rate Committed Loans, and (ii) on the Business Day of the requested date of any Borrowing of Base Rate Committed Loans; provided that if the Borrower wishes to request LIBOR Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. (Eastern time) four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.  Not later than 11:00 a.m. (Eastern time), three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders.  Each Borrowing of, conversion to or continuation of LIBOR Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of LIBOR Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Rate Loans in any such 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.




		
			 
		

			
	
			
				 (a)
			Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding clause.  In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. (Eastern time), in the case of Base Rate Loans, or 2:00 p.m. (Eastern time), in the case of LIBOR Rate Loans, in each case, on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of CFC with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided that if, on the date the Committed Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.




			
	
			
				 (b)
			Except as otherwise provided herein, a LIBOR Rate Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as LIBOR Rate Loans without the consent of the Required Lenders.




			
	
			
				 (c)
			The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Prime Rate used in determining the Alternate Base Rate promptly following the public announcement of such change.    At any time that LIBOR Rate Loans are outstanding, the Administrative Agent shall use commercially reasonable efforts to notify the Borrower and the Lenders of any change in the Statutory Reserve Rate used in determining the Adjusted LIBOR Rate promptly following any change in any reserve percentage.




			
	
			
				 (d)
			After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than 15 Interest Periods in effect with respect to Committed Loans.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 2.03
			Letters of Credit.




			
	
			
				 (a)
			The Letter of Credit Commitment.




			
	
			
				 (i)
			Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03,  (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower, and to amend or extend  Letters of Credit previously issued by it, in accordance with clause (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings shall not exceed the Aggregate Commitments, (x) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, (y) the Outstanding Amount of the L/C Obligations attributable to any L/C Issuer shall not exceed such L/C Issuer’s Letter of Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.




			
	
			
				 (ii)
			No L/C Issuer shall issue any Letter of Credit, if:




			
	
			
				 (A)
			subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or




			
	
			
				 (B)
			the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.




			
	
			
				 (iii)
			No L/C Issuer shall be under any obligation to issue any Letter of Credit if:




			
	
			
				 (A)
			any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the applicable L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;




			
	
			
				 (B)
			the issuance of the Letter of Credit would violate one or more policies of the applicable L/C Issuer applicable to letters of credit generally;




			
	
			
				 (C)
			except as otherwise agreed by the Administrative Agent and the applicable L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000;




			
	
			
				 (D)
			the Letter of Credit is to be denominated in a currency other than Dollars;




			
	
			
				 (E)
			any Lender is at that time a Defaulting Lender, unless the applicable L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion;  or




			
	
			
				 (F)
			the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; provided,  however, a Bond Letter of Credit may provide that (1) after any drawing thereunder to pay interest on Bonds, the stated amount of such Bond Letter of Credit shall be automatically reinstated in the amount of such drawing after a specified period of time unless, prior to the expiration of such period, the beneficiary of such Bond Letter of Credit has received notice from the L/C Issuer that it has not been reimbursed for such drawing; and (2) after any Liquidity Drawing thereunder, the stated amount of such Bond Letter of Credit shall be automatically reinstated in an amount equal to the principal amount of any Bonds previously purchased with the proceeds of such Liquidity Drawing that have been remarketed to investors where the proceeds of such remarketing have been received by applicable L/C Issuer and applied to the repayment of the Unreimbursed Amount, Committed Loans or advances related to such Liquidity Drawing.




			
	
			
				 (iv)
			The applicable L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.




			
	
			
				 (v)
			The applicable L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.




			
	
			
				 (vi)
			Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to each L/C Issuer.




			
	
			
				 (b)
			Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.




			
	
			
				 (i)
			Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer as the Borrower may elect (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to the applicable L/C Issuer.  Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 11:00 a.m. (Eastern time) at least 60 days, in the case of a Bond Letter of Credit, and at least three Business Days in the case of any other Letter of Credit (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; (H) in the case of a Bond Letter of Credit, the Bond Documents; and (I) such other matters as such L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as such L/C Issuer may require.  Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable L/C Issuer or the Administrative Agent may require.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (ii)
			Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the applicable L/C Issuer has received written notice from any Lender, the Administrative Agent or the Borrower, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.




			
	
			
				 (iii)
			If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that such L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.




			
	
			
				 (iv)
			If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement Letter of Credit”).  Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer to permit such reinstatement.  Once an Auto-





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit.  Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits such L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), such L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing such L/C Issuer not to permit such reinstatement.




			
	
			
				 (v)
			Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.  In the case of any extension of a Bond Letter of Credit, the L/C Issuer shall, upon satisfaction of the conditions applicable thereto, deliver to the Borrower and the trustee for the applicable Bonds a Notice of Extension Amendment to the Bond Letter of Credit designating the new expiry date and thereafter all references in any Bond Documents to the expiry date or stated expiration date of such Bond Letter of Credit shall be deemed to be references to the date designated as such in the most recent Notice of Extension Amendment delivered to such trustee.




			
	
			
				 (c)
			Drawings and Reimbursements; Funding of Participations.




			
	
			
				 (i)
			Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. (Eastern time) on the date of any payment (except in the case of a Liquidity Drawing) by the applicable L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice).  Not later than 4:00 p.m. (Eastern time) on the Honor Date (in the case of a Liquidity Drawing), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	equal to the amount of such Liquidity Drawing.  If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the Unreimbursed Amount and the amount of such Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice).    Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.




			
	
			
				 (ii)
			Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.  (Eastern time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount.  The Administrative Agent shall promptly remit the funds so received to such L/C Issuer.




			
	
			
				 (iii)
			With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the Administrative Agent for the account of such L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.




			
	
			
				 (iv)
			Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.




			
	
			
				 (v)
			Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuers for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against an L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse an L/C Issuer for the amount of any payment made by an L/C Issuer under any Letter of Credit, together with interest as provided herein.




			
	
			
				 (vi)
			If any Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.




			
	
			
				 (d)
			Repayment of Participations.




			
	
			
				 (i)
			At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.




			
	
			
				 (ii)
			If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.




			
	
			
				 (e)
			Obligations Absolute.  The obligation of the Borrower to reimburse each L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:




			
	
			
				 (i)
			any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document or Collateral Document;




			
	
			
				 (ii)
			the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;




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




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




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




		
			The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer.  The Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.
		

			
	
			
				 (f)
			Role of L/C Issuer.  Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the applicable L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of such L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct as determined by a final, nonappealable judgment of a court of 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the applicable L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of such L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e);  provided that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the applicable L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence as determined by a final, nonappealable judgment of a court of competent jurisdiction or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the applicable L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.  An L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (SWIFT) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.




			
	
			
				 (g)
			Applicability of ISP.    Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit.




			
	
			
				 (h)
			Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit; provided that any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer pursuant to this Section 2.03 shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.16(a)(iv), with the balance of such fee, if any, payable to such L/C Issuer for its own account.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate during any quarter, the daily amount 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.




			
	
			
				 (i)
			Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on the last Business Day of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, drawing, amendment, transfer and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.




			
	
			
				 (j)
			Conflict with Issuer Documents.  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.




			
	
			
				 (k)
			L/C Issuer Reports to the Administrative Agent.  Unless otherwise agreed by the Administrative Agent, each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section, provide the Administrative Agent a report (a “Letter of Credit Report”), as set forth below:




			
	
			
				 (i)
			reasonably prior to the time that such L/C Issuer issues, amends, renews, increases or extends a Letter of Credit, the date of such issuance, amendment, renewal, increase or extension and the stated amount of the applicable Letters of Credit after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed);




			
	
			
				 (ii)
			on each Business Day on which such L/C Issuer makes a payment pursuant to a Letter of Credit, the date and amount of such payment;




			
	
			
				 (iii)
			on any Business Day on which the Borrower fails to reimburse a payment made pursuant to a Letter of Credit required to be reimbursed to such L/C Issuer on such day, the date of such failure and the amount of such payment;




			
	
			
				 (iv)
			on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such L/C Issuer; and




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (v)
			for so long as any Letter of Credit issued by an L/C Issuer is outstanding, such L/C Issuer shall deliver to the Administrative Agent (A) on the last Business Day of each calendar month, (B) at all other times a Letter of Credit Report is required to be delivered pursuant to this Agreement, and (C) on each date that (1) a Letter of Credit is issued, extended or increased or (2) there is any expiration, cancellation and/or disbursement, in each case, with respect to any such Letter of Credit, a Letter of Credit Report appropriately completed with the information for every outstanding Letter of Credit issued by such L/C Issuer.




			
	
			
				 2.04
			Swing Line Loans.




			
	
			
				 (a)
			The Swing Line.  Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in its sole discretion (it being understood that unless a Default has occurred and is continuing or any Lender is a Defaulting Lender (subject to Section 2.16), the Swing Line Lender anticipates funding Swing Line Loans in accordance with the terms hereof) and in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided  further that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.  Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.




			
	
			
				 (b)
			Borrowing Procedures.  Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice.  Each such Swing Line Loan Notice must be received by the Swing Line Lender and the Administrative Agent not later than 11:00 a.m. (Eastern time) on the requested borrowing date, and shall specify (i) the amount to be borrowed and (ii) the requested borrowing date, which shall be a Business Day.  Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 12:00 noon  (Eastern time) on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 1:00 p.m. (Eastern time) on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by crediting the account of the Borrower on the books of the Swing Line Lender in immediately available funds.




			
	
			
				 (c)
			Refinancing of Swing Line Loans.




			
	
			
				 (i)
			The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a  Base Rate Committed Loan  in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding; provided that, notwithstanding the foregoing, the Borrower hereby unconditionally promises to repay all Swing Line Loans within five Business Days of the date on which such Swing Line Loan was made.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. (Eastern time) on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.




			
	
			
				 (ii)
			If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.




			
	
			
				 (iii)
			If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Prime Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.




			
	
			
				 (iv)
			Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.




			
	
			
				 (d)
			Repayment of Participations.




			
	
			
				 (i)
			At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.




			
	
			
				 (ii)
			If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.




			
	
			
				 (e)
			Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to refinance 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.




			
	
			
				 (f)
			Payments Directly to Swing Line Lender.  The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.




			
	
			
				 2.05
			Prepayments.




			
	
			
				 (a)
			The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be in a form acceptable to the Administrative Agent and received by the Administrative Agent not later than 11:00 a.m. (Eastern time) (A) three Business Days prior to any date of prepayment of LIBOR Rate Loans and (B) on the date of prepayment of  Base Rate Committed Loans; (ii) any prepayment of LIBOR Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if LIBOR Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a LIBOR Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.




			
	
			
				 (b)
			The Borrower shall prepay any Unreimbursed Amount relating to any Liquidity Drawing under a Bond Letter of Credit (and any L/C Borrowings and, if an Event of Default shall have occurred and be continuing, Committed Loans the proceeds of which were applied to the refinancing of such Unreimbursed Amount) on the earlier of (i) the date of the remarketing to investors of the Bonds purchased with the proceeds of such Liquidity Drawing, the amount of such prepayment to be equal to the principal amount of the Bonds so remarketed, and (ii) the date on which such Bond Letter of Credit is replaced with another liquidity or credit facility pursuant to the applicable Issuer Documents, the amount of such prepayment to be equal to the full amount of such Unreimbursed Amount, L/C Borrowings or Committed Loans, as the case may be.




			
	
			
				 (c)
			The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that such notice must be received by the Swing Line Lender and the Administrative Agent not later than 12:00 noon (Eastern time) on the date of the prepayment.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (d)
			If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(d) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect.




			
	
			
				 2.06
			Termination or Reduction of Commitments.  The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. (Eastern time) three Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Commitments, the CP Backup Sublimit, Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such sublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.  Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.




		
			 
		

			
	
			
				 2.07
			Repayment of Loans.




			
	
			
				 (a)
			The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Committed Loans outstanding on such date.




			
	
			
				 (b)
			The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the weekly date as provided in Section 2.04(c)(i) and (ii) the Maturity Date.




			
	
			
				 2.08
			Interest.




			
	
			
				 (a)
			Subject to the provisions of clause (b) below, (i) each LIBOR Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted LIBOR Rate for such Interest Period plus the Applicable Rate for LIBOR Rate Loans; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Alternate Base Rate plus the Applicable Rate for Base Rate Loans; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to (A) with respect to any portion of any Swing Line Loan that has not been acquired by the Lenders as a participation pursuant to Section 2.04(c), the CFC Line of Credit Rate (provided that CFC is the Swing Line Lender at such time), and (B) with respect to any portion of any Swing Line Loan that has been acquired by the Lenders as a participation pursuant to Section 2.04(c), the Alternate Base Rate plus the Applicable Rate for Base Rate Loans.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (b)
			(i)If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




		
			(ii)If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
		

		
			(iii)Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
		

		
			(iv)Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
		

			
	
			
				 (c)
			Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.




			
	
			
				 2.09
			Fees.  In addition to certain fees described in clauses (h) and (i) of Section 2.03:




		
			 
		

			
	
			
				 (a)
			Commitment Fee.  The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.16.  The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period.  The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the Aggregate Commitments for purposes of determining the commitment fee.




			
	
			
				 (b)
			Other Fees.  The Borrower shall pay to the Arranger, each L/C Issuer and the Administrative Agent fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 2.10
			Computation of Interest and Fees.  All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Adjusted LIBOR Rate) and Swing Line Loans determined by reference to the CFC Line of Credit Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.




		
			 
		

			
	
			
				 2.11
			Evidence of Debt.




		
			 
		

			
	
			
				 (a)
			The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.




			
	
			
				 (b)
			In addition to the accounts and records referred to in clause (a) above, each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.




			
	
			
				 2.12
			Payments Generally; Administrative Agent’s Clawback




			
	
			
				 (a)
			General.  All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. (Eastern time) on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	payments received by the Administrative Agent after 2:00 p.m. (Eastern time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  Except as otherwise provided in clause (a) of the definition of “Interest Payment Date”, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.




			
	
			
				 (b)
			Presumptions by the Administrative Agent.




			
	
			
				 (i)
			Funding by Lenders.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of LIBOR Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon  (Eastern time) on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Prime Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.




			
	
			
				 (ii)
			Payments by Borrower.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuers hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuers, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuers, as the case may be, severally agrees to repay to the 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Prime Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.




		
			A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (b) shall be conclusive, absent manifest error.
		

			
	
			
				 (c)
			Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.




			
	
			
				 (d)
			Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.04(c).




			
	
			
				 (e)
			Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.




			
	
			
				 2.13
			Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them; provided that:




		
			 
		

			
	
			
				 (i)
			if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and




			
	
			
				 (ii)
			the provisions of this Section shall not be construed to apply to (w) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (x) the application of Cash Collateral provided for in Section 2.15,  (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply) or (z) the exercise by CoBank of its rights against any CoBank Equities held by the Borrower.




