SECOND AMENDED AND RESTATED LOAN AGREEMENT

SECOND AMENDED AND RESTATED LOAN AGREEMENT

THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT (as amended, modified, supplemented, renewed or restated from time to time, the “Agreement" ) is made as of April 30, 2009, by and between THE ANDERSONS, INC., an Ohio corporation ( “Borrower" ), the financial institutions listed on the signature pages hereof and each other financial institution that may hereafter become a party hereto in accordance with the provisions hereof (collectively the “Lenders” and individually a “Lender" ) and U.S. BANK NATIONAL ASSOCIATION, a national banking association ( “U.S. Bank" ), in its capacity as Agent for the Lenders and for the Issuer (in such capacity, the “Agent" ).

RECITAL

Borrower, U.S. Bank and the Lenders, are parties to the Amended and Restated Loan Agreement dated February 21, 2008, as amended by the First through Fifth Amendments thereto (the “Prior Agreement" ) whereby U.S. Bank (as the Agent and a Lender), and the other Lenders, agreed to make loans, advances, extensions of credit and/or other financial accommodations to or for the benefit of Borrower. Borrower has requested that the Prior Agreement be amended and restated to provide for the continuation of the existing loans, additional loans, advances, extensions of credit and/or other financial accommodations, and the Lenders are willing to do so on the following terms and conditions.

NOW, THEREFORE, in consideration of the foregoing and of the terms and conditions contained in this Agreement, and of any loans or extensions of credit or other financial accommodations at any time made to or for the benefit of Borrower by the Agent and the Lenders, Borrower, the Agent and the Lenders agree that the Prior Agreement shall be amended and restated to read as follows:

1 DEFINITIONS .

1.1 General Definitions . When used herein, the following capitalized terms shall have the meanings indicated, whether used in the singular or the plural:

" Accounts ” shall mean all present and future rights of Borrower and its consolidated subsidiaries to payment for Inventory or other Goods sold or leased or for services rendered, which rights are not evidenced by Instruments or Chattel Paper, regardless of whether such rights have been earned by performance and any other “accounts” (as defined in the Code).

" Account Debtor ” shall mean any Person that is obligated on or under an Account.

" Adjusted Monthly LIBOR Rate ” shall mean with respect to each day, the rate determined by dividing the Monthly LIBOR Rate in effect on such day by 1.00 minus the LIBOR Reserve Percentage.

" Affiliate ” shall mean any Person other than Borrower and its consolidated subsidiaries: (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, Borrower or its consolidated subsidiaries; (b) that directly or beneficially owns or holds twenty five percent (25%) or more of any class of the voting equity interest of Borrower or its consolidated subsidiaries; (c) twenty five percent (25%) or more of the voting equity interest of which is owned directly or beneficially or held by Borrower or its consolidated subsidiaries; or (d) that is a director, officer, agent or employee of Borrower or its consolidated subsidiaries.

" Agent ” has the meaning set forth in the introduction and shall include any successor to the Agent that has been appointed in accordance with Section 9.11 .

" Agent’s Letter ” shall mean, the letter agreement between Borrower and the Agent dated April 30, 2009.

" Applicable Margin ” shall mean, with respect to Swing Line Advances, Line of Credit A Advances or Line of Credit B Advances which are Daily Reset LIBOR Rate Loans, Base Rate Loans or LIBOR Rate Loans, Commitment Fees for the Line of Credit A Loan Commitments or Line of Credit B Loan Commitments (“Non-Use Fees”), Standby LC Fees and Commercial LC Fees, the rates per annum as set forth in the tables and paragraph below, for the then applicable Financial Performance Level:

Swing Line Advances, Line of Credit A Advances, Line of Credit B Advances, Non-Use Fees Line A and B:

Letter of Credit Fees:

The initial Financial Performance Level shall be Level 3. The Agent will review Borrower’s financial performance as of each fiscal quarter end, beginning with fiscal quarter end March 31, 2009, after its receipt of Borrower’s financial statements and Compliance Certificate as of the end of such fiscal quarter, and will confirm Borrower’s determination as to whether Borrower’s Financial Performance Level based on such fiscal quarter end is Level 1, Level 2, Level 3 or Level 4. As so confirmed by the Agent, Borrower’s Financial Performance Level will determine the Applicable Margin effective for Swing Line Advances, Line of Credit A Advances, Line of Credit B Advances, the Commitment Fees for the Line of Credit A Loan Commitments and Line of Credit B Loan Commitments, Standby LC Fees and Commercial LC Fees for the three month period beginning on the first Business Day of the third month following the end of such fiscal quarter if the Agent receives such quarter end financial statements prior to the last five (5) Business Days of the second month following the end of such fiscal quarter. If the Agent receives such quarter end financial statements during or after the last five (5) Business Days of the second month following the end of such fiscal quarter (but prior to the end of the third month following the end of such fiscal quarter), any reduction in the Applicable Margin will be delayed until the tenth day of the month following the month in which the Agent receives such quarter end financial statements, but any increase in the Applicable Margin will be effective as of the first Business Day of the third month following the end of such fiscal quarter. If the Agent does not receive such quarter end statements prior to the end of the third month following the end of such fiscal quarter, Borrower’s Financial Performance Level shall be deemed to be Level 1 beginning with the tenth day of the fourth month following the end of such fiscal quarter and shall remain at Level 1 until the 15 ^th Business Day after such financial statements are received by the Agent and a determination by the Agent that a different Financial Level shall apply during the remainder of the three month period.

" Asset Coverage Ratio ” shall mean, for any date of determination, the ratio of (a) the sum of (i) the aggregate principal amount of the Line of Credit A Loan Liabilities, (ii) the aggregate amount of the LC Obligations, (iii) the aggregate principal amount of the Line of Credit B Loan Liabilities, and (iv) the aggregate principal amount of all other Indebtedness of Borrower, on a consolidated basis, other than permitted Priority Debt, Subordinated Debt and the indebtedness evidenced by the Debenture Bonds; divided by (b) the sum of the amounts of Borrower’s (i) accounts receivable, (ii) deposits and investments permitted under Section 8.8(a), (b) or (c) (net of any checks or other debits outstanding), (iii) net margin accounts and (iv) inventory, modified, in the case of inventory, to include all current and non-current commodity derivative assets and liabilities recorded on the Borrower’s balance sheet in accordance with GAAP, in each case, as they would normally appear on Borrower’s balance sheet according to GAAP. For purposes of clarification, the amounts used in the calculation of Asset Coverage Ratio shall exclude (i) Limited Recourse Debt; and (ii) all Rail Assets financed by Securitization Transactions and Limited Recourse Debt. “ Limited Recourse Debt ” means any Indebtedness borrowed, raised or incurred with respect to the financing of Rail Assets, in respect of which recourse of the limited recourse financiers is limited to such Rail Assets. “Rail Assets” means locomotives, railcars, maintenance of way equipment and any leases or lease receivables or accounts or notes receivables related to such property. “Securitization Transaction” means a transfer of Rail Assets on a limited recourse basis, provided, that such sale or other disposition qualifies as a sale under GAAP.

" Available Amount A ” shall mean, at any time, an amount equal to (i) the Line of Credit A Loan Commitments minus (ii) the sum of (A) the aggregate principal amount of the Line of Credit A Loan Liabilities, and (B) the aggregate amount of the LC Obligations.

" Available Amount B ” shall mean, at any time, an amount equal to (i) the Line of Credit B Loan Commitments minus (ii) the aggregate principal amount of the Line of Credit B Loan Liabilities.

" Bank Products ” means any of the following services or facilities extended to Borrower by the Agent, any Lender or any of their affiliates: (a) credit cards; (b) cash management, including controlled disbursement services, automatic clearing house transfer of funds and overdrafts; and (c) facilities and services extended under Rate Protection Agreements.

