Exhibit 10.20


 


FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT


 


This First Amendment to Amended and Restated Credit
Agreement (this “Amendment”) is entered into as of July 30,
2010 by and among AMERICAN CRYSTAL SUGAR COMPANY, a cooperative corporation
formed under the laws of the State of Minnesota (the “Borrower”),
COBANK, ACB, a federally chartered banking organization (“CoBank”),
in its capacity as administrative agent for the Lenders, as defined below (in
such capacity, the “Administrative Agent”),
and CoBank and U.S. AGBANK, FCB (“U.S. AgBank”),
a farm credit bank chartered by the Farm Credit Administration, in their
capacities as Lenders under the Facilities (as defined below) that are the
subject of the substantive amendments effected by this Amendment.


 


RECITALS


 


The Borrower, the several banks and other financial
institutions from time to time party thereto (the “Lenders”),
and the Administrative Agent are parties to that certain Amended and Restated
Credit Agreement dated as of July 30, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).


 


The parties wish to amend the Credit Agreement on the
terms and subject to the conditions contained in this Amendment.


 


ACCORDINGLY, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:


 


Section 1.               Definitions.  Capitalized terms used and not otherwise
defined herein shall have the meanings given them in the Credit Agreement.


 


Section 2.               Amendments to the Credit Agreement.  The Credit Agreement is hereby amended as
follows:


 


(a)           Amendment
to Section 1.1 of the Credit Agreement (Definitions).  Section 1.1
of the Credit Agreement is hereby amended by adding or amending and restating,
as applicable, each of the following definitions:


 


“Aggregate Revolving
Commitment Amount” means the sum of the Aggregate Revolving Credit
Facility Commitment Amount, the Aggregate Revolving Letter of Credit Commitment
Amount and the Aggregate Term Revolving Commitment Amount then in effect.


 


“Aggregate Term Commitment
Amount” means $22,293,401.98, constituting the sum of the Term
Commitments of all Lenders.


 

















 


“Aggregate Term Revolving
Commitment Amount” means $50,000,000, constituting the sum of the
Term Revolving Commitments of all Lenders, subject to adjustment in accordance
with Section 2.16.


 


“Commitment”
means, with respect to any Lender, the Revolving Credit Facility Commitment,
the Term Commitment, the Term Revolving Commitment or the Revolving Letter of
Credit Commitment, as the context requires.


 


“Commitment Amount”  means the Aggregate Revolving Credit Facility Commitment
Amount, the Aggregate Revolving Letter of Credit Commitment Amount, the
Aggregate Term Commitment Amount or the Aggregate Term Revolving Commitment
Amount, as the context requires and subject to adjustment in accordance with Section 2.16.


 


“Commitment Termination
Date”  means the Revolving
Credit Facility Termination Date, the Term Revolving Commitment Termination
Date or the Revolving Letter of Credit Commitment Termination Date, as the
context requires.


 


“Credit Exposure”
means, with respect to any Lender, (a) at all times prior to termination
of the Commitments, the aggregate amount of such Lender’s Commitments; and
(b) thereafter, the aggregate amount of such Lender’s Facility Outstanding
Amount with respect to each Facility.


 


“Existing Indebtedness”
means, collectively, the Existing Revolving Loan, the Existing Revolving Term
Loan T01, the Outstanding Revolving Term Loan T01 Advances, the Existing
Revolving Term Loan T06, the Outstanding Revolving Term Loan T06 Advances and
the Existing Revolving Letter of Credit Loan.


 


“Facility” means
the Revolving Credit Facility, the Term Facility, the Term Revolving Facility
or the Revolving Letter of Credit Facility, as the context requires.


 


“Facility Outstanding
Amount” means the Revolving Credit Facility Outstanding Amount, the
Term Facility Outstanding Amount, the Term Revolving Facility Outstanding
Amount or the Revolving Letter of Credit Facility Outstanding Amount, as the
context requires.


 


“Fee Letter”
means the separate agreement dated as of the Closing Date and the separate
agreement dated as of June 30, 2010, each between the Borrower and the
Administrative Agent, and each setting forth certain fees to be paid by the
Borrower to the Administrative Agent for the Administrative Agent’s own account
or for the account of the Lenders, as more fully set forth therein.


 


“First Amendment Effective
Date” means July 30, 2010.


