**Exhibit 10.23**

** **

**FIFTH AMENDMENT**

**TO AMENDED AND RESTATED LOANAGREEMENT**

 

This Fifth Amendment to Amended and Restated LoanAgreement (“**Amendment**”) is made as of July 23,2008, by and among AMERICAN CRYSTAL SUGAR COMPANY, a****Minnesotacooperative corporation (together with its successors and assigns, the “**Borrower**”), and COBANK, ACB, an agricultural credit bank (“**Lender**”).

 

**RECITAL**

 

This Amendment is made with respect to the Amended andRestated Loan Agreement made as of the 31st day of July, 2006 (asamended, modified, supplemented, renewed or restated from time to time, the “**Agreement**”). Capitalized terms that are not defined in this Amendment shall have themeanings assigned to them in the Agreement. The Borrower and the Lender desire to amend certain provisions of theAgreement as more fully set forth in this Amendment.

 

NOW, THEREFORE, in consideration of the foregoing andof the terms and conditions contained in this Amendment, and of any loans orextensions of credit or other financial accommodations heretofore, now orhereafter made to or for the benefit of Borrower, the parties agree as follows:

 

1.             DefinedTerms.

 

The following terms set forth in Section 1.1of the Agreement shall be amended and restated in their entirety as follows:

 

“Commitments”: The Revolving Loan and the TermLoans.

 

“Loans”: The Revolving Loan (sometimes referred to informally by the parties asT07), Term Loan T01, Term Loan T01NP, Existing Term Loan T03NP, Term Loan T04,or Term Loan T06 (collectively referred to as the “Loans”).

 

“Loan Documents”:  This Agreement, the Notes, agreementsevidencing the Existing Term Loan T03NP, and the Security Documents.

 

“Note”: The Revolving Note, Term Note T01, Term Note T01NP, Term Note T04, TermNote T06, or any notes evidencing Existing Term Note T03NP (collectivelyreferred to as the “Notes”).

 

“Revolving Loan Amount”:  An amount which shall not at any time begreater than Three Hundred Forty Five Million Dollars ($345,000,000), asdetermined from time to time according to the terms of the Loan Agreement, orsuch lesser amount that may be designated by the Borrower in a written noticeto the Lender, which lesser amount will be effective seven (7) days afterthe Lender’s receipt of such written notice.

 

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“Term Letter of Credit”:  Any Term T06 Letter of Credit or any Term T04Letter of Credit (collectively referred to as the “Term Letters of Credit”).

 

“Term Loan”: The Term Loan T01, Term Loan T01NP, Existing Term Loan T03NP, Term LoanT04, or Term Loan T06 (collectively, the “Term Loans”).

 

“Term Loan T01 Amount”:  An amount which shall not at any time begreater than (i) Forty-Eight Million Seven Hundred Seven Thousand FourHundred Two Dollars ($48,707,402) through December 30, 2008, (ii) Forty-OneMillion Nine Hundred Fifty-Two Thousand Six Hundred Two Dollars ($41,952,602)from December 31, 2008 through December 30, 2009, provided that,if Borrower makes the scheduled principal payments referenced in Section 2.7(b),such Term Loan T01 Amount shall be increased to Forty-Eight Million SevenHundred Seven Thousand Four Hundred Two Dollars ($48,707,402) for the periodfrom December 31, 2008 through December 30, 2009, (iii) Thirty-OneMillion Seven Hundred Seven Thousand Four Hundred Two Dollars ($31,707,402) forthe period from December 31, 2009 through December 30, 2010, (iv) FifteenMillion Eight Hundred Fifty Three Thousand Seven Hundred One Dollars ($15,853,701)for the period from December 31, 2010 through December 30, 2011, and (iv) ZeroDollars ($0) at December 31, 2011.

 

“Term Loan T06 Amount”:  An amount which shall not at any time begreater than Sixty-Five Million Dollars ($65,000,000), as determined from timeto time according to the terms of the Loan Agreement.

 

“Termination Date”:  The earliest of (a) August 1, 2010,or (b) the date on which the Revolving Commitments are terminated pursuantto Section 7.2 of the Loan Agreement, provided however, the “TerminationDate” with respect to Term Loan T04 shall be the Term Loan T04 Maturity Date,unless earlier terminated pursuant to Section 7.2 of the LoanAgreement.