" Bank Products Agreements ” means all documents and agreements relating to Bank Products.

" Bank Products Obligations ” means, with respect to any Person, all obligations and liabilities of such Person under any Bank Products Agreements.

" Base Rate ” shall mean the greater of (a) the Prime Rate, (b) the Federal Funds Rate plus one half of one percent (0.5%), and (c) the Adjusted Monthly LIBOR Rate in effect and reset each Business Day plus one and one quarter of one percent (1.25%).

" Base Rate Loan ” shall mean any Loan that bears interest at the Base Rate plus the Applicable Margin.

“ Borrower and its consolidated subsidiaries ” shall mean Borrower and its consolidated subsidiaries except Rail Subsidiaries, except as that term is used in Section 6.13 of the Agreement, Correctness of Financial Statements , Section 6.18 of the Agreement, Solvency , Subsections (a) and (b) of Section 7.1 of the Agreement, Financial and Other Information , and Section 7.8 of the Agreement, Books and Records , in which cases “Borrower and its consolidated subsidiaries” shall mean Borrower and its consolidated subsidiaries including Rail Subsidiaries.

“ Borrower or any consolidated subsidiary of Borrower ” shall mean Borrower or any consolidated subsidiary of Borrower except a Rail Subsidiary.

" Business Day ” shall mean any day of the year on which commercial banks in New York, New York are not required or authorized to close, provided, in addition however, that when used in the definition of LIBOR Rate or Interest Period, or when otherwise used in connection with a rate determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business Day” shall exclude any day on which banks in London, England are not open for dealings in deposits of Dollars in the London interbank market.

" Capitalization ” shall mean, as of any particular date, (a) Borrower’s Tangible Net Worth, (b) plus Total Adjusted Funded Debt.

" Change of Control ” shall mean, (a) as to Borrower, (i) the voting stock of Borrower shall cease to be publicly traded, or (ii) more than 50% of the voting stock of Borrower is owned or controlled, directly or indirectly by one Person or an affiliated group of Persons, and (b) as to any consolidated subsidiary of Borrower, existing as such on the date of this Agreement, the voting stock or voting or controlling equity interest of such consolidated subsidiary shall cease to be wholly owned by Borrower, except as the result of a merger or asset consolidation with another consolidated subsidiary of Borrower except Rail Subsidiaries.

" Closing Date ” shall mean the date of this Agreement.

" Collateral ” shall mean any and all real or personal property in which the Agent or the Lenders may at any time have a lien or security interest to secure the Liabilities.

" Commercial Letter of Credit ” shall mean any commercial letter of credit Issued for the account of Borrower under this Agreement or the Prior Agreement.

" Commitment ” shall mean, as to any Lender, such Lender’s Line of Credit A Loan Commitment and Line of Credit B Loan Commitment, the Agent’s commitment to make Swing Line Advances under the Line of Credit A and the Agent’s commitment to cause the issuance of Letters under the Line of Credit A, and " Commitments ” shall mean collectively, such Commitments for all the Lenders and the Agent.

" Current Ratio Net of Hedged Inventory ” shall mean, for any date of determination, the ratio of Borrower’s: (a) (i) consolidated current assets, (ii) minus the book value of Hedged Inventory, (iii) minus the net liquidation value of related Margin Accounts; divided by (b) (i) consolidated current liabilities, (ii) minus the book value of Hedged Inventory, (iii) minus the net liquidation value of related Margin Accounts.

" Daily Reset LIBOR Rate ” shall mean the greater of: (a) one percent (1.00%); or (b) the one-month LIBOR rate quoted by the Agent from Telerate Page 3750 or any successor thereto, which shall be that one-month LIBOR rate in effect and reset each Business Day.

" Daily Reset LIBOR Rate Loan ” shall mean any Loan that bears interest at the Daily Reset LIBOR Rate plus the Applicable Margin.

" Debenture Bonds ” means those certain Debentures described outstanding on the date hereof which Debentures were issued pursuant to that certain Indenture dated as of October 1, 1985, as supplemented from time to time.

" Debt to Capitalization Ratio ” shall mean, as of any particular date, (a) Total Adjusted Funded Debt, divided by (b) Capitalization.

" Default ” shall mean the occurrence or existence of: (a) an event which, through the passage of time or the service of notice or both, would (assuming no action is taken by Borrower or any other Person to cure the same) mature into a Matured Default; or (b) an event which requires neither the passage of time nor the service of notice to mature into a Matured Default.

" Default Period ” shall mean the period of time commencing at the beginning of the first Business Day after the delivery of a “Notice of Default” to the Agent in accordance with Section 9.7 and continuing until the Default or Matured Default described therein is cured or waived, as the case may be, in accordance with the terms of this Agreement.

" Direct Pay Letter of Credit ” shall mean any direct pay letter of credit Issued for the account of Borrower under this Agreement or the Prior Agreement.

" Dollars ” and " $ ” shall mean lawful currency of the United States of America.

" EBITDA ” shall mean, during any period of determination, the net income of Borrower and its consolidated subsidiaries before provision for income taxes, interest expense (including without limitation, implicit interest expense on capitalized leases), depreciation expense, amortization expense and other non-cash expenses or charges, excluding (to the extent included): (a) non-operating gains (including without limitation, extraordinary or nonrecurring gains, gains from discontinuance of operations and gains arising from the sale of assets other than Inventory) during the applicable period; and (b) similar non-operating losses during such period.

" Farm Products ” shall mean all personal property owned by Borrower and its consolidated subsidiaries used or for use in farming or livestock operations, including without limitation, seed and harvested or un-harvested crops of all types and descriptions, whether annual or perennial and including trees, vines and the crops growing thereon, native grass, grain, feed, feed additives, feed ingredients, feed supplements, fertilizer, hay, silage, supplies (including without limitation, chemicals, veterinary supplies and related Goods), livestock of all types and descriptions (including without limitation, the offspring of such livestock and livestock in gestation) and any other “farm products” (as defined in the Code).

" Federal Funds Rate ” shall mean, for any day, the rate of interest per annum (rounded upward, if necessary, to the nearest whole multiple of 1/100th of 1%) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on such day, or if no such rate is so published on such day, on the most recent day preceding such day on which such rate is so published.

" Financial Performance Level ” shall mean the applicable level of Borrower’s financial performance determined in accordance with the table set forth below, provided, however, notwithstanding the definition thereof, Debt to Capitalization Ratio shall be determined as if the Rail Subsidiaries were not consolidated subsidiaries of Borrower.

" Financing Agreements ” shall mean all agreements, instruments and documents, including without limitation, this Agreement and all notes, letter of credit applications, guarantees, consents, assignments, contracts, notices and all other written matter at any time executed by or on behalf of Borrower and delivered to the Agent for the benefit of the Lenders in relation to this Agreement, together with all amendments and all agreements and documents referred to therein or contemplated thereby and all Bank Products Agreements.

" Funded Debt ” shall mean, for any date of determination, the outstanding principal amount of all interest bearing indebtedness of Borrower and its consolidated subsidiaries (including without limitation, capitalized leases, interest bearing accounts payable and, without duplication, the undrawn amount of all outstanding letters of credit (including without limitation, the Letters)).

" GAAP ” shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity as may be in general use by significant segments of the accounting profession, which are applicable to the circumstances as of the date of determination.

" Governmental Authority ” shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including without limitation, any arbitration panel, any court, any commission, any agency or any instrumentality of the foregoing.

" Governmental Requirement ” shall mean any law, statute, code, ordinance, order, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement of any federal, state, county, municipal, parish, provincial or other Governmental Authority or any department, commission, board, court, agency or any other instrumentality of any of them (including any of the foregoing that relate to environmental standards or controls and occupational safety and health standards or controls).