 


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“Interest Period”
means, relative to any LIBOR Loan, the period beginning on (and including) the
date on which such LIBOR Loan is made, or continued as, or converted into, a
LIBOR Loan pursuant to Section 2.2, 2.3 or 2.5 and shall end on (but
exclude) the day that numerically corresponds to such date one, three or six
months thereafter (or, if such month has no numerically corresponding day, on
the last Business Day of such month), as the Borrower may select in its
relevant notice pursuant to Section 2.2, 2.3 or 2.5; provided, however,
that:


 


(a)           no more than five (5) different
Interest Periods may be outstanding at any one time for each Facility other
than the Term Revolving Facility, and no more than ten (10) different
Interest Periods may be outstanding at any one time for the Term Revolving
Facility;


 


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


 


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


 


“Letter of Credit Facility”
means the Revolving Credit Facility, the Term Revolving Facility or the
Revolving Letter of Credit Facility, as applicable.


 


“Letter of Credit Lenders”
means the Revolving Credit Facility Lenders, the Term Revolving Lenders or the
Revolving Letter of Credit Lenders, as applicable.


 


“Letter of Credit Sublimit”
means (a) $50,000,000 in respect of the Revolving Credit Facility, (b) $50,000,000
in respect of the Term Revolving Facility, and (c) the Aggregate Revolving
Letter of Credit Commitment Amount in respect of the Revolving Letter of Credit
Facility; as the context requires.


 


“Maturity Date”
means (a) with respect to the Revolving Credit Facility, July 30,
2012; (b) with respect to the Term Facility, December 31, 2015; (c) with
respect to the Term Revolving Facility, July 30, 2015; and (d) with
respect to the Revolving Letter of Credit Facility, April 30, 2013.


 


“Note” means any
Revolving Credit Facility Note, Term Note, Term Revolving Note or Revolving
Letter of Credit Note.


 


“Outstanding Revolving Term
Loan T01 Advances” has the meaning specified in Section 2.1(b).


 


“Outstanding Revolving Term
Loan T06 Advances” has the meaning specified in Section 2.1(c).


 


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“Revolving Term Loan T01
Advance” means any loan of funds by a Lender to the Borrower under
the Revolving Term Loan T01 Facility on or after the Closing Date to but
excluding the First Amendment Effective Date, which loans are being refinanced
by proceeds of the Term Facility.


 


“Revolving Term Loan T01
Facility” means a revolving credit facility made available to the
Borrower by the Lenders under Section 2.1(b) as in effect from the
Closing Date until the First Amendment Effective Date.


 


“Revolving Term Loan T06
Advance” means any loan of funds by a Lender to the Borrower under
the Revolving Term Loan T06 Facility on or after the Closing Date to but
excluding the First Amendment Effective Date, which loans are being refinanced
by proceeds of the Term Revolving Facility.


 


“Revolving Term Loan T06
Facility” means a revolving credit facility made available to the
Borrower by the Lenders under Section 2.1(c) as in effect from the
Closing Date until the First Amendment Effective Date.


 


“Secured Obligations”
means the Obligations arising under the Term Facility, the Term Revolving
Facility and the Revolving Letter of Credit Facility.


 


“Term Advance”  means a loan of funds by a Lender to the Borrower under the
Term Facility, including Base Rate Loans, LIBOR Loans and Quoted Rate Loans
made thereunder.


 


“Term Borrowing”
means a Borrowing consisting of a Term Advance by each of the Term Lenders.


 


“Term Commitment”
means, with respect to each Lender, (a) the amount so designated opposite
such Lender’s name on Exhibit A, plus or minus any such amount assumed or
assigned pursuant to any Assignment and Assumption; or (b) as the context
may require, the obligation of such Lender to make Term Advances under Section 2.1(b).


 


“Term Facility”
means the term credit facility being made available to the Borrower by the
Lenders pursuant to Section 2.1(b).


 


“Term Facility Outstanding
Amount”  means, as of
the date of determination, the aggregate principal amount of all outstanding
Term Advances.


 


“Term Lender”
means any Lender with a Term Commitment.


 


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


 


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“Term Revolving Advance”
means a loan of funds by a Lender to the Borrower under the Term Revolving
Facility, including Base Rate Loans, LIBOR Loans and Quoted Rate Loans made
thereunder.


 


“Term Revolving Borrowing”
means a Borrowing consisting of a Term Revolving Advance by each of the Term
Revolving Lenders.


 


“Term Revolving Commitment”
means, with respect to each Lender, (a) the amount so designated opposite
such Lender’s name on Exhibit A, plus or minus any such amount assumed or
assigned pursuant to any Assignment and Assumption; or (b) as the context
may require, the obligation of such Lender to make Term Revolving Advances
under Section 2.1(c).