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

		
			This Section 2.13 shall not apply to any action taken by CoBank with respect to any CoBank Equities held by the Borrower.
		

			
	
			
				 2.14
			Increase in Commitments




			
	
			
				 (a)
			Request for Increase.  Provided no Default has occurred and is continuing, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time, request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding ONE HUNDRED MILLION DOLLARS ($100,000,000); provided that any such request for an increase shall be in a minimum amount of TWENTY FIVE MILLION DOLLARS ($25,000,000).  At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).




			
	
			
				 (b)
			Lender Elections to Increase.  Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase.  Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.




			
	
			
				 (c)
			Notification by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent, the L/C Issuers and the Swing Line Lender (which approvals shall not be unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.




			
	
			
				 (d)
			Effective Date and Allocations.  If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date.




			
	
			
				 (e)
			Conditions to Effectiveness of Increase.  As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and (y) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (B) no Default exists, (C) the Borrower shall have executed and delivered a supplement to the Indenture which includes the aggregate amount of such increase in the Aggregate Commitments as a Secured Obligation, (D) the Borrower shall have executed and delivered a secured promissory note, in form and substance similar to the Secured Note, providing for the repayment of an amount equal to the aggregate amount of such increase in the Aggregate Commitments, and (E) the Borrower shall have delivered a copy of the resolution of its Board of Directors authorizing and approving the execution, delivery and performance of such supplement and secured promissory note.  The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.  The Borrower and the Lenders shall cooperate to enable simultaneous prepayment of Committed Loans pursuant to the preceding sentence and borrowing of new Committed Loans under the increase in the Aggregate Commitments.




			
	
			
				 (f)
			Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.




			
	
			
				 2.15
			Cash Collateral.




			
	
			
				 (a)
			Certain Credit Support Events.  Upon the request of the Administrative Agent or the applicable L/C Issuer (i) if such L/C Issuer has honored any full or partial drawing request under any Letter of Credit, such drawing has not resulted in a Committed Borrowing pursuant to Section 2.03(c) because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.  





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	At any time that there shall exist a Defaulting Lender, within five Business Days after the request of the Administrative Agent, the applicable L/C Issuer or the Swing Line Lender, the Borrower shall deliver Cash Collateral to the Administrative Agent in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).




			
	
			
				 (b)
			Grant of Security Interest.  All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at the Administrative Agent.  The Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.15(c).  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.




			
	
			
				 (c)
			Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Sections 2.03,  2.04,  2.05,  2.16 or 8.02 in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.




			
	
			
				 (d)
			Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided that (x) Cash Collateral furnished by or on behalf of the Borrower shall not be released during the continuance of a Default (and following application as provided in this Section 2.15 may be otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral and the applicable L/C Issuer or the Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.




			
	
			
				 2.16
			Defaulting Lenders.




			
	
			
				 (a)
			Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, in addition to the other provisions of this Agreement relating to Defaulting Lenders, the following provisions shall apply for so long as such Lender is a Defaulting Lender:




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (i)
			Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and in Section 10.01.




			
	
			
				 (ii)
			Reallocation of Payments.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 10.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or the Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the applicable L/C Issuer or the Swing Line Lender, to be held as Cash Collateral for such L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, an L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting Lender.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (iii)
			Certain Fees.




			
	
			
				 (A)
			Such Defaulting Lender (x) shall not be entitled to receive any commitment fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.03(h).




			
	
			
				 (B)
			With respect to any Commitment Fee or Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the applicable L/C Issuer and the Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or the Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.




			
	
			
				 (iv)
			Reallocation of Applicable Percentages to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in Letters of Credit and Swing  Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (A) no Default exists and (B) such reallocation does not cause the Outstanding Amount of any Non-Defaulting Lender’s Loans plus  such Non-Defaulting Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Non-Defaulting Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans to exceed such Non-Defaulting Lender’s Commitment.    During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03 and 2.04, the “Applicable Percentage” of each Non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender.    Subject to Section 10.20, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.




			
	
			
				 (v)
			Cash Collateral, Repayment of Swing Line Loans.  If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under Law,  (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (b)
			Defaulting Lender Cure.  If the Borrower, the Administrative Agent, Swing Line Lender and each L/C Issuer agree in writing in their sole discretion that a Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.16(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided further that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.




			
	
			
				 (c)
			New Swing Line Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) no L/C Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.




			
	
			
				 2.17
			Extension of Maturity Date.




			
	
			
				 (a)
			Request for an Extension.  The Borrower may, by written notice to the Administrative Agent (who shall promptly, but in any event within three Business Days after receipt thereof, deliver a copy of such written notice to each of the Lenders)  not earlier than 60 days and not later than 45 days prior to any anniversary of the Closing Date following the first anniversary of the Closing Date, request that, effective as of such anniversary of the Closing Date (the “Extension Date”), each Lender agree to an extension of the Maturity Date then in effect hereunder (the “Existing Maturity Date”)  for an additional 364 days from the Existing Maturity Date (the “New Maturity Date”);  provided that the Borrower may not extend the Maturity Date pursuant to this Section 2.17 more than two times.




			
	
			
				 (b)
			Lender Elections to Extend.  Each Lender, acting in its sole and individual discretion, shall, by notice to the Administrative Agent given not earlier than 30 days prior to the Extension Date and not later than the date (the “Notice Date”) that is 15 days prior to the Extension Date, advise the Administrative Agent whether or not such Lender agrees to such extension (and each Lender that determines not to so extend the Maturity Date (a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after such determination, and any Lender that does not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender).  The election of any Lender to agree to such extension shall not obligate any other Lender to so agree.




			
	
			
				 (c)
			Notification by Administrative Agent.  The Administrative Agent shall notify the Borrower of each Lender’s determination under this Section no later than the day that is ten days prior to the Extension Date (or, if such date is not a Business Day, on the next Business Day).




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (d)
			Payment to Non-Extending Lender; Additional Commitment Lenders.  The Commitment of each Non-Extending Lender will automatically terminate on the Existing Maturity Date, and the Borrower shall pay all Committed Loans and other Obligations owing to such Non-Extending Lender on the Existing Maturity Date to the extent not paid by an Additional Commitment Lender pursuant to an Assignment and Assumption as hereinafter set forth.  The Borrower shall have the right on or before the Extension Date to replace each Non-Extending Lender with, and add as “Lenders” under this Agreement in place thereof, one or more Eligible Assignees (each, an “Additional Commitment Lender”) as provided in this Section 2.17;  provided that each of such Additional Commitment Lenders shall enter into an Assignment and Assumption pursuant to which such Additional Commitment Lender shall, effective as of the Extension Date, undertake a Commitment (and, if any such Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder on such date).




			
	
			
				 (e)
			Minimum Extension Requirement.  If (and only if) (i) the total of the Commitments of the Lenders that have agreed so to extend their Maturity Date (each, an “Extending Lender”) and the additional Commitments of the Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Commitments previously in effect and (ii) the aggregate Commitments shall be at least equal to the Outstanding Amount of Committed Loans, Swing Line Loans and L/C Obligations on and after the Existing Maturity Date, then, effective as of the Extension Date, the Maturity Date shall be extended to the New Maturity Date (except that, if such date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day) and each Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement.




			
	
			
				 (f)
			Conditions to Effectiveness of Increase.  As a condition precedent to such extension, the Borrower shall deliver to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, (i) resolutions of the Borrower authorizing such extension and all Governmental Approvals (if any) required in connection with such extension, certified as being in effect as of the Extension Date and the related incumbency certificate of the Borrower, (ii) a favorable opinion of counsel for the Borrower as to such matters as any Lender through the Administrative Agent may reasonably request and (iii) a  certificate of the Borrower dated as of the Extension Date (in sufficient copies for each Extending Lender and each Additional Commitment Lender) signed by a Responsible Officer of the Borrower certifying that on and as of such Extension Date, and immediately after giving effect to the extension to be effective on such date, all conditions precedent to a Credit Extension under Sections 4.02(a) and 4.02(b) are satisfied.    In addition, on the Extension Date, the Borrower shall prepay any Committed Loans outstanding on such date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep outstanding Committed Loans ratable with any revised Applicable Percentages of the respective Lenders effective as of such date.




			
	
			
				 (g)
			Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.




			
	
			
				 2.18
			CoBank Equities.




			
	
			
				 (a)
			Each party hereto acknowledges that CoBank’s Bylaws and Capital Plan (as each may be amended from time to time) shall govern (x) the rights and obligations of the parties with 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	respect to the CoBank Equities and any patronage refunds or other distributions made on account thereof or on account of the Borrower’s patronage with CoBank, (y) the Borrower’s eligibility for patronage distributions from CoBank (in the form of CoBank Equities and cash) and (z) patronage distributions, if any, in the event of a sale of a participation interest.  CoBank reserves the right to assign or sell participations in all or any part of its Commitments or outstanding Loans hereunder on a non-patronage basis.




			
	
			
				 (b)
			Each party hereto acknowledges that CoBank has a statutory first lien pursuant to the Farm Credit Act of 1971 (as amended from time to time) on all CoBank Equities that the Borrower may now own or hereafter acquire, which statutory lien shall be for CoBank’s sole and exclusive benefit.  The CoBank Equities shall not constitute security for the Obligations due to any other Lender.  To the extent that any of the Loan Documents create a Lien on the CoBank Equities or on patronage accrued by CoBank for the account of the Borrower (including, in each case, proceeds thereof), such Lien shall be for CoBank’s sole and exclusive benefit and shall not be subject to pro rata sharing hereunder.  Neither the CoBank Equities nor any accrued patronage shall be offset against the Obligations hereunder except that, in the event of an Event of Default, CoBank may elect, solely at its discretion, to apply the cash portion of any patronage distribution or retirement of equity to amounts owed to CoBank under this Agreement, whether or not such amounts are currently due and payable.  The Borrower acknowledges that any corresponding Tax liability associated with such application is the sole responsibility of the Borrower.  CoBank shall have no obligation to retire the CoBank Equities upon any Event of Default, Default or any other default by the Borrower, or at any other time, either for application to the Obligations or otherwise.




			
	
			
				ARTICLE III.
			
TAXES, YIELD PROTECTION AND ILLEGALITY




			
	
			
				 3.01
			Taxes.




			
	
			
				 (a)
			Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made free and clear of and without reduction or withholding for any Taxes, except as required by applicable Laws.  If any applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Laws and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that, after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01), the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deduction or withholding been made.




			
	
			
				 (b)
			Payment of Other Taxes by the Borrower.  The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Laws, or, at the option of the Administrative Agent, timely reimburse it for the payment of, any Other Taxes.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (c)
			Tax Indemnifications.




			
	
			
				 (i)
			The Borrower shall indemnify the Administrative Agent, each Lender, and each L/C Issuer within ten days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent or such Lender or such L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.




			
	
			
				 (ii)
			Each Lender and each L/C Issuer shall severally indemnify the Administrative Agent, within ten days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender or such L/C Issuer (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender or such L/C Issuer, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender or any L/C Issuer by the Administrative Agent shall be conclusive absent manifest error.  Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or such L/C Issuer under any Loan Document or otherwise payable by the Administrative Agent to the Lender or the L/C Issuer from any other source against any amount due to the Administrative Agent under this Section 3.01(c).




			
	
			
				 (d)
			Evidence of Payments.  Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.




			
	
			
				 (e)
			Status of Lenders; Tax Documentation.




			
	
			
				 (i)
			Any Lender that is entitled to an exemption from or reduction of withholding Tax under the Law of the jurisdiction in which the Borrower is resident for Tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	under any Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.




			
	
			
				 (ii)
			Without limiting the generality of the foregoing:




			
	
			
				 (A)
			any Lender that is not a Foreign Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax; and




			
	
			
				 (B)
			any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:




			
	
			
				 (I)
			in the case of a Foreign Lender claiming the benefits of an income Tax treaty to which the United States is a party (I) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such Tax treaty and (II) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;




			
	
			
				 (II)
			executed copies of IRS Form W-8ECI;




			
	
			
				 (III)
			in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (I) a U.S. Tax compliance certificate in form and substance satisfactory to the Administrative Agent to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	881(c)(3)(C) of the Code and (II) executed copies of IRS Form W-8BEN; or




			
	
			
				 (IV)
			to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax compliance certificate in form and substance satisfactory to the Administrative Agent, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax compliance certificate in form and substance acceptable to the Administrative Agent on behalf of each such direct and indirect partner;




			
	
			
				 (C)
			any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and




			
	
			
				 (D)
			if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Laws (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.




		
			Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
		

			
	
			
				 (f)
			Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this clause (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This clause (f) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.




			
	
			
				 (g)
			Survival.  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.




			
	
			
				 3.02
			Illegality.  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Adjusted LIBOR Rate, or to determine or charge interest rates based upon the Adjusted LIBOR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue LIBOR Rate Loans or to convert Base Rate Committed Loans to LIBOR Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Adjusted LIBOR Rate component of the Alternate Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBOR Rate component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all LIBOR Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBOR Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Rate Loans and (y) if such 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBOR Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Adjusted LIBOR Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted LIBOR Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.




		
			 
		

			
	
			
				 3.03
			Inability to Determine Rates.  If prior to the commencement of any Interest Period for any LIBOR Rate Loan,  (a) the Administrative Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank LIBOR market for the applicable amount and Interest Period of such LIBOR Rate Loan, or (ii) adequate and reasonable means do not exist for determining the Adjusted LIBOR  Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan or in connection with an existing or proposed Base Rate Loan, or (b) the Administrative Agent or the Required Lenders determine that for any reason the LIBOR Rate for any requested Interest Period with respect to a proposed LIBOR Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such LIBOR Rate Loan;  then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone (promptly confirmed in writing) or facsimile or by other electronic transmission as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and such Lenders that the circumstances giving rise to such notice no longer exist, (A) any request for the conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing comprised of LIBOR Rate Loans shall be ineffective and such Borrowing (unless prepaid) shall be converted to, or continued as, a Borrowing comprised of Base Rate Loans and (B) if any Request for Credit Extension requests LIBOR Rate Loans, such Loans shall be made as an Base Rate Loans;  provided, that following the first day that such condition shall cease to exist, such Loans may be made as or converted to LIBOR Rate Loans at the request of and in accordance with the elections of the Borrower.




		
			 
		

		
			Notwithstanding the foregoing, if the Administrative Agent has made the determination (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) of this Section have arisen (including because the LIBOR Screen Rate is not available or published on a current basis) and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) of this Section have not arisen but the supervisor for the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBOR Screen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an alternative interest rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans denominated in dollars in the United States at such time, and the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (which amendment shall not, for the avoidance of doubt, reduce the Applicable Rate);  provided that if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.  Such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent 


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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shall not have received, within five Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.  Until an alternate rate of interest shall be determined in accordance with this clause (but, in the case of the circumstances described in clause (a)(ii) above, only to the extent the LIBOR Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any request for the conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing of LIBOR Rate Loans shall be ineffective, and such Borrowing (unless prepaid) shall be converted to, or continued as, a Borrowing of Base Rate Loans, and (y) if any Request for Credit Extension requests a Borrowing of LIBOR Rate Loans, such Borrowing shall be made as a Borrowing of Base Rate Loans.
		