" Hedged Inventory ” shall mean Inventory consisting of commodities that are hedged against price fluctuation using traditionally recognized methods of hedging, including, but not limited to, futures contracts, placed through a recognized commodities broker adjusted to include all current and non-current commodity derivative assets and liabilities recorded on the Company’s balance sheet in accordance with GAAP.

" Highest Lawful Rate ” shall mean, with respect to each Lender, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged, or received with respect to the Swing Line, the Line of Credit A and the Line of Credit B (and the respective Line of Credit A Notes and the Line of Credit B Notes), or on other amounts, if any, payable to such Lender pursuant to this Agreement or any other Financing Agreement, under laws applicable to such Lender which are presently in effect, or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.

" Immediately Available Funds ” shall mean: funds with good value on the day and in the city in which payment is received.

" Indebtedness ” with respect to any Person means, at any time, without duplication, (a) (i) its liabilities for borrowed money and (ii) its redemption obligations in respect of preferred stock which is or upon the occurrence of certain events may be mandatorily redeemable by the holders thereof at any time prior to the payment in full of the Liabilities; (b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property); (c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of capital leases and (ii) all liabilities which would appear on its balance sheet in accordance with GAAP in respect of synthetic leases assuming such synthetic leases were accounted for as capital leases; (d) all liabilities for borrowed money secured by any lien or security interest with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities); (e) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money); and (f) any guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (e) hereof. Indebtedness of any Person shall include all obligations of such Person of the character described in clauses (a) through (f) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.

" Interest Coverage Ratio ” shall mean, for any date of determination, the ratio of (a) EBITDA during the four fiscal quarters then ended, divided by (b) Interest Expense during the four fiscal quarters then ended.

" Interest Expense ” shall mean, during any period of determination, the consolidated interest or related expense on Funded Debt of Borrower and its consolidated subsidiaries.

" Interest Period ” shall mean: (a) with respect to LIBOR Rate Loans, the period of time for which the LIBOR Rate shall be in effect as to any LIBOR Rate Loan and which shall be a seven day or one, two, three or six month period of time, commencing with the borrowing date of the LIBOR Rate Loan or the expiration date of the immediately preceding Interest Period, as the case may be, applicable to and ending on the effective date of any rate change or rate continuation made as provided in Section 2.2 as Borrower may specify in the notice of borrowing delivered pursuant to Section 2.2 or the notice of interest conversion delivered pursuant to Section 2.2 ; provided however , that (b) any Interest Period which would otherwise end on a day which 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, (c) no Interest Period shall extend beyond the Maturity Date; and (d) there shall be no more than five (5) seven day Interest Periods and no more than twenty (20) Interest Periods (of all types) for LIBOR Rate Loans at any one time.

" Inventory ” shall mean any and all Goods which shall at any time constitute “inventory” (as defined in the Code) or Farm Products owned by Borrower and its consolidated subsidiaries, wherever located (including without limitation, Goods in transit and Goods in the possession of third parties), or which from time to time are held for sale, lease or consumption in Borrower’s business, furnished under any contract of service or held as raw materials, work in process, finished inventory or supplies (including without limitation, packaging and/or shipping materials).

" IRC ” shall mean the Internal Revenue Code of 1986, as amended, as at any time in effect, together with all regulations and rulings thereof or thereunder issued by the Internal Revenue Service.

" Issue " , " Issued " , " Issues ” and “ Issuance ” shall mean, as the context requires, with respect to a Letter, the issuance, extension or other amendment of a Letter pursuant to this Agreement.

" Issuer ” shall mean, with respect to a Letter, any party that Issues such Letter pursuant to this Agreement or that has Issued a Letter under the Prior Agreement.

" LC Obligations ” shall mean, at any time, an amount equal to the aggregate undrawn and unexpired amount of the outstanding Letters, together with the aggregate amount of any unpaid reimbursement obligations with respect to any Letters.

" Letter ” or " Letters ” shall mean a Commercial Letter of Credit or Standby Letter of Credit Issued for the account of Borrower pursuant to Section 2.1.4 or under the Prior Agreement, or all of such letters of credit, respectively.

" Liabilities ” shall mean any and all liabilities, obligations and indebtedness of Borrower to the Agent, any Lender or Issuer of any and every kind and nature, at any time owing, arising, due or payable and howsoever evidenced, created, incurred, acquired or owing, whether primary, secondary, direct, contingent, fixed or otherwise (including without limitation LC Obligations, Bank Products Obligations, fees, charges and obligations of performance) and whether arising or existing under this Agreement or any of the other Financing Agreements or by operation of law.

" LIBOR Rate ” shall mean, with respect to each day during each Interest Period applicable to a LIBOR Rate Advance, the greater of: (a) one percent (1.00%); or (b) the seven day or one, two, three or six month LIBOR rate quoted by the Agent from Reuters Screen LIBOR01 Page or any successor thereto, or if unavailable, such LIBOR rate quoted by the Agent from a reasonably equivalent alternative source as determined by the Agent (which shall be the LIBOR rate in effect two (2) Business Days prior to the LIBOR Rate Loan).

" LIBOR Rate Loan ” shall mean any Loan that bears interest at the LIBOR Rate plus the Applicable Margin.

" LIBOR Reserve Percentage ” shall mean the maximum effective percentage in effect on any day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including, without limitation, supplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding.

" Line of Credit A Loan Commitment ” shall mean as to any Lender, such Lender’s Pro Rata Percentage of $490,000,000, as set forth opposite such Lender’s name under the heading “Line of Credit A Loan Commitments” on Schedule A , subject to Assignment and Acceptance in accordance with Section 10.23 , and as such amount may be reduced or terminated from time to time pursuant to Sections 2.3(c), 2.8 or 9.1 and as such amount may be increased from time to time pursuant to Section 10.31(b) ; and " Line of Credit A Loan Commitments ” shall mean collectively, the Line of Credit A Loan Commitments for all the Lenders.

" Line of Credit B Loan Commitment ” shall mean as to any Lender, such Lender’s Pro Rata Percentage of $85,000,000, as set forth opposite such Lender’s name under the heading “ Line of Credit B Loan Commitments” on Schedule A , subject to Assignment and Acceptance in accordance with Section 10.23 , and as such amount may be reduced or terminated from time to time pursuant to Sections 2.3(c), 2.8 or 9.1 and as such amount may be increased from time to time pursuant to Section 10.31(b) ; and " Line of Credit B Loan Commitments ” shall mean collectively, the Line of Credit B Loan Commitments for all the Lenders.

" Line of Credit A Loan Liabilities ” shall mean all of the Liabilities (including without limitation the principal and interest owing under the Swing Line) other than: (a) the LC Obligations; (b) the principal and interest owing under the Line of Credit B; and (c) and Bank Products Obligations.

" Line of Credit B Loan Liabilities ” shall mean the principal and interest owing under the Line of Credit B.

" Margin Accounts ” shall mean, collectively, all Commodity Accounts and all Commodity Contracts and (to the extent not included in Commodity Accounts or Commodity Contracts) all Swap Contracts and cash forward contracts maintained by Borrower and its consolidated subsidiaries with respect to Hedged Inventory.

