exv10w10a



 


Exhibit 10.10A



FIRST AMENDMENT

TO

NOTE AGREEMENT



     THIS FIRST AMENDMENT TO NOTE AGREEMENT (this “Amendment”) is made to the
Note Agreement dated June 19, 1998 (the “Note Agreement”) between CHS Inc.
(formerly known as Cenex Harvest States Cooperatives), a nonstock agricultural
cooperative organized under the laws of the State of Minnesota (the “Company”)
and the Purchasers listed on Schedule A attached thereto, under which the
Company issued and sold its 6.81% Series A Senior Notes due June 19, 2013 (the
“Notes”). This Amendment shall be effective as of the time specified in
Section 7 below.


     WHEREAS, the Company has requested that the holders of the Notes agree to
certain amendments to the Note Agreement as set forth below; and


     WHEREAS, the Company and holders of the Notes signing this Amendment
desire to amend the Note Agreement as set forth below.


     NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, including the mutual promises and agreements contained
herein, the parties hereto hereby agree as follows:


1. Definitions. Capitalized terms used herein without definition shall have
the definition given to them in the Note Agreement if defined therein.



2. Amendment to Section 6C. Section 6C of the Note Agreement is hereby
amended and restated to read as follows:



“6C. Priority Debt. The Company covenants that it will not, and
will not permit any of its Subsidiaries to, directly or
indirectly, create, issue, incur or assume any Priority Debt if
after giving effect thereto the aggregate outstanding principal
amount of all Priority Debt would exceed 20% of Consolidated Net
Worth at the time of such creation, issuance, incurrence or
assumption.”



3. Amendment to Article 6. Article 6 of the Note Agreement is hereby
amended by adding the following Section 6J:



“6J. Adjusted Consolidated Funded Debt to Consolidated Members’
and Patrons’ Equity. The Company shall not permit the ratio of
Adjusted Consolidated Funded Debt to Consolidated Members’ and
Patrons’ Equity to exceed .80 to 1.00 at any time.”



 







 


4. Amendment to Section 10B, addition of Definitions. Section 10B of the
Note Agreement is hereby amended by adding the following three
definitions:



“Adjusted Consolidated Funded Debt” means Consolidated Funded
Debt, plus the net present value of operating leases of the
Company and its Subsidiaries as discounted by a rate of 10% per
annum.”



“Consolidated Funded Debt” means as of any date of determination,
the total of all Funded Debt of the Company and its Subsidiaries
outstanding on such date, after elimination all offsetting debits
and credits between the Company and its Subsidiaries and all other
items required to be eliminated in course of the preparation of
consolidated financial statements of the Company and its
Subsidiaries in accordance with generally accepted accounting
principles.”



“Consolidated Members’ and Patrons’ Equity” means, with respect to
the Company and its Subsidiaries, the amount of equity accounts,
plus (or minus in the case of a deficit) the amount of surplus and
retained earnings accounts of the Company and its Subsidiaries,
plus (or minus in the case of a deficit) the minority interests in
Subsidiaries; provided that the total amount of intangible assets
of the Company and its Subsidiaries (including, without
limitation, unamortized debt discount and expense, deferred
charges and goodwill) included therein shall not exceed
$30,000,000 (and to the extent such intangible assets exceed
$30,000,000, they will not be included in the calculation of
Consolidated Members’ and Patrons’ Equity); all as determined on a
consolidated basis in accordance with generally accepted
accounting principles consistently applied.”



5. Amendment to Section 10B, definition of Consolidated Cash Flow. Section 10B
of the Note Agreement is hereby amended by amending and restating the
definition of “Consolidated Cash Flow” to read as follows:



“Consolidated Cash Flow” for any period shall mean the sum of (i)
earnings before income taxes of the Company and its Subsidiaries
for such period, determined on a consolidated basis in accordance
with generally accepted accounting principles, plus (ii) the
amounts that have been deducted in the determination of such
earnings before income taxes for such period for (a) interest
expense, (b) depreciation, (c) amortization, and (d) extraordinary
non-cash or one-time non-cash losses, minus (iii) the amounts that
have been included in the determination of such earnings before
income taxes for such period for (a) one-time gains, (b)
extraordinary income, (c) non-cash patronage income, and (d)
non-cash equity earnings in joint ventures.”



