8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)

September 6, 2019

GREEN PLAINS INC.

(Exact name of registrant as specified in its charter)

Iowa

(State or other jurisdiction of incorporation)

001-32924	84-1652107
(Commission file number)	(IRS employer identification no.)
1811 Aksarben Drive, Omaha, Nebraska	68106
(Address of principal executive offices)	(Zip code)

(402) 884-8700

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol	Name of each exchange on which registered
Common Stock, par value $0.001 per share	GPRE	The Nasdaq Stock Market LLC

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01. Entry into a Material Definitive Agreement.

Formation of Joint Venture and Second Amended and Restated LLC Agreement

On September 9, 2019, Green Plains Inc. (“Green Plains” or the “company”), TGAM Agribusiness Fund Holdings-B LP (“TGAM”) and StepStone Atlantic Fund, L.P. (“StepStone”) announced the formation of a joint venture. Such parties entered into the Second Amended and Restated Limited Liability Company Agreement (“LLC Agreement”) of Green Plains Cattle Company LLC (“GPCC”) on September 6, 2019, effective as of September 1, 2019. GPCC was previously a wholly owned subsidiary of Green Plains. Green Plains also entered into a Securities Purchase Agreement (as further described below) with TGAM and StepStone, whereby TGAM and StepStone purchased an aggregate of 50% of the membership interests of GPCC from Green Plains for approximately $77.2 million in cash, plus post-closing adjustments (the “Transaction”).

Under the LLC Agreement, Green Plains has certain rights and obligations, including but not limited to, the right or obligation: (i) to designate two Managers to the Board of Managers of GPCC (the “Board”), or in the event the size of the Board is increased, the number of Managers equal to two-fifths of the Board, rounded up, and (ii) to fund additional capital contributions in accordance with their percentage interest upon mutual agreement by Green Plains, TGAM and StepStone. Additionally, TGAM and StepStone both have the right or obligation to designate one Manager, or in the event the size of the Board is increased, the number of Managers equal to one-fifths of the Board, rounded up. Each Manager serving on the Board shall have one vote and a majority of the Managers serving on the Board shall constitute a quorum for the transaction of business of the Board. Green Plains’ allocation under the LLC Agreement will be subject to certain adjustments.

Pursuant to the Shared Services Agreement among the parties, GPCC will manage the day-to-day operations of the cattle feed yards while Green Plains will provide certain administrative services.

Securities Purchase Agreement

As indicated above, on September 6, 2019, GPCC, TGAM and StepStone entered into a Securities Purchase Agreement (the “Purchase Agreement”) with Green Plains. The Transaction closed simultaneously with the signing with an effective date of September 1, 2019.

The Purchase Agreement contains customary representations, warranties and covenants of GPCC and Green Plains.

Promissory Note

Funding for the Transaction was backed by a Promissory Note between Green Plains and StepStone, in the amount of $10.0 million issued September 1, 2019, signed September 6, 2019 and to be settled in cash by September 20, 2019.

Amended and Restated Credit Agreement

On August 28, 2019, GPCC entered into an amended and restated senior secured asset-based revolving credit facility with a group of lenders led by Bank of the West and ING Capital LLC, which was effective upon the signing of the LLC Agreement and Purchase Agreement. The amended and restated agreement includes revisions to certain covenants including the calculations of tangible net worth, restricted payments and excess cash reserves. The prior credit facility defined a change in control as Green Plains owning less than 100% of GPCC, which has been revised to Green Plains owning less than 35% of GPCC.

Copies of the LLC Agreement, Purchase Agreement, Promissory Note and Amended and Restated Credit Agreement are filed with this Current Report on Form 8-K and are incorporated herein by reference. The foregoing summary of the material terms of these agreements does not purport to be a complete description thereof and is qualified in its entirety by the full text of the agreements.

Item 2.01. Completion of Acquisition or Disposition of Assets.

The information set forth above in Item 1.01 under “Securities Purchase Agreement” is incorporated into this Item 2.01 by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

Upon completion of the Transaction, Green Plains will recognize its proportionate share of earnings in GPCC using the equity method of accounting.

The company accounts for investments in which the company exercises significant influence using equity method accounting so long as the company (i) does not control the investee and (ii) is not the primary beneficiary of the entity. The company will recognize these investments on a separate line item in the consolidated balance sheet and will recognize its proportionate share of earnings on a separate line item in the consolidated statement of operations. The company does not consolidate any part of the assets or liabilities or operating results of its equity method investees.

The information included or incorporated by reference in Item 1.01 of this Current Report is incorporated herein by reference.

Item 7.01. Regulation FD Disclosure.

On September 9, 2019, the company issued a press release announcing the Transaction and the creation of the joint venture by and among Green Plains, GPCC, TGAM and StepStone, which is included as Exhibit 99.1 and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(b) Pro Forma Financial Information.

The unaudited pro forma condensed consolidated financial statements required by this Item 9.01(b) will be filed within the time required by Form 8-K.

(d) Exhibits. The following exhibits are filed as part of this report.

Exhibit No.	Description of Exhibit
2.1	Securities Purchase Agreement, dated as of September 6, 2019, by and among Green Plains Inc., Green Plains Cattle Company LLC, TGAM Agribusiness Fund Holdings-B LP, and StepStone Atlantic Fund, L.P. (Certain schedules to the Securities Purchase Agreement have been omitted. The company will furnish such schedules to the SEC upon request.)
10.1	Second Amended and Restated Limited Liability Company Agreement of Green Plains Cattle Company LLC, dated September 6, 2019 (Certain schedules to the Second Amended and Restated Limited Liability Company Agreement have been omitted. The company will furnish such schedules to the SEC upon request.)
10.2	Promissory Note between Green Plains Inc. and StepStone Atlantic Fund, L.P., dated September 6, 2019
10.3	Amended and Restated Credit Agreement, dated as of August 28, 2019, by and among Green Plains Cattle Company LLC, Bank of the West and ING Capital LLC, as Joint Administrative Agents, and the lenders party to the Credit Agreement (Certain schedules to the Amended and Restated Credit Agreement have been omitted. The company will furnish such schedules to the SEC upon request.)
99.1	Press Release dated September 9, 2019
104	Cover Page formatted in Inline Extensible Business Reporting Language (iXBRL)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: September 9, 2019 Green Plains Inc. By: /s/ G. Patrich Simpkins Jr.              G. Patrich Simpkins Jr.
‎Chief Financial Officer (Principal Financial Officer)

EX-2.1

Exhibit 2.1

SECURITIES PURCHASE AGREEMENT

by and among

GREEN PLAINS INC.,

GREEN PLAINS CATTLE COMPANY, LLC,

TGAM AGRIBUSINESS FUND HOLDINGS-B LP,

and

STEPSTONE ATLANTIC FUND, L.P.

Dated as of September 6, 2019

TABLE OF CONTENTS
		PAGE
ARTICLE 1	DEFINTITIONS	1
1.1	Definitions	1
ARTICLE 2	PURCHASE AND SALE; CLOSING	11
2.1	Purchase and Sale of Purchased Interests	11
2.2	Closing	12
2.3	Purchase Price	12
2.4	Adjustment of Purchase Price	12
2.5	Withholding	14
ARTICLE 3	REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND GREEN PLAINS	14
3.1	Organization	14
3.2	Power and Authority	14
3.3	Enforceability	14
3.4	Capitalization	15
3.5	Valid Issuance of Purchased Interests	15
3.6	Subsidiaries	15
3.7	No Violation; Consents and Approvals	16
3.8	Financial Statements	16
3.9	Undisclosed Liabilities	16
3.10	Absence of Changes	17
3.11	Litigation	19
3.12	Product and Service Liability; Product Recall	19
3.13	Environmental Matters	19
3.14	Title to Assets; Sufficiency of Assets	21
3.15	Real Property	22
3.16	Legal and Regulatory Compliance	22
3.17	Labor and Employment Matters	23
3.18	Immigration Matters	24
3.19	Employee Benefit Plans	25
3.20	Tax Matters	26
3.21	Insurance	28
3.22	Licenses and Permits	29
3.23	Related Party Transactions	29
3.24	Material Contracts	30
3.25	Intellectual Property	32
3.26	Indebtedness	34
3.27	Customers and Suppliers	34
3.28	Inventory	34

ii

3.29	Accounts Receivable	34
3.30	Accounts	35
3.31	No Brokers	35
3.32	No Disqualification Events	35
3.33	No Other Representations or Warranties	35
ARTICLE 4	REPRESENTATIONS AND WARRANTIES OF GREEN PLAINS	35
4.1	Organization	35
4.2	Power and Authority	36
4.3	Enforceability	36
4.4	No Violation; Consents and Approvals	36
4.5	Company Interests	36
4.6	No Legal Proceedings	36
4.7	No Brokers' Fee	36
4.8	No Other Representations or Warranties	36
ARTICLE 5	REPRESENTATIONS AND WARRANTIES OF THE BUYERS	37
5.1	Organization	37
5.2	Power and Authority	37
5.3	Enforceability	37
5.4	No Violation; Consents and Approvals	37
5.5	No Legal Proceedings	37
5.6	No Brokers' Fee	38
5.7	Investment Representations	38
5.8	Disqualification Event	38
5.9	Buyer's Due Diligence	38
ARTICLE 6	CERTAIN COVENANTS AND AGREEMENTS	38
6.1	Public Announcements	38
6.2	Fees and Expenses	39
6.3	Cooperation	39
6.4	Tax Matters	39
6.5	Transaction Expenses	40
ARTICLE 7	CLOSING DELIVERABLES	40
7.1	Company Deliverables	40
7.2	Green Plains Deliverables	41
7.3	Buyers Deliverables	42
ARTICLE 8	INDEMNIFICATION	42
8.1	Indemnification Obligations of Green Plains	42
8.2	Indemnification Obligations of the Buyers	43
8.3	Indemnification Procedure	43
	iii

8.4	Survival	44
8.5	Limitation on Indemnity	45
8.6	Damage to the Buyers	47
8.7	Tax Treatment	47
8.8	Exclusive Remedies	47
ARTICLE 9	MISCELLANEOUS	47
9.1	Notices	48
9.2	Disclosure Schedules	48
9.3	Assignment; Successors in Interest	48
9.4	Interpretation	48
9.5	Captions	48
9.6	Controlling Law	48
9.7	Consent to Jurisdiction, etc.	49
9.8	Specific Performance	49
9.9	Arbitration	49
9.10	Legal Representation	51
9.11	Severability	52
9.12	Amendment	52
9.13	Counterparts	52
9.14	Enforcement of Certain Rights	52
9.15	Waiver	52
9.16	Integration	52

iv

SECURITIES PURCHASE AGREEMENT

THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of September 6, 2019 (the “Execution Date”), is made and entered into by and among Green Plains Inc., an Iowa corporation (“Green Plains”), Green Plains Cattle Company LLC, a Delaware limited liability company (the “Company”), TGAM Agribusiness Fund Holdings-B LP, a Delaware limited partnership (“TGAM”), and StepStone Atlantic Fund, L.P., a Delaware limited partnership (“StepStone” andtogether with TGAM, each, a “Buyer” and collectively, the “Buyers”). In this Agreement, the Company, Green Plains and each of the Buyers are sometimes referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

A.Green Plains is the beneficial and record owner of 100% of the membership interests of the Company (the “Company Interests”).

B.The Buyers desire to purchase and acquire, and Green Plains desires to sell and transfer to the Buyers, an aggregate of fifty (50%) of the Company Interests (the “Purchased Interests”), upon the terms and subject to the conditions set forth herein.

C.The Parties desire to make this Agreement effective as of September 1, 2019 (the “Effective Date”)

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, the Parties agree as follows:

ARTICLE 1
Definitions

1.1Definitions

 The following capitalized terms shall have the following meanings:

(a) “AAA” shall have the meaning set forth in Section 9.9(b).

(b) “Actual Members’ Equity Amount” shall have the meaning set forth in Section 2.4(b).

(c) “Affiliate” means, with respect to a person or entity, any other person or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person.  As used in this definition, the word “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.

(d) “Agreement” shall have the meaning set forth in the preamble.

2

(e) “Ancillary Documents” means any certificate, agreement, document or other instrument required to be executed and delivered by any of the Parties in connection with the Transactions, including those documents described in Article 7 below.

(f) “Annual Financial Statements” shall have the meaning set forth in Section 3.8.

(g) “Arbitration Notice” shall have the meaning set forth in Section 9.9(a).

(h) “Balance Sheet Date” means July 31, 2019.

(i) “Basis” means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act or transaction that forms or would be reasonably likely to form a basis for any specified consequence.

(j) “Basket” shall have the meaning set forth in Section 8.5(b).

(k) “Book Value” means the excess of the total assets of the Company over the total liabilities, each to be determined in accordance with GAAP, and excluding accumulated other comprehensive income related to any hedging instruments with respect to cattle inventory, as detailed in Schedule A attached hereto.

(l) “Business” means the cattle feedlot operation (with approximately 355,000 head of cattle) with facilities in Colorado, Kansas and Texas operated by the Company.

(m) “Buyer Indemnified Parties” shall have the meaning set forth in Section 8.1(a).

(n) “Buyer Losses” shall have the meaning set forth in Section 8.1(b).

(o) “Cap Amount” shall have the meaning set forth in Section 8.5(c)(i).

(p) “Claim” shall have the meaning set forth in Section 9.9(a).

(q) “Closing” shall have the meaning set forth in Section 2.2.

(r) “Closing Date” shall have the meaning set forth in Section 2.2.

(s) “Closing Purchase Amount” means an amount in cash equal to (i) the Purchase Price, plus (ii) the amount by which the Estimated Members’ Equity Amount exceeds the Target Members’ Equity Amount, if applicable, minus (iii) the amount by which the Target Members’ Equity Amount exceeds the Estimated Members’ Equity Amount, if applicable.

(t) “Closing Statement” shall have the meaning set forth in Section 2.4(b).

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

(v) “Company” shall have the meaning set forth in the preamble.

(w) “Company Employees” shall have the meaning set forth in Section 3.17(a).

3

(x) “Company Indemnified Parties” shall have the meaning set forth in Section 8.2(a).

(y) “Company Interests” shall have the meaning set forth in the recitals.

(z) “Company IP Rights Contracts” shall have the meaning set forth in Section 3.25(c).

(aa) “Company Intellectual Property” shall have the meaning set forth in Section 3.25(a).

(bb) “Company Losses” shall have the meaning set forth in Section 8.2(b).

(cc) “Company Operating Agreement” means that certain Second Amended and Restated Limited Liability Company Agreement of the Company, effective as of September 1, 2019.

(dd) “Company Trademarks” shall have the meaning set forth in Section 3.25(b).

(ee) “Contract” means any written or oral contract, note, bond, mortgage, pledge, indenture, lease, sublease, equipment lease, purchase order, supply commitment or other commitment, instrument, concession, franchise, license or any other agreement.

(ff) “Covered Person” shall have the meaning set forth in Section 3.32.

(gg) “Credit Agreement” shall have the meaning set forth in Section 7.2(g).

(hh) “De Minimis Threshold” shall have the meaning set forth in Section 8.5(a).

(ii) “Designated Courts” shall have the meaning set forth in Section 9.7(a).

(jj) “Disclosure Schedules” shall have the meaning set forth in Section 9.2.

(kk) “Dispute Notice” shall have the meaning set forth in Section 2.4(e).

(ll) “Dispute Notification Period” shall have the meaning set forth in Section 2.4(e).

(mm) “Disqualification Event” shall have the meaning set forth in Section 3.32.

(nn) “Effective Date” shall have the meaning set forth in the recitals.

(oo) “Execution Date” shall have the meaning set forth in the preamble.

(pp) “Environmental Laws” means all federal, state, and local statutes and regulations enacted and in effect on or prior to the Closing Date, (a) relating to pollution, (or the cleanup thereof), degradation or the protection, use and management of natural resources, endangered or threatened species, human health or safety, or the environment (including flora, fauna, ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, emission, release, control, exposure to or cleanup of any

4

Hazardous Materials or Hazardous Substances applicable to the Company, any of its Subsidiaries, or the Real Property.

(qq) “Environmental Permits” shall have the meaning set forth in Section 3.13(b).

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

(ss) “ERISA Affiliate” shall have the meaning set forth in Section 3.19(c).

(tt) “Estimated Closing Statement” shall have the meaning set forth in Section 2.4(a).

“Estimated Members’ Equity Amount” shall have the meaning set forth in Section 2.4(a).

(uu)  “Expenses” shall have the meaning set forth in Section 6.2.

(vv) “FDA” means the United States Food and Drug Administration.

(ww) “Final Members’ Equity Amount” shall have the meaning set forth in Section 2.4(c).

(xx) “Financial Statements” shall have the meaning set forth in Section 3.8.

(yy) “Food Laws” shall have the meaning set forth in Section 3.16(b).

(zz) “Fundamental Representations” shall have the meaning set forth in Section 8.4.

(aaa) “GAAP” means generally accepted accounting principles as in force in the United States of America at the date of the determination thereof, consistently applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Financial Statements as if such accounts were being prepared and audited as of a fiscal year end.

(bbb) “Green Plains” shall have the meaning set forth in the preamble.

(ccc) “Governmental Authority” means any national, federal, state, provincial, county, municipal or local government, foreign or domestic, or the government of any political subdivision of any of the foregoing, or any entity, authority, agency, arbitral body, ministry, court or other similar body exercising executive, legislative, judicial, regulatory or administrative authority or functions of or pertaining to government, including any authority or other quasi-governmental authority established to perform any of such functions.

(ddd) “Hazardous Materials” means: (i) any material, substance, chemical, waste, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is defined as hazardous, acutely hazardous, toxic, a pollutant regulated under Environmental Laws; and (ii) any petroleum or petroleum-derived products.

(eee) “Hazardous Substances” shall have the meaning defined 42 USC 9601(14).

5

(fff) “Indebtedness” means, as to any Person, (i) all obligations of such Person for borrowed money (including reimbursement and all other obligations with respect to surety bonds, letters of credit and bankers’ acceptances, whether or not matured), (ii) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (iii) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (iv) all obligations of such Person under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (v) all indebtedness secured by any lien, encumbrance, pledge, mortgage or other security interest on any property or asset owned or held by that Person, (vi) any unpaid Pre-Closing Taxes, (vii) all indebtedness evidenced by any note, bond, debenture or other debt security, and (viii) interest expense accrued but unpaid, and all prepayment premiums, penalties, fees and charges due on any of the foregoing.  For the avoidance of doubt, Indebtedness does not include the undrawn portion of any letter of credit.

(ggg) “Independent Accounting Firm” shall have the meaning set forth in Section 2.4(e).

(hhh) “Indemnified Party” shall have the meaning set forth in Section 8.3(a).

(iii) “Indemnifying Party” shall have the meaning set forth in Section 8.3(a).

(jjj) “Insurance Policies” shall have the meaning set forth in Section 3.21.

(kkk) “Interim Financial Statements” shall have the meaning set forth in Section 3.8.

(lll) “Intellectual Property” means with respect to the Company and each of its Subsidiaries (to the extent provided by a Subsidiary for use in the Business), all worldwide (i) patents, patent applications, patent disclosures and inventions, including all provisionals, reissues, divisions, continuations, continuations-in-part, reexaminations, reissues and extensions thereof, inventions and invention disclosures (whether or not patentable and whether or not reduced to practice) as well as the rights to file for and to claim priority to any such rights throughout the world; (ii) trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, brand names and all common law rights therein and all applications and registrations therefor (collectively, “Trademarks”); (iii) URLs and Internet domain names;social media accounts and handles and similar digital assets; (iv) copyrights and copyrightable works; works of authorship (whether or not copyrightable); mask works; information systems, software and websites, including data files, source code, object code, application programming interfaces, and related specifications and documentation;image rights, rights of publicity; and rights in databases; (v) all licenses, registrations, applications and renewals for any of the forgoing; (vi) Trade Secrets; and (vii) all other intellectual property rights throughout the world.

(mmm) “Inventory” shall have the meaning set forth in Section 3.28.

(nnn)  “IRCA” shall have the meaning set forth in Section 3.18.

6

(ooo) “Knowledge of the Company” means the actual knowledge of those individuals listed on Schedule 1.1(ooo) of the Disclosure Schedules, and all facts of which such Persons should have knowledge after reasonable inquiry.

(ppp) “Laws” means all statutes, laws (common and statutory, criminal and civil), rules, treaties, conventions, legislations, codes, regulations, restrictions, ordinances, Orders, approvals and directives of, or issued by, all Governmental Authorities or any similar provision having the force of law.

(qqq) “Leased Real Property” shall have the meaning set forth in Section 3.15.

(rrr) “Legal Dispute” shall have the meaning set forth in Section 9.7(a).

(sss) “Liability” means any actual or potential liability or obligation (including as related to Taxes), whether accrued, absolute or contingent, liquidated or unliquidated, matured or unmatured, known or unknown and whether due or to become due, regardless of when asserted.

(ttt) “Licensed Intellectual Property” shall have the meaning set forth in Section 3.25(a).

(uuu) “Liens” means any mortgage, pledge, security interest, encumbrance, restriction, lien, or charge of any kind or nature (including, any conditional sale or other title retention agreement or lease in the nature thereof), any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar statute, or any subordination arrangement in favor of any person.

(vvv) “Loss” means any payment, judgment, claim, debt, obligation, recovery, deficiency, fine, penalty, interest, duty, levy, charge, assessment, loss, damage (including, without limitation, punitive damages to the extent paid to a third party), Liability, cost, assessments or Taxes (including Taxes incurred in connection with receipt of indemnification payments), in each case, whether or not foreseeable.

(www)  “Material Adverse Effect” means any change, event, occurrence or circumstance that, individually or in the aggregate with all other changes, events, occurrences and circumstances, results in, or could reasonably be expected to result in, a material adverse effect on the business, results of operations, condition (financial or otherwise), assets, or liabilities of the Company, taken as a whole, or on the ability of Green Plains or the Company to perform their respective obligations under this Agreement or to consummate the transactions contemplated hereby but, in each case, none of the following, either alone or in combination, shall be deemed to constitute, or be taken into account in determining whether there has been, such a material adverse effect: any event (i) resulting from general economic, political, financial, banking, credit or securities market conditions, including any disruption thereof and any interest or exchange rate fluctuations, (ii) affecting companies in the industries, markets or geographical areas in which the Company conducts its business generally, (iii) resulting from natural disasters, acts of terrorism or war (whether or not declared), or epidemics or pandemics, (iv) resulting from any failure by the Company or its subsidiaries to meet any internal or external estimates, expectations, budgets, projections or forecasts in and of itself (but not the underlying causes of such failure unless such underlying causes would otherwise be excepted from this definition);  (v) resulting from the

7

announcement or performance of, or compliance with, or the public or industry knowledge of, this Agreement or the transactions contemplated hereby, (vi) resulting from any actions required under this Agreement, including with respect to obtaining any consent required under this Agreement, or (vii) arising out of any action taken or omitted to be taken at the written request or with the written consent of the Buyers, provided, that the exclusions provided in clauses (i)-(iii) shall not apply to the extent the Company is disproportionately adversely affected by any event relative to other participants in the industries in which the Company generally operates (in which case only such disproportionate impact shall be taken into account in determining whether there has been or will be a Material Adverse Effect).

(xxx) “Material Contract” means the Contracts disclosed, or required to be disclosed on Schedule 3.24 of the Disclosure Schedules.

(yyy) “Material Customers” shall have the meaning set forth in Section 3.27.

(zzz) “Material Permits” has the meaning set forth in Section 3.22.

(aaaa) “Material Suppliers” shall have the meaning set forth in Section 3.27.

(bbbb) “Members’ Equity Amount” means an amount equal to the Book Value of the members’ equity of the Company as of August 31, 2019.

(cccc)  “Off-the-Shelf Software” means any generally available, commercial, off-the-shelf Software licensed in object code format only pursuant to a standardized click-wrap, shrink wrap, end-user or enterprise license for a total fee of less than $25,000 that is not material to the operation of the Company’s business.

(dddd) “Order” mean any judgment, writ, decree, award, compliance agreement, injunction, order (whether judicial, administrative or arbitral) or legally binding determination of any Governmental Authority or arbitrator.

(eeee) “Ordinary Course of Business” means the ordinary course of business consistent with past practice (including with respect to collection of accounts receivable, purchases of supplies, repairs and maintenance, payment of accounts payable and accrued expenses, terms of sale, levels of capital expenditures, and operation of cash management practices generally).

(ffff) “Organizational Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs.  For example, the “Organizational Documents” of a corporation are its certificate of incorporation and by‑laws, the “Organizational Documents” of a limited partnership are its limited partnership agreement and certificate of limited partnership and the “Organizational Documents” of a limited liability company are its operating agreement and certificate of formation.

(gggg) “Owned Company Intellectual Property” shall have the meaning set forth in Section 3.25(b).

(hhhh) “Party” shall have the meaning set forth in the preamble.

8

(iiii) “Permit” means any permit, license, accreditation, consent, certificate, approval, exemption, order, franchise, permission, agreement, qualification, variance, authorization, registration or similar right required to be obtained from a Governmental Authority.

(jjjj) “Permitted Liens” means (i) Liens for Taxes that are not yet due and payable or that are being contested in good faith by appropriate processes and for which adequate reserves have been established in accordance with GAAP, (ii) statutory Liens of landlords, (iii) Liens of carriers, warehousemen, mechanics, materialmen and repairmen incurred in the Ordinary Course of Business and not yet delinquent, and (iv) in the case of owned or leased real property, zoning, building, or other restrictions, variances, covenants, rights of way, encumbrances, easements and other minor irregularities in title, none of which, individually or in the aggregate, (A) interfere in any material respect with the present use of or occupancy of the affected parcel by the relevant entity, (B) have more than an immaterial effect on the value thereof or its use or (C) would impair the ability of such parcel to be sold for its present use.

(kkkk) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, a Governmental Authority or any other entity.

(llll) “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with, an individual.

(mmmm) “Plan” shall have the meaning set forth in Section 3.19(a).

(nnnn) “Pre-Closing Taxes” means (a) any and all Taxes of the Company attributable to or with respect to any Pre-Closing Tax Period, (b) any and all Taxes (or the non-payment thereof) of the Company for any Pre-Closing Tax Period, (c) any and all Taxes of either Green Plains or the Company (including capital gains Taxes arising as a result of the transactions contemplated by this Agreement and any withholding Taxes imposed on any payment to Green Plains pursuant to this Agreement) for any Tax period, (d) any and all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company (or any predecessor) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or non-U.S. Law, (e) any and all Taxes of any Person (other than the Company) imposed on the Company as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing, (f) any and all Transfer Taxes for which Green Plains or the Company is responsible under Section 6.4(c); and (g) any Taxes attributable to any breach or inaccuracy of any representation in Section 3.10 (without giving effect to any limitations or qualifications as to materiality, Material Adverse Effect, Knowledge or similar limitations).

(oooo)  “Pre-Closing Tax Period” means all taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date.

9

(pppp) “Pro Rata Share” means the percentages set forth across from the name of each Buyer on Schedule B attached hereto.

(qqqq) “Proceedings” means audits, examinations, actions, suits, claims, complaints, charges, demands, reviews, audits, investigations and legal, administrative or arbitration proceedings.

(rrrr) “Products or Services” means any product manufactured, produced or created by or on behalf of the Company or any of its Subsidiaries, or any services provided by or on behalf of the Company or any of its Subsidiaries.

(ssss) “Purchase Amount” shall have the meaning set forth in Section 2.4(c).

(tttt) “Purchase Price” means $77,239,500.

(uuuu) “Purchased Interests” shall have the meaning set forth in the recitals.

(vvvv) “Real Property” means the real property owned, leased or subleased by the Company or any of its Subsidiaries, together with all buildings, structures and facilities located thereon.

(wwww) “Related Party” means any equity holder or any business or entity in which any equity holder has any direct interest.

(xxxx) “Release” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing Hazardous Substances to escape or migrate into or through the environment (including, without limitation, vapor intrusion, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or into or within any building, structure, facility or fixture), in each case in violation of applicable Environmental Law.

(yyyy) “Representatives” means a Party’s accountants, investment bankers, counsel, consultants, strategic advisors and other authorized representatives of such Party.

(zzzz) Response” shall have the meaning set forth in Section 9.9(a).

(aaaaa) “Rules” shall have the meaning set forth in Section 9.9(b).

(bbbbb) “Subsidiary” shall have the meaning set forth in Section 3.6(a).

(ccccc) “Securities Act” means theSecurities Act of 1933, as amended, and all rules and regulations promulgated thereunder.

(ddddd) “Special Representations” shall have the meaning set forth in Section 8.4.

(eeeee) “StepStone” shall have the meaning set forth in the preamble.

10

(fffff) “Survival Date” shall have the meaning set forth in Section 8.4.

(ggggg) “Target Members’ Equity Amount” means an amount equal to $77,239,500.

(hhhhh) “Tax” or “Taxes” means any and all U.S. or other federal, provincial, state or local taxes, charges, fees, levies, deficiencies or other assessments of whatever kind or nature, including without limitation all net income, gross income, profits, gross receipts, excise, goods and services, value added, capital, real or personal property, sales, ad valorem, withholding, social security, retirement, excise, employment, unemployment, minimum estimated, severance, stamp, property, occupation, environmental, escheat, windfall profits, use, service, net worth, payroll, franchise, license, gains, customs, transfer, recording and other taxes, customs duty, fees assessments or charges of any kind whatsoever, imposed by any Governmental Authority, together with any interest, penalties or additions to Tax relating thereto, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

(iiiii) “Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

(jjjjj) “TGAM” shall have the meaning set forth in the preamble.

(kkkkk) “Third Party Claim” shall have the meaning set forth in Section 8.3(a).

(lllll) “Trade Secrets” means information, including, but not limited to, technical or non-technical data, formulas, recipes, technology, know-how, research and development, patterns, compilations, programs, including, without limitation, Software and related source codes, algorithms, devices, method, techniques, drawings, processes, financial data, financial plans, product plans, lists of actual or potential customers or suppliers, or other information similar to any of the foregoing, which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use.

(mmmmm) “Transaction Expenses” means the aggregate amount of all out-of-pocket fees and expenses (including any transfer, sales, turnover or similar Tax incurred in connection with such fees and expenses) incurred by or on behalf of Green Plains, the Company or any of their respective Affiliates in connection with the negotiation, preparation or execution of this Agreement or any other documents or agreements contemplated hereby or thereby, or the performance or consummation of the transactions contemplated hereby or thereby, or relating to bonuses, wages, vacation accruals and any other outstanding liabilities to the independent contractors and employees of the Company, in each case, that have not been paid as of the Closing or thereafter, including (i) any fees and expenses associated with obtaining necessary or appropriate waivers, consents or approvals of any Persons on behalf of the Company, (ii) any fees or expenses associated with obtaining the release and termination of any Liens, (iii) all brokers’ or finders’ fees, (iv) fees and expenses of counsel, advisors, consultants, investment bankers, accountants, auditors and experts, (v) all sale, change-of-control, or similar bonuses or

11

payments to current or former directors, managers, officers, employees and other service providers of the Company paid or payable as a result of or in connection with the transactions contemplated hereby (including any severance or other payments payable to any employee or service provider of the Company in connection with such Person entering into any new employment agreement or service agreement, whether at or following the Closing, but, for the avoidance of doubt, excluding any new severance or retention payments provided under such new employment agreement or service agreement, as applicable) and any Taxes or charges payable in connection therewith (including the employer portion of any payroll Tax, apprenticeship levy or unemployment or similar Tax imposed on such amounts), (vi) any Liability of the Company for any outstanding severance amounts owed to any former employee and any Taxes or charges payable in connection therewith (including the employer portion of any payroll Tax, apprenticeship levy or unemployment or similar Tax imposed on such amounts), (vii) any fees, expenses or Taxes associated with the transfer of any employees or service providers of the Company (including in connection with any applicable immigration laws, rules or regulations), (viii) any bonuses or other discretionary payments payable to employees and other service providers of the Company (A) as of the Closing and any Taxes or charges payable in connection therewith (including the employer portion of any payroll Tax, apprenticeship levy or unemployment or similar Tax imposed on such amounts), and (B) in respect of the fiscal year ending December 31, 2019, and any Taxes or charges payable in connection therewith (including the employer portion of any payroll Tax, apprenticeship levy or unemployment or similar Tax imposed on such amounts) in an amount equal to (x) 100% of such amounts (assuming that all performance objectives and other conditions with respect thereto have been satisfied in full) that could be earned in respect of the full fiscal year ending December 31, 2019, multiplied by (y) a fraction, the numerator of which is the number of days from January 1, 2019 through and including the Closing Date and the denominator of which will be 365, and (ix) any expenses or Taxes borne or to be borne by Green Plains and/or the Company as a result of the transactions contemplated hereby (including the employer portion of any payroll Tax, apprenticeship levy or unemployment or similar Tax incurred in connection with the exercise of, or payments made in respect of, any employee stock options).  Notwithstanding anything contained in the foregoing definition to the contrary, the Parties understand and agree that the fees and expenses associated with the Credit Agreement dated August 28, 2019 shall be borne by the Company.

(nnnnn) “Transactions” means the transactions contemplated by this Agreement and the Ancillary Documents.

(ooooo) “Transfer Taxes” has the meaning set forth in Section 6.4(c).

(ppppp)  “USDA” means the United States Department of Agriculture.

ARTICLE 2
Purchase and Sale; Closing

2.1Purchase and Sale of Purchased InterestsSubject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in this Agreement, at the Closing, the Buyers shall purchase from Green Plains, and Green Plains shall sell, assign,

12

convey and transfer to each Buyer the number of Purchased Interests set forth across such Buyer’s name on Schedule Battached hereto, free and clear of any Liens, in exchange for their Pro Rata Share of the Purchase Amount.

2.2Closing  Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall be effective as of 12:01 a.m. Central Time on the Effective Date, and will take place via the exchange of electronic signatures and documents by the Parties hereto.  As used herein, the “Closing Date” shall mean September 1, 2019.

2.3Purchase PriceSubject to the terms and conditions set forth in this Agreement, the following transactions shall be consummated on the Execution Date:

(a)The Parties shall take such actions and make such deliveries as described in Article 7 below; and

(b)Each Buyer shall pay, or cause to be paid,such Buyer’s Pro Rata Share of the Closing Purchase Amountby (i) wire transfer of immediately available funds to an account designated by Green Plains in writing in advance of the Closing, or (ii) such other method as agreed to by Green Plains in its sole and absolute discretion.

2.4      Adjustment of Purchase Price.

(a)     Closing Purchase Amount Adjustment

 Not later than five  (5)  business days prior to the Closing, Green Plains shall provide the Buyers with a written statement (the “Estimated Closing Statement”), which Estimated Closing Statement shall be reasonably satisfactory to the Buyers in form and substance and attach supporting detail and documentation, which shall include a good faith estimate of the estimated Members’ Equity Amount (the “Estimated Members’ Equity Amount”). Not later than one (1) business day prior to the Closing, the Buyers shall calculate the Closing Purchase Amount in good faith based on, and in reliance upon, the Estimated Closing Statement, and shall deliver such calculation to Green Plains prior to the Closing.

(b)     Closing Statement

Within ninety (90) days following the Closing, Green Plains shall prepare or cause to be prepared a statement (the “Closing Statement”) setting forththe actual Members’ Equity Amount (the “Actual Members’ Equity Amount”) as of the Closing. Upon completion of the Closing Statement, Green Plains shall deliver the Closing Statement to the Buyers.

(c)     Post-Closing Adjustments

Following the conclusive determination of the Actual Members’ Equity Amount as set forth in Section 2.4(e) (such amount as so determined, the “Final Members’ Equity Amount”),  the Closing Purchase Amount shall be recalculated by substituting the Final Members’ Equity Amount for the Estimated Members’ Equity Amount (the “Purchase Amount”).  If (x) the Purchase Amount is greater than the Closing Purchase Amount paid on the Closing Date, then the Buyers shall pay to Green Plains the difference between the Closing Purchase Amount and the Purchase Amount, or (y) the Closing Purchase Amount paid on the Closing Date is greater than the Purchase Amount, then such amount shall be paid to the Buyers by Green Plains. Any payment required to be made by this Section 2.4(c) shall be made as provided in Section 2.4(d).

13

(d)     Post-Closing Adjustment Payments

The amount of any payment required to be made pursuant to Section 2.4(c) by Green Plains or the Buyers, as applicable, shall be paid within ten (10) days after the determination of such amount becomes final in accordance with Section 2.4(e). If any amount is owed by the Buyers pursuant to Section 2.4(c), each Buyer shall be responsible for its Pro Rata Share of such difference. If any amount is owed by Green Plains to the Buyers, such amount shall be allocated to the Buyers in accordance with their Pro Rata Share

(e)     Adjustment Finalization

Unless the Buyers, acting together, notify Green Plains in writing (the “Dispute Notice”) within fifteen (15) business days after receipt by the Buyers of the Closing Statement (the “Dispute Notification Period”) of any objections thereto (specifying in reasonable detail the statement so disputed together with the basis for such dispute), such Closing Statement shall be final,  binding, non-appealable and conclusive for all purposes (it being understood that any item in the Closing Statement not expressly disputed in a writing received by Green Plains in the Dispute Notification Period shall become final, binding, non-appealable and conclusive upon the expiration of the Dispute Notification Period).  If the Buyers, acting together, timely notify Green Plains of any such objection, the Buyers and Green Plains shall attempt in good faith to reach an agreement as to the matter in dispute.  If the Parties shall have failed to resolve any such dispute within ten (10) business days after receipt of timely notice of such objection (or such longer period mutually agreed to by the Buyers and Green Plains), then any such disputed matter shall be submitted to and determined by an independent accounting firm to be mutually agreed upon by the Parties(the “Independent Accounting Firm”).  Green Plains and the Buyers shall cooperate in good faith to promptly engage the Independent Accounting Firm pursuant to an engagement letter that requires the Independent Accounting Firm to make all determinations in accordance with GAAP.The Parties shall cooperate fully with the Independent Accounting Firm’s review of the dispute, and each Party shall be afforded the opportunity to present the Independent Accounting Firm (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Independent Accounting Firm.The Independent Accounting Firm shall be given reasonable access to all of the records of the Company and Green Plains, to the extent related to the preparation of the Closing Statement and resolve any dispute regarding the Closing Statement, which determination with respect to any disputed matters in the Closing Statement shall be submitted to the Buyers and Green Plains within twenty (20) business days of the Parties’ engagement of the Independent Accounting Firm.  The Independent Accounting Firm shall address only those items properly disputed in accordance with this Section 2.4(e), and the Independent Accounting Firm shall make its determination as to any disputed items within the dollar ranges set forth in the Closing Statement delivered by Green Plains and the Dispute Notice delivered by the Buyers.  The fees and expenses of such Independent Accounting Firm incurred in resolving the disputed matter shall be equitably apportioned by such Independent Accounting Firm based on the extent to which Green Plains, on the one hand, or the Buyers, on the other hand, is determined by the Independent Accounting Firm to be the prevailing Party in the resolution of such disputed matters.  The Closing Statement properly disputed hereunder shall, after resolution of such dispute pursuant to this Section 2.4(e),  absent fraud or manifest error, be final, binding, non-appealable and conclusive on all Parties.

(f)Adjustments for Tax Purposes

Any payments made pursuant to Section 2.4 shall be treated as an adjustment to the PurchasePrice by the parties for Tax purposes, unless otherwise required by Law.

14

2.5WithholdingNotwithstanding any other provision in this Agreement, the Buyers and any other withholding agent shall be entitled to deduct and withhold from any amounts paid in connection with the transactions contemplated by this Agreement any amounts required under any applicable Law to be deducted and withheld, and any such amounts will be treated for all purposes of this Agreement as having been made to the Person in respect of which such deduction and withholding was made.

ARTICLE 3
Representations and Warranties of THE COMPANY and Green Plains

The Company and Green Plains, jointly and severally, hereby represent and warrant to the Buyers that the following representations and warranties are true and correct as of the Closing Date:

3.1     Organization

The Company is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. The Company is duly qualified, licensed or admitted to transact business and is in good standing in all jurisdictions in which the nature of its business or where the character of its properties or assets owned, leased or operated by it requires such qualification except where the failure to be so qualified, licensed, admitted or in good standing would not reasonably be expected, individually or in the aggregate, to be material to the Company.  Schedule 3.1 of the Disclosure Schedules sets forth each jurisdiction where the Company is qualified to do business.  The copies of the Organizational Documents of the Company as provided to the Buyers are true, accurate and complete and reflect all amendments made through the Effective Date.

3.2     Power and Authority

The Company has full power and authority to own or lease its properties, to carry on its business as such business is now being conducted, to perform its obligations under all Contracts to which it is a party or by which it is bound, and to enter into this Agreement and consummate the transactions contemplated hereby.

3.3     Enforceability

The execution, delivery and performance by the Company of this Agreement and the Ancillary Documents to which the Company is a party have been duly and validly authorized by the Company, and no other act or proceeding on the part of the Company, its board of directors or its equityholders is necessary to authorize the execution, delivery or performance by the Company of this Agreement or each other agreement, document or instrument contemplated hereby or the consummation of any of the transactions contemplated hereby or thereby.  This Agreement has been duly executed and delivered by the Company and this Agreement constitutes, and each other agreement, document or instrument contemplated hereby, upon execution and delivery by the Company, will each constitute legal, valid and binding obligations enforceable against the Company in accordance with their terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting or relating to creditors’ rights generally and general equitable principles.

3.4     Capitalization

Schedule 3.4 of the Disclosure Schedules accurately sets forth the authorized and outstanding equity of the Company and the name and number of equity securities held by each equityholder thereof.  The Company Interests held by Green Plains are all of the

15

membership interests owned by the members of the Company and represent, in the aggregate, 100% of the issued and outstanding equity interests in the Company.  Upon consummation of the transactions contemplated by this Agreement, the Buyers shall own good and valid title to the Purchased Interests, free and clear of any and all Liens.  Other than as set forth on Schedule 3.4 of the Disclosure Schedules, no Person has any right, title or interest (record or beneficial) to any equity interests of the Company or right of any kind to have any such equity interests issued.  Except for this Agreement, there are no outstanding contracts, agreements, understandings or rights to purchase or otherwise acquire any equity interests of the Company.  All of the outstanding equity interests of the Companyhave been duly and validly authorized, fully paid and non-assessable, and none of them has been issued in violation of preemptive or similar rights.  Other than as set forth on Schedule 3.4 of the Disclosure Schedules, there are no voting trusts, proxies or any other agreements or understandings with respect to the voting of the equity interests of the Company.  The Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its equity interests.  Except for this Agreement and as may be set forth on Schedule 3.4 of the Disclosure Schedules, there are no outstanding or authorized options, warrants, equity appreciation, phantom equity or similar rights, contracts, pledges, calls, puts, rights to subscribe, conversion rights or other agreements or commitments to which the Company is a party or which is binding upon the Company providing for the issuance, disposition or acquisition of any of its equity or any rights or interests exercisable therefor.

3.5Valid Issuance of Purchased Interests

(a)The Purchased Interests, when issued and paid for as provided in this Agreement, shall be duly authorized and validly issued, fully paid, and nonassessable and shall be free of any Liens, encumbrances, or restrictions on transfer (other than those created by the Organizational Documents of the Company, the Ancillary Documents and applicable state and/or federal securities Laws).

(b)Assuming the accuracy of the Buyers’ representations in Sections 5.7 and 5.8, the Purchased Interests are exempt from the registration and prospectus delivery requirements of the Securities Act.

(c)The Company has not taken any action that shall cause the issuance, sale, and delivery of the Purchased Interests to constitute a violation of the Securities Act or any applicable state securities Laws.

3.6Subsidiaries

(a)Schedule 3.6 of the Disclosure Schedules contains a true and complete list of all of the Persons in which the Company, directly or indirectly, is the general partner or owns, directly or indirectly, any issued share capital, shares or membership interests, other equity rights, interests or other securities or derivatives thereof (the “Subsidiaries” and each a “Subsidiary”), together with the jurisdiction of organization or incorporation, as applicable.

(b)Each Subsidiary of the Company is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation, as applicable, and has full corporate or similar power and authority to conduct its business as

16

presently conducted and to own, use, license, lease and operate their respective assets and properties.  Each Subsidiary of the Company is duly qualified, licensed or admitted to transact business and is in good standing as a foreign corporation or company in each jurisdiction in which the nature of its business or where the character of its properties or assets owned, leased or operated by it makes such qualification, licensing or admission necessaryexcept where the failure to be so qualified, licensed, admitted or in good standing would not reasonably be expected, individually or in the aggregate, to be material to any Subsidiary of the Company.

3.7     No Violation; Consents and Approvals

 The execution and delivery by the Company of this Agreement and each Ancillary Document to which the Company is a party and the consummation by the Company of the transactions contemplated hereby and thereby will not: (a)violate any provision of the Organizational Documents of the Company or any of its Subsidiaries, (b) violate, in any material respect, any Law, applicable to, binding upon or enforceable against the Company or any of its Subsidiaries, (c) result in any material breach of, or constitute a material default (or an event which would, with the passage of time or the giving of notice or both, constitute a material default) under, require a notice or consent under, or give rise to a right of payment under or the right to terminate, amend, modify, abandon or accelerate, any Material Contract, (d) result in the creation or imposition of any Lien, other than a Permitted Lien, upon any of the properties or assets of the Company or any of its Subsidiaries, or (e) require the consent or approval of, filing with, or notice (other than post-Closing security law notice filings) to, any Governmental Authority or other Person.

3.8     Financial Statements

Attached as Schedule 3.8 of the Disclosure Schedules are true, correct and complete copies of (a) the consolidated financial statements of the Company and its Subsidiaries as of and for the fiscal years ended on December 31, 2016, December 31, 2017 and December 31, 2018 (the “Annual Financial Statements”), and (b) the unaudited consolidated balance sheet and income statement of the Company and its Subsidiaries as of and for the seven-month period ending July 31, 2019 (the “Interim Financial Statements” and collectively with the Annual Financial Statements, the “Financial Statements”).  Except as set forth in Schedule 3.8 of the Disclosure Schedules, the Financial Statements (including in all cases, the notes thereto) are accurate, correct and complete, are based upon and consistent with information contained in the books and records of the Company (which books and records are in turn accurate, correct and complete), fairly present in all material respects the financial condition, assets and liabilities of the Company and its Subsidiaries at each of the balance sheet dates and the results of operations and changes in financial position and cash flows, for each of the periods covered thereby, and have been prepared in accordance with GAAP applied on a consistent basis. 

3.9     Undisclosed Liabilities

Neither the Company nor any of its Subsidiaries has any Liabilities of a nature required to be reflected on a balance sheet prepared in accordance with GAAP applied on a consistent basis, except (a) those which are identified on Schedule 3.9 of the Disclosure Schedules, (b) those that are reflected and reserved against in the Interim Financial Statements, (c) obligations for performance under Contracts, and (d) those that have been incurred in the Ordinary Course of Business since the Balance Sheet Date.

3.10     Absence of Changes

Since the Balance Sheet Date through the Effective Date, the Company and its Subsidiaries have conducted its business in the Ordinary Course of Business.  Except as disclosed on Schedule 3.10 of the Disclosure Schedules, since the Balance Sheet Date

17

through the Effective Date, there has not been, with respect to the Company or any of its Subsidiaries (whether by Green Plains, the Company or any of the Company’s Subsidiaries), any:

(a)disposition or acquisition of any assets or properties, except (i) dispositions or acquisitions in the Ordinary Course of Business or (ii) other dispositions or acquisitions not exceeding $250,000;

(b)transfer, assignment or grant of any license or sublicense of any rights under or with respect to any Intellectual Property;

(c)damage, destruction or other casualty loss materially and adversely affecting its business or assets (whether or not covered by insurance);

(d)change in any method of accounting or accounting practice of Green Plains, the Company or any of their respective Subsidiaries, except as required by GAAP applied on a consistent basis or as disclosed in the notes to the Financial Statements;

(e)capital investment in, or any loan to, any other Person, or any advances of business expenses to Company Employees that are either (i) outside the Ordinary Course of Business or (ii) in excess of $250,000;

(f)capital expenditures in excess of $250,000 individually, or $500,000,in the aggregate;

(g)creation or incurrence by the Company or any of its Subsidiaries of any Indebtedness;

(h)imposition of any Lien upon any of the Company’s or any of its Subsidiaries’ properties, equity interests or assets, tangible or intangible;

(i)entry into, acceleration, termination, modification to or cancellation or renewal of, or waiver of a material right under, any Material Contract;

(j)material diminishment, increase or termination of any promotional programs that individually or in the aggregate are or were material to the Company or any of its Subsidiaries, except in the Ordinary Course of Business;

(k)except in the Ordinary Course of Business consistent with past practice or as required by any Laws, (i) grant of any bonuses, whether monetary or otherwise, or equity or equity-based compensation or increase in any wages, salary, severance, pension or other compensation or benefits in respect of its employees, officers, directors or independent contractors of the Company or a Subsidiary, (ii) material change in the terms of employment for any employee of the Company or a Subsidiary, (iii) any hiring or resignation or termination of employment with respect to any employee of the Company or any Subsidiary whose annual base compensation is in excess of $100,000 or any officer or director, (iv) action to accelerate the vesting or payment of any compensation or benefit for any employee, officer, director or independent contractor of the Company or a Subsidiary or (v) any amendment, adoption or termination of any Company Plan or, other than annual renewals of welfare benefit plans in the Ordinary Course of Business, any

18

amendment, adoption or termination of any Green Plains Plan to the extent affecting any employee, officer, director or independent contractor of the Company or a Subsidiary;

(l)lease of any property or assets for an amount in excess of $125,000, individually (in the case of a lease, per annum) or $250,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term);

(m)entry into a new line of business, modification of an existing line of business or abandonment or discontinuance of existing lines of business;

(n)action by the Company to file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim a refund of Taxes, request or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, make, change or rescind any Tax election, adopt or change any Tax accounting method;

(o)discharge, forgiveness, cancellation or satisfaction by the Company or any of its Subsidiaries of any Lien, debt, claim or payment by the Company or such Subsidiary of the Company of any obligation or liability (fixed or contingent);

(p)write-down of the value of any assets or inventory by the Company or any of its Subsidiaries or write-off of any notes or accounts receivable of the Company or any of its Subsidiaries, in each case, other than those for which reserves or accruals have been established in the Interim Financial Statements or for those in amounts in excess of $100,000 in the aggregate;

(q)event, occurrence or development that has had, or may have, individually or in the aggregate, a Material Adverse Effect;

(r)change in the practices of the Company or any of their respective Subsidiaries with respect to working capital, including but not limited to any acceleration or modification of accounts receivable, postponement or modification of the payment of accounts payable or accrued expenses other than collection processes in the Ordinary Course of Business;

(s)material change in the Company or any of its Subsidiaries’ practices with respect to the sale or purchase of products or inventory;

(t)change in the Company or any of its Subsidiaries’ quality control/quality assurance practices and procedures, or USDA and FDA compliance practices and procedures;

(u)material modification to the Company or any of its Subsidiaries’Insurance Policies in effect;

(v)entry by the Company or any of its Subsidiaries into, or modification or termination by the Company or any of its Subsidiaries of, purchase orders in excess of $500,000 outside the Ordinary Course of Business; or

(w)entry into any Contract by the Company or any of its Subsidiaries to do any of the foregoing, or any action or omission that would result in any of the foregoing.