" Matured Default ” shall mean the occurrence or existence of any one or more of the following events: (a) Borrower fails to pay any principal pursuant to any of the Financing Agreements (other than the Bank Products Agreements) on the day such principal becomes due or is declared due or Borrower fails to pay any interest pursuant to any of the Financing Agreements on or before five (5) days after such interest becomes due or is declared due; (b) Borrower fails to pay any of the Liabilities (other than principal and interest) on or before ten (10) days after such Liabilities become due or are declared due; (c) a Change of Control shall occur; (d) Borrower or any consolidated subsidiary of Borrower fails or neglects to perform, keep or observe any of the covenants, conditions, promises or agreements contained in this Agreement or in any of the other Financing Agreements (other than those covenants, conditions, promises and agreements referred to or covered in (a) , (b) , and (c) above), and such failure or neglect continues for more than thirty (30) days after such failure or neglect first occurs; (e) the Available Amount A or the Available Amount B, as calculated in accordance with the definitions thereof, result in a negative amount; (f) any warranty or representation at any time made by or on behalf of Borrower in connection with this Agreement or any of the other Financing Agreements is untrue or incorrect in any material respect, or any schedule, certificate, statement, report, financial data, notice, or writing furnished at any time by or on behalf of Borrower to the Agent or any other Lender is untrue or incorrect in any material respect on the date as of which the facts set forth therein are stated or certified; (g) a judgment in excess of $5,000,000 is rendered against Borrower or any Guarantor of any of the Liabilities and such judgment remains unsatisfied or un-discharged and in effect for sixty (60) consecutive days without a stay of enforcement or execution, provided , however , that this clause (g) shall not apply to any judgment for which Borrower is fully insured (through insurance policies and/or self insurance reserves); (h) all or any material part of the assets of Borrower or any Guarantor of any of the Liabilities come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors; (i) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed against Borrower or any Guarantor of any of the Liabilities and such proceeding is not dismissed within thirty (30) days of the date of its filing, or a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed by Borrower or any Guarantor of any of the Liabilities, or Borrower or any Guarantor of any of the Liabilities makes an assignment for the benefit of creditors; (j) Borrower or any Guarantor of any of the Liabilities voluntarily or involuntarily dissolves or is dissolved, terminates or is terminated; (k) Borrower or any consolidated subsidiary of Borrower is enjoined, restrained, or in any way prevented by the order of any court or any administrative or regulatory agency or by the termination or expiration of any permit or license, from conducting all or any material part of its business affairs; (l) Borrower or any Guarantor of any of the Liabilities fails to make any payment due or otherwise defaults on any other obligation for borrowed money and the effect of such failure or default is to cause or permit the holder of such obligation or a trustee to cause such obligation to become due prior to its date of maturity; (m) any Guarantor of any of the Liabilities asserts the invalidity of their guaranty, purports to terminate their guaranty or purports to limit the application thereof to then existing Liabilities; or (n) the Agent, at any time reasonably determines that the Lenders are insecure with respect to the prompt payment of all or any part of the Liabilities, or that such change has occurred in the condition or affairs (financial or otherwise) of Borrower or any Guarantor as, in the reasonable opinion of the Agent, materially affects Borrower’s ability to make prompt payment on the Liabilities.

" Maturity Date ” shall mean, as applicable, the earlier of: (a) as to the Swing Line or the Line of Credit A and LC Obligations, September 30, 2011; (b) as to the Line of Credit B, September 30, 2011; and (c) in all cases, the earlier date of termination in whole of the Commitments pursuant to Sections 2.3(c), 2.8 or 9.1 .

“ Monthly LIBOR Rate ” shall mean, with respect to any date of determination, the average offered rate for deposits in United States dollars for delivery of such deposits on a one-month basis, which appears on Reuters Screen LIBOR01 Page (or any successor thereto) as of 11:00 A.M., London time (or such other time as of which such rate appears), or the rate for such deposits determined by the Agent at such time based on such other published service of general application as shall be selected by the Agent for such purpose.

" Note ” or " Notes ” shall mean any one of the Line of Credit A Notes or the Line of Credit B Notes or all of the Line of Credit A Notes or the Line of Credit B Notes, respectively.

" Person ” shall mean any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, entity, party or government (whether national, federal, state, provincial, county, city, municipal or otherwise, including without limitation, any instrumentality, division, agency, body or department thereof).

" Prime Rate ” shall mean the prime rate announced by the Agent from time to time, which is a base rate that the Agent from time to time establishes and which serves as the basis upon which effective rates of interest are calculated for those loans which make reference thereto. The Prime Rate is not necessarily the lowest rate offered by the Agent. With respect to Base Rate Loans, each change in the rate of interest hereunder shall become effective on the date each Prime Rate change is announced by the Agent or with each change in the Federal Funds Rate, as the case may be.

" Producer Payables ” shall mean all amounts at any time payable by Borrower and its consolidated subsidiaries for the purchase of Inventory.

" Property ” shall mean those premises owned or operated by Borrower and its consolidated subsidiaries.

" Pro Rata Percentage ” shall mean with respect to each Lender, as applicable, (a) with respect to the Line of Credit A, the Swingline and the Letters, such Lender’s Pro Rata Percentage of the Line of Credit A Loan Commitments as set forth in Schedule A (or any replacement thereof by proper amendment thereto), (b) with respect to the Line of Credit B, such Lender’s Pro Rata Percentage of the Line of Credit B Loan Commitments as set forth in Schedule A (or any replacement thereof by proper amendment thereto), and (c) with respect to matters not specifically related to the Line of Credit A, the Line of Credit B, the Swingline and the issuance of Letters the weighted average (weighted based on the proportionate amounts of the total Line of Credit A Loan Commitments and the total Line of Credit A Loan Commitments) of such Lender’s Pro Rata Percentage of the Line of Credit A Loan Commitments as set forth in Schedule A (or any replacement thereof by proper amendment thereto) and such Lender’s Pro Rata Percentage of the Line of Credit B Loan Commitments as set forth in Schedule A (or any replacement thereof by proper amendment thereto), in each case, as adjusted from time to time in accordance with Section 10.23 , and in each case such percentages shall be applicable even in the event that the commitments of the Lenders to make Advances have been suspended or terminated in accordance with the terms of this Agreement.

" Rail Subsidiaries ” shall mean, collectively, the direct and indirect wholly owned subsidiaries of Borrower and its consolidated subsidiaries listed on Exhibit 1A, together with such other direct and indirect wholly owned subsidiaries of Borrower and its consolidated subsidiaries as may be added thereto from time to time with the prior written consent of the Agent (each a “ Rail Subsidiary ” ).

" Rate Protection Agreement ” means, collectively, any Swap Contract designed to protect against fluctuations in interest rates or currency exchange rates entered into by Borrower under which the counterparty to such agreement is (or at the time such Rate Protection Agreement was entered into, was) a Lender or an affiliate of a Lender.

" Required Lenders ” shall mean, at any time Lenders holding in the aggregate at least fifty one percent (51%) of the aggregate amount of all of the Lenders’ Commitments, which percentage shall be applicable even in the event that the commitments of the Lenders to make Advances have been suspended or terminated in accordance with the terms of this Agreement.

" Standby Letter of Credit ” shall mean any standby letter of credit, which shall be deemed to include any Direct Pay Letter of Credit Issued for the account of Borrower under this Agreement or the Prior Agreement.

" Subordinated Debt ” shall mean the consolidated, subordinated, unsecured debt of Borrower that is subordinated to the Liabilities in accordance with a subordination agreement or subordination agreements, in form and substance acceptable to the Required Lenders.

" Swap Contract ” shall mean (a) any and all interest rate swap transactions, basis 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 foreign exchange transactions, cap transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including, but without limitation, any options to enter into any of the foregoing), 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.

" Swing Line Limit ” shall mean, $50,000,000, provided , however , upon not less than seven days prior notice to the Agent and the Lenders, the Borrower may, for one consecutive 90 day period commencing in each calendar year, increase the Swing Line Limit to an amount not more than $80,000,000.

" Tangible Net Worth ” shall mean, as of any particular date, (a) Borrower’s consolidated net worth, (b) minus the consolidated book value of Borrower’s intangible assets, (c) plus the consolidated book amount of Borrower’s deferred income.

" Total Adjusted Funded Debt ” shall mean as of any particular date (a) Borrower’s consolidated short term notes payable, plus (b) Borrower’s consolidated long term debt, plus (c) the current maturities of Borrower’s consolidated long term debt, minus (d) to the extent included in b. or c., non-recourse debt, plus (e) to the extent not included in a., b. or c., the Liabilities, minus (f) 90% of the result of (i) the book value of Inventory consisting of grain, minus (ii) 100% of the accounts payable related thereto, minus (g) 100% of the net equity in Margin Accounts.

