**Exhibit 10.33**

* *

*EXECUTIONCOPY*

 

 

 

 

AmericanCrystal Sugar Company

 

 

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FirstAmendment

 

Dated as of November 26,2003

To

 

NotePurchase Agreement

 

DatedJanuary 15, 2003

 

 

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Re:          $20,000,0004.78% Senior Secured Guaranteed Notes, due February 1, 2010

 

 

 

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FirstAmendment to Note Purchase Agreement

 

This FirstAmendment dated as of November 26, 2003 (“*First Amendment*”) to theNote Purchase Agreement dated as of January 15, 2003, is among American CrystalSugar Company, a Minnesota cooperative corporation (*“Company”),*Sidney SugarsIncorporated, a Minnesota corporation (the “*Guarantor*”) and the Purchasers who areparty to the 2003 Note Agreement (collectively, the *“2003 Noteholders”*).

 

**RECITALS:**

 

A.            The Company and theNoteholders have heretofore entered into those separate and several NotePurchase Agreements each dated as of January 15, 2003 (collectively, the “*2003**Note Agreement*”).  The Company has heretofore issued the$3,000,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010 bearingPPN 02530# AD 3 (the *“Note No. R-1”*),the $15,250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010bearing PPN 02530# AD 3 (the *“Note No. R-2”*),the $1,500,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010bearing PPN 02530# AD 3 (the *“Note No. R-3”)*and the $250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010bearing PPN 02530# AD 3 (the *“Note No. R-4”;Note No. R-1,**Note No. R-2, NoteNo. R-3*and*Note No. R-4*are hereinafter**collectivelyreferred to as the *“2003 Notes”*) pursuant to the 2003 NoteAgreement.  The 2003 Noteholders are theholders of 100% of the principal amount of the 2003 Notes presentlyoutstanding.  The Guarantor guaranteed thepayment and performance of the 2003 Notes and the 2003 Note Agreement by thatcertain Guarantee Agreement dated as of January 15, 2003 (the “*2003 Guarantee*”).

 

B.            The Company and thevarious Purchasers party thereto (the “*1998Noteholders*”) have heretofore entered into those separate andseveral Note Purchase Agreements each dated as of September 15, 1998 and asamended by that certain First Amendment to Note Purchase Agreement datedJanuary 15, 2003 (collectively, the “*1998**NoteAgreement*”).  The Company hasheretofore issued its $12,500,000 7.32% Senior Secured Notes, Series A, DueAugust 31, 2018 bearing PPN 02530# AA 9 (the “*Series A Notes*”), datedSeptember 24, 1998, its $15,000,000 7.37% Senior Secured Notes, Series B, DueAugust 31, 2023 bearing PPN 02530# AB 7 (the “*Series B Notes*”), datedSeptember 24, 1998, and its $22,500,000 7.42% Senior Secured Notes, Series C,Due August 31, 2028 bearing PPN 02530# AC 5, dated September 24, 1998, (the “*Series CNotes*”; the Series A Notes, the Series B Notes, and theSeries C Notes are hereinafter collectively referred to as the *“1998 Notes”*)pursuant to the 1998 Note Agreement. The Noteholders are the holders of 100% of the principal amount of the1998 Notes presently outstanding.  TheGuarantor guaranteed the payment and performance of the 1998 Notes and the 1998Note Agreement by that certain Guarantee Agreement dated as of January 15, 2003(the “*1998Guarantee*”, and together with the 2003 Guarantee, the “*Guarantees*”).

 

C.            This First Amendmentis executed in conjunction with the Second Amendment to the 1998 Note PurchaseAgreements (the “*Second Amendment**to the 1998**Note Agreement*”).

 

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D.            The Company hasrequested the 2003 Noteholders and the 1998 Noteholders to amend and modifyvarious provisions in the 2003 Note Agreement and the 1998 Note Agreement asset forth herein and the Second Amendment to the 1998 Note Agreement.

 

E.             All requirements oflaw have been fully complied with and all other acts and things necessary tomake this First Amendment a valid, legal and binding instrument according toits terms for the purposes herein expressed have been done or performed.