19

3.11     Litigation

 Except as set forth on Schedule 3.11 of the Disclosure Schedules or as would not reasonably be expected to be material to the Company, (a) there are no Proceedings pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, at law or in equity, before or by any Governmental Authority, (b) neither the Company nor any of its Subsidiaries, nor any of their respective assets is subject to any outstanding judgment, order or decree of any Governmental Authority and (c) within the two years prior to the Effective Date, there have not been any Proceedings pending, settled, or to the Knowledge of the Company threatened against the Company or any of its Subsidiaries, at law or in equity, before or by any Governmental Authority.  To the Knowledge of the Company, no event has occurred, and no claim, dispute or other condition or circumstance exists, that may give rise to or serve as a Basis for the commencement of any such claim, action, suit or proceeding.  Except as set forth on Schedule 3.11 of the Disclosure Schedules, there is no pending claim, action, suit or proceeding in which the Company or any of its Subsidiaries is the plaintiff or claimant.  To the Knowledge of the Company, no officer or employee of the Company or any of its Subsidiaries is subject to any order that prohibits such officer or employee, as the case may be, from engaging in or continuing any conduct, activity or practice relating to the Company or any of its Subsidiaries’ respective businesses.

3.12Product and Service Liability; Product Recall

(a)Schedule 3.12(a) of the Disclosure Schedules sets forth (i) a list of all claims asserted against Green Plains, the Company or any of their respective Subsidiaries for a period of two years prior to the Effective Dateasserting any (A) liability for injury to person or property caused by any Products or Services, or (B) claim in respect of any Product or Service warranty, and (ii) the aggregate dollar amount paid by the Company or any of its Subsidiaries and their respective insurers in respect of such claims.  There have not been any recalls or to the Knowledge of the Company, proposed recalls of Products (whether instituted by the Company or any of its Subsidiaries, or requested or directed by any Governmental Authority), and neither the Company nor any of its Subsidiaries has otherwise withdrawn any Products, manufactured, distributed or sold by it (excluding product returns in the Ordinary Course of Business). 

(b)The Company and its Subsidiaries have, at all times for a period of two years prior to the Effective Date, complied in all material respects with all Laws imposing requirements with respect to the maintenance of data and technical support to support the safety claims and the accuracy of advertising claims made in any of its marketing or advertising materials relating to all Products or Services, including, but not limited to, labels, labeling and advertising.

3.13Environmental Matters

(a)Except as set forth on Schedule 3.13(a) of the Disclosure Schedules, to the Knowledge of the Company, the Company and its Subsidiaries are in compliance, and the Company and its Subsidiaries have always complied, with all Environmental Laws and neither the Company nor any of its subsidiaries have any Liabilities under Environmental Laws.

(b)Except as set forth on Schedule 3.13(b) of the Disclosure Schedules, the Company and its Subsidiaries have obtained, maintained and are in compliance with all license, permits or authorizations which are required under applicable Environmental Laws (“Environmental

20

Permits”) necessary for the ownership, lease, operation or use of the Business or assets of the Company or any of its Subsidiaries (including the Business) and all such Environmental Permits are in full force and effect in accordance with Environmental Laws, and to the Knowledge of the Company, there is no condition, event or circumstance that would prevent or impede, after the Closing, the ownership, lease, operation or use of the business or assets of the Company or any of its Subsidiaries as currently carried out, including the Business.

(c)Except as set forth on Schedule 3.13(c) of the Disclosure Schedules, to the Knowledge of the Company, there has been no Release of Hazardous Substances in contravention of Environmental Law, or that would incur liabilities or obligations to remove or remediate such Hazardous Substances, with respect to the business or assets of the Company or any of its Subsidiaries (including the Business), or any real property currently owned, operated or leased by the Company or any of its Subsidiaries.

(d)To the Knowledge of the Company, no owner or former operator of any real property currently or formerly owned, operated or leased by the Company or any of its Subsidiaries or any other third party has received written notice of any violation of any Environmental Law indicating past or present treatment, storage or disposal of Hazardous Materials or reporting a spill or release of Hazardous Substances into the environment.

(e)Except as set forth on Schedule 3.13(a) of the Disclosure Schedules, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has any Liability under any Environmental Laws in connection with the transportation, release, discharge or disposal by or at the direction of the Company or any of its Subsidiaries or any of their respective Affiliates of any Hazardous Substances into the environment, and no release or disposal by the Company or any of its Subsidiaries or any of their respective Affiliates of any Hazardous Material which could require investigation or remediation has occurred.

(f)None of the operations of the Company or any of its Subsidiaries involves the generation, transportation, treatment, storage or disposal of Hazardous Materials other than in compliance with applicable Environmental Laws.

(g)Except as set forth on Schedule 3.13(g) of the Disclosure Schedules to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has disposed of any Hazardous Substances other than in accordance with applicable Environmental Laws.

(h)The Company has not received any written notice of any Lien in favor of any Governmental Authority for (i) any Liability under any Environmental Law, or (ii) damages arising from or costs incurred in response to a release of any Hazardous Substances into the environment has been filed or attached to any of the Company’s or any of its Subsidiaries’ property or assets.

(i)Neither the Company nor any of its Subsidiaries has been threatened with, or has been subject to any liability or cost associated with the presence, disposal or release of any Hazardous Material at any real property currently or formerly owned, operated or leased by the Company or any of its Subsidiaries, or the violation or potential violation of any Environmental Laws.

21

(j)Neither the Company nor any of its Subsidiaries has, for a period of three years prior to the Effective Date, received any written notice of a violation of Environmental Laws or asserting any liability arising under Environmental Laws, including, without limitation, any investigatory, remedial or corrective obligation, relating to any of such Persons or their current or former facilities.

(k)The Company has provided copies of all environmental investigation or compliance audits in its or its advisors’ or any Subsidiary of the Company’s possession or control, including, without limitation, any with respect to prior facilities owned, operated or otherwise used in connection with the Company or any of its Subsidiaries.

(l)The Company has not received any notice of any event, condition, circumstance, activity, practice or incident that has or may interfere with or prevent compliance with any Environmental Law.

(m)Except as set forth on Schedule 3.13(a) of the Disclosure Schedules, neither the Company nor any of its Subsidiaries has retained or assumed, by contract or operation of Law, any liabilities or obligations of third parties under any Environmental Law.

3.14     Title to Assets; Sufficiency of Assets

Each of the Company and its Subsidiaries has valid title to, or a valid leasehold interest in (or other right to use), all of the tangible properties and assets that it purports to own or lease that are reflected in the Interim Financial Statements or used in or necessary for the conduct of its business, free and clear of all Liens other than Permitted Liens.  The properties and assets of the Company and its Subsidiaries are in operable condition and repair in all material respects and are usable in the Ordinary Course of Business, ordinary wear and tear excepted.  The assets of the Company and its Subsidiaries constitute all of the property and assets (real, personal, tangible and intangible) used or held for use by the Company in the conduct of the Business as presently conducted (other than inventory used, sold or consumed in the Ordinary Course of Business to non-affiliated third parties or worn out or obsolete fixed assets disposed of in the Ordinary Course of Business) and will enable the Company to operate the Business in the same manner as operated by the Company prior to and as of the Closing.  Except as disclosed in Schedule 3.14 of the Disclosure Schedules, neither the Company nor any of its Subsidiaries has received in respect of any of its properties or assets any written notice of conflict with the asserted ownership rights of any other party.  With respect to water rights attached to or underlying any owned Real Property or Leased Real Property of the Company or any of its Subsidiaries, such water rights are sufficient and provide sufficient access to water to conduct the Business as presently conducted.

3.15     Real Property

Schedule 3.15(a) of the Disclosure Schedules lists (a) the street address of each material parcel of Real Property; (b) if such property is leased or subleased by the Company or any of its Subsidiaries, the landlord under the lease, the rental amount currently being paid, and the expiration of the term of such lease or sublease for each leased or subleased property; and (c) the current use of such property.  With respect to owned Real Property, the Company has delivered or made available to the Buyers true, complete and correct copies of the deeds and other instruments (as recorded) by which the Company and any of its Subsidiaries acquired such Real Property.  With respect to leased Real Property (the “Leased Real Property”), the Company has delivered or made available to the Buyers true, complete and correct copies of any leases affecting

22

the Real Property.  Except as set forth on Schedule 3.15(b) of the Disclosure Schedules, neither the Company nor any Subsidiary of the Company is a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any Leased Real Property.  The use and operation of the Real Property in the conduct of the Business as presently conducted does not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or agreement.  No material improvements constituting a part of the Real Property encroach on real property owned or leased by a Person other than the Company or any of its Subsidiaries.  There are no Proceedings pending nor, to the Knowledge of the Company, threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.  No water or mineral rights attached to or underlying the owned Real Property, or to the Knowledge of the Company, the Leased Real Property, has been leased, sold, transferred, pledged, detached, waived, gifted or otherwise separated from such Real Property.

3.16Legal and Regulatory Compliance

(a)The Company and its Subsidiaries are, and have at all times during the past two (2) years been, in compliance, in all material respects, with all applicable Laws.  There are no pending Proceedings against the Company or any of its Subsidiaries alleging that the Company or such Subsidiary of the Company is in violation of any applicable Law.  Neither the Company nor any of its Subsidiaries, nor any of their respective executive officers (in their capacities as such) has received any written notice, order, complaint or other communication from any Governmental Authority or third party of any claim of a violation of (i) any applicable Law, (ii) any FDA Form 483 or equivalent written report by inspectors or officials from any Governmental Authority, (iii) any FDA or USDA written notice of adverse findings or any equivalent written correspondence, notice or communication from any other Governmental Authority indicating a failure to comply with applicable Law or (iv) any warning letters or other written correspondence from the FDA, USDA or any other Governmental Authority in which the FDA, USDA or such other Governmental Authority asserted that the operations of the Company or any of its Subsidiaries were not in compliance with applicable Law.  Neither the Company nor any of its Subsidiaries has made any fraudulent statement to the FDA, USDA or any other Governmental Authority, or failed to disclose a fact required under Law to be disclosed to the FDA, USDA or any other Governmental Authority or been convicted of any crime.  To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) constitute or result in a violation by the Company or any of its Subsidiaries of, or a failure on the part of the Company or any of its Subsidiaries to comply,in any material respect, with, any applicable Law.

(b)Each Product marketed, manufactured, sold or distributed by the Company or any of its Subsidiaries has been, for a period of two years prior to the Effective Date, and is being marketed, manufactured, sold or distributed by the Company or such Subsidiary of the Company, in material compliance with all applicable requirements under the Federal Food Drug and Cosmetic Act, as amended, and regulations promulgated by the FDA thereunder, the Lanham Act of 1946, as amended, and regulations promulgated thereunder, and similar Laws of all other applicable Governmental Authorities, including without limitation other Laws promulgated by the FDA, the U.S. Environmental Protection Agency, the USDA, corresponding state-level Governmental Authorities, and foreign countries that apply to the manufacture, distribution,

23

marketing, sale and labeling of food products (such Laws, collectively or singly, the “Food Laws”), and the processing, manufacture or holding of such products by the Company and its Subsidiaries has been, for a period of two years prior to the Effective Date and is in all material respects in accordance with the applicable standards prescribed by Food Laws.

(c)Neither the Company nor any of its Subsidiaries has established or maintained, nor is it maintaining, any unlawful fund of corporate monies or other properties.  Neither the Company or any of its Subsidiaries, nor to the Knowledge of the Company any of the Company’s or any of its Subsidiary’s Representatives, (i) has, during the past two (2) years, used or is using any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) has, during the past two (2) years used, or is using any corporate funds for any direct or indirect unlawful payments to any foreign or domestic governmental officials or employees, or (iii) is or has, during the past two (2) years violated, in any material respect any provision of the Foreign Corrupt Practices Act of 1977 or similar Laws of relevant Governmental Authorities or (iv) has, during the past two (2) years, made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment of any nature.

3.17Labor and Employment Matters

(a)     Employees

The Company has no employees or independent contractors other than those listed on Schedule 3.17(a) of the Disclosure Schedules, which list includes such individuals’ duration of employment or contract with the Company, offer letter, contract, and/or other employment agreements, job title, job description, salary, incentives, as well as which if any of them are currently on medical or other leave or have been so for more than two (2) weeks during the past twelve (12) months. The employees listed on Schedule 3.17(a)of the Disclosure Schedules are hereby referred to as the “Company Employees.”  

(b)     Organized Labor

There are no Proceedings pending or, to the Knowledge of the Company, threatened, between the Company or any Subsidiary, on the one hand, and any employee of the Company or any Subsidiary, on the other hand, which Proceedings have resulted in or may result in a material fine, penalty or expense.  Neither the Company nor any Subsidiary is a party to or bound by any collective bargaining agreement, and there has been no organized effort during the three years prior to the Effective Date to organize any employees of the Company or any of their Subsidiaries into one or more collective bargaining units (including, without limitation, any effort by a group of employees or a labor organization to file any representation, petition or certification application or make any written or oral demand for recognition), and no question concerning representation exists.  There has not been, nor to the Knowledge of the Company are there now, any material labor relations problems, including, without limitation, any threatened strike, organized work stoppage, grievance, or other collective bargaining dispute involving the employees of the Company or any of its Subsidiaries, and, to the Knowledge of the Company, there is no Basis for the foregoing.

(c)    Labor Practices

 There is no pending or, to the Knowledge of the Company, threatened charge or complaint against the Company or any of its Subsidiaries by or with the National Labor Relations Board or other similar body.

24

(d)     Compliance with Employment Laws

 The Company and its Subsidiaries is, and has been for the past two years, in compliance, in all material respects, with all applicable Laws respecting employment and employment practices, including, without limitation, practices involving terms and conditions of employment, wages and hours, worker classification, unemployment insurance, workers’ compensation, equal employment opportunity, employment discrimination, harassment, or retaliation and immigration control.  Except as set forth on Schedule 3.17(d) of the Disclosure Schedules, there are no outstanding, pending or, to the Knowledge of the Company, threatened employment-related charges, complaints, grievances, investigations, inquiries, claims, proceedings, or obligations of any kind, in any forum, against the Company or any of its Subsidiaries (or against the managers, officers or employees acting on behalf of the Company or its Subsidiaries) (whether under regulation, contract, policy or otherwise) asserted by or on behalf of any present or former officer, employee, or job applicant of the Company or such Subsidiary.  Except as set forth on Schedule 3.17(d) of the Disclosure Schedules, there are no outstanding, pending or, to the Knowledge of the Company, threatened charges, complaints, grievances, investigations, inquiries, claims, proceedings, or obligations of any kind, in any forum against the Company or any of its Subsidiaries by any Person (including any governmental body) under or arising out of any statute, ordinance, order, rule or regulation relating to discrimination, retaliation or other employment practices, or occupational safety in employment or employment practices.

(e)     Change in Control

The consummation of the transactions contemplated in this Agreement will not (i) entitle any employee of the Company or any of its Subsidiaries to change of control pay, retention pay, severance pay, unemployment compensation, bonus payment or any other payment, (ii) accelerate the time of payment for vesting of, or increase the amount of compensation due to, any such employee, or (iii) entitle any such employee to terminate, shorten or otherwise change the terms of his or her employment.  With respect to the transactions contemplated by this Agreement, any notice required under applicable Law or applicable Contract has been, or prior to the Closing will be, satisfied.

3.18     Immigration Matters

The services of all Company Employees shall remain available without the need for submission of new or amended petitions or applications to the U.S. Citizenship and Immigration Services, U.S. Department of Labor, or U.S. Department of State with respect to any employee’s immigration and nationality legal status in the United States.  All of the Company Employees who work in the United States are, and all former employees of the Company or a Subsidiary of the Company who worked in the United States whose employment terminated, voluntarily or involuntarily, for a period of two years prior to the Effective Date, were legally authorized to work in the United States.  Each of the Company and its Subsidiaries is, and for a period of two years prior to the Effective Date,have been in material compliance with the employment verification provisions (including both the paperwork and the documentation requirements) and the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (“IRCA”).  To the Knowledge of the Company, under the employment verification provisions of the IRCA, neither the Company nor any Subsidiary of the Company has any direct or indirect liability with respect to any misclassification of any person as an independent contractor rather than as an employee or with respect to any employee leased or seconded from another employer.

3.19Employee Benefit Plans

25

(a)Schedule 3.19(a) of the Disclosure Schedules lists each “employee benefit plan” (as such term is defined under Section 3(3) of ERISA) and all other pension, retirement, deferred compensation, profit sharing, bonus, incentive, equity or equity-based, severance, change-of-control, health, life, disability, group insurance, vacation, fringe benefit or other compensation or benefit plans, programs, contracts, or arrangements (whether written or unwritten) maintained, contributed to, or required to be contributed to, by the Company or a Subsidiary for the benefit of any of their current or former employees, independent contractors or directors (or any of their respective dependents or beneficiaries) (each, a “Company Participant”) or with respect to which the Company or a Subsidiary may otherwise have any Liability (each a “Plan”).  Schedule3.19(a) of the Disclosure Schedules separately identifies each Plan which is sponsored by the Company or a Subsidiary (each, a “Company Plan”) and each Plan which is sponsored by an entity other than the Company or Subsidiary (each, a “Green Plains Plan”).  Each Company Plan and, with respect to the Company Participants, each Green Plains Plan, has been established, maintained, funded and administered, in form and in operation, in all material respects in accordance with its terms and with the requirements of the Code, ERISA and all applicable Laws, and the Company and each of its Subsidiaries have performed and complied in all material respects with all of their respective obligations under or with respect to each Plan.Green Plains has made available to the Buyers a true and correct copy of each Plan and a written description of any unwritten Plan.  Neither the Company nor any of its Subsidiaries nor, with respect to the Company Participants, Green Plains has ever been subject to Tax under Section 4980H of the Code.Except as set forth on Schedule 3.19(a), as of the Closing Date, neither the Company nor any of its Subsidiaries have any Liability with respect to any Green Plains Plan.

(b)Each of the Plans that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service or is a master or prototype plan that has received a favorable opinion or advisory letter from the Internal Revenue Service that the Plan can rely upon and to the Knowledge of the Company, no event has occurred that could adversely affect the qualification of such Plan.  Neither the Company nor any of its Subsidiaries has any “leased employees” within the meaning of Section 414(n) of the Code.

(c)Except as set forth on Schedule 3.19(c) of the Disclosure Schedules,  neither the Company, any Subsidiary of the Company nor any corporation or trade or business (whether or not incorporated) (i) under common control within the meaning of Section 4001(b)(1) of ERISA with the Company or a Subsidiary of the Company, or (ii) which is treated with the Company or a Subsidiary of the Company as a single employer within the meaning of Sections 414(b), (c), (m) or (o) of the Code (“ERISA Affiliate”) has at any point sponsored, maintained, contributed to or had any obligation to or liability (contingent or otherwise) with respect to any employee pension plan subject to Title IV of ERISA or Section 412 of the Code.  Neither the Company, a Subsidiary of the Company nor any ERISA Affiliate has any Liability (contingent or otherwise) relating to the withdrawal or partial withdrawal from a multiemployer plan within the meaning of Section3(37) of ERISA.  As of the Closing Date, neither the Company nor any of its Subsidiaries have any Liability, contingent or otherwise, with respect to any employee pension plan subject to Title IV of ERISA or Section 412 of the Code.

(d)No Company Plan provides, and neither the Company nor any Subsidiary is obligated to provide, welfare benefit coverage, including, without limitation, death or medical

26

benefit coverage, beyond termination of service or retirement other than coverage mandated by applicable Law.

(e)There is no pending or, to the Knowledge of the Company, threatened action relating to a Company Plan or, with respect to Company Participants, a Green Plains Plan or facts or circumstances that could reasonably form the Basis for any such action (other than routine claims for benefits), and no Company Plan or, with respect to Company Participants, a Green Plains Plan has been the subject of an examination or audit by a Governmental Authority.

(f)The execution and performance of this Agreement and the Transactions will not, alone or combination with any other event, (i) constitute a stated triggering event under any Plan that could result in any payment (whether of severance pay or otherwise) becoming due, (ii) accelerate the time of payment or vesting or increase the amount of compensation due under any Plan, (iii) cause any individual to accrue or receive additional benefits, service or accelerated rights to payment of benefits under any Plan, (iv) directly or indirectly cause the Company or any of its Subsidiaries or any ERISA Affiliate to transfer or set aside any assets to fund or otherwise provide for benefits for any individual or plan, or (v) result in any payments or benefits that could subject any Person to Liability for Tax under Section 4999 of the Code or could be non-deductible pursuant to Section 280G of the Code.

3.20Tax Matters

(a)All Tax Returns required to be filed by the Company have been timely filed, and all such Tax Returns have been prepared in compliance with all applicable Laws and are true, correct and complete in all material respects. The Company has fully and timely paid all Taxes due (whether or not shown on any Tax Return).  The unpaid Taxes of the Company (i) did not, as of the date of the Balance Sheet Date, exceed the reserves for Tax liability set forth on the face of the Financial Statements as of the date of the Balance Sheet Date and (ii) will not as of the end of the Closing Date, exceed that accrual as adjusted for ordinary course operations through the end of the Closing Date with the past custom and practice of the Company in filing their Tax Returns. Since the date of the Balance Sheet Date, neither Green Plains, the Company nor any of their respective Subsidiaries have incurred any liability for Taxes arising from extraordinary gains or losses or outside the Ordinary Course of Business.

(b)Except for any group of which Green Plains is the common parent, the Company (i) has not been a member of an affiliated group within the meaning of Section 1504(a) of the Code (or any similar group defined under a similar provision of state, local, or foreign Law), (ii) has not filed a consolidated federal income Return with any other Person, and (iii) has any liability for the Taxes of any Person (whether under Treasury Regulation Section 1.1502-6 or any analogous or similar provision of Law, as a transferee or successor, pursuant to any Tax sharing or indemnity agreement or other contractual agreements, or otherwise).  Except as set forth on Schedule 3.20(b) of the Disclosure Schedules, the Company is not, and has never been, a party to any Tax allocation, Tax sharing, Tax indemnity, Tax reimbursement or similar agreement or arrangement.

(c)All Taxes which the Company is required by Law to withhold or collect have been timely withheld or collected and paid over to the proper Governmental Authority, and the

27

Company has complied in all material respects with all information reporting and backup withholding provisions of applicable Law.

(d)Schedule 3.20(d) of the Disclosure Schedules sets forth a correct and complete list of all material Tax Returns filed by the Company for taxable periods ending on or after December 31, 2014, indicates those Tax Returns that have been audited or subject to similar examination, and indicates those Tax Returns that currently are the subject of audit or examination.  The Company has delivered to the Buyers correct and complete copies of all material Tax Returns filed by the Company for taxable periods ending on or after December 31, 2014 and all private letter rulings, notices of proposed deficiencies, deficiency notices, closing agreements, settlement agreements, and pending ruling requests relating to Taxes submitted, received or agreed to by or on behalf of the Company on or after such date.

(e)Except as set forth on Schedule 3.20(e) of the Disclosure Schedules, the Company has not waived or been requested to waive any statute of limitations or consented to extend the time in which any Tax may be assessed or collected in respect of Taxes, which waiver is currently in effect. There is no Proceeding pending or proposed or, to the Knowledge of the Company, threatened with respect to Taxes of the Company. The Company is not a beneficiary of any extension of time within which to file any Tax Return.  No deficiency for any amount of Tax has been asserted or assessed by a taxing authority against the Company, and to the Knowledge of the Company, there is no basis upon which any such Tax deficiency could reasonably expected to be asserted. 

(f)The Company has neither received nor applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Code (or any predecessor provision or any similar provision of state or local law), in either case, that would be binding upon the Company after the Closing Date.

(g)No written claim has been made in a jurisdiction where the Company has not filed a particular type of Tax Return or paid a particular type of Tax that it is or may be required to file such Tax Return or pay such type of Tax in that jurisdiction.

(h)The Company has not entered into any listed, reportable or substantially similar transactions for purposes of Treasury Regulations Section 1.6011-4, or any transaction requiring disclosure under a corresponding or similar provision of state, local or foreign Law.

(i)The Company has not distributed the stock of any corporation in a transaction satisfying, or purported to satisfy, the requirements of Sections 355 or 361 of the Code within the last five (5) years, and the stock of the Company has not been distributed in a transaction satisfying, or purported to satisfy, the requirements of Sections 355 or 361 of the Code within the last five (5) years.

(j)There are no Liens with respect to Taxes on any assets of the Company, other than Permitted Liens.

(k)The Company (i) filed or caused to be filed with the appropriate Governmental Authority all reports required to be filed with respect to any unclaimed property and has remitted to the appropriate Governmental Authority all unclaimed property required to be remitted, or (ii)

28

delivered or paid all material unclaimed property to its original or proper recipient.  No asset of the Company is escheatable to any Governmental Authority under any applicable Law.

(l)Green Plains filed an election on April 3, 2009 to cause the Company to be classified as an association taxable as a corporation that was effective on September 28, 2006 by reason of a private letter ruling.  Green Plains filed an election on or prior to August 26, 2019 to cause the Company to be classified as a disregarded entity that was effective on or prior to August 26, 2019.  Immediately prior to Closing, the Company will be properly classified as a disregarded entity within the meaning of Treasury Regulation Section 301.7701-2(a) (and any comparable or similar applicable provision of state, local, foreign or other Law).  

(m)The Company has paid in full any and all import or export duties, penalties and other import or export-related fees owed by the Company for supplies, raw materials and any other goods imported into the United States or any other country in respect of the period prior to the Closing Date. The practices of the Company with respect to the import or export of supplies, raw materials and any other goods imported into the United States or any other country and with respect to the payment of any and all applicable import or export duties, penalties and other import or export-related fees owed by the Company in connection therewith, comply with all applicable import, export or other Laws of all applicable Governmental Authorities, whether in the United States or elsewhere. The Company has correctly classified all of its supplies, raw materials and other goods for the purposes of determining whether they are subject to import, export and other Laws of applicable Governmental Authorities.

(n)None of (i) the goodwill, (ii) the going concern value or (iii) the other intangible assets of the Company that would not be depreciable or amortizable but for Section 197 of the Code was held or used on or before August 10, 1993 by the Company or Green Plains or a “related person”(within the meaning of Section 197(f)(9)(C) of the Code) to the Company (prior to the Closing Date) or Green Plains.

3.21     Insurance

Schedule 3.21 of the Disclosure Schedules lists each insurance policy currently maintained by the Company and any Subsidiary of the Company, including the name of the insurer and policy number (the “Insurance Policies”).  The Insurance Policies are in full force and effect and neither the Company nor any Subsidiary of the Company is in breach or default, in any material respect, thereunder.  Except as set forth on Schedule 3.21 of the Disclosure Schedules, the execution of this Agreement and the consummation of the transactions set forth herein will not cause any change in or any termination of any of the Insurance Policies.  The coverage levels of the Insurance Policies, individually and in the aggregate, are adequate, in all material respects, (and have been adequate, in all material respects, for a period of two years prior to the Effective Date) for the Business and the Company and such Subsidiary of the Company based upon the Company’s and Subsidiary of the Company’s size and industry norms.  Except as set forth on Schedule 3.21 of the Disclosure Schedules, no claim has been made under any of the Insurance Policies for a period of two years prior to the Effective Dateby the Company or any of its Subsidiaries. All premiums required to be paid prior to the Effective Dateunder all Insurance Policies have been paid.  For a period of two years prior to the Effective Date, no non-routine notice of cancellation or non-renewal with respect to, or disallowance of any claim under, any of the Insurance Policies has been received by the Company or any Subsidiary of the Company.  Neither the Company nor any of its Subsidiaries has been refused any insurance, nor has its

29

coverage been limited by any insurance carrier to which it has applied for insurance or with which it has carried insurance for a period of two years prior to the Effective Date.  True and complete copies of all Insurance Policies have been provided to the Buyers.

3.22     Licenses and Permits

The Company and each of its Subsidiaries possess all material Permits necessary for the operation of the Business as currently conducted (including the Business), and Schedule 3.22 of the Disclosure Schedules sets forth a list of all such material Permits (the “Material Permits”).  All of the Material Permits are validly held by the Company or the applicable Subsidiary of the Company, and the Company and the applicable Subsidiary of the Company have complied, in all material respects, with the terms and conditions thereof.  During the past two years neither the Company nor any Subsidiary of the Company has received written notice of any Proceedings relating to the revocation or modification of any of the Material Permits, the loss of which would materially adversely affect the Business, and none of the Material Permits will be subject to suspension, modification, revocation or nonrenewal as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for any suspensions, modifications, revocations or non-renewals that would not materially adversely affect the Business.  No written notice has been received by the Company or any Subsidiary of the Company of the Company with respect to any failure by the Company or such Subsidiary of the Company to have any Material Permit.  Correct and complete copies of all of the Material Permits have been made available or delivered to the Buyers.  To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that may (with or without notice or lapse of time) constitute or result in a material violation by the Company or any Subsidiary of the Company of, or provide the basis for cancellation of any Material Permits held by the Company or any Subsidiary of the Company.

3.23     Related Party Transactions

Except as set forth on Schedule 3.23 of the Disclosure Schedules, no Related Party has any interest, directly or indirectly, in any Contract to which the Company or any Subsidiary of the Company of the Company is a party, or any property or asset used or owned by, or any interest in any direct customer or supplier of, the Company or any Subsidiary of the Company.  No Related Party has (A)borrowed money or loaned money to the Company or any Subsidiary of the Company that has not been repaid, (B) any contractual or other claim, express or implied, or any kind whatsoever against the Company or any Subsidiary of the Company that has not been satisfied, or (C) been engaged in any other transaction with the Company or any Subsidiary of the Company (other than the Transactions contemplated herein) that has remaining obligations to be performed.

3.24     Material Contracts

Schedule 3.24 of the Disclosure Schedules sets forth a list of all Contracts currently in effect other than Plans, including all amendments, modifications and supplements thereto, to which the Company or any Subsidiary of the Company is a party, or by which the Company or any Subsidiary of the Company is bound, meeting any of the descriptions set forth below:

(a)(i) all Contracts or group of related Contracts with the same party for the purchase of products or services, under which the Company or any Subsidiary of the Company reasonably may be expected to purchase $500,000 or more of products or services during the period ending twelve(12) months after the Effective Date, (ii) all Contracts which cannot be terminated on less

30

than 61 days’ notice, and (iii) all Contracts which cannot be terminated at a cost of less than $250,000;

(b)all Contracts that require the Company or any Subsidiary of the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;

(c)all Contracts that provide for the guarantee by the Company or any Subsidiary of the Company of the liabilities of any Person or the assumption of any Tax, environmental or other Liability of any Person;

(d)all Contracts that limit or purport to limit the ability of the Company or any Subsidiary of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time or granting any “most favored nation” or similar preferential rights to any Person;

(e)all employment Contracts for any Company Employee that cannot be terminated on an at-will basis or Contracts containing severance, noncompetition, change of control or retention payments or otherwise require the payment of any amounts or the granting of any rights as a result of entering into this Agreement and/or consummating the transactions contemplated hereby;

(f)all leases for the Leased Real Property;

(g)all Contracts that include or constitute a power of attorney (excluding power of attorney in connection with customs forms entered into the Ordinary Course of Business);

(h)all capital leases or personal property leases for which the annual payments exceed $500,000;

(i)excluding Off-the-Shelf Software, all Contracts related to Intellectual Property that is material to the Business, including all licenses and agreement pursuant to which the Company or any Subsidiary of the Company uses Intellectual Property or licenses Intellectual Property to or from third parties;

(j)all Contracts (or group of related Contracts) under which the Company or any Subsidiary of the Company has created, incurred, assumed, or guaranteed any Indebtedness with a principal amount in excess of $500,000;

(k)all Contracts (or group of Contracts) under which the Company or any Subsidiary of the Company contracts for any material agency, representation, distribution or brokerage services for the sale of its Products that is not terminable in thirty (30) days or less without cost or penalty;

(l)all Contracts (or group of Contracts) under which the Company or any Subsidiary of the Company contracts for transportation or freight services in excess of $250,000 annually;

31

(m)all Contracts (or group of Contracts) under which the Company or any Subsidiary of the Company contracts for the advertisement, display or promotion of any products involving payments of more than $250,000 annually that is not terminable in thirty (30) days or less without cost or penalty;

(n)all Contracts with any former director, former officer, former employee, former independent contractor, former consultant or former member of the Company or any Subsidiary of the Company for compensation in excess of $25,000 in any twelve(12) month period;

(o)all Contracts (or group of Contracts) that require capital expenditures in excess of $1,000,000 in the aggregate on or after the Closing Date;

(p)all Contracts (or group of Contracts) concerning a franchising, partnership, joint venture or similar arrangement;

(q)all Contracts relating to the purchase or sale of a business for a period of two years prior to the Effective Dateof the Company or any Subsidiary of the Company or under which indemnification obligations remain outstanding;

(r)all Contracts containing covenants of the Company or any Subsidiary of the Company to indemnify or hold harmless another Person or group of Persons (except for warranty obligations in Contracts entered into in the Ordinary Course of Business);

(s)any Contract pursuant to which the Company or any Subsidiary of the Company is required to purchase goods or services after the Closing Date outside of the Ordinary Course of Business in excess of $250,000;

(t)any other Contract (or group of Contracts) that has an aggregate future obligation to any Person in excess of $250,000 during the twelve (12) months after the Closing Date and is not terminable, without cost, by the Company or any Subsidiary of the Company by notice of not more than 60 days;

(u)all Contracts relating to the merger, consolidation, reorganization or any similar transaction involving or with respect to the Company or any Subsidiary of the Company;

(v)all Contracts containing an exclusivity provision between the Company or any Subsidiary of the Company, on the one hand, and any Person, on the other hand;

(w)all Contracts containing consignment or guaranteed sales provisions;

(x)all hedge, future or forward Contracts, or any financial derivative contracts associated with feed and cattle with an aggregate market value as of two (2) business days prior to the Closing in excess of $1,000,000;

(y)any other Contract (or group of Contracts) that is material to the Company or any Subsidiary of the Company and not previously disclosed pursuant to this Section 3.24.

32

Each Material Contract is valid and binding in accordance with its terms and is in full force and effect.  Neither the Company nor any Subsidiary of the Company nor, to the Knowledge of the Company, any other party to any Material Contract is in material breach of, or in material default under, any Material Contract, nor has the Company or any Subsidiary of the Company received any written notice of any intention to terminate any Material Contract.  To the Knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder.  Complete, correct and fully executed copies of each Material Contract (including all amendments, modifications and supplements thereto and waivers thereunder) have been made available or delivered to the Buyers.  Neither the Company nor any Subsidiary of the Company nor, to the Knowledge of the Company any other party thereto is in breach of any obligation under any purchase order, which breach would, individually or in the aggregate, be material to the Company or any Subsidiary of the Company.  Neither the Company nor any Subsidiary of the Company has waived any of its respective material rights under any Material Contract.

3.25Intellectual Property

(a)Excluding Off-the-Shelf Software, Schedule 3.25 of the Disclosure Schedules sets forth a list of the Owned Company Intellectual Property and the Intellectual Property licensed from third parties (“Licensed Intellectual Property” and collectively with the Owned Company Intellectual Property, the “Company Intellectual Property”), including all copyrights and copyright registrations/applications; Trademarks and Trademark registrations/applications; patents and patent registrations/applications; and domain names.

(b)Except as set forth in Schedule 3.25 of the Disclosure Schedules: (i) the Company Intellectual Property comprises all Intellectual Property used or held for use in the operation or conduct of the Business; (ii)the Company or any Subsidiary of the Company owns and possesses all right, title and interest in and to, or possesses the valid and enforceable right to use, all Company Intellectual Property and such right, title and interest in any Company Intellectual Property owned or purported to be owned by the Company or any Subsidiary of the Company (“Owned Company Intellectual Property”) is free and clear of all Liens other than Permitted Liens; (iii) no claims are pending or, to the Knowledge of the Company, threatened, as of the Effective Dateagainst the Company or any Subsidiary of the Company by any Person claiming that the use of any Intellectual Property, including, but not limited to, the Owned Company Intellectual Property infringes, misappropriates or otherwise violates the Intellectual Property of any such Person; (iv) during the two-year period prior to the Effective Date, neither the Company nor any Subsidiary of the Company has received any written notices of infringement or misappropriation from any Person with respect to the Company’s or any Subsidiary of the Company’s use of any Company Intellectual Property; (v)  no application or registration for any Owned Company Intellectual Property, including without limitation all Trademarks of the Company or any Subsidiary of the Company (collectively, the “Company Trademarks”), has been subject to any opposition or cancellation proceeding in the U.S., or an equivalent proceeding, worldwide, and there has been no other litigation, litigation threatened in writing, or other written objection to the use or registration of any of the Owned Company Intellectual Property, including, but not limited to, the Company Trademarks, by the Company or any Subsidiary of the Company; (vi) to the Knowledge

33

of the Company, the Company Trademarks are not registered to any Person (other than the Company or any Subsidiary of the Company) in any domestic or foreign jurisdiction; (vii) no supplier of the Company or anySubsidiary of the Company,to the Knowledge of Company can legitimately claim, or has claimed or threatened to claim,ownership to any of the Owned Company Intellectual Property; (viii) each of the Company’s and its Subsidiary of the Company’s consultants, advertising agencies, marketing agencies, or other independent contractors that has developed any Intellectual Property included in the Owned Company Intellectual Property, has executed an agreement, affirming the Company’s or such Subsidiary of the Company’s ownership to such Owned Company Intellectual Property; (ix)  to the Knowledge of the Company, no Person is infringing or misappropriating any Owned Company Intellectual Property; and (x) to the Knowledge of the Company, none of the Owned Company Intellectual Property infringes upon any other Person’s Intellectual Property. 

(c)The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not constitute a breach of any instrument or Contract governing any of the Company Intellectual Property (the “Company IP Rights Contracts”), will not cause the forfeiture or termination or give rise to a right of forfeiture or termination of any of the Company Intellectual Property or impair the right of the Company or any Subsidiary of the Company to exercise any of its rights in the Company Intellectual Property or any portion thereof.

(d)The Company and each Subsidiary of the Company has (i) complied in all material respects with the requirements of third parties with respect to maintaining the confidentiality of and safeguarding of such third parties’ Intellectual Property licensed to the Company or such Subsidiary of the Company; and (ii) exercised reasonable care and taken reasonable and practicable steps to maintain the confidentiality of and to protect and safeguard such third parties’ Intellectual Property that is included in the Company Intellectual Property.

(e)The Company or its Affiliates have a policy or policies describing the collection, use and disclosure of Personal Information, and its collection, use, storage, disposal and disclosure of Personal Information materially complies with, and at all times has been in material compliance with, the terms of such policy(ies) and all applicable privacy and data protection Laws and other applicable directives relating to data privacy, data protection and data security.

(f)The Company has not, directly or through a third party vendor or provider: (i)to the Knowledge of the Company, experienced a security breach or equivalent incident (as defined by applicable Laws) in the past two (2) years; (ii) failed to provide any security breach notification with respect to a known breach to any Person or Governmental Authority as required by Laws; or (iii) received written notice of, or been subject to, any audits, inquiries, claims, complaints or investigations by any Governmental Authority or Person under applicable data privacy Laws.

3.26     Indebtedness

Neither the Company nor any Subsidiary of the Company of the Company is liable for any Indebtedness of any other Person.  Schedule 3.26(a) of the Disclosure Schedules sets forth a summary of the terms of all Indebtedness of the Company and its Subsidiaries.

3.27     Customers and Suppliers

Schedule 3.27 of the Disclosure Schedules sets forth a list of the 10 largest customers (“Material Customers”) and the 10 largest suppliers (“Material

34

Suppliers”) of the Company and its Subsidiarieson a consolidated basis (based on the value (in US dollars) of annual purchases by or from the Company and such Subsidiaries during each of the twelve(12) month periods ended December 31, 2017 and December 31, 2018.  Neither the Company nor any Subsidiary of the Company has received any written notice that any of (a) the Material Customers has ceased, or currently intends to cease, to purchase Products or Services or to otherwise terminate or materially reduce its relationship with the Company or any Subsidiary of the Company, and to the Knowledge of the Company, no Material Customer has threatened any such action, or (b) the Material Suppliers has ceased, or currently intends to cease, to supply goods or services to the Company or any Subsidiary of the Company or to otherwise terminate or materially reduce its relationship with the Company or any Subsidiary of the Company.  The Company and each Subsidiary of the Company has not for a period of two years prior to the Effective Date,and currently is not providing, any cash payment, cash gift, cash compensation or similar cash benefit (outside of normal payments made in the Ordinary Course of Business in respect of goods delivered or services rendered) to any of its customers or suppliers, or their respective Affiliates.

3.28     Inventory

All inventory of the Company and its Subsidiaries that is held for sale, resale or consumption, including raw materials, work in process and finished goods (collectively, “Inventory”), consists of items of a quantity and quality useable and saleable within customary time periods in the Ordinary Course of Business and contains no amount of slow-moving, obsolete or damaged items or materials in excess of reserves set forth in the Financial Statements or on Schedule 3.28 of the Disclosure Schedules.  Schedule 3.28 of the Disclosure Schedules lists all cattle and feed positions of the Company and its Subsidiaries as of June 30, 2019.  All Inventory reflected in the Financial Statements is valued at the lower of fair market value or cost as determined using the first in, first out accounting method.  Neither the Company nor any Subsidiary of the Company has any Inventory in any locations except as set forth in Schedule 3.28 of the Disclosure Schedules.

3.29     Accounts Receivable

A complete and accurate list and aging of the accounts receivable of the Company and their Subsidiaries as of June 30, 2019 are set forth in Schedule3.29 of the Disclosure Schedules.  All of the accounts receivable of the Company and its Subsidiaries arose in the Ordinary Course of Business from bona fide transactions.  Except for Permitted Liens, there are no encumbrances or Liens on any of such accounts receivable, and no request or agreement for deduction or discount has been made with respect to any of such accounts receivable, except in the Ordinary Course of Business or as fully and adequately reflected in reserves for doubtful accounts set forth in the Interim Financial Statements. 

3.30     Accounts

Schedule 3.30 of the Disclosure Schedules sets forth a list of all bank accounts(including any safe deposit boxes and lock boxes), hedging accounts and investment accounts maintained by the Company or any Subsidiary of the Company, including the financial institution at which the account is held, the account number for such account and the names of all persons authorized to draw thereon or to have access thereto, including the names of all authorized signatories.

3.31     No Brokers

Except as set forth on Schedule 3.31 of the Disclosure Schedules, no broker, finder, investment banker or other third party is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions or any other Ancillary Document based

35

upon arrangement, contract or agreement made by or on behalf of the Company or any Subsidiary of the Company.

3.32     No Disqualification Events

Neither Green Plains, the Company nor any Subsidiary of the Company, nor any of their respective predecessors, directors, executive officers or other officers or any beneficial owner (as that term is defined in Rule 13d-3 under the 1934 Act) of five percent (5%) or more of Green Plains’, or the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with Green Plains, the Company or any Subsidiary of the Company in any capacity at the time of sale (each, a “Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3).  Green Plains, the Company and their respective Subsidiaries have exercised reasonable care to determine (i) the identity of each person that is a Covered Person; and (ii) whether any Covered Person is subject to a Disqualification Event.  Green Plains, the Company and their respective Subsidiaries have complied, to the extent applicable, with its disclosure obligations under Rule 506(e).

3.33No Other Representations or WarrantiesExcept for the representations and warranties contained in Article 3 and Article 4, neither Company nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of the Company or any of its Subsidiaries, Green Plainsor any other Person.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF GREEN PLAINS

Green Plains hereby represents and warrants to the Buyersthat the following representations and warranties are true and correct as of the Closing Date:

4.1     Organization

Green Plains is a corporation validly existing, duly registered and in good standing under the laws of the State of Iowa.

4.2     Power and Authority

Green Plains has all requisite power and authority to execute and deliver this Agreement and each other Ancillary Document to be executed by Green Plains hereunder, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.  All acts or proceedings required to be taken by Green Plains to authorize the execution and delivery of this Agreement and the Ancillary Documents and the performance of the obligations of Green Plains hereunder and thereunder have been properly taken.

4.3     Enforceability

This Agreement and each Ancillary Document executed by Green Plains is duly authorized, executed and delivered by Green Plains and constitutes the legal, valid and binding obligation of Green Plains, enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting or relating to creditors’ rights generally and general equitable principles.

4.4     No Violation; Consents and Approvals

 Neither: (a) the execution, delivery or performance of this Agreement by Green Plains or any Ancillary Document to which Green Plains

36

is or will be a party; nor (b) any of the Transactions or any such other agreement, document or instrument, will (with or without notice or lapse of time) contravene, conflict with or result in a material violation or material breach of, or result in a material default under, any provision of any Contract to which Green Plains is a party or by which Green Plains is bound.  Green Plains is not (or will not be) required to make any filing with or give any notice to, or to obtain any consent from, any Person in connection with the performance of this Agreement or any Ancillary Document.

4.5     Company Interests

 Green Plains holds of record and owns beneficially all of the membership interests of the Company. At the Closing, Green Plains will transfer to the Buyers good and marketable title to the Purchased Interests set forth next to its name on Schedule B, in each case free and clear of all Liens, restrictions on transfer (other than any restrictions created by the Organizational Documents of the Company, the Ancillary Documents or under applicable state and/or federal securities Laws), options, warrants, rights, calls, commitments, proxies or other contract rights. Except for this Agreement, Green Plains is not a party to any option, warrant, right, contract, call, put or other agreement or commitment providing for the disposition or acquisition of any equity interest in the Company. Green Plains is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any equity interest in the Company.

4.6     No Legal Proceedings

There are no actions (including arbitration proceedings), orders, charges, complaints, grievances, governmental investigations or inquiries or claims pending or, to the knowledge of Green Plains, threatened against or affecting Green Plains, at law or in equity, or before or by any Governmental Authority which would affect the entry into, performance of, compliance with and enforcement of any of the obligations of Green Plains hereunder.

4.7     No Brokers’ Fee

Green Plains has not incurred any obligation for any finder’s or broker’s or agent’s fees or commissions or similar compensation in connection with the transactions contemplated hereby for which the Company would be liable.

4.8No Other Representations or WarrantiesExcept for the representations and warranties contained in Article 3 and Article 4, neither Green Plains, the Company or its Subsidiaries nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of the Company or any of its Subsidiaries, Green Plainsor any other Person.

ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE BUYERS

Each Buyer hereby represents and warrants, severally and not jointly,with respect only to itself and not to any other Buyer, to the Companythat the following representations and warranties are true and correct as of the Closing Date:

5.1     Organization

 Such Buyer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation, as applicable.

5.2     Power and Authority

 Such Buyer has all requisite power and authority to execute and deliver this Agreement and each other Ancillary Document to be executed by such Buyer

37

hereunder, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby.  All acts or proceedings required to be taken by such Buyer to authorize the execution and delivery of this Agreement and the Ancillary Documents and the performance of the obligations of such Buyer hereunder and thereunder have been properly taken.

5.3     Enforceability

This Agreement and each Ancillary Document executed by such Buyer is duly authorized, executed and delivered by such Buyer and constitutes the legal, valid and binding obligation of such Buyer, enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting or relating to creditors’ rights generally and general equitable principles.

5.4     No Violation; Consents and Approvals

 Neither: (a) the execution, delivery or performance of this Agreement by such Buyer or any Ancillary Document to which such Buyer is or will be a party; nor (b) any of the Transactions or any such other agreement, document or instrument, will (with or without notice or lapse of time) contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Contract to which such Buyer is a party or by which such Buyer is bound.  Such Buyer is not (or will not be) required to make any filing with or give any notice to, or to obtain any consent from, any Person in connection with the performance of this Agreement or any Ancillary Document.

