**Exhibit 10.20**

** **

**FIRST AMENDMENT TO AMENDED ANDRESTATED CREDIT AGREEMENT**

 

This First Amendment to Amended and Restated CreditAgreement (this “**Amendment**”) is entered into as of July 30,2010 by and among AMERICAN CRYSTAL SUGAR COMPANY, a cooperative corporationformed 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 (insuch 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 theircapacities as Lenders under the Facilities (as defined below) that are thesubject of the substantive amendments effected by this Amendment.

 

RECITALS

 

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

 

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

 

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

 

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

 

Section 2.               **Amendments to the Credit Agreement**.  The Credit Agreement is hereby amended asfollows:

 

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

 

“**Aggregate RevolvingCommitment Amount**” means the sum of the Aggregate Revolving CreditFacility Commitment Amount, the Aggregate Revolving Letter of Credit CommitmentAmount and the Aggregate Term Revolving Commitment Amount then in effect.

 

“**Aggregate Term CommitmentAmount**” means $22,293,401.98, constituting the sum of the TermCommitments of all Lenders.

 

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“**Aggregate Term RevolvingCommitment Amount**” means $50,000,000, constituting the sum of theTerm Revolving Commitments of all Lenders, subject to adjustment in accordancewith 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 ofCredit Commitment, as the context requires.

 

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

 

“**Commitment TerminationDate**”means the RevolvingCredit Facility Termination Date, the Term Revolving Commitment TerminationDate or the Revolving Letter of Credit Commitment Termination Date, as thecontext requires.

 

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

 

“**Existing Indebtedness**”means, collectively, the Existing Revolving Loan, the Existing Revolving TermLoan T01, the Outstanding Revolving Term Loan T01 Advances, the ExistingRevolving Term Loan T06, the Outstanding Revolving Term Loan T06 Advances andthe Existing Revolving Letter of Credit Loan.

 

“**Facility**” meansthe Revolving Credit Facility, the Term Facility, the Term Revolving Facilityor the Revolving Letter of Credit Facility, as the context requires.

 

“**Facility OutstandingAmount**” means the Revolving Credit Facility Outstanding Amount, theTerm Facility Outstanding Amount, the Term Revolving Facility OutstandingAmount or the Revolving Letter of Credit Facility Outstanding Amount, as thecontext requires.

 

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

 

“**First Amendment EffectiveDate**” means July 30, 2010.

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Letter of Credit Sublimit**”means (a) $50,000,000 in respect of the Revolving Credit Facility, (b) $50,000,000in respect of the Term Revolving Facility, and (c) the Aggregate RevolvingLetter of Credit Commitment Amount in respect of the Revolving Letter of CreditFacility; 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) withrespect to the Term Revolving Facility, July 30, 2015; and (d) withrespect to the Revolving Letter of Credit Facility, April 30, 2013.

 

“**Note**” means anyRevolving Credit Facility Note, Term Note, Term Revolving Note or RevolvingLetter of Credit Note.

 

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

 

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

 

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“**Revolving Term Loan T01Advance**” means any loan of funds by a Lender to the Borrower underthe Revolving Term Loan T01 Facility on or after the Closing Date to butexcluding the First Amendment Effective Date, which loans are being refinancedby proceeds of the Term Facility.

 

“**Revolving Term Loan T01Facility**” means a revolving credit facility made available to theBorrower by the Lenders under Section 2.1(b) as in effect from theClosing Date until the First Amendment Effective Date.

 

“**Revolving Term Loan T06Advance**” means any loan of funds by a Lender to the Borrower underthe Revolving Term Loan T06 Facility on or after the Closing Date to butexcluding the First Amendment Effective Date, which loans are being refinancedby proceeds of the Term Revolving Facility.

 

“**Revolving Term Loan T06Facility**” means a revolving credit facility made available to theBorrower by the Lenders under Section 2.1(c) as in effect from theClosing Date until the First Amendment Effective Date.

 

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

 

“**Term Advance**”****means a loan of funds by a Lender to the Borrower under theTerm Facility, including Base Rate Loans, LIBOR Loans and Quoted Rate Loansmade 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 oppositesuch Lender’s name on Exhibit A, plus or minus any such amount assumed orassigned pursuant to any Assignment and Assumption; or (b) as the contextmay 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 theLenders pursuant to Section 2.1(b).

 

“**Term Facility OutstandingAmount**”****means, as ofthe date of determination, the aggregate principal amount of all outstandingTerm Advances.