 

NOW, THEREFORE,the Company and the 2003 Noteholders, for good and valuable consideration thereceipt and sufficiency of which is hereby acknowledged, do hereby agree asfollows:

 

SECTION 1            *Definitions; References*.  Unless otherwise specifically definedherein, each term used herein which is defined in the 2003 Note Agreement shallhave the meaning assigned to such term in the 2003 Note Agreement.  Each reference to “hereof”, “hereunder”,“herein” and “hereby” and each other similar reference and each reference to“this Agreement” and each other similar reference contained in the 2003 NoteAgreement shall from and after the date hereof refer to the 2003 Note Agreementas amended hereby.

 

SECTION 2            Amendments.

 

2.1           Section11(k) of the 2003 Note Agreement shall be and hereby is amended and restated inits entirety, as follows:

 

(i) any Plan shallfail to satisfy the minimum funding standards of ERISA or the Code for any planyear or part thereof or a waiver of such standards or extension of anyamortization period is sought or granted under section 412 of the Code,(ii) a notice of intent to terminate any Plan shall have been or isreasonably expected to be filed with the PBGC or the PBGC shall have institutedproceedings under ERISA section 4042 to terminate or appoint a trustee toadminister any Plan or the PBGC shall have notified the Company or any ERISAAffiliate that a Plan may become a subject of any such proceedings, (iii)** **the aggregate “amount of unfundedbenefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) underthe Company’s Plan A and Plan B, or any other current or successor definedbenefit pension plans established by the Company, determined in accordance withTitle IV of ERISA, shall exceed an amount equal to 10% of Consolidated NetWorth,****(iv) the Company orany ERISA Affiliate shall have incurred or is reasonably expected to incur anyliability pursuant to Title I or IV of ERISA or the penalty or excise taxprovisions of the Code relating to employee benefit plans, (v) the Company orany ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Companyor any Subsidiary establishes or amends any employee welfare benefit plan thatprovides post-employment welfare benefits in a manner that would increase theliability of the Company or any Subsidiary thereunder; and any such event orevents described in clauses (i) through (vi) above, either individually ortogether with any other such event or events, could reasonably be expected tohave a Material Adverse Effect.

 

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2.11         The definitions of *“Funded Debt”* and *“Subsidiary”* contained in Schedule B tothe 2003 Note Agreement shall be and hereby are amended and restated in theirentirety as follows:

 

*“Funded Debt”*means all Debt of any Person which would, in accordance with GAAP, constitutelong term Debt including, but not limited to: (a) any Debt with a maturity ofmore than one year after the creation of such Debt; (b) any Debt outstandingunder a revolving credit or similar agreement providing for borrowings (andrenewals and extensions thereof) which pursuant to its terms would constitutelong term Debt in accordance with GAAP; (c) any Capital Lease obligation; (d)any guarantee with respect to Funded Debt of another person; provided, however,excluding any Debt (including current maturities thereof) which would, inaccordance with GAAP, constitute short term Debt, including any revolvingcredit or similar agreements which have maturities of 365 days or less; and (e)notwithstanding GAAP, the amount by which any “amount of unfunded benefitliabilities” (within the meaning of section 4001(a)(18) of ERISA) under allPlans, determined in accordance with Title IV of ERISA, exceeds 10% ofConsolidated Net Worth.

 

*“Subsidiary”*means, as to any Person, any corporation, association or other business entityin which such Person or one or more of its Subsidiaries or such Person and oneor more of its Subsidiaries owns sufficient equity or voting interests toenable it or them (as a group) ordinarily, in the absence of contingencies, toelect a majority of the directors (or Persons performing similar functions) ofsuch entity, and any partnership or joint venture if more than a 50% interestin the profits or capital thereof is owned by such Person or one or more of itsSubsidiaries or such Person and one or more of its Subsidiaries (unless suchpartnership can and does ordinarily take major business actions without theprior approval of such Person or one or more of its Subsidiaries) other than theExcepted Affiliates so long as each such entity is not consolidated with theCompany in accordance with GAAP; provided, however, for purposesof determining compliance with Sections9.11, 9.12, 9.13, 10.4, 10.5 and 10.6, ProGold Limited Liability Companyshall not be considered a Subsidiary but shall be treated as a minorityinvestment consistent with the prior accounting treatment applied to suchinvestment in the Company’s 2002 audited financial statements, provided theCompany does not increase its ownership interest in Pro Gold Limited LiabilityCompany beyond 51%.  Unless the contextotherwise clearly requires, any reference to a “Subsidiary” is a reference to aSubsidiary of the Company.