5.5     No Legal Proceedings

There are no actions (including arbitration proceedings), orders, charges, complaints, grievances, governmental investigations or inquiries or claims pending or,to the knowledge of such Buyer, threatened against or affecting such Buyer, at law or in equity, or before or by any Government Authority which would affect the entry into, performance of, compliance with and enforcement of any of the obligations of such Buyer hereunder.

5.6     No Brokers’ Fees

 Such Buyer has not incurred any obligation for any finder’s or broker’s or agent’s fees or commissions or similar compensation in connection with the transactions contemplated hereby for which Green Plains would be liable.

5.7     Investment Representations

Such Buyer is not acquiring any of the Purchased Interests with a view to or for sale in connection with any distribution thereof within the meaning of the Securities Act.  Such Buyer (a) is an “accredited investor” (as defined in Regulation D under the Securities Act); (b) is able to bear the economic risk of its investment in the Purchased Interests; (c) acknowledges that the Purchased Interests have not been registered under the Securities Act and therefore are subject to certain restrictions on transfer unless registered for resale or subject to an exempt transaction under the Securities Act and any applicable state securities Law and the Company is under no obligation to file a registration statement with the Securities and Exchange Commission with respect to the Purchased Interests in connection with the transactions contemplated by this Agreement or after the Closing; and (d) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Purchased Interests.

5.8     Disqualification Event

 Such Buyer has not been subject to any Disqualification Event or any proceeding or event that could result in any such Disqualification Event that would

38

either require disclosure under the provisions of Rule 506(e) of the Securities Act or result in disqualification under Rule 506(d)(1) of the Company’s use of the Rule 506 exemption.

5.9     Buyer’s Due Diligence

 Each Buyer has conducted a due diligence investigation, review and analysis of the Company and its Subsidiaries and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records and other documents and data of the Company and its Subsidiaries for such purpose.  Each Buyer further acknowledges and agrees that neither the Company, its Subsidiaries, Green Plains nor any other Person has made any representation or warranty as to the Company or its Subsidiaries, Green Plains, the Business or this Agreement, except as expressly set forth in Articles 2 and 3 of this Agreement (including the related portions of the Disclosure Schedules).

ARTICLE 6
Certain Covenants and Agreements

6.1     Public Announcements

Except as may be required by Law, or as otherwise permitted or expressly contemplated herein, no Party or its respective Affiliates and Representatives shall disclose to any third party the existence of this Agreement or the subject matter or terms hereof without the prior consent of the Parties, which approval shall not be unreasonably withheld, provided that a Party may disclose such information (a) to its directors, officers, employees, advisors, agents, attorneys, accountants, consultants, Affiliates, underlying beneficial owners and representatives who have a need to know such information, (b) in the case of the Company, to its employees and equity holders and to third parties whose consent is required to be obtained hereunder and (c) in connection with enforcing its rights under this Agreement or the Ancillary Documents.  No press release or public announcement related to this Agreement or the transactions contemplated herein shall be issued or made by any Party or its Affiliates without the approval of the other Parties hereto, which approval shall not be unreasonably withheld, unless required by Law (in the reasonable opinion of counsel), in which case such Parties shall have the right to review such press release, announcement or communication prior to its issuance, distribution or publication.  Notwithstanding the foregoing, the Parties expressly authorize each Buyer and its respective Affiliates to display the Company’s logo and general Company information consistent with such Buyer’s and its Affiliates’ past practices on their website and to disclose information regarding the transactions contemplated by this Agreement to each Buyer’s and/or its Affiliates’ limited partners,  prospective limited partners, or beneficial owners at any time after the Closing, including in marketing materials.

6.2     Fees and Expenses

Except as otherwise expressly set forth herein, all expenses incurred by any Party to this Agreement or on its behalf in connection with this Agreement and the Transactions (“Expenses”) will be paid by the Party incurring those Expenses.

6.3     Cooperation

From and after the Closing Date, each of the Parties shall deliver to the other Parties such further information and documents and shall execute and deliver to the other Parties such further instruments and agreements as the other Parties shall reasonably request to consummate or confirm the Transactions, to accomplish the purpose of this Agreement or to assure to the other Parties the benefits of this Agreement.

6.4Tax Matters

39

(a)Intended Tax Treatment  Each Party agrees to treat the Buyers’ purchase of the Purchased Interests as a transaction described in Revenue Ruling 99-5, 1999-1 CB 434, Situation 1, and shall not take any position inconsistent with such treatment unless otherwise required by applicable Law.

(b)Purchase Price Allocation  Within forty-five (45) days of the final conclusive determination of the Actual Members’ Equity Amount as set forth in Section 2.4(e), the Buyers, acting together, shall prepare and deliver to Green Plains a final allocation of the Purchase Amount, increased by the Liabilities of the Company to the extent appropriate under applicable U.S. federal income Tax Law plus any other relevant items, among the assets of the Company in a manner consistent with Section 1060 of the Code.  Such allocation shall be deemed final unless Green Plains notifies the Buyers in writing of any disagreement with such allocation within thirty (30) days after delivery thereof by the Buyers.  In the event of such disagreement, the Buyers and Green Plains shall use reasonable efforts to reach agreement on a mutually acceptable allocation.  If the Parties cannot so agree, then the Buyers and Green Plains shall submit their dispute to the Independent Accounting Firm for resolution in a manner consistent with Section 2.4(e).  Each Party shall each report, for all Tax purposes, and timely file all U.S. federal, state, local and foreign Tax Returns (including IRS Form 8594) in a manner consistent with the purchase price allocation as finally determined by this Section 6.4(b).  In the event of any adjustment to the Purchase Price pursuant to this Agreement, the Buyers shall revise the purchase price allocation in a manner consistent with the purchase price allocation as finally determined by this Section 6.4(b).

(c)     Transfer Taxes

 Notwithstanding anything to the contrary herein, all transfer, documentary, sales, use, stamp, value-added, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) (collectively, the “Transfer Taxes”) incurred in connection with consummation of the transactions contemplated by this Agreement shall be paid by Green Plains when due, and Green Plains shall, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges.  If the Buyers or the Company is required by law to pay any such Taxes, then Green Plain shall promptly reimburse the Buyers for any such payment.

(d)     Apportionment of Taxes

In the case of any taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), the amount of any Taxes based on or measured by income, payroll or receipts of the Company for the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date, and the amount of other Taxes of the Company for a Straddle Period which relate to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax or the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period.

(e)     Cooperation Regarding Tax Matters

Each Party shall cooperate in all reasonable respects, as and to the extent reasonably requested by any other Party, in connection with the preparation and filing of any Tax Return or claim for refund or any audit, proceed or other claim with respect to the Taxes or Tax Returns of the Company.  Such cooperation shall include (i) promptly forwarding copies (to the extent related thereto) of (A) relevant Tax notices, forms or other communications received from or sent to any Governmental Authority, and (B) reasonably requested copies of all relevant Tax Returns, together with accompanying schedules and related

40

workpapers, documents relating to rulings, audits or other Tax determinations by any Governmental Authority and records concerning the ownership and Tax basis of property of the Company, as reasonably determined material, and (ii) upon request, providing each other with the information that any Party is required to report pursuant to the Code, to the extent that the Party to whom the request is made can obtain the information through the exercise of commercially reasonable efforts.

(f)   Tax Sharing Agreements

All Tax sharing agreements or similar agreements with respect to or involving the Company shall be terminated at least one (1) day prior to the Closing Date, and, after such termination, the Company shall not be bound thereby or have any liability thereunder.

6.5     Transaction Expenses

 Within sixty (60) days of the Closing Date, Green Plains shall provide the Buyers with evidence reasonably satisfactory to the Buyers that all Transaction Expenses have been or will be discharged at the expense of Green Plains.

ARTICLE 7
CLOSING deliverables

7.1     Company Deliverables

On or prior to the Closing Date, the Company shall have delivered, or caused to have delivered, to the Buyers all of the following:

(a)a certificate of good standing of the Company issued by the Secretary of State of the State of Delaware;

(b)copies of the Company’s Organizational Documents and all amendments thereto;

(c)resolutions of the Company’s governing body approving this Agreement and each other agreement, document or instrument contemplated hereby to which the Company is a party, and authorizing the execution and delivery of this Agreement and each other agreement, document or instrument contemplated hereby to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby,  certified by a duly authorized officer of the Company;

(d)a duly executed counterpart signature page to the Company Operating Agreement;

(e)evidence reasonably satisfactory to the Buyers that the Company has terminated all Tax sharing agreements or similar agreements with respect to or involving the Company, including, without limitation, that certain Tax Sharing Agreement by and among the Parent and Subsidiaries (as defined therein), effective January 1, 2014, as amended by that certain Amendment and Addendum to Tax Sharing Agreement, effective as of August 29, 2017;  and

(f)such other documents or instruments as the Buyers may reasonably request to effect the transactions contemplated hereby.

41

7.2     Green Plains Deliverables

On or prior to the Closing Date, Green Plains shall have delivered, or caused to have delivered, to the Buyers all of the following:

(a)a certificate of good standing of Green Plains issued by the Secretary of State of the State of Iowa;

(b)copies of Green Plains’ Organizational Documents and all amendments thereto;

(c)resolutions of Green Plains’ governing body approving this Agreement and each other agreement, document or instrument contemplated hereby to which Green Plains is a party, and authorizing the execution and delivery of this Agreement and each other agreement, document or instrument contemplated hereby to which Green Plains is a party, and the consummation of the transactions contemplated hereby and thereby, certified as being in full force and effect by a duly authorized officer of Green Plains;

(d)a duly executed counterpart signature page to the Company Operating Agreement;

(e)all third-party consents and approvals (on terms reasonably satisfactory to the Buyers) that are necessary for the consummation of the transactions contemplated hereby and the operation of the Business after Closing, or that are required in order to prevent a breach of or default under any agreement to which the Company is a party;

(f)[Intentionally left blank];

(g)evidence reasonably satisfactory to the Buyers that all regulatory approvals, licenses and permits set forth on Schedule 7.2(g) of the Disclosures Schedules have been received;

(h)a certificate, dated as of the Closing Date, in form and substance required under Treasury Regulations Section 1.1445-2(b)(2) stating that Green Plains is not a “foreign person” as defined in Section 1445 of the Code, reasonably satisfactory to the Buyers;  and

(i)such other documents or instruments as the Buyers may reasonably request to effect the transactions contemplated hereby.

7.3     Buyers Deliverables

On or prior to the Closing Date, each Buyer shall have delivered, or caused to have delivered, to Green Plains all of the following:

(a)Payment of an amount equal to suchBuyer’s Pro Rata Share of the Closing Purchase Amount by (i) wire transfer of immediately available funds to the account designated by Green Plains prior to the Closing Date or (ii) such other method as agreed to by Green Plains in its sole and absolute discretion;

(b)a certificate of good standing of each Buyer issued by the state of its incorporation or formation;

(c)a duly executed counterpart signature page to the Company Operating Agreement; and

42

(d)such other documents or instruments as Green Plains may reasonably request to effect the transactions contemplated hereby.

ARTICLE 8
Indemnification

8.1Indemnification Obligations of Green Plains

(a)From and after the Closing Date, subject to the applicable limitations set forth in this Article 8, Green Plains willindemnify, defend and hold harmless each Buyer and each of its respective Representatives and Affiliates and each of their respective heirs, executors, insurers, successors and assigns (collectively, the “Buyer Indemnified Parties”) from, against and in respect of any and all Losses arising out of or relating to:

(i)any breach or inaccuracy of any representation or warranty made by the Company and/or Green Plains in this Agreement;

(ii)any breach of any covenant, agreement or undertaking made by the Company and/or Green Plains in this Agreement;

(iii)any fraud, willful misconduct or intentional misrepresentation of the Company and/or Green Plains in connection with this Agreement; and

(iv)any Pre-Closing Taxes.

(b)The Losses described in Section 8.1(a), as to which the Buyer Indemnified Parties are entitled to indemnification hereunder, are referred to herein as the “Buyer Losses.”

8.2Indemnification Obligations of the Buyers

(a)From and after the Closing Date, subject to the applicable limitations set forth in this Article8,  each Buyer, on a several and not joint basis, will indemnify, defend and hold harmless Green Plains, the Company and each of their Representatives and Affiliates and each of their respective heirs, executors, insurers, successors and assigns (collectively, the “Company Indemnified Parties”) from, against and in respect of any and all Losses arising out of or relating to:

(i)any breach or inaccuracy of any representation or warranty made by such Buyer in this Agreement;

(ii)any breach of any covenant, agreement or undertaking made by such Buyer in this Agreement to be performed after the Closing Date; and

(iii)any fraud, willful misconduct or intentional misrepresentation of such Buyer in connection with this Agreement.

43

(b)The Losses described in Section 8.2(a) as to which the Company Indemnified Parties are entitled to indemnification are hereinafter collectively referred to as “Company Losses.”

8.3Indemnification Procedure

(a)Promptly after receipt by an indemnified party under this Article8 (hereinafter referred to as an “Indemnified Party”) of notice by a third party (including any Governmental Authority) of any complaint or the commencement of any Proceeding with respect to which such Indemnified Party may be entitled to receive payment for any Buyer Losses or Company Losses (as the case may be) (a “Third Party Claim”), such Indemnified Party will notify the other Party (the “Indemnifying Party”), promptly following the Indemnified Party’s receipt of such complaint or of notice of the commencement of such Proceeding; provided,  however, that the failure to so notify the Indemnifying Party will relieve the Indemnifying Party from liability under this Agreement with respect to such claim only if, and only to the extent that, such failure to notify the Indemnifying Party results in prejudice to the Indemnifying Party.

(b)The Indemnifying Party will have the right, upon written notice delivered to the Indemnified Party within twenty (20) days thereafter, to accept full responsibility (subject to the limitations set forth in Sections 8.4,  8.5, and 8.6) for any Buyer Losses or Company Losses (as the case may be) resulting from a Third Party Claim, and to assume the defense of a Third Party Claim, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of the fees and disbursements of such counsel.  In the event, however, that the Indemnifying Party declines or fails to assume the defense of the Third Party Claim on the terms provided above or to employ counsel reasonably satisfactory to the Indemnified Party, in either case within such twenty (20) day period, then such Indemnified Party may employ counsel to represent or defend it in any such Third Party Claim and the Indemnifying Party will pay the reasonable fees and disbursements of such counsel as incurred (subject to the limitations set forth in Section 8.5); provided,  however, that the Indemnifying Party will not be required to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any jurisdiction in any single Proceeding.  In any Proceeding with respect to which indemnification is being sought hereunder, the Indemnified Party or the Indemnifying Party, whichever is not assuming the defense of such action, will have the right to participate in such matter and to retain its own counsel at such Party’s own expense.

(c)The Indemnifying Party or the Indemnified Party, as the case may be, will at all times use reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as the case may be, reasonably apprised of the status of the defense of any matter the defense of which they are maintaining and to cooperate in good faith with each other with respect to the defense of any such matter.  No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party.  An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless (i) such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all Liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or Liability on behalf of the Indemnified Party and (iii)does not contain any

44

equitable order, judgment or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.

(d)In the event an Indemnified Party claims a right to payment pursuant to this Agreement, other than for a Third Party Claim pursuant to Section 8.3(a), such Indemnified Party will send written notice of such claim to the appropriate Indemnifying Party.  Such notice will specify in reasonable detail the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted.  As promptly as possible after the Indemnified Party has given such notice, such Indemnified Party and the appropriate Indemnifying Party will establish the merits and amount of such claim by mutual agreement or mediation.  If the Indemnified Party and the appropriate Indemnifying Party fail to establish the merits and amount by way of mutual agreement or mediation they will establish the merits and amount by way of arbitration as provided in Section 9.9.  Within five (5) business days of the final determination of the merits and amount of such claim, and the Indemnifying Party will pay to the Indemnified Party (or to such other Person as the Indemnified Party directs) immediately available funds in an amount, if any, equal to such claim as determined hereunder.

8.4     Survival

Subject to the further provisions of this Section 8.4, the representations and warranties of Green Plains, the Company, and the Buyers contained in this Agreement shall survive the Closing Date until the later of (i) eighteen (18) months following the Closing Date or (ii) sixty (60) days following the completion of the annual audit of the Company’s financial records for the fiscal year ending December 31, 2020;  provided,  however, that (a) the representations and warranties contained in Sections 3.1(Organization), 3.2(Power and Authority), 3.3 (Enforceability), 3.4 (Capitalization), 3.5 (Valid Issuance of Purchased Interests), 3.6 (Subsidiaries), clause (a) of 3.7 (No Violation; Consents and Approvals), and3.31 (No Brokers’ Fees), the representations and warranties contained in Sections 4.1 (Organization), 4.2 (Power and Authority), 4.3 (Enforceability), 4.5(Company Interests), and 4.7(No Brokers’ Fees), and the representations and warranties contained in Sections 5.1 (Organization), 5.2 (Power and Authority), 5.3 (Enforceability), and 5.6 (No Brokers’ Fee) (collectively, the “Fundamental Representations”) shall survive the Closing Date indefinitely; and (b) the representations and warranties set forth inSection 3.20 (Tax Matters) (collectively, the “Special Representations”) shall survive the Closing Date until sixty (60) days following the expiration of the statute of limitations (after giving effect to any waiver, modification, tolling or extension thereof), if any, applicable to the subject matters set forth therein.  The covenants and other agreements of the Parties contained in this Agreement shall survive the Closing Date indefinitely.  For convenience of reference, the date upon which any representation, warranty, covenant or other agreement contained herein shall terminate, if any, is referred to herein as the “Survival Date.” No claim for Losses pursuant to Section 8.1(a) and Section 8.2(a) shall be brought or made after the expiration of the applicable Survival Date, except for (i) any claims which have been asserted and that are the subject of a written notice from an Indemnified Party to an Indemnifying Party prior to the expiration of such Survival Date or (ii) any claims arising out of fraud, willful misconduct or intentional misrepresentation.

8.5Limitation on Indemnity

(a)Notwithstanding anything to the contrary set forth herein, but subject to Section 8.5(c) and 8.5(d) hereof, the Buyer Indemnified Parties shall not make a claim against

45

Green Plains for indemnification for Buyer Losses, and the Company Indemnified Parties may not make a claim against a Buyer for Company Losses, as the case may be, under Section 8.1(a)(i)or Section 8.2(a)(i), respectively,for any single claim (or series of related clams or claims arising from similar facts and circumstances) unless and until the aggregate amount of Buyer Losses or Company Losses from such single claim (or series of related claims or claims arising from similar facts and circumstances), as the case may be, exceeds $200,000 (the “De Minimis Threshold”),  in which event the applicable Indemnified Party may claim indemnification for all such Losses (and not merely the excess of such Losses over the De Minimis Threshold), as the case may be and in each case subject to the other limitations set forth in this Article 8, including, without limitation, Section 8.5(b);  provided,  however,  that the De Minimis Threshold shall not apply to Losses with respect to the Fundamental Representations or the Special Representations.

(b)Notwithstanding anything to the contrary set forth herein, but subject to Section 8.5(c) and 8.5(d) hereof, the Buyer Indemnified Parties shall not make a claim against Green Plains for indemnification for Buyer Losses, and the Company Indemnified Parties may not make a claim against a Buyer for Company Losses, as the case may be, under Section 8.1(a)(i)or Section 8.2(a)(i), respectively, unless and until the aggregate amount of Buyer Losses or Company Losses, as the case may be, when aggregated with the amount of all other Losses which such Indemnified Party is entitled to recover, exceeds $1,000,000 (the “Basket”) in which event such applicable Indemnified Party may claim indemnification for all Losses (and not merely the excess of such Losses over the Basket), as the case may be; provided,  however, that the Basket shall not apply to Losses with respect to the Fundamental Representations or the Special Representations.

(c)Subject in all cases to Section 8.5(d) hereof:

(i)the sum of all Buyer Losses pursuant to which indemnification is payable by Green Plains pursuant to Section 8.1(a)(i) hereof (except for Fundamental Representations and Special Representations, for which there shall be no cap) shall not exceed, in the aggregate, $7,400,000 (the “Cap Amount”); and

(ii)the Company Losses pursuant to which indemnification is payable by a Buyer pursuant to Section 8.2(a)(i) hereof (except Buyer Fundamental Representations) shall not exceed such Buyer’s Pro Rata Share of the Cap Amount, and the sum of all Company Losses pursuant to which indemnification is payable by the Buyers, in the aggregate, shall not exceed the Cap Amount.

(d)In no event shall the De Minimis Threshold, Basket and Cap Amount set forth in Sections 8.5(a),  (b) and (c)hereof apply to the rights of any Indemnified Parties to be indemnified pursuant to Section 8.1(a)or Section 8.2(a)hereof for allLosses suffered, sustained or incurred that arise from, in connection with, or as a result of fraud or willful or intentional breach.

(e)Notwithstanding anything contained herein to the contrary, except for Losses suffered, sustained or incurred that arise from, in connection with, or as a result of fraud,  willful misconduct or intentional misrepresentation, in no event shall any Indemnifying Party have any liability for any Buyer Losses or Company Losses, as the case may be, payable pursuant to Section 8.1(a)(i)or Section 8.2(a)(i) hereof with respect to Fundamental Representations or Sections

46

8.1(a)(ii),  8.1(a)(iv), or 8.2(b)(ii)  in excess of the Purchase Price, or with respect to any individual Buyer, such Buyer’s Pro Rata Share of the Purchase Price.

(f)For purposes of (i) determining any inaccuracy in or breach of any representation or warranty and (ii) calculating the amount of Losses incurred arising out of or relating to any breach of a representation or warranty, the references to “Material Adverse Effect” or other materiality qualifiers (or correlative terms), including as expressed in accounting concepts, shall be disregarded.

(g)Any amount payable pursuant to this Article 8 shall (retroactively if necessary, resulting in a prompt refund to the Indemnifying Party): (i) be decreased to the extent of any insurance proceeds actually received by the Indemnified Party in respect of an indemnifiable Loss, as applicable, and (ii) be reduced by any actual recoveries from third Persons pursuant to indemnification or otherwise in respect thereto, in each case, net of any costs and Taxes incurred by the Indemnified Parties in connection with the receipt of such insurance proceeds or actual recoveries.

(h)In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive damages, except, however, with respect to any of the foregoing paid or owing to a Third Party with respect to a Third Party Claim, which damages shall be considered part of damages and shall be covered by the indemnifications set forth in this Article 8.

(i)Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Losses, to the extent required by any Law, for which such Indemnified Party seeks indemnification under this Agreement upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Losses.

(j)An Indemnified Party shall not be entitled to indemnification for Losses in respect of any matter to the extent the same Losseswere already included in Purchase Price adjustments determined pursuant to Section 2.4or would otherwise result in duplicative recovery

8.6     Damage to the Buyers

The Parties acknowledge and agree that, if the Company suffers, incurs or otherwise becomes subject to any Losses as a result of or in connection with any inaccuracy in or breach of any representation, warranty, covenant or obligation by Green Plains or the Company hereunder, then the Buyers shall also be deemed, by virtue of the Transactions, without duplication, to have incurred Losses as a result of and in connection with such inaccuracy or breach.

8.7     Tax Treatment

The Parties hereto agree to treat all payments made by or deemed to be made by a Party under this Article 8 as adjustments to the Purchase Price, unless otherwise required by applicable Law.

8.8     Exclusive Remedies

Subject to Section 9.8, the Parties acknowledge and agree that after the Closing, their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud or willful or intentional breach on the part of a Party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject

47

matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article 8.  In furtherance of the foregoing, each Party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other Parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article 8.  Nothing in this Section 8.8 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled pursuant to Section 9.8 or to seek any remedy on account of any fraud or willful or intentional breach by any Party hereto.

ARTICLE 9
Miscellaneous

9.1     Notices

All notices, communications and deliveries under this Agreement will be made in writing signed by or on behalf of the Party making the same, will specify the Section under this Agreement pursuant to which it is given or being made, and will be delivered personally or sent by registered or certified mail (return receipt requested) or by reputable national courier (with evidence of delivery and postage and other fees prepaid) to the address set forth on the recipient’s signature page to this Agreement or to such other representative or at such other address of a recipient as such Party may furnish to the other Parties in writing.  Should the contact person of any Party set forth above change, such Party shall have an obligation to promptly inform the other Parties of such change.

9.2     Disclosure Schedules

The disclosure schedules dated as of the Execution Date and delivered to the Buyers herewith (the “Disclosure Schedules”) are hereby incorporated by reference into the sections in which they are directly referenced and each other section or subsection of this Agreement to the extent the relevance of such information to such other section or subsection of this Agreement is reasonably apparent on the face of such disclosure.  The provision of monetary or other quantitative thresholds for disclosure on the Disclosure Schedules does not and shall not be deemed to create or imply a standard of materiality hereunder.  In the event of any inconsistency between the statements in the body of this Agreement and those in the Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules with respect to a specifically identified representation or warranty), the statements in the body of this Agreement will control.

9.3     Assignment; Successors in Interest

No assignment or transfer by any Party of its rights and obligations under this Agreement may be made except with the prior written consent of each other Party to this Agreement.  This Agreement will be binding upon and will inure to the benefit of the Parties and their successors and permitted assigns, and any reference to a Party will also be a reference to a successor or permitted assign.

9.4     Interpretation

Whenever the context so requires, the singular number will include the plural and the plural will include the singular, and the gender of any pronoun will include the other genders.  The use in this Agreement of the term “including” means “including, without limitation.” The words “herein”,  “hereof’,  “hereunder”,  “hereby”,  “hereto”,  “hereinafter”, and other words of similar import refer to this Agreement as a whole, including the schedules, annexes

48

and exhibits, as the same may from time to time be amended, modified, supplemented or restated, and not to any particular article, section, subsection, paragraph, subparagraph or clause contained in this Agreement.

9.5     Captions

The titles, captions and table of contents contained in this Agreement are inserted in this Agreement only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision of this Agreement.  Unless otherwise specified to the contrary, all references to Sections are references to Sections of this Agreement and all references to Schedules are references to Schedules to this Agreement.

9.6     Controlling Law

This Agreement will be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without regard to choice of law rules of any other jurisdiction.

9.7Consent to Jurisdiction, etc.

(a)SUBJECT TO SECTION 9.9, EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS AND AGREES THAT ANY ACTION, SUIT OR PROCEEDING ARISING IN CONNECTION WITH ANY DISAGREEMENT, DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENT (FOR PURPOSES OF THIS SECTION, A “LEGAL DISPUTE”) MAY ONLY BE BROUGHT IN THE DELAWARE COURT OF CHANCERY (OR, IF THE DELAWARE COURT OF CHANCERY SHALL BE UNAVAILABLE, ANY OTHER COURT OF THE STATE OF DELAWARE OR, IN THE CASE OF CLAIMS TO WHICH THE FEDERAL COURTS HAVE EXCLUSIVE SUBJECT MATTER JURISDICTION, ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE STATE OF DELAWARE) (THE “DESIGNATED COURTS”).  THE PARTIES AGREE THAT ALL ACTIONS, SUITS OR PROCEEDINGS WITH RESPECT TO ANY LEGAL DISPUTE SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.  EACH OF THE PARTIES HEREBY WAIVES THE RIGHT TO ASSERT, AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY LEGAL DISPUTE, THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURT OR THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER.  EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY ACTION, SUIT OR PROCEEDING DESCRIBED IN THIS SECTION 9.7 AFTER THE EXPIRATION OF ANY PERIOD PERMITTED FOR APPEAL AND SUBJECT TO ANY STAY DURING APPEAL SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAWS.

(b)EACH OF THE PARTIES HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF

49

CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.

9.8     Specific Performance

Each of the Parties agrees that this Agreement is intended to be legally binding and specifically enforceable pursuant to its terms and that the Company, Green Plains and the Buyers would be irreparably harmed if any of the provisions of the Agreement are not performed in accordance with their specific terms and that monetary damages would not provide adequate remedy in such event.  Accordingly, in addition to any other remedy to which a non-breaching Party may be entitled at law, a non-breaching Party shall be entitled to injunctive relief without the posting of any bond to prevent breaches of this Agreement and to specifically enforce the terms and provisions hereof.

9.9Arbitration

(a)Except (i) to the extent otherwise provided in Section 9.8 with respect to specific performance or other equitable relief, or (ii) as otherwise specifically provided in this Agreement, in the event of any claim, dispute or controversy arising out of, relating to or in connection with this Agreement (including any schedule or exhibit hereto) or the breach, termination or validity thereof or the negotiation, execution or performance thereof (including, without limitation, any claims alleging intentional misrepresentation, fraud or willful misconduct) (a “Claim”), the disputing Parties shall first attempt to settle such Claim in the first instance by mutual discussions between representatives of senior management of each such Party.  Within ten (10)business days of the receipt by a Party or Parties of a notice from another Party or Parties of the existence of a Claim (the “Arbitration Notice”), the receiving Party or Parties shall submit a written response to the other Party or Parties (the “Response”).  Both the Arbitration Notice and the Response shall include a statement of each disputing Party’s position with regard to the Claim and a summary of arguments supporting that position.  Within ten (10)business days of receipt of the Response, the executives of the respective Parties shall meet and attempt to resolve the Claim.  All negotiations pursuant to this clause shall be confidential and shall be treated as compromise and settlement negotiations, and no oral or documentary representations made by the Parties during such negotiations shall be admissible for any purpose in any subsequent proceedings.  If any Claim is not resolved within ten (10)business days of receipt of the Notice (or within such longer period as to which the Parties have agreed in writing), then the Claim shall be submitted to arbitration in accordance with Section 9.9(b).

(b)Any Claim not timely resolved in accordance with Section 9.8(a), shall be finally and exclusively resolved by arbitration in accordance with the then prevailing American Arbitration Association (“AAA”) Rules and Procedures.  There shall be a single arbitrator.  The disputing Parties shall have five (5) business days from commencement of the arbitration to agree on a single arbitrator.  Failing timely agreement, the arbitrator shall be selected by AAA.  All arbitration pursuant to Section 9.9(c) shall be confidential and shall be treated as compromise and settlement negotiations, and no oral or documentary representations made by the Parties during such arbitration shall be admissible for any purpose in any subsequent proceedings.  The place of arbitration shall be Wilmington, Delaware.  Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.  The award shall be final and binding upon the Parties and shall be the sole and exclusive remedy between the Parties regarding any

50

claims, counterclaims, issues or accounting presented to the arbitral tribunal.  Judgment upon any award may be entered in any court having jurisdiction.

(c)By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award.  Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the Parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the arbitral tribunal’s orders to that effect.  The Parties hereby submit to the exclusive jurisdiction of the Designated Courts for the purpose of an order to compel arbitration, for preliminary relief in aid of arbitration or for a preliminary injunction to maintain the status quo or prevent irreparable harm prior to the appointment of the arbitrator(s), and to the non-exclusive jurisdiction of the Designated Courts for the enforcement of any award issued hereunder.

(d)By executing and delivering this Agreement and subject in all cases to Sections 9.9(a) through (c), the Parties, irrevocably (i) accept generally and unconditionally the jurisdiction and venue of the Designated Courts for such purpose; (ii) waive any objections which such Party may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings brought in the Designated Courts and hereby further irrevocably waive and agree not to plead or claim in any such court that such action or proceeding brought in any such court has been brought in an inconvenient forum; (iii) agree that service of all process in any such proceeding in any such court may be made by registered or certified mail, return receipt requested, to such Party at their respective addresses provided in accordance with Section 9.1; and (iv) agree that service as provided in clause (iii) above is sufficient to confer personal jurisdiction over such Party in any such proceeding in any such court, and otherwise constitutes effective and binding service in every respect.

9.10Legal Representation

(a)Each Buyer for itself and its Affiliates, including the Company and its Subsidiaries, and for its and their respective successors and assigns, irrevocably acknowledges and agrees that all communications between Green Plains or its Affiliates, including the Company or its Subsidiaries, and its or their counsel, including Husch Blackwell LLP, made in connection with the negotiation, preparation, execution, delivery and closing under, or any dispute or proceeding arising under or in connection with, this Agreement which, immediately prior to the Closing, would be deemed to be privileged communications of Green Plains or their Affiliates, including the Company or its Subsidiaries, and their counsel and would not be subject to disclosure to any Buyer or its Affiliates in connection with any process relating to a dispute, litigation or proceeding arising under or in connection with, this Agreement or otherwise, shall continue after the Closing to be privileged communications between Green Plains or its Affiliates, including the Company or its Subsidiaries, and such counsel and none of any Buyer, any Affiliate of any Buyer or any Person acting or purporting to act on behalf of or through any Buyer or any Affiliate of any Buyer shall seek to obtain the same by any process on the grounds that the privilege attaching to such communications belongs to such Buyer or any Affiliate of such Buyer, including the Company or its Subsidiaries, and not Green Plains or its Affiliates.For the avoidance of doubt, the parties to

51

this Agreement agree that all pre-Closing communications between or among Husch Blackwell LLP, the Company, andGreen Plains that relate in any way to this Agreement or the transactions contemplated hereby, the attorney-client privilege and all other rights to any evidentiary privilege belong to the Green Plains and may be controlled by the Green Plains and shall not pass to or be claimed by any Buyer or the Company. Prior to the Closing, Green Plains and the Company may retain and remove all documents, emails and other non-email electronic documents concerning any merger, acquisition or sale of the Company or any of its assets. It is acknowledged and agreed to by the Parties that a failure by the Company and Green Plains to remove materials identified in the foregoing sentence, to the extent that such materials are otherwise protected by the attorney-client or work product privileges, is inadvertent and that Green Plains shall, after receiving written notice from any Buyer of said failure, to the extent discovered and known by such Buyer to constitute materials identified in the foregoing sentence, have ninety (90) days (the “Recovery Period”) to request the return of such documents from such Buyer and/or the Company and its Subsidiaries. At all times prior to the lapse of the Recovery Period, each Buyer agrees not to knowingly take any actions (and will cause the Company and its Subsidiaries not to knowingly take any actions) with regard to the documents that would be inconsistent with such claims of privilege.

(b)Each Buyer acknowledges that its consent and waiver under this Section 9.10 is voluntary and informed and that such Buyer has obtained independent legal advice with respect to this consent and waiver.  Without limiting anything set forth in this Agreement, each Buyer acknowledges and agrees that Green Plains is relying on the foregoing consent and waiver set forth in this Section 9.10.

9.11     Severability

The provisions of this Agreement are severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions of this Agreement.  If any provision of this Agreement, or the application of that provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision will be substituted for that provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (b)the remainder of this Agreement and the application of that provision to other Persons or circumstances will not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of that provision, or the application of that provision, in any other jurisdiction.

9.12     Amendment

This Agreement may not be amended, modified or supplemented except by written agreement of the Parties hereto.

9.13     Counterparts

This Agreement may be executed in any number of counterparts and any Party hereto may execute any such counterpart, each of which when executed and delivered will be deemed to be an original, and all of which counterparts taken together constitute but one and the same instrument.  Facsimile signature pages and signature pages scanned electronically will be deemed originals for all purposes and may be attached to copies of this Agreement as originals.

9.14     Enforcement of Certain Rights

Nothing expressed or implied in this Agreement is intended, or will be construed, to confer upon or give any Person other than the Parties, and their

52

successors or permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, or result in such Person being deemed a third party beneficiary of this Agreement.

9.15     Waiver

Any agreement on the part of a Party to any extension or waiver of any provision of this Agreement will be valid only if set forth in an instrument in writing signed on behalf of such Party.A waiver by a Party of the performance of any covenant, agreement, obligation, condition, representation or warranty will not be construed as a waiver of any other covenant, agreement, obligation, condition, representation or warranty.  A waiver by any Party of the performance of any act will not constitute a waiver of the performance of any other act or an identical act required to be performed at a later time.

9.16     Integration

This Agreement and the Ancillary Documents supersede all negotiations, agreements and understandings among the Parties with respect to the subject matter of this Agreement and constitutes the entire agreement between the Parties.

[Signature Page Follows]

53

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

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		COMPANY:
		GREEN PLAINS CATTLE COMPANY LLC
		By:	/s/ Todd Becker
		Name:	Todd Becker
		Title	President and Chief Executive Officer of Green Plains Inc.
			Sole Manager of Green Plains Cattle Company LLC
		Address for Notices:
		1811 Aksarben Dr.
		Omaha NE  68106
		Attn:  Joel Jarnagin
		Email:
		With a copy, which shall not constitute notice, to:
		1811 Aksarben Dr.
		Omaha NE  68106
		Attn:  Chief Legal & Administration Officer
		Email:  michelle.mapes@gpreinc.com

Signature Page to Securities Purchase Agreement

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

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		GREEN PLAINS:
		GREEN PLAINS INC.
		By:	/s/ Todd Becker
		Name:	Todd Becker
		Title	President and Chief Executive Officer
		Address for Notices:
		1811 Aksarben Dr.
		Omaha NE  68106
		Attn:  President and CEO
		Email:  todd.becker@gpreinc.com
		With a copy, which shall not constitute notice, to:
		1811 Aksarben Dr.
		Omaha NE  68106
		Attn:  Chief Legal & Administration Officer
		Email:  michelle.mapes@gpreinc.com

Signature Page to Securities Purchase Agreement

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

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		BUYERS:
		TGAM AGRIBUSINESS FUND HOLDINGS-B LP
		By:  TGAM Agribusiness Fund GL LLC, its General Partner
		By:	/s/ Daniel Masters
		Name:	Daniel Masters
		Title	Managing Director
		Address for Notices:
		221 1st St.
		Davis, California  956616
		With a copy, which shall not constitute notice, to:
		Greenberg Traurig, LLP
		4 Embarcadero Center, Suite 3000
		San Francisco, CA  9411
		Attn:  Marc Baluda, Esq.
		Email:  baludam@gtlaw.com

Signature Page to Securities Purchase Agreement

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

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		STEPSTONE ATLANTIC FUND, L.P.
		By:	/s/ Kirsty McGuire
		Name:	Kirsty McGuire
		Title	Deputy General Counsel
		Address for Notices:
		Level 43, Governer Phillip Tower
		One Farrer Place
		Sydney NSW 2000, Australia
		With a copy, which shall not constitute notice, to:
		StepStone Group LP 4275 Executive Square, Suite 500
		La Jolla, CA  92037 Telephone:  +1 858.558.9700
		Fax:  +1 858.558.9701 Email: reporting@stepstoneglobal.com

Signature Page to Securities Purchase Agreement

SCHEDULE A

Calculation of Book Value

(see attached)

Schedule A

SCHEDULE B

Buyers

Buyer Name	Number of Purchased Interests	Pro Rata Share
TGAM Agribusiness Fund Holdings-B LP	435,266	87.053%
StepStone Atlantic Fund, L.P.	64,734	12.947%

Schedule B

EX-10.1

Exhibit 10.1

GREEN PLAINS CATTLE COMPANY LLC

SECOND Amended and Restated Limited Liability Company Agreement

Dated as of
September 6, 2019

THE UNITS REPRESENTED BY THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN

ARTICLE I	DEFINTITIONS	1
1.1	Defined Terms	1
ARTICLE II	ORGANIZATIONAL MATTERS	10
2.1	Formation	10
2.2	Name	10
2.3	Purpose	11
2.4	Tax Classification	11
2.5	No State-Law Partnership	11
2.6	Registered Office and Agent; Principal Place of Business	11
2.7	Term	11
ARTICLE III	MANAGEMENT AND CONTROL OF THE COMPANY	11
3.1	Composition	11
3.2	Initial Managers	11
3.3	Voting; Required Vote for Board Action	12
3.4	Resignation	12
3.5	Removal; Vacancies	13
3.6	Removal of Board Seats	13
3.7	Board Meetings	13
3.8	Action Without a Meeting	14
3.9	Duties and Obligations of the Board	14
3.10	Certain Decisions Requiring the Approval of a Supermajority of the Board	14
3.11	Certain Decisions Requiring the Unanimous Approval of the Board	16
3.12	Compensation of Managers	17
3.13	Officers	17
3.14	Liability of the Managers and Officers	17
3.15	Reliance on Third Parties	19
3.16	Board Observers	19
ARTICLE IV	THE MEMBERS	19
4.1	Members	19
4.2	Members Are Not Agents	19
4.3	Voting Rights	19
4.4	Meetings of the Members	20
4.5	Limitation of Liability	20
4.6	Transactions Between a Member and the Company	20
4.7	Additional Members	21
ARTICLE V	CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS	21
5.1	Capital Contributions	21
5.2	Business Support Capital Contributions	21
5.3	Voluntary Capital Calls for Specific Transactions	23
5.4	Status of Capital Contributions	23
5.5	Capital Accounts	23
5.6	New Units	24

ARTICLE VI	DISTRIBUTIONS AND ALLOCATIONS	24
6.1	Excess Cash Flow Distributions	24
6.2	Tax Distributions	25
6.3	Allocation of Profits and Losses	25
6.4	Income Tax Allocations	28
6.5	Compliance with the Act	29
6.6	Final Distribution	29
6.7	Negative Capital Accounts	29
6.8	No Withdrawal of Capital	29
6.9	First Year Special Allocation	29
6.10	Basis Allocation	30
ARTICLE VII	TAX MATTERS	31
7.1	Partnership Representative	31
7.2	Tax Returns	32
7.3	Withholding	32
7.4	Fiscal Year	33
ARTICLE VIII	TRANSFER OF UNITS	33
8.1	Transfer Restrictions	33
8.2	Transfers	34
8.3	Permitted Transfers	34
8.4	Mutual Exit Right	34
8.5	Drag Along Rights	36
8.6	Tag-Along Rights	37
ARTICLE IX	BANKING; ACCOUNTING; INFORMATION RIGHTS	39
9.1	Banking	39
9.2	Maintenance of Books and Records; Accounts and Accounting Method	39
9.3	Information Rights	39
ARTICLE X	DISSOLUTION AND TERMINATION OF THE COMPANY	39
10.1	Dissolution	39
ARTICLE XI	INDEMNIFICAITON	40
11.1	Indemnification	40
11.2	Expenses	41
11.3	Notices of Claims	41
ARTICLE XII	RESTRICTIVE COVENANTS	41
12.1	Confidentiality	41
12.2	Non-Competition; Non-Solicitation	42
12.3	Competing Business Entity	42
12.4	Non-Disparagement	44
12.5	No Adequate Monetary Remedy	44
12.6	Modification of Restrictive Covenants	44
12.7	Conflicts of Interest, Related Party Transactions and Other Activities	44

1

ARTICLE XIII	MISCELLANEOUS PROVISIONS	45
13.1	Transactions with Affiliates	45
13.2	Amendment	45
13.3	Entire Agreement; Supersedure	45
13.4	Effect of Waiver or Consent	45
13.5	Binding Effect	46
13.6	Jurisdiction; Venue	46
13.7	Governing Law	46
13.8	Severability	46
13.9	Further Assurances	46
13.10	Notices	46
13.11	Headings	47
13.12	Counterparts	47
13.13	No Third Party Beneficiaries	47

2

SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

GREEN PLAINS CATTLE COMPANY LLC

This SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGReement (this “Agreement”) of Green Plains Cattle Company LLC, a Delaware limited liability company (the “Company”), is entered into as of September 6, 2019, ( the “Execution Date”), by and among the Company, Green Plains Inc., an Iowa corporation (“Green Plains”), TGAM Agribusiness Fund Holdings-B LP, a Delaware limited partnership (“TGAM”), and the other Persons set forth on the signature pages hereto (each, an “Investor Member” and collectively, the “Investor Members”). Green Plains, TGAM and the Investor Members shall each be referred to herein as a “Member” and collectively as the “Members.”

RECITALS

WHEREAS, the Company was formed by the filing of its Certificate of Formation (the “Charter”) with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”) on September 27, 2006, and Green Plains, as the sole member of the Company, entered into that certain Amended and Restated Limited Liability Company Agreement of the Company, dated as of June 10, 2014 (together with a Correction to Limited Liability Company Agreement, effective as of June 10, 2014, the “Prior LLC Agreement”);

WHEREAS, Green Plains, the Company, TGAM and the Investor Members have entered into that certain Securities Purchase Agreement, dated as of the date hereof, whereby TGAM and the Investor Members have purchased an aggregate of 50% of the membership interests of the Company from Green Plains (the “Purchase Agreement”); and

WHEREAS, the Members desire to enter into this Agreement, effective as of September 1, 2019 ( the “Effective Date”), to amend and restate the Prior LLC Agreement in its entirety, delineate their rights and liabilities as Members, to provide for the Company’s management, and to provide for certain other matters, all as permitted under the Act.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises, covenants and undertakings herein specified and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, with the intent to be obligated legally and equitably, the parties hereto agree as follows:

ARTICLE I
DEFINITIONS

1.1     Defined Terms

As used in this Agreement, the following terms have the respective meanings set forth below:

3

 “Acquisition Notice” shall have the meaning set forth in Section 12.3(a).

“Act” shall have the meaning set forth in Section 2.1.

“Actual Cattle Basis” shall have the meaning set forth in Section 6.10(c)(ii).

“Additional Member” shall have the meaning set forth in Section 4.7.

“Adjusted Capital Account” means, with respect to any Member, the balance in such Member’s Capital Account as of the end of the relevant Allocation Year, after giving effect to the following adjustments: (i) credit to such Capital Account any amounts that such Member is deemed to be obligated to restore pursuant to the penultimate sentences in Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), and (ii) debit to such Capital Account the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6).The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

“Additional Business Support Capital Contribution” shall have the meaning set forth in Section 5.2(b).

“Affiliate”  means, with respect to a Person, any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. As used in this definition, the word “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. For StepStone, this includes StepStone and any other entity managed or advised by StepStone Group LP or StepStone Group Real Assets LP.

“Agreement” shall have the meaning set forth in the Recitals.

“Allocation Year” means (i) the period commencing on the Effective Date and ending on December 31, 2019, (ii) any subsequent twelve (12) month period commencing on January 1 and ending on December 31, or (iii) any portion of the period described in clauses (i) or (ii) for which the Company is required to allocate Profits, Losses, and other items of Company income, gain, loss, or deduction pursuant to Section 6.3 hereof, unless the Company is required by Section 706 of the Code to use a different tax year, in which case “Allocation Year” shall mean such different tax year (or relevant portion thereof).

“Annual Budget” shall have the meaning set forth in Section 3.10(a).

“Assumed Tax Rate” means 40% or such other percentage as determined by a Supermajority of the Board.

 “Basis Earnout Dispute Notice” shall have the meaning set forth in Section 6.10(d).

“Basis Earnout Dispute Notification Period” shall have the meaning set forth in Section 6.10(d).

4

“Basis Earnout Statement” shall have the meaning set forth in Section 6.10(d).

“Basis Measurement Period” shall have the meaning set forth in Section 6.10(c)(i).

“Board” shall have the meaning set forth in Section 3.1.

“Board Observer” shall have the meanings set forth in Section 3.16.

“Bonus EBITDA” shall have the meaning set forth Section 6.9(c)(i).

“Bonus Dispute Notice” shall have the meaning set forth in Section 6.9(d).

“Bonus Dispute Notification Period” shall have the meaning set forth in Section 6.9(d).

“Bonus Statement” shall have the meaning set forth in Section 6.9(d).

“Book Value” means the excess of the total assets of the Company over the total liabilities, each to be determined in accordance with GAAP, and excluding accumulated other comprehensive income related to any hedging instruments with respect to cattle inventory, consistent with the formula applied in the preparation of the Actual Member’s Equity Amount (as defined in the Purchase Agreement).

“Business” means the operation of beef cattle feedlots.

“Business Acquisition Right” shall have the meaning set forth in Section 12.3.

“Business Support Capital Contribution” shall have the meaning set forth in Section 5.2(a).

“Buyers” shall have the meaning set forth in the Purchase Agreement.

“Buyers Basis Amount”  shall have the meaning set forth in Section 6.10(b).

“Buyers Bonus Amount”  shall have the meaning set forth in Section 6.9(b).

“Capital Account”  shall have the meaning set forth in Section 5.5.

“Capital Call” shall have the meaning set forth in Section 5.2(b).

“Capital Call Notice” shall have the meaning set forth in Section 5.2(b).

“Capital Contributions”  means, with respect to any Member, the amount of money and the initial Gross Asset Value of any Property (other than money) contributed to the Company with respect to the Units in the Company held or purchased by such Member, including the amount of any Business Support Capital Contributions that are elected to be converted into Units pursuant to Section 5.2(d), the amount of any Additional Business Support Capital Contributions that are elected to be converted pursuant to Section 5.2(d), Voluntary Capital Contributions and any other additional Capital Contributions, as reflected in Schedule A.

“Charter” shall have the meaning set forth in the recitals.

5

“Claim” shall have the meaning set forth in Section 11.1.

“Closing Date” shall have the meaning set forth in the Purchase Agreement.

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

“Company” shall have the meaning set forth in the preamble.

“Company Minimum Gain” has the same meaning as the term “partnership minimum gain” in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).

“Competing Business Entity” shall have the meaning set forth in Section 12.3.

“Confidential Information” shall have the meaning set forth in Section 12.1.

“Contributing Member” shall have the meaning set forth in Section 5.2(b).

“Contribution Date” shall have the meaning set forth in Section 5.2(b).

“Controlling Interest” shall have the meaning set forth in Section 12.3(c).

“Counter Offer Notice” shall have the meaning set forth in Section 12.3(a).

“Covered Person”  shall have the meaning set forth in Section 3.14(a).

“Delaware Secretary of State” shall have the meaning set forth in the recitals.