 


“Term Revolving Commitment
Termination Date” means the earlier of (a) the applicable
Maturity Date for such Facility; and (b) the date on which the Term
Revolving Commitments are terminated pursuant to Section 7.2.


 


“Term Revolving Facility”
means the revolving credit facility being made available to the Borrower by the
Lenders pursuant to Section 2.1(c).


 


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


 


“Term Revolving Lender”
means any Lender with a Term Revolving Commitment.


 


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


 


(b)           Amendment
to Section 1.1 of the Credit Agreement (Definitions).  Section 1.1
of the Credit Agreement is further amended by deleting therefrom each of the
following definitions:


 


“Aggregate Commitment
Amount”


 


“Aggregate Revolving Term
Loan T01 Commitment Amount”


 


“Aggregate Revolving Term
Loan T06 Commitment Amount”


 


“Revolving Term Loan T01
Availability Termination Date”


 


“Revolving Term Loan T01
Borrowing”


 


“Revolving Term Loan T01
Commitment”


 


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“Revolving Term Loan T01
Commitment Termination Date”


 


“Revolving Term Loan T01
Facility Outstanding Amount”


 


“Revolving Term Loan T01
Lender”


 


“Revolving Term Loan T01
Note”


 


“Revolving Term Loan T06
Availability Termination Date”


 


“Revolving Term Loan T06
Borrowing”


 


“Revolving Term Loan T06
Commitment”


 


“Revolving Term Loan T06
Commitment Termination Date”


 


“Revolving Term Loan T06
Facility Outstanding Amount”


 


“Revolving Term Loan T06
Lender”


 


“Revolving Term Loan T06
Note”


 


(c)           Amendment
to Section 2.1(b) of the Credit Agreement (Revolving Term Loan T01
Facility).  Section 2.1(b) of
the Credit Agreement is amended and restated in its entirety to read as
follows:


 


(b)           Term Facility.  The Borrower acknowledges that the Term
Lenders have made various Revolving Term Loan T01 Advances to the Borrower in
the aggregate amount of $21,293,401.98 outstanding as of the First Amendment
Effective Date (the “Outstanding Revolving Term
Loan T01 Advances”).  The
Outstanding Revolving Term Loan T01 Advances are Term Advances for purposes of
this Agreement and shall be repayable in accordance with this Agreement.  Each Term Lender hereby agrees, on the terms
and subject to the conditions herein set forth, to make a single Term Advance
to the Borrower on the First Amendment Effective Date in the amount of $1,000,000
to be applied to repay $1,000,000 of the Outstanding Revolving Term Loan T06
Advances immediately prior to conversion of Outstanding Revolving Term Loan T06
Advances into Term Revolving Advances under Section 2.1(c) hereof.  The Term Facility is not a revolving
facility; once such Term Advance is made by the Term Lenders on the First
Amendment Effective Date, the Term Lenders shall have no further obligation to
make any additional Term Advances to the Borrower under the Term Facility,
whether or not any amounts are repaid thereunder.


 


(d)           Amendment
to Section 2.1(c) of the Credit Agreement (Revolving Term Loan T06
Facility).  Section 2.1(c) of
the Credit Agreement is amended and restated in its entirety to read as
follows:


 


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(c)           Term Revolving Facility.  The Borrower acknowledges that the Term
Revolving Lenders have made various Revolving Term Loan T06 Advances to the
Borrower in the aggregate amount of $1,000,000 outstanding as of the First
Amendment Effective Date (the “Outstanding Revolving Term
Loan T06 Advances”).  Each
Term Revolving Lender hereby agrees, on the terms and subject to the conditions
herein set forth, including but not limited to satisfaction of all conditions
set forth in Section 3.2, to continue to make Term Revolving Advances to
the Borrower from time to time during the period on and after the First
Amendment Effective Date to and including the Term Revolving Commitment
Termination Date, in an aggregate amount at any time outstanding not to exceed
such Term Revolving Lender’s Percentage of each Borrowing from time to time
requested by the Borrower under the Term Revolving Facility; provided, however,
that no Term Revolving Lender’s Percentage of the Term Revolving Facility
Outstanding Amount shall at any time exceed such Lender’s Term Revolving
Commitment.  Within the above limits, the
Borrower may obtain Term Revolving Advances, prepay Term Revolving Advances in
accordance with the terms hereof and reborrow Term Revolving Advances in
accordance with the applicable terms and conditions of this Article II.