 

“Term LoanAvailability Period”:  The periodbeginning on the Closing Date and ending on August 1, 2010.

 

“Term Loan MaturityDate”:  December 31, 2011, providedhowever, the “Term Loan Maturity Date” with respect to Term Loan T04 shallbe the Term Loan T04 Maturity Date; and provided however, the “Term LoanMaturity Date” with respect to Term Loan T01NP shall be the Term Loan T01NPMaturity Date.

 

“Total RevolvingOutstandings”:  As of any date ofdetermination, the sum of (a) the aggregate unpaid principal balance ofthe Revolving Loan outstanding on such date, (b) the aggregate maximumamount available to be drawn under Seasonal Letters of Credit outstanding onsuch date, and (c) the aggregate amount of Unpaid Drawings related to aSeasonal Letter of Credit on such date.

 

“Total TermOutstandings”:  As of any date ofdetermination, the sum of (a) the 

 

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aggregate unpaidprincipal balance of Term Loan T01, (b) the aggregate unpaid principalbalance of Term Loan T01NP, (c) the aggregate unpaid principal balance of ExistingTerm Loan T03NP, (d) the aggregate unpaid principal balance of Term LoanT04, (e) the aggregate unpaid principal balance of Term Loan T06, and (f) theaggregate amount of Unpaid Drawings related to a Term Letter of Credit on suchdate.

 

                “Unused Term Loan Amount”:  As of any date of determination, the amountby which the Term Loan T01 Amount, plus the Term Loan T01NP Amount, plus the ExistingTerm Loan T03NP Amount, plus the Term Loan T04 Amount, plus the Term Loan T06exceeds the Total Term Outstandings.

 

The following terms setforth in Section 1.1 of the Agreement shall be hereby deleted intheir entirety:

 

“Existing Loans”

 

“Existing TermLoan T04”

 

“Term Letter ofCredit Commitment Amount”

 

Any remaining referencein the Agreement made to “Existing Loans” shall be deemed to read “ExistingTerm Loan T03NP.”

 

The following terms shallbe added to Section 1.1 of the Agreement:

 

“Term LoanT01NP Termination Date”:  December 31,2008.

 

“Term T04Letter of Credit”:  As defined in Section 2.1(e).

 

“Term T06Letter of Credit”: An irrevocable letter of credit issued under Term LoanT06 pursuant to this Agreement for the account of Borrower.

 

“Term T06 Letterof Credit Commitment Amount”:  Twenty Million Dollars ($20,000,000).

 

“Term Loan T04”:  As defined in Section 2.1(e).

 

“Term Loan T04Amount”:  An amount which shall notat any time be greater than Sixty One Million Dollars ($61,000,000), asdetermined from time to time according to the terms of the Loan Agreement.

 

“Term Loan T04Termination Date”:  April 30,2013.

 

2.             Reference to “Term Loan T01 Availability Period” as itappears in Section 2.1(b) shall be deleted and replaced withthe term “Term Loan Availability Period”.

 

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3.             Reference to “Term Loan T01NP Availability Period” as itappears in Section 2.1(c) shall be deleted (there being noremaining availability under Term Loan T01NP).

 

4.             Reference to “Term Loan T06 Availability Period” as itappears in Section 2.1(d) shall be deleted and replaced withthe term “Term Loan Availability Period”.

 

5.             Section 2.1(e) of the Loan Agreement, LendingCommitments; Term Loan T04, shall be amended and restated to read infull as follows:

 