 

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

 

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

 

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

 

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

 

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

 

“**Term Revolving CommitmentTermination Date**” means the earlier of (a) the applicableMaturity Date for such Facility; and (b) the date on which the TermRevolving Commitments are terminated pursuant to Section 7.2.

 

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

 

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

 

“**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 ofsuch Lender’s Term Revolving Commitment, in substantially the form ofExhibit F.

 

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

 

“**Aggregate CommitmentAmount**”

 

“**Aggregate Revolving TermLoan T01 Commitment Amount**”

 

“**Aggregate Revolving TermLoan T06 Commitment Amount**”

 

“**Revolving Term Loan T01Availability Termination Date**”

 

“**Revolving Term Loan T01Borrowing**”

 

“**Revolving Term Loan T01Commitment**”

 

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“**Revolving Term Loan T01Commitment Termination Date**”

 

“**Revolving Term Loan T01Facility Outstanding Amount**”

 

“**Revolving Term Loan T01Lender**”

 

“**Revolving Term Loan T01Note**”

 

“**Revolving Term Loan T06Availability Termination Date**”

 

“**Revolving Term Loan T06Borrowing**”

 

“**Revolving Term Loan T06Commitment**”

 

“**Revolving Term Loan T06Commitment Termination Date**”

 

“**Revolving Term Loan T06Facility Outstanding Amount**”

 

“**Revolving Term Loan T06Lender**”

 

“**Revolving Term Loan T06Note**”

 

(c)           Amendmentto Section 2.1(b) of the Credit Agreement (Revolving Term Loan T01Facility).  Section 2.1(b) ofthe Credit Agreement is amended and restated in its entirety to read asfollows:

 

(b)           Term Facility.  The Borrower acknowledges that the TermLenders have made various Revolving Term Loan T01 Advances to the Borrower inthe aggregate amount of $21,293,401.98 outstanding as of the First AmendmentEffective Date (the “**Outstanding Revolving TermLoan T01 Advances**”).  TheOutstanding Revolving Term Loan T01 Advances are Term Advances for purposes ofthis Agreement and shall be repayable in accordance with this Agreement.  Each Term Lender hereby agrees, on the termsand subject to the conditions herein set forth, to make a single Term Advanceto the Borrower on the First Amendment Effective Date in the amount of $1,000,000to be applied to repay $1,000,000 of the Outstanding Revolving Term Loan T06Advances immediately prior to conversion of Outstanding Revolving Term Loan T06Advances into Term Revolving Advances under Section 2.1(c) hereof.  The Term Facility is not a revolvingfacility; once such Term Advance is made by the Term Lenders on the FirstAmendment Effective Date, the Term Lenders shall have no further obligation tomake any additional Term Advances to the Borrower under the Term Facility,whether or not any amounts are repaid thereunder.

 

(d)           Amendmentto Section 2.1(c) of the Credit Agreement (Revolving Term Loan T06Facility).  Section 2.1(c) ofthe Credit Agreement is amended and restated in its entirety to read asfollows:

 

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(c)           Term Revolving Facility.  The Borrower acknowledges that the TermRevolving Lenders have made various Revolving Term Loan T06 Advances to theBorrower in the aggregate amount of $1,000,000 outstanding as of the FirstAmendment Effective Date (the “**Outstanding Revolving TermLoan T06 Advances**”).  EachTerm Revolving Lender hereby agrees, on the terms and subject to the conditionsherein set forth, including but not limited to satisfaction of all conditionsset forth in Section 3.2, to continue to make Term Revolving Advances tothe Borrower from time to time during the period on and after the FirstAmendment Effective Date to and including the Term Revolving CommitmentTermination Date, in an aggregate amount at any time outstanding not to exceedsuch Term Revolving Lender’s Percentage of each Borrowing from time to timerequested by the Borrower under the Term Revolving Facility; provided, however,that no Term Revolving Lender’s Percentage of the Term Revolving FacilityOutstanding Amount shall at any time exceed such Lender’s Term RevolvingCommitment.  Within the above limits, theBorrower may obtain Term Revolving Advances, prepay Term Revolving Advances inaccordance with the terms hereof and reborrow Term Revolving Advances inaccordance with the applicable terms and conditions of this Article II.