 


(e)           Amendment
to Section 2.2(a) of the Credit Agreement (Borrowings).  Section 2.2(a) of the Credit
Agreement is amended and restated in its entirety to read as follows:


 


(a)           Borrowings.  Each Revolving Credit Facility Borrowing
shall be funded by the Revolving Credit Facility Lenders; each Term Borrowing
shall be funded by the Term Lenders; each Term Revolving Borrowing shall be
funding by the Term Revolving Lenders; and each Revolving Letter of Credit
Borrowing shall be funded by the Revolving Letter of Credit Lenders.  Each such Borrowing shall be funded as Base
Rate Advances, LIBOR Advances or Quoted Rate Advances, as the Borrower shall
specify in the related notice of proposed Borrowing.  Base Rate Loans, LIBOR Loans and Quoted Rate
Loans may be outstanding at the same time.


 


(f)            Amendment
to Section 2.2(e) of the Credit Agreement (Notice; Proceeds).  The third sentence of Section 2.2(e) of
the Credit Agreement is amended and restated in its entirety to read as
follows:


 


Subject to satisfaction of the conditions precedent
set forth in Article III with respect to such Borrowing, at or before
10:00 a.m. (Denver time) on the date of the requested Borrowing for a
LIBOR Advance, Base Rate Advance or Quoted Rate Advance, each of the Revolving
Credit Facility Lenders, Term Lenders, Term Revolving Lenders or Revolving
Letter of Credit Lenders, as applicable, shall provide the Administrative Agent
at the principal office of the Administrative Agent in Denver, Colorado (or
such other office as the Administrative Agent may designate), with immediately
available funds covering such Lender’s Percentage of such Borrowing.


 


7

















 


(g)           Amendment
to Section 2.9 of the Credit Agreement (Commitment to Issue Letters of
Credit).  The first sentence of Section 2.9
of the Credit Agreement is amended and restated in its entirety to read as
follows:  :


 


The Letter of Credit Issuer agrees, from the Closing
Date to and including the sixtieth (60th) day prior to the Revolving Credit
Facility Termination Date, the Term Revolving Commitment Termination Date or
the Revolving Letter of Credit Commitment Termination Date, as applicable, to
issue one or more letters of credit for the account of the Borrower.


 


(h)           Amendments
to Section 2.9(a) of the Credit Agreement (Commitment to Issue
Letters of Credit).  Section 2.9(a) of
the Credit Agreement is amended by deleting “or” after clause (a)(i) thereof,
deleting the period after clause (a)(ii) and inserting “; or” in
substitution therefor, and inserting a new clause (iii) at the end of the
second sentence of Section 2.9 to read as follows:


 


(iii) with respect to a Letter of Credit
issued under the Term Revolving Facility, the Term Revolving Facility
Outstanding Amount would exceed the Aggregate Term Revolving Commitment Amount.


 


(i)            Amendment
to Section 2.12(d) of the Credit Agreement (Revolving Term Loan T01
Facility Principal).  Section 2.12(d) of
the Credit Agreement is amended and restated in its entirety to read as
follows:


 


(d)           Term Facility Principal. 
Principal of the Term Facility shall be paid in three installments, with
a principal payment of $7,000,000 due and payable on December 31, 2013, a
second principal payment of $7,000,000 due and payable on December 31,
2014, and the entire remaining unpaid principal balance of the Term Facility
due and payable on the Maturity Date for the Term Facility.


 


(j)            Amendment
to Section 2.12(e) of the Credit Agreement (Revolving Term Loan T06
Facility Principal).  Section 2.12(e) of
the Credit Agreement is amended and restated in its entirety to read as
follows:


 


(e)           Term Revolving Facility Principal.  The aggregate unpaid principal amount of all
Term Revolving Facility Advances shall be payable on the applicable Maturity
Date.