“Depreciation” means, for each Allocation Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for U.S. federal income tax purposes with respect to an asset for such Allocation Year, except that (i) with respect to a Property the Gross Asset Value of which differs from its adjusted basis for U.S. federal income tax purposes and which difference is being eliminated by use of the “remedial allocation method” as defined in Regulations Section 1.704-3(d), Depreciation for such period shall be the amount of the book basis recovered for such period under the rules prescribed in Regulations Section 1.704-3(d)(2), and (ii) if the Gross Asset Value of an asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning of such Allocation Year, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the U.S. federal income tax depreciation, amortization, or other cost recovery deduction allowable for such Allocation Year bears to such beginning adjusted tax basis, provided,  however, that if the adjusted basis for U.S. federal income tax purposes of an asset at the beginning of such Allocation Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.

“Drag-Along Notice”  shall have the meaning set forth in Section 8.5(c).

“Drag-Along Transaction”  shall have the meaning set forth in Section 8.5(a).

“Drag-Along Transferee”  shall have the meaning set forth in Section 8.5(c).

6

“Dragging Member”  shall have the meaning set forth in Section 8.5(a).

“EBITDA” shall have the meaning set forth in Section 6.9(c)(ii).

“Effective Date” shall have the meaning set forth in the recitals.

“Election” shall have the meaning set forth in Section 2.4.

“Execution Date” shall have the meaning set forth in the preamble.

“Excess Cash Flow” shall have the meaning set forth in Section 6.1.

“Exercising Member” shall have the meaning set forth in Section 8.4(b).

“Exercise Notice” shall have the meaning set forth in Section 8.4(b).

“Exercise Period” shall have the meaning set forth in Section 8.4(b).

“Fiscal Year”  shall have the meaning set forth in Section 7.4.

“Fully Exercising Member” shall have the meaning set forth in Section 8.4(c).

“GAAP” means generally accepted accounting principles in effect in the United States of America from time to time.

“Green Plains” shall have the meaning set forth in the preamble.

“Green Plains Basis Amount” shall have the meaning set forth in Section 6.10(a).

“Green Plains Bonus Amount” shall have the meaning set forth in Section 6.9(a).

“Green Plains Manager” shall have the meaning set forth in Section 3.2(a).

“Gross Asset Value” means with respect to any asset, the asset’s adjusted basis for U.S. federal income tax purposes, except as follows:

(i) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset, as determined by the Board;

(ii) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Board, as of the following times: (A) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (B) the distribution by the Company to a Member of more than a de minimis amount of Property as consideration for an interest in the Company; (C) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); and (D) in connection with the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a partner capacity, or by a new Member acting in a partner capacity in anticipation of being a

7

Member; provided,  however, that adjustments pursuant to clauses (A), (B), and (D) above shall be made only if the Board reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(iii) The Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross fair market value of such asset on the date of distribution as determined by the Board; and

(iv) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to (A) Regulation Section 1.704-1(b)(2)(iv)(m) and (B) subparagraph (vi) of the definition of “Profits” and “Losses” or Section 6.3(c)(vii),  provided,  however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent the Board determines that an adjustment pursuant to subparagraph (ii) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv).

If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (i), (ii), or (iv), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset, for purposes of computing Profits and Losses.

“Indemnified Person”  shall have the meaning set forth in Section 11.1.

“Independent Accounting Firm” shall have the meaning set forth in the Purchase Agreement.

“Independent Manager” shall have the meaning set forth in Section 3.2(d).

“Initiating Member”  shall have the meaning set forth in Section 8.6(a).

“Interest Rate” shall have the meaning set forth in Section 5.2(c).

“Inventory Equity Capital Adjustment”  shall have the meaning set forth in the Purchase Agreement.

“Investor Managers”  shall have the meaning set forth in Section 3.2(a).

“Investor Members”  shall have the meaning set forth in the preamble.

“IRR” means the internal rate of return calculated using the XIRR function in Excel with the series of cash flows being those cash flows actually received by such Transferring Member and the dates corresponding with such cash flows.

“LIBOR” meansthe London Interbank Offered Rate or a comparable or successor rate which rate is approved by the Board; provided that (i) to the extent a comparable or successor rate is approved by the Board in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent

8

such market practice is not administratively feasible for the Company, such approved rate shall be applied in a manner as otherwise reasonably determined by the Board.

“Liquidating Agent”  means the Person appointed by the Board to oversee the winding-up and liquidation of the Company in accordance with Article X.

“Lower Threshold of EBITDA”  shall have the meaning set forth in Section 6.9(c)(iii).

“Lower Threshold of Forecast Cattle Basis”  shall have the meaning set forth in Section 6.10(c)(iii).

“Manager” shall have the meaning set forth in Section 3.1.

“Maturity Date” shall have the meaning set forth in Section 5.2(c).

“Measurement Period” shall have the meaning set forth in Section 6.9(c)(iv).

“Member” shall have the meaning set forth in the preamble.

“Member Nonrecourse Debt” has the same meaning as the term “partner nonrecourse debt” in Regulations Section 1.704-2(b)(4).

“Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i)(3).

“Member Nonrecourse Deductions” has the same meaning as the term “partner nonrecourse deductions” in Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).

“Non-Contributing Member” shall have the meaning set forth in Section 5.2(b).

“Nonrecourse Deductions” has the meaning set forth in Regulations Sections 1.704-2(b)(1) and 1.704-2(c).

“Nonrecourse Liability” has the meaning set forth in Regulations Section 1.704-2(b)(3).

“Non-Selling Member”  shall have the meaning set forth in Section 8.4(a).

“Officers”  shall have the meaning set forth in Section 3.13.

“Organizational Documents”  means (a) with respect to a corporation, the certificate or articles of incorporation and bylaws; (b) with respect to a limited liabilitycompany, the articles (or certificate) of formation and limited liabilitycompanyagreement (or operating agreement) or other similar agreement; (c) with respect to any other entity, any charter or similar document adopted or filed in connection with the creation, formation or organization of such entity; and (d) any amendment to any of the foregoing.

“Other Members”  shall have the meaning set forth in Section 8.6(a).

9

“Percentage Interests” means a Member’s fractional interest in the income, gains, losses, deductions and expenses of the Company and is the percentage obtained by multiplying 100 by the quotient obtained by dividing (i) the total number of Units held by such Member by (ii) the aggregate number of outstanding Units.

“Permitted Transfer”  shall have the meaning set forth in Section 8.3.

“Permitted Transferee” shall have the meaning set forth in Section 8.3.

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

“Prior LLC Agreement” shall have the meaning set forth in the recitals.

“Profits” and “Losses” mean, for each Allocation Year, an amount equal to the Company’s taxable income or loss for such Allocation Year, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments (without duplication):

(i) Any income of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses” shall be added to such taxable income or loss;

(ii) Any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses,” shall be subtracted from such taxable income or loss;

(iii) In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraphs(ii) or (iii) of the definition of “Gross Asset Value,” the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset Value of the asset) or an item of loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of Property with respect to which gain or loss is recognized for U.S. federal income tax purposes shall be computed by reference to the Gross Asset Value of the Property disposed of, notwithstanding that the adjusted tax basis of such Property differs from its Gross Asset Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Allocation Year, computed in accordance with the definition of Depreciation;

10

(vi) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) of the Code is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Notwithstanding any other provision of this definition, any items that are specially allocated pursuant to Section 6.3(b) or (c) hereof shall not be taken into account in computing Profits or Losses.

The amounts of the items of Company income, gain, loss, or deduction available to be specially allocated pursuant to Section 6.3(b) and (c) hereof shall be determined by applying rules analogous to those set forth in subparagraphs(i) through (vi) above.

“Property” means all real and personal property acquired by the Company, including cash, and any improvements thereto, and shall include both tangible and intangible property.

“Prohibited Conduct”  shall have the meaning set forth in Section 3.14(a).

“Proposed Sale” shall have the meaning set forth in Section 12.3(a).

“Proposed Sale Terms” shall have the meaning set forth in Section 12.3(a).

“Proposed Sale Exercise Period” shall have the meaning set forth in Section 12.3(a).

“Purchase Agreement” shall have the meaning set forth in the recitals.

“Regulations” means the Income Tax Regulations, including Temporary Regulations, promulgated under the Code, as such regulations are amended from time to time.

“Regulatory Allocations” shall have the meaning set forth in Section 6.3(d).

“Remaining Units” shall have the meaning set forth in Section 8.4(c).

“Restricted Period” shall have the meaning set forth in Section 12.2.

“Restrictive Covenants” shall have the meaning set forth in Section 12.5.

“Right of First Purchase” shall have the meaning set forth in Section 8.4(a).

“Sale Notice”  shall have the meaning set forth in Section 8.6(a).

“Sale Acceptance Notice” shall have the meaning set forth in Section 12.3(a).

“Sale and Purchase Agreement” shall have the meaning set forth in Section 12.3(b).

“Secondary Purchase Right” shall have the meaning set forth in Section 8.4(c).

11

“Selling Member” shall have the meaning set forth in Section 8.4(a).

“Shared Services Agreement” means that certain Shared Services Agreement, by and between the Company and Green Plains, dated as of the Effective Date.

“Shortfall Amount” shall have the meaning set forth in Section 5.2(b).

“StepStone” shall mean StepStone Atlantic Fund, L.P., a Delaware limited partnership.

“Supermajority” shall have the meaning set forth in Section 3.10.

“Tax Distributions” shall have the meaning set forth in Section 6.2.

“TGAM” shall have the meaning set forth in the preamble.

“TGAM Manager” shall have the meaning set forth in Section 3.2(b).

“Threshold Purchase Price” shall have the meaning set forth in Section 8.5(a).

“Transfer”  shall have the meaning set forth in Section 8.2.

“Transfer Notice”  shall have the meaning set forth in Section 8.4(a).

“Transfer Units” shall have the meaning set forth in Section 8.4(a).

“Undersubscription Notice” shall have the meaning set forth in Section 8.4(c).

“Unit Transfer” shall have the meaning set forth in Section 8.4(e).

“Units”  shall have the meaning set forth in Section 4.1.

“Upper Threshold of EBITDA”  shall have the meaning set forth in Section 6.9(c).

“Upper Threshold of Forecast Cattle Basis”  shall have the meaning set forth in Section 6.10(c)(iv).

ARTICLE II
ORGANIZATIONAL MATTERS

2.1     Formation

The Company was formed on September 27, 2006 pursuant to the Delaware Limited Liability Company Act, as amended (the “Act”). To the fullest extent permitted by the Act, this Agreement shall control as to any conflict between this Agreement and the Act or as to any matter provided for in this Agreement that is also provided for in the Act.

2.2     Name

The name of the Company shall be “Green Plains Cattle Company LLC.” The Board in its sole discretion may change the name of the Company at any time and from time to time. Notification of any such change shall be given to all of the Members. The Company’s business may be conducted under its name and/or any other name or names deemed advisable by the Board.

12

2.3     Purpose

The Company has been formed for the purpose of engaging in any business for which a limited liability company may be formed pursuant to the Act.

2.4     Tax Classification

The Members acknowledge that pursuant to Regulation Section 301.7701-3, the Company shall be classified as a partnership for federal income tax purposes until the effective date of any election (“Election”) to change its classification on IRS Form 8832, Entity Classification Election. The Members agree that the Board shall have the authority to file and make the Election on behalf of the Company and each Member at such time as the Board determines in its sole discretion.

2.5     No State-Law Partnership

The Company’s classification as a partnership will apply only for federal (and, as appropriate, state and local) income tax purposes. This characterization does not create or imply a general partnership, limited partnership or joint venture among the Members for state law or any other purpose. Instead, the Members acknowledge the Company’s status as a limited liability company formed under the Act.

2.6     Registered Office and Agent; Principal Place of Business

The location of the registered office of the Company and the Company’s registered agent at such address shall be determined by the Board. The location of the principal place of business of the Company shall be 1811 Aksarben Drive, Omaha, Nebraska 68106 or at such location as the Board may from time to time select.

2.7     Term

The Company shall have perpetual existence; provided,  however, that the Company shall be dissolved upon the occurrence of an event set forth in Article X.

ARTICLE III
MANAGEMENT AND CONTROL OF THE COMPANY

3.1     Composition

The management, control and operation of the business and affairs of the Company shall be vested exclusively in a Board of Managers (the “Board” andeach individual sitting on the Board, a “Manager”), which is hereby authorized and empowered on behalf and in the name of the Company, subject to the terms of this Agreement, to carry out any and all of the purposes of the Company and to perform all acts and enter into and perform all contracts and other undertakings that it may in its sole discretion deem necessary, advisable, convenient or incidental thereto. Subject to the designation rights set forth in Section 3.2, the Board shall consist of the number of Managers as determined by the Board, which number may be increased or decreased by the Board from time to time; provided,  however, that the number may not be decreased below the number of Manager designees granted to the Members pursuant to Section 3.2 (unless adjusted in accordance with Section 3.6).

3.2     Initial Managers

The Board shall initially consist of five (5) Managers, to be designated as follows:

(a)Green Plains shall be entitled to designate two (2) Managers, or in the event the size of the Board is increased pursuant to Section 3.1, the number of Managers equal to two-fifths (2/5) of the Board, rounded up (each, a “Green Plains Manager” and collectively, the “Green Plains Managers”).

13

(b)TGAM shall be entitled to designate one (1) Manager, or in the event the size of the Board is increased pursuant to Section 3.1, the number of Managers equal to one-fifth (1/5) of the Board, rounded up (each, a “TGAM Manager” and collectively, the “TGAM Managers”). Notwithstanding the foregoing or anything contained in this Agreement to the contrary, in no event shall TGAM designate as a TGAM Manager any individual serving as a director on the Board of Directors of Green Plains.

(c)StepStone shall be entitled to designate one (1) Manager, or in the event the size of the Board is increased pursuant to Section 3.1, the number of Managers equal to one-fifth (1/5) of the Board, rounded up (each, an “Investor Manager” and collectively, the “Investor Managers”). Notwithstanding the foregoing or anything contained in this Agreement to the contrary, in no event shall StepStone designate as an Investor Manager any individual serving as a director on the Board of Directors of Green Plains.

(d)The remaining Manager (or Managers representing one-fifth (1/5) of the Board, in the event the size of the Board is increased pursuant to Section 3.1, rounded up) shall be an individual elected by the unanimous vote of the Green Plains Managers, the TGAM Managers and the Investor Managers (the “Independent Manager” and collectively, the “Independent Managers”).

(e)Notwithstanding any increase in the number of Managers pursuant to Section 3.1 or any decrease in the number of Managers pursuant to Section 3.6, in no event shall Green Plains have the right to designate a Supermajority (as defined below) of the Managers.

Each Manager shall serve in such capacity until such Manager’s death, disability, resignation in accordance with Section 3.4, or removal in accordance with Section 3.5. As of the Effective Date, the Board shall consist of the individuals listed on Schedule B hereto. The Board shall be the “manager” within the meaning of the Act.

3.3     Voting; Required Vote for Board Action

Each Manager shall have one vote. A majority of the Managers serving on the Board shall constitute a quorum for the transaction of business of the Board; provided, that at least one Green Plains Manager and one TGAM Manager are required to constitute a quorum for the transaction of any business of the Board (if there is at least one Green Plains Manager and one TGAM Manager on the Board at such time). At all times when the Board is conducting business at a meeting of the Board, a quorum of the Board must be present, whether in person or by teleconference, at such meeting. If a quorum shall not be present at any meeting of the Board, then the Managers present at the meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

3.4     Resignation

A Manager may resign at any time by giving written notice to the Board, to take effect upon receipt of that notice or at such later time specified in the notice. Unless otherwise specified in the notice, the acceptance of the resignation shall not be necessary to make it effective. The resignation of a Manager shall not affect any rights the Manager or any of its Affiliates may have under this Agreement or any other written agreement with the Company, and the resignation of a Manager shall not affect such Manager’s rights as a Member or constitute a withdrawal of such Manager as a Member.

14

3.5     Removal; Vacancies

Any Manager may be removed with or without cause only by consent of the Member entitled to designate such Manager in accordance with Section 3.2;  provided that the Independent Manager may be removed with or without cause by the unanimous vote of the Green Plains Managers, the TGAM Managers and the Investor Managers. For the avoidance of doubt, if a vacancy is created on the Board at any time by the death, disability, retirement, resignation or removal of any Manager, the Member that designated such Manager to serve on the Board shall have the sole and exclusive right to designate a replacement thereof by written notice to the Board. In the event that no Member is entitled to designate such replacement, then such vacancy shall be filled by the unanimous consent of the Board.

3.6     Removal of Board Seats

(a)If at any time Green Plains, individually or together with Green Plains’ Affiliates, owns less than 25% of the Units of the Company on a fully diluted basis, it shall lose the right to designate one Green Plains Manager as set forth in Section 3.2 and, at such time, the right to designate one (1) Manager shall be made by a vote of a majority-in-interest of the Members. If at any time Green Plains, individually or together with Green Plains’ Affiliates, owns less than 10% of the Units of the Company on a fully diluted basis, it shall lose the designation rights set forth in Section 3.2 and the number of Board members shall be adjusted downward by one (1) such that the Board consists of four (4) Managers.

(b)If at any time TGAM has less than $25,000,000 invested capital in its Capital Account, it shall lose the designation rights set forth in Section 3.2 and the number of Board members shall be adjusted downward.

(c)If at any time StepStone, individually or together with StepStone’s Affiliates, owns less than 50% of the number of the Units of the Company held by StepStone as of the Closing Date, it shall lose the designation right set forth in Section 3.2 and, at such time, the right to designate one (1) Manager shall be made by the Person acquiring StepStone’s interest, subject to the limitations set forth in Section 3.2(e).  

3.7     Board Meetings

Regular meetings of the Board shall be held at such times and places as shall be designated from time to time by resolution of the Board, but which shall not be less than once per calendar quarter, on at least twenty-four (24) hours’ notice to each Manager. Special meetings of the Board may be called by any Manager on at least twenty-four (24)  hours’ notice to each other Manager, which notice must include appropriate dial-in information to permit each Manager to participate in such meeting by means of telephone conference. Such notice need not state the purpose or purposes of such meeting, except as may otherwise be required by law. Subject to Sections 3.10 and 3.11, at each meeting of the Managers at which a quorum is present, all questions and business shall be determined by the affirmative vote of a majority of the Managers present.

3.8     Action Without a Meeting

Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if the Managers having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Managers entitled to vote thereon were present and voted shall have executed a written consent with respect to such action taken in lieu of a meeting; provided,  however, that such action

15

by written consent must be executed by at least one Green Plains Manager and one TGAM Manager (if there is at least one Green Plains Manager and one TGAM Manager on the Board at such time).

3.9     Duties and Obligations of the Board

(a)The Board shall cause the Company to conduct its business and operations separate and apart from that of any Member or any of their Affiliates, including, without limitation: (i) segregating Property and not allowing funds or other Property to be commingled with the funds or other assets of, held by, or registered in the name of any Member or any of their Affiliates; (ii) maintaining books and financial records of the Company separate from the books and financial records of any Member and their Affiliates, and observing all Company procedures and formalities, including, without limitation, maintaining minutes of meetings of the Members and acting on behalf of the Company only pursuant to due authorization; (iii) causing the Company to pay its liabilities from assets of the Company; and (iv) causing the Company to conduct its dealings with third parties in its own name and as a separate and independent entity.

(b)The Board shall take all actions that may be necessary or appropriate for: (i) the continuation of the Company’s valid existence as a limited liability company under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Members or to enable the Company to conduct the business in which it is engaged; and (ii) the accomplishment of the Company’s purposes in accordance with the provisions of this Agreement and applicable laws and regulations.

(c)Each Manager shall devote to the affairs of the Company such time as may be reasonably necessary to carry out his, her or its obligations hereunder.

(d)The Managers’ fiduciary duties of loyalty and care are expressly limited by the provisions set forth in Section 3.14,  Section 12.7 and Section 13.1 hereunder.

3.10     Certain Decisions Requiring the Approval of a Supermajority of the Board

Notwithstanding anything in this Agreement to the contrary, the following actions by the Board shall require the approval of four (4) of the five (5) Managers, or if the size of the Board is decreased to four (4) Managers, then three (3) of the four (4) Managers (a “Supermajority”):

(a)approving the annual budget prepared by the Chief Financial Officer of the Company and delivered to the Board at least one week prior to the first quarterly Board meeting of each fiscal year of the Company (each, an “Annual Budget”);

(b)repurchasing, creating, authorizing or issuing any Units or other equity interests in the Company (including any securities convertible into or exercisable or exchangeable for Units or equity interests in the Company), or registering any securities of the Company under the Securities Act or any public offering of securities;

(c)except as specified in an Annual Budget that has been approved in accordance with Section 3.10(a), entering into, modifying, amending or terminating, or agreeing to enter into, modify, amend or terminate any agreement, contract or other

16

arrangement (or series of related arrangements) (A) not in the ordinary course of business (i.e., related to cattle or cattle feed) pursuant to which the Company or any of its subsidiaries would pay or receive, or reasonably expect to pay or receive, an aggregate amount in excess of $1,000,000, over the term of such agreement, contract or other arrangement or (B) which contains material restrictions on the operation of the business of the Company and its subsidiaries or their respective Affiliates;

(d)(i) entering into, materially amending or otherwise materially modifying a note, credit agreement, credit facility, letter of credit or other instrument of indebtedness for borrowed money; (ii) otherwise incurring indebtedness for borrowed money or agreeing to furnish a guarantee or other credit support; or (iii) except as specified in an Annual Budget that has been approved in accordance with Section 3.10(a), the purchase, redemption, cancellation, prepayment or other complete or partial discharge in advance of a scheduled payment or mandatory redemption date of any such obligation in any transaction or series of related transactions;

(e)liquidating, winding up or dissolving the Company;

(f)adopting a plan or proposal for a complete or partial liquidation, reorganization or recapitalization or commencement of any case, proceeding or action seeking relief under any laws relating to bankruptcy, insolvency, conservatorship or relief of debtors, or applying for or consenting to the appointment of a receiver, trustee, custodian, conservator or similar official, or filing an answer admitting the material allegations of a petition filed against the Company in any such proceeding, or making a general assignment for the benefit of creditors, or admitting in writing its inability or failing generally to pay its debts as they become due;

(g)adopting any employee compensation plan, employee benefit plan or welfare plan;

(h)appointing, electing or removing key employees or officers of the Company except for “Cause” (as such term is defined in such individual’s employment agreement), changing the compensation for such key employee or officer or entering into or amending any employment or severance agreement with such key employee or officer;

(i)adopting any new, or amending any existing, equity incentive plan or similar incentive arrangement;

(j)the granting of any Units, profits interests or similar incentive equity to any employee, manager, director or consultant of the Company pursuant to any equity incentive plan, phantom equity plan or similar equity arrangement of the Company, and the determination of the terms of such grant, including the dilutive effect of any such grant on the Members;

(k)consummating any consolidation, merger or other business combination, or other sale of a controlling interest in the Company;

17

(l)changing the Company’s independent public accountants;

(m)any elections, decisions or determinations with respect to taxes of the Company, including, without limitations, adopting any voluntary change in the tax classification for U.S. federal income tax purposes of the Company or any actions to be taken by the Partnership Representative pursuant to Section 7.1;

(n)commencing or settling any litigation, investigation, proceeding or governmental or regulatory action for an aggregate amount over $100,000;

(o)purchasing, selling, leasing, transferring, or otherwise acquiring or disposing of all or substantially all the equity interests and/or assets of the Company or any other Person in any transaction or series of related transactions;

(p)(i) selling any assets to a Member or its Affiliates (other than the Company or a subsidiary thereof) for less than fair market value (as reasonably determined by the Board), (ii) providing compensation to, or changing the compensation of, any Manager, other than reimbursement of expenses permitted in accordance with Section 3.12, or (iii) terminating or entering into or modifying any agreement or transaction with a Member, Manager or an Affiliate of a Member or Manager; provided,  however, the Shared Services Agreement may be amended (but not terminated) by a simple majority of the Board and, for the avoidance of doubt, termination of the Shared Services Agreement shall require approval by a Supermajority;

(q)approving any Business Support Capital Calls pursuant to Section 5.2 or Voluntary Capital Calls pursuant to Section 5.3;

(r)approving any Permitted Transfer pursuant to Section 8.3.

3.11     Certain Decisions Requiring the Unanimous Approval of the Board

Notwithstanding anything in this Agreement to the contrary, the following actions by the Company shall require the unanimous approval of the Board:

(a)changing the business of the Company or its purpose, or converting the Company to another type or form of business entity;

(b)forming any subsidiary of the Company;

(c)amending the rights, preferences or privileges conferred upon one or more classes of the Company’s equity interests, including conversion of any equity interests into preferred interests;

(d)amending, modifying or waiving any provision of the Charter or this Agreement (provided, that any such action shall also require any additional approval required pursuant to Section 13.2); and

18

(e)the making of any announcement or public release of information about the Company or the Members, unless required by applicable law or regulation.

3.12     Compensation of Managers

Unless approved by the Board in accordance with Section 3.10(p), the Managers shall not be entitled to compensation for serving on the Board; provided, however, that the Green Plains Manager designated as the Chairman of the Board shall be entitled to receive annual compensation of $120,000 per year that such Green Plains Manager serves as Chairman of the Board (or such pro rata portion of the $120,000 if less than a year) and the second Green Plains Manager shall be entitled to receive annual compensation of $50,000 per year that such Green Plains Manager serves on the Board (or such pro rata portion of the $50,000 if less than a year); provided further, that the TGAM Manager and the Investor Manager shall each be entitled to receive annual compensation of $50,000 per year that such TGAM Manager or Investor Manager serves on the Board (or such pro rata portion of the $50,000 if less than a year) and the Independent Manager shall be entitled to receive annual compensation in an amount as determined by a simple majority of the Board per year that such Independent Manager serves on the Board (or such pro rata portion of such amount if less than a year). Managers may be paid their reasonable out-of-pocket expenses, if any, for attendance at each meeting of the Board. Nothing contained in this Agreement shall be construed to preclude a Manager from serving the Company in any other capacity and receiving compensation from the Company for such service.

3.13     Officers

The Company may have such officers (the “Officers”) as the Board in its discretion may appoint. The Board may remove any Officer with or without cause at any time; provided,  however, that such removal shall be without prejudice to the contractual rights, if any, of the Officer so removed. Election or appointment of an Officer shall not of itself create contractual rights. Any such Officers may, subject to the general direction of the Board, have responsibility for the management of the normal and customary day-to-day operations of the Company, and act as “agents” of the Company in carrying out such activities. The Officers shall be compensated as determined by the Board. Any Officer may resign at any time. Such resignation shall be in writing and shall take effect at the time specified therein or, if no time is specified, at the time of its receipt by the Board. The acceptance of a resignation shall not be necessary to make it effective unless expressly so provided in the resignation. The Officers of the Company, in the performance of their duties as such, shall owe to the Company duties of loyalty and due care of the type owed by the officers of a corporation to such corporation and its stockholders under the laws of the state of Delaware, subject to the limitations set forth in Section 3.14,  Section 12.7 and Section 13.1.

3.14     Liability of the Managers and Officers

(a)General. No Manager, Officer or their respective Affiliates (other than the Company), and the members, shareholders, controlling Persons, officers, directors, partners, employees, consultants, attorneys and agents of such Manager, Officer or its respective Affiliates (other than the Company) (each, a “Covered Person” and collectively, the “Covered Persons”), shall be liable to the Company or any Member for any act or omission taken or suffered by such Covered Person in good faith and in the reasonable belief that such act or omission is in or is not contrary to the best interests of the Company and, if applicable, is within the scope of authority granted to such Covered Person by this Agreement; provided that such act or omission does not constitute grossly negligent or reckless conduct, intentional misconduct, a knowing violation of

19

law or, if applicable, a willful breach of fiduciary duty, by such Covered Person (such conduct, “Prohibited Conduct”). No Member shall be liable to the Company or any Member for any action taken by any other Member. To the extent that, at law or in equity, a Covered Person has duties and liabilities relating thereto to the Company or to the Members, such Covered Person shall not be liable to the Company or any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they expressly restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members to replace, to the extent permitted by law, such other duties and liabilities of such Covered Person.

(b)Reliance. A Covered Person shall incur no liability in acting upon any signature or writing reasonably believed by such Covered Person to be genuine, may rely on a certificate signed by an executive officer of any Person in order to ascertain any fact with respect to such Person or within such Person’s knowledge, and may rely on an opinion of counsel selected by such Covered Person with respect to legal matters. Each Covered Person may act directly or through its agents or attorneys. Each Covered Person may rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by (i) one or more Members, Managers or employees of the Company whom the Covered Person reasonably believes to be reliable and competent in the matters presented or (ii) legal counsel, public accountants, or other Persons as to matters the Covered Person reasonably believes are within the Persons’ professional or expert competence, and the Covered Person shall not be liable for anything done, suffered or omitted in good faith and within the scope of this Agreement in reasonable reliance upon the advice of any of such Persons. No Covered Person shall be liable to the Company or any Member for any error of judgment made in good faith by such Covered Person or its officers or directors; provided that such error does not constitute Prohibited Conduct. Except as otherwise provided in this Section 3.14(b), no Covered Person shall be liable to the Company or any Member for any mistake of fact or judgment by such Covered Person in conducting the affairs of the Company or otherwise acting in respect of and within the scope of this Agreement; provided that such mistake does not constitute Prohibited Conduct.

(c)No Liability for Return of Capital Contributions. No Covered Person shall be liable for the return of any Capital Contributions or Capital Account of any Member, and such return shall be made solely from available Company assets, if any, and each Member hereby waives any and all claims it may have against each Covered Person in this regard.

3.15    Reliance by Third Parties

In dealing with the Managers and the duly appointed Officers of the Company, no Person shall be required to inquire as to the Managers’ or any Officer’s authority to bind the Company.

3.16    Board Observers

For so long as Green Plains or TGAM, as applicable, holds Units each shall have the right to designate one natural Person as a Board observer (each a “Board Observer”). The Board Observer will have the right as a non-voting observer to attend in person or join telephonically, each meeting of the Board and any committee thereof; provided, the Board Observer shall not disclose to any Person any confidential information disclosed at any meeting of the Board or committee thereof or contained in any material received by the Board Observer in connection with any Board materials or meeting of the Board or such committee and provided further that the Board Observer may be excluded from any meeting (or portion thereof) where such

20

exclusion is require to retain attorney-client privilege or any similar evidentiary privilege. The Board shall provide the Board Observer copies of all notices, minutes, consents and other materials that it provides to the Managers at the same time and in the same manner as provided such Managers; provided that the Board Observer shall not be provided with any materials where provision of such materials would cause a waiver of attorney-client privilege or any similar evidentiary privilege. Green Plains or TGAM, as applicable, may remove their respective designated Board Observer, and the Board Observer may resign, at any time with or without cause upon notice to the Company. In the event of a vacancy, Green Plains or TGAM may designate a new Board Observer by notice to the Board.

ARTICLE IV
THE MEMBERS

4.1     Members

The Members shall be listed on Schedule A hereto, as maintained by the Board and from time to time amended and supplemented in accordance with this Agreement. Each Member’s membership interest in the Company shall be represented by “Units.” Subject to Section 4.7, the Board may admit new members from time to time so long as such new members execute a counterpart signature page or joinder to this Agreement. The Board may update Schedule A attached hereto to reflect any changes in membership. Other than as expressly permitted pursuant to this Agreement, no Member shall have the right to resign or withdraw from the Company.

4.2     Members Are Not Agents

Pursuant to Article III, the management of the Company is vested in the Board. No Member, with the exception of a Member that is a Manager, shall have any power to participate in the management of the Company except as expressly authorized by this Agreement or the Charter. With the exception of a Member that is a Manager, no Member, acting solely in the capacity of a Member, is an agent of the Company nor does any Member, unless expressly and duly authorized in writing to do so by the Board, have any power or authority to (a) bind or act on behalf of the Company in any way, (b) pledge its credit, (c) execute an instrument on its behalf, or (d) render it liable for any purpose.

4.3     Voting Rights

No Member, with the exception of a Member that is a Manager, has any voting rights except with respect to those matters specifically reserved for a Member vote as set forth in this Agreement and as required in the Act.

4.4     Meetings of the Members

(a)Meetings of the Members may be called at any time by the Board.

(b)Each meeting of the Members shall be called with at least seven (7) days but not more than thirty (30) days’ advance written notice, specifying the agenda for the meeting. Such notice may be waived by a Member at any time, and will be deemed to have been waived if the Member participates in the meeting. Meetings may also be held telephonically whereby each of the Members can hear each of the other Members. The Board shall establish all other provisions relating to meetings of Members, including the time, place or purpose of any meeting at which any matter is to be voted on by any Members, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. Action by the Members may also be taken by

21

written consent of the Members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting, but in no event by a vote of less than a majority-in-interest of the Members. The Company’s Secretary or such other officer designated by the Board shall be responsible for taking minutes of the Member meetings and safekeeping them on behalf of the Company.

4.5     Limitation of Liability

To the fullest extent permitted by law, no Member shall be liable for any action taken as a Member, or for any failure to take any action. It is the intent of the parties to this Agreement to limit, to the fullest extent permitted by law, the duties of each Member to the Company and to the other Members (including fiduciary duties), and the parties to this Agreement hereby agree that, except as specifically set forth in this Agreement, to the fullest extent permitted by law, each Member shall not owe any duty (fiduciary or otherwise) to the Company or the other Members. No Member shall be liable under a judgment, decree, or order of a court, or in any other manner, for the debts or any other obligations or liabilities of the Company. A Member shall be liable only to make its Capital Contributions and shall not be required to restore a deficit balance in its Capital Account or to lend any funds to the Company, other than Business Support Capital Contributions pursuant to Section 5.2, or after its Capital Contributions have been made, to make any additional contributions, assessments, or payments to the Company; provided, that a Member may be required to repay distributions made to it in violation of this Agreement or the Act as provided in Section 18-607(b) of the Act; and provided, further, that a Member may incur certain indemnification obligations as set forth in Article XI.

4.6     Transactions Between a Member and the Company

Except as otherwise provided by applicable law, any Member may, but shall not be obligated to, lend money to the Company, act as surety for the Company and transact other business with the Company, and shall have the same rights and obligations when transacting business with the Company as a Person who is not a Member; provided, that the terms of any such transaction shall be comparable to those negotiated by unrelated parties on an arm’s-length basis and approved by the Board in accordance with Section 3.10. A Member, any Affiliate thereof, or an employee, stockholder, agent, director, manager, member, or officer of a Member or any Affiliate thereof, may also be an employee or be retained as an agent of the Company. Notwithstanding anything to the contrary, the existence of these relationships and acting in such capacities will not result in the Member being deemed to be participating in the control of the business of the Company or otherwise affect the limited liability of the Member.

4.7     Additional Members

Subject to compliance with the terms and conditions of this Agreement, the Company is authorized to admit any Person(s) as an additional Member(s) of the Company in connection with any issuance or Transfer in compliance with the terms of this Agreement (each, an “Additional Member” and collectively, the “Additional Members”). In accordance with the foregoing, the Board may issue (a) Units or other interests in the Company to an Additional Member in exchange for cash, property or services or any combination thereof, and (b) Units or other interests in the Company with rights and terms superior to the existing Units and interests in the Company; provided, in each of clause (a) and (b), such action is taken in accordance with Section 3.10 or as otherwise permitted under Article VIII, and the Members hereby consent and agree to any amendment to this Agreement to reflect such issuance and the admission of an Additional Member in accordance with the terms of this Agreement. Each such Person shall be admitted as an Additional Member at the time such Person (a) executes a signature page or joinder

22

agreement (in a form reasonably acceptable to the Board) agreeing to be bound by this Agreement, and (b) is designated as a Member on the books of the Company.

ARTICLE V
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS

5.1     Capital Contributions

Schedule A reflects the Capital Contributions to the Company by the Members as of the Effective Date.  Schedule A shall be amended from time to time to reflect any additional Capital Contributions to the Company by the Members or any Additional Members of the Company after the Effective Date, and any issuances of Units of the Company in respect thereof. Except as set forth in Section 5.2, no Member shall be required to contribute additional capital to the Company in excess of such Member’s Capital Contribution as shown on Schedule A.

5.2     Business Support Capital Contributions

(a)Without in any way limiting the authority of the Company to borrow funds from any Person, in the event that the Board determines in accordance with Section 3.10 that there is a need for additional Capital Contributions because the Excess Cash Flow is insufficient to enable the Company to fund (i) margin calls or other liabilities associated with the Company’s hedge, future or forward contracts, or any financial derivative contracts or (ii) costs or improvements necessary to operate or maintain the Business or assets of the Company in accordance with prudent industry practices or to comply with applicable legal requirements, then the Company shall request additional capital from the Members(a “Business Support Capital Contribution”) in accordance with this Section 5.2.

(b)Promptly following the determination of the Board in accordance with Section 3.10 that a Business Support Capital Contribution is required (a “Capital Call”), the Board shall issue a written notice of the Capital Call (a “Capital Call Notice”) to the Members specifying (i) that a Business Support Capital Contribution is needed, (ii) the amount of each Member’s pro rata share (based on its respective Percentage Interests) of the Business Support Capital Contribution, (iii) the purpose for which the Business Support Capital Contribution will be used and (iv) the date on which such Business Support Capital Contribution is due (the “Contribution Date”), which shall be not less than twenty-one (21) days from the Member’s receipt of the of the Capital Call Notice. Each Member may elect, but has no obligation, to make any Capital Contribution.If a Member (a “Non-Contributing Member”) fails to make any Business Support Capital Contribution in accordance with this Agreement in full on or before the Contribution Date, the other Members (each a “Contributing Member”) shall have the right, but not the obligation, to (i) lend the Company an amount equal to some or all of the Non-Contributing Member’s unpaid portion of the required Business Support Capital Contribution set forth in the Capital Call Notice (the “Shortfall Amount” and the portion of the Shortfall Amount a Contributing Member elects to contribute, if any, the “Additional Business Support Capital Contribution”). The election by a Contributing Member shall be made by written notice to the other Members within five (5) days after the Contribution Date. If a Contributing Member elects to make an Additional Business Support Capital Contribution, but fails to timely make such Additional Capital Contribution hereunder, the other Contributing Members, if any, shall have the right, but not the obligation, to

23

lend the Company an amount equal to some or all of such non-contributing Contributing Member’s unpaid portion of the Additional Business Support Capital Contribution.

(c)Each Business Support Capital Contribution (including any Additional Business Support Capital Contribution) shall be deemed a bridge loan to the Company and shall mature six (6) months from the Contribution Date (“Maturity Date”) and accrue interest quarterly at a rate equal to the greater of LIBOR plus 800 or 15.0% per annum (the “Interest Rate”) from the Contribution Date to the Maturity Date. Interest shall be paid automatically by having the outstanding principal amount of the Business Support Capital Contribution (including any Additional Business Support Capital Contribution) increase by the amount of accrued but unpaid interests on the first day of each quarter.

(d)If the amount of the Business Support Capital Contribution (including any Additional Business Support Capital Contribution) is not repaid in full by the Company to the Contributing Members by the Maturity Date, each Contributing Member shall elect, in a written notice to the Company, within fifteen (15) business days from the Maturity Date, to either (i) have the Company issue such Contributing Member a subordinated promissory note in the principal amount of the unpaid Business Support Capital Contribution (including any Additional Business Support Capital Contribution and including all accrued but unpaid interest) for such Contributing Member (the “Promissory Note”) or (ii) convert the unpaid amount of the Business Support Capital Contribution (including any Additional Business Support Capital Contribution and all accrued but unpaid interest) into Units at a price per Unit equal to the Book Value (as defined in the Purchase Agreement) less five percent (5%). In the event the Contributing Member elects to receive a Promissory Note, the Note shall accrue interest at the Interest Rate and the maturity date for the Promissory Note shall be six (6) months following the maturity of the Company’s Credit Agreement (as defined in the Purchase Agreement). In the event the Company wish to prepay the Promissory Note, in whole or in part, such prepayment shall be subject to a two percent (2%) penalty. The Company shall be required to repay all outstanding Business Support Capital Contributions (including any Additional Business Support Capital Contributions and all accrued but unpaid interest) as promptly as practicable ensuring compliance with any loan agreement, instrument or other agreement to which the Company is subject or by which it is bound.

5.3     Voluntary Capital Calls for Specific Transactions

To the extent the Company requires additional capital to fund specific transactions as may be approved by the Board from time to time or the Board otherwise approves by a Supermajority, the authorization or issuance of additional Units or equity interests in the Company (each a “Voluntary Capital Contributions”), each Member may make a pro rata Capital Contribution according to their Percentage Interest in the Company, which shall be added to their Capital Account; provided,  however, that no Member shall have any obligation to make any such Voluntary Capital Contribution. Upon consummation of the transaction, such participating Members shall be issued additional Units in the Company, and their Percentage Interests shall be adjusted accordingly, which issuance of additional Units and adjustment to their Percentage Interests shall be determined consistent with the methodology set forth in Schedule C. If the transaction does not close, the Voluntary Capital Contributions shall be returned to the Members. In the event a Member does not make their pro rata Voluntary Capital Contribution for such transaction, such Member’s Percentage Interest shall be appropriately adjusted to reflect the Percentage Interests of all Members (participating and non-participating)

24

following the consummation of such transaction consistent with the methodology set forth in Schedule C.

5.4     Status of Capital Contributions

Except as approved by the Board: (a) no part of the contributions of any Member to the capital of the Company may be withdrawn by any Member; (b) no Member shall be entitled to receive interest on such Member’s contributions to the capital of the Company; (c) no Member contributing cash to the Company shall have the right to demand or receive property other than cash in return for such Member’s contribution to the Company; and (d) no Member shall be entitled to contribute additional capital to the Company in excess of such Member’s Capital Contribution as shown on Schedule A except as otherwise set forth in this Agreement.

5.5     Capital Accounts

(a)There shall be established on the books and records of the Company a capital account (“Capital Account”) for each Member in accordance with Regulations Section 1.704-1(b)(2)(iv) and in accordance with the following provisions:

(i)To each Member’s Capital Account there shall be credited (A) such Member’s Capital Contributions, (B) such Member’s distributive share of Profits and any items in the nature of income or gain that are specially allocated pursuant to Section 6.3(b) or (c) hereof, and (C) the amount of any Company liabilities assumed by such Member or that are secured by any Property distributed to such Member.

(ii)To each Member’s Capital Account there shall be debited (A) the amount of money and the Gross Asset Value of any property distributed to such Member pursuant to any provision of this Agreement, (B) such Member’s distributive share of Losses and any items in the nature of expenses or losses that are specially allocated pursuant to Section 6.3(b) or (c) hereof, and (C) the amount of any liabilities of such Member assumed by the Company or that are secured by any Property contributed by such Member to the Company.

(b)In the event Units are Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the Transferred Units.

(c)In determining the amount of any liability for purposes of Section 5.5(a)(i) and (ii) above there shall be taken into account Section 752(c) of the Code and any other applicable provisions of the Code and Regulations.

(d)The foregoing provisions of this Section 5.5 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulation Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations. In the event the Board determines that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, without limitation, debits or credits relating to liabilities that are secured by contributed or distributed property or that are

25

assumed by the Company or any Members), the Board may make such modification, provided that it is not likely to have a material effect on the amounts distributed to any Person pursuant to Section 10.1 hereof upon the dissolution of the Company. The Board also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q) and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b).

5.6     New Units

For avoidance of doubt, notwithstanding anything to the contrary in this Agreement, the Company may only issue new Units or other equity interests in the Company subject to approval by a Supermajority in accordance with the terms set forth in Section 5.2 and 5.3.

ARTICLE VI
DISTRIBUTIONS AND ALLOCATIONS

6.1     Excess Cash Flow Distributions

Subject to the prior payment of Tax Distributions pursuant to Section 6.2 and compliance with any loan agreement, instrument or other agreement to which the Company is subject or by which it is bound, the Company shall distribute 95% of any Excess Cash Flow as follows:

(a)if there is a Green Plains Bonus Amount and/or Green Plains Basis Amount, Green Plains shall be entitled to receive from the Company, prior to any distribution to the other members of the Company, an amount equal to the Green Plains Bonus Amount and/or Green Plains Basis Amount at such time as the Company declares and pays a distribution pursuant to this Section 6.1;

(b)if there is a Buyer Bonus Amount or Buyer Basis Amount, the Buyers shall be entitled to receive from the Company, prior to any distribution to the other members of the Company, an amount equal to the Buyers Bonus Amount and/or Buyer Basis Amount at such time as the Company declares and pays a distribution pursuant to this Section 6.1;

(c)upon satisfaction of Section 6.1(a) and Section 6.1(b), as applicable, the Company shall distribute any remaining Excess Cash Flow (i) first to the Members, pro rata in accordance with unreturned Capital Contributions, until each Member has received pursuant to this Section 6.1(c) an aggregate amount equal to the aggregate amount of the Capital Contributions made by such Member in respect of its Units and (ii) second, to all Members on a pro rata, pari passu basis based on their respective Percentage Interests in the Company.

Such distributions shall be made within sixty (60) days after the end of each calendar quarter. For purposes of this section, “Excess Cash Flow” shall mean EBITDA less mandatory senior debt amortization, cash interest, planned maintenance capital expenditures, Tax Distributions and other capital expenditures approved by the Board.

6.2     Tax Distributions

Prior to making any distributions under Section 6.1, the Board shall use its best efforts to cause the Company to make quarterly cash distributions (each, a “Tax Distribution”) no later than fifteen (15) days prior to the quarterly payment deadline for U.S. federal income taxes for corporations (with the first Tax Distribution after the Effective Date to

26

occur no later than November 30, 2019). The Tax Distribution to each Member shall be in an amount equal to the excess of (a) the Assumed Tax Rate multiplied by the taxable income allocated (or estimated to be allocated) by the Company to such Member in respect of such Fiscal Year (excluding, for the avoidance of doubt, any income allocated as a result of any guaranteed payments in respect of services, and determined by taking into account any taxable losses or deductions from prior periods allocated to such Member (or such Member’s predecessor in interest) to the extent not taken into account as a reduction in taxable income hereunder in prior periods) and determined without taking into account any special basis adjustment with respect to such Member pursuant to Section 743(b) of the Code or special allocations under Section 704(c) of the Code) over (b) the sum (with duplication) of all other amounts previously distributed to such Member in the Fiscal Year in which the taxable income arose (excluding distributions made to the Members constituting a return of capital) and any Tax Distributions previously made to such Member for all periods. If the aggregate Tax Distributions made to a Member in respect to any Fiscal Year based on estimated allocations of taxable income is greater or lesser than the Tax Distributions due to such Member for such Fiscal Year pursuant to this provision, as finally determined, appropriate adjustments shall be made to the amounts of the next subsequent Tax Distributions due to such Member or, if necessary, distributions due to such Member pursuant to Section 6.1. The amount distributed to a Member pursuant to this Section 6.2 shall be treated as an advance against future distributions payable to such Member pursuant to (or by reason of) Section 6.1.

6.3     Allocations of Profits and Losses

(a)After taking into account the special allocations set forth in Section 6.3(c), and subject to Section 6.3(b), the Profits and Losses for each Allocation Year shall be allocated among the Members in proportion to their respective Percentage Interests.

(b)To the extent that any allocation of Losses would cause or increase a deficit balance in a Member’s Adjusted Capital Account, such portions of such Losses instead shall be reallocated to the other Members with positive Adjusted Capital Account balances pro rata until their Adjusted Capital Accounts are reduced to zero, and any remaining Losses shall be allocated to each Member in accordance with Section 6.3(a) of this Agreement notwithstanding this Section 6.3(b).

(c)The following special allocations shall be made in the following order:

(i)Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(f), notwithstanding any other provision of this Section 6.3, if there is a net decrease in Company Minimum Gain during any Allocation Year, each Member shall be specially allocated items of Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and

27

1.704-2(j)(2). This Section 6.3(c)(i) is intended to comply with the minimum gain chargeback requirement in Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.

(ii)Member Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(i)(4), notwithstanding any other provision of this Section 6.3, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Allocation Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.3(c)(ii) is intended to comply with the minimum gain chargeback requirement in Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(iii)Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), Section 1.704-1(b)(2)(ii)(d)(5), or Section 1.704-1(b)(2)(ii)(d)(6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, any deficit in a Member’s Adjusted Capital Account as quickly as possible, provided that an allocation pursuant to this Section 6.3(c)(iii) shall be made only if and to the extent that the Member would have a deficit in the Member’s Adjusted Capital Account after all other allocations provided for in this Section 6.3 have been tentatively made as if this Section 6.3(c)(iii) were not in this Agreement.

(iv)Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Allocation Year that is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided that an allocation pursuant to this Section 6.3(c)(iv) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Section 6.3 have been made as if Section 6.3(c)(iii) and (iv) were not in this Agreement.

28

(v)Nonrecourse Deductions. Nonrecourse Deductions for any Allocation Year shall be specially allocated to the Members in proportion to the number of Units held by such Member or in accordance with such Member’s interest in the Company, as reasonably determined by the Board.

(vi)Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Allocation Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Regulations Section 1.704-2(i)(1).

(vii)Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset, pursuant to Code Section 734(b) or Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such Member’s interest in the Company, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in accordance with their interests in the Company in the event Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

(d)The allocations set forth in Section 6.3(c) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss, or deduction pursuant to this Section 6.3(d). Therefore, notwithstanding any other provision of this Section 6.3 (other than the Regulatory Allocations), the Board shall make such offsetting special allocations of Company income, gain, loss, or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Agreement and all Company items were allocated pursuant to Section 6.3(a). In exercising its discretion under this Section 6.3(d), the Board shall take into account future Regulatory Allocations under Sections 6.3(c)(i) and (ii) that, although not yet made, are likely to offset other Regulatory Allocations previously made under Sections 6.3(c)(v) and (vi).

