exv10w21c



 



Exhibit
10.21C



FIFTH AMENDMENT TO

2003 AMENDED AND RESTATED CREDIT AGREEMENT

AND WAIVER




Parties:




	 	 	 	 	 
	 

	 	“CoBank”:
	 	CoBank, ACB

5500 South Quebec Street

Greenwood Village, Colorado 80111
	 
	 	 	 	 
	 

	 	“Borrower”:
	 	National Cooperative Refinery Association

2000 Main Street

P.O. Box 1404

McPherson, Kansas 67460
	 
	 	 	 	 
	 

	 	“Syndication Parties”:
	 	Whose signatures appear below
	 
	 	 	 	 
	Execution Date:

	 	November 7, 2007	 	 






Recitals:




     A. CoBank (in its capacity as the Administrative Agent (“Agent”) and as a Syndication Party)
and Borrower have entered into that certain 2003 Amended and Restated Credit Agreement dated as of
December 16, 2003, and that certain First Amendment to 2003 Amended and Restated Credit Agreement
dated December 15, 2005, that certain Second Amendment to 2003 Amended and Restated Credit
Agreement dated June 30, 2006, that certain Third Amendment to 2003 Amended and Restated Credit
Agreement dated December 13, 2006, and that certain Fourth Amendment to 2003 Amended and Restated
Credit Agreement dated September 17, 2007 (as so amended, and as further amended, modified, or
supplemented from time to time, the “Credit Agreement”) pursuant to which CoBank and any entity
which becomes a “Syndication Party” has extended certain credit facilities to Borrower under the
terms and conditions set forth in the Credit Agreement.



     B. Borrower has requested that the Agent and the Syndication Parties make certain
modifications to the Credit Agreement with respect to loans by Borrower to, and Investments by
Borrower in, its wholly owned Subsidiary Jayhawk Pipeline, L.L.C., which the Agent and the
Syndication Parties are willing to do under the terms and conditions as set forth in this Fifth
Amendment to 2003 Amended and Restated Credit Agreement (“Fifth Amendment”).



 









 





     C. Borrower has requested that the Agent and the Syndication Parties waive any default on
account of the failure of the 2008 Budget to include capital expenditures related to a new coker
project anticipated for 2008, which the Agent and the Syndication Parties are willing to do under
the terms and conditions as set forth in this Fifth Amendment.



Agreement:




     Now, therefore, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto hereby agree as follows:



     1. Amendments to Credit Agreement. The Credit Agreement is amended as of the Effective Date
as follows:




     1.1 Section 1.82 is amended to read as follows:



     1.82 2-Year Maturity Date: December 16, 2008.




     1.2 Section 11.6 is amended to read as follows:



     11.6 Loans. Borrower shall not lend or advance money, credit, or property to any
Person, except for trade credit extended in the ordinary course of business, other than loans to
its wholly owned Subsidiary Jayhawk Pipeline, L.L.C.; provided that all such loans to Jayhawk
Pipeline, L.L.C., when aggregated with all of the Investments in Jayhawk Pipeline, L.L.C. made
pursuant to, and as permitted in, clause (i) of Section 11.8 hereof, do not exceed $75,000,000.00.




     1.3 Clause (i) of Section 11.8 is re-designated as clause (j) and a new clause (i) is added to
Section 11.8 reading as follows:




     (i) Investments made on and after October 25, 2007 in Borrower’s wholly owned Subsidiary
Jayhawk Pipeline, L.L.C.; provided that all such Investments, when aggregated with the amount of
all loans to Jayhawk Pipeline, L.L.C., do not exceed $75,000,000.00.




     1.4 Section 10.16, but none of the Subsections thereof, is amended to read as follows:



     10.16 Financial Covenants. Borrower shall maintain the following financial covenants,
measured as an aggregation of the results of Borrower (including Borrower’s earnings on account of
its minority interest in Osage Pipe Line Company and in Kaw Pipe Line Company), Jayhawk Pipeline,
L.L.C. (so long as it is a wholly owned Subsidiary of Borrower), and Cooperative (but no other
Subsidiaries):



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     2. Waiver.




     2.1 Borrower has advised the Administrative Agent that the Business Plan Borrower submitted
for the fiscal year commencing September 1, 2007, failed to include capital expenditures
anticipated to be made during such fiscal year in connection with a new coker project. To the
extent that Borrower was, is, or would be in the future, in default under Section 8.24 or
Subsection 10.2.10 of the Credit Agreement based on its failure to include such capital
expenditures in the Business Plan for the fiscal year commencing September 1, 2007, the
Administrative Agent, on behalf of the Syndication Parties, waives such default. No other waiver
is granted with respect to the contents, or required contents, of the Business Plan Borrower
submitted for the fiscal year commencing September 1, 2007.




