**Exhibit 10.23**

 

**FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT**

**between**

**AMERICAN CRYSTAL SUGAR COMPANY,**

**as Borrower,**

**and**

**CoBANK, ACB,**

**as Lender,**

**dated July 31, 2006**

 

**THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT**(this “Fourth Amendment”) is dated to be effective as of July 25, 2007, and isby and between AMERICAN CRYSTAL SUGAR COMPANY, a Minnesota cooperativecorporation (“Borrower”), and CoBANK, ACB (“Lender”), and amends that certain Amendedand Restated Loan Agreement dated July 31, 2006, as amended from time to time(the “Loan Agreement”). All capitalized terms not defined herein shall have themeanings set forth in the Loan Agreement.

 

**RECITALS**

 

Theparties have agreed to modify certain terms and provisions of the LoanAgreement as more fully set forth in this Fourth Amendment.

 

**NOW,THEREFORE**, in consideration of the foregoing and for good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged by each party, the parties agree to amend the Loan Agreement inthe following respects:

 

1.                                       DefinedTerms.

 

The following terms set forth in Section 1.1 ofthe Loan Agreement shall be amended and restated in their entirety:

 

“Existing Term LoanT04”:  As defined in Section2.1(e).

 

“Revolving Loan Amount”:  An amount which shall not at any time begreater than Three Hundred Sixty Million Dollars ($360,000,000), as determinedfrom time to time according to the terms of the Loan Agreement, or such lesseramount that may be designated by the Borrower in a written notice to the Lender,which lesser amount will be effective seven (7) days after the Lender’s receiptof such written notice.

 

“Term Letter of CreditCommitment Amount”:  Twenty MillionDollars ($20,000,000).

 

“Term LoanAvailability Period”:  The period beginningon the Closing Date and ending on August 1, 2009.

 

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“Term Loan T01 Amount”:  An amount which shall not at any time begreater than (i) Fifty-Eight Million Two Hundred Seventy-Six Thousand SevenHundred Two Dollars ($58,276,702) through December 31, 2007, (ii) Forty-EightMillion Seven Hundred Seven Thousand Four Hundred Two Dollars ($48,707,402)effective as of January 1, 2008 through December 31, 2008; or (iii) Forty-OneMillion Nine Hundred Fifty-Two Thousand Six Hundred Two Dollars ($41,952,602)effective as of January 1, 2009, as determined from time to time according tothe terms of the Loan Agreement.

 

“Term Loan T01NPAmount”:  An amount which shall notat any time be greater than (i) Seventeen Million Six Hundred Seventy-Five ThousandNine Hundred Dollars ($17,675,900) through December 31, 2007, or (ii) TenMillion Two Hundred Forty-Five Thousand Two Hundred Dollars ($10,245,200)effective as of January 1, 2008, as determined from time to time according tothe terms of the Loan Agreement.

 

“Term Loan T06 Amount”:  An amount which shall not at any time begreater than Fifty-Five Million Dollars ($55,000,000), as determined from timeto time according to the terms of the Loan Agreement.

 

“Termination Date”:  The earliest of (a) August 1, 2009, or (b)the date on which the Revolving Commitments are terminated pursuant to Section7.2 of the Loan Agreement.

 

The following terms set forth in Section 1.1 ofthe Loan Agreement shall be amended:

 

“Capitalization Ratio”:  When calculating the Capitalization Ratio, thecumulative non-cash Other Comprehensive Income (“OCI”) (determined inaccordance with GAAP) effect of pension plan accounting on equity, not toexceed $25,000,000, may be excluded.

 

The following terms shall be added to Section 1.1of the Loan Agreement:

 

“Term Loan T01NPMaturity Date”:  December 31, 2008.

 

“Term Loan T04 Amount”:  An amount which shall not at any time begreater than Sixty-One Million Dollars ($61,000,000), as determined from timeto time according to the terms of the Loan Agreement.

 

“Term Note T04”:  The promissory note of the Borrower in theform of Exhibit A-5 hereto, evidencing the obligation of the Borrower torepay the Term Loan T04.

 

2.                                       Section2.1(c) of the Loan Agreement, Term Loan T01NP, shall be amended inthe following respect:  As of the date ofthis Fourth Amendment, no further Advances will be made 

 

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under Term Loan T01NP, and any amounts repaid on TermLoan T01NP may not be reborrowed. The remaining provisions of Section 2.1(c)shall continue in full force and effect.