			
	
			
				 3.04
			Increased Costs.




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




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




			
	
			
				 (ii)
			subject any Lender or any L/C Issuer to any Tax (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes” contained herein and (C) Connection Income Taxes) on or with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Rate Loan made by it or any other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or change the basis of taxation of payments to such Lender or such L/C Issuer in respect thereof; or




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




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

			
	
			
				 (b)
			Capital Requirements.  If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.




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




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




			
	
			
				 3.05
			Compensation for Losses.    Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:




		
			 
		

			
	
			
				 (a)
			any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);




			
	
			
				 (b)
			any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or




			
	
			
				 (c)
			any assignment of a LIBOR Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13.




		
			In the case of a LIBOR Rate Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBOR Rate that would have been applicable to such Loan, for the period from the date 


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate that such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the London interbank eurodollar market.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
		

		
			For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each LIBOR Rate Loan made by it at the LIBOR Rate used in determining the LIBOR Rate for such Loan by a matching deposit or other borrowing in the London interbank LIBOR market for a comparable amount and for a comparable period, whether or not such LIBOR Rate Loan was in fact so funded.
		

			
	
			
				 3.06
			Mitigation Obligations; Replacement of Lenders.




			
	
			
				 (a)
			Designation of a Different Lending Office.  If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or such L/C Issuer (at the request of the Borrower) shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.




			
	
			
				 (b)
			Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 10.13.




			
	
			
				 3.07
			Survival.  All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.




		
			 
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				ARTICLE IV.
			
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




			
	
			
				 4.01
			Conditions of Initial Credit Extension.  The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:




		
			 
		

			
	
			
				 (a)
			The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date), as applicable, and, except with respect to clause (x) below, each in form and substance satisfactory to the Administrative Agent and each of the Lenders:




			
	
			
				 (i)
			executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;




			
	
			
				 (ii)
			a Note executed by the Borrower in favor of each Lender requesting a Note;




			
	
			
				 (iii)
			executed counterparts of Supplement 41 to the Indenture;




			
	
			
				 (iv)
			executed counterparts of the Secured Note;




			
	
			
				 (v)
			such financial information regarding the Borrower and its Subsidiaries, if any, as the Administrative Agent and the Lenders may reasonably request;




			
	
			
				 (vi)
			evidence of the Borrower’s maintenance of insurance satisfying the requirements of Section 6.07;




			
	
			
				 (vii)
			a copy of the form(s) of the Wholesale Power Contracts, including all modifications and amendments  (except, unless expressly requested by the Administrative Agent, schedules to the Wholesale Power Contracts related to  points of delivery for members, contracts with members, resale at wholesale of electricity by members, or an excerpt of a provision from Borrower’s contracts with the United States of America entitled “Resale of Electric Service”);




			
	
			
				 (viii)
			the Indenture and all supplements and amendments (except, unless expressly requested by the Administrative Agent, (A) supplements providing solely for additional secured obligations and/or additional collateral descriptions and (B) exhibits relating to real property and real property recording information);




			
	
			
				 (ix)
			all documents required to be delivered to the Trustee in order for the Secured Note to be authenticated as an additional Secured Obligation (as defined in the Indenture) under the Indenture;




			
	
			
				 (x)
			the written investment policy approved by the Board of Directors of the Borrower;




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (xi)
			such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents or Collateral Documents;




			
	
			
				 (xii)
			such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in Arizona, Colorado, Kansas, Nebraska, New Mexico and Wyoming and any other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;




			
	
			
				 (xiii)
			favorable opinions of (A) Dorsey & Whitney LLP, counsel to the Borrower and (B) Kenneth V. Reif, Senior Vice President and General Counsel of the Borrower, each addressed to the Administrative Agent and each Lender as to such matters concerning the Borrower and the Loan Documents and Collateral Documents as the Required Lenders may reasonably request;




			
	
			
				 (xiv)
			a certificate signed by a Responsible Officer of the Borrower certifying (A) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (B) that on and as of the Closing Date the Borrower and its Subsidiaries, on a consolidated basis after giving effect to this Agreement, are Solvent; (C) the current Debt Ratings; (D) that, except as disclosed in Schedule 5.06 or the Borrower’s Annual Report on Form 10-K for the Fiscal Year ended December 31, 2017, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority now pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower (x) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (y) that question the validity or enforceability of this Agreement or any of the other Loan Documents; (E) that as of the Closing Date, the Borrower shall have received all consents, approvals or authorizations, or waivers thereof, of any Governmental Authority or any third Person required for the Borrower to execute and deliver this Agreement and the other Loan Documents and Collateral Documents; and (F) that on the Closing Date, after giving effect to the Borrower’s execution and delivery of this Agreement and the other Loan Documents and Collateral Documents, (i) no Default has occurred and is continuing and (ii) the Borrower shall be in material compliance with the Indenture and each other contract listed in Part A of Schedule 5.20 to which the Borrower is a party.




			
	
			
				 (xv)
			a duly completed Compliance Certificate, signed by a Responsible Officer of the Borrower;




			
	
			
				 (xvi)
			at least five Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act;




			
	
			
				 (xvii)
			evidence that aggregate commitments under the Existing Credit Agreement have been reduced to zero or the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all amounts paid or payable thereunder have been paid or concurrently with the Closing Date are being paid, and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;




			
	
			
				 (xviii)
			completion of due diligence with respect to environmental matters of the Borrower and its Subsidiaries reasonably satisfactory to the Arranger and the Administrative Agent;




			
	
			
				 (xix)
			completion of due diligence with respect to insurance matters of the Borrower and its Subsidiaries reasonably satisfactory to the Arranger and the Administrative Agent;




			
	
			
				 (xx)
			such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.




			
	
			
				 (b)
			Any fees required to be paid on or before the Closing Date shall have been paid.




			
	
			
				 (c)
			Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced not less than two Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).




			
	
			
				 (d)
			The Administrative Agent has received (i) from the Borrower an Internal Revenue Service Form W-9 and (ii) from each Lender the applicable form for such Lender described in Section 3.01(e)(ii).




		
			Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
		

			
	
			
				 4.02
			Conditions to all Credit Extensions.  The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of LIBOR Rate Loans) is subject to the following conditions precedent:




		
			 
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (a)
			The representations and warranties of the Borrower contained in Article V (other than (x) Sections 5.05(c),  5.10,  5.16, and 5.20 and (y) if any commercial paper issued by the Borrower is outstanding, in the case of a Borrowing of Committed Loans to provide liquidity for such commercial paper, Section 5.06(b)), shall be true and correct (i) in all respects, with respect to the representations and warranties qualified by materiality or Material Adverse Effect, or (ii) in all material respects, with respect to all other representations and warranties, on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.




			
	
			
				 (b)
			No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.




			
	
			
				 (c)
			The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.




		
			Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of LIBOR Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
		

			
	
			
				ARTICLE V.
			
REPRESENTATIONS AND WARRANTIES




		
			The Borrower represents and warrants to the Administrative Agent and the Lenders that:
		

			
	
			
				 5.01
			Existence, Qualification and Power; Compliance with Laws.  The Borrower (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents and the Collateral Documents to which it is a party, (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license and (d) is in compliance with Laws; except in each case referred to in clauses (b)(i),  (c) and (d), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.




		
			 
		

			
	
			
				 5.02
			Authorization; No Contravention.  The execution, delivery and performance by the Borrower of each Loan Document and each Collateral Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any material Lien (except as 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	created and imposed by the Indenture) under, or require any payment to be made under (i) any material Contractual Obligation (other than this Agreement) to which such Person is a party or affecting such Person or the material properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.




		
			 
		

			
	
			
				 5.03
			Governmental Authorization; Other Consents.  Except for the filings described in Section 6.16 and the filing by the Borrower of a current report on Form 8-K with the SEC, no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of any Loan Document or Collateral Document, which has not been obtained.




		
			 
		

			
	
			
				 5.04
			Binding Effect.  This Agreement has been, and each other Loan Document and Collateral Document, when delivered hereunder, will have been, duly executed and delivered by the Borrower that is party thereto.  This Agreement constitutes, and each other Loan Document and Collateral Document when so delivered will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower that is party thereto in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar Laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).




		
			 
		

			
	
			
				 5.05
			Financial Statements; No Material Adverse Effect.




			
	
			
				 (a)
			The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its subsidiaries as of the date thereof, including liabilities for Taxes, material commitments and Indebtedness.




			
	
			
				 (b)
			The unaudited consolidated balance sheet of the Borrower and its subsidiaries dated September 30, 2017, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.  Schedule 5.20 sets forth all indebtedness and other liabilities the aggregate principal or face amount of which equals or exceeds (or may equal or exceed) Threshold Amount, direct or contingent, of the Borrower and its subsidiaries as of the date of such financial statements, including liabilities for Taxes, material commitments and Indebtedness.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (c)
			Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to result in a Material Adverse Effect.




			
	
			
				 5.06
			Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to any Loan Document or Collateral Document, or any of the transactions contemplated hereby, or (b) except as disclosed in Schedule 5.06 or Borrower’s Annual Report on Form 10-K for the Fiscal Year ended December 31, 2017, filed with the Securities and Exchange Commission on March 9, 2018, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect, and there has been no adverse change in the status of, or financial effect on the Borrower or any of its Subsidiaries, of the matters described on Schedule 5.06.




		
			 
		

			
	
			
				 5.07
			No Default.  The Borrower is not in default under or with respect to the Indenture.  Neither the Borrower nor any of its Subsidiaries is in default under or with respect to any other Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by any Loan Document.




		
			 
		

			
	
			
				 5.08
			Ownership of Property; Liens.  The Borrower and each Subsidiary has good record and marketable title to real property, or valid leasehold interests in, license to or permit to all real property necessary or used in the ordinary conduct of its business, and has good title to the interests of all its other property, except for such defects as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The Mortgaged Property is subject to no Liens, other than Liens permitted by Section 7.01.




		
			 
		

			
	
			
				 5.09
			Maintenance of Properties.  The operations of the Borrower and its Subsidiaries are in accordance with Prudent Utility Practice (or in the case of a Subsidiary auxiliary to the electric utility business, in accordance with customs and practices standard for its line of business).




		
			 
		

			
	
			
				 5.10
			Environmental Compliance.  The Borrower and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Borrower has reasonably concluded that, except as specifically disclosed in Schedule 5.10, such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.




		
			 
		

			
	
			
				 (a)
			Except as otherwise set forth in Schedule 5.10, none of the properties currently or formerly owned or operated by the Borrower or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; there are no and never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	operated by the Borrower or any of its Subsidiaries or, to the best of the knowledge of the Borrower, on any property formerly owned or operated by the Borrower or any of its Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned or operated by the Borrower or any of its Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by the Borrower or any of its Subsidiaries, in each case except in the ordinary course of business and in compliance with requirements of Law and where the result thereof could not reasonably be expected to have a Material Adverse Effect.




			
	
			
				 (b)
			Except as otherwise set forth on Schedule 5.10, neither the Borrower nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by the Borrower or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to the Borrower or any of its Subsidiaries.




			
	
			
				 5.11
			Insurance.  The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates.




		
			 
		

			
	
			
				 5.12
			Taxes.  The Borrower and its Subsidiaries have filed all Federal, state and other material Tax returns and reports required to be filed, and have paid all Federal, state and other material Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no proposed Tax assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.  Neither the Borrower nor any of its Subsidiaries is party to any Tax sharing agreement.




		
			 
		

			
	
			
				 5.13
			ERISA Compliance.




			
	
			
				 (a)
			Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws.  Each Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income Tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service.  To the best knowledge of the Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (b)
			There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.




			
	
			
				 (c)
			(i) No ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Borrower and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.




			
	
			
				 (d)
			Neither the Borrower or any ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan other than (A) on the Closing Date, those listed on Schedule 5.13(d) hereto and (B) thereafter, Pension Plans not otherwise prohibited by this Agreement.




			
	
			
				 5.14
			Subsidiaries; Equity Interests.  As of the Closing Date, the Borrower has no Subsidiaries other than those specifically disclosed in Part A of Schedule 5.14, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Borrower in the amounts specified on Part A of Schedule 5.14 free and clear of all Liens.  As of the Closing Date, the Borrower has no equity investments in any other corporation or entity other than those specifically disclosed in Part B of Schedule 5.14.  All of the outstanding Equity Interests in the Borrower have been validly issued and are fully paid and nonassessable.




		
			 
		

			
	
			
				 5.15
			Margin Regulations; Investment Company Act.




			
	
			
				 (a)
			None of the Borrower or its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.




			
	
			
				 (b)
			None of the transactions contemplated by this Agreement (including the direct or indirect use of the proceeds of the Loans) will violate or result in a violation of the Securities Act 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	of 1933, as amended, the Securities Exchange Act of 1934, as amended, or regulations issued pursuant thereto, or Regulations T, U or X.




			
	
			
				 (c)
			None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.




			
	
			
				 (d)
			Following the application of the proceeds of each Borrowing hereunder or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower or of the Borrower and its Subsidiaries on a consolidated basis) will be margin stock.




			
	
			
				 5.16
			Disclosure.  The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered under any Loan Document or Collateral Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.




		
			 
		

			
	
			
				 5.17
			Compliance with Laws.  The Borrower and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.




		
			 
		

			
	
			
				 5.18
			Taxpayer Identification Number.  The Borrower’s true and correct U.S. taxpayer identification number is set forth on Schedule 10.02.




		
			 
		

			
	
			
				 5.19
			Intellectual Property; Licenses, Etc.  The Borrower and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person.  To the best knowledge of the Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any rights held by any other Person.  Except as specifically disclosed on Schedule 5.19, no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.




		
			 
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 5.20
			Material Agreements and Liens.




			
	
			
				 (a)
			Material Agreements.  Part A of Schedule 5.20 is a complete and correct list of each credit agreement, loan agreement, indenture, purchase agreement, guarantee, letter of credit or other arrangement providing for or otherwise relating to any Indebtedness or any extension of credit (or commitment for any extension of credit) to, or guarantee by, the Borrower or any of its Subsidiaries outstanding on the date hereof the aggregate principal or face amount of which equals or exceeds (or may equal or exceed) the Threshold Amount, and the aggregate principal or face amount outstanding or that may become outstanding as of December 31, 2017 under each such arrangement is correctly described in Part A of Schedule 5.20.  Each of the Borrower and its Subsidiaries is in material compliance with all covenants and agreements set forth in each of the credit agreements, loan agreements, indentures, purchase agreements, guarantees, letters of credit or other arrangements listed on Part A of Schedule 5.20 to which it is a party.