" Type ” shall mean, with respect to any Loan, whether such Loan is a Base Rate Loan or a LIBOR Rate Loan.

" Working Capital ” shall mean as of any particular date, (a) Borrower’s consolidated current assets, (b) minus Borrower’s consolidated current liabilities, which consolidated current liabilities shall, in any event, include the Line of Credit A Loan Liabilities.

1.2 Index to Other Definitions . When used herein, the following capitalized terms shall have the meanings given in the indicated portions of this Agreement:

1.3 Accounting Terms . Any accounting terms used in this Agreement which are not specifically defined in this Agreement shall have the meanings customarily given them in accordance with GAAP, as consistently applied as of the date of this Agreement.

1.4 Others Defined in Colorado Uniform Commercial Code . All other terms contained in this Agreement (which are not specifically defined in this Agreement) shall have the meanings set forth in the Uniform Commercial Code of Colorado (“Code”) to the extent the same are used or defined therein, specifically including, but not limited to the following: Chattel Paper, Commercial Tort Claims, Commodity Accounts, Commodity Contracts, Electronic Chattel Paper, Goods, Instruments, Investment Property, Letter of Credit Rights, General Intangibles, Payment Intangibles, Securities Accounts and Tangible Chattel Paper.

2 LOANS, LETTERS OF CREDIT AND FEES .

2.1 Loans and Letters of Credit . Subject to all of the terms and conditions contained in this Agreement, the Agent and the Lenders severally and not jointly agree to make the following extensions of credit to or for the benefit of Borrower:

2.1.1 Swing Line . The Agent agrees to make advances (“Swing Line Advances”) to Borrower from time to time on any one or more Business Days from and after the date of this Agreement, upon Borrower’s written (including facsimile) notice or oral notice followed by written (including facsimile) confirmation, given by Borrower to the Agent not later than 1:00 p.m. (local time in Denver) on the Business Day of any proposed Advance, through and including the Maturity Date , in amounts up to the lesser of: (a) the Swing Line Limit minus the outstanding Swing Line Advances; or (b) the Available Amount A (“Swing Line”). The Swing Line Advances shall be repayable in accordance with the terms of this Agreement (as further evidenced by Borrower’s Line of Credit A Note to the Agent). The Agent, upon the written approval of the Required Lenders, may elect to make Swing Line Advances to Borrower in excess of the Swing Line Limit (but not in excess of the Available Amount A), and any such Swing Line Advances shall also be governed by the terms hereof.

2.1.2 Line of Credit A . Each Lender severally agrees to make advances (“Line of Credit A Advances”) to Borrower from time to time on any one or more Business Days from and after the date of this Agreement (through the Agent as set forth in Section 2.1.5 or Section 2.2(f) ), upon Borrower’s written (including facsimile) notice or oral notice followed by written (including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am (local time in Denver) on the second Business Day prior to the date of any proposed LIBOR Rate Loan or upon Borrower’s written (including facsimile) notice or oral notice followed by written (including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am (local time in Denver) on the Business Day of the date of any proposed Base Rate Loan, up to an aggregate principal amount not exceeding each such Lender’s Pro Rata Percentage of the Available Amount A on such Business Day through the Maturity Date, in aggregate amounts up to the Available Amount A (“Line of Credit A”). The Line of Credit A Advances shall be repayable in accordance with the terms of this Agreement (as further evidenced by Borrower’s promissory notes to each of the Lenders (“Line of Credit A Notes”) , the form of which is attached as Exhibit 2A ).

2.1.3 Line of Credit B . Each Lender severally agrees to make advances (“Line of Credit B Advances”) to Borrower from time to time on any one or more Business Days from and after the date of this Agreement (through the Agent as set forth in Section 2.1.5 or Section 2.2(f) ), upon Borrower’s written (including facsimile) notice or oral notice followed by written (including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am (local time in Denver) on the second Business Day prior to the date of any proposed LIBOR Rate Loan or upon Borrower’s written (including facsimile) notice or oral notice followed by written (including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am (local time in Denver) on the Business Day of the date of any proposed Base Rate Loan, up to an aggregate principal amount not exceeding each such Lender’s Pro Rata Percentage of the Available Amount B on such Business Day through the Maturity Date, in aggregate amounts up to the Available Amount B (“Line of Credit B”). The Line of Credit B Advances shall be repayable in accordance with the terms of this Agreement (as further evidenced by Borrower’s promissory notes to each of the Lenders (“Line of Credit B Notes”) , the form of which is attached as Exhibit 2B ).

2.1.4 Letters of Credit .

(a) The Agent further agrees to Issue or cause to be Issued by a Lender that agrees, in each case, to be the Issuer, Letters for Borrower’s account for any purpose acceptable to the Agent in its reasonable discretion (the Agent or such Lender thereby becoming an Issuer), with an expiration date not later than the earlier of (a) one year after the date of issuance, or (b) the fifth day prior to the Maturity Date, in amounts up to the lesser of: (y) Ninety Million Dollars ($90,000,000) minus the then outstanding LC Obligations; or (z) the Available Amount A, for the benefit of one or more beneficiaries to be named by Borrower (the “Beneficiary" , whether one or more), in form and substance acceptable to the Beneficiary. Letters which provide for an automatic extension of the expiration date may not automatically extend for more than one year at each extension and shall, in the sole discretion of the Agent, not be allowed to automatically extend to a date later than the fifth day prior to the Maturity Date. In order to effect the issuance of each Letter, Borrower shall deliver to the Agent a letter of credit application (the “Application" ) not later than 11:00 a.m. (Denver time), five (5) Business Days prior to the proposed date of issuance of the Letter. The Application shall be duly executed by a responsible officer of Borrower, shall be irrevocable and shall (i) specify the day on which such Letter is to be Issued (which shall be a Business Day), and (ii) be accompanied by a certificate executed by a responsible officer setting forth calculations evidencing availability for the Letter and stating that all conditions precedent to such issuance have been satisfied. Each Letter shall (i) provide for the payment of drafts presented for honor thereunder by the Beneficiary in accordance with the terms thereof, when such drafts are accompanied by the documents described in the Letter, if any, and (ii) to the extent not inconsistent with the express terms hereof or the applicable Application, be subject, as applicable, to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 or the International Standby Practices (ISP 98—International Chamber Of Commerce Publication Number 590) (in each case, together with any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to by Issuer, the “UCP” and the “ISP98" , respectively), and shall, as to matters not governed by the UCP or the ISP98, be governed by, and construed and interpreted in accordance with, the laws of the State in which Issuer resides. In the event the terms of any Application or any related reimbursement agreement or other related agreement are inconsistent with the terms of this Section 2.1.4 , then the terms of this Section 2.1.4 shall be controlling and shall govern over any the terms of any such Application or any related reimbursement agreement or other related agreement.

(b) Upon the Issuance date of each Letter, the Issuer shall be deemed, without further action by any party hereto, to have sold to each other Lender with a Line of Credit A Loan Commitment, and each other Lender with a Line of Credit A Loan Commitment shall be deemed, without further action by any party hereto, to have purchased from the Issuer, a participation, to the extent of such Lender’s respective Pro Rata Percentage, in such Letter, the obligations thereunder and in the reimbursement obligations of Borrower due in respect of drawings made under such Letter. If requested by the relevant Issuer, the Agent, the other Lenders will execute any other documents reasonably requested by such Issuer to evidence the purchase of such participation.