 

3.                                       Anew subsection (e) shall be added to Section 2.1 of the Loan Agreementas follows:

 

(e)                                  TermLoan T04. The Lender has previously extended to the Borrower Term Loan T04pursuant to that certain Non-Revolving Credit Supplement dated as of December12, 2005, and numbered Z269T04B, in the original principal amount of$36,000,000, which has an unpaid principal balance of $36,000,000, and amaturity date of April 30, 2013. Term Loan T04 is subject to all of the termsand conditions of the Loan Agreement, except to the extent any provision of theLoan Agreement is in conflict with any provision of the Non-Revolving CreditSupplement, in which event the applicable Non-Revolving Credit Supplement shallcontrol with respect to such provision. Subject to such terms and conditions,Term Loan T04 shall be increased up to the Term Loan T04 Amount, for thepurpose of transferring Borrower’s Obligations under all outstanding TermLetters of Credit issued under Term Loan T06 to Term Loan T04, and for thepurpose of issuing additional Term Letters of Credit from time to time inaccordance with the Loan Agreement.

 

4.                                       Anew subsection (f) shall be added to Section 2.1 of the Loan Agreement asfollows:

 

(f)                                    Increasein Loans. At any time prior to the Termination Date, the Borrower mayrequest that a Loan be increased by up to the aggregate amount of $100,000,000.Such request shall be made in a written notice given to the Lender by theBorrower not less than twenty (20) Banking Days prior to the proposed effectivedate of such increase, which notice (a “Loan Increase Notice”) shall specifythe amount of the proposed increase in the Loan and the proposed effective dateof such increase. The proposed increase shall be in an amount not less than $25,000,000.The Lender shall have no obligation to increase a Loan pursuant to a LoanIncrease Notice. The Lender shall notify the Borrower on or before the BankingDay immediately prior to the proposed effective date to confirm the amount ofthe increase in a Loan. Any increase in a Loan shall be subject to thefollowing conditions precedent:  (i) asof the date of the Loan Increase Notice and as of the proposed effective dateof the increase in the Loan, all representations and warranties of the Borrowerin the Loan Agreement shall be true and correct in all material respects asthough made on such date and no event shall have occurred and then becontinuing which constitutes a Default or an Event of Default; (ii) the Borrowerand the Lender shall have executed a Commitment and Acceptance (“Commitment andAcceptance”) substantially in the form of Exhibit F hereto; and (iii)the Borrower and the Lender shall otherwise have executed and delivered suchother instruments and documents as may be required hereunder or that the Lendershall have reasonably requested in connection with such increase. In the eventany provision of a Commitment and Acceptance shall be inconsistent with anyprovisions of the Loan Agreement, the Loan Agreement shall govern. Uponsatisfaction of the conditions precedent to any increase in a Loan, the Lendershall promptly advise the Borrower of 

 

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the effective dateof such increase. Nothing contained herein shall constitute, or otherwise bedeemed to be, a commitment on the part of the Lender to increase a Loan.

 

5.                                       Section2.2 of the Loan Agreement, Existing Loans, shall be amended in thefollowing respect:  All references in Section2.2 to “Term Loan T04” shall be deleted, it being understood and agreedthat Term Loan T04 shall hereafter be defined as set forth in Section 2.1(e)of the Loan Agreement. The remaining provisions of Section 2.2 shallcontinue in full force and effect.

 

6.                                       Section2.7(b) of the Loan Agreement, Repayment; Term Loan T01, shall beamended and restated to read in full as follows:

 

(b)                                 TermLoan T01. The principal of Term Loan T01 shall be payable as follows:  On December 31, 2007, a principal paymentshall be due in the amount of $9,569,300; on December 31, 2008, a principalinstallment shall be due in the amount of $6,754,800; on December 31, 2009, aprincipal payment shall be due in an amount equal to one-third (1/3) of theoutstanding principal balance of Term Loan T01 as of the last day of the TermLoan Availability Period; the remaining principal balance shall be payable intwo equal annual installments due on December 31, 2010 and December 31, 2011,and any amount of principal or interest remaining unpaid with respect to Term LoanT01 on the Term Loan Maturity Date shall be immediately due and payable on suchdate.