 

2.12         ScheduleB to the 2003 Note Agreement shall be and hereby is amended by adding thefollowing new defined terms in alphabetical order thereto:

 

“*Plan A*”means the Retirement Plan A for the Employees of American Crystal Sugar Company(2002 Restatement), which is the Company’s****definedbenefit retirement plan for non-union employees.

 

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“*Plan B*”means the Retirement Plan B for the Employees of American Crystal Sugar Company(2002 Restatement), which is Company’s****definedbenefit retirement plan for union employees.

 

SECTION 3            *Representations and Warranties.*

 

Each of the Company and the Guarantor herebycollectively and severally represent and warrant to the 2003 Noteholders thatas of the date hereof:

 

(a)           Each of the Company andthe Guarantor has the power and authority and the legal right to execute,deliver and perform this First Amendment and has taken all necessary corporateaction to authorize such execution, delivery and performance.

 

(b)           ThisFirst Amendment has been duly executed and delivered on behalf of each of theCompany and the Guarantor and constitutes the legal, valid and bindingobligation of each, enforceable against each in accordance with its terms,subject to the effect of applicable bankruptcy, insolvency, reorganization,moratorium and other similar laws affecting the rights of creditors generallyand the effect of equitable principles whether applied in an action at law or asuit in equity.

 

(c)           The representations andwarranties of each of the Company and the Guarantor contained in the 2003 NotePurchase Agreements, the Guarantees, the Security Documents and all relateddocuments are accurate and complete in all material respects as of the datehereof.

 

(d)           As of the date hereof, there is no Default or Event of Default existingunder the 2003 Note Purchase Agreement or the Guarantees which has not beenwaived.

 

SECTION 4            *Miscellaneous*.

 

(a)           The Company and the Guarantor hereby affirmand agree that (a) nothing in this First Amendment shall in any way amend,impair, invalidate or otherwise affect any of the obligations of the Company orthe Guarantor or the rights of the 2003 Noteholders under the 2003 NotePurchase Agreements, the 2003 Notes, the Guarantees, the Security Documents, orany other document or instrument made or given by the Issuer or the Guarantorin connection therewith except to the extent expressly set forth herein, and(b) the Collateral Agent, on behalf of the 2003 Noteholders, shall continue tohold a perfected lien on the Collateral, subject only to encumbrances expresslypermitted by the Security Documents, and in accordance with the Amended andRestated Intercreditor and Collateral Agency Agreement dated as of January 15,2003.  Any and all notices,requests, certificates and other instruments executed and delivered after theexecution and delivery of this First Amendment may refer to the Note Agreementwithout making specific references to this First Amendment, but neverthelessall such references shall include this First Amendment unless the contextotherwise requires.

 

(b)           Thedescriptive headings of the various Sections or parts of this First Amendmentare for convenience only and shall not affect the meaning or construction ofany of the provisions hereof.

 

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(c)           ThisFirst Amendment shall be construed and enforced in accordance with and therights of the parties shall be governed by the law of the State of New Yorkexcluding choice of law principles of the law of such State that would requirethe application of the laws of a jurisdiction other than such State.

 

(d)           This First Amendmentmay be executed in any number of counterparts, each executed counterpartconstituting an original, but all together only one agreement.

 

IN WITNESS WHEREOF, the parties hereto have causedthis First Amendment to be duly executed by their respective authorizedofficers as of the day and year first above written.