			
	
			
				 (b)
			Liens.  Part B of Schedule 5.20 is a complete and correct list of each Lien securing any series or item of Indebtedness of the Borrower or any of its Subsidiaries outstanding on the date hereof if the aggregate principal or face amount of such series or item of Indebtedness equals or exceeds (or may equal or exceed) the Threshold Amount and covering any property of the Borrower or any of its Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by each such Lien and the property covered by each such Lien is correctly described in Part B of Schedule 5.20;  provided,  however, that the amount set forth in Part B of Schedule 5.20 as the “Committed Amount Available”  under this Agreement reflects the extent to which the “Aggregate Commitments” under the Existing Credit Agreement were dedicated to support the Borrower’s outstanding commercial paper as of five Business Days immediately prior to the Closing Date.




			
	
			
				 5.21
			Solvency.  The Borrower is, and after giving effect to each Credit Extension hereunder will be, Solvent.




		
			 
		

			
	
			
				 5.22
			Wholesale Power Contracts.  The Borrower has heretofore delivered to the Administrative Agent complete and correct copies of the forms of the Wholesale Power Contracts and each amendment and supplement thereto (except for schedules to the Wholesale Power Contracts related to points of delivery for members, list of contracts with members, resale at wholesale of electricity by members, or an excerpt of a provision from Borrower’s contracts with the United States of America entitled “Resale of Electric Service”), and each of the Wholesale Power Contracts in effect on the date hereof (which are listed on Schedule 5.22) is substantially similar in all material respects to such forms.  The Borrower has not been informed of any condition or circumstance that would impair any Member’s ability to perform its obligations under any Wholesale Power Contract to which it is a party and that could reasonably be expected (either individually or in the aggregate) to result in a Material Adverse Effect.




		
			 
		

			
	
			
				 5.23
			Reserved.




			
	
			
				 5.24
			Indenture and Supplements.  The Indenture (together with any supplements modifying the terms thereof provided by the Borrower to the Administrative Agent from time to time) and Supplements 2,  20,  38,  40 and 41 thereto consist of the entire Indenture and Supplements thereto, other than (a) with respect to the Indenture, other supplements thereto which provide for 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	additional secured obligations thereunder and additional collateral descriptions and (b) exhibits and riders containing legal or property descriptions and locations, descriptions of the secured obligations and certain forms, none of which modify the terms and provisions of the covenants and agreements contained in the Indenture.




		
			 
		

			
	
			
				 5.25
			Collateral Documents.  The Indenture (excluding Supplement 41)  constitutes, and when Supplement 41 to the Indenture is executed and delivered by the Borrower and the Trustee and filed and recorded, the Indenture will constitute, a direct and valid lien upon all of the properties and assets of the Borrower specifically or generally described or referred to in the Indenture as being subject to the lien thereof, and will create a similar lien upon all properties and assets acquired by the Borrower after the date hereof which are required to be subjected to the lien of the Indenture, when acquired by the Borrower, and subject, as to real property, to the recordation of a supplement to the Indenture describing such after-acquired property; the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture; and the Indenture (excluding Supplement 41 to the Indenture) has been duly recorded as a mortgage and deed of trust of real estate, and any required filings (other than with respect to filing Supplement 41 to the Indenture) with respect to personal property and fixtures subject to the lien of the Indenture have been duly made in each place in which such recording or filing is required to protect, preserve and perfect the lien of the Indenture; and all Taxes and recording and filing fees required to be paid with respect to the execution, recording or filing of the Indenture, the filing of financing statements related thereto and similar documents and the issuance of the Secured Note (other than with respect to filing Supplement 41 to the Indenture) have been paid; Supplement 41 to the Indenture will be duly recorded or filed within 60 days of the Closing Date in the real and personal property records in each place in which the Indenture (excluding Supplement 41 to the Indenture) has been recorded or filed and in all other places required to protect, preserve and perfect the lien of the Indenture, and all Taxes and recording and filing fees required to be paid with respect to the execution, recording or filing of Supplement 41 to the Indenture will be paid.  Upon filing of Supplement 41 to the Indenture (or notices thereof) and financing statements in the official public records of the applicable jurisdictions, the lien and security interest so perfected shall be first and prior to any other lien or security interest on the Borrower’s right, title and interest in the Trust Estate (excluding the “Easements” listed on Exhibit A through Exhibit A-34 to the Indenture), subject only to the exceptions referred to in the Indenture and Permitted Liens and Encumbrances.




		
			 
		

			
	
			
				 5.26
			OFAC; Anti-Terrorism Laws.




			
	
			
				 (a)
			None of the Borrower, any of its Subsidiaries nor, to the knowledge of the Borrower, any director, officer, employee, agent, affiliate or representative thereof, is a Sanctioned Person or conducts any business in a Sanctioned Country or with a Sanctioned Person.    




			
	
			
				 (b)
			Neither the making of the Credit Extensions hereunder nor the use of the proceeds thereof will violate or will be used for the purposes of funding any activity, business or transactions that violates applicable Sanctions, applicable Anti-Corruption Laws, the Patriot Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.  The Borrower and its subsidiaries are in compliance in all material respects with the Patriot Act.    




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (c)
			The Borrower, its Subsidiaries and, to the knowledge of the Borrower, their respective directors, officers, employees, agents, affiliates and representatives thereof are in compliance with all applicable Sanctions and Anti-Corruption Laws.  The Borrower and its Subsidiaries have instituted and maintain policies and procedures designed to promote and achieve continued compliance with applicable Sanctions and Anti-Corruption Laws.




			
	
			
				 5.27
			EEA Financial Institutions.    The Borrower is not an EEA Financial Institution.




		
			 
		

			
	
			
				ARTICLE VI.
			
AFFIRMATIVE COVENANTS




		
			So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01,  6.02, and 6.03) cause each Restricted Subsidiary to:
		

			
	
			
				 6.01
			Financial Statements.  Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:




		
			 
		

			
	
			
				 (a)
			as soon as available, but in any event within 120 days after the end of each Fiscal Year of the Borrower (or, if earlier, 15 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), a consolidated balance sheet of the Borrower and its subsidiaries as at the end of such Fiscal Year, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; and




			
	
			
				 (b)
			as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, five days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal quarter ended March 31, 2018), a consolidated balance sheet of the Borrower and its subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, and the related consolidated statements of cash flows for the portion of the Borrower’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief executive officer, chief financial officer or treasurer of the Borrower as fairly presenting the financial condition, results of operations, and cash flows of the Borrower and its subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.




		
			As to any information contained in materials furnished pursuant to Section 6.02(c), the Borrower shall not be separately required to furnish such information under clause (a) or (b) above, but the 


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.  In no event shall any Restricted Subsidiary be required to provide separate financial statements to the Administrative Agent or any Lender.
		

			
	
			
				 6.02
			Certificates; Other Information.  Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:




		
			 
		

			
	
			
				 (a)
			concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended March 31, 2018), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes);




			
	
			
				 (b)
			promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;




			
	
			
				 (c)
			promptly after any request by the Administrative Agent or any Lender, copies of any filings and registrations with, and reports to and from, any Governmental Authority, including the SEC; and




			
	
			
				 (d)
			promptly, such additional information regarding the business, financial or corporate affairs (including budget and forecast information) of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents or Collateral Documents, as the Administrative Agent or any Lender may from time to time reasonably request.




		
			Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for 


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
		

		
			The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtX or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
		

			
	
			
				 6.03
			Notices.  Promptly notify the Administrative Agent and each Lender:




		
			 
		

			
	
			
				 (a)
			of the occurrence of any Default;




			
	
			
				 (b)
			of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, the Indenture or any Wholesale Power Contract; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;




			
	
			
				 (c)
			of the occurrence of any ERISA Event;




			
	
			
				 (d)
			of any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary;




			
	
			
				 (e)
			of any amendment (other than amendments to schedules to the Wholesale Power Contracts related to points of delivery for members, list of contracts with members, resale at wholesale of electricity by members, or an excerpt of a provision from the Borrower’s contracts with the United States of America entitled “Resale of Electric Service”) or termination of or material default under any Wholesale Power Contract;




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (f)
			of any announcement by Moody’s, S&P or Fitch of any change or possible change in a Debt Rating;




			
	
			
				 (g)
			formation or acquisition of any Subsidiary, Equity Interests or equity investments in any other corporation or entity of the Borrower other than those specifically disclosed on Schedule 5.14 or those which do not have, in the aggregate, considered with all other Subsidiaries, Equity Interests, or other corporations or entities of the Borrower not disclosed on Schedule 5.14 or in accordance with this Section 6.03(g), total net worth in excess of the Threshold Amount;




			
	
			
				 (h)
			when any Subsidiary becomes or ceases to be a Restricted Subsidiary in accordance with Section 6.14; and




			
	
			
				 (i)
			of the adoption by the Borrower or a Restricted Subsidiary of a board resolution providing for the retirement of (and the instrument creating any Balloon Indebtedness shall permit the retirement of), or for the establishment of a sinking fund for, such Balloon Indebtedness according to a fixed schedule stated in such resolution.




		
			Each notice pursuant to this Section 6.03 (other than Section 6.03(f)) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of any Loan Document or Collateral Document that have been breached.
		

			
	
			
				 6.04
			Payment of Obligations.  Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by Law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness, in each case to the extent that the failure to so pay and discharge could reasonably be expected to have a Material Adverse Effect.




		
			 
		

			
	
			
				 6.05
			Preservation of Existence, Etc.    (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05;  (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.




		
			 
		

			
	
			
				 6.06
			Maintenance of Properties.  Operate in accordance with Prudent Utility Practice (or in the case of a Subsidiary auxiliary to the electric utility business, in accordance with customs and practices standard for its line of business).




		
			 
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 6.07
			Maintenance of Insurance.  Will, and will cause each of its Restricted Subsidiaries to, at all times keep or cause to be kept all of its property and operations or interest therein of an insurable nature and of the character usually insured by companies operating similar properties and engaged in similar operations insured in amounts customarily carried and against loss or damage from such cases as are customarily insured against by similar companies in accordance with Prudent Utility Practice.  All such insurance shall be effected with responsible insurance carriers, or by the Borrower in the case of self insurance, and all such insurance shall otherwise comply with the Indenture in all material respects.




		
			 
		

			
	
			
				 6.08
			Compliance with Laws.  Comply in all material respects with the requirements of all Laws (including all Environmental Laws and the provisions of ERISA) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.




		
			 
		

			
	
			
				 6.09
			Compliance with Indenture and Wholesale Power Contracts.  Comply in all material respects with the requirements of the Indenture and the Wholesale Power Contracts except in such instances in which (a) such requirement is being disputed in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.




		
			 
		

			
	
			
				 6.10
			Books and Records.    (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower or its subsidiaries, as the case may be and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or its Subsidiaries, as the case may be.




		
			 
		

			
	
			
				 6.11
			Inspection Rights.  Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.




		
			 
		

			
	
			
				 6.12
			Use of Proceeds.  Use the proceeds of the Credit Extensions for working capital, capital expenditures, and other general corporate purposes not in contravention of any Law or of any Loan Document or Collateral Document.




		
			 
		

			
	
			
				 6.13
			Preparation of Environmental Reports.  At the request of the Required Lenders, and only in the case of incurrence of Environmental Liability which could reasonably be expected to be in excess of the Threshold Amount, provide to the Lenders within 120 days after such request, at the expense of the Borrower, an environmental site assessment report for any of its properties 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	described in such request, prepared by an environmental consulting firm acceptable to the Administrative Agent, indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance, removal or remedial action in connection with any Hazardous Materials on such properties; without limiting the generality of the foregoing, if the Administrative Agent determines at any time that a material risk exists that any such report will not be provided within the time referred to above, the Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of the Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary that owns any property described in such request to grant at the time of such request to the Administrative Agent, the Lenders, such firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their respective properties to undertake such an assessment.




		
			 
		

			
	
			
				 6.14
			Restricted Subsidiaries.




			
	
			
				 (a)
			Any Subsidiary may become a Restricted Subsidiary or cease to be a Restricted Subsidiary in accordance with Section 4.17 of the Indenture.




			
	
			
				 (b)
			Any Subsidiary not designated as a Restricted Subsidiary pursuant to Section 4.17 of the Indenture shall not be subject to the covenants established by the Borrower in this Agreement.




			
	
			
				 6.15
			CoBank Equities.  So long as CoBank is a Lender hereunder, (i) maintain its status as an entity eligible to borrow from CoBank and (ii) acquire equity in CoBank in such amounts and at such times as CoBank may require in accordance with CoBank’s Bylaws and Capital Plan (as each may be amended from time to time), except that the maximum amount of equity that Borrower may be required to purchase in CoBank in connection with the Loans made by CoBank may not exceed the maximum amount permitted by the Bylaws and Capital Plan at the time this Agreement is entered into.  The Borrower acknowledges receipt of a copy of (x) CoBank’s most recent annual report, and if more recent, CoBank’s latest quarterly report, (y) CoBank’s Notice to Prospective Stockholders and (z) CoBank’s Bylaws and Capital Plan, which describe the nature of all of the Borrower’s cash patronage, stock and other equities in CoBank acquired in connection with its patronage loan from CoBank (the “CoBank Equities”) as well as capitalization requirements, and agrees to be bound by the terms thereof.




		
			 
		

			
	
			
				 6.16
			Evidence of Financing Statements, etc.  Within 60 days following the Closing Date, all financing statements required or permitted to be filed in accordance with the Uniform Commercial Code, Supplement 41 to the Indenture, or other instruments with respect thereto as may be necessary shall have been duly filed or recorded in such a manner and in such places as is satisfactory to the Administrative Agent (and no other instruments shall be required to be filed) to establish and perfect the security interests and liens of the Trustee in the Mortgaged Property created by or pursuant to the Indenture and which can be perfected by filing Supplement 41 to the Indenture or a financing statement under the Uniform Commercial Code and shall have delivered reasonably appropriate evidence of the same to the Administrative Agent.




		
			 
		

			
	
			
				 6.17
			OFAC; Patriot Act Compliance.  Will, and will cause each of its subsidiaries to, (a) refrain from doing business in a Sanctioned Country or with a Sanctioned Person, in each case in violation of Sanctions, (b) provide, to the extent commercially reasonable, such information and 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	take such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot Act and (c) conduct its businesses in compliance with applicable Anti-Corruption Laws and maintain policies and procedures designed to promote and achieve compliance with such Laws.




		
			 
		

			
	
			
				 6.18
			Further Assurances.  From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as the Administrative Agent may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents and the Collateral Documents.