 


(k)           Amendment
to Section 2.12(h)(i)(A) of the Credit Agreement (Application of
Mandatory Prepayments).  Section 2.12(h)(i)(A) of
the Credit Agreement is amended and restated in its entirety to read as
follows:


 


(A)          first,
to the principal balance of the Term Facility, the Term Revolving Facility and
the Revolving Letter of Credit Facility, to be applied pro rata in inverse
order of their maturities, and, if the amount so prepaid exceeds  $15,000,000, the Commitment Amount for
each such Facility shall be permanently reduced on a pro rata basis by the
amount prepaid;


 


8
















 


(l)            Amendment
to Section 2.14(a) of the Credit Agreement (Fees).  Section 2.14(a) of the Credit
Agreement is amended and restated in its entirety to read as follows:


 


(a)           Unused Fee.  The Borrower will pay to the Administrative
Agent, for the pro rata account of the Lenders, an ongoing Unused Fee (the “Unused Fee”) computed as the product of
(i) an annual rate equal to the applicable Margin relating to the Unused
Fee; and (ii) the daily average amount by which (1) the Aggregate Revolving Commitment Amount exceeds (2) the sum of the Facility Outstanding
Amount with respect to each of the Revolving Credit Facility, the  Term Revolving Facility and the Revolving
Letter of Credit Facility, from the First Amendment Effective date to and
including the Maturity Date, payable on or prior to the 10th day of each
calendar month in arrears, as accrued through the last day of the immediately
preceding calendar month.  Any Unused Fee
remaining unpaid on the Maturity Date shall be due and payable on such
date.  The Unused Fee shall be shared by
the Lenders on the basis of their respective Percentages.


 


(m)          Amendment
to Section 2.17(f) of the Credit Agreement (Application of Payments).  Section 2.17(f) of the Credit
Agreement is amended by amending and restating subsection (ii) of the
second sentence thereof to read as follows:


 


(ii) proceeds of Collateral, after payment of
costs of collection thereof, shall be applied, first, ratably, to
payment of the Term Facility, the Term Revolving Facility and the Revolving
Letter of Credit Facility, and applied to principal and interest due thereunder
in accordance with the Intercreditor Agreement, and second, to any
remaining Obligations, in such order of application as the Required Lenders
shall determine in their sole discretion.


 


(n)           Amendment
to Section 9.3(d) of the Credit Agreement (Participations).  Section 9.3(d) of the Credit
Agreement is amended by (i) deleting the first reference therein to “the
Revolving Credit Facility” and substituting “any Facility” therefor, (ii) deleting
each subsequent reference therein to “the Revolving Credit Facility” and
substituting “such Facility” therefor, and (iii) deleting each reference
to “the Revolving Credit Facility Note” and substituting “the Note with respect
to such Facility” therefor.


 


(o)           Amendments
to Exhibits A, E and F to the Credit Agreement.  The Credit Agreement is hereby amended by
deleting Exhibits A, E and F to the Credit Agreement and replacing them in
their entirety with Exhibits A, E and F to this Amendment.


 


Section 3.               References. 
All references in the Credit Agreement to “this Agreement” shall be
deemed to refer to the Credit Agreement as amended hereby, and any and all
references in any other Loan Document to the Credit Agreement shall be deemed
to refer to the Credit Agreement as amended hereby.


 


Section 4.               No Other Changes.  Except as expressly set forth herein, all
terms of the Credit Agreement and each of the other Loan Documents remain in
full force and effect.


 


9

















 


Section 5.               Representations and Warranties.  The Borrower hereby represents and warrants
to the Administrative Agent and the Lenders as follows:


 


(a)           The
Borrower has all requisite power and authority, corporate or otherwise, to
execute and deliver this Amendment and to perform its obligations under this
Amendment and the Loan Documents to which the Borrower is a party.  This Amendment and the Loan Documents to
which the Borrower is a party have been duly and validly executed and delivered
to the Administrative Agent by the Borrower, and this Amendment and the Loan
Documents to which the Borrower is a party constitute the Borrower’s legal,
valid and binding obligations, enforceable in accordance with their terms.


 


(b)           The
execution, delivery and performance by the Borrower of this Amendment and the
Loan Documents to which the Borrower is a party have been duly authorized by
all necessary corporate or other action and do not and will not (i) require
any authorization, consent or approval by any governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate
the Borrower’s Organizational Documents or any provision of any law, rule,
regulation or order presently in effect having applicability to the Borrower,
or (iii) result in a breach of, or constitute a default under, any
indenture or agreement to which the Borrower is a party or by which the
Borrower or its properties may be bound or affected.


 


(c)           All
of the representations and warranties contained in Article IV of the
Credit Agreement and in each other Loan Document are correct on and as of the
date hereof as though made on and as of such date, except to the extent that
such representations and warranties relate solely to an earlier date.


 


(d)           No
event has occurred and is continuing, or would result from the execution and
delivery of this Amendment or the other documents contemplated hereunder to
which the Borrower is a party, which constitutes a Default or an Event of
Default.