6. Company Representations. The Company hereby represents and warrants that,
this Amendment has been duly authorized, executed and delivered by it and that,
both



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before and after giving effect to this Amendment, (a) each representation and
warranty set forth in paragraph 8 of the Note Agreement is true and correct as
of the date of execution and delivery of this letter by the Company with the
same effect as if made on such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they were true
and correct as of such earlier date), and (b) no Default or Event of Default
has occurred and is continuing under the Note Agreement.



7. Effective Date. This Amendment shall become effective when it has been
executed by the Company and the Required Holder(s) and copies hereof as so
executed shall have been delivered to the holders of the Notes.



8. General Provisions.



	 		 	8.1 The Note Agreement, except as expressly modified herein,
shall continue in full force and effect and shall continue to be
binding upon the parties thereto.



	 		 	8.2 The execution, delivery and effectiveness of the Amendment
shall not operate as a waiver of any right, power or remedy of the
Purchasers under the Note Agreement, nor constitute a waiver of any
provision of the Note Agreement.



9. Reference to and Effect on Note Agreement. Upon the effectiveness of the
amendments in this Amendment, each reference to the Note Agreement in any other
document, instrument or agreement shall mean and be a reference to the Note
Agreement as modified by this Amendment.



10. Expenses. The Company herby confirms its obligations under the Note
Agreement, whether or not the transactions hereby contemplated are consummated,
to pay, promptly after request by any holder of Notes, all reasonable
out-of-pocket costs and expenses, including attorney’s fees and expenses,
incurred by any holder of Notes in connection with this Amendment or the
transactions contemplated hereby, in enforcing any rights under this Amendment,
or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Amendment or the
transactions contemplated hereby. The obligations of the Company under this
Section 10 shall survive transfer by any holder of Notes of any Note and
payment of any Note.



11. Governing Law. This Amendment shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of Illinois.



12. Counterparts. This Amendment may be executed in any number of counterparts
and by different parties to this Amendment in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Telefax copies of
documents or signature pages
bearing original signatures, and executed documents or signature pages
delivered by telefax, shall, in each such instance, be deemed to be, and shall
constitute and be treated



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as, an original signed document or counterpart, as applicable. The section
titles contained in this Amendment are and shall be without substance, meaning
or content of any kind whatsoever and are not a part of the agreement between
the parties hereto.



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     IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Note Agreement to be executed by their duly authorized officers effective as of
the Effective Date.



	 	 	 	 	 
	 	 	
 	 	COMPANY:
	 	 	 	 	 
	 	 	 	 	CHS Inc.
	 	 	 	 	 
	 	 	 	 	By:
	 	 	 	 	

	 	 	 	 	Name: John Schmitz
	 	 	 	 	Title: Executive Vice President and Chief
	 	 	 	 	          Financial Officer






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	THE PRUDENTIAL INSURANCE COMPANY	 	 	 	 
	OF AMERICA
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	THE MINNESOTA LIFE INSURANCE COMPANY
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By: Advantus Capital Management, Inc.
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	MTL INSURANCE COMPANY
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	THE CATHOLIC AID ASSOCIATION
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	NATIONAL TRAVELERS LIFE COMPANY
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	PIONEER MUTUAL LIFE INSURANCE COMPANY
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	GUARANTEE RESERVE LIFE INSURANCE COMPANY
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	THE BALTIMORE LIFE INSURANCE COMPANY
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	THE GUARDIAN LIFE INSURANCE
	 	 	 	 	 	 	 	 
	COMPANY OF AMERICA
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	MUTUAL OF OMAHA INSURANCE COMPANY
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	MODERN WOODMEN OF AMERICA
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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	AMERITAS LIFE INSURANCE CORP.
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
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