 

 
|   |   |   |   | American Crystal Sugar  Company |
|--------|--------|--------|--------|---------------------------------|
|   |   |   |   |                            |
|   |   |   |   |                            |
|   |   |   |   | By:                        |   /s/ Sam Wai |   |
|   |   |   |   |                            |   |   |
|   |   |   |   |                            | Its: | Treasurer |   |
|   |   |   |   |                            |
|   |   |   |   |                            |
|   |   |   |   | Sidney Sugars Incorporated      |
|   |   |   |   |                            |
|   |   |   |   |                            |
|   |   |   |   | By:                        |   /s/ Sam Wai |   |
|   |   |   |   |                            |   |   |
|   |   |   |   |                            | Its: | Treasurer |   |
|        |        |        |        |                                 |  |  |  |  |  |  |

 

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Accepted and Agreed:

 

 
|   | John Hancock Life Insurance  Company |
|--------|--------------------------------------|
|   |                                 |
|   |                                 |
|   | By:                                  |  /s/ David E.  Johnson |   |
|   |                                 |   |   |
|   |                                 | Its: | Authorized Signatory |   |
|        |                                      |  |  |  |

 

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Accepted and Agreed:

 

 
|   | John Hancock Variable Life  Insurance Company |
|--------|-----------------------------------------------|
|   |                                          |
|   |                                          |
|   | By:                                           | /s/ David E. Johnson |   |
|   |                                          |   |   |
|   |                                          | Its: | Authorized Signatory |   |
|        |                                               |  |  |  |

 

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|   | John Hancock Life Insurance  Company of Vermont |
|--------|-------------------------------------------------|
|   |                                            |
|   |                                            |
|   | By:                                             | /s/ David E. Johnson |   |
|   |                                            |   |   |
|   |                                            | Its: | Authorized Signatory |   |
|        |                                                 |  |  |  |

 

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AmericanCrystal Sugar Company

 

 

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SecondAmendment

 

Dated as of November 26,2003

To

 

NotePurchase Agreement

 

DatedSeptember 15, 1998

 

Andas Amended on January 15, 2003

 

 

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Re:          $12,500,0007.32% Senior Secured Notes, Series A, Due August 31, 2018

$15,000,000 7.37% Senior Secured Notes, Series B, DueAugust 31, 2023

$22,500,000 7.42% Senior Secured Notes, Series C, DueAugust 31, 2028

 

 

 

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SecondAmendment to Note Purchase Agreement

 

This SecondAmendment dated as of November 26, 2003 (“*Second Amendment*”) to theNote Purchase Agreement dated as of September 15, 1998 and amended pursuant tothat First Amendment to the Note Purchase Agreement dated as of January 15,2003, is among American Crystal Sugar Company, a Minnesota cooperativecorporation (*“Company”),*Sidney Sugars Incorporated, a Minnesotacorporation (the “*Guarantor*”) and the Purchasers who are party to the 1998Note Agreement (collectively, the *“1998 Noteholders”*).

 

**RECITALS:**

 

A.            The Company and thePurchasers have heretofore entered into those separate and several NotePurchase Agreements each dated as of September 15, 1998 and as amended by thatcertain First Amendment to Note Purchase Agreement dated January 15, 2003(collectively, the “*1998**NoteAgreement*”).  The Company hasheretofore issued its $12,500,000 7.32% Senior Secured Notes, Series A, DueAugust 31, 2018 bearing PPN 02530# AA 9 (the “*Series A Notes*”), datedSeptember 24, 1998, its $15,000,000 7.37% Senior Secured Notes, Series B, DueAugust 31, 2023 bearing PPN 02530# AB 7 (the “*Series B Notes*”), datedSeptember 24, 1998, and its $22,500,000 7.42% Senior Secured Notes, Series C,Due August 31, 2028 bearing PPN 02530# AC 5, dated September 24, 1998, (the “*Series CNotes*”; the Series A Notes, the Series B Notes, and theSeries C Notes are hereinafter collectively referred to as the *“1998 Notes”*)pursuant to the 1998 Note Agreement. The Noteholders are the holders of 100% of the principal amount of the1998 Notes presently outstanding.    TheGuarantor guaranteed the payment and performance of the 1998 Notes and the 1998Note Agreement by that certain Guarantee Agreement dated as of January 15, 2003(the “*1998 Guarantee*”).