6.4     Income Tax Allocations

(a)Each item of income, gain, loss or deduction recognized by the Company shall be allocated among the Members for U.S. federal, state and local income tax purposes in the same manner that each such item is allocated for book purposes under Section 6.3. All matters concerning allocations for U.S. federal, state and local and non-U.S. income tax purposes, including accounting procedures, not expressly provided for by the terms of this Agreement shall be determined by the Board.

29

(b)In accordance with Section 704(c) of the Code and the Regulations thereunder, income, gain, loss and deduction with respect to any Property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such Property to the Company for U.S. federal income tax purposes and its initial Gross Asset Value, using the “traditional method with curative allocations” under Regulation Section 1.704-3(c). In the event the Gross Asset Value of any Company asset is adjusted pursuant to this Agreement, subsequent allocations of income, gain, loss and deduction with respect to such Company asset shall take account of any variation between the adjusted basis of such Company asset for U.S. federal income tax purposes and its Gross Asset Value in the same manner of under Section 704(c) of the Code and the Regulations hereunder, using the “traditional method with curative allocations” under Regulation Section 1.704-3(c).

(c)The Members recognize that there may be a difference between the Book Value of a Company asset and the asset’s adjusted tax basis at the time of the property’s contribution or revaluation pursuant to this Agreement. In such a case, all items of tax depreciation, cost recovery, amortization, and gain or loss with respect to such asset shall be allocated among the Members to take into account the disparities between the Book Values and the adjusted tax basis with respect to such properties in accordance with the provisions of Sections 704(b) and 704(c) of the Code and the Regulations under those sections as determined by the Board; provided that, the “traditional method with curative allocations” under Regulation Section 1.704-3(c) shall be used to eliminate the disparity between the Book Values and the adjusted tax basis in the assets treated as owned by the Company.

(d)Without altering the overall amount of Profits or gross income allocable to any Member, Profits or gross income taxable as ordinary income under Sections 1245 and 1250 of the Code, or similar provisions of the Code (the “Depreciation Recapture”), shall, to the extent possible, be allocated to those Members to whom allowances for depreciation or amortization giving rise to Depreciation Recapture were allocated.

6.5     Compliance with the Act

Notwithstanding any other provision of this Agreement, distributions shall be made only in compliance with the Act.

6.6     Final Distribution

The final distributions following dissolution of the Company shall be made in accordance with the provisions of Article X.

6.7     Negative Capital Accounts

No Member shall have any liability or obligation to the Company, the other Members or any creditor of the Company to restore at any time any deficit balance in such Member’s Capital Account.

6.8   No Withdrawal of Capital

Except as otherwise expressly provided herein, no Member shall have the right to withdraw capital from the Company or to receive any distribution of or return on or of such Member’s Capital Contributions

6.9First Year Special Allocation

(a)First Year Special Gross Income Allocation to Green Plains. Notwithstanding Section 6.3(a), with respect to the tax year(s) in which any Green Plains Bonus Amount is distributed, Green Plains shall be allocated gross income in an amount (the “Green Plains Bonus

30

Amount”) equal to fifty percent (50%) of the excess (if any) of the Bonus EBITDA over the Upper Threshold of EBITDA; provided,  however, that in no event shall the Green Plains Bonus Amount exceed $2,000,000.

(b)First Year Special Gross Income Allocation to Buyers. Notwithstanding Section 6.3(a), with respect to the tax year(s) in which any Buyers Bonus Amount is distributed, Buyer shall be allocated gross income in an amount (the “Buyers Bonus Amount”) equal to fifty percent (50%) of the excess (if any) of the Lower Threshold of EBITDA over the Bonus EBITDA;provided,  however, that in no event shall the Buyers Bonus Amount exceed $2,000,000.

(c)Bonus-Related Definitions.  

(i)“Bonus EBITDA” means the Company’s cumulative monthly EBITDA during the Measurement Period as finally determined pursuant to this Section 6.9.

(ii)“EBITDA” means, for any period, an amount equal to the sum of net income plus, without duplication, to the extent it reduced net income, (i) interest charges from Indebtedness (as defined in the Purchase Agreement), (ii) income tax expenses, and (iii) depreciation and amortization of tangible and intangible assets. All amounts used to calculate EBITDA shall be consistent with the Company’s past practices and, to the extent applicable, be in accordance with GAAP.

(iii)“Lower Threshold of EBITDA” means an amount equal to $44,000,000.

(iv)“Measurement Period” means twelve (12) month period beginning on September 1, 2019.

(v)“Upper Threshold of EBITDA” means an amount equal to $52,000,000.

An illustrative example of the calculation of the bonus contemplated pursuant to this Section 6.9 is attached hereto as Schedule D.

(d)Bonus Statement. Within twenty (20) business days following the end of the Measurement Period, the Buyers shall prepare and deliver, or cause to be prepared and delivered, to Green Plains, a written statement setting forth the Buyers’ calculation of the Bonus EBITDA, prepared in accordance with GAAP and the formula set forth in Schedule D (the “Bonus Statement”). Unless Green Plains notifies the Buyers in writing (the “Bonus Dispute Notice”) within fifteen (15) business days after receipt by Green Plains of the Bonus Statement (the “Bonus Dispute Notification Period”) of any objections thereto (specifying in reasonable detail the objections thereto together with the basis for such dispute), such Bonus Statement shall be final and binding for all purposes. If Green Plains timely notifies the Buyers of any such objection, the Buyers and Green Plains shall attempt in good faith to reach an agreement as to the matter in dispute. If the Buyers and Green Plains shall have failed to resolve any such dispute within ten (10) business days after receipt of timely notice of such objection (or such longer period mutually agreed to by the Buyers and Green Plains), then such dispute matter shall be submitted to and determined by the Independent Accounting Firm subject to the procedures and provisions of

31

Section 2.4 of the Purchase Agreement, and the Independent Accounting Firm will be instructed to determine the amounts in dispute within twenty (20) business days after such referral.

6.10Basis Allocation

(a)Basis Allocation to Green Plains. Notwithstanding Section 6.3(a), with respect to the tax year(s) in which any Green Plains Basis Amount is distributed, in the event the Bonus EBITDA is greater than $56,000,000, Green Plains shall be allocated gross income in an amount (the “Green Plains Basis Amount”) equal to the excess of Actual Cattle Basis over the Upper Threshold of Forecast Cattle Basis; provided,  however, that in no event shall the Green Plains Basis Amount exceed $5,000,000.

(b)Basis Allocation to Buyers. Notwithstanding Section 6.3(a), with respect to the tax year(s) in which any Buyers Basis Amount is distributed, in the event the Bonus EBITDA is less than $40,000,000 Buyers shall be allocated gross income in an amount (the “Buyers Basis Amount”) equal to the excess of Lower Threshold of Cattle Basis over the Actual Cattle Basis; provided,  however, that in no event shall the Buyer Basis Amount exceed $5,000,000.

(c)Basis Allocation-Related Definitions.  

(i)“Basis Measurement Period” means the six (6) month period beginning on September 1, 2019.

(ii)“Actual Cattle Basis” shall mean the Company’s cattle basis profit or loss during the Basis Measurement Period.

(iii)“Lower Threshold of Forecast Cattle Basis” means an amount equal to eighty five percent (85%) of the Company’s forecast cattle basis profit or loss.

(iv)“Upper Threshold of Forecast Cattle Basis” means an amount equal to one hundred fifteen percent (115%) of the Company’s forecast cattle basis profit or loss.

An illustrative example of the calculation of the basis allocation contemplated pursuant to this Section 6.10 is attached hereto as Schedule E.

(d)Basis Allocation Statement. Within twenty (20) business days following the end of the Basis Measurement Period, the Buyers shall prepare and deliver, or cause to be prepared and delivered, to Green Plains, a written statement setting forth the Buyers’ calculation of the Actual Cattle Basis, prepared in accordance with the formula set forth in Schedule E (the “Basis Earnout Statement”). Unless Green Plains notifies the Buyers in writing (the “Basis Earnout Dispute Notice”) within fifteen (15) business days after receipt by Green Plains of the Basis Earnout Statement (the “Basis Earnout Dispute Notification Period”) of any objections thereto (specifying in reasonable detail the objections thereto together with the basis for such dispute), such Basis Earnout Statement shall be final and binding for all purposes. If Green Plains timely notifies the Buyers of any such objection, the Buyers and Green Plains shall attempt in good faith to reach an agreement as to the matter in dispute. If the Buyers and Green Plains shall have failed to resolve

32

any such dispute within ten (10) business days after receipt of timely notice of such objection (or such longer period mutually agreed to by the Buyers and Green Plains), then such dispute matter shall be submitted to and determined by the Independent Accounting Firm subject to the procedures and provisions of Section 2.4 of the Purchase Agreement, and the Independent Accounting Firm will be instructed to determine the amounts in dispute within twenty (20) business days after such referral.

(e)Waiver of Basis Allocation. Notwithstanding anything to the contrary in this Agreement, if, in the Board’s discretion, abnormal adverse weather conditions affected the Actual Cattle Basis, the Board may, upon approval by a Supermajority, elect to waive all or a portion of any payment of the Green Plains Basis Amount or of the Buyers Basis Amount that would otherwise be required under this Section 6.10.

ARTICLE VII
TAX MATTERS

7.1     Partnership Representative

Green Plains is hereby appointed the partnership representative of the Company, within the meaning of Section 6223(a) of the Code (the “Partnership Representative”), and the Partnership Representative may appoint a designated individual pursuant to Regulation Section 301.6223-1(b)(3) (or any successor regulation). Each Member hereby consents to such designations and agrees that upon the request of the Partnership Representative, such Member will execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or appropriate to evidence such consent. The Partnership Representative, and any individual designated by the Partnership Representative, shall act at the direction of the Board regarding the conduct of any Internal Revenue Service audit, investigation, or other procedure, the entrance into any settlement agreement with the Internal Revenue Service, the extension of the statute of limitations with respect to the Company, and any other similar matters, including any other decisions, determinations or actions described in this Section 7.1. If the Partnership Representative decides to have the Members file amended tax returns pursuant to Section 6225(c)(2)(A) of the Code or apply the alternative procedure to filing amended returns under Section 6225(c)(2)(B) of the Code, all Members shall timely comply with any such requirements. Each Member (including a former Member if such Person is not a Member on the date the imputed underpayment is assessed against the Company) shall be liable for and, promptly upon demand by the Partnership Representative, pay to the Company such Member’s share (as reasonably determined by the Partnership Representative) of any imputed underpayment of tax and any interest and penalties relating thereto imposed on the Company as a result of any partnership adjustment or other proceeding with substantially similar effect. To the extent that a portion of the tax liabilities imposed under Sections 6221(a) and 6225 of the Code relates to a former Member, the Partnership Representative may require such former Member to indemnify the Company for such former Member’s allocable portion of such tax liabilities. The Company shall indemnify and reimburse the Partnership Representative and its designated individual for all reasonable third-party expenses incurred as the Partnership Representative pursuant to this Section 7.1 in performing its duties (including any third-party expenses incurred by the Partnership Representative in connection with an audit of the Company’s tax return). The provisions of this Section 7.1 shall survive the termination of the Company or the termination or transfer of any Member’s Units and shall remain binding on the

33

Members for as long a period of time as is necessary to resolve with the Internal Revenue Service any and all matters regarding the U.S. federal income taxation of the Company or the Members.

7.2     Tax Returns

The Company shall use commercially reasonable efforts to send within ninety (90) days after the end of each taxable year (or as soon as reasonably practicable thereafter) to each Person that was a Member at any time during such year copies of Schedule K‑1, “Partner’s Share of Income, Credits, Deductions, Etc.”, or any successor schedule or form, with respect to such Person, together with such additional information as may be necessary for such Person to file his, her or its U.S. federal income tax returns. The determinations of the Board with respect to the treatment of any item or its allocation for U.S. federal, state or local tax purposes will be binding upon all of the Members so long as such determination is not inconsistent with any express term hereof.

7.3     Withholding

(a)Each Member shall, to the fullest extent permitted by applicable Law, indemnify and hold harmless each Person who is or who is deemed to be the responsible withholding agent for U.S. federal, state or local income tax purposes against all claims, liabilities and expenses of whatever nature (but, in each case, excluding any penalties and accrued interest that results from such Person’s fraud, willful misfeasance, bad faith or gross negligence) solely relating to such Person’s obligation to withhold and to pay over any U.S. federal, state, or local income taxes imposed on such Member and the employee’s share of social security, Medicare, and federal unemployment taxes imposed on such Member, in each case, under this Agreement or an Award Agreement or otherwise related to such Member’s Units.

(b)Notwithstanding any provision to the contrary contained in this Agreement, (i) each Member hereby authorizes the Company to withhold and to pay over, or otherwise pay, any withholding or other taxes payable by the Company or any of its Affiliates with respect to such Member, in its capacity as such, or as a result of such Member’s participation in the Company and (ii) if and to the extent that the Company shall be required to withhold or pay any such taxes (including any amounts withheld from amounts payable to the Company to the extent attributable, in the judgment of the Board, to such Member’s Units), such Member shall be deemed for all purposes of this Agreement to have received a payment from the Company as of the time such withholding or tax is required to be paid, which payment shall be deemed to be a distribution with respect to such Member’s Units to the extent that the Member (or any successor to such Member’s Units) is then entitled to receive a distribution. To the extent that the aggregate of such payments to a Member for any period exceeds the distributions to which such Member is entitled for such period, such Member shall make a prompt payment to the Company of such amount.

(c)If the Company makes a distribution in kind and such distribution is subject to withholding or other taxes payable by the Company on behalf of any Member, such Member shall make a prompt payment to the Company of the amount of such withholding or other taxes by wire transfer.

(d)The provisions of this Section 7.3 shall survive the dissolution, winding up and termination of the Company.

34

7.4     Fiscal Year

The “Fiscal Year” of the Company shall be the calendar year or such other fiscal year as may be designated by the Board or required under the Code.

ARTICLE VIII
TRANSFER OF UNITS

8.1     Transfer Restrictions

No Member may Transfer all or any part of its Units unless such Transfer is a Transfer described in Section 8.2 or a Permitted Transfer as described in Section 8.3. If a Member Transfers or attempts to Transfer all or any part of its Units in violation of this Agreement, such Transfer shall be null and void and of no force or effect whatever, and the parties engaging or attempting to engage in such Transfer shall be liable to indemnify and hold harmless the Company and the other Members from all cost, liability and damage that any of such indemnified Members may incur (including, without limitation, incremental tax liabilities, attorneys’ fees and expenses) as a result of such Transfer or attempted Transfer and efforts to enforce the indemnity granted hereby. Notwithstanding anything to the contrary herein, in no event shall any Transfer of Units be permitted if it would cause the Company to be treated as a publicly traded partnership within the meaning of Section 7704(b) of the Code.

8.2      Transfers

A Member shall be permitted to sell, assign, transfer, exchange, distribute, devise, gift, grant a lien on, encumber or otherwise dispose of such Member’s Units (each such action, a “Transfer”), only if (a) the Transfer occurs no earlier than five (5) years following the Effective Date (or the date the Transferring Member became a Member of the Company, if after the Effective Date) and the Transferring Member complies with the requirements under Sections 8.4,  8.5,  and 8.6hereunder, in which case no prior approval of the Board shall be required; (b) Green Plains is the Transferring Member and is selling a portion of its Units prior to the five (5) year anniversary following the Effective Date;  provided, that Green Plains, individually or together with its Affiliates, continues to own at least 25% of the Units of the Company on a fully diluted basis, it complies with the requirements of Section 8.6 hereunder, and if the Transfer is to a third party, such Transfer is unanimously approved by the Board; or (c) such Transfer is a Permitted Transfer as defined in Section 8.3. If such Transfer is allowed under this Section 8.2, the Transferring Member must provide prior written notice of such Transfer to the Company, and any transferee of a Transfer described in this Section 8.2 must deliver an executed signature page or joinder agreement (in form reasonably satisfactory to the Board) to this Agreement, prior to its becoming a Member hereunder.

8.3     Permitted Transfers

As used in this Agreement, the term “Permitted Transfer” means: (a) a Transfer of all or any portion of a Member’s Units to any other Member, (b) a Transfer of all or any portion of a Member’s Units to (i) any Affiliate of such Member, or (ii) a spouse, parent, sibling, child, or grandchild of such Member, or to a trust for the benefit of such Member or such spouse, parent, sibling, child, or grandchild of such Member by inter vivos gift or by testamentary Transfer, or a Transfer of all or any portion of a Member’s Unit to any Person approved by the Board in accordance with Section 3.10(r). The Transferring Member must provide prior written notice of such Permitted Transfer to the Company, and any transferee of a Permitted Transfer described in this Section 8.3 (each, a “Permitted Transferee”) must deliver an executed signature page or joinder agreement (in form reasonably satisfactory to the Board) to this Agreement, prior to its becoming a Member hereunder. For the avoidance of doubt, Permitted Transfers shall not be

35

subject to the obligations of, and the Transferring Member shall not be required to comply with the requirements, set forth in Sections 8.4,  8.5,  and 8.6 hereunder.

8.4     Mutual Exit Right

(a)Notwithstanding anything to the contrary in this Agreement, at any time on or after the date that is five (5) years from the Closing Date (or the date the Transferring Member became a Member of the Company, if after the Effective Date a Member (the “Selling Member”) shall have the right to sell any or all of its Units (the “Transfer Units”); provided, however, that prior to selling its Units, the Selling Member shall give written notice thereof to the other Members (the “Non-Selling Members”) of its intent to sell its Units (the “Transfer Notice”). Upon receipt of the Transfer Notice, the Non-Selling Members shall each have the right and option, but not an obligation, to purchase up to such Non-Selling Member’s pro rata portion (based upon the total number of Units held by all Members) of all or any portion of the Transfer Units (the “Right of First Purchase”) at a purchase price calculated in accordance with the following terms:

(i)if upon the consummation of the sale of such Units, the Selling Member would receive an IRR (excluding Tax Distributions) of 12% or greater, then the purchase price for the Units payable by the Non-Selling Members shall be the net Book Value; or

(ii)if upon the consummation of the sale of such Units, the Selling Member would receive an IRR (excluding Tax Distributions) of less than 12%, then the purchase price for the Units payable by the Non-Selling Members shall be the greater of the Selling Member’s net Book Value or the Selling Member’s pro-rata value of $230 per head of capacity plus such Selling Member’s pro-rata contributed working capital equity of the Selling Member’s Units.

(b)To exercise the Right of First Purchase, each Non-Selling Member electing to exercise its Right of First Purchase (each an “Exercising Member”) must deliver written notice (the “Exercise Notice”) to the Selling Member and the Company within thirty (30) days following the delivery of the Transfer Notice (“Exercise Period”). 

(c)In the event that the Right of First Purchase has been exercised by the Exercising Members with respect to some, but not all of, the Transfer Units by the end of Exercise Period, then the Selling Member shall, immediately after the expiration of the Exercise Period, send written notice (the “Undersubscription Notice”) to those Exercising Members who fully and timely exercised their Right of First Purchase within the Exercise Period (the “Fully Exercising Member”). Each Fully Exercising Member shall, subject to the provisions of this Section 8.4(c)have the additional right and option, but not an obligation (the “Secondary Purchase Right”), to purchase all or any part of the balance of any remaining Transfer Units (the “Remaining Units”). To exercise such Secondary Purchase Right, a Fully Exercising Member must deliver written notice that such Fully Exercising Member intends to exercise its Secondary Purchase Rightto the Selling Member and the Company within ten (10) days after the expiration of the Exercise Period. In the event there are two (2) or more such Fully Exercising Members that choose to exercise the Secondary Purchase Right for a total number of Remaining Units in excess of the number

36

available, the Remaining Units available for purchase under this Section 8.4(c)shall be allocated to such Fully Exercising Members pro rata based on the number of Transfer Units such Exercising Members have elected to purchase pursuant to the Right of First Purchase (without giving effect to any Transfer Units that any such Fully Exercising Member has elected to purchase pursuant to the Secondary Purchase Right). If the Right of First Purchase and Secondary Purchase Right are exercised in full by the Exercising Members, the Selling Member shall immediately notify all of the Exercising Members and the Company of that fact.

(d)In the event that the Right of First Purchase or the Secondary Purchase Right has been exercised by any Non-Selling Members pursuant to this Section 8.4, the Selling Member shall sell such Transfer Units to the Exercising Members and the parties shall expeditiously enter into definitive documentation for such sale, and at the closing, the Selling Member shall deliver the Transfer Units free and clear of all encumbrances (other than permitted encumbrances to be released on the closing date and encumbrances imposed by this Agreement) duly endorsed, or accompanied by written instruments of transfer duly executed by the Selling Member, and the Selling Member shall only be required to provide customary representations and warranties with respect to (i) power, authority and legal right, (ii) no violations, (iii) no conflicts, (iv) sole beneficial and record ownership of such Transfer Units, and (v) enforceability.

(e)If the Non-Selling Members fail to agree to purchase all of the Transfer Units within the applicable time periods set forth above, the Selling Member may initiate a sale of such remaining Transfer Units, and shall be entitled to consummate the sale of such remaining Transfer Units (the “Unit Transfer”), to any prospective third party purchaser for a period of one hundred eighty (180) days after the date of the Transfer Notice. In the event that the Selling Member fails to consummate the Unit Transfer for such remaining Transfer Units within such 180-day period, the Selling Member may not sell such any of such Transfer Units unless they first comply in full with the provisions of this Section 8.4.

(f)In connection with any negotiation of any Unit Transfer, upon the reasonable request of the Selling Member, the Company agrees to use commercially reasonable efforts to provide the Selling Member or a prospective third party purchaser with such information relating to the Company as reasonably requested by the Selling Member which information shall be limited to information that is customarily requested in connection with a prospective purchaser’s diligence of a proposed equity purchase; provided, however, the Company shall have the right to require that any such prospective third party purchaser enter into a non-disclosure agreement with the Company in a form deemed satisfactory to the Company in its sole and absolute discretion; provided, further, the Company shall not be required to provide any such information (i) to a prospective third party purchaser that the Board deems to be a competitor of the Company, (ii) if the requested information is determined by the Board to constitute a non-customary request or (iii) the Board determines is constitutes highly confidential proprietary information.

(g)For the avoidance of doubt and notwithstanding anything contained in this Agreement to the contrary, the provisions of this Section 8.4 shall not apply to either (i) Permitted Transfers, or (ii) in the event that the Selling Member is Green Plains, so long as Green Plains, individually or together with its Affiliates, continues to own at least 25% of the Units of the Company on a fully diluted basis.

37

8.5     Drag Along Rights

(a)In the event of (1) a Unit Transfer by a Selling Member to a third party purchaser pursuant to Section 8.4(e) or (2) a Unit Transfer by Green Plains to a third party purchaser which results in Green Plains, individually or together with its Affiliates, owning less than 25% of the Units of the Company on a fully diluted basis, the Selling Member pursuant to (1) or the Non-Selling Members (which, for avoidance of doubt, excludes Green Plains), upon a majority vote among such Non-Selling Members, pursuant to (2) (collectively, the “Dragging Member”), may require all other Members to sell all of their Units in such Unit Transfer on the same terms and conditions as the Dragging Member (a “Drag-Along Transaction”); provided,  however, that the purchase price for each Dragging Member’s Unit in such Drag-Along Transaction must exceed the greater of (x) net Book Value of such Dragging Member’s Percentage Interests or (y) the Dragging Member’s pro rata value of $230 per head of capacity plus such Dragging Member’s pro-rata contributed working capital equity of the Dragging Member’s Units (the “Threshold Purchase Price”). For the avoidance of doubt, if the purchase price for such Dragging Member’s Units in connection with the Drag-Along Transaction does not exceed the Threshold Purchase Price, then no Member shall have any rights under this Section 8.5 to require the sale of any other Member’s Units. The Company and each of the Members hereby agrees, in the event of any Drag-Along Transaction in accordance with this Section 8.5,  (i) that it hereby waives, to the extent permitted by applicable law, all applicable appraisal rights and rights to object to or dissent from such Drag-Along Transaction; (ii) that it will raise no objections against such Drag-Along Transaction; (iii) that, to the extent any vote of Members is required, it will vote its respective Units to approve such Drag-Along Transaction and the terms of any such Drag-Along Transaction and any matters ancillary thereto (including any conversion or exchange of Units for Units of capital stock of a corporation), all to the extent necessary to effect such Drag-Along Transaction; (iv) to cooperate fully with the Company and the Dragging Member(s) in any Drag-Along Transaction and not to take any action prejudicial to or inconsistent with such Drag-Along Transaction, including without limitation providing access to and answering questions of the buyer and its representatives in connection with Drag-Along Transaction; (v) to execute any and all agreements and instruments required by the buyer in order to effectuate such Drag-Along Transaction; and (vi) that each Member will deliver, upon request, an executed instrument of transfer with respect to their Units in escrow (pending receipt of the purchase price therefor) to counsel designated by the Company.

(b)In any agreement for a Drag-Along Transaction, (i) each Member shall not be required to make any representations, warranties or covenants in its individual capacity, other than customary representations and warranties with respect to (A) power, authority and legal right, (B) no violations, (C) no conflicts, (D) sole beneficial and record ownership of its Units, and (E) enforceability; and (ii) any indemnities by the Members in their individual capacities (as opposed to any indemnification obligations of the Company) shall be made by each Member severally and not jointly and the liabilities thereunder are to be borne by the Members on a pro rata basis based on the Percentage Interest of each Member. Each Member will be responsible for such Member’s own out-of-pocket fees and expenses incurred in connection with a Drag-Along Transaction.

(c)The rights set forth in this Section 8.5 shall be exercised by the Dragging Member(s) by giving written notice (the “Drag-Along Notice”) to each other Member, at least thirty (30) days prior to the date on which the Dragging Member(s) expects to consummate the

38

Drag-Along Transaction. Each Drag-Along Notice shall set forth at least: (i) the name and address of the proposed purchaser (the “Drag-Along Transferee”) in the Drag-Along Transaction, (ii) the proposed amount and form of consideration and terms and conditions of payment offered by the Drag-Along Transferee, and (iii) the other material terms of the proposed Drag-Along Transaction, including the expected closing date of the proposed Drag-Along Transaction. All information concerning a proposed Drag-Along Transaction shall be deemed to be Confidential Information.

(d)For the avoidance of doubt and notwithstanding anything contained in this Agreement to the contrary, the provisions of this Section 8.5 shall not apply to Permitted Transfers.

8.6     Tag-Along Rights

(a)Notwithstanding anything to the contrary in this Agreement, if (i) any Member should Transfer all or a portion of its Units to a third party (provided such Transfer is otherwise in compliance with this Agreement) other than in connection with a Permitted Transfer, or (ii) such Transfer is a Transfer described in Section 8.2(a), at least thirty (30) days prior to such Transfer (such Member so Transferring is referred to herein as the “Initiating Member”) and such Initiating Member does not exercise its rights pursuant to Section 8.5, the Initiating Member shall deliver a written notice (the “Sale Notice”) to the Company and to all other Members (the “Other Members”), specifying in reasonable detail the number of Units proposed to be Transferred and the price and other terms and conditions of the Transfer. Each Other Member shall have the right, by notifying the Initiating Member in writing within ten (10) business days after receipt of the Sale Notice, to sell a number of Units equal to the product of (A) the quotient determined by dividing the number of Units owned by such Person by the aggregate number of Units owned by the Initiating Member and the Other Members participating in such sale (each calculated on a fully diluted basis) and (B) the number of Units to be sold in the contemplated Transfer. The failure of such Other Member to deliver such notice shall be deemed a waiver of rights by such Other Member under this Section 8.6 with respect to such Transfer. If no Other Member has elected to participate in the contemplated Transfer (through notice to such effect or expiration of the ten (10) business day period after delivery of the Sale Notice), then the Initiating Member, provided that it has complied with this Section 8.6 may, during the 180-day period immediately following the expiration of the ten (10) business day period after delivery of the Sale Notice, Transfer the Units specified in the Sale Notice at a price equal to or greater than, and on terms and conditions not materially less favorable in the aggregate to the Transferee(s) thereof, than specified in the Sale Notice. Any Units identified in the Sale Notice but not Transferred within such 180-day period shall be subject to the provisions of this Section 8.6 upon subsequent Transfer.

(b)The Initiating Member shall not Transfer any of its Units to any prospective Transferee if such prospective Transferee(s) declines to allow the participation of the Other Members who have elected to participate in such Transfer in accordance with Section 8.6(a) above, unless the Initiating Member or its designee acquires the Units that otherwise would have been sold in such Transfer for the price and on the terms that such Other Member would have been entitled to receive had such Other Member(s) sold the Units such Member was entitled to sell in such Transfer. Each Member Transferring Units pursuant to this Section 8.6 (including in respect of the Transfer to the Initiating Member or its designees referenced in the immediately foregoing sentence) shall pay its proportionate share (based upon proceeds received) of the out-of-pocket expenses incurred by the Members in connection with such Transfer and shall be obligated to join

39

on a several (not joint) and pro rata basis (based upon and limited to the proceeds received) in any indemnification or other obligations that the Initiating Member agrees to provide in connection with such Transfer (other than any such obligations that relate specifically to a particular Member such as indemnification with respect to representations and warranties given by a Member regarding such Member’s title to and ownership of Units).

(c)Each Other Member agrees to execute and deliver any other documentation reasonably required to consummate the Transfer pursuant to this Section 8.6. Notwithstanding the foregoing, if any Other Member electing to participate in such Transfer does not agree to execute and deliver or does not execute and deliver any documentation required by this Section 8.6 or otherwise reasonably requested by the Initiating Member or the buyer in connection with the Transfer, such Other Member shall not be entitled to participate in the proposed Transfer.

ARTICLE IX
BANKING; ACCOUNTING; INFORMATION RIGHTS

9.1     Banking

The funds of the Company shall be maintained in one or more separate bank, brokerage or money market accounts in the name of the Company, and shall not be commingled in any fashion with the funds of any other Person. The Company is authorized to utilize a business management service approved by the Board for the Company’s cash management needs.

9.2     Maintenance of Books and Records; Accounts and Accounting Method

The Company shall keep full and accurate accounts of the transactions of the Company in accordance with GAAP, in proper books and records of account which shall set forth all information required by the Act. Such books and records shall be available, upon ten (10) days’ notice to the Company, for inspection and copying at reasonable times during business hours by a Member or its duly authorized agents or representatives for any purpose reasonably related to such Member’s interest as a Member in the Company. The Board may appoint an accounting company, bookkeeping company or other third party entity to assist in performing accounting and bookkeeping duties.

9.3     Information Rights

The Members shall have the right to receive a copy of the (a) annual, audited financial statements and operating metrics of the Company, to be prepared by the Company’s accountants and delivered to the Members within one hundred twenty (120) days of the Company’s Fiscal Year end, (b) monthly unaudited financial statements and operating metrics, to be prepared by the Company’s accountants and delivered to the Members within thirty (30) days after the end of the preceding month, (c) the Annual Budget of the Company at least one week prior to the first quarterly Board meeting of the Fiscal Year, and (d) bank estimations, appraisals and collateral audits when received. In addition, subject to the prior approval of the Board (which shall not be unreasonably withheld, delayed or conditioned), TGAM shall have the right to audit the Company’s books and records at any time upon reasonable notice to the Board, but no more frequently than once every two (2) years, and all costs and expenses of such audit shall be paid or reimbursed by TGAM.

40

ARTICLE X
DISSOLUTION AND TERMINATION OF THE COMPANY

10.1     Dissolution

(a)The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the approval of a Supermajority of the Board, (ii) the occurrence of any event that terminates the continued membership of the Members in the Company and after which the Company has no members, or (iii) the entry of a decree of judicial dissolution under the Act.

(b)During the winding up of the business of the Company, the assets of the Company shall be applied, (i) first, to the payment of any liabilities of the Company, (ii) second, to the setting up of reasonable reserves to provide for any contingent liabilities of the Company, and (iii) thereafter, to the Members in accordance with the distribution waterfall set forth in Section 6.1. All payments under this Section 10.1 shall be made as soon as reasonably practicable after the occurrence of the event of dissolution and in any event by the end of the year in which the event of dissolution occurs or, if later, within ninety (90) days after the event of dissolution.

(c)Distributions in Cash or in Kind. Upon the dissolution of the Company, the Liquidating Agent shall use commercially reasonable efforts to liquidate all of the Company assets in an orderly manner and apply the proceeds of such liquidation as set forth in Section 10.1;  provided, that if in the good faith judgment of the Liquidating Agent a Company asset should not be liquidated, the Liquidating Agent shall allocate, on the basis of the value of any Company assets not sold or otherwise disposed of, any unrealized gain or loss based on such value to the Members’ Capital Accounts as though the assets in question had been sold on the date of distribution and, after giving effect to any such adjustment, distribute said assets in accordance with Section 6.1, subject to the priorities set forth in Section 10.1(b); and provided, further, that the Liquidating Agent will in good faith attempt to liquidate sufficient Company assets to satisfy in cash (or make reasonable provision for) the debts and liabilities referred to in Section 10.1(b).

(d)Time for Liquidation. A reasonable time period shall be allowed for the orderly winding-up and liquidation of the assets of the Company and the discharge of liabilities to creditors so as to enable the Liquidating Agent to seek to minimize potential losses upon such liquidation. The provisions of this Agreement shall remain in full force and effect during the period of winding-up and until the filing of the Certificate of Cancellation with the Delaware Secretary of State.

(e)Termination. Upon completion of the foregoing, the Liquidating Agent shall execute, acknowledge and cause to be filed the Certificate of Cancellation with the Delaware Secretary of State.

(f)Survival of Certain Provisions. The provisions of Article XI addressing indemnification shall survive the termination or expiration of this Agreement and the termination, dissolution and winding-up of the Company.

41

ARTICLE XI
INDEMNIFICATION

11.1     Indemnification

The Company shall, to the fullest extent permitted by applicable law, indemnify, defend and hold the Members, the Managers, the Officers, the Partnership Representative and any individual designated by the Partnership Representative pursuant to Section 7.1(each a “Indemnified Person”)harmless from and against any Claims suffered or sustained by it by reason of any acts, omissions or alleged acts or omissions by such Members, Managers, Officers, Partnership Representative or individual designated by the Partnership Representative pursuant to Section 7.1 on behalf of the Company within the scope of authority conferred on it by this Agreement, including any judgment, award, settlement, reasonable attorneys’ fees and other costs and expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim; provided that the acts or omissions or alleged acts or omissions upon which such actual or threatened action, proceeding or claim is based were in good faith in accordance with its business judgment. The indemnification provided by this Article XI shall be recoverable only out of the assets of the Company. “Claim” means any obligation, liability, claim (including any claim for damage to property or injury to or death of any Persons), lien or encumbrance, loss, damage, cost or expense (including any judgment, award, settlement, reasonable attorneys’ fees and other costs and expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim, including appellate proceedings, and any collection costs or enforcement costs). No amendment, modification, or repeal of this Agreement shall diminish the rights or protection provided in this Article XI with respect to any claim, issue, or matter in any then pending or subsequent proceeding that is based in any material respect on any alleged action or failure to act before such amendment, modification, or repeal.

11.2     Expenses

Expenses incurred by an Indemnified Person in satisfaction, defense or settlement of any Claim that may be subject to a right of indemnification hereunder may be advanced by the Company prior to the final disposition thereof upon receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount, if it shall be determined ultimately that the Indemnified Person is not entitled to be indemnified hereunder. The right of any Indemnified Person to the indemnification provided herein shall be cumulative with, and in addition to, any and all rights to which such Indemnified Person may otherwise be entitled by contract or as a matter of law or equity and shall extend to such Indemnified Person’s successors, assigns and legal representatives. All judgments against the Company and the Managers, in respect of which the Managers are entitled to indemnification, shall first be satisfied from Company assets (including Capital Contributions) before the Managers are responsible therefor.

11.3     Notices of Claims

Promptly after receipt by an Indemnified Person of notice of the commencement of any proceeding, such Indemnified Person shall, if a claim for indemnification in respect thereof is to be made against the Company, give written notice to the Company of the commencement of such proceeding; provided that the failure of any Indemnified Person to give notice as provided herein shall not relieve the Company of its obligations under this Article XI, except to the extent that the Company is actually prejudiced by such failure to give notice. In case any such proceeding is brought against an Indemnified Person (other than a derivative suit in right of the Company), the Company will be entitled to participate in and to assume the defense thereof to the extent that the Company may wish. After notice from the Company to such Indemnified Person of the Company’s election to assume the defense of such proceeding, the Company will

42

not be liable for expenses subsequently incurred by such Indemnified Person in connection with the defense thereof. The Company will not consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect of such Claim.

ARTICLE XII
RESTRICTIVE COVENANTS

12.1     Confidentiality

Each Member will not, either during or after membership in the Company, use Confidential Information or disclose Confidential Information to any Person not authorized by the Company or the Board to receive it, excluding Confidential Information (a) that becomes available to the public other than through the Member in violation of this provision, or (b) that such Member is compelled to disclose in any judicial or administrative proceeding or as may otherwise be required by law, regulation or rule; provided,  however, a Member shall have the right to disclose Confidential Information to such Member’s directors, officers, employees, advisors, agents, attorneys, accountants, consultants, Affiliates, underlying beneficial owners and representatives who have a need to know such information (it being understood that such representatives shall be informed of the confidential nature of the Confidential Information and the existence of the confidentiality obligations set forth in this Section 12.1).  The Members acknowledge that, in the event of a disclosure to a Member’s directors, officers, employees, advisors, agents, attorneys, accountants, consultants, Affiliates, underlying beneficial owners and representatives or any other authorized disclosure to a third party, other than a disclosure required by law, such parties shall be required to maintain the confidentiality of the Confidential Information to the same extent as the Members. “Confidential Information” means information (i) that is not generally known to the public and (ii) that is proprietary to the Company, and shall include, without limitation: investment strategies or financial information about the Company and any of its investments; trade secrets; business and technical information; and business methods, plans, techniques, concepts, systems, procedures and forecasts.

12.2     Non-Competition; Non-Solicitation

In order to protect the Confidential Information and goodwill of the Company, Green Plains agrees that for so long as it or any of its Permitted Transferees owns any Units, and for a period of two (2) years thereafter (the “Restricted Period”), Green Plains and such Permitted Transferees will not, directly or indirectly, for its benefit or for the benefit of another, without the Company’s prior written consent:

(a)solicit or encourage any existing or former Manager, officer, employee, contractor or consultant of the Company or any of its subsidiaries to terminate his/her relationship with the Company or such subsidiary for any reason; provided, however, a Manager, officer, employee, contractor or consultant of the Company or such subsidiary shall no longer be considered a former Manager, officer, employee, contractor or consultant if his/her relationship with the Company or such subsidiary terminated more than 6 months prior to the conduct in question); provided, further, that this Section 12.2(a) the use of third party search firms, publicly issued or circulated newspaper, mail, radio, internet, television or other forms of general advertising or solicitation that are not specifically directed to such employees shall not constitute a violation of this Section 12.2(a); or

(b)solicit or encourage any existing, former or prospective customer or supplier of the Company or any of its subsidiaries to terminate its relationship with the Company or such

43

subsidiary or otherwise interfere with such relationship or become a customer or supplier of another entity if such other entity offers products or services which are competitive with the Business except to the extent that such activities are undertaken on behalf of the Company pursuant to the Shared Services Agreement.

12.3     Competing Business Entity

From and after the Effective Date and continuing until the date on which Green Plains ceases to own any Units, in the event Green Plains consummates a transaction which results in Green Plains acquiring a Controlling Interest (as defined below) in a Person engaged in the commercial operation of beef cattle feedlots (a “Competing Business Entity”), the Company shall have the right to purchase the Competing Business Entity on the terms set forth in this Section 12.3 (the “Business Acquisition Right”).

(a)Green Plains shall provide written notice of the acquisition of the Competing Business Entity to the Company within thirty (30) days after consummation of such acquisition (the “Acquisition Notice”). The Acquisition Notice shall set forth a good faith offer by Green Plains to sell the Competing Business Entity to the Company (the “Proposed Sale”) and the material terms and conditions (including the proposed purchase price) of such Proposed Sale (the “Proposed Sale Terms”). Upon delivery of the Acquisition Notice, the Company shall have forty-five (45) days (the “Proposed Sale Exercise Period”) to provide written notice to Green Plains of the Company’s (i) acceptance of the Proposed Sale Terms (“Sale Acceptance Notice”) or (ii) counteroffer for the Proposed Sale which counteroffer shall include the proposed purchase price and other material terms and conditions relating to the Proposed Sale (the “Counter Offer Notice”). If the Company fails to timely deliver either a Sale Acceptance Notice or a Counter Offer Notice to Green Plains, the Company shall be deemed to have elected not to exercise its Business Acquisition Right with respect to such Competing Business Entity and Green Plains shall have the right to continue to operate, directly or indirectly, the Competing Business Entity provided, however, Green Plains shall continue to be subject to the restrictions set forth in Section 12.1,  Section 12.2 and Section 12.4.

(b)In the event that the Company timely delivers either a Sale Acceptance Notice or a Counter Offer Notice to Green Plains, the Company and Green Plains agree to negotiate in good faith the terms and conditions of a definitive sale and purchase agreement relating to the Proposed Sale (the “Sale and Purchase Agreement”). If the Company and Green Plains (i) are unable to mutually agree upon the terms of, and execute, a Sale and Purchase Agreement within forty-five (45) days from the expiration of the Proposed Sale Exercise Period or (ii) fail to consummate the Proposed Sale within one hundred twenty (120) days from the expiration of the Proposed Sale Exercise Period for any reason other than a breach by Green Plains of this Section 12.3(b) or of the Sale and Purchase Agreement, the Company shall be deemed to have elected not to exercise its Business Acquisition Right with respect to such Competing Business Entity and Green Plains shall have the right to continue to operate, directly or indirectly, the Competing Business Entity; provided, however, Green Plains shall continue to be subject to the restrictions set forth in Section 12.1,  Section 12.2 and Section 12.4.

(c)For purposes of this Section 12.3, the term “Controlling Interest” shall mean that Green Plains, either directly or indirectly through ownership by its wholly-owned subsidiaries, has (i) sufficient voting power on the governing body of the Competing Business Entity and (ii) ownership of securities of the Competing Business Entity to enable Green Plains to divest the

44

Competing Business Entity without the requirement for approval of any other Person in accordance with the terms of the Organizational Documents of the Competing Business Entity and applicable law.

(d)For the avoidance of doubt, the parties hereto acknowledge and agree that the consummation by Green Plains of any transaction in which Green Plains acquires, either directly or indirectly, an interest in a Competing Business Entity which interest does not constitute a Controlling Interest Company shall not trigger the Business Acquisition Right of the Company set forth in this Section 12.3. 

(e)Notwithstanding anything contrary in this Agreement, from and after the Effective Date and continuing until the date on which Green Plains ceases to own any Units, Green Plains shall not acquire a Controlling Interest in any Person engaged in the commercial operation of beef cattle feedlots whose commercial operation of beef cattle feedlots or associated farmland constitutes fifty-percent (50%) or more of such Person’s enterprise value.

12.4     Non-Disparagement

Each Member hereby agrees that such Member will not commit or in any way knowingly assist others to commit any act intended to injure the Company, the Managers, any other Member or any Officer or employee of the Company. Each Member hereby agrees that such Member will not publicly criticize or make any negative, detrimental or derogatory comments concerning any of the foregoing Persons. Notwithstanding the foregoing, nothing in this Section 12.4 shall preclude any Member from making truthful statements that are reasonably necessary to comply with applicable law, regulation or legal process, or to defend or enforce a Member’s rights under this Agreement, the Purchase Agreement or the Shared Services Agreement.

12.5     No Adequate Monetary Remedy

Each Member acknowledges and agrees that monetary damages will not be an adequate remedy for any material breach of any of the restrictive covenants set forth in Section 12.2,  Section 12.3 or Section 12.4 (the “Restrictive Covenants”) and that irreparable injury may result to the Company and/or the Company’s Affiliates, or their successors in interest. Therefore, such Member agrees that the Company or such other Affiliate of the Company (as applicable) shall be entitled to equitable relief in any court of competent jurisdiction, including, without limitation, a temporary or permanent injunction, restraining and enjoining such Member or its Permitted Transferees or any Person with which such Member or its Permitted Transferees is associated, from further violations of such provisions, without the posting of any security in connection therewith.

12.6     Modification of Restrictive Covenants

If, at the time of enforcement of the Restrictive Covenants contained in ‎Section 12.2,  Section 12.3 or Section 12.4 a court of competent jurisdiction shall hold that the duration, scope or area restrictions stated herein are unreasonable under the circumstances then existing, the Members agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable law. Each Member has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and areas restrictions and are necessary to protect the goodwill of the Company.

45

Each Member further agrees that it will not challenge the reasonableness of the duration, scope and area restrictions in any action, suit or proceeding with respect to the Restrictive Covenants, regardless of who initiates such action, suit or proceeding.

12.7     Conflicts of Interest, Related Party Transactions and Other Activities

Any Member and any Affiliate of any such Member, and any of their respective directors, officers, members, partners, stockholders, employees, or controlling Persons may engage in or possess an interest in any business or activity, without any accountability to the Company or any other Member, and without obligation to offer such business opportunity to the Company or any other Member. No such Person shall be liable to the Company or any other Member for breach of any fiduciary or other duty, as a Member or otherwise, by reason of the fact that such Person acquires or pursues such opportunity or directs such opportunity to another Person, except for any Member that agrees otherwise pursuant to a separate agreement with the Company or any other direct or indirect subsidiaries or Affiliates of the Company; provided, however, that nothing in this Section 12.7 or in such separate agreement shall be construed to relieve or excuse any Person from his, her or its obligations under Section 12.1,  Section 12.2,  Section 12.3 or Section 12.4 or any employment agreement, non-use, non-disclosure, non-compete, non-solicitation, covenant-not-to-compete or similar covenant in this Agreement or any other agreement between such Person and the Company.

ARTICLE XIII
MISCELLANEOUS PROVISIONS

13.1     Transactions with Affiliates

Notwithstanding anything to the contrary contained in this Agreement, but subject to Sections 3.10 and 3.11, the Company may from time to time enter into transactions (whether pursuant to an oral or written agreement, or otherwise) with any Manager, Member or Officer or any of their respective Affiliates if determined by a vote of a majority of the disinterested Managers that such transactions are necessary or advisable. Each Member acknowledges that the Company has entered into the Shared Services Agreement, pursuant to which, among other things, the Company pays Green Plains a fee for the services therein described, in addition to reimbursement of expenses.

13.2     Amendment

Except as otherwise provided herein, this Agreement may be amended or modified from time to time by a written instrument that is adopted by the Board and any waiver of any provision of this Agreement may be made with the approval of the Board, each in accordance with Section 3.11;  provided,  however, that:

(a)any such amendment, modification, supplement, restatement or waiver that would require an additional Capital Contribution (other than a Business Support Capital Contribution) to the Company by any Member shall require the prior written consent of such Member; and

(b)any amendment that materially and adversely affects a Member in a materially disproportionate manner compared to the other Members shall require the prior written consent of the adversely affected Member.

13.3     Entire Agreement; Supersedure

This Agreement (including the Exhibits and Schedules attached hereto) constitutes the entire Agreement of the Members relating to the subject

46

matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof, whether oral or written.

13.4     Effect of Waiver or Consent

A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Company. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute-of-limitations period has run.

13.5     Binding Effect

This Agreement shall be binding upon and shall inure to the benefit of the Company and each Member and their respective heirs, permitted successors, permitted assigns, permitted distributees and legal representatives; and by their signatures hereto, the Company and each Member intends to and does hereby become bound.

13.6     Jurisdiction; Venue

All actions arising out of or relating to this Agreement shall be heard and determined exclusively by federal and state courts of the State of Delaware. Consistent with the preceding sentence, each Member hereby (a) submits to the exclusive jurisdiction of the above-named courts in connection with any action arising out of or relating to this Agreement brought by any Member; (b) consents to service of process by delivery of written notice to such Member’s address set forth on Schedule A; and (c) irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action, any claim that (i) it is not subject personally to the jurisdiction of the above-named courts, (ii) its property is exempt or immune from attachment or execution, (iii) the action is brought in an inconvenient forum, (iv) the venue of the action is improper, or (v) this Agreement, or the transactions contemplated hereby, may not be enforced in or by any of the above-named courts.

13.7     Governing Law

THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE OR ANY OTHER JURISDICTION THAT WOULD CAUSE THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.

13.8     Severability

If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

47

13.9     Further Assurances

In connection with this Agreement and the transactions contemplated hereby, the Company and each Member shall execute and deliver all such future instruments and take such other and further action as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and the intention of the parties as expressed herein.

13.10     Notices

All notices required by this Agreement shall be sent (a) in the case of the Company to the office of the Company, and (b) in the case of Members, to the addresses indicated below their respective names on Schedule A and shall be deemed to have been duly given (i) if delivered personally, when received; (ii) if delivered by certified or registered mail (postage prepaid), when received; (iii) if transmitted by electronic mail (to those for whom an e-mail address is set forth on Schedule A), at the time of transmission by electronic mail, with confirmation of receipt; (iv) if transmitted by facsimile (to those for whom a facsimile number is set forth on Schedule A), on the date of receipt of the transmission confirmed by receipt of a transmittal confirmation; or (v) if delivered by overnight courier service, one business day following the date of deposit with such courier service. Refusal to accept a notice, or inability to deliver a notice because of changed addresses, shall be deemed a receipt of such notice. The Company and any Member may change his or her address by giving notice to the Members and the Company in accordance with the terms of this Section 13.10.