(e)  TermLoan T04.  Subject to the terms andconditions hereof, the Lender agrees to make a non-revolving term facilityavailable to Borrower, jointly and severally, for the purpose of issuingirrevocable letters of credit for the account of Borrower (each a “Term T04Letter of Credit”), to issue Term T04 Letters of Credit which replace anyexisting letters of credit previously issued under Term T04, to replace anyTerm T04 Letters of Credit which are terminated with new Term T04 Letters ofCredit, and for no other purpose, provided that, the aggregate maximum amountthat is capable of being drawn under all outstanding Term T04 Letters of Creditshall not at any time exceed the Term T04 Amount.  All Term T04 Letters of Credit shall be issuedpursuant to the terms of this Agreement and shall reduce the Term Loan T04Amount by the maximum amount capable of being drawn under such Term T04 Lettersof Credit.  In the event of anytermination of any Term T04 Letters of Credit, the Term Loan T04 Amount shallbe restored by the maximum amount that was capable of being drawn under suchterminated Term T04 Letters of Credit.  Anydraw under a Term Loan T04 Letter of Credit shall be deemed a Term Loan Advancepursuant to the terms of this Agreement. All Advances made under this Term Loan T04 shall be Base Rate Advances.

 

6.             Section 2.7(b) of the Loan Agreement, Repayment;Term Loan T01, shall be amended and restated to read in full as follows:

 

(b) TermLoan T01.  The unpaid principal ofTerm Loan T01 shall be payable as follows: On December 31, 2008, a principal payment shall be due in an amountequal to Six Million Seven Hundred Fifty Four Thousand Eight Hundred Dollars($6,754,000); on December 31, 2009, a principal payment shall be due in anamount equal to Seventeen Million Dollars ($17,000,000); on December 31,2010 a principal payment shall be due in an amount equal to one-half (1/2) ofthe outstanding principal balance of Term Loan T01 as of the last day of theTerm Loan Availability Period, and any amount of principal or interestremaining unpaid with respect to Term Loan T01 on the Term Loan Maturity Dateshall be immediately due and payable on such date.

 

7.             Section 2.7(d) of the Loan Agreement, Repayment;Term Loan T06, shall be amended and restated to read in full as follows:

 

(d) TermLoan T06.  The unpaid principal ofTerm Loan T06 shall be payable as follows: On December 31, 2010, a principal payment shall be due in an amountequal to 

 

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one-half (1/2) of the outstanding principal balance of Term Loan T06 asof the last day of the Term Loan Availability Period, and any amount ofprincipal or interest remaining unpaid with respect to Term Loan T06 on theTerm Loan Maturity Date shall be immediately due and payable on such date.

 

8.             A new Section 2.7(e) of the LoanAgreement, Repayment; Term Loan T04, shall be added to read infull as follows:

 

(e) Term Loan T04.  Any Unpaid Drawing outstanding under any TermT04 Letters of Credit as of the Term Loan T04 Maturity Date shall beimmediately due and payable on such date. Otherwise, any Advances made by Lender under Term T04 shall be repayablepursuant to the terms of the Agreement (including without limitation Section 2.12)and Term Note T04.

 

9.     Section 2.9 of the LoanAgreement, Letters of Credit, shall be amended and restated to read infull as follows:

 

Section 2.9 Lettersof Credit.  Upon the terms andsubject to the conditions of this Agreement, the Lender agrees to issue Lettersof Credit for the account of Borrower from time to time between the ClosingDate and thirty (30) days prior to the Termination Date in such amounts as theBorrower shall request up to an aggregate amount at any time outstanding notexceeding the Seasonal Letter of Credit Commitment Amount, the Term T06 Letterof Credit Commitment Amount, or the Term Loan T04 Amount, as applicable; providedthat (i) the face amount of any Seasonal Letter of Credit shallautomatically reduce, dollar for dollar, the amount which Borrower may borrowas Revolving Loan Advances, (ii) the face amount of any Term T06 Letter ofCredit shall automatically reduce, dollar for dollar, the amount which Borrowermay borrow as Term Loan T06 Advances; (iii) the face amount of any TermT04 Letter of Credit shall automatically reduce, dollar for dollar, theaggregate face amount of Letters of Credit which may be issued on behalf ofBorrower under Term Loan T04;  (iv) theaggregate face amount of all issued and outstanding Seasonal Letters of Creditshall not exceed $20,000,000; (v) the aggregate face amount of all issuedand outstanding Term T06 Letters of Credit shall not exceed $20,000,000; (vi) theaggregate face amount of all issued and outstanding Term T04 Letters of Creditshall not exceed the Term Loan T04 Amount; (vii) no Seasonal Letter ofCredit will be issued in any amount which, after giving effect to suchissuance, would cause Total Revolving Outstandings to exceed the Revolving LoanAmount, and (viii) no Term T06 Letter of Credit will be issued in anyamount which, after giving effect to such issuance, would cause the aggregateunpaid principal balance of Term Loan T06 and the aggregate amount of UnpaidDrawings relating to a Term T06 Letter of Credit to exceed the Term Loan T06Amount, and (ix) no Term T04 Letter of Credit will be issued in any amountwhich, after giving effect to such issuance, would cause the aggregate unpaidprincipal balance of Term Loan T04 and the aggregate amount of Unpaid Drawingsrelating to a Term T04 Letter of Credit to exceed the Term Loan T04Amount.  Each Letter of Credit requestshall set forth (i) the face amount and expiry date of such Letter ofCredit; (ii) the beneficiary of such Letter of 