 

B.            The Company and theNoteholders have heretofore entered into those separate and several NotePurchase Agreements each dated as of January 15, 2003 (collectively, the “*2003**Note Agreement*”).  The Company has heretofore issued the$3,000,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010 bearingPPN 02530# AD 3 (the *“Note No. R-1”*),the $15,250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010bearing PPN 02530# AD 3 (the *“Note No. R-2”*),the $1,500,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010bearing PPN 02530# AD 3 (the *“Note No. R-3”)*and the $250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010bearing PPN 02530# AD 3 (the *“Note No. R-4”;Note No. R-1,**Note No. R-2, NoteNo. R-3*and*Note No. R-4*are hereinafter**collectivelyreferred to as the *“2003 Notes”*) pursuant to the 2003 NoteAgreement.  The 2003 Noteholders are theholders of 100% of the principal amount of the 2003 Notes presentlyoutstanding.  The Guarantor guaranteedthe payment and performance of the 2003 Notes and the 2003 Note Agreement bythat certain Guarantee Agreement dated as of January 15, 2003 (the “*2003Guarantee*”, and together with the 1998 Guarantee, the “*Guarantees*”).

 

C.            This Second Amendmentis executed in conjunction with the First Amendment to the 2003 Note PurchaseAgreements (the “*First Amendment**to the 2003**Note Agreement*”).

 

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D.            The Company hasrequested the 1998 Noteholders and the 2003 Noteholders to amend and modifyvarious provisions in the 2003 Note Agreement and the 1998 Note Agreement asset forth herein and the First Amendment to the 2003 Note Agreement.

 

E.             All requirements oflaw have been fully complied with and all other acts and things necessary tomake this Second Amendment a valid, legal and binding instrument according toits terms for the purposes herein expressed have been done or performed.

 

NOW, THEREFORE,the Company and the 1998 Noteholders, for good and valuable consideration thereceipt and sufficiency of which is hereby acknowledged, do hereby agree asfollows:

 

SECTION 5            *Definitions; References*.  Unless otherwise specifically definedherein, each term used herein which is defined in the 1998 Note Agreement shallhave the meaning assigned to such term in the 1998 Note Agreement.  Each reference to “hereof”, “hereunder”,“herein” and “hereby” and each other similar reference and each reference to“this Agreement” and each other similar reference contained in the 1998 NoteAgreement shall from and after the date hereof refer to the 1998 Note Agreementas amended hereby.

 

SECTION 6            Amendments.

 

2.1           Section11(k) of the 1998 Note Agreement shall be and hereby is amended and restated inits entirety, as follows:

 

(i) any Plan shallfail to satisfy the minimum funding standards of ERISA or the Code for any planyear or part thereof or a waiver of such standards or extension of anyamortization period is sought or granted under section 412 of the Code,(ii) a notice of intent to terminate any Plan shall have been or is reasonablyexpected to be filed with the PBGC or the PBGC shall have institutedproceedings under ERISA section 4042 to terminate or appoint a trustee toadminister any Plan or the PBGC shall have notified the Company or any ERISAAffiliate that a Plan may become a subject of any such proceedings, (iii)** **the aggregate “amount of unfundedbenefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) underthe Company’s Plan A and Plan B, or any other current or successor definedbenefit pension plans established by the Company, determined in accordance withTitle IV of ERISA, shall exceed an amount equal to 10% of Consolidated NetWorth,****(iv) the Company orany ERISA Affiliate shall have incurred or is reasonably expected to incur anyliability pursuant to Title I or IV of ERISA or the penalty or excise taxprovisions of the Code relating to employee benefit plans, (v) the Company orany ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Companyor any Subsidiary establishes or amends any employee welfare benefit plan thatprovides post-employment welfare benefits in a manner that would increase theliability of the Company or any Subsidiary thereunder; and any such event orevents described in clauses (i) through (vi) above, either individually ortogether with any other such event or events, could reasonably be expected tohave a Material Adverse Effect.