 


Section 6.               Effectiveness.  This Amendment shall be effective only if the
Administrative Agent has received, on or before the date of this Amendment (or
such later date as the Administrative Agent may agree in writing), each of the
following, each in form and substance acceptable to the Administrative Agent in
its sole discretion:


 


(a)           this
Amendment, duly executed by the Borrower;


 


(b)           the
Term Notes, duly executed by the Borrower in favor of each of the Term Lenders;


 


(c)           the
Term Revolving Notes, duly executed by the Borrower in favor of each of the
Term Revolving Lenders;


 


(d)           an
Acknowledgment and Agreement of Guarantor, duly executed by the Guarantor;


 


10

















 


(e)           a
certificate of the secretary or other appropriate officer of the Borrower certifying
(i) that the execution, delivery and performance of this Amendment and the
other documents contemplated hereunder to which the Borrower is a party have
been duly approved by all necessary action of the Governing Board of the
Borrower, and attaching true and correct copies of the applicable resolutions
granting such approval; (ii) that the Organizational Documents of the
Borrower, which were certified and delivered to the Administrative Agent
pursuant to the most recent certificate of secretary or assistant secretary
given by the Borrower to the Lenders, continue in full force and effect and
have not been amended or otherwise modified except as set forth in the
certificate to be delivered as of the date hereof; and (iii) that the
officers and agents of the Borrower who have been certified to the
Administrative Agent, pursuant to the certificate of secretary or assistant
secretary given by the Borrower to the Administrative Agent, as being
authorized to sign and to act on behalf of the Borrower continue to be so
authorized or setting forth the sample signatures of each of the officers and
agents of the Borrower authorized to execute and deliver this Amendment and all
other documents, agreements and certificates on behalf of the Borrower;


 


(f)            a
signed copy of an opinion of counsel for each Obligor addressed to the
Administrative Agent, on behalf of the Lenders, with respect to the matters
contemplated by this Amendment and all other documents, agreements and
certificates contemplated hereunder;


 


(g)           the
following financial information of the Borrower and the Consolidated
Group:  (i) consolidated
and consolidating financial statements for the Fiscal Years ending August 31,
2007 through August 31, 2009, audited by Eide Bailly LLP, and interim
financial statements for the most recent period completed, including balance
sheets, income statements and cash flow statements prepared in conformity with
GAAP; (ii) a 1-year (commencing September 1,
2010) business plan and pro-forma financial projections; and (iii) such other financial information as
the Administrative Agent may reasonably request;


 


(h)           the
absence of any Material Adverse Effect, financial or otherwise, affecting the
Borrower or the Consolidated Group since August 31, 2009; and


 


(i)            payment
of all fees and expenses due and payable pursuant to the Fee Letter dated as of
June 30, 2010 and Section 10 hereof.


 


Section 7.               Certificates of Insurance.  Not later
than five Business Days after the date hereof, the Borrower shall deliver to
the Administrative Agent evidence of all insurance required by the terms of the
Security Documents, together with certificates and loss payable endorsements
showing the Administrative Agent, for the benefit of the Lender Parties, as
mortgagee, additional insured and lender loss payee thereunder.  Notwithstanding anything to the contrary in
the Credit Agreement, this Amendment shall be deemed a “Loan Document” and the
Borrower’s failure to comply with this Section 7 shall be deemed to be a
default in the performance, or breach, of a covenant or agreement of an Obligor
in a Loan Document as more fully described in Section 7.1 of the Credit
Agreement.


 


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Section 8.               No Waiver.  The
execution of this Amendment and any documents, agreements and certificates
contemplated hereunder shall not be deemed to be a waiver of any Default or
Event of Default or any other breach, default or event of default under any
Loan Document or other document held by the Administrative Agent or any Lender,
whether or not known to the Administrative Agent or any Lender and whether or
not existing on the date of this Amendment.


 


Section 9.               Release of Administrative Agent and Lenders.  The Borrower, by its signature to this
Amendment, hereby absolutely and unconditionally releases and forever
discharges the Administrative Agent and the Lenders, and any and all
participants, parent corporations, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns thereof, together
with all of the present and former Directors, officers, agents and employees of
any of the foregoing, from any and all claims, demands or causes of action of
any kind, nature or description, whether arising in law or equity or upon
contract or tort or under any state or federal law or otherwise, which the
Borrower has had, now has or has made claim to have against any such Person for
or by reason of any act, omission, matter, cause or thing whatsoever occurring
or arising prior to the date of this Amendment, whether such claims, demands
and causes of action are matured or unmatured or known or unknown.