		
			 
		

			
	
			
				ARTICLE VII.
			
NEGATIVE COVENANTS




		
			So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:
		

			
	
			
				 7.01
			Liens.  Grant, create, assume, incur, or suffer to exist, be granted, created, assumed, incurred or to extend any lien or encumbrance upon any of its Mortgaged Property or any property of the Restricted Subsidiary pledged to the Trustee (except “excepted property” or “excluded property” of the Restricted Subsidiaries on terms similar to the terms relating thereto in the Indenture), whether now owned or hereafter acquired, except Permitted Liens and Encumbrances and CoBank’s statutory Lien in the CoBank Equities.




		
			 
		

			
	
			
				 7.02
			Investments.  Make any Investments, except:




		
			 
		

			
	
			
				 (a)
			Investments outstanding on the date hereof;




			
	
			
				 (b)
			operating deposit accounts with banks;




			
	
			
				 (c)
			Investments for cash management purposes made pursuant to a written investment policy approved by the Board of Directors of the Borrower, a copy of which has been provided to the Administrative Agent;




			
	
			
				 (d)
			Investments by the Borrower and its Restricted Subsidiaries in the Borrower and its Restricted Subsidiaries;




			
	
			
				 (e)
			hedging agreements entered into in the ordinary course of the Borrower’s business and not for speculative purposes;




			
	
			
				 (f)
			Investments consisting of security deposits made in the ordinary course of business; 




			
	
			
				 (g)
			retained earnings or patronage of Subsidiaries and patronage allocated to the Borrower or a Subsidiary as a result of transactions in the ordinary course of business with cooperatives;




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (h)
			Investments made in connection with the Borrower and its Subsidiaries in other businesses related to the System; and




			
	
			
				 (i)
			additional Investments approved by the Board of Directors of the Borrower that do not in the aggregate with all other Investments (except those described in clauses (a) through (h) above) exceed $675,000,000.




			
	
			
				 7.03
			Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except Indebtedness under the Loan Documents and the Collateral Documents and as permitted pursuant to Section 4.02 of the Indenture.




		
			 
		

			
	
			
				 7.04
			Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except, so long as no Default exists or would result therefrom, as otherwise permitted by Section 4.10 or Article 8 of the Indenture.




		
			 
		

			
	
			
				 7.05
			Dispositions.  Make any Disposition or enter into any agreement to make any Disposition, except as permitted in the Indenture.




		
			 
		

			
	
			
				 7.06
			Restricted Payments.  Make Restricted Payments unless (a) no Default has occurred and is continuing or would result from such distribution; and (b) after such Restricted Payment the Equity to Capitalization Ratio shall be not less than the applicable percentage set forth in Section 7.13(a).




		
			 
		

			
	
			
				 7.07
			Change in Nature of Business.  Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the date hereof or any business substantially related or incidental thereto.




		
			 
		

			
	
			
				 7.08
			Wholesale Power Contracts, Organization Documents.




			
	
			
				 (a)
			Modify, supplement or waive any provision of any Wholesale Power Contract (other than amendments to schedules to the Wholesale Power Contract related to points of delivery for members, list of contracts with members, resale at wholesale of electricity by members, or an excerpt of a provision from Borrower’s contracts with the United States of America entitled “Resale of Electric Service”) unless such modification, supplement or waiver could not reasonably be expected to prevent the Borrower from setting its rates thereunder to recover all of its costs and expenses to the extent not covered by other moneys available to the Borrower;




			
	
			
				 (b)
			Terminate any Wholesale Power Contract unless such termination could not reasonably be expected to prevent the Borrower from setting its rates under the remaining Wholesale Power Contracts to recover all of its costs and expenses to the extent not covered by other moneys available to the Borrower; or




			
	
			
				 (c)
			Modify, supplement or waive any provision of any Organization Document of the Borrower unless such modification, supplement or waiver could not reasonably be expected to have a Material Adverse Effect.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 7.09
			Transactions with Affiliates.  Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to transactions between or among the Borrower and any Subsidiaries or between and among any Subsidiaries.




		
			 
		

			
	
			
				 7.10
			Restrictive Agreements.  Enter into any Contractual Obligation (other than any Loan Document or Collateral Document) that (a) limits the ability (i) of any Restricted Subsidiary to make Restricted Payments to the Borrower or to otherwise transfer property to the Borrower, (ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.03 solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness; (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person, (c) prohibits or limits the ability of the Borrower to create, incur, assume or suffer to exist CoBank’s statutory first Lien on the CoBank Equities or (d) prohibits or limits the ability of the Borrower to perform its obligations under any Loan Document or Collateral Document.




		
			 
		

			
	
			
				 7.11
			Use of Proceeds.    (a) Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose and (b) use Credit Extensions in an aggregate amount in excess of the CP Backup Sublimit to provide liquidity for the Borrower’s commercial paper program.




		
			 
		

			
	
			
				 7.12
			Changes in Accounting Policies, Fiscal Periods.




			
	
			
				 (a)
			Permit any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary; or




			
	
			
				 (b)
			Permit the fiscal year of the Borrower to end on a day other than December 31.




			
	
			
				 7.13
			Financial Covenants




			
	
			
				 (a)
			Equity to Capitalization Ratio.  Permit the Equity to Capitalization Ratio to be less than 18% as of the last day of any calendar quarter.




			
	
			
				 (b)
			Debt Service Ratio.  Permit the Debt Service Ratio to be less than 110% as of the last day of any calendar year;




		
			provided that if the Debt Service Ratio is less than 110% as of the last day of any calendar year, a plan must be implemented pursuant to Section 4.03 of the Indenture.
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 7.14
			Sanctions.   (a) Directly or indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise make available such proceeds to any Person, to fund any activities of or business with such Person or in any Sanctioned Country, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions; or (b) directly or indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or other similar legislation in other jurisdictions.




		
			 
		

			
	
			
				ARTICLE VIII.
			
EVENTS OF DEFAULT AND REMEDIES




			
	
			
				 8.01
			Events of Default.  Any of the following shall constitute an Event of Default:




		
			 
		

			
	
			
				 (a)
			Non-Payment.  The Borrower fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation (except for an L/C Obligation funded by a Committed Loan), or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or




			
	
			
				 (b)
			Specific Covenants.  The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01,  6.02,  6.03,  6.05 or 6.12 or Article VII; or




			
	
			
				 (c)
			Other Defaults.  The Borrower fails to perform or observe any other covenant or agreement (not specified in clause (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier of (i) knowledge thereof by a Responsible Officer or (ii) notice thereof from the Administrative Agent (given at the request of any Lender) to the Borrower; or




			
	
			
				 (d)
			Representations and Warranties.  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading (i) in any respect, with respect to the representations and warranties qualified by materiality or Material Adverse Effect, or (ii) in any material respect, with respect to all other representations and warranties, when made or deemed made; or




			
	
			
				 (e)
			Cross-Default.  (i) The Borrower or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which failure is to cause, or to permit the holder or holders of such 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Indebtedness or the beneficiary or beneficiaries of such Guarantee of more than the Threshold Amount (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from any event of default under such Swap Contract as to which the Borrower is the Defaulting Party (as defined in such Swap Contract) and, in either event, the Swap Termination Value owed by the Borrower as a result thereof is greater than the Threshold Amount; or




			
	
			
				 (f)
			Insolvency Proceedings, Etc.  The Borrower or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or




			
	
			
				 (g)
			Inability to Pay Debts; Attachment.  (i) The Borrower or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or




			
	
			
				 (h)
			Judgments.  There is entered against the Borrower or any Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or




			
	
			
				 (i)
			ERISA.  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect; or




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (j)
			Wholesale Power Contracts.  One or more Members, the aggregate of which at any time constitute twenty-five percent (25%) or more of the Revenues of the Borrower for the previous Fiscal Year, shall default in the performance of any payment obligation under its or their Wholesale Power Contracts where the aggregate amount of such default or defaults exceeds $50,000,000 and such default or defaults have continued for 35 days beyond the due date with respect thereto unless within 60 days thereafter Borrower raises rates which could, in the judgment of the Required Lenders, be expected to recover the reduction in Revenues attributable to such default.




			
	
			
				 (k)
			Invalidity of Loan Documents.  Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Borrower or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or the Borrower denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document;




			
	
			
				 (l)
			Collateral Documents.  Any Collateral Document after delivery thereof pursuant to Section 4.01 or 6.14 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section 7.01 and Disposition permitted by Section 4.10 of the Indenture) on the Collateral purported to be covered thereby; or




			
	
			
				 (m)
			Change of Control.  There occurs any Change of Control.




			
	
			
				 8.02
			Remedies Upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:




		
			 
		

			
	
			
				 (a)
			declare the commitment of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;




			
	
			
				 (b)
			declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;




			
	
			
				 (c)
			require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and




			
	
			
				 (d)
			exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents and Collateral Documents;




		
			provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall 


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
		

			
	
			
				 8.03
			Application of Funds.  After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.15 and 2.16, be applied by the Administrative Agent in the following order:




		
			 
		

		
			First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
		

		
			Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers (including fees and time charges for attorneys who may be employees of any Lender or any L/C Issuer) and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
		

		
			Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Third payable to them;
		

		
			Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them;
		

		
			Fifth, to the Administrative Agent for the account of the L/C Issuers, to Cash Collateralize that portion of L/C Obligations composed of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.16; and
		

		
			Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
		

		
			Subject to Sections 2.03(c) and 2.15, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				ARTICLE IX.
			
ADMINISTRATIVE AGENT




			
	
			
				 9.01
			Appointment and Authority.  Each of the Lenders and each L/C Issuer hereby irrevocably appoints CFC to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and the Borrower shall not have rights as a third party beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law.  Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.




		
			 
		

			
	
			
				 9.02
			Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.




		
			 
		

			
	
			
				 9.03
			Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, the Administrative Agent:




		
			 
		

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




			
	
			
				 (b)
			shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and




			
	
			
				 (c)
			shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.




		
			The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.
		

		
			The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document or Collateral Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or Collateral Document or any other agreement, instrument or document or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
		

			
	
			
				 9.04
			Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.




		
			 
		

			
	
			
				 9.05
			Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facility provided for herein as well as activities as Administrative Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.




		
			 
		

			
	
			
				 9.06
			Resignation and Removal of Administrative Agent.    




		
			 
		

			
	
			
				 (a)
			The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with consent of the Borrower (not to be unreasonably withheld, conditioned or delayed), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders, with the consent of the Borrower (not to be unreasonably withheld, conditioned or delayed), and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender.  Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.




			
	
			
				 (b)
			If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent not prohibited by applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.




			
	
			
				 (c)
			With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security, including Cash Collateral, held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	the other Loan Documents (if not already discharged therefrom as provided above in this Section), including with respect to the Secured Note.  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.




			
	
			
				 (d)
			Any resignation by CFC as Administrative Agent pursuant to this Section shall also constitute its resignation as an L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.




			
	
			
				 9.07
			Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or Collateral Document or any related agreement or any document furnished hereunder or thereunder.




		
			 
		

			
	
			
				 9.08
			No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the Arranger, arrangers, bookrunners, syndication agents, documentation agents or co-agents, if any, shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents or Collateral Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.




		
			 
		

			
	
			
				 9.09
			Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise.




		
			 
		

			
	
			
				 (a)
			to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(h) and (i),  2.09 and 10.04) allowed in such judicial proceeding; and




			
	
			
				 (b)
			to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;




		
			and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04.
		

		
			Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
		

			
	
			
				 9.10
			Administrative Agent to Hold Note.  Each Lender acknowledges that the Administrative Agent will be the Holder (as defined in the Indenture) of the Secured Note for the benefit of each of the Lenders.




		
			 
		

			
	
			
				 9.11
			Lender Representations Regarding ERISA.




		
			 
		

			
	
			
				 (a)
			Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent, the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:




			
	
			
				 (i)
			such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments;




			
	
			
				 (ii)
			the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement;




			
	
			
				 (iii)
			(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14, and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I or PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement; or




			
	
			
				 (iv)
			such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.




			
	
			
				 (b)
			In addition, unless the immediately preceding clause (a)(i) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in the immediately preceding clause (a)(iv), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower, that:




			
	
			
				 (i)
			none of the Administrative Agent, the Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto);




			
	
			
				 (ii)
			the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E);




			
	
			
				 (iii)
			the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations);




			
	
			
				 (iv)
			the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions thereunder; and




			
	
			
				 (v)
			no fee or other compensation is being paid directly to the Administrative Agent, the Arranger or any of their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.




			
	
			
				 (c)
			The Administrative Agent and the Arranger hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender, or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.




			
	
			
				ARTICLE X.
			
MISCELLANEOUS




			
	
			
				 10.01
			Amendments, Etc.  No amendment or waiver of any provision of any Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:




		
			 
		

			
	
			
				 (a)
			waive any condition set forth in Section 4.01(a) without the written consent of each Lender;




			
	
			
				 (b)
			extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;




			
	
			
				 (c)
			postpone any date fixed by any Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;




			
	
			
				 (d)
			reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees or other 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to (i) amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;




			
	
			
				 (e)
			change Section 2.13 or 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;




			
	
			
				 (f)
			change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;




			
	
			
				 (g)
			release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender; or




			
	
			
				 (h)
			approve any amendment or waiver under the Indenture that, if such an amendment or waiver was made under this Agreement would require the written consent of each Lender pursuant to this Section 10.01, without the written consent of each Lender;




		
			and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of any L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under any Loan Document; (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.  Notwithstanding anything to the contrary herein, the Administrative Agent shall only exercise any voting rights as a Holder under the Indenture at the direction of the Required Lenders or all Lenders, as applicable, in accordance with this Section 10.01.
		

			
	
			
				 10.02
			Notices; Effectiveness; Electronic Communication.




			
	
			
				 (a)
			Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), all 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:




			
	
			
				 (i)
			if to the Borrower, the Administrative Agent, an L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and




			
	
			
				 (ii)
			if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).




		
			Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in clause (b) below, shall be effective as provided in such clause (b).
		

			
	
			
				 (b)
			Electronic Communications.  Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent, the Swing Line Lender, an L/C Issuer or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.




		
			Unless the Administrative Agent otherwise prescribes, notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement);  provided that if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
		

			
	
			
				 (c)
			The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided that in no event shall any Agent Party have any liability to the Borrower, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).




			
	
			
				 (d)
			Change of Address, Etc.  Each of the Borrower, the Administrative Agent, each L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuers and the Swing Line Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.




			
	
			
				 (e)
			Reliance by Administrative Agent, L/C Issuers and Lenders.  The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 10.03
			No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.




