Exhibit 10.23


 


FIFTH AMENDMENT


TO AMENDED AND RESTATED LOAN
AGREEMENT


 


This Fifth Amendment to Amended and Restated Loan
Agreement (“Amendment”) is made as of July 23,
2008, by and among AMERICAN CRYSTAL SUGAR COMPANY, a  Minnesota
cooperative 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 and
Restated Loan Agreement made as of the 31st day of July, 2006 (as
amended, modified, supplemented, renewed or restated from time to time, the “Agreement”). 
Capitalized terms that are not defined in this Amendment shall have the
meanings assigned to them in the Agreement. 
The Borrower and the Lender desire to amend certain provisions of the
Agreement as more fully set forth in this Amendment.


 


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


 


1.             Defined
Terms.


 


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


 


“Commitments”: The Revolving Loan and the Term
Loans.


 


“Loans”: 
The Revolving Loan (sometimes referred to informally by the parties as
T07), 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, agreements
evidencing the Existing Term Loan T03NP, and the Security Documents.


 


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


 


“Revolving Loan Amount”:  An amount which shall not at any time be
greater than Three Hundred Forty Five Million Dollars ($345,000,000), as
determined from time to time according to the terms of the Loan Agreement, or
such lesser amount 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 receipt of such written notice.


 

















 


“Term Letter of Credit”:  Any Term T06 Letter of Credit or any Term T04
Letter 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 Loan
T04, or Term Loan T06 (collectively, the “Term Loans”).


 


“Term Loan T01 Amount”:  An amount which shall not at any time be
greater than (i) Forty-Eight Million Seven Hundred Seven Thousand Four
Hundred Two Dollars ($48,707,402) through December 30, 2008, (ii) Forty-One
Million 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 Seven
Hundred Seven Thousand Four Hundred Two Dollars ($48,707,402) for the period
from December 31, 2008 through December 30, 2009, (iii) Thirty-One
Million Seven Hundred Seven Thousand Four Hundred Two Dollars ($31,707,402) for
the period from December 31, 2009 through December 30, 2010, (iv) Fifteen
Million 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) Zero
Dollars ($0) at December 31, 2011.


 


“Term Loan T06 Amount”:  An amount which shall not at any time be
greater than Sixty-Five Million Dollars ($65,000,000), as determined from time
to 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 pursuant
to Section 7.2 of the Loan Agreement, provided however, the “Termination
Date” with respect to Term Loan T04 shall be the Term Loan T04 Maturity Date,
unless earlier terminated pursuant to Section 7.2 of the Loan
Agreement.


 


“Term Loan
Availability Period”:  The period
beginning on the Closing Date and ending on August 1, 2010.


 


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


 


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


 


“Total Term
Outstandings”:  As of any date of
determination, the sum of (a) the 


 


2

















 


aggregate unpaid
principal balance of Term Loan T01, (b) the aggregate unpaid principal
balance of Term Loan T01NP, (c) the aggregate unpaid principal balance of Existing
Term Loan T03NP, (d) the aggregate unpaid principal balance of Term Loan
T04, (e) the aggregate unpaid principal balance of Term Loan T06, and (f) the
aggregate amount of Unpaid Drawings related to a Term Letter of Credit on such
date.


 


                “Unused Term Loan Amount”:  As of any date of determination, the amount
by which the Term Loan T01 Amount, plus the Term Loan T01NP Amount, plus the Existing
Term Loan T03NP Amount, plus the Term Loan T04 Amount, plus the Term Loan T06
exceeds the Total Term Outstandings.


 


The following terms set
forth in Section 1.1 of the Agreement shall be hereby deleted in
their entirety:


 


“Existing Loans”


 


“Existing Term
Loan T04”


 


“Term Letter of
Credit Commitment Amount”


 


Any remaining reference
in the Agreement made to “Existing Loans” shall be deemed to read “Existing
Term Loan T03NP.”


 


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


 


“Term Loan
T01NP Termination Date”:  December 31,
2008.


 


“Term T04
Letter of Credit”:  As defined in Section 2.1(e).


 


“Term T06
Letter of Credit”: An irrevocable letter of credit issued under Term Loan
T06 pursuant to this Agreement for the account of Borrower.