13.11     Headings

All headings in this Agreement are for convenience only, are not a part of this Agreement and shall not be used as an aid in the construction of any provision hereof. Unless otherwise specified to the contrary, all references to sections are references to sections of this Agreement and all references to schedules are references to schedules to this Agreement.

13.12     Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission or electronic mail transmission (e.g., in .PDF format) shall constitute effective execution and delivery of this Agreement as to the parties.

13.13     No Third Party Beneficiaries

Except as set forth in Article XI and Section 12.4, this Agreement is for the sole benefit of the Members, and no other Person is intended to be a beneficiary of this Agreement or shall have any rights hereunder.

[Signature Page Follows]

48

IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and Restated Limited Liability Company Agreement as of the date first set forth above.

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		COMPANY:
		GREEN PLAINS CATTLE COMPANY LLC
		By:	/s/ Todd Becker
		Name:	Todd Becker
		Title	Manager

[Signature Page to Amended and Restated Limited Liability Company Agreement]

IN WITNESS WHEREOF, the parties hereto have executed this Second Amended and Restated Limited Liability Company Agreement as of the date first set forth above.

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		MEMBERS:
		GREEN PLAINS:
		GREEN PLAINS INC.
		By:	/s/ Todd Becker
		Name:	Todd Becker
		Title	President and Chief Executive Officer

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		TGAM:
		TGAM AGRIBUSINESS FUND
		HOLDINGS-B LP
		By:  TGAM Agribusiness Fund GP LLC, its
		General Partner
		By:	/s/ Daniel Masters
		Name:	Daniel Masters
		Title	Managing Director

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		INVESTOR MEMBERS:
		STEPSTONE ATLANTIC FUND, L.P.
		By: StepStone Atlantic (GP), L.P., its general partner
		By: StepStone Atlantic Holdings (GP), LLC, its general partner
		By:	/s/ Kirsty McGuire
		Name:	Kirsty McGuire
		Title	Deputy General Counsel

[Signature Page to Amended and Restated Limited Liability Company Agreement]

Schedule A

Contributions and Membership Interests

As of September 1, 2019

Member Name / Address	Capital Contribution	Units	Percentage Interests
Green Plains Inc. 1811 Aksarben Drive Omaha, NE 68106 Attention: Chief Legal & Administration Officer	$77,239,500.00	500,000	50%
TGAM Agribusiness Fund Holdings-B LP 221 1st St. Davis, CA 95616	$67,239,500.00	435,266	43.527%
StepStone Atlantic Fund, L.P. Level 43, Governor Phillip Tower, One Farrer Place, Sydney NSW 2000	$10,000,000.00	64,734	6.473%

Schedule A

Exhibit 10.1

SCHEDULE B

MANAGERS

Todd Becker(Green Plains Manager)

Brian Peterson(Green Plains Manager)

Wesley Sand (TGAM Manager)

Ryan Ramsey (Investor Manager)

__________ (Independent Manager)

BOARD OBSERVERS

Patrich Simpkins(Green Plains Board Observer)

Brock Jenkins(TGAM Board Observer)

Schedule B

Exhibit 10.1

SCHEDULE C

Percentage Interest Adjustment Methodology

(see attached)

Schedule C

Exhibit 10.1

SCHEDULE D

First Year Special Allocation Formula

(see attached)

Schedule D

Exhibit 10.1

SCHEDULE E

Basis Earnout EBITDA Formula

(see attached)

Schedule E

EX-10.2

Exhibit 10.2

UNSECURED PROMISSORY NOTE

Principal Amount: $10,000,000.00

Issue Date: September 1, 2019

Execution Date: September 6, 2019

FOR VALUE RECEIVED,STEPSTONE ATLANTIC FUND,  L.P., a Delaware limited partnership (the “Maker”), with principal offices at Level 43, Governor Phillip Tower, One Farrer Place, Sydney NSW 2000, hereby promises to pay in lawful money of the United States to GREEN PLAINS INC, an Iowa corporation or its permitted registered assigns (the “Registered Holder”), the principal amount set forth above (the “Principal Amount”).The Principal Amount shall not accrue interest; provided, however, that interest shall accrue upon an Event of Default as further provided in this Note.

This Note is entered into by the Maker in connection with that certain Securities Purchase Agreement by and among the Registered Holder, Green Plains Cattle Company, LLC, TGAM Agribusiness Fund Holdings-B LP andthe Maker, dated as of the Issue Date (such agreement, as amended from time to time thereafter, the “Purchase Agreement”).

The following is a statement of the rights of the Registered Holder and the conditions to which this Note is subject, and to which the Registered Holder hereof, by the acceptance of this Note, agrees:

1. DEFINITIONS.The following definitions shall apply for all purposes of this Note:

“Default Interest Rate” has the meaning set forth in Section 3.2 below.

“Event of Default” has the meaning set forth in Section 3.1 below.

“Execution Date” means September 6, 2019.

“Forum” has the meaning set forth in Section 6.2 below.

“Issue Date” means September 1, 2019.

“Maker” has the meaning set forth in the introductory paragraphs of this Note.

“Maturity Date” means September 20, 2019.

“Note” means this Unsecured Promissory Note (and all Unsecured Promissory Notes issued in exchange, transfer or replacement hereof).

“Parties” means the Registered Holder and the Maker collectively and “Party” shall mean the Registered Holder and the Maker individually.

“Principal Amount” means the amount set forth in the introductory paragraphs of this Note.

“Purchase Agreement” has the meaning set forth in the introductory paragraphs of this Note.

“Registered Holder” has the meaning set forth in the introductory paragraphs of this Note.

2. PAYMENT.

2.1 Maturity Date.The Principal Amount shall be due and payable by the Maker on the Maturity Date.

2.2 Prepayment.The Maker may, at any time, prepay in whole or in part the unpaid Principal Amount without the prior written consent of the Registered Holder.

3. DEFAULT.

3.1 Event of Default.An  “Event of Default” will be deemed to have occurred upon any of the following events:

(a) the Maker’s failure to pay to the Registered Holderthe unpaid Principal Amount when and as due under this Note, which failure to pay is not cured within five (5)  calendar days after receipt of written notice by the Registered Holder;

(b) a receiver is appointed for any material part of the Maker’s property, the Maker makes a general assignment for the benefit of creditors, the Maker voluntarily initiates an action under the U.S. Bankruptcy Code as a debtor, or the Maker is involuntarily made the subject (as a debtor or alleged debtor) of an action under the U.S. Bankruptcy Code or becomes the subject of any other bankruptcy or similar proceeding for the general adjustment of its debts, which involuntary action is not terminated or otherwise disposed of without a judgment against the Maker within sixty (60) days of its initiation;

(c) the Maker breaches any representation, warranty, covenant or other term or condition of the Purchase Agreement or this Note, and such breach has a material adverse effect on the Registered Holder, except, in the case of a breach of a covenant which is curable, only if such breach continues for a period of at least five (5) calendar days after notice thereof; or

(d) the acceleration of the Maker’s obligation to repay any indebtedness owed to any bank or financial institution or the Maker’s default in the observance or performance of any covenant, condition or provision of any agreement entered into in connection with any indebtedness owed to any bank or similar financial institution.

3.2 Default Interest.From and after the occurrence of an Event of Default, the unpaid Principal Amount and all accrued but unpaid default interest hereunder shall bear simple interest at a rate equal to fifteen percent (15%) per annum (the “Default Interest Rate”) until the unpaid Principal Amount and all accrued but unpaid default interest shall have been paid in full.Notwithstanding anything to the contrary herein, in no event may the RegisteredHolder require the payment of or permit the collection of interest in excess of the maximum amount permitted by law, and in the event that the Default Interest Rate hereunder in effect would exceed the maximum

2

amount permitted by law, the effective Default Interest Rate shall be automatically reduced to the maximum lawful rate.

3.3 Acceleration.Upon the occurrence of any Event of Default, the Registered Holder may, at the Registered Holder’s sole option, declare all or any portion of the unpaid Principal Amount due and payable in full; provided,that in the event of an Event of Default under Section 3.1(b) above, all unpaid Principal Amount and all other sums payable hereunder shall become and be immediately due and payable in full without any action on the part of the Registered Holder.

4. WAIVERS.No failure or delay on the part of the Registered Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. To the extent permitted by law, the Maker and all endorsers of this Note hereby waive demand, notice, presentment, protest, notice of dishonor, and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Purchase Agreement.

5. PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS.If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the Registered Holder otherwise takes action to collect amounts due under this Note or to enforce the provisions of this Note, or (b) there occurs any bankruptcy, reorganization, receivership of the Maker or other proceedings affecting the Registered Holder’s creditors’ rights and involving a claim under this Note, then the Maker shall pay the reasonable costs incurred by the Registered Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, but not limited to, reasonable attorneys’ fees and disbursements.

6. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.

6.1 Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the laws of the State of Delaware or any other jurisdiction that would call for the application of the substantive laws of any jurisdiction other than the State of Delaware.This Note is entered into in express reliance by the Parties on Section 2708 of Title 6 of the Delaware Code (6 Del. C. Section 2708).

6.2 Forum.The Parties agree that the appropriate, exclusive and convenient forum (the “Forum”) for any disputes between the Parties arising out of or related to this Note or the transactions contemplated hereby shall be in the Court of Chancery in the City of Wilmington, New Castle County, Delaware, except where such court lacks subject matter jurisdiction.In such event, the Forum shall be in the federal district court sitting in Wilmington, Delaware or, in the event such federal district court lacks subject matter jurisdiction, then in the superior court in the City of Wilmington, New Castle County, Delaware.The Parties irrevocably submit to the jurisdiction of such courts solely in respect of any disputes arising out of or related to this Note or the transactions contemplated hereby.The Parties further agree that no Party shall bring suit with

3

respect to any disputes arising out of or related to this Note hereby in any court or jurisdiction other than the above specified courts; provided, however, that the foregoing shall not limit the rights of a Party to obtain execution of a judgment in any other jurisdiction.The Parties further agree, to the extent permitted by law, that a final and non-appealable judgment against a Party in any legal proceeding contemplated above shall be conclusive and may be enforced in any other jurisdiction within or outside the U.S. by suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the fact and amount of such judgment.

6.3 Submission to Jurisdiction.To the extent that a Party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each such Party hereby irrevocably (i) waives such immunity in respect of its obligations with respect to this Note and (ii) submits to the personal jurisdiction of each court described in Section 6.2.

6.4 Waiver of Jury Trial.THE PARTIES AGREE THAT THEY HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ALL DISPUTES AMONG PARTIES ARISING OUT OF OR RELATED TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.

7. NOTICES.All notices, communications and deliveries under this Note will be made in writing signed by or on behalf of the Party making the same, will specify the Section under this Note pursuant to which it is given or being made, and will be delivered personally or sent by registered or certified mail (return receipt requested) or by reputable national courier (with evidence of delivery and postage and other fees prepaid) to the address set forth on the Party’s signature page to thePurchase Agreement or to such other representative or at such other address of a recipient as such Party may furnish to the other Parties in writing.Should the contact person of any Party set forth above change, such Party shall have an obligation to promptly inform the other Parties of such change.

8. AMENDMENTS.This Note may not be amended or modified except by a written agreement signed by the Maker and the Registered Holder.

9. SEVERABILITY.If one or more provisions of this Note are held to be unenforceable under applicable law, such provision(s) shall be excluded from this Note and the balance of this Note shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms.

[Signature Page Follows]

4

IN WITNESS WHEREOF, the Maker has caused this Unsecured Promissory Note to be executed and delivered as of the date first written above.

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		MAKER:
		STEPSTONE ATLANTIC FUND, L.P.
		By:  StepStone Atlantic (GP), L.P., its general partner
		By:  StepStone Atlantic Holdings (GP), LLC, its general partner
		By:	/s/ Kirsty McGuire
		Name:	Kirsty McGuire
		Title:	Deputy General Counsel

ACKNOWLEDGED AND AGREED:
REGISTERED HOLDER:
GREEN PLAINS INC.
By:	/s/ Todd Becker
Name:	Todd Becker
Title:	President and Chief Executive Officer

[SIGNATURE PAGE TO UNSECURED PROMISSORY NOTE]

EX-10.3

Exhibit 10.3

AMENDED AND RESTATED

CREDIT AGREEMENT

Dated as of August 28, 2019

among

GREEN PLAINS CATTLE COMPANY LLC,

as the Borrower,

BANK OF THE WEST and ING CAPITAL LLC,

as Joint Administrative Agents

BANK OF THE WEST,

as Swingline Lender

ING CAPITAL LLC,

as L/C Issuer

BANK OF THE WEST and ING CAPITAL LLC as Joint Lead Arrangers

and

THE LENDERS PARTY HERETO

TABLE OF CONTENTS
(continued)
		Page
ARTICLE I	DEFINTITIONS AND ACCOUNTING TERMS	1
1.01	Defined Terms	1
1.02	Other Interpretive Provisions	34
1.03	Accounting Terms	35
1.04	Rounding	36
1.05	Times of Day	36
1.06	Letter of Credit Amounts	36
1.07	UCC Terms	36
ARTICLE II	COMMITMENTS AND CREDIT EXTENSIONS	36
2.01	Loans	36
2.02	Borrowings, Conversions and Continuations of Loans	37
2.03	Letters of Credit	38
2.04	Swingline Loans	48
2.05	Prepayments	51
2.06	Termination of Reduction of Commitments	53
2.07	Repayment of Loans	53
2.08	Interest and Default Rate	54
2.09	Fees	55
2.10	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	55
2.11	Evidence of Debt	56
2.12	Payments Generally; Joint Administrative Agent’s Clawback	56
2.13	Sharing of Payments by Lenders	59
2.14	Cash Collateral	60
2.15	Defaulting Lenders	61
2.16	Increase in Revolving Facility	64
ARTICLE III	TAXES, YIELD PROTECTION AND ILLEGALITY	65
3.01	Taxes	65
3.02	Illegality and Designated Lenders	70
3.03	Inability to Determine Rates	71
3.04	Increased Costs; Reserves on Eurodollar Rate Loans	71
3.05	Compensation for Losses	73
3.06	Mitigation Obligations; Replacement of Lenders	74
3.07	Survival	74

i

TABLE OF CONTENTS
(continued)
		Page
3.08	Effect of Benchmark Transition Event	74
ARTICLE IV	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	76
4.01	Conditions of Initial Credit Extension	76
4.02	Conditions to all Credit Extensions	78
ARTICLE V	REPRESENTATIONS AND WARRANTIES	78
5.01	Existence, Qualification and Power	78
5.02	Authorization; No Contravention	79
5.03	Governmental Authorization; Other Consents	79
5.04	Binding Effect	79
5.05	Financial Statements; No Material Adverse Effect	79
5.06	Litigation	80
5.07	No Default	80
5.08	Ownership of Property	80
5.09	Environmental Compliance	80
5.10	Insurance	80
5.11	Taxes	81
5.12	ERISA Compliance	81
5.13	Margin Regulations; Investment Company Act	82
5.14	Disclosure	82
5.15	Compliance with Laws	82
5.16	[Reserved]	82
5.17	Casualty, Etc	82
5.18	Sanctions Concerns and Anti-Corruption Laws	83
5.19	Responsible Officers	83
5.20	Subsidiaries; Equity Interests	84
5.21	Collateral Representations	84
ARTICLE VI	AFFIRMATIVE COVENANTS	84
6.01	Financial Statements	85
6.02	Certificates; Other Information	87
6.03	Notices	87
6.04	Payment of Obligations	88
6.05	Preservation of Existence, Etc	88
6.06	Maintenance of Properties	88
6.07	Maintenance of Insurance	88

ii

TABLE OF CONTENTS
(continued)
		Page
6.08	Compliance with Laws	89
6.09	Books and Records	89
6.10	Inspection Rights	89
6.11	Use of Proceeds	89
6.12	Material Contracts	89
6.13	[Reserved]	89
6.14	[Reserved]	89
6.15	Further Assurance	89
6.16	Compliance with Environmental Laws	90
6.17	Anti-Corruption Laws	90
6.18	Location of Livestock	90
6.19	Care and Preservation of the Livestock	90
6.20	Customer Loan Documentation	91
6.21	Procedures For Customer Financed Cattle	91
6.22	Covenant to Guarantee Obligations	91
ARTICLE VII	NEGATIVE COVENANTS	91
7.01	Liens	91
7.02	Indebtedness	92
7.03	Investments	93
7.04	Fundamental Changes	93
7.05	Dispositions	93
7.06	Restricted Payments	93
7.07	Change in Nature of Business	94
7.08	Transactions with Affiliates	94
7.09	Burdensome Agreements	94
7.10	Use of Proceeds	94
7.11	Financial Covenants	94
7.12	Capital Expenditures	94
7.13	Amendments of Organization Documents; Fiscal Year; Legal Name, State of Formation; Form of Entity and Accounting Changes	95
7.14	Sale and Leaseback Transactions	95
7.15	EFR Commodity Swaps	95
7.16	Amendment, Etc. of Indebtedness	95
7.17	Sanctions	95

iii

TABLE OF CONTENTS
(continued)
		Page
7.18	Anti-Corruption Laws	96
7.19	Waiver of Agister Lien	96
ARTICLE VIII	EVENTS OF DEFAULT AND REMEDIES	96
8.01	Events of Default	96
8.02	Remedies upon Event of Default	99
8.03	Applications of Funds	99
ARTICLE IX	JOINT ADMINISTRATIVE AGENT	100
9.01	Appointment and Authority	100
9.02	Rights as a Lender	101
9.03	Exculpatory Provisions	101
9.04	Reliance by Joint Administrative Agent	102
9.05	Delegation of Duties	103
9.06	Resignation of Joint Administrative Agent	103
9.07	Non-Reliance on Joint Administrative Agent and Other Lenders	105
9.08	No Other Duties, Etc	105
9.09	Joint Administrative Agent May File Proof of Claim; Credit Bidding	106
9.10	Collateral Matters	107
9.11	Secured Cash Management Agreements and Secured Hedge Agreements	108
ARTICLE X	[RESERVED]	108
ARTICLE XI	AMENDMENTS	108
11.01	Amendments, Etc	108
11.02	Notices; Effectiveness; Electronic Communications	110
11.03	No Waiver; Cumulative Remedies; Enforcement	113
11.04	Expenses; Indemnity; Damage Waiver	113
11.05	Payments Set Aside	115
11.06	Successors and Assigns	115
11.07	Treatment of Certain Information; Confidentiality	121
11.08	Right of Setoff	122
11.09	Interest Rate Limitation	122
11.10	Counterparts; Integration; Effectiveness	123
11.11	Survival of Representations and Warranties	123
11.12	Severability	124
11.13	Replacement of Lenders	124

iv

TABLE OF CONTENTS
(continued)
		Page
11.14	Governing Law; Jurisdiction; Etc	125
11.15	Waiver of Jury Trial	126
11.16	Reserved	126
11.17	No Advisory or Fiduciary Responsibility	126
11.18	Electronic Execution of Assignments and Certain Other Documents	127
11.19	USA PATRIOT Act Notice	127
11.20	Time of the Essence	128
11.21	ENTIRE AGREEMENT	128
11.22	EEA Financial Institutions	128
11.23	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	128
11.24	Borrowing Base Excess	128
11.25	Acknowledgement Regarding Any Supported QFCs	129

iv

SCHEDULES
Schedule 1.01(a)	Certain Addresses for Notices
Schedule 1.01(b)	Initial Commitments and Applicable Percentages
Schedule 1.01(c)	Responsible Officers
Schedule 1.01(d)	Approved Packers
Schedule 5.10	Insurance
Schedule 5.20(a)	Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments
Schedule 5.20(b)	Borrower Information
Schedule 7.01	Existing Liens
Schedule 7.02	Existing Indebtedness
Schedule 7.03	Existing Investments
EXHIBITS
Exhibit A	Form of Administrative Questionnaire
Exhibit B	Form of Assignment and Assumption
Exhibit C	Form of Compliance Certificate
Exhibit D	Form of Loan Notice
Exhibit E	Form of Revolving Note
Exhibit F	Form of Secured Party Designation Notice
Exhibit G	Form of Swingline Loan Notice
Exhibit H	Form of Officer’s Certificate
Exhibit I	Forms of U.S. Tax Compliance Certificates
Exhibit J	Form of Financial Condition Certificate
Exhibit K	Form of Authorization to Share Insurance Information
Exhibit L	Form of Notice of Loan Prepayment
Exhibit M	Form of Letter of Credit Report
Exhibit N	Form of Notice of Additional L/C Issuer

AMENDED AND RESTATED

CREDIT AGREEMENT

This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of August 28, 2019, among GREEN PLAINS CATTLE COMPANY LLC, a Delaware limited liability company (the “Borrower”) the Lenders (defined herein), and BANK OF THE WEST and ING CAPITAL LLC, as Joint Administrative Agents and BANK OF THE WEST, as Swingline Lender and ING CAPITAL LLC, as L/C Issuer.

PRELIMINARY STATEMENTS:

WHEREAS, the Borrower has requested that the Lenders, the Swingline Lender and the L/C Issuer make loans and other financial accommodations to the Borrower.

WHEREAS, the Borrower, the Lenders, the Swingline Lender, the L/C Issuer and the Joint Administrative Agent are parties to the Credit Agreement dated as of December 3, 2014, as amended from time to time (the "Existing Agreement").

WHEREAS, the Lenders, the Swingline Lender and the L/C Issuer have agreed to make such loans and other financial accommodations to the Borrower on the terms and subject to the amended and restatement of the Existing Agreement and the conditions set forth herein.

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

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.01Defined Terms. 

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

"Account" shall mean, individually and collectively as the context so requires, any and all accounts, chattel paper and general intangibles owed or owing to the Borrower by Account Debtors, whether now owned or hereafter acquired by the Borrower, or in which the Borrower may now have or hereafter acquire any interest.

“Additional Secured Obligations” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case 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 Affiliate 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.

1

“Affiliate” means, with respect to a specified 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.

“Agreement” means this Credit Agreement.

“Applicable Percentage” means (a) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.15.  If the Commitment of all of the Revolving Lenders to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent assignments.  The Applicable Percentage of each Revolving Lender in respect of the Revolving Facility as set forth opposite the name of such Lender on Schedule 1.01(b) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Applicable Rate” means, as of Closing Date, rate per annum set forth for Level 4and from and thereafter, for any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Three-Month Position Report Excess), it being understood that the Applicable Rate for (a) Revolving Loans that are Base Rate Loans shall be the percentage set forth under the column "Revolving Loans" and "Base Rate", (b) Revolving Loans that are Eurodollar Rate loans shall be the percentage set forth under the column "Revolving Loans Eurodollar Rate Loans/LC's" (c) the Letter of Credit Fee shall be the percentage set forth under the column "Revolving Loans Eurodollar Rate Loans/LC's", and (d) the Non-Use Fee shall be the percentage set forth under the column "Non-Use Fee":

	Three-Month Position Report Excess	Revolving Loans Eurodollar Rate Loans / L/C's	Revolving Loans/Base Rate	Non -Use Fee
Level 1	Less than $10,000,000	2.75%	1.75%	.25%
Level 2	Greater than or equal to $10,000,000, but less than $15,000,000	2.50%	1.50%	.25%
Level 3	Greater than or equal to $15,000,000, but less than $20,000,000	2.25%	1.25%	.20%
Level 4	Greater than or equal to $20,000,000, but less than $35,000,000	2.00%	1.00%	.20%
Level 5	Greater than $35,000,000	1.75%	0.75%	.20%

2

Any increase or decrease in the Applicable Rate resulting from a change in the Three Month Position Report Excess shall become effective as of the first Business Day immediately following the date a Borrower Base Certificate is delivered pursuant to Section 6.02(g) reflecting the Three Month Position Report Excess provided,  however, that if a Borrower Base Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Level 1 shall apply, in each case as the first Business Day after the date on which such Borrower Base Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Borrower Base Certificate is delivered.  In addition, at all times while the Default Rate is in effect, the highest rate set forth in each column of the Applicable Rate shall apply.

Notwithstanding anything to the contrary contained in this definition, (a) the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) and (b) the initial Borrower Base Certificate is delivered pursuant to Section 6.02 (g) for the first full three months to occur following the Closing Date to the Joint Administrative Agent.  Any adjustment in the Applicable Rate shall be applicable to all Credit Extensions then existing or subsequently made or issued.

“Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.

“Appropriate Lender” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to the Revolving Facility or holds a Loan under the Revolving Facility at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03, the Revolving Lenders and (c) with respect to the Swingline Sublimit, (i) the Swingline Lender and (ii) if any Swingline Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders.

"Approved Customer" shall mean a person or entity who has signed a promissory note payable to the Borrower.

“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.

"Approved Location" shall mean a location approved by the Joint Administrative Agent.

"Approved Packer" shall mean any person or entity, acceptable to the Joint Administrative Agent per the attached Schedule 1.01(d) who purchases cattle from the Borrower.

“Arranger” means Bank of the West and ING Capital LLC, in their capacity as joint sole lead arranger and sole bookrunner.

“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 11.06(b)), and accepted by theJoint Administrative Agent, in substantially the form of Exhibit B or any other form (including an electronic documentation formgenerated by use of an electronic platform) approved by the Joint Administrative Agent.

3

“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease.

“Authorization to Share Insurance Information” means the authorization substantially in the form of Exhibit K (or such other form as required by the Borrower's insurance companies).

“Autoborrow Agreement” has the meaning specified in Section 2.04(b).

“Availability Period” means in respect of the Revolving Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving Facility, (ii) the date of termination of the Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the Commitment of each Revolving Lender to make Revolving Loans and of the obligation of the 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.

“Base Rate”means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of the West as its “prime rate,” and (c) the Eurodollar Rate plus 1.00%.  The “prime rate” is a rate set by Bank of the West based upon various factors including Bank of the West’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of the West shall take effect at the opening of business on the day specified in the public announcement of such change.  If the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

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

"Basis" shall mean, with respect to a commodity, as of the date of calculation, the difference between the local cash price then being paid for such commodity, and the futures price of the Futures Contract for such commodity with a maturity closest to such date.

"Benchmark Replacement" means the sum of:  (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement

4

Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

"Benchmark Replacement Adjustment" means, with respect to any replacement of LIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

"Benchmark Replacement Conforming Changes" means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of "ABR", the definition of "Interest Period", timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

"Benchmark Replacement Date" means the earliest to occur of the following events with respect to the then-current Benchmark:

(1)in the case of clause (1) or (2) of the definition of "Benchmark Transition Event", the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or

(2)in the case of clause (3) of the definition of "Benchmark Transition Event", the date of the public statement or publication of information referenced therein.

"Benchmark Transition Event" means the occurrence of one or more of the following events with respect to LIBOR:

(1)a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR;

(2)a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar

5

insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or

(3)a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR announcing that LIBOR is no longer representative.

"Benchmark Transition Start Date" means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of any Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

"Benchmark Unavailability Period" means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes hereunder in accordance with Section 3.08 and (y) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes hereunder pursuant to Section 3.08.

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

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

“Borrowing” means a Revolving Borrowing, or a Swingline Borrowing, as the context may require.

"Borrowing Base" shall mean the sum of:

(a)Seventy-five percent (75%) of the Value of Eligible Cattle; plus

(b)Seventy-five percent (75%) of the Value of Eligible Inventory; plus

(c)Seventy-five percent (75%) of Eligible Prepaid Feed; plus

(d)Eighty percent (80%) of the Value of Eligible Protected Cattle; plus

(e)Eighty –five percent (85%) of the Value of Eligible Hedged Cattle; plus

(f)Ninety percent (90%) of Eligible EFR Commodity Swaps;

(g)One hundred percent (100%) of Eligible Deposit Accounts; plus

6

(h)The lesser of one hundred percent (100%) of the principal balance of any Eligible Customer Note or as of the date of any advance under the Eligible Customer Note for the acquisition of Customer Cattle seventy-five percent (75%) of the acquisition cost of the applicable Customer Cattle and thereafter eighty percent (80%) of the Value of the applicable Customer Cattle plus any Eligible Customer Hedge Account; plus

(i)One hundred percent (100%) of Eligible Packer Accounts; plus

(j)One hundred percent (100%) of Eligible Feed Accounts; plus

(k)One hundred percent (100%) of Eligible Crop Inputs not to exceed sixty percent (60%) of Projected Crop Revenue; plus

(l)One hundred percent (100%) of any Eligible Hedge Account; minus

(m)One hundred percent (100%) of all Payables; minus

(n)One hundred percent (100%) of all Undermargined Position; minus

(n)One hundred percent (100%) of Prepaid Transactions; minus

(o)One hundred percent (100%) of any negative net value of any EFR Commodity Swaps.

"Borrowing Base Certificate" means a certificate in a form as provided by the Joint Administrative Agent from time to time duly executed by the Borrower.

"Borrowing Base Excess" means the amount equal toBorrowing Base minus the Outstanding Amount.

“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 Joint Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.

“Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations). 

“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.

“Cash Collateralize” means, to pledge and deposit with or deliver to theJoint Administrative Agent, for the benefit of one or more of the L/C Issuers or Swingline Lender (as applicable) or the Revolving Lenders, as collateral for L/C Obligations, the Obligations in respect of Swingline Loans, or obligations of the Revolving Lenders to fund participations in respect of either thereof (as the context may require), (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the Joint Administrative Agent and the applicable L/C Issuer, and/or (c) if the Joint Administrative Agent

7

and the applicable L/C Issuer or Swingline Lender shall agree, in their sole discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance satisfactory to the Joint Administrative Agent and such L/C Issuer or Swingline 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.

“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Permitted Liens):

(a)readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than three hundred sixty days (360) days from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;

(b)time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than ninety (90)days from the date of acquisition thereof;

(c)commercial paper issued by any Person organized under the laws of any state of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than one hundred eighty (180) days from the date of acquisition thereof; and

(d)Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.

“Cash Management Agreement” means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including deposit accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

“Cash Management Bank” means any Person in its capacity as a party to a Cash Management Agreement that,  at the time it enters into a Cash Management Agreement with the Borrower or any Subsidiary, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided,  however, that for any of the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by the Joint

8

Administrative Agent, the applicable Cash Management Bank (other than the Joint Administrative Agent or an Affiliate of the Joint Administrative Agent) must have delivered a Secured Party Designation Notice to the Joint Administrative Agent prior to such date of determination.

“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.

“Change in Law” means the occurrence, after the Closing Date, of any of the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change 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, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) 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 or foreign 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 an event or series of events by which GPI no longer owns at least thirty-five percent (35%) of the Equity Interests of the Borrower.

“Closing Date” means the date of this Agreement.

“Code” means the Internal Revenue Code of 1986.

“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Joint Administrative Agent for the benefit of the Secured Parties.

“Collateral Documents” means, collectively, the Security Agreement, the Negative Pledge, Qualifying Control Agreement, each of the mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Joint Administrative Agent, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Joint Administrative Agent for the benefit of the Secured Parties.

“Commitment” means the Revolving Commitment.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

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

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

9

“Consolidated”means, when used with reference to financial statements or financial statement items of the Borrower and its Subsidiaries or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.

“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.

"Cost-to-Finish" shall mean (i) the closing (or settlement) price per hundredweight at which a Futures Contract for delivery of live cattle on the nearest date that is subsequent to the date on which the cattle are scheduled to be finished could have been entered into at the close of business on the date of valuation, plus/minus a premium/discount for the historical average Basis, as quoted by an independent industry source, and subject to the Joint Administrative Agent's approval, minus a discount agreed to by the Joint Administrative Agent, related to the expense of delivering the cattle to a delivery place specified in the Futures Contract and a discount, if any, for the difference between the quality and type of the cattle and the quality and type of live cattle that are the subject of the Futures Contract, times (ii) the number of hundredweights of the cattle projected by Borrower to be deliverable when the cattle have been fed to their full finished weight, and then subtracting from the product so obtained the sum of (x) the aggregate of all costs and expenses projected, on the basis of market conditions existing on the date of valuation for feed, medicine, shelter, and all other items of cost or expense that are customarily incurred to bring the cattle to their full finished weight, and (y) all other usual and customary costs and expenses projected to be incurred in connection with the sale and delivery of the cattle.

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

“Current Assets” shall mean the current assets of the Borrower as determined in accordance with GAAP less all amounts due from Affiliates, officers or employees (except for amounts owed by Affiliates in the ordinary course of business).

"Current Liabilities"  shall mean the current liabilities of the Borrower as determined in accordance with generally accepted accounting principles, including any negative cash balance on the Borrower's financial statement and Indebtedness for borrowed money under lines of credit with the Lenders used by the Borrower for working capital purposes but excluding the current portion of any operating leases.

"Customer Cattle" shall mean cattle owned by a customer and which cattle are located at the Borrower's feedlot.

"Customer Loan Documents" shall mean the note, security agreement and any other documents executed relating to the Customer Cattle, all in a form acceptable to the Joint Administrative Agent.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,

10

rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

“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) with respect to any Obligation for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per annum equal to the Base Rate plus the Applicable Rate for Revolving Loans that are Base Rate Loans plus two percent (2%), in each case, to the fullest extent permitted by applicable Law.

"Defaulting Lender" means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Joint 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 Joint Administrative Agent, the L/C Issuer, the Swingline 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 Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Joint Administrative Agent, the L/C Issuer or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, 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 (3) Business Days after written request by the Joint Administrative Agent or the Borrower, to confirm in writing to the Joint 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 Joint Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has other than via an Undisclosed Administration, (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 such a capacity or (iii) 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 Joint Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Joint Administrative Agent in a written notice of such determination , which shall be delivered by the Joint Administrative Agent to the Borrower,

11

the L/C Issuer, the Swingline Lender and each other Lender promptly following such determination.

“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by the Borrower or Subsidiary (or the granting of any option or other right to do any of the foregoing), 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, but excluding any Involuntary Disposition.

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

"Early Opt-in Election" means the occurrence of:

(1)(i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 3.08, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and

(2)(i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

"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 clauses (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.

"EFR Commodity Swap" shall mean a Swap Contract providing for a Commodity Swap in the nature of an exchange for risk.

"Eligible Account" shall mean, at any time, the gross amount, less returns, discounts, credits or offsets of any nature, of the Accounts owing to the Borrower by an Account Debtor, but excluding the following:

12

(i)Accounts which have not been paid in full within 10 days from the date payment was due or 40 days from the original date of invoice, whichever is less.

(ii)Accounts which are subject to dispute, counterclaim or setoff.

(iii)Accounts with respect to which the goods have not been shipped, or the services have not been rendered, to the Account Debtor.

(iv)Accounts with respect to which the Joint Administrative Agent, in its sole discretion, deems the creditworthiness or financial condition of the Account Debtor to be unsatisfactory and has notified Borrower of the same.

(v)Accounts of any Account Debtor who has filed or had filed against it a petition in bankruptcy, or an application for relief under any provision of any state or federal bankruptcy, insolvency or debtor-in-relief acts; or who has had appointed a trustee, custodian or receiver for the assets of such Account Debtor; or who has made an assignment for the benefit of creditors or has become insolvent or fails generally to pay its debts (including its payrolls) as such debts become due.

(vi)Accounts arising from cash sales or from collect on delivery sales of inventory.

(vii)Accrued finance charges on Accounts, exclusive of customer finance notes receivable.

(viii)any Account which represents an obligation of an account debtor located in a foreign country except Mexico or Canada.

(ix)any Account which arises from the sale or lease to, or performance of services for, or represents an obligation of, an employee, affiliate, parent, or subsidiary of GPI or the Borrower, except for any Account, with an affiliate approved by the Joint Administrative Agent, on normal and customary terms and provisions.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06 (subject to such consents, if any, as may be required under Section11.06(b)(iii)).

"Eligible Cattle" shall mean cattle owned by the Borrower located in any Approved Location.

"Eligible Crop Inputs" shall mean the costs and expenses incurred in the production of crops by the Borrower.

"Eligible Customer Hedge Account" shall mean the net liquidation value in any Hedging Agreement of any Approved Customer relating to such Approved Customer's Customer Cattle.

"Eligible Customer Notes" shall consist solely of notes of an Approved Customer payable to the Borrower that have been created for the acquisition, feeding and care of Customer Cattle, including any related Eligible Customer Hedge Account.

13

"Eligible Deposit Account" shall mean a deposit account maintained by the Borrower with the Bank of the West.

"Eligible EFR Commodity Account" shall mean the net liquidation value of any EFR Commodity Account subject to a Qualifying Control Agreement.

"Eligible Feed Accounts" shall mean an Eligible Account relating to the sale of Eligible Inventory to a feedlot customer of the Borrower which is secured by an agister's lien.

"Eligible Hedge Accounts" shall mean the net liquidation value in any Hedging Agreement, subject to a Qualifying Control Agreement of the Borrower relating to cattle or Inventory consisting of grain.

"Eligible Hedged Cattle" shall mean Eligible Cattle subject which are subject  to an appropriate futures contract sold on the Chicago Mercantile Exchange for the month the cattle are projected to be sold; or the cattle are contracted and priced with an Approved Packer; or the Cattle are subject to an EFR Commodity Swap.

"Eligible Inventory" shall mean any inventory of feed for Livestock and veterinary supplies, butexcluding:

(i)inventory which is not owned by the Borrower free and clear of all security interests, liens, encumbrances, or claims of any third party;

(ii)inventory which is not permanently located at the Borrower's feed yard;

(iii)inventory which the Joint Administrative Agent, in its sole discretion, deems to be obsolete, unsalable, damaged, defective, or unfit as livestock feed or veterinary supplies.

"Eligible Packer Account" shall mean an Eligible Account owed by an Approved Packer.

"Eligible Prepaid Feed" shall mean the amount paid by the Borrower to a seller of feed to be delivered to the Borrower at a future date, unless the seller is unacceptable to the Joint Administrative Agent, and Joint Administrative Agent has notified Borrower of the same.

"Eligible Protected Cattle" shall mean Eligible Cattle which are subject to appropriate put options  purchased on the Chicago Mercantile Exchange for the month the cattle are projected to be sold and the strike price of the put option is no less than 90% of the corresponding Chicago Mercantile Exchange futures contract price.

“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.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower

14

or any of their respective 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 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.

“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 withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) 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; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA;  (h) the imposition 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 or (i) a failure by the Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

"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.

“Eurodollar Rate” means:

(a)for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”), or a comparable or

15

successor rate which rate is approved by the Joint Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Joint Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at or about 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

(b)for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00 a.m., London time, two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that day;

provided that:  (i) to the extent a comparable or successor rate is approved by the Joint Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided,  further that to the extent such market practice is not administratively feasible for the Joint Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Joint Administrative Agent and (ii) if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

Notwithstanding the foregoing, for purposes of this Agreement, the Eurodollar Rate shall in no event be less than 0% at any time.

“Eurodollar Rate Loan” means a Revolving Loan  that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”

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

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii),  (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA. 

“Facility Termination Date” means the date as of which all of the following shall have occurred:  (a) the Aggregate Commitments have terminated, (b) all Obligations have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit have terminated

16

or expired (other than Letters of Credit as to which other arrangements with respect thereto satisfactory to the Joint Administrative Agent and the L/C Issuer shall have been made).

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

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of the West on such day on such transactions as determined by the Joint Administrative Agent.  If the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

"Federal Reserve Bank of New York's Website" means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

“Fee Letter” means the letter agreement, dated July 12, 2019, between the Borrower and the Joint Administrative Agent.

"Food Security Act" shall mean the Food Security Act of 1985, & U.S.C. §131, as amended, and the regulations promulgated thereunder.

"Food Security Act Notices and Acknowledgements" shall mean a notice to and acknowledgement by any Approved Packer in a form as provided by the Lender.

“Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“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 that is a Revolving Lender, (a) with respect to the L/C Issuer, 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 Revolving Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as to which such

17

Defaulting Lender’s participation obligation has been reallocated to other Revolving 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.

"Futures Contract" shall mean a contract for the future sale of any commodity that has been entered into by the Borrower through the Chicago Board of Trade, the Chicago Mercantile Exchange, the Kansas City Board of Trade, or the New York Mercantile Exchange.

“GAAP” means generally accepted accounting principles in the United States set forth from time to time 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 agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.

“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, without limitation, the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European Central Bank).

"GPI" means Green Plains Inc.

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of the kind described in clauses (a) through (g) of the definition thereof or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed or expressly undertaken by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the

18

maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

"Guarantors" means, collectively the Subsidiaries of the Borrower as are or may from time to time execute and deliver a Guaranty.

"Guaranty" means a guaranty in form and substance acceptable to the Joint Administrative Agents duly executed by any Guarantor.

“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, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.

“Hedge Bank” means any Person in its capacity as a party to a Swap Contract that, at the time it enters into a Swap Contract not prohibited under Section 7.02, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement and provided further that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Joint Administrative Agent, the applicable Hedge Bank (other than the Joint Administrative Agent or an Affiliate of the Joint Administrative Agent) must have delivered a Secured Party Designation Notice to the Joint Administrative Agent prior to such date of determination.

"Hedging Agreement"  shall mean any agreement to enable the Borrower to fix or limit or enable the Borrower to limit the market risk of holding Eligible Cattle in the cash or futures market.

“Honor Date” has the meaning set forth in Section 2.03(c).

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)the maximum amount of all direct or contingent obligations of such Person arising under standby letters of credit  and similar instruments;

(c)net obligations of such Person under any Swap Contract;

(d)all obligations  of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and not past due for more than sixty (60) days after the date on which such trade account was created);

19

(e)indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f)all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations of such Person and all Synthetic Debt of such Person;

(g)all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h)all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indemnitees” has the meaning specified in Section 11.04(b).

“Information” has the meaning specified in Section 11.07.

“Intellectual Property” has the meaning set forth in the Security Agreement.

“Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Revolving Facility under which such Loan was made; provided,  however, that if any Interest Period for a Eurodollar Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swingline Loan, the last Business Day of each calendar quarter and the Maturity Date of the Facility under which such Loan was made (with Swingline Loans being deemed made under the Revolving Facility for purposes of this definition).

“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date [one (1), two (2), three (3) or six (6) months thereafter (in each case, subject to availability), as selected by the Borrower in its Loan Notice, or such other period that is twelve months or less requested by the Borrower and consented to by all of the Lenders;  provided that:

20

(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;

(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 of the Revolving Facility under which such Loan was made.

“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 Equity Interests 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 interest in, another Person (including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guaranties 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 which constitute all or substantially all of the assets of such Person or of a division, line of business or other business unit of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Borrower or any Subsidiary.

“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 L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.

“Joint Administrative Agent” means Bank of the West and ING Capital LLC, in its capacity as Joint Administrative Agents under any of the Loan Documents, or any successor Joint Administrative Agents.

“Joint Administrative Agent’s Office” means the  address and, as appropriate, account as set forth on Schedule 1.01(a), or such other address or account as the Joint Administrative Agents may from time to time notify the Borrower and the Lenders.

“Joint Administrative Questionnaire” means a Joint Administrative Questionnaire in substantially the form of Exhibit A or any other form approved by the Joint Administrative Agent.

21

“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 Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving 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 Revolving Borrowing. 

“L/C Commitment” means, as to each L/C Issuer, its obligation to issue Letters of Credit to the Borrower pursuant to Section 2.03 in an aggregate principal amount at any one time outstanding not to exceed $10,000,000, as such amount may be adjusted from time to time in accordance with this Agreement.

“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 with respect to a particular Letter of Credit, (a) each L/C Issuer in its capacity as issuer of such Letter of Credit[s], or any successor issuer thereof, or such other Lender selected by the Borrower pursuant to Section 2.03(l) from time to time to issue such Letter of Credit (provided that no Lender shall be required to become an L/C Issuer pursuant to this subclause (b) without such Lender's consent), or any successor issuer thereof or (c) any Lender selected by the Borrower (with the prior consent of the Administrative Agent) to replace a Lender who is a Defaulting Lender at the time of such Lender's appointment as an L/C Issuer (provided that no Lender shall be required to become an L/C Issuer pursuant to this subclause (c) without such Lender's consent), or any successor issuer thereof.

“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” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Agreement and, their successors and assigns and, unless the context requires otherwise, includes the Swingline Lender.

“Lending Office” means, as toeitherJoint Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the

22

Borrower and the Joint Administrative Agent;  which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.

“Letter of Credit” means any standby letter of credit issued hereunder.

“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 L/C Issuer

“Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date then in effect for the Revolving Facility (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” means a certificate substantially the form of Exhibit M or any other form approved by the Joint Administrative Agent.

“Letter of Credit Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the Revolving Facility.  The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

“LIBOR” has the meaning specified in the definition of Eurodollar Rate.

"LIBOR Daily Floating Rate"" shall mean a fluctuating rate of interest as of and adjusted on each Business Day, that is equal, from time to time, to a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration (or any other person or entity that takes over the administration of such rate) for deposits in U.S. dollars with a term equivalent to one month appearing on the applicable page or screen at Bloomberg.com (or, in the event such rate does not appear on a Bloomberg.com page or screen, on the appropriate page or screen of such other information service that publishes such rate as shall be selected by the Joint Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m., London time on that day (or, if such day is not a Business Day, the immediately preceding Business Day); provided that in no event shall the LIBOR Daily Floating Rate be less than zero; and provided further, that the LIBOR Daily Floating Rate may be adjusted from time to time in the Joint Administrative Agent's discretion for reserve requirements, deposit insurance assessment rates, and other regulatory costs on that day or, if such day is not a Business Day, the immediately preceding Business Day.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), 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).

"Livestock" shall mean any cattle of the Borrower.

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

23

"Loan Documents" means, collectively, (a) this Agreement, (b) the Notes, (c) the Collateral Documents, (d) the Fee Letter, (e) any Guaranty, (f) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, (g) the Autoborrow Agreement and (h) the Negative Pledge.

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

“Master Agreement” has the meaning set forth in the definition of “Swap Contract.”

“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 rights and remedies of the Joint Administrative Agent or any Lender under any Loan Document, or of the ability of the Borrower to perform its obligations under any Loan 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 to which it is a party.

“Material Contract” means, with respect to any Person, each contract or agreement (a) to which such Person is a party involving aggregate consideration payable to or by such Person of $200,000 or more in any year or (b) otherwise material to the business, condition (financial or otherwise), operations, performance, properties or prospects of such Person or (c) any other contract, agreement, permit or license, written or oral, of the Borrower and its Subsidiaries as to which the breach, nonperformance, cancellation or failure to renew by any party thereto, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

"Maturity Date" means August 31, 2024,  provided,  however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period when a Lender constitutes a Defaulting Lender, an amount equal to 105% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i),  (a)(ii) or (a)(iii), an amount equal to 105% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Joint Administrative Agent and the L/C Issuer in their sole discretion.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“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 (5) plan years, has made or been obligated to make contributions.

24

“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.

"Negative Pledge" means a negative pledge on certain real estate of the Borrower as heretofore or hereafter provided by the Borrower to the Joint Administrative Agent in form and substance acceptable to the Joint Administrative Agent.

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.

“Note” means a Swingline Note or a Revolving Note, as the context may require.

“Notice of Additional L/C Issuer” means a certificate substantially the form of Exhibit N or any other form approved by the Joint Administrative Agent.

“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit Lor such other form as may be approved by the Joint Administrative Agent(including any form on an electronic platform or electronic transmission system as shall be approved by the Joint Administrative Agent), appropriately completed and signed by a Responsible Officer.

“Obligations” means (a) 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 and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case 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 Affiliate thereof pursuant to 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.

"OCI" means the accumulated amount of other comprehensive income, as set forth in the most recent Compliance Certificate, related to any Hedging Agreement with respect to Eligible Cattle, as such OCI may be adjusted by the Joint Administrative Agents from time to time.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Officer’s Certificate” means a certificate substantially the form of Exhibit H or any other form approved by the Joint Administrative Agent.

"One-Month Position Report Excess" means the amount on the Borrowing Base Certificate reflecting the Borrowing Base Excess/(Deficit), as determined by the Joint Administrative Agent.

“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

25

certificate or articles of formation or organization and operating agreement or limited liability company agreement (or equivalent or comparable documents with respect to any non-U.S. jurisdiction); (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 (or equivalent or comparable documents with respect to any non-U.S. jurisdiction) and (d) with respect to all entities, 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 (or equivalent or comparable documents with respect to any non-U.S. jurisdiction).

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient 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 any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan 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).

“Outstanding Amount” means (a) with respect to  Revolving Loans and Swingline Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of  Revolving Loans and Swingline 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 11.06(d).

“Participant Register” has the meaning specified in Section 11.06(d).

"Payables" means all trade payables of the Borrower.

“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

26

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 Distributions" means an amount not to exceed ninety percent (90%) of pretax income, one hundred percent (100%) of negative pretax income, plus depreciation, plus capital contributions, minus Capital Expenditures, minus term debt payments.

“Permitted Liens” has the meaning set forth in Section 7.01.

“Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of business; (b) Dispositions of property to the Borrower or any Subsidiary (c) Dispositions of accounts receivable in connection with the collection or compromise thereof; (d) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries; and (e) the sale or disposition of Cash Equivalents for fair market value.

“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.

“Platform” has the meaning specified in Section 11.02.

"Prepaid Transactions" means the amount equal to any prepayment by customers of the Borrower for feed or other goods or services provided by the Borrower.