		
			 
		

		
			Notwithstanding anything to the contrary contained herein or in any other Loan Document or Collateral Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents and Collateral Documents against the Borrower or any of them shall be vested exclusively in, and all actions and proceedings at Law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuers; provided that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents and Collateral Documents, (b) the L/C Issuers or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents and Collateral Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any Debtor Relief Law; and provided,  further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents and Collateral Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b),  (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
		

			
	
			
				 10.04
			Expenses; Indemnity; Damage Waiver.




			
	
			
				 (a)
			Costs and Expenses.  The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents and Collateral Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuers in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuers (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or an L/C Issuer)in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents and Collateral Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.




			
	
			
				 (b)
			Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or Collateral Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents and Collateral Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE;  provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower against an Indemnitee for material breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document or Collateral Document, if the Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.




			
	
			
				 (c)
			Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), an L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such L/C Issuer, the Swing Line Lender or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or an L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	an L/C Issuer or the Swing Line Lender in connection with such capacity.  The obligations of the Lenders under this clause (c) are subject to the provisions of Section 2.12(d).




			
	
			
				 (d)
			Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.




			
	
			
				 (e)
			Payments.  All amounts due under this Section 10.04 shall be payable not later than ten Business Days after demand therefor.




			
	
			
				 (f)
			Survival.  The agreements in this Section shall survive the resignation of the Administrative Agent, an L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.




			
	
			
				 10.05
			Payments Set Aside.  To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, an L/C Issuer or any Lender, or the Administrative Agent, an L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.




		
			 
		

			
	
			
				 10.06
			Successors and Assigns.




			
	
			
				 (a)
			Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of clause (b) of this Section, (ii) by way of participation in accordance with the provisions of clause (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of clause (g) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.




			
	
			
				 (b)
			Assignments by Lenders.  Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this clause (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:




			
	
			
				 (i)
			Minimum Amounts.




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




			
	
			
				 (B)
			in any case not described in clause (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $10,000,000 or a whole multiple of $1,000,000 in excess thereof unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.




			
	
			
				 (ii)
			Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (iii)
			Required Consents.  No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section and, in addition:




			
	
			
				 (A)
			the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, or an Affiliate of a Lender; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof;




			
	
			
				 (B)
			the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender or an Affiliate of such Lender;




			
	
			
				 (C)
			the consent of the L/C Issuers (such consent not to be unreasonably withheld or delayed) shall be required for any assignment (i) to an assignee not then a Lender or (ii) that increases the obligation of the assignee that is then a Lender to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and




			
	
			
				 (D)
			the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment.




			
	
			
				 (iv)
			Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.




			
	
			
				 (v)
			No Assignment to Certain Persons.  No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person).




			
	
			
				 (vi)
			Certain Additional Payments.  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each L/C Issuer, the Swing Line Lender and each other Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this clause, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.




		
			Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01,  3.04,  3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (d) of this Section.
		

			
	
			
				 (c)
			Register.  The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for Tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of (and stated interest on) the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender.  The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.




			
	
			
				 (d)
			Participations Generally.  Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person (or holding company, investment vehicle or trust for, or owned and operated for, 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	the primary benefit of a natural person), a Defaulting Lender, Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(d) with respect to any payments made by such Lender to its Participants.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant.  Subject to clause (f) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01,  3.04 and 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 3.06 as if it were an assignee under clause (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(f) as though it were a Lender.  To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as an a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (e)
			Notwithstanding anything in this Section 10.06 to the contrary, any institution that is a Farm Credit Lender that (i) has purchased a participation in the minimum aggregate amount of $15,000,000 on or after the Closing Date, (ii) is, by written notice to the Borrower and the Administrative Agent (“Voting Participant Notification”), designated by the assigning Lender (including any existing Voting Participant) as being entitled to be accorded the rights of a Voting Participant hereunder and (iii) receives the prior written consent of the Borrower and the Administrative Agent to become a Voting Participant (such consent of the Borrower or the Administrative Agent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with Section 10.06(b)) (any such Farm Credit Lender so designated and consented to being called a “Voting Participant”), shall be entitled to vote for so long as such Farm Credit Lender owns such participation and notwithstanding any subparticipation by such Farm Credit Lender (and the voting rights of the assigning Lender (including any existing Voting Participant) shall be correspondingly reduced), on a dollar for dollar basis, as if such participant were a Lender, on any matter requiring or allowing a Lender to provide or withhold its consent, or to otherwise vote on any proposed action.  To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (x) state the full name, as well as all contact information required of an assignee in an Assignment and Assumption and (y) state the dollar amount of the participation purchased in its Commitment or any or all of its Loans.  Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant on Schedule 10.06(e) hereto shall be deemed a Voting Participant without delivery of a Voting Participant Notification and without the prior written consent of the Borrower or the Administrative Agent.  The assigning Lender (including any existing Voting Participant) and the purchasing Voting Participant shall notify the Administrative Agent and the Borrower within three Business Days’ of any termination of, or reduction or increase in the amount of, such participation.  The Borrower and the Administrative Agent shall be entitled to conclusively rely on information contained in notices delivered pursuant to this clause.  The voting rights hereunder are solely for the benefit of the Voting Participant and shall not inure to any assignee or participant of the Voting Participant that is not a Farm Credit Lender.




			
	
			
				 (f)
			Limitations upon Participant Rights.  A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.




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




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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				 (h)
			Resignation as L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time a Lender who is an L/C Issuer or the Swing Line Lender assigns all of its Commitment and Loans pursuant to clause (b) above, (i) such L/C Issuer, may, upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) such Swing Line Lender, may, upon 30 days’ notice to the Borrower, resign as Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided that such Lender’s consent to such appointment shall be required; and provided further that no failure by the Borrower to appoint any such successor shall affect the resignation of such Lender as L/C Issuer or Swing Line Lender, as the case may be.  If a Lender who is an L/C Issuer resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If a Lender resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).  Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (x) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (y) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the previous L/C Issuer to effectively assume the obligations of the previous L/C Issuer with respect to such Letters of Credit.




			
	
			
				 10.07
			Treatment of Certain Information; Confidentiality.  Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by, or required to be disclosed to, any rating agency or any regulatory or similar authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or Collateral Document or any action or proceeding relating to any Loan Document or Collateral Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the credit facility provided for herein and in connection with the preparation and issuance of marketing press releases or other transactional announcements or 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	updates provided to investor or trade publications, in each case subject to confidentiality obligations or disclosure restrictions reasonably requested by the Borrower, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.  Notwithstanding the foregoing, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors and similar service providers to the lending industry.




		
			 
		

		
			For purposes of this Section, “Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary; provided that, in the case of information received from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential.
		

		
			Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
		

			
	
			
				 10.08
			Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under any Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under any Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	Affiliates may have.  Each Lender and each L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.




		
			 
		

			
	
			
				 10.09
			Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)  characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.




		
			 
		

			
	
			
				 10.10
			Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents and Collateral Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.




		
			 
		

			
	
			
				 10.11
			Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.




		
			 
		

			
	
			
				 10.12
			Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this Section 10.12, if and to 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the applicable L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.




		
			 
		

			
	
			
				 10.13
			Replacement of Lenders.  If (i) any Lender requests compensation under Section 3.04, (ii) if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (iii) the obligation of any Lender to make LIBOR Rate Loans has been suspended pursuant to Section 3.02, (iv) any Lender is a Defaulting Lender, (v) any Lender (a “Non-Consenting Lender”) does not consent to a proposed change, waiver, discharge or termination with respect to any Loan Document or Collateral Document that has been approved by the Required Lenders as provided in Section 10.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable) or (vi) if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents and Collateral Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:




		
			 
		

			
	
			
				 (a)
			the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b);




			
	
			
				 (b)
			such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents and Collateral Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);




			
	
			
				 (c)
			in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;




			
	
			
				 (d)
			such assignment does not conflict with applicable Laws; and




			
	
			
				 (e)
			in the case of any such assignment resulting from a Non-Consenting Lender’s failure to consent to a proposed change, waiver, discharge or termination with respect to any Loan Document or Collateral Document, the applicable replacement bank, financial institution or Fund consents to the proposed change, waiver, discharge or termination; provided that the failure by such Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C Obligations and Swing Line Loans pursuant to this Section 10.13 shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment and Assumption.




		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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			A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
		

		
			Notwithstanding anything in this Section to the contrary, any Lender that acts as an L/C Issuer may not be replaced hereunder at any time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Lender (including the furnishing of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to such L/C Issuer or the depositing of cash collateral into a cash collateral account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit.
		

			
	
			
				 10.14
			Governing Law; Jurisdiction; Etc.




			
	
			
				 (a)
			GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




			
	
			
				 (b)
			SUBMISSION TO JURISDICTION.  THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.




			
	
			
				 (c)
			WAIVER OF VENUE.  THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




			
	
			
				 (d)
			SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.




			
	
			
				 10.15
			Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




		
			 
		

			
	
			
				 10.16
			No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document or Collateral Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arranger and the Lenders are arm’s-length commercial transactions among the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arranger and the Lenders, on the other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and Tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents and Collateral Documents; (b)(i) each of the Administrative Agent, the Arranger and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person, and (ii) none of  the Administrative Agent, the Arranger or any Lender has transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents and Collateral Documents; and (iii) the Administrative Agent, the Arranger and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Administrative Agent, the Arranger or the Lenders has any obligation to disclose any of such interests to the Borrower or its Affiliates.  To the fullest extent permitted by Law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Arranger and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.




		
			 
		

			
	
			
				 10.17
			Electronic Execution of Assignments and Certain Other Documents.  The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	modifications, Committed Loan Notices, Swing Line Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.




		
			 
		

			
	
			
				 10.18
			USA PATRIOT Act.  Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act.  The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.




		
			 
		

			
	
			
				 10.19
			Time of the Essence.  Time is of the essence of the Loan Documents.




		
			 
		

			
	
			
				 10.20
			Acknowledgement and Consent to Bail-In of EEA Financial Institutions.    Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:




		
			 
		

			
	
			
				 (a)
			the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and




			
	
			
				 (b)
			the effects of any Bail-in Action on any such liability, including, if applicable:




			
	
			
				 (i)
			a reduction in full or in part or cancellation of any such liability;




			
	
			
				 (ii)
			a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares 





		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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	or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under any Loan Document; or




			
	
			
				 (iii)
			the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.




			
	
			
				 10.21
			Advertising Materials.  The Borrower consents to the publication by the Administrative Agent or any Lender of customary advertising material relating to the transactions contemplated hereby using the name, product, photographs, logo or trademark of the Borrower. 




		
			 
		

			
	
			
				 10.22
			ENTIRE AGREEMENT.    THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.




		
			 
		

		
			 
		

		
			


		 


			

					

						 


					

					

						 


					

					

						 


				




		

			 

		


			

					

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

		
			TRI-STATE GENERATION AND
TRANSMISSION ASSOCIATION, INC.



By:  /s/ Patrick L. Bridges

Name:  Patrick L. Bridges
Title: Senior Vice President and Chief
Financial Officer
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			NATIONAL RURAL UTILITIES
COOPERATIVE FINANCE
CORPORATION, as
Administrative Agent, a Lender, an L/C Issuer and the Swing Line Lender



By:  /s/ J. Andrew Don

Name: J. Andrew Don

Title: Senior Vice President and Chief
Financial Officer
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			U.S. BANK NATIONAL ASSOCIATION, as a Lender and an L/C Issuer



By:     /s/ Eric Cosgrove

Name: Eric Cosgrove

Title: Senior Vice President
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			MUFG Bank, Ltd., as a Lender



By:  /s/ Viet-Linh Fujitaki

Name: Viet-Linh Fujitaki

Title: Vice President
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			Bank of America, N.A., as a Lender



By:  /s/ John Sletten

Name: John Sletten

Title: Vice President
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			Wells Fargo, National Association, as a Lender



By:  /s/ Monica L. Balters

Name: Monica L. Balters

Title: Senior Vice President
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			CoBank, ACB, as a Lender



By:  /s/ C. Brock Taylor

Name: C. Brock Taylor

Title: Vice President
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			Branch Banking and Trust Company, as a Lender



By:  /s/ Jim Wright

Name: Jim Wright

Title: Assistant Vice President
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			KEYBANK NATIONAL ASSOCIATION, as a Lender



By:  /s/ Keven D. Smith

Name:  Keven D. Smith

Title: Senior Vice President
		

		
			
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			Goldman Sachs Bank USA, as a Lender



By:     /s/ Ryan Durkin

Name: Ryan Durkin

Title: Authorized Signatory
		

		
			 
		

		
			


		 


		

			Tri-State Generation and Transmission Association, Inc.
Credit Agreement - Signature Page

		





 



		

			 

		





		

		
			SCHEDULE 2.01
		

		
			Commitments and Applicable Percentages
		

		
			 
		

			
					
						 

					
					
						 

					
					
						 

					
					
						 

				
	
					
						Lender

					
					
						Commitment

					
					
						Applicable Percentage

				
	
					
						National Rural Utilities Cooperative Finance Corporation

					
					
						$

					
					
						125,000,000.00

					
					
						19.230769231%

				
	
					
						U.S. Bank National Association

					
					
						$

					
					
						75,000,000.00

					
					
						11.538461538%

				
	
					
						MUFG Bank, Ltd.

					
					
						$

					
					
						75,000,000.00

					
					
						11.538461538%

				
	
					
						Bank of America, N.A.

					
					
						$

					
					
						75,000,000.00

					
					
						11.538461538%

				
	
					
						Wells Fargo, National Association

					
					
						$

					
					
						75,000,000.00

					
					
						11.538461538%

				
	
					
						CoBank, ACB

					
					
						$

					
					
						60,000,000.00

					
					
						9.230769231%

				
	
					
						Branch Banking and Trust

					
					
						$

					
					
						60,000,000.00

					
					
						9.230769231%

				
	
					
						KeyBank National Association

					
					
						$

					
					
						60,000,000.00

					
					
						9.230769231%

				
	
					
						Goldman Sachs Bank USA

					
					
						$

					
					
						45,000,000.00

					
					
						6.923076923%

				
	
					
						Total

					
					
						$

					
					
						650,000,000.00

					
					
						100.000000000%

				



		
			 
		

		
			 
		

		
			


		 


		

			Schedule 2.01 to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 5.06
		

		
			Litigation


		

		
			None.
		

		
			 
		

		
			


		 


		

			Schedule 5.06 to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 5.10
		

		
			Environmental Matters


		

		
			None.
		

		
			 
		

		
			


		 


		

			Schedule 5.10 to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 5.13(d)
		

		
			Pension Plans


		

		
			The Borrower’s employees participate in the National Rural Electric Cooperative Association Retirement and Security Program.  The Borrower contributes to the National Rural Electric Cooperative Association Retirement and Security Program on a monthly basis, in an amount that fluctuates from year to year.
		