 

7.                                       Section2.7(c) of the Loan Agreement, Repayment; Term Loan T01NP, shall beamended and restated to read in full as follows:

 

(c)                                  TermLoan T01NP. The principal of Term Loan T01NP shall be payable in one annualinstallment in the amount of $7,430,700 on December 31, 2007, and any amount ofprincipal or interest remaining unpaid with respect to Term Loan T01NP on theTerm Loan T01NP Maturity Date shall be immediately due and payable on suchdate.

 

8.                                       Section2.7(d) of the Loan Agreement, Repayment; Term Loan T06, shall beamended and restated to read in full as follows:

 

(d)                                 TermLoan T06. The unpaid principal of Term Loan T06 shall be payable asfollows:  On December 31, 2009, aprincipal payment shall be due in an amount equal to one-third (1/3) of theoutstanding principal balance of Term Loan T06 as of the last day of the TermLoan Availability Period; the remaining principal balance shall be payable intwo equal annual installments due on December 31, 2010 and December 31, 2011,and any amount of principal or interest remaining unpaid with respect to TermLoan T06 on the Term Loan Maturity Date shall be immediately due and payable onsuch date.

 

9.                                       Clause(iv) of Section 2.9 of the Loan Agreement, Letters of Credit,shall be amended and restated to read in full as follows:  (iv) the aggregate amount of all issued andoutstanding Term 

 

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Letters of Credit shall not exceed $20,000,000. Theremaining provisions of Section 2.9 shall continue in full force andeffect.

 

10.                                 Section2.14(a) of the Loan Agreement, Loan Fees, shall be amended by addingthe following:

 

The Borrower shall pay tothe Lender (i) additional Revolving Loan Fees in the amount of $180,000.00 withrespect to the Revolving Loan Amount, and (ii) additional Term Loan Fees in theamount of $29,138.00 with respect to the Term Loan T01, in the amount of $13,000.00with respect to the Term Loan T04, and in the amount of $27,500.00 with respectto the Term Loan T06. Such fees are payable on the date of this FourthAmendment and are not refundable to the Borrower.

 

11.                                 Section2.14(c) of the Loan Agreement, Letter of Credit Fees, shall beamended by adding the following:

 

Notwithstanding theprovisions of Section 2.1(e) of the Loan Agreement, it is herebyunderstood and agreed that Letter of Credit Fees set forth in Section2.14(c) shall apply to all Letters of Credit issued and outstanding underTerm Loan T04, including Letters of Credit originally issued under Term LoanT04 pursuant to the Non-Revolving Credit Supplement and Letters of Creditoriginally issued under Term Loan T06 which have been transferred to Term LoanT04.

 

12.                                 Section5.1(g) of the Loan Agreement shall be deleted, eliminating the requirementto provide periodic financial statements of Crystech.

 

13.                                 Section6.15, Net Working Capital, Section 6.16, CapitalizationRatio, and Section 6.17, Interest Coverage Ratio, shall beamended as follows:  For purposes ofcalculating Net Working Capital, the Capitalization Ratio and the InterestCoverage Ratio, amounts attributable to Crystech shall no longer be excluded.

 

14.                                 Representationsand Warranties. The Borrower restates, represents and warrants the representationsand warranties set forth in Article IV of the Loan Agreement as of thedate of this Fourth Amendment.

 

15.                                 Miscellaneous.All references in the Loan Agreement to “Required Lender” shall be understoodto mean “Lender”.

 

16.                                 ComplianceCertificate. The form of Compliance Certificate shall be replaced by ExhibitD-1 attached hereto and made a part hereof.

 

17.                                 Incorporation ofLoan Agreement. This Fourth Amendment shall be an integral part of the LoanAgreement, and all terms of the Loan Agreement are hereby incorporated in this FourthAmendment by reference, and all terms of this Fourth Amendment are herebyincorporated into the Loan Agreement as if made an original part thereof. Exceptas modified herein, all terms and 

 

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provisions of the Loan Agreement shallcontinue in full force and effect, but to the extent the terms of this FourthAmendment conflict with the Loan Agreement, the terms of this Fourth Amendmentshall control.