(c) If Issuer has received documents purporting to draw under a Letter that Issuer believes conform to the requirements of the Letter, or if Issuer has decided that it will comply with Borrower’s written or oral request of authorization to pay a drawing on any Letter that Issuer does not believe conforms to the requirements of the Letter, Issuer or the Agent will notify Borrower of that fact. An amount equal to the amount of such drawing shall be paid by Borrower to the Agent for the account of the Issuer on the date such drawing is made. The obligation of Borrower to repay the Agent for the account of the Issuer or the Agent and the Lenders for any Advance under the Swing Line or the Line of Credit A made to fund such reimbursement, shall be absolute, unconditional and irrevocable, shall continue for so long as any LC Obligation is outstanding notwithstanding any termination of this Agreement, and shall be paid strictly in accordance with the terms of this Agreement, notwithstanding any of the following:

(i) Any lack of validity or enforceability of any Letter or LC Obligation;

(ii)

The existence of any claim, setoff, defense or other right which Borrower may have or claim at any time against any Beneficiary, transferee or holder of any Letter (or any Person for whom any such Beneficiary, transferee or holder may be acting), Issuer or any other Person, whether in connection with a Letter, this Agreement, the transactions contemplated hereby, or any unrelated transaction; or

 

(iii)

Any statement or any other document presented under any Letter proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatever so long as such statement or document appeared to comply with the terms of the Letter.

(d) None of Issuer, the Lenders or any of the officers, directors employees, agents or affiliates of any of them shall be liable or responsible for, and the obligations of Borrower to Issuer and the Lenders shall not be impaired by:

(i)

The use that may be made of any Letter or for any acts or omissions of any Beneficiary, transferee or holder thereof in connection therewith;

 

(ii)

The validity, sufficiency or genuineness of documents, or of any endorsements thereon, even if such documents or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged so long as such statement or document appeared to comply with the terms of the Letter;

 

(iii)

The acceptance by Issuer of documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary; or

 

(iv)

Any other action of Issuer in making or failing to make payment under any Letter if in good faith and in conformity with applicable U.S. or foreign laws, regulations or customs.

(e) Notwithstanding the foregoing, Borrower shall have a claim against Issuer and the Agent, and Issuer and/or the Agent shall be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by Borrower which Borrower proves were caused by Issuer’s or the Agent’s willful misconduct or gross negligence in determining whether documents presented under any Letter comply with the terms thereof.

(f) If any Letter is Issued and outstanding on the Maturity Date, Borrower shall deposit with the Agent, for the ratable benefit of the Lenders and the Issuer: (i) cash collateral, or (ii) a backup letter of credit issued to the Agent and acceptable to the Lenders, in either case, in an amount equal to the LC Obligations relating to such Letter.

2.1.5 Equalization Transfers .

(a) The Swing Line Advances, the Line of Credit A Advances and the Line of Credit B Advances (collectively “Advances” and individually, an “Advance" ) shall also sometimes collectively be referred to in each case as a “Loan” and collectively the “Loans" . It is anticipated that on each Business Day Borrower may wish to borrow and repay Loans under the Line of Credit A. To the extent possible, these Loans will be made by the Agent under the Swing Line. To minimize the number of transfers of funds to and from the Lenders resulting from such borrowings and repayments, the Agent may fund daily Loans under the Line of Credit A for the accounts of the Lenders and apply daily repayments of Loans under the Line of Credit A to the accounts of the Lenders, other than according to the Lenders’ Pro Rata Percentages ( i.e. , without receiving from the other Lenders their Pro Rata Percentage of a Loan under the Line of Credit A on the date of disbursement thereof or without paying the other Lenders their Pro Rata Percentage of a repayment of a Loan under the Line of Credit A on the date of payment thereof), provided however , that no such Loan shall be made and no repayment of such a Loan shall be applied other than according to the Lenders’ Pro Rata Percentages, if: (i) at the time of such Loan or repayment the Agent has actual knowledge of a Matured Default, or (ii) after giving effect to such requested Loan or after applying the repayment, the absolute value of the amount that would have to be reallocated to make the Loans under the Line of Credit A held according to the Lenders’ Pro Rata Percentages, would exceed the Swing Line Limit; or (iii) after giving effect to such requested Loan, the Agent would hold at the end of any Business Day, Loans under the Swing Line and the Line of Credit A exceeding its Line of Credit A Loan Commitment plus the Swing Line Limit.

(b) On any Business Day in the discretion of the Agent, if the outstanding Loans are not held, or will not be held by reason of a request for an Advance, according to the Lenders’ Pro Rata Percentages under the Line of Credit B, or, On any Business Day in the discretion of the Agent, if the outstanding Loans are not held, or will not be held by reason of a request for an Advance, according to the Lenders’ Pro Rata Percentages under the Line of Credit A, by reason of Swing Line Advance (or a request therefore) or otherwise, the Agent shall give notice to the Lenders not later than 4:00 p.m. (local time in Denver) of the amount of funds to be transferred from the Agent to the Lenders, or from the Lenders to the Agent, or from one Lender to another, as the case may be (each such transfer, an “Equalization Transfer" ) required (giving effect to anticipated Swing Line Advances and to anticipated payments to be applied under the Swing Line) to cause the respective Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) to be held by the Lenders according to their respective Pro Rata Percentages. On the next Business Day following such notice the necessary Equalization Transfers shall be made in Immediately Available Funds not later than 11:00 a.m. (local time in Denver); provided, however, Equalization Transfers necessary to avoid the event described in Section 2.1.5(a)(iii) shall be made on the same Business Day.

(c) Except as provided in Section 2.1.5(d) , any Equalization Transfer by the Lenders to the Agent shall be deemed to constitute Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) by such Lenders to Borrower and repayments by Borrower of Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) held by the Agent, and any Equalization Transfer by the Agent to the Lenders shall be deemed to constitute Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) by the Agent to Borrower and repayments of Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) held by the Lenders.

(d) In the event that on the date on which any Equalization Transfer is required to be made pursuant to Section 2.1.5(b) , a Matured Default of the type described in clause (i) of the definition thereof shall have occurred and be continuing, any Equalization Transfer by the Lenders to the Agent, and any Equalization Transfer by the Agent to the Lenders shall be deemed to constitute a purchase by the Lenders or the Agent, as the case may be, of a direct interest, in the amount of such Equalization Transfer, in outstanding Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) of the Lenders to Borrower, to the end that each of the Lenders shall have an interest therein equal to their respective Pro Rata Percentages as of the date of occurrence of such Matured Default.

(e) At any time after any Lender (a “Selling Lender" ) has received any Equalization Transfer that constitutes a purchase by any other Lender (a “Purchasing Lender" ) of a direct interest in such Selling Lender’s Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) pursuant to Section 2.1.5(d) , if such Selling Lender receives any payment on account of its Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) such Selling Lender will distribute to such Purchasing Lender its proportionate share of such payment (appropriately adjusted in the case of interest payments, to reflect the period of time during which such Purchasing Lender’s direct interest was outstanding and funded); provided however , that in the event that such payment received by such Selling Lender is required to be returned, such Purchasing Lender will return to such Selling Lender any portion thereof previously distributed to it by such Selling Lender.

(f) Provided that no Lender (other than the Agent, when making Swing Line Advances) shall be required to make Loans or Equalization Transfers that would cause its outstanding Loans to exceed its Commitments, each Lender’s obligation to make Equalization Transfers pursuant to Section 2.1.5(b) shall be absolute and unconditional and shall not be affected by any circumstance, including without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Agent or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or a Matured Default or the termination of the Commitments; (iii) any adverse change in the condition (financial or otherwise) of Borrower or any other Person; (iv) any breach of this Agreement by Borrower or any other Lender, including without limitation, any other Lender’s failure to make any Equalization Transfer; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

(g) Payments of principal, interest, non-use fees and letter of credit fees by Borrower and Equalization Transfers between the Lenders, respectively, shall be made on the Closing Date: (i) to cause the payment of interest, non-use fees and letter of credit fees due to the Lenders to the Closing Date under the Prior Agreement; and (ii) to cause the Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) to be held by the Lenders under this Agreement according to their respective Pro Rata Percentage (adjusted in the reasonable discretion of the Agent for anticipated Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) or repayments of Loans (under the Line of Credit B or under the Line of Credit A, as the case may be)), said Equalization Transfers to be deemed to be, as to the Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) made and outstanding under the Prior Agreement, a sale and assignment by the Lenders to the Lenders, respectively, and a purchase and assumption by the Lenders from the Lenders, respectively, according to their respective Pro Rata Percentages. Borrower acknowledges that this will result, in some cases, in Lenders holding lower Pro Rata Percentage in LIBOR Rate Loans than they held under the Prior Agreement, and, to the extent applicable, Borrower acknowledges its reimbursement obligations under Section 2.3(b) of the Prior Agreement with respect to this reallocation of LIBOR Rate Loans.