		
			 
		

		
			


		 


		

			Schedule 5.12(d) to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 5.14
		

		
			SUBSIDIARIES; EQUITY INTERESTS


		

			
	
			
				 
			PART A –  SUBSIDIARIES




			
	
			
				 1.
			

			
	
			
			Springerville Unit 3 Partnership LP
Tri-State Generation and Transmission Association, Inc. – 1% general partnership interest and 50% limited partnership interest




			
	
			
				 2.
			

			
	
			
			Springerville Unit 3 OP LLC
Springerville Unit 3 Partnership LP – 100% membership interest




			
	
			
				 3.
			

			
	
			
			Springerville Unit 3 Holding LLC
Springerville Unit 3 OP LLC – 100% membership interest




			
	
			
				 4.
			

			
	
			
			Elk Ridge Mining and Reclamation, LLC
Tri-State Generation and Transmission Association, Inc. – 100% membership interest




			
	
			
				 5.
			

			
	
			
			Axial Basin Coal Company
Elk Ridge Mining and Reclamation, LLC – 100% ownership interest




			
	
			
				 6.
			

			
	
			
			Taylor Creek Holding Company
Elk Ridge Mining and Reclamation, LLC – 100% ownership interest




			
	
			
				 7.
			

			
	
			
			Colowyo Coal Company L.P.
Axial Basin Coal Company – 20% general partnership interest Taylor Creek Holding Company – 80% limited partnership interest




			
	
			
				 8.
			

			
	
			
			JMSGEN ILP, LLC
Tri-State Generation and Transmission Association, Inc. – 100% membership interest




			
	
			
				 9.
			

			
	
			
			JMSGEN IGP, LLP
Tri-State Generation and Transmission Association, Inc. – 100% membership interest




			
	
			
				 10.
			

			
	
			
			Thermo Cogeneration Partnership, LP
JMSGEN IGP, LLC – general partner interest
JMSGEN ILP, LLC – 100% limited partner interest




			
	
			
				 
			PART B –  EQUITY INTERESTS




			
	
			
				 1.
			

			
	
			
			Patronage capital and equities allocated to the Borrower or its Subsidiaries from time to time by cooperatives with which the Borrower does business, including 





		 


		

			Schedule 5.14 to Credit Agreement

		





 



		

			 

		




	CoBank, CFC, Basin Electric Power Cooperative, Western Fuels Association, Inc., most of the Members of the Borrower, Federated Insurance, and various telephone cooperatives.




			
	
			
				 2.
			

			
	
			
			Capital certificates purchased from time to time in CoBank and other Farm Credit System institutions and CFC, as required in connection with borrowings from CoBank, such Farm Credit institutions or CFC.




		
			 
		

		
			


		 


		

			Schedule 5.14 to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 5.19
		

		
			Intellectual Property Matters
		

		
			 
		

		
			None
		

		
			 
		

		
			


		 


		

			Schedule 5.19 to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 5.20
		

		
			Material Agreements and Liens
		

		
			

Part A – Material Agreements
		

			
	
			
				 A.
			

			
	
			
			CFC Loan Agreements




			
	
			
				 1.
			

			
	
			
			CFC – Master Loan Agreement dated as of March 14, 1997




			
	
			
				 2.
			

			
	
			
			CFC -  Loan Agreement dated as of April 10, 1992, as amended




			
	
			
				 3.
			

			
	
			
			CFC – Loan Agreement dated as of January 10, 1989, as amended




			
	
			
				 4.
			

			
	
			
			CFC – Loan Agreement 9077 dated as of October 31, 2014




			
	
			
				 5.
			

			
	
			
			CFC – Loan Agreement 9078 dated as of October 31, 2014




			
	
			
				 B.
			

			
	
			
			CoBank Loan Agreements




			
	
			
				 1.
			

			
	
			
			CoBank Amended and Restated Master Loan Agreement dated as of June 8, 2006




			
	
			
				 2.
			

			
	
			
			Term Loan Agreement dated as of December 6, 2012




			
	
			
				 3.
			

			
	
			
			Unsecured Term Loan Agreement dated as of June 10, 2013




			
	
			
				 4.
			

			
	
			
			Term Loan Agreement dated as of October 31, 2014




			
	
			
				 C.
			

			
	
			
			Commercial Paper




			
	
			
				 1.
			

			
	
			
			Private Placement Memorandum dated as of May 12, 2016




			
	
			
				 D.
			

			
	
			
			First Mortgage Bonds




			
	
			
				 1.
			

			
	
			
			Purchase Agreement dated as of June 3, 2010




			
	
			
				 2.
			

			
	
			
			Purchase Agreement dated as of October 5, 2010




			
	
			
				 3.
			

			
	
			
			Purchase Agreement dated as of October 27, 2014




			
	
			
				 4.
			

			
	
			
			Purchase Agreement dated as of May 16, 2016




			
	
			
				 E.
			

			
	
			
			Note Purchase Agreement




			
	
			
				 1.
			

			
	
			
			Note Purchase Agreement dated as of April 8, 2009




			
	
			
				 2.
			

			
	
			
			Note Purchase Agreement dated as of October 31, 2014




		
			


		 


		

			Schedule 5.20 to Credit Agreement

		





 



		

			 

		





		

			
	
			
				 3.
			

			
	
			
			Note Purchase Agreement dated as of November 16, 2017




			
	
			
				 F.
			

			
	
			
			Revolving Credit Facility




			
	
			
				 1.
			

			
	
			
			Credit Agreement dated as of July 29, 2011 agented by Bank of America, N.A., as amended by that Amendment No. 1 to Credit Agreement, dated as of November 20, 2013, as further amended by that Amendment No. 2 to Credit Agreement, dated as of October 17, 20141




			
	
			
				 G.
			

			
	
			
			Springerville Bonds




			
	
			
				 1.
			

			
	
			
			Series A Pass Through Trust Agreement, dated as of October 21, 2003




			
	
			
				 2.
			

			
	
			
			Series B Pass Through Trust Agreement, dated as of October 21, 2003




			
	
			
				 3.
			

			
	
			
			Participation Agreement, dated as of October 21, 2003




			
					
						 

					
					
						 

					
					
						 

				
	
					
						Liabilities

					
					
						Outstanding Balance
($ in thousands)
December 31, 2017

					
					
						Committed Amount Available
($ in thousands)
December 31, 2017

				
	
					
						CFC Term Loans

					
183,716
					
0
				
	
					
						CoBank Term Loans

					
359,850
					
0
				
	
					
						2009 Private Placement

					
142,286
					
0
				
	
					
						2014 Private Placement

					
750,000
					
0
				
	
					
						2017 Private Placement

					
60,000
					
60,000
				
	
					
						2010 First Mortgage Bonds

					
500,000
					
0
				
	
					
						2014 First Mortgage Bonds

					
500,000
					
0
				
	
					
						2016 First Mortgage Bonds

					
250,000
					
0
				
	
					
						2011 Revolving Credit Facility

					
0
					
					
						605,000*

				
	
					
						Springerville Bonds

					
418,721
					
0
				
	
					
						Accounts Payable

					
117,510
					
0
				
	
					
						Short-term Borrowings

					
145,000
					
0
				
	
					
						Current Maturities of LTD

					
78,004
					
0
				
	
					
						Regulatory Liabilities

					
81,824
					
0
				
	
					
						Asset Retirement Obligations

					
53,768
					
0
				
	
					
						Other

					
53,396
					
0
				
	
					
						Total

					
					
						$ 3,694,075

					
					
						$ 665,000

				



		
			 
		

		
			* The portion of this facility that was unavailable as of December 31, 2017 was $145 million, which was dedicated to support outstanding commercial paper. 
		

		


		
			1  To be terminated as of the Closing Date.
		

		
			 
		

		
			
		

		
			


		 


		

			Schedule 5.20 to Credit Agreement

		





 



		

			 

		





		

		
			 
		

			
	
			
				 
			Part B - Liens




			
	
			
				 A.
			

			
	
			
			Master Indenture & Supplements




			
	
			
				 1.
			

			
	
			
			Master First Mortgage Indenture, Deed of Trust and Security Agreement – Amended, Restated and Effective as of December 15, 1999




			
	
			
				 2.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 1 dated as of June 30, 2000




			
	
			
				 3.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 2 dated as of June 30, 2000 and effective as of July 1, 2000




			
	
			
				 4.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 3 dated as of December 13, 2000 and effective as of December 19, 2000




			
	
			
				 5.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 4 dated as of May 15, 2001




			
	
			
				 6.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 5 dated effective as of November 13, 2001




			
	
			
				 7.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 6 dated effective as of April 22, 2002




			
	
			
				 8.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 7 dated effective as of October 24, 2002




			
	
			
				 9.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 8 dated effective as of December 27, 2002




			
	
			
				 10.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 9 effective as of July 31, 2003




			
	
			
				 11.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 10 effective as of March 30, 2004




			
	
			
				 12.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 11 effective as of September 16, 2004




			
	
			
				 13.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 12 effective as of July 12, 2005




			
	
			
				 14.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 13 effective as of September 27, 2005




			
	
			
				 15.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 14 effective as of June 8, 2006




			
	
			
				 16.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 15 effective as of December 7, 2006




			
	
			
				 17.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 16 effective as of May 4, 2007




			
	
			
				 18.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 17 effective as of February 4, 2009




		
			


		 


		

			Schedule 5.20 to Credit Agreement

		





 



		

			 

		





		

			
	
			
				 19.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 18 effective as of April 8, 2009




			
	
			
				 20.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 19 effective as of July 30, 2009




			
	
			
				 21.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 20 effective as of July 30, 2009




			
	
			
				 22.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 21 effective as of October 8, 2009




			
	
			
				 23.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 22 effective as of January 5, 2010




			
	
			
				 24.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 23 effective as of June 8, 2010




			
	
			
				 25.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 24 effective as of October 8, 2010




			
	
			
				 26.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 26 effective as of June 13, 2011




			
	
			
				 27.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 27 effective as of July 29, 2011




			
	
			
				 28.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 28 effective as of March 15, 2012




			
	
			
				 29.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 29 effective as of December 6, 2012




			
	
			
				 30.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 30 effective as of July 3, 2013




			
	
			
				 31.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 31 effective as of November 20, 2013




			
	
			
				 32.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 32 effective as of March 13, 2014




			
	
			
				 33.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 33 effective as of October 17, 2014




		
			 
		

			
	
			
				 34.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 34 effective as of October 30, 2014




			
	
			
				 35.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 35 effective as of October 31, 2014




			
	
			
				 36.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 36 effective as of October 31, 2014




			
	
			
				 37.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 37 effective as of October 31, 2014




			
	
			
				 38.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 38 effective as of November 21, 2014




			
	
			
				 39.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 39 effective as of May 23, 2016




			
	
			
				 40.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 40 effective as of November 16, 2017




		
			


		 


		

			Schedule 5.20 to Credit Agreement

		





 



		

			 

		





		

			
	
			
				 41.
			

			
	
			
			Supplemental Master Mortgage Indenture No. 41 effective as of the Closing Date




			
	
			
				 B.
			

			
	
			
			Springerville Bonds(Owner Lessor)




			
	
			
				 1.
			

			
	
			
			Indenture, Leasehold Deed of Trust, Assignment of Leases and Rents, Fixture Filing and Security Agreement, dated as of October 21, 2003; subject to compliance at all times with Sections 7.01 and 7.03




			
					
						 

					
					
						 

					
					
						 

				
	
					
						 

					
					
						Outstanding Balance
($ in thousands)
as of the Closing Date

					
					
						Committed Amount Available
($ in thousands)
as of the Closing Date

				
	
					
						CFC Term Loans

					
182,677
					
0
				
	
					
						CoBank Term Loans

					
316,802
					
0
				
	
					
						2009 Private Placement

					
93,143
					
0
				
	
					
						2014 Private Placement

					
750,000
					
0
				
	
					
						2017 Private Placement

					
120,000
					
0
				
	
					
						2010 First Mortgage Bonds

					
500,000
					
0
				
	
					
						2014 First Mortgage Bonds

					
500,000
					
0
				
	
					
						2016 First Mortgage Bonds

					
250,000
					
0
				
	
					
						2011 Revolving Credit Facility

					
0
					
0
				
	
					
						2018 Revolving Credit Facility

					
0
					
					
						450,000**

				
	
					
						Springerville Bonds

					
405,000
					
0
				
	
					
						Total

					
					
						$  3,117,622

					
					
						$ 450,000

				



		
			 
		

			
	
			
				 
			** This amount is based on the extent to which the “Aggregate Commitments” under the Existing Credit Agreement were dedicated to support the Borrower’s outstanding commercial paper as of five Business Days immediately prior to the Closing Date.




		
			 
		

		
			


		 


		

			Schedule 5.20 to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 5.22
		

		
			Wholesale Power Contracts
		

		
			 
		

			
					
						 

					
					
						 

					
					
						 

				
	
					
						Contract Name:

					
					
						Date of Agreement:

					
					
						Date of Expiration: **

				
	
					
						Big Horn Rural Electric Company

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Carbon Power & Light, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Central New Mexico Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Chimney Rock Public Power District

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Columbus Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Continental Divide Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Delta-Montrose Electric Association

					
					
						November 1, 2001

					
					
						December 31, 2040

				
	
					
						Empire Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Garland Light & Power Co.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Gunnison County Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						High Plains Power, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						High West Energy, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Highline Electric Association

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Jemez Mountains Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						K.C. Electric Association

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						La Plata Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						The Midwest Electric Cooperative Corporation

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Mora-San Miguel Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Morgan County Rural Electric Association

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Mountain Parks Electric, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Mountain View Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Niobrara Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Northern Rio Arriba Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Northwest Rural Public Power District

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Otero County Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Panhandle Rural Electric Membership Association

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Poudre Valley Rural Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Roosevelt Public Power District

					
					
						July 1, 2007

					
					
						December 31, 2050

				




		 


		

			Schedule 5.22 to Credit Agreement

		





 



		

			 

		




	

      

         

      


    	

      

         

      


    	

      

         

      


    
	

      

        Contract Name:

      


    	

      

        Date of Agreement:

      


    	

      

        Date of Expiration: **

      


    
	
					
						

					
						San Isabel Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						San Luis Valley Rural Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						San Miguel Power Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Sangre De Cristo Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Sierra Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Socorro Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Southeast Colorado Power Association

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Southwestern Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Springer Electric Cooperative, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						United Power, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Wheat Belt Public Power District

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Wheatland Rural Electric Association

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						White River Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Wyrulec Company

					
					
						July 1, 2007

					
					
						December 31, 2050

				
	
					
						Y-W Electric Association, Inc.