 

2

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2.11         The definitions of *“Funded Debt”* and *“Subsidiary”* contained in Schedule B tothe 1998 Note Agreement shall be and hereby are amended and restated in theirentirety as follows:

 

*“Funded Debt”*means all Debt of any Person which would, in accordance with GAAP, constitutelong term Debt including, but not limited to: (a) any Debt with a maturity ofmore than one year after the creation of such Debt; (b) any Debt outstandingunder a revolving credit or similar agreement providing for borrowings (andrenewals and extensions thereof) which pursuant to its terms would constitutelong term Debt in accordance with GAAP; (c) any Capital Lease obligation; (d)any guarantee with respect to Funded Debt of another person; provided, however,excluding any Debt (including current maturities thereof) which would, inaccordance with GAAP, constitute short term Debt, including any revolvingcredit or similar agreements which have maturities of 365 days or less; and (e)notwithstanding GAAP, the amount by which any “amount of unfunded benefitliabilities” (within the meaning of section 4001(a)(18) of ERISA) under allPlans, determined in accordance with Title IV of ERISA, exceeds 10% ofConsolidated Net Worth.

 

*“Subsidiary”*means, as to any Person, any corporation, association or other business entityin which such Person or one or more of its Subsidiaries or such Person and oneor more of its Subsidiaries owns sufficient equity or voting interests toenable it or them (as a group) ordinarily, in the absence of contingencies, toelect a majority of the directors (or Persons performing similar functions) ofsuch entity, and any partnership or joint venture if more than a 50% interestin the profits or capital thereof is owned by such Person or one or more of itsSubsidiaries or such Person and one or more of its Subsidiaries (unless suchpartnership can and does ordinarily take major business actions without theprior approval of such Person or one or more of its Subsidiaries) other thanthe Excepted Affiliates so long as each such entity is not consolidated withthe Company in accordance with GAAP; provided, however, forpurposes of determining compliance withSections 9.11, 9.12, 9.13, 10.4, 10.5 and 10.6, ProGold LimitedLiability Company shall not be considered a Subsidiary but shall be treated asa minority investment consistent with the prior accounting treatment applied tosuch investment in the Company’s 2002 audited financial statements, providedthe Company does not increase its ownership interest in Pro Gold LimitedLiability Company beyond 51%.  Unlessthe context otherwise clearly requires, any reference to a “Subsidiary” is areference to a Subsidiary of the Company.

 

2.12         ScheduleB to the 1998 Note Agreement shall be and hereby is amended by adding thefollowing new defined terms in alphabetical order thereto:

 

“*Plan A*”means the Retirement Plan A for the Employees of American Crystal Sugar Company(2002 Restatement), which is the Company’s****definedbenefit retirement plan for non-union employees.

 

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“*Plan B*”means the Retirement Plan B for the Employees of American Crystal Sugar Company(2002 Restatement), which is Company’s****definedbenefit retirement plan for union employees.

 

SECTION 7            *Representations and Warranties.*

 

Each of the Company and the Guarantor herebycollectively and severally represent and warrant to the 1998 Noteholders thatas of the date hereof:

 

(a)           Each of the Company andthe Guarantor has the power and authority and the legal right to execute,deliver and perform this Second Amendment and has taken all necessary corporateaction to authorize such execution, delivery and performance.

 

(b)           ThisSecond Amendment has been duly executed and delivered on behalf of each of theCompany and the Guarantor and constitutes the legal, valid and bindingobligation of each, enforceable against each in accordance with its terms,subject to the effect of applicable bankruptcy, insolvency, reorganization,moratorium and other similar laws affecting the rights of creditors generallyand the effect of equitable principles whether applied in an action at law or asuit in equity.