2.2 Payment of Principal and Interest; Default Rate . The principal amount outstanding under the Swing Line, the Line of Credit A and the Line of Credit B shall be due and payable on the Maturity Date. Loans under the Swing Line shall be Daily Reset LIBOR Rate Loans. Loans under the Line of Credit A and Line of Credit B may, at the option of Borrower, be Base Rate Loans or LIBOR Rate Loans. Each request for LIBOR Rate Loans shall be in a minimum amount of $1,000,000 and an integral multiple of $1,000,000 and shall be subject to the restrictions set forth in the definition of Interest Period and the other restrictions set forth in this Section 2.2 . Borrower shall pay interest on the unpaid principal amount of each Loan made by each Lender from the date of such Loan until such principal amount shall be paid in full, at the times and at the rates per annum set forth below:

(a) So long as no Matured Default has occurred and is continuing, during such periods as such Loan is a Daily Reset LIBOR Rate Loan, a rate per annum equal to the lesser of (i) the sum of the Daily Reset LIBOR Rate in effect from time to time plus the Applicable Margin and (ii) the Highest Lawful Rate, payable monthly in arrears on the first day of each month commencing [May 1, 2009], and on the Maturity Date, which interest shall be paid by an Agent initiated Advance pursuant to Section 2.1 , without prior demand by the Agent.

(b) So long as no Matured Default has occurred and is continuing, during such periods as such Loan is a Base Rate Loan, a rate per annum equal to the lesser of (i) the sum of the Base Rate in effect from time to time plus the Applicable Margin and (ii) the Highest Lawful Rate, payable monthly in arrears on the first day of each month commencing [May 1, 2009], and on the Maturity Date, which interest shall be paid by an Agent initiated Advance pursuant to Section 2.1 , without prior demand by the Agent.

(c) So long as no Matured Default has occurred and is continuing, during such periods as such Loan is a LIBOR Rate Loan, a rate per annum during each day of each Interest Period for such Loan equal to the lesser of (i) the sum of the LIBOR Rate for such Interest Period for such Loan plus the Applicable Margin and (ii) the Highest Lawful Rate, payable in arrears on the last day of the Interest Period in respect of such LIBOR Rate Loan, and, if the Interest Period with respect to such LIBOR Rate Loan exceeds three months, the day which is three months after the making of such LIBOR Rate Loan, which interest shall be paid by an Agent initiated Advance pursuant to Section 2.1 , without prior demand by the Agent.

(d) After the occurrence of a Matured Default and for so long as such Matured Default is continuing, the Agent shall (upon the direction of the Required Lenders) notify Borrower that any and all amounts due hereunder or under any other Financing Agreement, whether for principal, interest (to the extent permitted by applicable law), fees, expenses or otherwise, shall bear interest, from the date of such notice by the Agent and for so long as such Matured Default continues, payable on demand, at a rate per annum (the “Default Rate" ) equal to the lesser of (i)(A) with respect to a Daily Reset LIBOR Rate Loan, the sum of two percent (2.0%) per annum plus the Daily Reset LIBOR Rate in effect from time to time plus the Applicable Margin; (B) with respect to a Base Rate Loan, the sum of two percent (2.0%) per annum plus the Base Rate in effect from time to time plus the Applicable Margin; or (C) with respect to a LIBOR Rate Loan, the sum of two percent (2.0%) per annum plus the LIBOR Rate then in effect for such LIBOR Rate Loan plus the Applicable Margin; or (ii) the Highest Lawful Rate.

(e) All computations of interest pursuant to this Section 2.2 shall be made by the Agent with respect to all Loans on the basis of a year of 360 days, unless the foregoing would result in a rate exceeding the Highest Lawful Rate, in which case such computations shall be based on a year of 365 or 366 days, as the case may be. Interest with respect to all Loans, whether based on a year of 360, 365 or 366 days, shall be charged for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest is payable. Each determination by the Agent of an interest rate shall be conclusive and binding for all purposes, absent manifest error.

(f) Borrower may on any Business Day, upon Borrower’s written (including facsimile) notice or oral notice followed by written (including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am (local time in Denver) on the second Business Day prior to the date of any proposed interest conversion or rollover, (a) convert Loans of one Type into Loans of another Type, or (b) continue or rollover existing LIBOR Rate Loans; provided however , (i) with respect to any conversion into or rollover of a LIBOR Rate Loan, no Default or Matured Default shall have occurred and be continuing, and (ii) any continuation or rollover of LIBOR Rate Loans for the same or a different Interest Period or into Base Rate Loans, shall be made on, and only on, the last day of an Interest Period for such LIBOR Rate Loans. Each such notice of interest conversion shall specify therein the requested (x) date of such conversion, (y) the Loans to be converted and whether such Loans constitute LIBOR Rate Loans, and (z) if such interest conversion is into Loans constituting LIBOR Rate Loans, the duration of the Interest Period for each such Loan. The Agent shall promptly deliver a copy thereof to each Lender. Each such notice shall be irrevocable and binding on Borrower. If Borrower shall fail to give a notice of interest conversion with respect to any LIBOR Rate Loan as set forth above, such Loan shall automatically convert to a Base Rate Loan on the last day of the Interest Period with respect thereto. The provisions of this Section 2.2(f) shall also apply to initial Advances made as LIBOR Rate Loans.

2.3 Prepayments; Termination of the Commitments .

(a) Borrower may at any time prepay the outstanding principal amount of any Loan, in either case in whole or in part, in accordance with this Section 2.3 . With respect to any prepayment, Borrower shall give prior written notice of any such prepayment to the Agent, which notice shall state the proposed date of such prepayment (which shall be a Business Day), the Loans to be prepaid and the aggregate amount of the prepayment, and which notice shall be delivered to the Agent not later than 12:00 noon (local time in Denver): (a) with respect to any Loan which is a Base Rate Loan, on the date of the proposed prepayment, and (b) with respect to any Loan which is a LIBOR Rate Loan, two (2) Business Days prior to the date of the proposed prepayment. All prepayments of Base Rate Loans shall be without premium. All prepayments of LIBOR Rate Loans shall be made together with accrued and unpaid interest (if any) to the date of such prepayment on the principal amount prepaid without premium thereon, provided however , that losses, costs or expenses incurred by any Lender as described in Section 2.3(b) shall be payable with respect to each such prepayment. All notices of prepayment shall be irrevocable and the payment amount specified in each such notice shall be due and payable on the prepayment date described in such notice, together with, in the case of LIBOR Rate Loans, accrued and unpaid interest (if any) on the principal amount prepaid and any amounts due under Section 2.3(b) . Borrower shall have no optional right to prepay the principal amount of any LIBOR Rate Loan other than as provided in this Section 2.3 .