 

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Credit; (iii) the terms thereof; and (iv) such otherinformation as the Lender may request.

 

10.   Letters of Credit.  For avoidance of doubt, the parties agreethat the Letters of Credit described on Schedule 2.9, which is attachedhereto and incorporated herein by this reference, are all of the Letters ofCredit issued pursuant to the terms of the Agreement as of the date of thisAmendment.

 

11.   Annex I, Pricing Grid (settingforth Margin Percentages and Percentages for computation of Letter of CreditFees and Commitment Fees), attached to the Agreement, is hereby deleted in itsentirety and replaced with Annex 1-A, which is attached hereto andincorporated herein by this reference. Any reference to Annex I in the Agreement shall hereinafter bedeemed to refer to Annex I-A.

 

12.           This Amendment shall be effective asof its date, conditioned upon (a) the execution and delivery to the Lenderof this Amendment, executed by the Borrower and executed by a “majority ofaffected participants” (as such phrase is defined in the participation agreementsbetween Lender and the Participants); (b) the payment of the amendmentadministration fee and the arrangement fee payable to the Lender as agreed tobetween the Borrower and the Lender; and (c) an amendment fee in theamount of $458,707.40 in consideration of this Amendment for the account ofLender.

 

13.           This Amendment shall be an integralpart of the Agreement, and all of the terms set forth therein are herebyincorporated in this Amendment by reference, and all terms of this Amendment arehereby incorporated into said Agreement as if made an original partthereof.  All of the terms and conditionsof the Agreement, which are not modified in this Amendment, shall remain infull force and effect.  To the extent theterms of this Amendment conflict with the terms of the Agreement, the terms ofthis Amendment shall control.

 

14.           This Amendment may be executed inseveral counterparts, each of which shall be construed together as oneoriginal.  Facsimile signatures on thisAmendment shall be considered as original signatures.

 

**[SignaturePage Follow]**

 

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IN WITNESS WHEREOF, theparties hereto have executed this Fifth Amendment to Amended and Restated LoanAgreement as of the day and year first herein above written.

 
|       | **AMERICAN CRYSTAL SUGAR COMPANY**,                  |
|------------|------------------------------------------------------|
|       | a****Minnesota  cooperative corporation, as Borrower |
|       |                                                 |
|       | **By:**                                              | **  /s/ Samuel S. M. Wai** |
|       | **Its:**                                             | **  Treasurer** |
|       | ** **                                           |
|       | **COBANK, ACB, as Lender**                           |
|       | ** **                                           |
| ** ** | **By:**                                              | **  /s/  Michael Tousignant** |
|       | **Its:**                                             | **  Vice President** |

 

 

**{SIGNATUREPAGE ONE OF ONE TO FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT}**

 

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**Schedule 2.9**

 

**Existing Letters of Credit**

** **

**Seasonal Letters of Credit:**

 
| ** **         | ** ** | **Loan Intrnl Ref** | ** ** | ** **                | ** **    | **Lc Expire** | ** ** |
|--------------------|------------|-------------------------------|------------|---------------------------|---------------|--------------------|------------|
| **Oblgtn No** | ** ** | **No**                        | ** ** | **Lc Issd Amt** | ** **    | **Dat**            | ** ** |
| 001937627          |       | 00614645                      |       | $                         | 6,694,109.59  |               | 07/12/09   |   |
| 001639502          |       | 00614321                      |       | $                         | 477,000.00    |               | 04/01/09   |   |
| 001973515          |       | 00613621                      |       | $                         | 5,931,164.38  |               | 04/13/09   |   |
| 001639261          |       | 00092028                      |       | $                         | 1,490,025.00  |               | 11/01/08   |   |
|               |       | TOTAL                         |       | $                         | 14,592,298.97 |               |       |   |