"Projected Crop Revenue" shall mean the projected revenue from the sale of crops (including program payments).

“Public Lender” has the meaning specified in Section 11.02.

“Qualifying Control Agreement”means an agreement, among the Borrower, a depository institution, securities intermediary, commodity broker or Hedge Bank and the Joint Administrative Agent, which agreement is in form and substance acceptable to the Joint Administrative Agent and which provides the Joint Administrative Agent with “control” (as such term is used in Article 9 of the UCC) over the deposit account(s),  securities account(s), investment property or such interests covered by a Swap Contract as described therein or as otherwise acceptable to the Joint Administrative Agents.

“Recipient” means the Joint Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder.

“Reduction Amount” has the meaning set forth in Section 2.05(b)(viii).

“Register” has the meaning specified in Section 11.06(c).

27

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

"Relevant Governmental Body" means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

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

“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swingline Loan at any time an Autoborrow Agreement is not in effect, a Swingline Loan Notice.

“Required Lenders” means, at any time, at least two (2) Lenders having Total Credit Exposures representing at least 51% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swingline 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 Swingline Lender or L/C Issuer, as the case may be, in making such determination.

“Resignation Effective Date” has the meaning set forth in Section 9.06.

“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of the Borrower, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of the Borrower 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 Joint Administrative Agent or any other officer or employee of the Borrower designated in or pursuant to an agreement between the Borrower and the Joint 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 the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower. To the extent requested by the Joint Administrative Agent, each Responsible Officer will provide an incumbency certificate and to the extent requested by the Joint Administrative Agent, appropriate authorization documentation, in form and substance satisfactory to the Joint Administrative Agent.

“Restricted Payment” means (a) any dividend or other distribution (including without limitation Permitted Distributions), direct or indirect, on account of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries, now or hereafter outstanding, and (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares (or equivalent) of any class of Equity Interests of the Borrower or any of its Subsidiaries, now or hereafter outstanding.

28

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

“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swingline 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 1.01(b) under the caption “Revolving Commitment” or opposite such caption 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. 

“Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swingline Loans at such time.

“Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.

“Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swingline Loans at such time.

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

“Revolving Note” means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans or Swingline Loans, as the case may be, made by such Revolving Lender, substantially in the form of Exhibit E.

“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., and any successor thereto.

“Sale and Leaseback Transaction” means, with respect to the Borrower or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Borrower or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“Sanction(s)” means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

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

“Secured Cash Management Agreement” means any Cash Management Agreement between the Borrower and any Cash Management Bank.

29

“Secured Hedge Agreement” means any interest rate, currency, foreign exchange, or commodity Swap Contract not prohibited under Section 7.02between the Borrower and any of its Subsidiaries and any Hedge Bank.

“Secured Obligations” means all Obligations and all Additional Secured Obligations.

“Secured Parties” means, collectively, the Joint Administrative Agent, the Lendersthe L/C Issuer, the Hedge Banks, the Cash Management Banks,the Indemnitees and each co-agent or sub-agent appointed by the Joint Administrative Agent from time to time pursuant to Section 9.05.

“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit F.

“Security Agreement” means the security and pledge agreement, dated as of December 3, 2014, executed in favor of the Joint Administrative Agent by the Borrower.

"SOFR" with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York's Website.

“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) 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, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Subordinated Debt” means  Indebtedness incurred by the Borrower which by its terms (a) is subordinated in right of payment to the prior payment of the Obligations and (b) contains other terms, including without limitation, standstill, interest rate, maturity and amortization, and insolvency-related provisions, in all respects reasonably acceptable to the Joint Administrative Agent

“Subordinated Debt Documents” means  all  agreements (including without limitation intercreditor agreements, instruments and other documents) pursuant to which Subordinated Debt has been or will be issued or otherwise setting forth the terms of any Subordinated Debt.

“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 Voting Stock is 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.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

30

“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 Obligations” means with respect to any Borrower any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“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).

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

“Swingline Lender” means Bank of the West in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder.

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

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

"Swingline Sublimit" means an amount equal to the lesser of (a) $20,000,000 and (b) the Revolving Facility.  The Swingline Sublimit is part of, and not in addition to, the Revolving Facility.

“Synthetic Debt” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds  but are not otherwise included in the definition of “Indebtedness” or as a liability on the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.

31

“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including Sale and Leaseback Transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

"Tangible Net Worth" means the excess of the total assets of the Borrower over the total liabilities of the Borrower exclusive of OCI, where total assets and total liabilities each to be determined in accordance with GAAP consistent with those applied in the preparation of Borrower's opening balance sheet referred to in Section 5.05 excluding, however, from the determination of total assets:  (i) goodwill, organizational expenses, research and development expenses, trademarks, trade names, copyrights, patents, patent applications, licenses and rights in any thereof, and other similar intangibles; (ii) treasury stock; (iii) securities that are not readily marketable; (iv) cash held in a sinking or other analogous fund established for the purpose of redemption, retirement, or prepayment of capital stock; (v) any write up in the book value of any asset resulting from a revaluation thereof subsequent to the date first above written; and (vi) any items not included in clauses (i) through (v) above that are treated as intangibles in conformity with GAAP.

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

"Term SOFR" means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

"Three-Month Position Report Excess" means, as of the date the Applicable Margin is set, the average of the One-Month Position Report Excess for each of the three months preceding the previous calendar month as set forth in any applicable Borrowing Base Certificate, as adjusted or revised by the Joint Administrative Agent from time to time.

"Threshold Amount" means $200,000.

“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Exposure

"Total Debt" means the Indebtedness of the Borrower.

"Total Debt to Tangible Net Worth" means the ratio of Total Debt to Tangible Net Worth.

"Total Revolving Credit Exposure" means, as to any Revolving Lender at any time, the unused Commitments and Revolving Exposure of such Revolving Lender at such time.

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

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

32

“UCC” means the Uniform Commercial Code as in effect in the State of Nebraska; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Delaware, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

"Unadjusted Benchmark Replacement" means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

"Undermargined Position"  means the amount by which the balance of any Eligible Customer Note exceeds eighty percent (80%) Value of the Customer Cattle related to such Eligible Customer Note.

"Undisclosed Administration" means in relation to a Lender or its direct or indirect parent company the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regular under or based on the law in the country where such person is subject to home jurisdiction supervision if applicable law required that such appointment is not to be publicly disclosed.

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

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

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(3).

"Value" shall mean with respect to (i) Eligible Inventory consisting of feed, the bid for such Eligible Inventory from a prospective purchaser of such Eligible Inventory within the general location of Borrower, and Eligible Inventory consisting of veterinary supplies, at cost; (ii) Eligible Cattle, Eligible Protected Cattle, Eligible Hedged Cattle, and Customer Cattle, at the Joint Administrative Agent's sole discretion, either (x) the current weight of such cattle multiplied by the current market price, as quoted by Cattle Fax or another independent and reliable source acceptable to the Joint Administrative Agent, (y) at Cost-to-Finish, or (z) otherwise such value as determined by the Joint Administrative Agent; and (iii) Eligible Outside Cattle, at the Joint Administrative Agent's sole discretion, either (x) the current weight of such cattle multiplied by the current market price, as quoted by Cattle Fax or another independent and reliable source acceptable to the Joint Administrative Agent, or (y) at cost.

“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote has been suspended by the happening of such contingency.

33

"Working Capital" means Current Assets, minus OCI and minus Current Liabilities.

"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 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.

1.02Other 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, (i) any definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, modified, extended, restated, replaced or supplemented from time to time (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, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and 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, extended, restated, replaced 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)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.”

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

1.03Accounting 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

34

and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Borrower's financial statements, except as otherwise specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.

(b)Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Joint 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 GAAP (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 GAAP prior to such change therein and (ii) the Borrower shall provide to the Joint 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 GAAP. 

1.04Rounding. 

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).

1.05Times of Day. 

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

1.06Letter 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,however, 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.

1.07UCC Terms. 

Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions. 

35

Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.

ARTICLE II

COMMITMENTS AND CREDIT EXTENSIONS

2.01Loans.

Revolving Borrowings.  Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower, in Dollars, 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 Revolving Commitment; provided,however, that after giving effect to any Revolving Borrowing, (i) the Total Revolving Outstandings shall not exceed the lesser of the Revolving Facility or the Borrowing Base, and (ii) the Revolving Exposure of any Lender shall not exceed such Revolving Lender’s Revolving Commitment.  Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow Revolving Loans, prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

2.02Borrowings, Conversions and Continuations of Loans.

(a)Notice of Borrowing.  Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Joint Administrative Agent, which may be given by: (A) telephone or (B) a Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Joint Administrative Agent of a Loan Notice.  Each such Loan Notice must be received by the Joint Administrative Agent not later than 11:00 a.m. (i) three (3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans  or of any conversion of Eurodollar Rate Loans  to Base Rate Loans,  and (ii) on the requested date of any Borrowing of Base Rate Loans; provided,  however, that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one (1), two (2), three (3) or six (6) months in duration as provided in the definition of “Interest Period”, the applicable notice must be received by the Joint Administrative Agent not later than 11:00 a.m. (i) four (4) Business Days prior to the requested date of such Borrowing, conversion or continuation whereupon the Joint 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., (i) three (3) Business Days before the requested date of such Borrowing, conversion or continuation, the Joint 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 Eurodollar Rate Loansshall 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(b), each Borrowing of or conversion to Base Rate Loansshall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess hereof.  Each Loan Notice and each telephonic notice shall specify (A) the Revolving Facility and whether the Borrower is requesting a

36

Borrowing, a conversion of Loans from one Type to the other, or a continuation of Loans, as the case may be, under the Revolving  Facility, (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (C) the principal amount of Loans to be borrowed, converted or continued, (D) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (E) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable 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 Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.  Notwithstanding anything to the contrary herein, a Swingline Loan may not be converted to a Eurodollar Rate Loan. 

(b)Advances.  Following receipt of a Loan Notice for the Revolving Facility, the Joint Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage under the Revolving Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Joint Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a).  In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Joint Administrative Agent in immediately available funds at the Joint Administrative Agent’s Office not later than 1:00 p.m.  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 Joint Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Joint Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of the West 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 Joint Administrative Agent by the Borrower; provided,  however, that if, on the date a Loan Notice with respect to a Revolving Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving 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.

(c)Eurodollar Rate Loans.  Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.

(d)Notice of Interest Rates. The Joint Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  At any time that Base Rate Loansare outstanding, the Joint Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of the West’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

37

(e)Interest Periods. After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect in respect of the Revolving Facility.

2.03Letters of Credit.

(a)The Letter of Credit Commitment.

(i)Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section, (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  in Dollars  for the account of the Borrower, and to amend  Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Revolving 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, (x) the Total Revolving Outstandings shall not exceed the Revolving Facility, (y) the Revolving Exposure of any Revolving Lender shall not exceed such Lender’s Revolving Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit;  provided,  further, that after giving effect to all L/C Credit Extensions, the aggregate Outstanding Amount of all L/C Obligations of any L/C Issuer shall not exceed such L/C Issuer’s L/C Commitment.  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)The L/C Issuer shall not issue any Letter of Credit if:

(A)the expiry date of the requested Letter of Credit would occur more than twelve (12) months after the date of issuance, 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 Revolving Lenders have approved such expiry date.

(iii)The L/C Issuer shall not 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 L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law)

38

from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit  in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the 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 L/C Issuer applicable to letters of credit  generally;

(C)except as otherwise agreed by the Joint Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $500,000;

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

(E)any Revolving Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Revolving Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.14(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 the 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.

(iv)The L/C Issuer shall not amend any Letter of Credit if the 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 L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to the Letter of Credit.

(vi)The L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Joint Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to

39

such Letters of Credit as fully as if the term “Joint Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

(b)Procedures for Issuance and Amendment of 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 L/C Issuer (with a copy to the Joint 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 fax transmission, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Joint Administrative Agent not later than 11:00 a.m.at least two (2) Business Days (or such later date and time as the Joint Administrative Agent and the 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 L/C Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount  thereof denominated in Dollars; (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; and (H) such other matters as the 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 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 the L/C Issuer may require.  Additionally, the Borrower shall furnish to the L/C Issuer and the Joint Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Joint Administrative Agent may require.

(ii)Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Joint Administrative Agent (by telephone or in writing) that the Joint Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Joint Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Revolving Lender, the Joint Administrative Agent or the Borrower, at least one (1) 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, the 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 the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each

40

Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Lender’s Applicable Revolving Percentage times the amount of such Letter of Credit.

(iii)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 L/C Issuer will also deliver to the Borrower and the Joint Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(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 L/C Issuer shall notify the Borrower and the Joint Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit  (each such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the Joint Administrative Agent  in an amount equal to the amount of such drawing .If the Borrower fails to so reimburse the L/C Issuer by such time, the Joint Administrative Agent shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing  (the “Unreimbursed Amount”), and the amount of such Revolving Lender’s Applicable Revolving Percentage thereof.  In such event, the Borrower shall be deemed to have requested a Revolving 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 Revolving Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice).  Any notice given by the L/C Issuer or the Joint 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 Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Joint Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at the Joint Administrative Agent’s Office  in an amount equal to its Applicable Revolving Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Joint Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Joint Administrative Agent shall remit the funds so received to the L/C Issuer.

(iii)With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving 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 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

41

bear interest at the Default Rate.  In such event, each Revolving Lender’s payment to the Joint Administrative Agent for the account of the 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.

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

(v)Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the L/C Issuer 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 the L/C Issuer, the Borrower, any Subsidiary 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,however, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi)If any Revolving Lender fails to make available to the Joint Administrative Agent for the account of the 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, the L/C Issuer shall be entitled to recover from such Lender (acting through the Joint 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 L/C Issuer at a rate per annum equal to the [greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation], plus any administrative, processing or similar fees customarily charged by the 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 Revolving Loan included in the relevant Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Revolving Lender (through the Joint Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.

(d)Repayment of Participations.

(i)At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Lender’s L/C

42

Advance in respect of such payment in accordance with Section 2.03(c), if the Joint Administrative Agent receives for the account of the 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 Joint Administrative Agent), the Joint Administrative Agent will distribute to such Lender its Applicable Revolving Percentage thereof in the same funds as those received by the Joint Administrative Agent.

(ii)If any payment received by the Joint Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay to the Joint Administrative Agent for the account of the L/C Issuer its Applicable Revolving Percentage thereof on demand of the Joint 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 the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, 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;

(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), the L/C Issuer or any other Person, whether in connection with this Agreement or by such Letter of Credit, the transactions contemplated hereby or any agreement or instrument relating thereto, or any unrelated transaction;

(iii)any draft, demand, endorsement, certificate or other document presented under or in connection with 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)waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;

(v)honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

43

(vi)any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;

(vii)any payment by the 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 the 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

(viii)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 of its Subsidiaries.

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 L/C Issuer.  The Borrower shall be conclusively deemed to have waived any such claim against the 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 L/C Issuer shall not have any responsibility to obtain any document (other than any sight or time 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 L/C Issuer, the Joint Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the 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 Revolving Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document 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,however, 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 L/C Issuer, the Joint Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in Section 2.03(e);  provided,  however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the 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, as determined by a final nonappealable judgment of a court of competent jurisdiction, were caused by the L/C

44

Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight or time 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 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 the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring, endorsing or assigning or purporting to transfer, endorse 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.  The 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 and UCP; Limitation of Liability.  Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued the rules of the ISP shall apply to each standby Letter of Credit.  Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(h)Letter of Credit Fees.  The Borrower shall pay to the Joint Administrative Agent for the account of each Revolving Lender in accordance, subject to Section 2.15, with its Applicable Revolving Percentagea Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate for Revolving Loans that are Eurodollar Rate Loans times the  daily amount available to be drawn under such Letter of Credit.  Letter of Credit Fees shall be (1) due and payable onthe last Business Dayof each calendar quarter end, 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 (2) computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate during any quarter, the daily amount 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. 

(i)Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the 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 onor prior to the date that is ten (10) Business Days following each quarter end, 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

45

be determined in accordance with Section 1.06.  In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the 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 Joint Administrative Agent.  Unless otherwise agreed by the Joint Administrative Agent, each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section, provide the Joint Administrative Agent 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 Joint Administrative Agent shall reasonably request as to the Letters of Credit issued by such L/C Issuer; and

(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 Joint 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) an L/C Credit Extension occurs 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.

(l)Additional L/C Issuers.  Any Lender hereunder may become an L/C Issuer upon receipt by the Joint Administrative Agent of a fully executed Notice of Additional L/C Issuer which shall be signed by the Borrower, the Joint Administrative Agent and each L/C Issuer.  [Such new L/C Issuer shall provide its L/C Commitment in such Notice of Additional L/C Issuer and upon the receipt by the Joint Administrative Agent of the fully executed Notice of Additional L/C Issuer, the defined term L/C Commitment shall be deemed amended to incorporate the L/C Commitment of such new L/C Issuer.

46

2.04Swingline Loans.

(a)The Swingline.  Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance upon the agreements of the other Lenders set forth in this Section, may in its sole discretion subject to the terms of any Autoborrow Agreement make loans to the Borrower (each such loan, a “Swingline Loan”).  Each such Swingline Loan may be made, subject to the terms and conditions set forth herein and in the Autoborrow Agreement then in effect, to the Borrower, in Dollars, 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 Swingline Sublimit, notwithstanding the fact that such Swingline Loans, when aggregated with the Applicable Revolving Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Lender acting as Swingline Lender, may exceed the amount of such Lender’s Revolving Commitment; provided,  however, that (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings shall not exceed the Revolving Facility at such time, and (B) the Revolving Exposure of any Revolving Lender at such time shall not exceed such Lender’s Revolving Commitment, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section, prepay under Section 2.05, and reborrow under this Section.  Each Swingline Loan shall bear interest at the LIBOR Daily Floating Rate plus 2.75% per annum.  Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Revolving Percentage times the amount of such Swingline Loan.

(b)Borrowing Procedures. 

(i)  At any time an Autoborrow Agreement is not in effect, Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Joint Administrative Agent, which may be given by:  (A) telephone or (B) a Swingline Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Swingline Lender and the Joint Administrative Agent of a Swingline Loan Notice.  Each such Swingline Loan Notice must be received by the Swingline Lender and the Joint Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date of the Borrowing (which shall be a Business Day).  Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm with the Joint Administrative Agent (by telephone or in writing) that the Joint Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Joint Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swingline Lender has received notice (by telephone or in writing) from the Joint Administrative Agent (including at the request of any Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swingline Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the first proviso to the

47

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 Swingline Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swingline Loan Notice, make the amount of its Swingline Loan available to the Borrower at its office by crediting the account of the Borrower on the books of the Swingline Lender in immediately available funds.

(iii) In order to facilitate the borrowing of Swingline Loans, the Borrower and the Swingline Lender may mutually agree to, and are hereby authorized to, enter into an Autoborrow Agreement in form and substance satisfactory to the Joint Administrative Agent and the Swingline Lender (the “Autoborrow Agreement”) providing for the automatic advance by the Swingline Lender of Swingline Loans under the conditions set forth in such agreement, which shall be in addition to the conditions set forth herein.  At any time an Autoborrow Agreement is in effect, the requirements for Swingline Borrowings set forth in the immediately preceding paragraph shall not apply, and all Swingline Borrowings shall be made in accordance with the Autoborrow Agreement;  provided that any automatic advance made by Bank of the West in reliance of the Autoborrow Agreement shall be deemed a Swingline Loan as of the time such automatic advance is made notwithstanding any provision in the Autoborrow Agreement to the contrary.  For purposes of determining the Outstanding Amount under the Aggregate Commitments at any time during which an Autoborrow Agreement is in effect, the Outstanding Amount of all Swingline Loans shall be deemed to be the amount of the Swingline Sublimit.  For purposes of any Swingline Borrowing pursuant to the Autoborrow Agreement, all references to Bank of the Westin the Autoborrow Agreement shall be deemed to be a reference to Bank of the West, in its capacity as Swingline Lender hereunder.

(c)Refinancing of Swingline Loans.

(i)The Swingline Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Revolving Percentage of the amount of Swingline Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a 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 Revolving Facility and the conditions set forth in Section 4.02.  The Swingline Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Joint Administrative Agent.  Each Revolving Lender shall make an amount equal to its Applicable Revolving Percentage of the amount specified in such Loan Notice available to the Joint Administrative Agent in immediately available funds (and the Joint Administrative Agent may apply Cash Collateral available with respect to the applicable Swingline Loan) for the account of the Swingline Lender at the Joint Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have

48

made a Base Rate Loan to the Borrower in such amount.  The Joint Administrative Agent shall remit the funds so received to the Swingline Lender.

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

(iii)If any Revolving Lender fails to make available to the Joint Administrative Agent for the account of the Swingline 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 Swingline Lender shall be entitled to recover from such Lender (acting through the Joint 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 Swingline Lender at a rate per annum equal to the [greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation], plus any administrative, processing or similar fees customarily charged by the Swingline 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 Revolving Loan included in the relevant Revolving Borrowing or funded participation in the relevant Swingline Loan, as the case may be.  A certificate of the Swingline Lender submitted to any Lender (through the Joint Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

(iv)Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline 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 Swingline 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; providedhowever, that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice).  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.

(d)Repayment of Participations.

(i)At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute

49

to such Revolving Lender its Applicable Revolving Percentage thereof in the same funds as those received by the Swingline Lender.

(ii)If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Applicable Revolving Percentage thereof on demand of the Joint 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 Joint Administrative Agent will make such demand upon the request of the Swingline 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 Swingline Lender.  The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline Loans.  Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section to refinance such Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in respect of such Applicable Revolving Percentage shall be solely for the account of the Swingline Lender.

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

2.05Prepayments.

(a)Optional.

(i)The Borrower may, upon notice to the Joint Administrative Agent pursuant to delivery to the Joint Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay  Revolving Loans in whole or in part without premium or penalty subject to Section 3.05;  provided that, unless otherwise agreed by the Joint Administrative Agent,  (A) such notice must be received by the Joint Administrative Agent not later than 11:00 a.m. (1) three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000or a whole multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loansshall 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 Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Joint Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the Revolving Facility).  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

50

specified therein.  Any prepayment of principal 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 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.

(ii)At any time the Autoborrow Agreement is not in effect, the Borrower may, upon notice to the Swingline Lender pursuant to delivery to the Swingline Lender of a Notice of Loan Prepayment (with a copy to the Joint Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided that, unless otherwise agreed by the Swingline Lender, (A) such notice must be received by the Swingline Lender and the Joint Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess hereof (or, if less, the entire principal thereof then outstanding).  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.  Any prepayment of principal shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.

(b)Mandatory.

(i)Revolving Outstandings.  If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility or the Borrowing Base at such time, the Borrower shall within five days prepay Revolving Loans, Swingline Loans and L/C Borrowings (together with all accrued but unpaid interest thereon) and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless, after the prepayment of the Revolving Loans and Swingline Loans, the Total Revolving Outstandings exceed the lesser of the sum of the Borrowing Base and the Revolving Facility at such time.

(ii)Application of Other Payments.  Except as otherwise provided in Section 2.15, prepayments of the Revolving Facility made pursuant to this Section 2.05(b),  first, shall be applied ratably to the L/C Borrowings and the Swingline Loans, second, shall be applied to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Facility required pursuant to clause (i) and (ii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swingline Loans and Revolving Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii).  Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied

51

(without any further action by or notice to or from the Borrower  or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the Revolving Lenders, as applicable.

Within the parameters of the applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest Period maturities.  All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.

2.06Termination or Reduction of Commitments.

(a)The Borrower may, upon notice to the Joint Administrative Agent, terminate the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit; provided that (i) any such notice shall be received by the Joint Administrative Agent not later than 11:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Revolving Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Letter of Credit Sublimit. 

(b)Application of Commitment Reductions; Payment of Fees.The Joint Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swingline Sublimit or the Revolving Commitment under this Section 2.06.  Upon any reduction of the Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Applicable Revolving Percentage of such reduction amount.  All fees in respect of the Revolving Facility accrued until the effective date of any termination of the Revolving Facility shall be paid on the effective date of such termination.

2.07 Repayment of Loans.

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

(b)Swingline Loans.  At any time the Autoborrow Agreement is in effect, the Swingline Loans shall be repaid in accordance with the terms of the Autoborrow Agreement.  At any time the Autoborrow Agreement is not in effect, The Borrower shall repay each Swingline Loan on the earlier to occur of (i) the date ten (10) Business Days after such Loan is made and (ii) the Maturity Date for the Revolving Facility. 

52

2.08Interest and Default Rate.

(a)Interest.  Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan under the Revolving Facility shall bear interest on the outstanding principal amount thereof for each Interest Period from the applicable borrowing date at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate for such Facility;  (ii) each Base Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility; and (iii) each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the LIBOR Daily Floating Rate plus 3.00% per annum.

(b)Default Rate.

(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 (including a payment default), all outstanding Obligations (including Letter of Credit Fees) may accrue 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 Payments.  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.

2.09Fees.  In addition to certain fees described in this Agreement:  

(a)Non-Use Fee.  The Borrower shall pay to the Joint Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Revolving Facility exceeds the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15.  The Non-Use fee shall accrue at all times during the 

53

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 for the Revolving Facility.  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.

(b)Other Fees.

(i)The Borrower shall pay to the Joint Administrative Agent for its own accountfees 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.

(ii)The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

2.10Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.

(a)Computation of Interest and Fees.  All computations of interest for Base Rate Loans(including Base Rate Loans determined by reference to the Eurodollar 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 (1) day.  Each determination by the Joint Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

(b)Financial Statement Adjustments or Restatements.  If, as a result of any restatement of or other adjustment to the Borrowing Base of the Borrower and its Subsidiaries or for any other reason, the Borrower, or the Lenders determine that (i) the  as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Borrowing Base would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Joint Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Joint Administrative Agent (or, after 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, automatically and without further action by the Joint Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  This paragraph shall not limit the rights of the Joint Administrative Agent, any Lender or the L/C Issuer, as the case

54

may be, under any provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under Article VIII.  The Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.

2.11Evidence of Debt.

(a)Maintenance of Accounts.  The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Joint Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Joint 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 Joint Administrative Agent in respect of such matters, the accounts and records of the Joint Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Joint Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Joint 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)Maintenance of Records.  In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Joint 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 Swingline Loans.  In the event of any conflict between the accounts and records maintained by the Joint Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Joint Administrative Agent shall control in the absence of manifest error.

2.12Payments Generally; Joint 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 Joint Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the [applicable] Joint Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Joint Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the Revolving Facility (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 payments received by the Joint Administrative Agent  after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  Subject to Section 2.07(a) and as otherwise specifically provided for in this Agreement, 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

55

the Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

(b)(i)Funding by Lenders; Presumption by Joint Administrative Agent.  Unless the Joint Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Joint Administrative Agent such Lender’s share of such Borrowing, the Joint 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 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 Borrowing available to the Joint Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Joint 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 Joint Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Joint Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Joint 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 Joint Administrative Agent for the same or an overlapping period, the Joint 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 Borrowing to the Joint Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such 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 Joint Administrative Agent.

(ii)Payments by Borrower; Presumptions by Joint Administrative Agent.  Unless the Joint Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Joint Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Joint 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 Appropriate Lenders or the L/C Issuer, 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 Appropriate Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Joint Administrative Agent forthwith on demand the amount so distributed to such Lender or the 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 Joint Administrative Agent, at the greater of the Federal Funds

56

Rate and a rate determined by the Joint Administrative Agent in accordance with banking industry rules on interbank compensation.

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

(c)Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Joint 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 Joint 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 Joint 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  Revolving Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(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 Loan, to purchase its participation or to make its payment under Section 11.04(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.

(f)Pro Rata Treatment.  Except to the extent otherwise provided herein:  (i) each Borrowing (other than Swingline Borrowings) shall be made from the Appropriate Lenders, each payment of fees under Section 2.09 and 2.03(h) and (i) shall be made for account of the Appropriate Lenders, and each termination or reduction of the amount of the Commitments shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Revolving Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each payment of interest on Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Appropriate Lenders.

2.13Sharing of Payments by Lenders.

If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender

57

at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify the Joint Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swingline 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 Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:

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

(2)the provisions of this Section shall not be construed to apply to (x) 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), (y) the application of Cash Collateral provided for in Section 2.14, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swingline Loans to any assignee or participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply).

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

2.14Cash Collateral. 

(a)Certain Credit Support Events.  If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral

58

pursuant to Section 2.05 or 8.02(c), or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one (1) Business Day (in all other cases) following any request by the Joint Administrative Agent or the L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender).  Additionally, if the Joint Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then within two (2) Business Days after receipt of such notice, the Company shall provide Cash Collateral for the Outstanding Amount of the L/C Obligations in an amount not less than the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.

(b)Grant of Security Interest.  The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Joint Administrative Agent, for the benefit of the Joint Administrative Agent, the L/C Issuer and the Lenders, 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 2.14(c).  If at any time the Joint Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Joint Administrative Agent or the L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Joint Administrative Agent, pay or provide to the Joint Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more blocked, non-interest bearing deposit accounts at Bank of the West.  The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.

(c)Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03,  2.05,  2.15 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Revolving Lender that is 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 to secure 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 Revolving Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the determination by the Joint Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided,  however, (A) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (B) the

59

Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

2.15Defaulting Lenders.

(a)Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(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 Section 11.01.  

(ii)Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other amounts received by the Joint Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Joint Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Joint Administrative Agent as follows:  first, to the payment of any amounts owing by such Defaulting Lender to the Joint Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swingline Lender hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.14;  fourth, as the Borrower may request (so long as no Default or Event of 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 Joint Administrative Agent;  fifth, if so determined by the Joint Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.14;  sixth, to the payment of any amounts owing to the Lenders, the L/C Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the Swingline 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 or Event of 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 as may be required under the Loan Documents in connection with any Lien conferred thereunder or directed by a court of competent jurisdiction; provided that if (1) 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 (2) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied

60

or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations 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 Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.15(a)(v).  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 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)Certain Fees.

(A)Fees.  No Defaulting Lender shall be entitled to receive any fee payable under 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 that Defaulting Lender).

(B)Letter of Credit Fees. Each Defaulting Lender shall be entitled to receive Letter of Credit Feesfor any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Revolving Percentage of the stated amount of Letters of Creditfor which it has provided Cash Collateral pursuant to Section 2.14. 

(C)Defaulting Lender Fees. With respect to any fee payable under Section 2.09or any Letter of Credit Feenot required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (1) 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 Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to the L/C Issuer and Swingline 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 Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.

(iv)Reallocation of Applicable Revolving Percentages to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (A) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Joint Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (B) such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.  No

61

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 Swingline Loans.  If the reallocation described in clause (a)(v) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (A) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (B) second, Cash Collateralize the L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.14.

(b)Defaulting Lender Cure.  If the Borrower, the Joint Administrative Agent, Swingline Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Joint 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 Joint Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.15(a)(iv)), whereupon such 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.

2.16Increase in Revolving Facility.

(a)Request for Increase.  Provided there exists no Default, upon notice to the Joint Administrative Agent (which shall promptly notify the Revolving Lenders), the Borrower may from time to time, request an increase in the Revolving Facility (for all such requests) not exceeding $100,000,000 (an “Incremental Facility”); provided that (i) any such request for an Incremental Facility shall be in a minimum amount of $10,000,000 plus additional increments in the amount of $5,000,000, and (ii) the Borrower may make a maximum of three (3) such requests.  At the time of sending such notice, the Borrower (in consultation with the Joint Administrative Agent) shall specify the time period within which each Revolving Lender is requested to respond which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Revolving Lenders.

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

62

(c)Notification by Joint Administrative Agent; Additional Revolving Lenders.  The Joint Administrative Agent shall notify the Borrower and each Revolving Lender of the Revolving Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase, and subject to the approval of the Joint Administrative Agent, the L/C Issuer and the Swingline Lender, the Borrower may also invite additional Eligible Assignees to become Revolving Lenders pursuant to a joinder agreement (“New Revolving Lenders”) in form and substance satisfactory to the Joint Administrative Agent and its counsel.

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

(e)Conditions to Effectiveness of Increase.  As a condition precedent to such increase, the Borrower shall deliver to the Joint Administrative Agent a certificate of the Borrower dated as of the Revolving Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and (ii) 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 Revolving Increase Effective Date, and except that for purposes of this Section, the representations and warranties contained in subsections (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) both before and after giving effect to the Incremental Facility, no Default exists.  The Borrower shall deliver or cause to be delivered any other customary documents, including, without limitation, legal opinions) as reasonably requested by the Joint Administrative Agent in connection with any Incremental Facility. The Borrower shall prepay any Revolving Loans outstanding on the Revolving Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Applicable Revolving Percentages arising from any nonratable increase in the Revolving Commitments under this Section.

(f)Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13 or 11.01 to the contrary.

(g)Incremental Facility.  Except as otherwise specifically set forth herein, all of the other terms and conditions applicable to such Incremental Facility shall be identical to the terms and conditions applicable to the Revolving Facility.

63

ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

3.01Taxes. 

(a)Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. 

(i)Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in the good faith discretion of the Joint Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Joint Administrative Agent or the Borrower, then the Joint Administrative Agent or the Borrower shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.

(ii)If the Borrower or the Joint Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States federal backup withholding and withholding taxes, from any payment, then (A) the Joint Administrative Agent shall withhold or make such deductions as are determined by the Joint Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Joint Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(iii)If the Borrower or the Joint Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) the Borrower or the Joint Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Borrower or the Joint Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

64

(b)Payment of Other Taxes by the Borrower.  Without limiting the provisions of subsection (a) above, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Joint Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)Tax Indemnifications.

(i)The Borrower shall, and does hereby, indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after 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 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, 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 the L/C Issuer (with a copy to the Joint Administrative Agent), or by the Joint Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error. The Borrower shall also, and does hereby, indemnify the Joint Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Joint Administrative Agent as required pursuant to Section 3.01(c)(ii) below. 

(ii)Each Lender and the L/C Issuer shall, and does hereby, severally indemnify and shall make payment in respect thereof within ten (10) days after demand therefor, (A) the Joint Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer (but only to the extent that the Borrower has not already indemnified the Joint Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (B) the Joint Administrative Agent and the Borrower, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register, (C) the Joint Administrative Agent and the Borrower, as applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Joint Administrative Agent or the Borrower 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 and (D) the failure of any lender to comply with any applicable FATCA requirements.  A certificate as to the amount of such payment or liability delivered to any Lender by the Joint Administrative Agent shall be conclusive absent manifest error.  Each Lender and the L/C Issuer hereby authorizes the Joint Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Joint Administrative Agent under this clause (ii). 

(d)Evidence of Payments.  Upon request by the Borrower or the Joint Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or

65

by the Joint Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Joint Administrative Agent or the Joint 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 Joint 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 with respect to payments made under any Loan Document shall deliver to the Borrower and the Joint Administrative Agent, at the time or times reasonably requested by the Borrower or the Joint Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Joint Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Joint Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Joint Administrative Agent as will enable the Borrower or the Joint Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A),  (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,

(A)any Lender that is a U.S. Person shall deliver to the Borrower and the Joint 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 Joint Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Joint 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 Joint Administrative Agent), whichever of the following is applicable:

(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with

66

respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN 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;

(2)executed originals of IRS Form W-8ECI;

(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit I-1 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 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or

(4)to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, 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 substantially in the form of Exhibit I-4 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 Joint 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 Joint Administrative Agent), executed originals of any other form prescribed by applicable Law 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 Law to permit the Borrower or the Joint 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

67

Code, as applicable), such Lender shall deliver to the Borrower and the Joint Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Joint Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Joint Administrative Agent as may be necessary for the Borrower and the Joint 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.

(iii)Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Joint Administrative Agent in writing of its legal inability to do so.

(f)Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Joint Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be.  If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 3.01, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Recipient, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Borrower pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient 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 subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

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

68

3.02Illegality and Designated Lenders. 

(a)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 any Credit Extension whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar 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 Joint Administrative Agent, (a) any obligation of such Lender to make or continue Eurodollar Rate Loans to convert Base Rate Loans to Eurodollar Rate Loansshall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loansthe interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loansof such Lender shall, if necessary to avoid such illegality, be determined by the Joint Administrative Agent without reference to the Eurodollar Rate component of the Base Rate,  in each case until such Lender notifies the Joint Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Joint Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loansof such Lender shall, if necessary to avoid such illegality, be determined by the Joint Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Joint Administrative Agent shall during the period of such suspension compute the Base Rateapplicable to such Lender without reference to the Eurodollar Ratecomponent thereof until the Joint 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 Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

3.03Inability to Determine Rates. 

(a) Subject to Section 3.08, if in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (i)  the Joint Administrative Agent determines that (A)  Dollar deposits  are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (B) adequate and reasonable means do not exist for determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan(in each case with respect to clause (i), “Impacted Loans”), or (ii) the Joint Administrative Agent or the Required Lenders determine that for any reason Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Joint Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Joint Administrative Agent (upon the instruction of the

69

Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

(b)Notwithstanding the foregoing, if the Joint Administrative Agent has made the determination described in clause (a)(i) of this Section, the Joint Administrative Agent in consultation with the Borrower and the Required Lenders, may establish an alternative interest rate (which rate shall not be less than zero) for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Joint Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a)(i) of this Section, (2) the Joint Administrative Agent or the Required Lenders notify the Joint Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to the Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Joint Administrative Agent and the Borrower written notice thereof.

3.04Increased Costs; Reserves on Eurodollar Rate Loans. 

(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 Eurodollar Rate) or the L/C Issuer;

(ii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

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

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the 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 the L/C Issuer hereunder (whether of principal, interest or

70

any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

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

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

 (d)Reserves on Eurodollar Rate Loans.  The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Joint Administrative Agent) of such additional interest or costs from such Lender.  If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such notice.

(e)Delay in Requests.  Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such

71

compensation, provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or the 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 the 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 (9) month period referred to above shall be extended to include the period of retroactive effect thereof).

3.05Compensation for Losses. 

Upon demand of any Lender (with a copy to the Joint 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 Loanon 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 Loanon the date or in the amount notified by the Borrower; or

(c)any assignment of a Eurodollar 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 11.13;  

including any loss of anticipated profitsand any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.  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 Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

3.06Mitigation Obligations; Replacement of Lenders. 

(a)Designation of a Different Lending Office.  If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower, such Lender or the L/C Issuer shall, as applicable, 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 the 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

72

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 the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the 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 Indemnified Taxes or additional amounts 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 11.13.

3.07Survival. 

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

3.08Effect of Benchmark Transition Event.

(a)Benchmark Replacement.  Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with a Benchmark Replacement.  Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.  Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment.  No replacement of LIBOR with a Benchmark Replacement pursuant to this Section 3.08 will occur prior to the applicable Benchmark Transition Start Date.

(b)Benchmark Replacement Conforming Changes.  In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(c)Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark

73

Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 3.08, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 3.08.

(d)Benchmark Unavailability Period.  Upon the Borrower's receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurodollar Borrowing of, conversion to or continuation of Eurodollar Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans.  During any Benchmark Unavailability Period, the component of Base Rate based upon LIBOR will not be used in any determination of ABR.

ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

4.01Conditions of Initial Credit Extension. 

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

(a)Execution of Credit Agreement; Loan Documents.  The Joint Administrative Agent shall have received (i) counterparts of this Agreement, executed by a Responsible Officer of the Borrower and a duly authorized officer of each Lender, (ii) for the account of each Lender requesting a Note, a Note executed by a Responsible Officer of the Borrower, (iii) any Subordinated Debt Documents and each other Collateral Document, executed by a Responsible Officer of the Borrower and a duly authorized officer of each other Person party thereto, as applicable and (iv) counterparts of any other Loan Document, executed by a Responsible Officer of the Borrower and a duly authorized officer of each other Person party thereto.

(b)Officer’s Certificate.  The Joint Administrative Agent shall have received an Officer’s Certificate dated the Closing Date, certifying as to the Organization Documents of the Borrower (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the resolutions of the governing body of the Borrower, the good standing, existence or its equivalent of the Borrower and of the incumbency (including specimen signatures) of the Responsible Officers of the Borrower. 

(c)Legal Opinions of Counsel.  The Joint Administrative Agent shall have received an opinion or opinions (including, if requested by the Joint Administrative Agent, local counsel opinions) of counsel for the Borrower, dated the Closing Date and addressed to the Joint Administrative Agent and the Lenders, in form and substance acceptable to the Joint Administrative Agent. 

74

(d)Financial Statements.  The Joint Administrative Agent and the Lenders shall have received copies of the financial statements referred to in Section 5.05, each in form and substance satisfactory to each of them.

(e)Personal Property Collateral.  The Joint Administrative Agent shall have received, in form and substance satisfactory to the Joint Administrative Agent:

(i)(A) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of the Borrower and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Joint Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax lien, judgment and bankruptcy searches;

(ii)completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Joint Administrative Agent’s sole discretion, to perfect the Joint Administrative Agent’s security interest in the Collateral; and

(vi)Qualifying Control Agreements satisfactory to the Joint Administrative Agent.

(f)Liability, Casualty, Property, and Business Interruption Insurance.  The Joint Administrative Agent shall have received copies of insurance policies, declaration pages, certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property, and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents or as required by the Joint Administrative Agent.  The Borrower shall have delivered to the Joint Administrative Agent an Authorization to Share Insurance Information.

(g)Operating Agreement. The Joint Administrative Agent shall have  received a copy of the Borrowers amended and restated operating agreement and evidence that GPI has sold up to 65% of the Equity Interest of the Borrower.

(h)Financial Condition Certificate.  The Joint Administrative Agent shall have received a certificate or certificates executed by a Responsible Officer of the Borrower as of the Closing Date, as to certain financial matters, substantially in the form of Exhibit J.

(i)Loan Notice.  The Joint Administrative Agent shall have received a Loan Notice with respect to the Loans to be made on the Closing Date.

(j)Existing Indebtedness of the Borrower.  All of the existing Indebtedness for borrowed money of the Borrower and its Subsidiaries (other than Indebtedness permitted to exist pursuant to Section 7.02) shall be repaid in full and all security interests related thereto shall be terminated on or prior to the Closing Date.

(k)Borrowing Base Certificate.  An initial Borrowing Base Certificate.

(l)Consents.  The Joint Administrative Agent shall have received evidence that all members, boards of directors, governmental, shareholder and material third party

75

consents and approvals necessary in connection with the entering into of this Agreement have been obtained.

(m)Fees and Expenses.  The Joint Administrative Agent and the Lenders shall have received all fees and expenses, if any, owing pursuant to the Fee Letter and Section 2.09.

(n)Due Diligence.  The Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders.

(o)Other Documents.  All other documents provided for herein or which the Joint Administrative Agent or any other Lender may reasonably request or require.

(p)Additional Information.  Such additional information and materials which the Joint Administrative Agent and/or any Lender shall reasonably request or require.   

(q)Food Security Act.Food Security Act Notices and Acknowledgements, if applicable.

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, 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 Joint Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

4.02Conditions to all Credit Extensions. 

The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension is subject to the following conditions precedent:

(a)Representations and Warranties.  The representations and warranties of the Borrower contained in Article II, Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, and except that for purposes of this Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.

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

(c)Request for Credit Extension.  The Joint Administrative Agent and, if applicable, the L/C Issuer or the Swingline Lender, if no Autoborrow Agreement is then in effect, shall have received a Request for Credit Extension in accordance with the requirements hereof.

76

Each Request for Credit Extension submitted by the Borrower and each Swingline Borrowing pursuant to an Autoborrow Agreement 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 Joint Administrative Agent and the Lenders, as of the date made or deemed made, that:

5.01Existence, Qualification and Power. 

The Borrower and each of its Subsidiaries (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 to which it is a party, and (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; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.  The copy of the Organization Documents of the Borrower provided to the Joint Administrative Agent pursuant to the terms of this Agreement is a true and correct copy of each such document, each of which is valid and in full force and effect.

5.02Authorization; No Contravention.  The execution, delivery and performance by the Borrower of each Loan Document to which such Person is or is to be a 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 Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the 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.

5.03Governmental Authorization; Other Consents.  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 (a) the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or any other Loan Document, (b) the grant by the Borrower of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (d) the exercise by the Joint Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, other than (i) authorizations, approvals, actions, notices and filings which have been duly obtained and (ii) filings to perfect the Liens created by the Collateral Documents.

77

5.04Binding Effect.  This Agreement has been, and each other Loan 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 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, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principals of equity.

5.05Financial Statements; No Material Adverse Effect.

(a)Financial Statements.  The unaudited balance sheet of the Borrower and its Subsidiaries dated June 30, 2019, and the related statements of income or operations, members' 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, cash flows and changes in members’ equity 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. 

(b)Material Adverse Effect.  Since the date of the balance sheet referenced alone there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect. 

5.06Litigation.  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 Subsidiary or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or any of the transactions contemplated hereby, or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

5.07No Default.  Neither the Borrower nor any Subsidiary thereof is in default under or with respect to, or a party to, any 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 this Agreement or any other Loan Document.

5.08Ownership of Property.  The Borrower and each of its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 

5.09Environmental Compliance.

(a)The Borrower conducted 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 have reasonably

78

concluded that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b)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.

5.10Insurance.  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, 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.  The general liability, casualty, property, and business interruption insurance coverage of the Borrower as in effect on the Closing Date, and as of the last date such Schedule was required to be updated in accordance with Section 6.02, is outlined as to carrier, policy number, expiration date, type, amount and deductibles on Schedule 5.10 and such insurance coverage complies with the requirements set forth in this Agreement and the other Loan Documents.

5.11Taxes.  The Borrower and its Subsidiaries have filed all federal and material state and material tax returns and reports required to be filed, and have paid all federal and material 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, nor is there any tax sharing agreement applicable to the Borrower or any Subsidiary. 

5.12ERISA 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 Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter or is subject to a favorable opinion letter from the IRS 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 IRS 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 IRS.  To the best knowledge of the Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.

(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

79

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 or Multiemployer Plan;  (ii) 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; (iii) 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; (iv) 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 (v) 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.

5.13Margin Regulations; Investment Company Act.

(a)Margin Regulations.  The Borrower is not engaged and will not 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.  Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than twenty-five percent (25%)  of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.

(b)Investment Company Act.  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. 

5.14Disclosure.  The Borrower has disclosed to the Joint 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 Joint Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan 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.

80

5.15Compliance with Laws.  The Borrower and each Subsidiary thereof is in compliance 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.

5.16[Reserved]. 

5.17Casualty, Etc.  Neither the businesses nor the properties of the Borrower or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

5.18Sanctions Concernsand Anti-Corruption Laws.  

(a)Sanctions Concerns . Neither the Borrower, nor any Subsidiary, nor any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctionsor (ii) located, organized or resident in a Designated Jurisdiction.

(b)Anti-Corruption Laws.  The Borrower and its Subsidiaries have conducted their business in compliance with applicable anti-corruption laws and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

5.19Responsible Officers. 

Set forth on Schedule 1.01(c) are Responsible Officers, holding the offices indicated next to their respective names, as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Section 6.02 and such Responsible Officers are the duly elected and qualified officers the Borrower and are duly authorized to execute and deliver, on behalf of the Borrower, this Agreement, the Notes and the other Loan Documents.

5.20Subsidiaries; Equity Interests.

(a)Subsidiaries, Joint Ventures, Partnerships and Equity Investments.  Set forth on Schedule 5.20(a), is the following information which is true and complete in all respects as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Section 6.02:  (i) a complete and accurate list of all Subsidiaries, joint ventures and partnerships and other equity investments of the Borrower as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Section 6.02, (ii) the number of shares of each class of Equity Interests in each Subsidiary outstanding, (iii) the number and percentage of outstanding shares of each class of Equity Interests owned by the Borrower and their Subsidiaries and (iv) the class or nature of such Equity Interests (i.e. voting, non-voting, preferred, etc.).  The outstanding Equity Interests in all Subsidiaries are validly issued, fully paid and non-assessable and are owned free and clear of all Liens.  There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of

81

any nature relating to the Equity Interests of the Borrower or any Subsidiary thereof, except as contemplated in connection with the Loan Documents. 

(b)Borrower Information.  Set forth on Schedule 5.20(b) is a complete and accurate list of the Borrower, as of the Closing Date, or as of the last date such Schedule is required to be updated in accordance with Section 6.02  (i) the exact legal name, (ii) any former legal names of the Borrower in the four (4) months prior to the Closing Date, (iii) the jurisdiction of its incorporation or organization, as applicable, (iv) the type of organization, (v) the jurisdictions in which the Borrower is qualified to do business, (vi) the address of its chief executive office, (vii) the address of its principal place of business, (viii) its U.S. federal taxpayer identification number, (ix) the organization identification number, (x) ownership information (e.g. publicly held or if private or partnership, the owners and partners of the Borrower) and (xi) the industry or nature of business of the Borrower.

5.21Collateral Representations.The provisions of the Collateral Documents are effective to create in favor of the Joint Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien (subject to Permitted Liens) on all right, title and interest of the Borrower in the Collateral described therein.  Except for filings completed prior to the Closing Date and as contemplated hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens.

ARTICLE VI

AFFIRMATIVE COVENANTS

The Borrower hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, the Borrower shall, and shall cause each of its Subsidiaries to:

6.01Financial Statements.

Deliver to the Joint Administrative Agent and each Lender, in form and detail satisfactory to the Joint Administrative Agent and the Required Lenders:

(a)Audit Financial Statements.  As soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Borrower (commencing with the fiscal year ended December 31, 2019), a balance sheet of the Borrower as at the end of such fiscal year, and the related 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, (i)  such statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, 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 (ii)  such statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower to the effect that such statements are fairly stated in all material respects when considered in relation to the financial statements of the Borrower.