     2.2 The waivers set forth above in Section 2.1 shall not be construed as an indication or
agreement that the Administrative Agent would grant, or the Syndication Parties would consent to,
any other waiver, whether similar or dissimilar thereto, in the future. No waiver is granted with
respect to any violation of any provisions of the Credit Agreement other than as expressly set
forth above in Section 2.1 hereof.



     3. Conditions to Effectiveness of this Fifth Amendment. The effectiveness of this Fifth
Amendment, including the waiver set forth in Section 2, is subject to satisfaction, in the
Administrative Agent’s sole discretion, of each of the following conditions precedent (the date on
which all such conditions precedent are so satisfied shall be the “Effective Date”):




     3.1 Delivery of Executed Loan Documents. The Administrative Agent shall have received
originals of this Fifth Amendment duly executed by Borrower.




     3.2 Approval of Syndication Parties and Voting Participants. The Administrative Agent shall
have received the approval of this Fifth Amendment by the Syndication Parties and Voting
Participants as required under the Credit Agreement.




     3.3 Representations and Warranties. The representations and warranties of Borrower in the
Credit Agreement shall be true and correct in all material respects on and as of the Effective Date
as though made on and as of such date.




     3.4 No Event of Default. No Event of Default shall have occurred and be continuing under the
Credit Agreement as of the Effective Date of this Fifth Amendment.



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     3.5 Payment of Fees and Expenses. Borrower shall have paid the Administrative Agent, by wire
transfer of immediately available federal funds: (a) all fees presently due under the Credit
Agreement (as amended by this Fifth Amendment); and (b) all expenses owing as of the Effective Date
pursuant to Section 15.1 of the Credit Agreement; (c) a fee in the amount of $5,000.00 for
retention by the Administrative Agent; and (d) for distribution to the Syndication Parties on a
pro-rata basis (in accordance with their Individual 2-Year Commitment), a fee in the amount of
$15,000.00 (“Amendment Fee”) which shall be deemed to have been earned in full upon execution of
this Fifth Amendment.



     4. General Provisions.




     4.1 No Other Modifications. The Credit Agreement, as expressly modified herein, shall
continue in full force and effect and be binding upon the parties thereto.




     4.2 Successors and Assigns. This Fifth Amendment shall be binding upon and inure to the
benefit of Borrower, Agent, and the Syndication Parties, and their respective successors and
assigns, except that Borrower may not assign or transfer its rights or obligations hereunder
without the prior written consent of all the Syndication Parties.




     4.3 Definitions. Capitalized terms used, but not defined, in this Fifth Amendment shall have
the meaning set forth in the Credit Agreement.




     4.4 Severability. Should any provision of this Fifth Amendment be deemed unlawful or
unenforceable, said provision shall be deemed several and apart from all other provisions of this
Fifth Amendment and all remaining provisions of this Fifth Amendment shall be fully enforceable.




     4.5 Governing Law. To the extent not governed by federal law, this Fifth Amendment and the
rights and obligations of the parties hereto shall be governed by, interpreted and enforced in
accordance with the laws of the State of Colorado.




     4.6 Headings. The captions or headings in this Fifth Amendment are for convenience only and
in no way define, limit or describe the scope or intent of any provision of this Fifth Amendment.




     4.7 Counterparts. This Fifth Amendment may be executed by the parties hereto in separate
counterparts, each of which, when so executed and delivered, shall be an original, but all such
counterparts shall together constitute one and the same instrument. Each counterpart may consist
of a number of copies hereof, each signed by less than all, but together signed by all, of the
parties hereto. Copies of documents or signature pages bearing original signatures, and executed
documents or signature pages delivered by a party by telefax, facsimile, or e-mail transmission of
an Adobe® file



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format document (also known as a PDF file) shall, in each such instance, be deemed to be, and
shall constitute and be treated as, an original signed document or counterpart, as applicable. Any
party delivering an executed counterpart of this Fifth Amendment by telefax, facsimile, or e-mail
transmission of an Adobe® file format document also shall deliver an original executed counterpart
of this Fifth Amendment, but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Fifth Amendment.



[Signatures to follow on next page.]




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     IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be executed as of
the Effective Date.



	 	 	 	 	 
	     ADMINISTRATIVE AGENT:   	CoBank, ACB

 	 
	 	By:  	/s/ Michael Tousignant	 
	 	 	Name:  	Michael Tousignant 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	     BORROWER:              	National Cooperative Refinery Association

 	 
	 	By:  	/s/ John G. Buehrle	 
	 	 	Name:  	John G. Buehrle 	 
	 	 	Title:  	CFO 	 
	 



	 	 	 	 	 
	     SYNDICATION PARTIES:   	CoBank, ACB

 	 
	 	By:  	/s/ Michael Tousignant	 
	 	 	Name:  	Michael Tousignant 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	U.S. AgBank, FCB

 	 
	 	By:  	/s/ Travis W. Ball	 
	 	 	Name:  	Travis W. Ball 	 
	 	 	Title:  	Vice President 	 
	 




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