 

 

**Term T04 Letters of Credit:**

** **
| ** **         | ** ** | **Loan Intrnl Ref** | ** ** | ** **                | ** **    | **Lc Expire** | ** ** |
|--------------------|------------|-------------------------------|------------|---------------------------|---------------|--------------------|------------|
| **Oblgtn No** | ** ** | **No**                        | ** ** | **Lc Issd Amt** | ** **    | **Dat**            | ** ** |
| 001573594          |       | 00096021                      |       | $                         | 16,504,109.59 |               | 03/31/09   |   |
| 002185036          |       | 00615176                      |       | $                         | 220,500.00    |               | 04/30/09   |   |
| 001573622          |       | 00098002                      |       | $                         | 5,931,165.00  |               | 03/31/09   |   |
| 001573613          |       | 00097006                      |       | $                         | 5,673,288.00  |               | 03/31/09   |   |
| 002143222          |       | 00613963                      |       | $                         | 100,000.00    |               | 08/31/08   |   |
| 001978866          |       | 00614766                      |       | $                         | 4,634,383.56  |               | 12/15/08   |   |
| 002143251          |       | 00614984                      |       | $                         | 18,125,589.04 |               | 12/13/08   |   |
| 001573607          |       | 00097001                      |       | $                         | 1,031,506.85  |               | 03/21/09   |   |
| 001573586          |       | 00096020                      |       | $                         | 1,031,506.85  |               | 03/31/09   |   |
| 002143238          |       | 00613430                      |       | $                         | 3,692,794.52  |               | 09/01/09   |   |
|               |       | TOTAL                         |       | $                         | 56,944,843.41 |               |       |   |

 

**Term T06 Letters of Credit:**

** **

**NONE**

** **

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** **

**ANNEX I-A**

** **

**Pricing Grid**

** **
| ** ** | ** ** | ** **                               | ** ** | **LIBOR Margin   (in basis points)   Letter of Credit   Fees** | ** ** | **Base Rate Margin   (in basis points)** | ** ** | **Commitment Fee   (in basis points)** | ** ** |
|------------|------------|------------------------------------------|------------|--------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------------|------------|------------------------------------------------------------|------------|
| **Tier**   | ** ** | **Leverage  Ratio**                      | ** ** | **Revolving   Loan**                                                                              | ** ** | **Term   Loans**                                             | ** ** | **Revolving   Loan**                                  | ** ** | **Term   Loans** | ** ** | **Revolving   Loan** | ** ** | **Term   Loans** | ** ** |
| **1**      | ** ** | **<1.0  to 1.0**                      | ** ** | **75.0**                                                                                               | ** ** | **75.0**                                                          | ** ** | **0**                                                      | ** ** | **0** | ** ** | **15.0** | ** ** | **15.0** | ** ** |
| **2**      | ** ** | **<1.20  to 1.0 and >1.0 to 1.0**  | ** ** | **87.5**                                                                                               | ** ** | **87.5**                                                          | ** ** | **0**                                                      | ** ** | **0** | ** ** | **17.5** | ** ** | **17.5** | ** ** |
| **3**      | ** ** | **<1.35  to 1.0 and >1.20 to 1.0** | ** ** | **100.0**                                                                                              | ** ** | **100.0**                                                         | ** ** | **0**                                                      | ** ** | **0** | ** ** | **20.0** | ** ** | **20.0** | ** ** |
| **4**      | ** ** | **>1.35  to 1.0**                     | ** ** | **125.0**                                                                                              | ** ** | **125.0**                                                         | ** ** | **0**                                                      | ** ** | **0** | ** ** | **25.0** | ** ** | **25.0** | ** ** |

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