 

IN WITNESSWHEREOF, the parties have executed this Fourth Amendment to be effective as ofthe day and year first above written.

 
|   | AMERICAN  CRYSTAL SUGAR COMPANY,     |
|--------|--------------------------------------|
|   | a Minnesota  cooperative corporation |
|   |                                 |
|   |                                 |
|   | By                                   | /s/ Samuel  S. M. Wai |   |
|   | Name                                 | Samuel S. M.  Wai |   |
|   | Title                                | Treasurer |   |
|   |                                 |   |
|   |                                 |
|   | CoBANK, ACB                          |
|   |                                 |
|   |                                 |
|   | By                                   | /s/ Michael  Tousignant |   |
|   | Name                                 | Michael  Tousignant |   |
|   | Title                                | Vice  President |   |

 

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Exhibit A-5

 

Form of Term Note T04

 

Attached

 

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**TERM NOTE T04**

** **
| $61,000,000.00 |   | July 25, 2007     |
|----------------|--------|-------------------|
|           |   | Denver,  Colorado |

** **

FOR VALUE RECEIVED, AMERICAN CRYSTAL SUGAR COMPANY, aMinnesota cooperative corporation (the “Borrower”), hereby promises topay to the order of CoBANK, ACB (the “Lender”), in lawful money of theUnited States of America in Immediately Available Funds (as such term and eachother capitalized term used herein are defined in the Loan Agreementhereinafter referred to), the principal amount of Sixty-One Million and 00/100Dollars ($61,000,000.00), or such lesser amount as has actually been advancedunder the Term Loan T04, and interest in like funds on the unpaid principalamount hereof from time to time outstanding, at the rates and time set forth inthat certain Amended and Restated Loan Agreement dated July 31, 2006, by andbetween the Borrower and the Lender, as the same may be amended, modified,supplemented, extended, renewed, restated or replaced from time to time (the “LoanAgreement”).

 

Principal and interest shall be payable as set forthin the Loan Agreement, and all principal and interest remaining unpaid on theTerm Loan Maturity Date shall be immediately due and payable.

 

This note is one of the Notes referred to in the LoanAgreement and is subject to and governed by the Loan Agreement. This note issecured, and its maturity is subject to acceleration, in each case upon theterms provided in the Loan Agreement.

 

Should any Event of Default occur as provided for inthe Loan Agreement, all principal and interest outstanding hereunder may bedeclared immediately due and payable in accordance with the Loan Agreement. TheBorrower and all guarantors and endorsers, for themselves, their legalrepresentatives, successors and assigns, hereby severally waive presentment forpayment, protest and demand, notice of protest, demand and dishonor andnonpayment of this note, and consent that the holder may extend the time ofpayment or otherwise modify the terms of payment of any part or the whole ofthe indebtedness evidenced by this note, and such consent shall not alter ordiminish the liability of the Borrower or said guarantors or endorsers. Theundersigned agrees to pay all costs and expenses of collection, includingreasonable attorney’s fees.

 

Theinterest rate shall at no time exceed the maximum lawful rate (the “MaximumRate”) that may be contracted for, charged, taken, received or reserved inaccordance with applicable law, and the rate of interest payable hereundershall be limited to the Maximum Rate.

 

THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THISNOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF COLORADO WITHOUTGIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.

 

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THE UNDERSIGNED AND THE HOLDER (BY ITSACCEPTANCE HEREOF) IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANYLEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OTHER LOANDOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

** **

** **
|   | **AMERICAN  CRYSTAL SUGAR COMPANY**, |
|--------|--------------------------------------|
|   | a Minnesota  cooperative corporation |
|   |                                 |   |
|   |                                 |   |
|   | By:                                  | /s/ Samuel  S.M. Wai |   |
|   |                                 |   |
|   | Its:                                 | Treasurer |   |

 

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Exhibit D-1

 

Form of Compliance Certificate

 

Attached

 

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**CoBANK, ACB**

** **

**COMPLIANCE CERTIFICATE – CERTIFIED INTERIM FINANCIALS**

 

This certificate is being furnished toCoBANK, ACB (“CoBank”) to induce CoBank to make and/or continue to makeadvances to the Company and to comply with and demonstrate compliance with theterms, covenants, and conditions of the Company’s Master Loan Agreement and allPromissory Note and Supplements thereto. The undersigned hereby certifies that:(i) this certificate was prepared from the books and records of the Company, isin agreement with them, and is correct to the best of the undersigned'sknowledge and belief;  (ii) no “Event ofDefault” (as defined in the Master Loan Agreement) or event which, with thegiving of notice and/or the passage of time and/or the occurrence of any othercondition, would ripen into an Event of Default (a “Potential Default”)shall have occurred and be continuing, except as disclosed below; and (iii)based upon the undersigned ‘s review of the attached interim financialstatement(s) dated as of                                          , to the best of the undersigned’s knowledge, the attached financial statement(s) are accurate and completefor the period reflected.