					
					
						July 1, 2007

					
					
						December 31, 2050

				



		
			 
		

		
			** Pursuant to the terms of the Wholesale Electric Service Contract, the contract remains in effect until date certain (12/31/40 or 12/31/50) and thereafter until terminated by either party giving to the other not less than two years’ written notice of its intention to terminate (emphasis added).
		

		
			 
		

		
			


		 


		

			Schedule 5.22 to Credit Agreement

		





 



		

			 

		





		

		
			SCHEDULE 10.02
		

		
			Administrative Agent’s Office; Certain Addresses for Notices;
Taxpayer Identification Number
		

		
			 
		

		
			BORROWER:
		

		
			Tri State Generation and Transmission Association, Inc.

1100 West 116th Avenue
Westminster, CO 80234
Attention: Chief Executive Officer

Telephone: 303-452-6111
Telecopier: 303-254-6007


with a copy to the Chief Financial Officer, Telecopier: 303-254-6007
Electronic Mail: pbridges@tristategt.org
Website Address:www.tristate.coop
U.S. Taxpayer Identification Number: 84-0464189
		

		
			ADMINISTRATIVE AGENT:
		

		
			Administrative Agent’s Office
(for all borrowings, payments, letters of credit, compliance and other notices) 

		

		
			National Rural Utilities Cooperative Finance Corporation
		

		
			20701 Cooperative Way
		

		
			Dulles, VA 20166
		

		
			Attn:  Loan Syndications
		

		
			Telephone:  703-467-1615
		

		
			Facsimile:  703-467-5681
		

		
			Electronic Mail:  loansyndications@nrucfc.coop
		

		
			 
		

		
			Account No. :  268057152
		

		
			Reference:  TriState GT Admin Agent Account
		

		
			JPMorgan Chase
		

		
			New York, NY
		

		
			ABA: 021 000 021

		

		
			L/C ISSUERS: 
		

		
			National Rural Utilities Cooperative Finance Corporation
		

		
			20701 Cooperative Way
		

		
			


		 


		

			Schedule 10.02 to Credit Agreement

		





 



		

			 

		





		

		
			Dulles, VA 20166
		

		
			Attn:  Loan Syndications
		

		
			Telephone:  703-467-1615
		

		
			Facsimile:  703-467-5681
		

		
			Electronic Mail:  loansyndications@nrucfc.coop
		

		
			 
		

		
			US Bank
		

		
			U.S. Bank National Association
		

		
			800 Nicollet Mall
		

		
			Minneapolis, MN 55402
		

		
			Attn: Standby Letters of Credit
		

		
			Telephone:  
		

		
			Julie Seaton: 612-303-7395
		

		
			Jon Hambidge: 612-303-7374
		

		
			Electronic Mail: 
		

		
			Julie Seaton: Julie.seaton@usbank.com
		

		
			Jon Hambidge: Jonathan.hambidge@usbank.com
		

		
			 
		

		
			SWING LINE LENDER: 
		

		
			National Rural Utilities Cooperative Finance Corporation
		

		
			20701 Cooperative Way
		

		
			Dulles, VA 20166
		

		
			Attn:  Loan Syndications
		

		
			Telephone:  703-467-1615
		

		
			Facsimile:  703-467-5681
		

		
			Electronic Mail:  loansyndications@nrucfc.coop
		

		
			 
		

		
			Account No. :  268057152
		

		
			Reference:  TriState GT Admin Agent Account
		

		
			JPMorgan Chase
		

		
			New York, NY
		

		
			ABA: 021 000 021
		

		
			 
		

		
			 
		

		
			


		 


		

			Schedule 10.02 to Credit Agreement

		





 



		

			 

		





		

		
			 
		

		
			SCHEDULE 10.06(e)
		

		
			Voting Participants
		

		
			 
		

		
			None.
		

		
			 
		

		
			


		 


		

			Schedule 10.06(e) to Credit Agreement

		





 



		

			 

		





		

		
			EXHIBIT A
		

		
			[FORM of Committed Loan Notice]
		

			
	
			
				
			LOAN NOTICE




		
			Date:  __________, 20___
		

		
			To:National Rural Utilities Cooperative Finance Corporation (“CFC”), as Administrative Agent
		

		
			Re:Credit Agreement dated as of April 25, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms defined therein being used herein as therein defined) among the Borrower, the lenders party thereto, and CFC, as Administrative Agent.
		

		
			Ladies and Gentlemen:
		

			
	
			
				 1.
			

			
	
			
			The undersigned hereby requests (select one):




		
			 a Borrowing a conversion or continuation of Loans
		

			
	
			
				 2.
			

			
	
			
			On _______________, 20___ (which is a Business Day).




			
	
			
				 3.
			

			
	
			
			In the amount of $__________.




			
	
			
				 4.
			

			
	
			
			Type of Loan requested (select one):




		
			 LIBOR Rate Loan Base Rate Loan
		

			
	
			
				 5.
			

			
	
			
			For LIBOR Rate Loans: with an Interest Period of __________ month[s]2.




		
			The Borrower hereby represents and warrants that (a) in connection with this Request for Credit Extension (unless a request for a conversion of Loans or a continuation of LIBOR Rate Loans) each of the conditions set forth in Sections 4.02(a) and (b) of the Credit Agreement has been satisfied on and as of the date of the Credit Extension and (b) after giving effect to the Borrowing requested herein, if any, (i) the Total Outstandings do not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Loans of any Lender plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans does not exceed such Lender’s Commitment.
		

		
			 
		

		


		
			2 One, two, three or six months, or such other period that is twelve months or less requested by the Borrower and consented to by all the Lenders.
		

		
			


		 


		

			Committed Loan Notice

		





 



		

			 

		





		

		
			TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.,


By:
Name:
Title:
		

		
			 
		

		
			


		 


		

			Committed Loan Notice

		





 



		

			 

		





		

		
			EXHIBIT B
		

		
			[FORM OF SWING LINE NOTICE]
		

			
	
			
				
			SWING LINE LOAN NOTICE




		
			Date: __________, 20__
		

		
			To:National Rural Utilities Cooperative Finance Corporation (“CFC”)
		

		
			Cc:CFC, as Administrative Agent
		

		
			Re:Credit Agreement dated as of April 25, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; terms defined therein being used herein as therein defined) among the Borrower, the lenders party thereto, and CFC, as Administrative Agent.
		

		
			Ladies and Gentlemen:
		

			
	
			
				 1.
			

			
	
			
			The undersigned hereby requests a Swing Line Loan:




			
	
			
				 2.
			

			
	
			
			On __________, 20__ (a Business Day).




			
	
			
				 3.
			

			
	
			
			In the amount of $__________.




		
			The Borrower hereby represents and warrants that (a) in connection with this Request for Credit Extension each of the conditions set forth in Sections 4.02(a) and (b) of the Credit Agreement has been satisfied on and as of the date of the Credit Extension and (b) after giving effect to the Swing Line Borrowing requested herein, (i) the Total Outstandings do not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Loans of any Lender plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans does not exceed such Lender’s Commitment and (b) each of the conditions set forth in Section 2.04 of the Credit Agreement has been satisfied on and as of the date of such Borrowing of Swing Line Loans.
		

		
			TRI-STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.,


By:
Name:
Title:
		

		
			 
		

		
			


		 


		

			Swing Line Loan Notice

		





 



		

			 

		





		

		
			EXHIBIT C
		

		
			[Form of Promissory Note]
		

			
	
			
				
			PROMISSORY NOTE




		
			$[_________][________], 20[__]
		

		
			New York, New York
		

		
			FOR VALUE RECEIVED, TRI‐STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., a cooperative corporation duly organized under the law of the State of Colorado (the “Borrower”), hereby promises to pay to [NAME OF LENDER] (the “Lender”), at such of the offices National Rural Utilities Cooperative Finance Corporation, as shall be notified to the Borrower from time to time, the principal sum of [DOLLAR AMOUNT] Dollars (or such lesser amount as shall equal the aggregate unpaid principal amount of the Loans made by the Lender to the Borrower under the Credit Agreement), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement.
		

		
			The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books; provided that the failure of the Lender to make any such recordation shall not affect the obligations of the Borrower to make a payment when due of any amount owing under the Credit Agreement or hereunder in respect of the Loans made by the Lender.
		

		
			This Promissory Note evidences Loans made by the Lender under the Credit Agreement dated as of April 25, 2018 (as modified and supplemented and in effect from time to time, the “Credit Agreement”) among the Borrower, the lenders party thereto, and National Rural Utilities Cooperative Finance Corporation, as Administrative Agent.  Terms used but not defined in this Promissory Note have the respective meanings assigned to them in the Credit Agreement.
		

		
			The Credit Agreement provides for the acceleration of the maturity of this Promissory Note upon the occurrence of certain events and for prepayments of Loans upon the terms and conditions specified therein.
		

		
			Except as permitted by Section 10.06 of the Credit Agreement, this Promissory Note may not be assigned by the Lender to any other Person.
		

		
			This Promissory Note (together with the other promissory notes issued to the Lenders pursuant to the Credit Agreement), and the Secured Note as defined in the Credit Agreement represent the same obligation.
		

		
			


		 


		

			Note

		





 



		

			 

		




This Promissory Note shall be governed by, and construed in accordance with, the law of the State of New York.
		

		
			TRI‐STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.


By:_________________________
Name:
Title:
		

		
			 
		

		
			


		 


		

			Note

		





 



		

			 

		





		

		
			EXHIBIT D
		

		
			COMPLIANCE CERTIFICATE
		

		
			I, [_____________], the [___________] of Tri‐State Generation and Transmission Association, Inc. (the “Company”), and, as such, a Responsible Officer of the Company, DO HEREBY CERTIFY that:
		

			
	
			
				 (a)
			I have conducted a review of the Credit Agreement dated as of April 25, 2018 (the “Credit Agreement”) among the Company, the lenders party thereto, and National Rural Utilities Cooperative Finance Corporation, as Administrative Agent, the financial statements of the Company and such other documents as I have deemed necessary for this certification.  Capitalized terms used and not defined herein shall have the meanings assigned to them in the Credit Agreement.  This Compliance Certificate is being delivered pursuant to Section 4.01(a) of the Credit Agreement.




			
	
			
				 (b)
			[No Default has occurred during the period beginning on [_____], 20[__] and ending on the date hereof.] [Attached hereto as Annex 1 is a detailed description of each Default that has occurred during the period beginning on [_____], 20[__] and ending on the date hereof, together with a description of any action taken or proposed to be taken with respect thereto.]




			
	
			
				 (c)
			Attached hereto is Schedule 1, demonstrating compliance with the covenants set forth in Section 7.13 of the Credit Agreement as of the date hereof.




			
	
			
				 (d)
			The Debt Ratings of the Company, as of the date hereof, are as set forth below.




			
					
						S&P

					
					
						Moody’s

					
					
						Fitch

				
	
					
						 

					
					
						 

					
					
						 

				



		
			 
		

		
			[(e)Since the date of the audited financial statements referred to in Section 6.01 of the Credit Agreement, a change [in Accounting Requirements] [in the application of Accounting Requirements with respect to the financial statements of the Company] has occurred, and the effect of such change on the financial statements accompanying this Compliance Certificate is [_________].]
		

		
			WITNESS my hand this ____ day of [_____], 20[__].
		

		
			____________________________
Title:
		

		
			 
		

		
			


		 


		

			Compliance Certificate

		





 



		

			 

		





		

		
			EXHIBIT E
		

		
			ASSIGNMENT AND ASSUMPTION
		

		
			This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
		

		
			For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit included in such facilities) and (ii) to the extent permitted to be assigned under applicable Law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at Law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
		

			
					
						 

					
					
						 

				
	
					
						1.Assignor:

					
					
						

				
	
					
						2.Assignee:

					
					
						
[and is an Affiliate of [identify Lender]]

				
	
					
						3.Borrower:

					
					
						Tri‐State Generation and Transmission Association, Inc.

				
	
					
						4.Administrative Agent:

					
					
						National Rural Utilities Cooperative Finance Corporation, as the administrative agent under the Credit Agreement

				
	
					
						5.Credit Agreement:

					
					
						Credit Agreement,
dated as of April 25, 2018

				




		 


		

			Assignment and Assumption

		





 



		

			 

		




	
					
						among the Borrower, the lenders party thereto, and National Rural Utilities Cooperative
Finance Corporation, as Administrative Agent

				
	
					
						6.Assigned Interest:

					
					
						 

				



		
			 
		

		
			 
		

			
					
						 

					
					
						 

					
					
						 

				
	
					
						Aggregate Amount of Commitment / Loans for all Lenders

					
					
						Amount of Commitment/ Loans Assigned3

					
					
						Percentage Assigned of Commitment / Loans4

				
	
					
						$

					
					
						$

					
					
						%

				
	
					
						$

					
					
						$

					
					
						%

				
	
					
						$

					
					
						$

					
					
						%

				



		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		


		
			3 Partial assignments to be in an amount not less than $2,500,000.
		

		
			4 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
		

		
			
		

		
			


		 


		

			Assignment and Assumption

		





 



		

			 

		





		

		
			 
		

			
					
						 

					
					
						 

				
	
					
						Effective Date:

					
					
						_____________ ___, 20___5

				



		
			 
		

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

		
			ASSIGNOR

[NAME OF ASSIGNOR]


By:_________________________

Name:
Title:
		

		
			ASSIGNEE

[NAME OF ASSIGNEE]


By:_________________________

Name:
Title:
		

		
			 
		

		
			 
		

		
			 
		

		
			 
		

		


		
			5 To be inserted by Administrative Agent and which shall be the effective date of recordation of transfer in the register therefor.
		

		
			
		

		
			


		 


		

			Assignment and Assumption

		





 



		

			 

		





		

		
			Consented to and Accepted:
		

		
			National Rural Utilities Cooperative Finance
Corporation, as Administrative
Agent and L/C Issuer
		

		
			By:_________________________
Name:
Title:
		

		
			Consented to:
		

		
			TRI‐STATE GENERATION AND TRANSMISSION ASSOCIATION, INC.6
		

		
			By:_________________________
Name:
Title:
		

		
			 
		

		
			 
		

		
			 
		

		


		
			6 To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.
		

		
			 
		

		
			 
		

		
			 
		

		
			


		 


		

			Assignment and Assumption

		





 



		

			 

		





		

		
			ANNEX 1
		

		
			Credit Agreement dated as of April 25, 2018 among the
Borrower, the lenders party thereto, and National Rural
Utilities Cooperative Finance Corporation, as Administrative Agent
		

		
			STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
		

			
	
			
				 1.
			Representations and Warranties.




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




			
	
			
				 1.2
			Assignee.  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (vi) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.




		
			


		 


		

			Assignment and Assumption

		





 



		

			 

		





		

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




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





		 


		

			Assignment and Assumption