 

(c)           The representations andwarranties of each of the Company and the Guarantor contained in the 1998 NotePurchase Agreements, the Guarantees, the Security Documents and all relateddocuments are accurate and complete in all material respects as of the datehereof.

 

(d)           As of the date hereof, there is no Default or Event of Default existingunder the 1998 Note Purchase Agreement or the Guarantees which has not beenwaived.

 

SECTION 8            *Miscellaneous*.

 

(a)           The Company and the Guarantor hereby affirmand agree that (a) nothing in this First Amendment shall in any way amend,impair, invalidate or otherwise affect any of the obligations of the Company orthe Guarantor or the rights of the 1998 Noteholders under the 1998 Note PurchaseAgreements, the 1998 Notes, the Guarantees, the Security Documents, or anyother document or instrument made or given by the Issuer or the Guarantor inconnection therewith except to the extent expressly set forth herein, and (b)the Collateral Agent, on behalf of the 1998 Noteholders, shall continue to holda perfected lien on the Collateral, subject only to encumbrances expresslypermitted by the Security Documents, and in accordance with the Amended andRestated Intercreditor and Collateral Agency Agreement dated as of January 15,2003.  Any and all notices,requests, certificates and other instruments executed and delivered after theexecution and delivery of this Second Amendment may refer to the Note Agreementwithout making specific references to this Second Amendment, but neverthelessall such references shall include this Second Amendment unless the contextotherwise requires.

 

(b)           Thedescriptive headings of the various Sections or parts of this Second Amendmentare for convenience only and shall not affect the meaning or construction ofany of the provisions hereof.

 

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(c)           ThisSecond Amendment shall be construed and enforced in accordance with and therights of the parties shall be governed by the law of the State of New Yorkexcluding choice of law principles of the law of such State that would requirethe application of the laws of a jurisdiction other than such State.

 

(d)           This Second Amendmentmay be executed in any number of counterparts, each executed counterpartconstituting an original, but all together only one agreement.

 

IN WITNESS WHEREOF, the parties hereto have causedthis Second Amendment to be duly executed by their respective authorizedofficers as of the day and year first above written.

 

 
|   |   |   |   | American Crystal Sugar  Company |
|--------|--------|--------|--------|---------------------------------|
|   |   |   |   |                            |
|   |   |   |   |                            |
|   |   |   |   | By:                             |  /s/ Sam Wai |   |
|   |   |   |   |                            |   |   |
|   |   |   |   |                            | Its: | Treasurer |   |
|        |        |        |        |                                 |  |  |  |

 

 
|   |   |   |   |   | Sidney Sugars Incorporated |
|--------|--------|--------|--------|--------|----------------------------|
|   |   |   |   |   |                       |
|   |   |   |   |   |                       |
|   |   |   |   |   | By:                        |  /s/ Sam Wai |   |
|   |   |   |   |   |                       |   |   |
|   |   |   |   |   |                       | Its: | Treasurer |   |
|        |        |        |        |        |                            |  |  |  |

 

5

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Accepted and Agreed:

 

 
|   | John Hancock Life Insurance  Company |
|--------|--------------------------------------|
|   |                                 |
|   | By:                                  | /s/ David E. Johnson |   |
|   |                                 |   |   |
|   |                                 | Its: | Authorized Signatory |   |
|        |                                      |  |  |  |

 

6

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Accepted and Agreed:

 
|   | John Hancock Variable Life  Insurance Company |
|--------|-----------------------------------------------|
|   |                                          |
|   | By:                                           | /s/ David E. Johnson |   |
|   |                                          |   |   |
|   |                                          | Its: | Authorized Signatory |   |
|        |                                               |  |  |  |

 

7

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Accepted and Agreed:

 

 
|   | The  Paul Revere Life Insurance Company |
|--------|-----------------------------------------|
|   | By:                                     | Provident Investment  Management, LLC |
|   | Its:                                    | Agent |

 

 
|   | By     | /s/ Ben Vance        |   |
|--------|--------|----------------------|--------|
|   |   |                 |
|   | Its    | Asst. Vice President |   |
|        |        |                      |        |  |  |

 

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