 

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

 

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

 

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

 

Subject to satisfaction of the conditions precedentset forth in Article III with respect to such Borrowing, at or before10:00 a.m. (Denver time) on the date of the requested Borrowing for aLIBOR Advance, Base Rate Advance or Quoted Rate Advance, each of the RevolvingCredit Facility Lenders, Term Lenders, Term Revolving Lenders or RevolvingLetter of Credit Lenders, as applicable, shall provide the Administrative Agentat the principal office of the Administrative Agent in Denver, Colorado (orsuch other office as the Administrative Agent may designate), with immediatelyavailable funds covering such Lender’s Percentage of such Borrowing.

 

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

 

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

 

(h)           Amendmentsto Section 2.9(a) of the Credit Agreement (Commitment to IssueLetters of Credit).  Section 2.9(a) ofthe Credit Agreement is amended by deleting “or” after clause (a)(i) thereof,deleting the period after clause (a)(ii) and inserting “; or” insubstitution therefor, and inserting a new clause (iii) at the end of thesecond sentence of Section 2.9 to read as follows:

 

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

 

(i)            Amendmentto Section 2.12(d) of the Credit Agreement (Revolving Term Loan T01Facility Principal).  Section 2.12(d) ofthe Credit Agreement is amended and restated in its entirety to read asfollows:

 

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

 

(j)            Amendmentto Section 2.12(e) of the Credit Agreement (Revolving Term Loan T06Facility Principal).  Section 2.12(e) ofthe Credit Agreement is amended and restated in its entirety to read asfollows:

 

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

 

(k)           Amendmentto Section 2.12(h)(i)(A) of the Credit Agreement (Application ofMandatory Prepayments).  Section 2.12(h)(i)(A) ofthe Credit Agreement is amended and restated in its entirety to read asfollows:

 

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

 

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

 

(a)           Unused Fee.  The Borrower will pay to the AdministrativeAgent, 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 UnusedFee; and (ii) the daily average amount by which (1) the Aggregate Revolving Commitment Amount exceeds (2) the sum of the Facility OutstandingAmount with respect to each of the Revolving Credit Facility, the  Term Revolving Facility and the RevolvingLetter of Credit Facility, from the First Amendment Effective date to andincluding the Maturity Date, payable on or prior to the 10th day of eachcalendar month in arrears, as accrued through the last day of the immediatelypreceding calendar month.  Any Unused Feeremaining unpaid on the Maturity Date shall be due and payable on suchdate.  The Unused Fee shall be shared bythe Lenders on the basis of their respective Percentages.

 

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

 

(ii) proceeds of Collateral, after payment ofcosts of collection thereof, shall be applied, first, ratably, topayment of the Term Facility, the Term Revolving Facility and the RevolvingLetter of Credit Facility, and applied to principal and interest due thereunderin accordance with the Intercreditor Agreement, and second, to anyremaining Obligations, in such order of application as the Required Lendersshall determine in their sole discretion.

 

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

 

(o)           Amendmentsto Exhibits A, E and F to the Credit Agreement.  The Credit Agreement is hereby amended bydeleting Exhibits A, E and F to the Credit Agreement and replacing them intheir entirety with Exhibits A, E and F to this Amendment.

 

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

 

Section 4.               **No Other Changes**.  Except as expressly set forth herein, allterms of the Credit Agreement and each of the other Loan Documents remain infull force and effect.

 

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

 

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

 

(b)           Theexecution, delivery and performance by the Borrower of this Amendment and theLoan Documents to which the Borrower is a party have been duly authorized byall necessary corporate or other action and do not and will not (i) requireany authorization, consent or approval by any governmental department,commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violatethe 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, anyindenture or agreement to which the Borrower is a party or by which theBorrower or its properties may be bound or affected.

 

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

 

(d)           Noevent has occurred and is continuing, or would result from the execution anddelivery of this Amendment or the other documents contemplated hereunder towhich the Borrower is a party, which constitutes a Default or an Event ofDefault.

 

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

 

(a)           thisAmendment, duly executed by the Borrower;

 

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

 

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

 

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

 

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

 

(f)            asigned copy of an opinion of counsel for each Obligor addressed to theAdministrative Agent, on behalf of the Lenders, with respect to the matterscontemplated by this Amendment and all other documents, agreements andcertificates contemplated hereunder;

 

(g)           thefollowing financial information of the Borrower and the ConsolidatedGroup:  (i) consolidatedand consolidating financial statements for the Fiscal Years ending August 31,2007 through August 31, 2009, audited by Eide Bailly LLP, and interimfinancial statements for the most recent period completed, including balancesheets, income statements and cash flow statements prepared in conformity withGAAP; (ii) a 1-year (commencing September 1,2010) business plan and pro-forma financial projections; and (iii) such other financial information asthe Administrative Agent may reasonably request;