 


Section 10.             Costs and Expenses.  The Borrower hereby reaffirms its agreement
under Section 9.6 of the Credit Agreement to pay or reimburse the
Administrative Agent on demand for all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and specifically including allocated costs of in house counsel),  in connection with the preparation, negotiation,
execution, delivery and administration of this Amendment and the other
documents, agreements and certificates contemplated hereunder (whether or not
the transactions contemplated hereby or thereby shall be consummated);


 


Section 11.             Miscellaneous.  This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument.  This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of Colorado (other than its conflicts of laws rules).


 


Signature page follows


 


12

















 


IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the day and year first above written.


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Samuel S. M. Wai

  
	
   

  	
   

  	
  Name:

  	
  Samuel S. M. Wai

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COBANK, ACB, as Administrative Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey C. Norte

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey C. Norte

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. AGBANK, FCB, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Burdick

  
	
   

  	
   

  	
  Name:

  	
  Paul Burdick

  
	
   

  	
   

  	
  Title:

  	
  Asst. Vice President

  
	
   

  	
   

  



 


Signature
Page to First Amendment to Amended and Restated Credit Agreement


 

















 


ACKNOWLEDGMENT AND AGREEMENT OF
GUARANTOR


 


The undersigned, a guarantor of the indebtedness of
American Crystal Sugar Company, a cooperative corporation formed under the laws
of the State of Minnesota (the “Borrower”), to
CoBank, ACB, a federally chartered banking organization, in its capacity as the
Administrative Agent (as described in the Credit Agreement defined in the
foregoing First Amendment to Amended and Restated Credit Agreement (the “First Amendment”)), pursuant to an Amended and Restated
Guaranty dated as of July 30, 2009 (as amended, restated, supplemented or
otherwise modified from time to time, the “Guaranty”),
hereby (i) acknowledges receipt of the First Amendment; (ii) consents
to the terms and execution thereof; (iii) reaffirms all obligations to the
Administrative Agent and the Lenders pursuant to the terms of the Guaranty; and
(iv) acknowledges that the Administrative Agent and the Lenders may amend,
restate, extend, renew or otherwise modify the Credit Agreement and any
indebtedness or agreement of the Borrower, or enter into any agreement or
extend additional or other credit accommodations, without notifying or
obtaining the consent of the undersigned and without impairing the liability of
the undersigned under the Guaranty.


 


	
   

  	
  SIDNEY SUGARS INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Samuel S. M. Wai

  
	
   

  	
   

  	
  Name:

  	
  Samuel S. M. Wai

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  



 


Signature
Page to Acknowledgment and Agreement of Guarantor


 

















 


Exhibit A


COMMITMENTS AND ADDRESSES


 


	
  Name

  	
   

  	
  Commitment Amounts

  	
   

  	
  Notice Address

  
	
  CoBank, ACB, as Administrative Agent

  	
   

  	
  N/A

  	
   

  	
  5500
  South Quebec Street

  Greenwood Village, CO 80111

  Attention:  Jacquie
  Fredericks

  Phone:  (303) 694-5833

  Facsimile:  (303) 796-1456

  E-mail:  jfreder@cobank.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CoBank, ACB, as a Lender

  	
   

  	
  Revolving Credit Facility Commitment: $192,000,000

  Term Commitment: $22,293,401.98

  Term Revolving Commitment: $40,000,000

  Revolving Letter of Credit Commitment:
  $54,304,163.06

  	
   

  	
  5500
  South Quebec Street

  Greenwood Village, CO 80111

  Attention:  Jacquie
  Fredericks

  Phone:  (303) 694-5833

  Facsimile:  (303) 796-1456

  E-mail:  jfreder@cobank.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  U.S. AgBank, FCB, as a Lender by assignment
  pursuant to an Assignment and Assumption

  	
   

  	
  Revolving Credit Facility Commitment: $50,000,000

  Term Commitment: $0

  Term Revolving Commitment: $10,000,000

  Revolving Letter of Credit Commitment: $6,545,036.93

  	
   

  	
  245 N. Waco

  Wichita, KS 67202

  Attention:  Travis W. Ball

  Phone:  (316) 266-5448

  Facsimile:  (316)
  291-5011

  E-mail:  travis.ball@usagbank.com

  



 


1

















 


	
  The Bank of Tokyo-Mitsubishi
  UFJ, Ltd.