82

(b)Quarterly Financial Statements.  As soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter ending March 31, June 30, September 30 and after the fiscal year of the Borrower commencing with the fiscal year ended December 31, 2019 a balance sheet of the Borrower as at the end of such fiscal quarter, and the related statements of income or operations, changes in members’ equity and cash flows for such fiscal quarter, 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 subject only to the absence of footnotes (iii)such statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower to the effect that such statements are fairly stated in all material respects when considered in relation to the financial statements of the Borrower.

(c)Monthly Financial Statements.  As soon as available, but in any event within thirty (30) days after the end of each of the months of each fiscal year of the Borrower (commencing with the fiscal month ended September 30, 2019), except for the fiscal quarter end dates, balance sheet of the Borrower and its Subsidiaries as of the end of such month, and the related Consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for such month and for the portion of the Borrower’s fiscal year than ended setting forth in each case in comparative form for the corresponding month of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower who is a Responsible Officer as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries, 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(g), the Borrower shall not be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in Sections 6.01(a) and (b) above at the times specified therein. 

6.02Certificates; Other Information. 

Deliver to the Joint Administrative Agent and each Lender, in form and detail satisfactory to the Joint Administrative Agent and the Required Lenders:

(a)Compliance Certificate.  With the delivery of the financial statements for the fiscal quarters ending March 31, June 30, September 30, and December 31 within 45 days at the end of each quarter, and within ninety days (90) of the end of each fiscal year’s audited annual financial statement, duly completed Compliance Certificates signed by the chief executive officer, chief financial officer, treasurer or controller which is a Responsible Officer of the Borrower, and in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 7.11, a statement of reconciliation conforming such financial statements to GAAP.  Unless the Joint Administrative Agent or a Lender requests executed originals, delivery of the Compliance Certificate may be by electronic communication including fax or email and shall be deemed to be an original and authentic counterpart thereof for all purposes.

83

(b)Updated Schedules.  Concurrently with the delivery of the Compliance Certificate referred to in Section 6.02(a), as applicable, any updated Schedules to this Agreement (which may be attached to the Compliance Certificate) to the extent required to make the representation related to such Schedule true and correct as of the date of such Compliance Certificate.

(c)[Reserved]

(d)Changes in Entity Structure.  Within ten (10) days prior to any merger, consolidation, dissolution or other change in entity structure of the Borrower or any of its Subsidiaries permitted pursuant to the terms hereof, provide notice of such change in entity structure to the Joint Administrative Agent, along with such other information as reasonably requested by the Joint Administrative Agent.  Provide notice to the Joint Administrative Agent, not less than ten (10) days prior (or such extended period of time as agreed to by the Joint Administrative Agent) of any change in the Borrower's legal name, state of organization, or organizational existence. 

(e)Notices.  Not later than five (5) Business Days after receipt thereof by the Borrower or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Joint Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Joint Administrative Agent may reasonably request.

(f)Environmental Notice.  Promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by the Borrower or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law.

(g)Borrowing Base Certificate.  As soon as available, but in any event within thirty (30) days after the end of each month, a Borrowing Base Certificate, as at the end of such month, duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower.

(h)Budget.  A budget and forecast in a form acceptable to the Joint Administrative Agent within sixty (60) days after the start of each fiscal year.

(i)Additional Information.  Promptly, such additional information regarding the business, financial, legal or corporate affairs of the Borrower or any Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Joint 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(g) (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 (a)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

84

Schedule 1.01(a); or (b)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 Joint Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Joint Administrative Agent); provided that:  (i) he Borrower shall deliver paper copies of such documents to the Joint 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 Joint Administrative Agent or such Lender and (ii) the Borrower shall notify the Joint Administrative Agent and each Lender (by fax transmission or e-mail transmission) of the posting of any such documents and provide to the Joint Administrative Agent by e-mail electronic versions (i.e., soft copies) of such documents.  The Joint 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 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 the Joint Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak, ClearPar or another similar electronic system (the “Platform”). 

6.03Notices. 

Promptly, but in any event within two (2) Business Days, notify the Joint Administrative Agent and each Lender:

(a)of the occurrence of any Default;

(b)of any matter that has resulted or in the judgment of the Borrower could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or (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; and

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

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and to the extent applicable, 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 this Agreement and any other Loan Document that have been breached.

6.04Payment 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

85

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.

6.05Preservation 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.

6.06Maintenance of Properties. 

(a)Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; and

(b)make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and

(c)use the standard of care typical in the industry in the operation and maintenance of its facilities.

6.07Maintenance of Insurance.

(a)Maintenance of Insurance.  Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.

(b)Evidence of Insurance.  Cause the Joint Administrative Agent to be named as lenders’ loss payable, loss payee or mortgagee, as its interest may appear, and/or additional insured with respect of any such insurance providing liability coverage or coverage in respect of any Collateral, and cause, unless otherwise agreed to by the Joint Administrative Agent, each provider of any such insurance to agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Joint Administrative Agent that it will give the Joint Administrative Agent thirty (30) days prior

86

written notice before any such policy or policies shall be altered or cancelled (or ten (10) days prior notice in the case of cancellation due to the nonpayment of premiums).  Annually, upon expiration of current insurance coverage, the Borrower shall provide, or cause to be provided, to the Joint Administrative Agent, such evidence of insurance as required by the Joint Administrative Agent, including, but not limited to: (i) certified copies of such insurance policies, (ii) evidence of such insurance policies (including, without limitation and as applicable, ACORD Form 28 certificates (or similar form of insurance certificate), and ACORD Form 25 certificates (or similar form of insurance certificate)), (iii) declaration pages for each insurance policy and (iv) lender’s loss payable endorsement if the Joint Administrative Agent for the benefit of the Secured Parties is not on the declarations page for such policy.  As requested by the Joint Administrative Agent, the Borrower agree to deliver to the Joint Administrative Agent an Authorization to Share Insurance Information.

6.08Compliance with Laws.  Comply with the requirements of all Laws 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.

6.09Books and Records.  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 the Borrower or such Subsidiary, as the case may be.

6.10Inspection Rights.Permit representatives and independent contractors of the Joint Administrative Agent and each Lender to visit and inspect any of its properties, to conduct a Collateral audits during any year and to examine the Borrower's 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 the expense of the Borrower provided, however, not to exceed $10,000 in total per year and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided,  however, that when an Event of Default exists the Joint 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.

6.11Use of Proceeds.  Use the proceeds of the Credit Extensions for general corporate purposes not in contravention of any Law or of any Loan Document.

6.  12Material Contracts.  Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by the Joint Administrative Agent and, upon request of the Joint Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as the Borrower or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

87

6.13[Reserved]. 

6.14[Reserved]. 

6.15Further Assurances.  Promptly upon request by the Joint Administrative Agent, or any Lender through the Joint Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instrumentsas the Joint Administrative Agent, or any Lender through the Joint Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable Law, subject Borrower's or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which the Borrower or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.

6.16Compliance with Environmental Laws.  Comply, and cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws; provided,  however, that neither the Borrower nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

6.17Anti-Corruption Laws.  Conduct its business in compliance with applicable anti-corruption laws and maintain policies and procedures designed to promote and achieve compliance with such laws.

6.18Location of Livestock.  Permit any Livestock to be kept with a bailee or similar party, excluding Approved Packers, other than at an Approved Location without the Joint Administrative Agent's prior written consent.

6.19Care and Preservation of the Livestock:

(i)Feed, care for, attend to, inoculate, water, and perform or cause to be performed any other act or acts appropriate or necessary to care for, maintain, preserve, and protect the Livestock in accordance with usual and customary industry practices.

(ii)Milk, shear, and perform or cause to be performed such other acts as are related to the Livestock or to the products of the Livestock (including, but not

88

limited to, processing, preserving, protecting, and storing such products in accordance with usual and customary industry practices.

(iii)Not commit or suffer to be committed any damage to or destruction of the Livestock other than what is usual or customary in industry practice.

(iv)Permit the Joint Administrative Agent and any of its agents, employees, or representatives to enter upon the premises where the Livestock is located at any reasonable time and from time to time for the purpose of examining and inspecting the Livestock.

(v)Upon the Joint Administrative Agent's request therefore, provide the Joint Administrative Agent with copies of all bills of sale for the Livestock.

6.20Customer Loan Documents.  Deliver all Customer Loan Documents to the Joint Administrative Agent and assign UCC financing statements related to such Customer Loan Documents to the Joint Administrative Agent.

6.21Procedures For Customer Financed Cattle.  Conduct UCC or other appropriate searches prior to financing any Customer Cattle or feed, evidence and secure all financing of Customer Cattle or feed with such loan agreements, promissory notes, security agreements, financing statements, and other documents as may be reasonably required by and acceptable to the Joint Administrative Agent.

6.22Covenant to Guarantee Obligations.  The Borrower will cause each of its Subsidiaries whether newly formed, after acquired or otherwise existing to promptly (and in any event within thirty (30) days after such Subsidiary is formed or acquired (or such longer period of time as agreed to by the Joint Administrative Agents, in their reasonable discretion)) become a Guarantor hereunder by way of execution of a Guaranty; provided,  however, no Foreign Subsidiary shall be required to become a Guarantor to the extent such Guaranty would result in a material adverse tax consequence for the Borrower.  In connection therewith, the Borrower shall give notice to the Joint Administrative Agents not less than ten (10) days prior to creating a Subsidiary (or such shorter period of time as agreed to by the Joint Administrative Agents in their reasonable discretion), or acquiring the Equity Interests of any other Person.  In connection with the foregoing, the Borrower shall deliver to the Joint Administrative Agents, with respect to each new Guarantor to the extent applicable, such documentation, as reasonably requested by the Joint Administrative Agents.

ARTICLE VII

NEGATIVE COVENANTS

The Borrower hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:  

89

7.01Liens. 

Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for the following (the “Permitted Liens”): 

(a)Liens pursuant to any Loan Document;

(b)Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.02(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(b);

(c)Liens for Taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; or

(d)Liens securing Indebtedness permitted under Section 7.02(c);  provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition.

7.02Indebtedness. 

Create, incur, assume or suffer to exist any Indebtedness, except:

(a)Indebtedness under the Loan Documents;

(b)Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;

(c)Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i);  provided,  however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000;

(d)Indebtedness evidenced by the Subordinated Debt not to exceed $25,000,000; or

(e)Obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in

90

the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates,  foreign exchange rates or commodity prices and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party.

7.03Investments. 

Make or hold any Investments, except:

(a)Investments held by the Borrower and its Subsidiaries in the form of cash or Cash Equivalents

(b)Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

(c)Investments existing on the date hereof set forth on Schedule 7.03;

7.04Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions or by virtue of a division or similar transaction) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefromany Subsidiary may merge with the Borrower; provided that the Borrower shall be the continuing or surviving Person.

7.05Dispositions. 

Make any Disposition or enter into any agreement to make any Disposition, except:

(a)Permitted Transfers; or

(b)Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business.

7.06Restricted Payments. 

Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:

(a)each Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;

(b)the Borrower may make Permitted Distributions;

91

(d)the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in common Equity Interests of such Person.

7.07Change 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.

7.08Transactions with Affiliates.  Enter into or permit to exist any transaction or series of transactions with any officer, director or Affiliate of such Person other than transactions which are entered into in the ordinary course of such Person’s business on fair and reasonable terms and conditions substantially as favorable to such Person as would be obtainable by it in a comparable arm's length transaction with a Person other than an officer, director or Affiliate.

7.09Burdensome Agreements.  Enter into, or permit to exist, any Contractual Obligation (except for this Agreement and the other Loan Documents) that (a) encumbers or restricts the ability of any such Person to (i) to act as the Borrower; (ii) make Restricted Payments to the Borrower, (iii) pay any Indebtedness or other obligation owed to the Borrower, (iv) make loans or advances to the Borrower, or  (v)  create any Lien upon any of their properties or assets, whether now owned or hereafter acquired, except, in the case of clause (a)(v) only, for any document or instrument governing Indebtedness incurred pursuant to Section 7.02(c),  provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith, or (b)  requires the grant of any Lien on property for any obligation if a Lien on such property is given as security for the Secured Obligations.

7.10Use of Proceeds.  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.

7.11Financial Covenants.

(a)Tangible Net Worth.  Permit Tangible Net Worth plus Subordinated Debt as of the end of each fiscal quarter to be less than the greater of(i) $120,000,000, plus ten percent (10%) of the net income for each prior fiscal year commencing with the fiscal year ending December 31, 2019 (with no deductions for any net loss in any such fiscal year),  or (ii) the sum of twenty percent (20%) of the Revolving Commitment, plus an amount equal to ten percent (10%) of the net income for each prior fiscal year commencing with the fiscal year ending December 31, 2019 (with no deduction for any net loss in any such fiscal year).

(b)Working Capital.  Permit Working Capital at any time to be less than fifteen percent (15%) of the Revolving Commitment.

(c)Total Debt to Tangible Net Worth.  Permit Total Debt to Tangible Net Worth, plus Subordinated Debt, as of the end of each fiscal quarter to be greater than 4.0 to 1.

7.12Capital Expenditures.  Make or become legally obligated to make any Capital Expenditure, except for Capital Expenditures in the ordinary course of business not exceeding, in the aggregate

92

for the Borrower during each fiscal year $10,000,000 excluding from such calculation of Capital Expenditures any Capital Expenditures not to exceed $10,000,000 funded by a capital contribution or from  Subordinated Debt; provided, however, that so long as no Default has occurred and is continuing or would result from such expenditure, any portion of any amount set forth above, if not expended in the fiscal year for which it is permitted above, may be carried over for expenditure in the next following fiscal year (excluding any carry forward available from any prior fiscal year); provided, further, with respect to any fiscal year, Capital Expenditures made during any such fiscal year shall be deemed to be made first with respect to the applicable limitation for such year and then with respect to any carry forward amount to the extent applicable.

7.13Amendments of Organization Documents; Fiscal Year; Legal Name, State of Formation; Form of Entity and Accounting Changes.

(a)Amend any of its Organization Documents;

(b)without providing ten (10) days prior written notice to the Joint Administrative Agent (or such extended period of time as agreed to by the Joint Administrative Agent), change its name, state of formation, form of organization, or principal place of business, or fiscal year; or

(c)make any change in accounting policies or reporting practices, except as required by GAAP.

7.14Sale and Leaseback Transactions.  Enter into any Sale and Leaseback Transaction.

7.15EFR Commodity Swaps.  Enter into or maintain EFR Commodity Swaps with a notional amount in excess of $50,000,000.

7.16Amendment, Etc. of Indebtedness.

(a)Amend, modify or change in any manner any term or condition of any Subordinated Debt Document or give any consent, waiver or approval thereunder; [provided that the Subordinated Debt Documents and the subordinated note may be amended or modified to extend the amortization or maturity of the indebtedness evidenced thereby, reduce the interest rate thereon, or otherwise amend or modify the terms thereof so long as the terms of any such amendment or modification are no more restrictive on the Borrower than the terms of such documents as in effect on the date hereof;

(b)take any other action in connection with any Subordinated Note Document that would impair the value of the interest or rights of the Borrower thereunder or that would impair the rights or interests of the Joint Administrative Agent or any Lender; or

7.17Sanctions.

Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, 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 Person participating in the

93

transaction, whether as Lender, Arranger, Joint Administrative Agent, L/C Issuer, Swingline Lender, or otherwise) of Sanctions.

7.18Anti-Corruption Laws.Directly or indirectly, use any Credit Extension or 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.

7.19Waiver of Agister Lien.  Not subordinate or waive any agister lien, provided, however, that the delivery of any Customer Cattle or Eligible Cattle to an Approved Packer pursuant to which the Borrower controls the proceeds of sale of such Customer Cattle or Eligible Cattle from an Approved Packer shall not be deemed or consider a subordination or waiver of any agister lien.

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

8.01Events 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 or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) within three (3) 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 (5) 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,  6.08,  6.10, 6.11,  6.12,  6.18,  6.19,  6.20,6.21, or Article VII  (excluding Section 7.11 and 7.12)  or within ten (10) days after the delivery of any Compliance Certificate which demonstrates any  non -compliance with the requirements of Section 7.11or 7.12 the Borrower fails to demonstrate pro forma compliance with the requirements of Section 7.11 or 7.12; or

(c)Other Defaults.  The Borrower fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days; or

(d)Representations and Warranties.  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower  in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made; or

(e)Cross-Default.  (i) The Borrower or any Subsidiary thereof (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

94

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 default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (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 (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or

(e)Insolvency Proceedings, Etc.  The Borrower or any Subsidiary thereof 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 sixty (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 sixty (60) calendar days, or an order for relief is entered in any such proceeding; or 

(f)Inability to Pay Debts; Attachment.  (i) The Borrower or any Subsidiary thereof 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 thirty (30) days after its issue or levy; or

(g)Judgments.  There is entered against the Borrower or any Subsidiary thereof (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim and 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 ten (10) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

95

(h)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 in excess of the Threshold Amount; or

(i)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 Obligations arising under the Loan Documents, 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 provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or

(j)Collateral Documents.  Any Collateral Document after delivery thereof pursuant to the terms of the Loan Documents shall for any reason cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on the Collateral purported to be covered thereby, or the Borrower shall assert the invalidity of such Liens; or

(k)Change of Control.  There occurs any Change of Control; or

(m)Subordination.  (i) Any of the subordination, standstill, payover and insolvency related provisions of any of the Subordinated Debt Documents (the “Subordinated Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable Subordinated Debt; or (ii) the Borrower shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Joint Administrative Agent and the Secured Parties or (C) that all payments of principal of or premium and interest on the applicable Subordinated Debt, or realized from the liquidation of any property of the Borrower, shall be subject to any of the Subordination Provisions.

Without limiting the provisions of Article VIII,   a Default shall have occurred under the Loan Documents, then such Default will continue to exist until it either is cured (to the extent specifically permitted) in accordance with the Loan Documents or is otherwise expressly waived by Joint Administrative Agent (with the approval of requisite Appropriate Lenders (in their sole discretion) as determined in accordance with Section 11.01; and once an Event of Default occurs under the Loan Documents, then such Event of Default will continue to exist until it is expressly waived by the requisite Appropriate Lenders or by the Joint Administrative Agent with the approval of the requisite Appropriate Lenders, as required hereunder in Section 11.01.

96

8.02Remedies upon Event of Default. 

If any Event of Default occurs and is continuing, the Joint 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 the 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 Minimum Collateral Amount with respect thereto); and

(d)exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents or applicable Law or equity;

provided,  however, 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 the L/C Issuer to make L/C Credit Extensions shall 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 Joint Administrative Agent or any Lender.

8.03Application 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) or if at any time insufficient funds are received by and available to the Joint Administrative Agent to pay fully all Secured Obligations then due hereunder, any amounts received on account of the Secured Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the Joint Administrative Agent in the following order :

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

Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lendersand the L/C Issuer) arising under the Loan Documents

97

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 Secured Obligations constituting accrued and unpaid Letter of Credit Feesand interest on the Loans, L/C Borrowings and other Secured Obligations arising under the Loan Documents, ratably among the Lendersand the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, L/C Borrowings and Secured Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements and to the to the Joint Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised 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 2.14,  in each case ratably among theJoint Administrative Agent, the Lenders,the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them; and

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

Subject to Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourthabove 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 Secured Obligations, if any, in the order set forth above.

Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Joint Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Joint Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Joint Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.

ARTICLE IX

JOINT ADMINISTRATIVE AGENT

9.01Appointment and Authority.

(a)Appointment.  Each of the Lenders, the Swingline Lender and the L/C Issuer hereby irrevocably appoints, designates and authorizes Bank of the West and ING CapitalLLC to act on its behalf as the Joint Administrative Agents  hereunder and under the other Loan Documents and authorizes the Joint Administrative Agents to take such actions on its behalf and to exercise such powers as are delegated to the Joint

98

Administrative Agents 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 Joint Administrative Agents, the Lenders, the Swingline Lender and the L/C Issuer, 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 Joint Administrative Agents 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.

(b)Collateral Agent. The Joint Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank,  and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Joint Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Borrower to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Joint Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Joint Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Joint Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

9.02Rights as a Lender.  The Person serving as the Joint 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 Joint 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 Joint 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 banking, trust, financial, advisory, underwriting or other business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Joint Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.

9.03Exculpatory Provisions. 

The Joint Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Joint Administrative Agent and its Related Parties:

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

99

(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 Joint 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 Joint Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Joint 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 or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Joint Administrative Agent or any of its Affiliates in any capacity.

Neither the Joint Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Joint Administrative Agent under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (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 Joint Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 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 Joint Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Joint Administrative Agent by the Borrower, a Lender or the L/C Issuer.

Neither the Joint Administrative Agent nor any of its Related Parties have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan 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 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 Joint Administrative Agent.

9.04Reliance by Joint Administrative Agent.  The Joint Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice, request, certificate, communication, 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 Joint 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 be fully protected in relying and shall not incur any liability for relying thereon.  In determining

100

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 the L/C Issuer, the Joint Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Joint Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Joint 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.  For purposes of determining compliance with the conditions specified in 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 Joint Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objections.

9.05Delegation of Duties.  The Joint Administrative Agents 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 Joint Administrative Agents.  The Joint Administrative Agents 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 Joint Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Revolving Facility  as well as activities as Joint Administrative Agents. The Joint Administrative Agents 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 nonappealable judgment that the Joint Administrative Agents acted with gross negligence or willful misconduct in the selection of such sub-agents.  Notwithstanding the foregoing and in addition thereto, and in order to provide for efficient and cost effective administration of this Agreement and the Loans and the duties and responsibilities of the Joint Administrative Agents, ING Capital LLC does hereby assign all of its duties and obligations as Joint Administrative Agent to Bank of the West (the "Assignment of Duties").  Bank of the West does hereby accept the Assignment of Duties.  The Assignment of Duties may be modified, revised or revoked upon or pursuant to the written agreement of Bank of the West and ING Capital LLC, without the consent or approval of the Borrower or the Lenders.

9.06Resignation of Joint Administrative Agent. 

(a)Notice.  The Joint Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, 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 and shall have accepted such appointment within thirty (30) days after the retiring Joint 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 Joint Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Joint Administrative Agent meeting the qualifications set forth above.  Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

101

(b)Defaulting Lender.  If the Person serving as Joint Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to the Borrower and such Person remove such Person as Joint 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 thirty (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)Effect of Resignation or Removal.  With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Joint 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 held by the Joint Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring or removed Joint Administrative Agent shall continue to hold such collateral security until such time as a successor Joint Administrative Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Joint Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Joint Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Joint Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment as Joint Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Joint Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Joint Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Joint Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a successor Joint Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring or removed Joint Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring or removed Joint 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 or removed Joint Administrative Agent was acting as Joint Administrative Agent.

(d)L/C Issuer and Swingline Lender.  Any resignation or removal by Bank of the West as Joint Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swingline Lender.  If Bank of the West resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline 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 Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c).  Upon the appointment by the Borrower of a successor Swingline Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such

102

successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or Swingline Lender, as applicable and, (ii) the retiring Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents.

(e)L/C Issuer  Any resignation or removal by ING Capital as Joint Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer.  If ING Capital LLC resigns as an 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 LIBOR Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c).   Upon the appointment by the Borrower of a successor L/C Issuer  hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, (ii) the retiring L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) 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 ING Capital LLC to  effectively assume the obligations of the prior L/C Issuer with respect to such Letters of Credit.

(f)Resignation of Joint Administrative Agent.  Notwithstanding anything contained herein to the contrary in this Agreement or this Section 9.06, if (a) Bank of the West resigns or is resolved as a Joint Administrative Agent then ING Capital LLC shall become the sole Joint Administrative Agent; or (b) if ING Capital LLC resigns or is resolved as a Joint Administrative Agent then Bank of the West shall become the sole Joint Administrative Agent.

9.07Non-Reliance on Joint Administrative Agent and Other Lenders.  Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Joint 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 the L/C Issuer also acknowledges that it will, independently and without reliance upon the Joint 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 any related agreement or any document furnished hereunder or thereunder.

9.08No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Joint Administrative Agent,  the Arranger, a Lender or the L/C Issuer hereunder.

9.09Joint Administrative Agent May File Proofs of Claim; Credit Bidding.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the Joint 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 Joint Administrative Agent shall have made any demand

103

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 Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Joint Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Joint Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Joint Administrative Agent under Sections 2.03(h) and (i), 2.09, 2.10(b) and 11.04) 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 the L/C Issuer to make such payments to the Joint Administrative Agent and, in the event that the Joint Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Joint Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Joint Administrative Agent and its agents and counsel, and any other amounts due the Joint Administrative Agent under Sections 2.09, 2.10(b) and 11.04.

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

The Secured Parties hereby irrevocably authorize the Joint Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which the Borrower is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Joint Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law.  In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase).  In connection with any such bid (i) the Joint Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents

104

providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Joint Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (j) of Section 11.1 of this Agreement, and (iv) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

9.10Collateral Matters.

Each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize the Joint Administrative Agent, at its option and in its discretion,

(a)to release any Lien on any property granted to or held by the Joint Administrative Agents under any Loan Document (i) upon the Facility Termination Date, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in writing by the Required Lenders in accordance with Section 11.01;

(b)to subordinate any Lien on any property granted to or held by the Joint Administrative Agents under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(d); and

(c)to release any Guarantor from its obligations under the Guaranty of such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.

Upon request by the Joint Administrative Agents at any time, the Required Lenders will confirm in writing the Joint Administrative Agent’s authority to release or subordinate its interest in particular types or items of property pursuant to this Section 9.10.  In each case as specified in this Section 9.10, the Joint Administrative Agents will, at the Borrower’s expense, execute and deliver to the Borrower such documents as such the Borrower may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, in each case in accordance with the terms of the Loan Documents and this Section 9.10.  

The Joint Administrative Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Joint Administrative Agent’s Lien thereon, or any certificate prepared by the Borrower in connection therewith, nor shall the Joint Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

105

9.11Secured Cash Management Agreements and Secured Hedge Agreements.  Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article IX to the contrary, the Joint Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Joint Administrative Agent has received a Secured Party Designation Notice of such Secured Obligations, together with such supporting documentation as the Joint Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.  The Joint Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of a Facility Termination Date.

ARTICLE X

[RESERVED]

ARTICLE XI
MISCELLANEOUS

11.01Amendments, Etc. 

No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Joint Administrative Agent with the consent of the Required Lenders) and the Borrower, as the case may be, and acknowledged by the Joint 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,however, that no such amendment, waiver or consent shall:

(a)waive any condition set forth in Section 4.01 or, in the case of the initial Credit Extension, Section 4.02, 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 (it being understood and agreed that a waiver of any condition precedent in Section 4.02 or of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);

(c)postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other

106

amounts due to the Lenders (or any of them) hereunder or under such other Loan Document without the written consent of each Lender entitled to such payment;

(d)reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv)(v) of the second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document, or change the manner of computation of the Borrowing Base (including any change in any applicable defined term) used in determining the Applicable Rate that would result in a reduction of any interest rate on any Loan or any fee payable hereunder without the written consent of each Lender entitled to such amount; provided,  however, that only the consent of the Required Lenders shall be necessary to 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;

(e)change  Section 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 11.01 or the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or thereunder 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;

(h)release all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Joint Administrative Agent acting alone);

(i)release the Borrower or permit the Borrower to assign or transfer any of its rights or obligations under this Agreement or the other Loan Documents without the consent of each Lender;

(j)impose any greater restriction on the ability of any Lender under the Revolving Facility to assign any of its rights or obligations hereunder without the written consent of the Required  Lenders;

and provided,  further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the 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 Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Joint Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Joint Administrative Agent under this Agreement or any other Loan Document; (iv) the Autoborrow Agreement and any fee letters executed in connection therewith may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto and  (v) the Fee Letter may be amended, or rights or privileges thereunder

107

waived, in a writing executed only by the parties thereto and (vi) the term L/C Commitment may be amended pursuant to a fully executed (and delivered to the Joint Administrative Agent) Notice of Additional L/C Issuer.  Notwithstanding anything to the contrary herein, (A) 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, or all Lenders or each affected Lender under the Revolving Facility, may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (1) the Commitment of any Defaulting Lender may not be increased or extended nor any principal or interest on any revolving loan is reduced or waived without the consent of such Lender and (2) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under the Revolving Facility, that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (B) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (C) the Required Lenders shall determine whether or not to allow the Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders.

Notwithstanding anything to the contrary herein the Joint Administrative Agent may, with the prior written consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.

If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, the Borrower may replace such Non-Consenting Lender in accordance with Section 11.13;  provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).

11.02Notices; Effectiveness; Electronic Communications.

(a)Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all 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 fax transmission or e-mail transmission 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 Joint Administrative Agent, the L/C Issuer or the Swingline Lender, to the address, fax number, e-mail address or telephone number specified for such Person on Schedule 1.01(a); and

(ii)if to any other Lender, to the address, fax number, e-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).

108

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 fax transmission 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 subsection (b) below shall be effective as provided in such subsection (b).

(b)Electronic Communications.  Notices and other communications to theJoint Administrative Agent,  the Lenders, the Swingline Lender and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail, FPML messaging and Internet or intranet websites) pursuant to procedures approved by the Joint Administrative Agent;provided that the foregoing shall not apply to notices to any Lender, the Swingline Lender or the L/C Issuer pursuant to Article II if such Lender, Swingline Lender or the L/C Issuer, as applicable, has notified the Joint Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Joint Administrative Agent, the Swingline Lender, the L/C Issuer or the Borrower may each, 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 Joint Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and (ii) notices and other communications posted to an Internet or intranet website shall be deemed received by the intended recipient 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 address or other written acknowledgement) indicating that such notice or communication is available and identifying the website address therefor; provided that for both clauses (i) and (ii), if such notice 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 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 Joint Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses,

109

claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Joint Administrative Agent’s transmission of Borrower Materials or noticesthrough the Platform, any other electronic platform or electronic messaging service, or through the Internet.

(d)Change of Address, Etc.  Each of the Borrower, the Joint Administrative Agent, the L/C Issuer and the Swingline Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, fax  number or telephone number or e-mail address for notices and other communications hereunder by notice to the Borrower, the Joint Administrative Agent, the L/C Issuer and the Swingline Lender.  In addition, each Lender agrees to notify the Joint Administrative Agent from time to time to ensure that the Joint Administrative Agent has on record (i) an effective address, contact name, telephone number, fax number and e-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 (1) 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 Joint Administrative Agent, L/C Issuer and Lenders.  The Joint Administrative Agent,  the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including, without limitation, telephonic or electronic notices, Loan Notices, Letter of Credit Applications, Notice of Loan Prepayment and Swingline 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 Joint Administrative Agent, the 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 Joint Administrative Agent may be recorded by the Joint Administrative Agent, and each of the parties hereto hereby consents to such recording.

11.03No Waiver; Cumulative Remedies; Enforcement. 

No failure by any Lender, the L/C Issuer or the Joint Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document 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, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

110

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower 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 Joint Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided,however, that the foregoing shall not prohibit (a) the Joint Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Joint Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (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 Joint Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Joint 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.

11.04Expenses; Indemnity; Damage Waiver.

(a)Costs and Expenses.  The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Joint Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Joint 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 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 Issuer 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 Joint Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Joint Administrative Agent, any Lender or the L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with Loans made or Letters of 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 Joint Administrative Agent (and any sub-agent thereof), each Lender and the 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 Person (including the Borrower)arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other

111

Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Joint Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan 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 the 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; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses 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 Without limiting the provisions of Section 3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

(c)Reimbursement by Lenders.  To the extent that the Borrower for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Joint Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Joint Administrative Agent (or any such sub-agent), the L/C Issuer, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided,further 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 Joint Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Joint Administrative Agent (or any such sub-agent), the L/C Issuer or the Swingline Lender in connection with such capacity.  The obligations of the Lenders under this subsection (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 the Borrower hereby waives, and acknowledges that no other Person shall have, 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 subsection (b) above shall

112

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.

(e)Payments.  All amounts due under this Section shall be payable not later than ten (10) Business Days after demand therefor.

(f)Survival.  The agreements in this Section and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Joint Administrative Agent, the L/C Issuer and the Swingline Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

11.05Payments Set Aside. 

To the extent that any payment by or on behalf of the Borrower is made to the Joint Administrative Agent, the L/C Issuer or any Lender, or the Joint Administrative Agent, the 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 Joint Administrative Agent, the 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 the L/C Issuer severally agrees to pay to the Joint Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Joint 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 theFederal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

11.06Successors and Assigns.

(a)Successors and Assigns Generally.  The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except  the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Joint Administrative Agent 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 subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (e) 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 subsection (d) of this Section and, to the extent expressly contemplated hereby, the

113

Related Parties of each of the Joint Administrative Agent, the L/C Issuer 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 and the other Loan Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swingline Loans) at the time owing to it); provided that (in each case with respect to the Revolving Facility) 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 under the Revolving Facility and/or the Loans at the time owing to it (in each case with respect to the Revolving Facility) or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate 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 subsection (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 Joint Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility, unless each of the Joint 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).

(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 and the other Loan Documents with respect to the Loans and/or the Commitment assigned, except that this clause (ii) shall not apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans.

(iii)Required Consents.  No consent shall be required for any assignment except to the extent required by subsection (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, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the

114

Joint Administrative Agent within five (5) Business Days after having received notice thereof; and provided,  further, that the Borrower’s consent shall not be required during the primary syndication of the Facilities;

(B)the consent of the Joint Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any Revolving Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the Revolving Facility , an Affiliate of such Lender or an Approved Fund with respect to such Lender; and

(C)the consent of the L/C Issuer and the Swingline Lender shall be required for any assignment in respect of the Revolving Facility.

(iv)Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Joint Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided,  however, that the Joint 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 Joint 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, (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),  (C) to a natural Person or (D) any holder of Subordinated Debt. 

(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 Joint 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 Joint 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 hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Joint Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline 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 paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

115

Subject to acceptance and recording thereof by the Joint Administrative Agent pursuant to subsection (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 11.04 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 subsection 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 subsection (d) of this Section.

(c)Register.  The Joint 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 Joint Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of 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 Joint 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.  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.  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Joint Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under 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 Swingline 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 Joint Administrative Agent, the Lenders and the L/C Issuer 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 11.04(c) without regard to the existence of any participations.

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

116

the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant.  The 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 Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under paragraph (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 the Lender from whom it acquired the applicable participation 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.  Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 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 agent of the 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 (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) to any Person 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.  For the avoidance of doubt, the Joint Administrative Agent (in its capacity as Joint Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e)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 or Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; or any central bank having jurisdiction over such lender 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.

(f)Resignation as L/C Issuer after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time ING Capital LLC assigns all of its Revolving Commitment and Revolving Loans pursuant to subsection (b) above, ING Capital LLC may, (i) upon thirty (30) days’ notice to the Borrower and the Lenders, resign as L/C Issuer.  In the event of any such resignation as L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder; provided,  however, that no failure by the Borrower to appoint any such successor shall affect the resignation of ING

117

Capital LLC as L/C Issuer.  If ING Capital 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 LIBOR Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).   Upon the appointment of a successor L/C Issuer, (A) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer , as the case may be, and (B) 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 ING Capital LLC effectively assume the obligations of original LC/Issuer with respect to such Letters of Credit.

(g)Resignation as Swingline Lender after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time Bank of the West assigns all of its Revolving Commitment and Revolving Loans pursuant to subsection (b) above, Bank of the West may, (i) upon thirty (30) days’ notice to the Borrower and the Lenders, resign as Swingline Lender.  In the event of any such resignation as  Swingline Lender, the Borrower shall be entitled to appoint from among the Lenders a successor Swingline Lender hereunder; provided,  however, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of the West Swingline Lender.  If Bank of the West resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make LIBOR  Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c).  Upon the appointment of a successor  Swingline Lender, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swingline Lender.

11.07Treatment of Certain Information; Confidentiality.

(a)Treatment of Certain Information.  Each of the Joint Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) 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), (ii) to the extent required or requested by any regulatory 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), (iii) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (B) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (vii) on a confidential basis to (A) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities

118

provided hereunder or (B) the provider of any Platform or other electronic delivery service used by the Joint Administrative Agent, the L/C Issuer and/or the Swingline Lender to deliver Borrower Materials or notices to the Lenders or (C) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, or (viii) with the consent of the Borrower or to the extent such Information (1) becomes publicly available other than as a result of a breach of this Section or (2) becomes available to the Joint Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.  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 Joint Administrative Agent, any Lender or the 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.  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.

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

(c)Press Releases.  The Borrower and their Affiliates agree that they will not in the future issue any press releases or other public disclosure using the name of the Joint Administrative Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan Documents without the prior written consent of the Joint Administrative Agent, unless (and only to the extent that) the Borrower or such Affiliate is required to do so under law and then, in any event the Borrower or such Affiliate will consult with such Person before issuing such press release or other public disclosure. 

(d)Customary Advertising Material.  The Borrower consent to the publication by the Joint 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.  

11.08Right of Setoff.

If an Event of Default shall have occurred and be continuing, each Lender, the 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, the 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 this Agreement or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of whether or not such

119

Lender, the L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Joint Administrative Agent for further application in accordance with the provisions of Section 2.15 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 Joint Administrative Agent, the L/C Issuer and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Joint Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the 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, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the Borrower and the Joint 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. 

11.09Interest 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 Joint 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 Joint 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.

11.10Counterparts; Integration; Effectiveness.

This Agreement and each of the other Loan Documents 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 any separate letter agreements with respect to fees payable to the Joint Administrative Agent or the L/C Issuer, 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 Joint Administrative Agent and when the Joint 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 or any other Loan Document, or any certificate delivered thereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement or such other Loan Document or certificate.  Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the

120

terms of any Loan Document, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.

11.11Survival 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 Joint Administrative Agent and each Lender, regardless of any investigation made by the Joint Administrative Agent or any Lender or on their behalf and notwithstanding that the Joint 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.

11.12Severability.  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, if and to 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 Joint Administrative Agent, the L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

11.13Replacement of Lenders.If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender or 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 Joint 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 11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible 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 Joint Administrative Agent the assignment fee (if any) specified in Section 11.06(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 (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);

121

(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 an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

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.

11.14Governing Law; Jurisdiction; Etc.

(a)GOVERNING LAW.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEBRASKA.

(b)SUBMISSION TO JURISDICTION.  THE BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE JOINT ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEBRASKA SITTING IN DOUGLAS COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS  AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEBRASKA 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, LITIGATION 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.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE JOINT ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN

122

DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(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 THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (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 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

11.15Waiver 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 THIS AGREEMENT OR ANY OTHER 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.

11.16Reserved.

11.17No 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), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that:  (a) (i) the arranging and other services regarding this Agreement provided by the Joint Administrative Agent and any Affiliate thereof, the Arranger and the Lenders are arm’s-length commercial transactions between the Borrower and its respective Affiliates, on the one hand, and the Joint Administrative Agent and, as applicable, its Affiliates (including the Arranger) and the Lenders and their Affiliates (collectively, solely for purposes of this Section, the “Lenders”), on the other hand, (ii) each of 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; (b) (i) the Joint

123

Administrative Agent and its Affiliates (including the Arranger) and each Lender each 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 Borrower or any of its respective Affiliates, or any other Person and (ii) neither the Joint Administrative Agent, any of its Affiliates (including the Arranger) nor any Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Joint Administrative Agent and its Affiliates (including the Arranger) and the Lenders may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, and its respective Affiliates, and neither the Joint Administrative Agent, any of its Affiliates (including the Arranger) nor any Lender has any obligation to disclose any of such interests to the Borrower or any of its respective Affiliates.  To the fullest extent permitted by law,  the Borrower hereby waives and releases any claims that it may have against the Joint Administrative Agent, any of its Affiliates (including the Arranger) or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated hereby. 

11.18Electronic Execution of Assignments and Certain Other Documents.

The words “delivery,” “execute,”“execution,”“signed,”“signature,” and words of like import in any Loan Document or any other document executed in connection herewithshall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Joint 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, physical delivery thereof 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 Nebraska 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 neither the Joint Administrative Agent, the L/C Issuer nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Joint Administrative Agent, the L/C Issuer or such Lender pursuant to procedures approved by it and provided further without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.

11.19USA PATRIOT Act Notice.

(a)Each Lender that is subject to the Act (as hereinafter defined) and the Joint 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 “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 Joint Administrative Agent, as applicable, to identify the Borrower in accordance with the Act.  The Borrower agrees to, promptly following a request by the Joint Administrative Agent or any Lender, provide all such other documentation and information that the Joint 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.

124

(b)If the Borrower qualifies as a "legal entity customer" under the Beneficial Ownership Regulation shall have provided, to the Joint Administrative Agent, a Beneficial Ownership Certification in relation to the Borrower.  The information included in the Beneficial Ownership Certification most recently provided to the Joint Administrative Agent, if applicable, is true and correct in all respects.  Promptly following any request therefor, provide information and documentation reasonably requested by the Joint Administrative Agent for purposes of compliance with applicable "know your customer" and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.  "Beneficial Ownership Certification" means a certification regarding beneficial ownership requested by the Beneficial Ownership Regulation.  "Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.

11.20Time of the Essence.

Time is of the essence of the Loan Documents.

11.21ENTIRE 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.

11.22EEA Financial Institutions.  No Lender is an EEA Financial Institution.

11.23Acknowledgement and Consent to Bail-In of EEA Financial Institutions.  Solely to the extent any Lender or L/C Issuer that is an EEA Financial Institution is a party to this Agreement and 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 or L/C Issuer 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 or L/C Issuer 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 or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Documents; or

125

(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.

11.24Borrowing Base Excess.  In the event that the Joint Administrative Agent determines that the Borrowing Base Excess divided by the Outstanding Amount is less than two percent (2.00%)and the Joint Administrative Agent provides notice of such a determination (the "Notice") to the Borrower, then from and after the date of such notice the Borrower shall cease to purchase any additional cattle until the earlier of (a) a notification from the Joint Administrative Agent of its determination that the Borrowing Base Excess divided by the Outstanding Amount is greater than two percent (2.00%) or (b) the Borrower shall have received within ten days of the Notice a capital contribution or proceeds of  Subordinated Debt which shall be applied to the Revolving Loan and in a sufficientamount to result in the Borrowing Base Excess divided by the Outstanding Amount to be greater than two per cent (2.00%).

11.25Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

(a)In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. 

(b)As used in this Section 11.25, the following terms have the following meanings:

126

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

“Covered Entity” means any of the following:  (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“QFC”has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

127

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

BORROWER:	GREEN PLAINS CATTLE COMPANY LLC
	By:	/s/ Phil Boggs
	Name:	Phil Boggs
	Title	SVP, Finance & Treasurer

128

BANK OF THE WEST, as Joint Administrative Agent
By:	/s/ Darren Jung
Name:	Darren Jung
Title	Vice President

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		BANK OF THE WEST, as Swingline Lender and Lender
		By:	/s/ Jeremy Reineke
		Name:	Jeremy Reineke
		Title	Vice President

129

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		ING CAPITAL LLC, As Joint Administrative Agent, L/C Issuer and Lender
		By:	/s/ Dan Lamprecht
		Name:	Dan Lamprecht
		Title	MD
		and
		By:	/s/ Renata Medeiros
		Name:	Renata Medeiros
		Title	VP

130

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		RABO AGRIFINANCE LLC, Lender
		By:	/s/ Mark Sorensen
		Name:	Mark Sorensen
		Title	Vice President

131

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		FARM CREDIT SERVICES OF AMERICA, PCA, Lender
		By:	/s/ Judson J. Jesske
		Name:	Judson J. Jesske
		Title	Vice President – Beef Industry

132

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		AGCOUNTRY FARM CREDIT SERVICES, PCA, Lender
		By:	/s/ Nicole Schwartz
		Name:	Nicole Schwartz
		Title	Vice President

133

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		BANK OF AMERICA, N.A., Lender
		By:	/s/ Kory Clark
		Name:	Kory Clark
		Title	SVP

134

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		AMERICAN AGCREDIT, PCA, Lender
		By:	/s/ Kyle Lucas
		Name:	Kyle Lucas
		Title	VP Relationship Manager CM

135

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		INTRUST BANK, N.A., Lender
		By:	/s/ Ryan D. Reh
		Name:	Ryan D. Reh
		Title	Commercial Relationship Mgr.

136

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		FARM CREDIT MID-AMERICA, PCA,   Lender
		By:	/s/ Patrick Sauer
		Name:	Patrick Sauer
		Title	Vice President – Capital Markets

137

BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender	BANK OF THE WEST, as Swingline Lender and Lender
		GREENSTONE FARM CREDIT SERVICES, ACA, Lender
		By:	/s/ Shane Prichard
		Name:	Shane Prichard
		Title	VP of Capital Markets

138

EX-99.1

Exhibit 99.1

Green Plains completes the sale of 50% of Green Plains Cattle Company for $77 Million to AGR Partners TGAM Agribusiness Fund Holdings-B LP and StepStone Atlantic Fund LP

OMAHA, Neb., September 9, 2019 (GLOBE NEWSWIRE) Green Plains Inc. (NASDAQ:GPRE) and a group of investment funds that include AGR Partners, StepStone Group, and several of their respective affiliates, today announced that they have formed a joint venture to own and operate Green Plains Cattle Company LLC. As a part of the joint venture, these investment funds have purchased 50% of the membership interests of Green Plains Cattle Company from Green Plains Inc. for approximately $77 million plus closing adjustments. The transaction was signed on September 6, 2019 with an effective date of September 1, 2019.

“We are excited about completing this transaction and the quality of investment partners who have aligned with us for the continued growth of Green Plains Cattle Company. This further validates the quality of the business we have built over the last several years, and allows us to form new relationships with long term investors,” said Todd Becker, president and chief executive officer of Green Plains Inc. “This strategic partnership demonstrates our ongoing commitment to unlocking value for our shareholders,” added Becker.

“The completion of this transaction also has a positive impact on our balance sheet by adding $77 million of cash and deconsolidating working capital debt associated with our cattle business which totaled approximately $335 million at the end of the second quarter,” said Becker. “We have significantly reduced our debt over the past year and between this transaction and paying off our $500 million term loan, we are now back to a net debt positive position against our convertible bonds.”

“Green Plains Cattle Company has developed a solid reputation in the cattle feeding industry and our management team and employees are excited to be part of this new venture,” stated Joel Jarnagin, president and chief executive officer of Green Plains Cattle Company. “We are very optimistic for what the future holds and look forward to a successful long-term relationship as we continue to grow the business.”

“AGR is pleased to partner with Green Plains and to work with Joel and the dynamic team he has assembled at Green Plains Cattle Company,” said Daniel Masters, Managing Director of AGR Partners. “We look forward to being a supportive partner in the continued growth of Green Plains Cattle Company.”

About Green Plains Inc.

Green Plains Inc. (NASDAQ:GPRE) is a diversified commodity-processing business with operations that include corn processing, grain handling and storage and commodity marketing and logistics services. The company is one of the leading corn processors in the world and, through its adjacent businesses, is focused on the production of high-protein feed ingredients and export growth opportunities. Green Plains owns a 50% interest in Green Plains Cattle Company LLC and owns a 49.1% limited partner interest and a 2.0% general partner interest in Green Plains Partners LP. For more information about Green Plains, visit www.gpreinc.com.

About Green Plains Cattle Company

Green Plains Cattle Company is a joint venture partnership between Green Plains Inc., AGR Partners, StepStone Group, and their respective affiliates. Headquartered in Omaha, NE, the Company is the fourth largest cattle feeder in the United States with total capacity of more than 355,000 head of cattle across six feedlots in three southwestern states. Green Plains Cattle Company operates a production model representing a unique, cross-industry approach coupled with an unwavering commitment to customer satisfaction while promoting steadfast adherence to the principles of sustainability, quality assurance, animal welfare, and responsible business practices. 

About AGR Partners

AGR Partners is an investment firm based in Davis, CA, and Chicago, IL, dedicated to backing strong food company and agribusiness teams through long-term investments of non-controlling equity or subordinated debt to facilitate late-stage growth, strategic acquisitions, full buyouts and ownership transitions.  For further information, visit www.AGRpartners.com.

About StepStone Group

StepStone Group is a global private markets firm providing customized investment and advisory solutions to some of the most sophisticated investors in the world. StepStone prudently integrates fund, secondaries and co-investments across private equity, real estate, private debt, infrastructure and real assets (including agriculture and timber). For further information visit www.stepstoneglobal.com.

Forward-Looking Statements

This news release includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking statements reflect management’s current views, which are subject to risks and uncertainties including, but not limited to, anticipated financial and operating results, plans and objectives that are not historical in nature. These statements may be identified by words such as “believe,” “expect,” “may,” “should,” “will” and similar expressions. Factors that could cause actual results to differ materially from those expressed or implied include risks related to Green Plains’ ability to realize the anticipated benefits of the cattle subsidiary divestiture and other risks discussed in Green Plains’ reports filed with the Securities and Exchange Commission. Investors are cautioned not to place undue reliance on forward-looking statements, which speak only as of the date of this news release. Green Plains assumes no obligation to update any such forward-looking statements, except as required by law.

Contact: Jim Stark, Executive Vice President - Investor and Media Relations, Green Plains Inc. (402) 884-8700

###

XML

Document And Entity Information	Sep. 06, 2019
Document And Entity Information [Abstract]
Document Type	8-K
Document Period End Date	Sep. 06, 2019
Entity Registrant Name	GREEN PLAINS INC.
Entity Incorporation, State or Country Code	IA
Entity File Number	001-32924
Entity Tax Identification Number	84-1652107
Entity Address, Address Line One	1811 Aksarben Drive
Entity Address, City or Town	Omaha
Entity Address, State or Province	NE
Entity Address, Postal Zip Code	68106
City Area Code	402
Local Phone Number	884-8700
Written Communications	false
Soliciting Material	false
Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Title of 12(b) Security	Common Stock, par value $0.001 per share
Trading Symbol	GPRE
Security Exchange Name	NASDAQ
Entity Central Index Key	0001309402
Amendment Flag	false