 

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

 

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

 

Section 7.               **Certificates of Insurance**.  Not laterthan five Business Days after the date hereof, the Borrower shall deliver tothe Administrative Agent evidence of all insurance required by the terms of theSecurity Documents, together with certificates and loss payable endorsementsshowing the Administrative Agent, for the benefit of the Lender Parties, asmortgagee, additional insured and lender loss payee thereunder.  Notwithstanding anything to the contrary inthe Credit Agreement, this Amendment shall be deemed a “Loan Document” and theBorrower’s failure to comply with this Section 7 shall be deemed to be adefault in the performance, or breach, of a covenant or agreement of an Obligorin a Loan Document as more fully described in Section 7.1 of the CreditAgreement.

 

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Section 8.               **No Waiver**.  Theexecution of this Amendment and any documents, agreements and certificatescontemplated hereunder shall not be deemed to be a waiver of any Default orEvent of Default or any other breach, default or event of default under anyLoan 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 ornot existing on the date of this Amendment.

 

Section 9.               **Release of Administrative Agent and Lenders**.  The Borrower, by its signature to thisAmendment, hereby absolutely and unconditionally releases and foreverdischarges the Administrative Agent and the Lenders, and any and allparticipants, parent corporations, subsidiary corporations, affiliatedcorporations, insurers, indemnitors, successors and assigns thereof, togetherwith all of the present and former Directors, officers, agents and employees ofany of the foregoing, from any and all claims, demands or causes of action ofany kind, nature or description, whether arising in law or equity or uponcontract or tort or under any state or federal law or otherwise, which theBorrower has had, now has or has made claim to have against any such Person foror by reason of any act, omission, matter, cause or thing whatsoever occurringor arising prior to the date of this Amendment, whether such claims, demandsand causes of action are matured or unmatured or known or unknown.

 

Section 10.             **Costs and Expenses**.  The Borrower hereby reaffirms its agreementunder Section 9.6 of the Credit Agreement to pay or reimburse theAdministrative Agent on demand for all reasonable out-of-pocket expensesincurred by the Administrative Agent and its Affiliates (including thereasonable fees, charges and disbursements of counsel for the AdministrativeAgent and specifically including allocated costs of in house counsel),in connection with the preparation, negotiation,execution, delivery and administration of this Amendment and the otherdocuments, agreements and certificates contemplated hereunder (whether or notthe transactions contemplated hereby or thereby shall be consummated);

 

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

 

*Signature page follows*

 

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IN WITNESS WHEREOF, the undersigned have executed thisAmendment 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 |
|   |                                                     |

 

*SignaturePage to First Amendment to Amended and Restated Credit Agreement*

 

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** **

**ACKNOWLEDGMENT AND AGREEMENT OFGUARANTOR**

 

The undersigned, a guarantor of the indebtedness ofAmerican Crystal Sugar Company, a cooperative corporation formed under the lawsof the State of Minnesota (the “**Borrower**”), toCoBank, ACB, a federally chartered banking organization, in its capacity as theAdministrative Agent (as described in the Credit Agreement defined in theforegoing First Amendment to Amended and Restated Credit Agreement (the “**First Amendment**”)), pursuant to an Amended and RestatedGuaranty dated as of July 30, 2009 (as amended, restated, supplemented orotherwise modified from time to time, the “**Guaranty**”),hereby (i) acknowledges receipt of the First Amendment; (ii) consentsto the terms and execution thereof; (iii) reaffirms all obligations to theAdministrative 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 anyindebtedness or agreement of the Borrower, or enter into any agreement orextend additional or other credit accommodations, without notifying orobtaining the consent of the undersigned and without impairing the liability ofthe undersigned under the Guaranty.

 
|   | **SIDNEY SUGARS INCORPORATED** |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            | /s/ Samuel S. M. Wai |
|   |                           | Name: | Samuel S. M. Wai |
|   |                           | Title: | Treasurer |
|   |                           |

 

*SignaturePage to Acknowledgment and Agreement of Guarantor*

 