(b) Borrower will indemnify each Lender against, and reimburse each Lender on demand for, any loss, cost or expense incurred or sustained by such Lender (including without limitation, any loss or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund or maintain any LIBOR Rate Loan and/or loss of net yield) as a result of (a) any payment, conversion, rollover, or prepayment of all or a portion of any LIBOR Rate Loan on a day other than the last day of an Interest Period for such LIBOR Rate Loan, (b) any payment, conversion, rollover or prepayment (whether required hereunder or otherwise) of such Lender’s Loan made after the delivery of a notice of borrowing delivered pursuant to Section 2.2 (whether oral or written) but before the proposed date for such LIBOR Rate Loan if such payment or prepayment prevents the proposed borrowing from becoming fully effective, (c) after receipt by the Agent of a notice of borrowing delivered pursuant to Section 2.2 , the failure of any Loan to be made or effected by such Lender due to any condition precedent to a borrowing not being satisfied or due to any other action or inaction of Borrower or (d) any rescission of a notice of borrowing delivered pursuant to Section 2.2 or a notice of interest conversion delivered pursuant to Section 2.2 . Any Lender demanding payment under this Section 2.3 shall deliver to Borrower and the Agent a statement reasonably setting forth the amount and manner of determining such loss, cost or expense, which statement shall be conclusive and binding for all purposes, absent manifest error. Compensation owing to a Lender as a result of any such loss, cost or expense resulting from a payment, prepayment, conversion or rollover of a LIBOR Rate Loan shall include without limitation, an amount equal to the sum of (i) the amount of the net yield that, but for such event, such Lender would have earned for the remainder of the applicable Interest Period plus (ii) any expense incurred by such Lender. Notwithstanding any provision herein to the contrary, each Lender shall be entitled to fund and maintain its funding of all of any part of the LIBOR Rate Loans in any manner it elects; it being understood, however, that all determinations hereunder shall be made as if the Lender had actually funded and maintained each LIBOR Rate Loan during the Interest Period for such Loan through the purchase of deposits having a term corresponding to such Interest Period and bearing an interest rate equal to the LIBOR Rate for such Interest Period (whether or not the Lender shall have granted any participations in such Loans).

(c) Borrower shall have the right, upon at least five Business Days’ written notice to the Lenders, to terminate the Line of Credit A Loan Commitments, (i) in whole (subject to the last sentence of this Section 2.3(c) ) or (ii) in part, in a minimum amount of $5,000,000 and an integral multiple of $1,000,000, but not to an amount less than $160,000,000. Provided, however, that any such termination shall be accompanied, (i) in the case of a termination in whole, by payment of the Line of Credit A Loan Liabilities in full and the return or cash coverage of any Letter then outstanding, or (ii) in the case of a partial termination, payment of the Line of Credit A Loan Liabilities to the extent necessary to cause the Available Amount A to be not less than zero. Any partial reduction of the Line of Credit A Loan Commitments pursuant to this Section 2.3(c) shall result in a reduction pro-rata of the Line of Credit A Loan Commitments of each of the Lenders. Borrower shall have the right, upon at least five Business Days’ written notice to the Lenders, to terminate the Line of Credit B Loan Commitments, (i) in whole, or (ii) in part, in a minimum amount of $5,000,000 and an integral multiple of $1,000,000, but not to an amount less than $40,000,000. Provided, however, that any such termination shall be accompanied, (i) in the case of a termination in whole, by payment of the Line of Credit B Loan Liabilities in full, or (ii) in the case of a partial termination, payment of the Line of Credit B Loan Liabilities to the extent necessary to cause the Available Amount B to be not less than zero. Any partial reduction of the Line of Credit B Loan Commitments pursuant to this Section 2.3(c) shall result in a reduction pro-rata of the Line of Credit B Loan Commitments of each of the Lenders. In the event Borrower elects to terminate the Line of Credit A Loan Commitments in whole as set forth in this Section 2.3(c) , then Borrower shall also terminate the Line of Credit B Loan Commitments in whole as set forth in this Section 2.3(c) .

2.4 Purpose . The purpose of the Line of Credit A and the Line of Credit B is to provide funds for the general working capital purposes of Borrower and its consolidated subsidiaries.

2.5 Loan and Letter of Credit Fees .

(a)  Agent’s Fee . Borrower agrees to pay to the Agent, in respect of its administrative duties hereunder: a one time arranger fee on the Closing Date; an annual agent’s fee on the Closing Date and on each anniversary date to the Maturity Date; and one time fronting fees from time to time in respect of the initial Issuance of Letters, all in amounts as set forth in the Agent’s Letter. Each of the Agent’s fees shall be fully earned on the date they become payable and if not paid timely by Borrower, at the option of the Agent, shall be paid by Advances pursuant to Section 2.1 , without prior demand by the Agent. No Persons other than the Agent shall have any interest in any such Agent’s fees.

(b)  Initial Commitment Fees . Borrower agrees to pay to the Agent for distribution to the Lenders, including the Agent the one time initial commitment fees in amounts as set forth in the Agent’s Letter. Each of these fees shall be fully earned and if not paid timely by Borrower, at the option of the Agent, shall be paid by Advances pursuant to Section 2.1 , without prior demand by the Agent.

(c)  Quarterly Non-Use Fees . Borrower agrees to pay to the Agent for distribution to the Lenders (based on their respective pro rata average principal amounts outstanding under the Swing Line, the Line of Credit A and the Line of Credit B or, as applicable, their respective Pro Rata Percentages if, in any case, said average principal amounts outstanding are zero) quarterly non-use fees (“ Non-Use Fees ”) through the Maturity Date, calculated using the then applicable rates per annum set forth in the definition of Applicable Margin, and applied to the daily average Available Amount A and Available Amount B, respectively. The quarterly Non-Use Fees shall be due and payable in arrears with respect to the prior quarter on the first day of each January, April, July and October hereafter through the Maturity Date. Pro-rated Non-Use Fees shall be due and payable on the first day of the quarter following the Closing Date and on the Maturity Date. Pro-rated Non-Use Fees shall be due and payable to the Lenders on the Closing Date based on the Commitments and outstanding amounts under the Prior Agreement. The quarterly Non-Use Fees shall be fully earned as they accrue and if not paid timely by Borrower, at the option of the Agent, shall be paid by Advances pursuant to Section 2.1 , without prior demand by the Agent.

(d)  Letter of Credit Fees . Borrower agrees to pay to the Agent, for distribution to the Lenders (based on their respective Pro Rata Percentages), quarterly fees ( “Commercial LC Fees” and “Standby LC Fees" , respectively), payable in arrears with respect to the prior quarter on the first day of each January, April, July and October, in respect of each Letter Issued hereunder, calculated using the then applicable rates per annum set forth in the definition of Applicable Margin, and applied to daily average face amounts of all Letters outstanding during such quarter, respectively. Pro-rated LC Fees and Standby LC Fees shall be due and payable on the first day of the quarter following the Closing Date, on the Maturity Date and, with respect to a Letter that terminates, on the date such Letter terminates. Pro-rated LC Fees and Standby LC Fees shall be due and payable to the Lenders on the Closing Date based on the Letters outstanding under the Prior Agreement. Borrower shall also pay to the Agent for the account of the Issuer Issuing any Letter, the normal and customary processing fees charged by such Issuer in connection with the Issuance of or drawings under each such Letter. Commercial LC Fees, Standby LC Fees and related processing fees shall be fully earned as they accrue and if not paid timely by Borrower, at the option of the Agent, shall be paid by Advances pursuant to Section 2.1 , without prior demand by the Agent.

(e)  Calculation of Fees . The fees payable under this Section 2.5 which are based on an annual percentage rate shall be calculated by the Agent on the basis of a 360-day year, for the actual days (including the first day but excluding the last day) occurring in the period for which such fee is payable. Each determination by the Agent of fees payable under this Section 2.5 shall be conclusive and binding for all purposes, absent manifest error.

(f)  Fees Not Interest . The fees described in this Agreement represent compensation for services rendered and to be rendered separate and apart from the lending of money or the provision of credit and do not constitute compensation for the use, detention, or forbearance of money, and the obligation