  	
   

  	
  Revolving Credit Facility Commitment: $28,000,000

  Term Commitment: $0

  Term Revolving Commitment: $0

  Revolving Letter of Credit Commitment: $0

  	
   

  	
  1251 Avenue of the Americas

  New York, NY 10020-1104

  Attention: Portfolio Management Group

  Phone: (212) 782-4206

  Facsimile: (212) 782-6440

  

  With a copy to:

  Attention: Scott Ackerman, VP

  601 Carlson Parkway, Suite 370

  Minnetonka, MN 55305

  Phone: (952) 473-7894

  Facsimile: (952) 473-5152

  E-mail: sackerman@us.mufg.jp

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National
  Association

  	
   

  	
  Revolving Credit Facility Commitment: $50,000,000

  Term Commitment: $0

  Term Revolving Commitment: $0

  Revolving Letter of Credit Commitment: $0

  	
   

  	
  1740
  Broadway

  Denver, CO 80274

  Attention: Edward Cooper III

  Phone: (312) 845-9747

  Facsimile: (312) 845-4462

  Email: ed.cooper3@wellsfargo.com

  



 


2

















 


Exhibit E


TERM NOTE


 


	
  $                       

  	
                        
       , 20   

  
	
   

  	
  Denver, Colorado

  



 


For value received, AMERICAN CRYSTAL SUGAR COMPANY, a
cooperative association formed under the laws of the State of Minnesota (the “Borrower”), promises to pay to the order of                               ,
a                     (the
“Lender”), at such place as the
Administrative Agent under the Credit Agreement defined below may from time to
time designate in writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of                           Dollars  ($                  ),
together with interest on the unpaid principal balance hereof outstanding from
time to time at such interest rates and payable at such times as are specified
in the Amended and Restated Credit Agreement dated as of July 30, 2009 by
and among the Borrower, the Lender, certain other Lenders from time to time
party thereto, and CoBank, ACB, as administrative agent (as amended by a
First Amendment to Amended and Restated Credit Agreement dated as of
July 30, 2010, and as further amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”).


 


This Note is a Term Note as defined in the Credit
Agreement, and is issued subject and pursuant to the Credit Agreement, which,
among other things, provides for the amount and date of payments of principal
and interest required hereunder, acceleration of the maturity hereof upon the
occurrence of an Event of Default (as defined in the Credit Agreement), and
prepayment hereof upon the occurrence of certain events.


 


This Note is issued in substitution for and replacement
of, but not repayment of, the Revolving Term Loan T01 issued by the Borrower in
favor of the Lender dated July 30, 2009, in the original principal amount
of $48,707,402.


 


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


 


Presentment or other demand for payment, notice of
dishonor and protest are expressly waived.


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


1

















 


Exhibit F


TERM REVOLVING NOTE


	
  $               

  	
                    
  , 20   

  
	
   

  	
  Denver, Colorado

  



 


For value received, AMERICAN CRYSTAL SUGAR COMPANY, a
cooperative association formed under the laws of the State of Minnesota (the “Borrower”), promises to pay to the order of                               ,
a                                (the
“Lender”), at such place as the
Administrative Agent under the Credit Agreement defined below may from time to
time designate in writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of                         
Dollars ($                 ),
or, if less, the aggregate unpaid principal amount of all Term Revolving
Advances (as defined in the Credit Agreement) made by the Lender to the
Borrower under the Amended and Restated Credit Agreement dated as of July 30,
2009 by and among the Borrower, the Lender, certain other Lenders from time to
time party thereto and CoBank, ACB, as administrative agent (as amended by
a First Amendment to Amended and Restated Credit Agreement dated as of July 30,
2010, and as further amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”),
together with interest on the unpaid principal balance hereof at such interest
rates and payable at such times as are specified in the Credit Agreement.


 


This Note is a Term Revolving Note as defined in the
Credit Agreement, and is issued subject and pursuant to the Credit Agreement,
which, among other things, provides for the amount and date of payments of
principal and interest required hereunder, acceleration of the maturity hereof
upon the occurrence of an Event of Default (as defined in the Credit
Agreement), and prepayment hereof upon the occurrence of certain events.


 


This Note is issued in substitution for and replacement
of, but not repayment of, the Revolving Term Loan T06 issued by the Borrower in
favor of the Lender dated July 30, 2009, in the original principal amount
of $65,000,000.


 


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


 


Presentment or other demand for payment, notice of
dishonor and protest are expressly waived.


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: 

  	
   

  



 


1