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**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) 694-5833Facsimile:  (303) 796-1456E-mail:  jfreder@cobank.com |
|                                                                                  |       |                                                                                                                                                                          |       |                                                                                                                                                                                         |
| CoBank, ACB, as a Lender                                                              |       | Revolving Credit Facility Commitment: $192,000,000Term Commitment: $22,293,401.98Term Revolving Commitment: $40,000,000Revolving Letter of Credit Commitment:  $54,304,163.06 |       | 5500  South Quebec Street  Greenwood Village, CO 80111  Attention: ** **Jacquie  Fredericks  Phone:  (303) 694-5833Facsimile:  (303) 796-1456E-mail:  jfreder@cobank.com |
|                                                                                  |       |                                                                                                                                                                          |       |                                                                                                                                                                                         |
| U.S. AgBank, FCB, as a Lender by assignment  pursuant to an Assignment and Assumption |       | Revolving Credit Facility Commitment: $50,000,000Term Commitment: $0Term Revolving Commitment: $10,000,000Revolving Letter of Credit Commitment: $6,545,036.93                |       | 245 N. Waco  Wichita, KS 67202  Attention: ** **Travis W. Ball  Phone:  (316) 266-5448Facsimile:  (316)  291-5011E-mail:  travis.ball@usagbank.com                       |

 

1

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| The Bank of Tokyo-Mitsubishi  UFJ, Ltd. |   | Revolving Credit Facility Commitment: $28,000,000Term Commitment: $0Term Revolving Commitment: $0Revolving Letter of Credit Commitment: $0 |   | 1251 Avenue of the AmericasNew York, NY 10020-1104Attention: Portfolio Management GroupPhone: (212) 782-4206Facsimile: (212) 782-6440With a copy to:Attention: Scott Ackerman, VP601 Carlson Parkway, Suite 370Minnetonka, MN 55305Phone: (952) 473-7894Facsimile: (952) 473-5152  E-mail: sackerman@us.mufg.jp |
|----------------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                         |   |                                                                                                                                       |   |                                                                                                                                                                                                                                                                                                                 |
| Wells Fargo Bank, National  Association      |   | Revolving Credit Facility Commitment: $50,000,000Term Commitment: $0Term Revolving Commitment: $0Revolving Letter of Credit Commitment: $0 |   | 1740  Broadway  Denver, CO 80274Attention: Edward Cooper IIIPhone: (312) 845-9747Facsimile: (312) 845-4462  Email: ed.cooper3@wellsfargo.com                                                                                                                                                                         |

 

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**Exhibit E**

**TERM NOTE**

 
| $                        |                              , 20    |
|---------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                        | Denver, Colorado                                                                                                                                                                           |

 

For value received, AMERICAN CRYSTAL SUGAR COMPANY, acooperative 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 theAdministrative Agent under the Credit Agreement defined below may from time totime designate in writing, in lawful money of the United States of America andin immediately available funds, the principal sum of                           Dollars****($                  ),together with interest on the unpaid principal balance hereof outstanding fromtime to time at such interest rates and payable at such times as are specifiedin the Amended and Restated Credit Agreement dated as of July 30, 2009 byand among the Borrower, the Lender, certain other Lenders from time to timeparty thereto, and CoBank, ACB, as administrative agent (as amended by aFirst Amendment to Amended and Restated Credit Agreement dated as ofJuly 30, 2010, and as further amended, restated, supplemented or otherwisemodified from time to time, the “**Credit Agreement**”).

 

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

 

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

 

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

 

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

 
|   | **AMERICAN CRYSTAL SUGAR COMPANY** |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                | ** ** |
|   | ** **                         | Name: | ** ** |
|   | ** **                         | Title: | ** ** |

 

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**Exhibit F**

**TERM REVOLVING NOTE**
| $                |                     , 20    |
|---------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                        | Denver, Colorado                                                                                                                     |

 

For value received, AMERICAN CRYSTAL SUGAR COMPANY, acooperative 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 theAdministrative Agent under the Credit Agreement defined below may from time totime designate in writing, in lawful money of the United States of America andin immediately available funds, the principal sum of                         Dollars ($                 ),or, if less, the aggregate unpaid principal amount of all Term RevolvingAdvances (as defined in the Credit Agreement) made by the Lender to theBorrower 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 totime party thereto and CoBank, ACB, as administrative agent (as amended bya First Amendment to Amended and Restated Credit Agreement dated as of July 30,2010, and as further amended, restated, supplemented or otherwise modified fromtime to time, the “**Credit Agreement**”),together with interest on the unpaid principal balance hereof at such interestrates and payable at such times as are specified in the Credit Agreement.

 

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

 

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

 

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

 

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

 
|   | **AMERICAN CRYSTAL SUGAR COMPANY** |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                |   |
|   |                               | Name: |   |
|   |                               | Title: |   |

 

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