 

This certificate is attached to and made apart of the Company’s interim financial statements for the reporting periodending                 .

 
| ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    | ** ** | **Required**                                                                                                                                                                                               | ** ** | **Actual**                 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|----------------------------|
| **Net  Working Capital**

1.                    Current  Assets as measured in accordance with GAAP

2.                    Current  Liabilities as measured in accordance with GAAP

3.                    Net  Working Capital (1. minus 2.)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       | Minimum Net Working Capital required for fiscal quarters other than  fiscal year end = $15,000,000  Minimum Net Working Capital required for fiscal year end = $35,000,000                                 |       | 1.

 

2.

 

3. |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |       |                                                                                                                                                                                                       |       |                       |
| **Interest Coverage Ratio**

1.                    Average Net Funds Generated which is the  sum of the following for the most recent 12 Fiscal Quarters.

·                       Add:  Unit Retains; Depreciation and amortization; Net income from non-member  business and Member business tax timing differences; Decrease in investments  in other cooperatives (excluding subsidiaries); and Net revenue from sale of  stock.

·                       Minus:  Increase in investments in other cooperatives (excluding subsidiaries); Net  loss from non-member business and member business tax timing differences;  Provision for income tax; and Members’ investment retirements.

2.                    Average  Interest Expense defined as the total interest expense of the Company and its  Subsidiaries (including, without limitation, interest expense on capital  leases) and fees and other charges payable with respect to all Debt, all  determined on a consolidated basis in accordance with GAAP for the most  recent 12-Fiscal Quarters.

3.                    Interest  Coverage Ratio (Sum of 1. and 2., divided by 2.) |       | Maintain at all times, and  measured as of the end of each Fiscal Quarter, a minimum ratio of Average Net  Funds Generated plus Average Interest Expense to Average Interest Expense of  at least 2.5:1.0. |       | 1.

 

2.  3.         |

 

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| ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             | ** ** | **Required**                                                                                                                                                                                        | ** ** | **Actual**                                                                                                                                                                               |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **Long  Term Debt to Capitalization**

1.                    Long  Term Debt (excluding current maturities) calculated in accordance with GAAP

2.                    The  sum of Long Term Debt plus Equity as determined in accordance with GAAP

3.                    Long  Term Debt to Capitalization   (1. divided by 2.)***Note:  For  purposes of this calculation the long term debt and equity associated with  the consolidation of Pro Gold LLC  are  to be excluded.***

                                                                                                                                                                    |       | Maintain at all times and measured as of the end of each Fiscal  Quarter the ratio of Long Term Debt divided by the sum of Long Term Debt plus  Equity of no greater than fifty-five percent (55%). |       | 1.

 

2.

 

3.                                                                                                                                                               |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |       |                                                                                                                                                                                                |       |                                                                                                                                                                                     |
| **Leverage Ratio ( and Term Performance  Pricing)**

1.                    Long Term Debt (excluding current  maturities) calculated in accordance with GAAP

2.                    Plus  or minus the difference between actual working capital and $35,000,000

3.                    Total  members investments

4.                    Estimated  unit retains

5.                    Leverage  Ratio (The sum of 1. plus or minus 2. divided by the sum of 3. plus 4. ) |       |                                                                                                                                                                                                |       | 1.

 

2.  3.

 4.

 5.

 

Based upon  the previous fiscal quarter’s Leverage Ratio, the Company is entitled to the  following change in the LIBOR and TREASURY Margins: |

 

The above calculations and ratios are to be determined on aconsolidated basis in accordance with Section 10 of the Master Loan Agreement(which excludes the financial results of ProGold from such calculations andratios).

 
|   | **AMERICAN  CRYSTAL SUGAR COMPANY**  (“Company”) |
|--------|------------------------------------------------------------|
|   |                                                       |
|   |                                                       |   |
|   |   Authorized  Signature                          |
|   |                                                       |
|   |                                                       |   |
|   |   Title                                          |
|   |                                                       |
|   |                                                       |   |
|   |   Date                                           |

 

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Exhibit F

 

Commitment and Acceptance

 

To be provided

 

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