 


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


 


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


 


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


 


“Term Loan T04
Termination Date”:  April 30,
2013.


 


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


 


3

















 


3.             Reference to “Term Loan T01NP Availability Period” as it
appears in Section 2.1(c) shall be deleted (there being no
remaining availability under Term Loan T01NP).


 


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


 


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


 


(e)  Term
Loan T04.  Subject to the terms and
conditions hereof, the Lender agrees to make a non-revolving term facility
available to Borrower, jointly and severally, for the purpose of issuing
irrevocable letters of credit for the account of Borrower (each a “Term T04
Letter of Credit”), to issue Term T04 Letters of Credit which replace any
existing letters of credit previously issued under Term T04, to replace any
Term T04 Letters of Credit which are terminated with new Term T04 Letters of
Credit, and for no other purpose, provided that, the aggregate maximum amount
that is capable of being drawn under all outstanding Term T04 Letters of Credit
shall not at any time exceed the Term T04 Amount.  All Term T04 Letters of Credit shall be issued
pursuant to the terms of this Agreement and shall reduce the Term Loan T04
Amount by the maximum amount capable of being drawn under such Term T04 Letters
of Credit.  In the event of any
termination of any Term T04 Letters of Credit, the Term Loan T04 Amount shall
be restored by the maximum amount that was capable of being drawn under such
terminated Term T04 Letters of Credit.  Any
draw under a Term Loan T04 Letter of Credit shall be deemed a Term Loan Advance
pursuant 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) Term
Loan T01.  The unpaid principal of
Term Loan T01 shall be payable as follows: 
On December 31, 2008, a principal payment shall be due in an amount
equal 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 an
amount 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) of
the outstanding principal balance of Term Loan T01 as of the last day of the
Term Loan Availability Period, and any amount of principal or interest
remaining unpaid with respect to Term Loan T01 on the Term Loan Maturity Date
shall 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) Term
Loan T06.  The unpaid principal of
Term Loan T06 shall be payable as follows: 
On December 31, 2010, a principal payment shall be due in an amount
equal to 


 


4

















 


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


 


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


 


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


 


9.     Section 2.9 of the Loan
Agreement, Letters of Credit, shall be amended and restated to read in
full as follows:


 


Section 2.9 Letters
of Credit.  Upon the terms and
subject to the conditions of this Agreement, the Lender agrees to issue Letters
of Credit for the account of Borrower from time to time between the Closing
Date and thirty (30) days prior to the Termination Date in such amounts as the
Borrower shall request up to an aggregate amount at any time outstanding not
exceeding the Seasonal Letter of Credit Commitment Amount, the Term T06 Letter
of Credit Commitment Amount, or the Term Loan T04 Amount, as applicable; provided
that (i) the face amount of any Seasonal Letter of Credit shall
automatically reduce, dollar for dollar, the amount which Borrower may borrow
as Revolving Loan Advances, (ii) the face amount of any Term T06 Letter of
Credit shall automatically reduce, dollar for dollar, the amount which Borrower
may borrow as Term Loan T06 Advances; (iii) the face amount of any Term
T04 Letter of Credit shall automatically reduce, dollar for dollar, the
aggregate face amount of Letters of Credit which may be issued on behalf of
Borrower under Term Loan T04;  (iv) the
aggregate face amount of all issued and outstanding Seasonal Letters of Credit
shall not exceed $20,000,000; (v) the aggregate face amount of all issued
and outstanding Term T06 Letters of Credit shall not exceed $20,000,000; (vi) the
aggregate face amount of all issued and outstanding Term T04 Letters of Credit
shall not exceed the Term Loan T04 Amount; (vii) no Seasonal Letter of
Credit will be issued in any amount which, after giving effect to such
issuance, would cause Total Revolving Outstandings to exceed the Revolving Loan
Amount, and (viii) no Term T06 Letter of Credit will be issued in any
amount which, after giving effect to such issuance, would cause the aggregate
unpaid principal balance of Term Loan T06 and the aggregate amount of Unpaid
Drawings relating to a Term T06 Letter of Credit to exceed the Term Loan T06
Amount, and (ix) no Term T04 Letter of Credit will be issued in any amount
which, after giving effect to such issuance, would cause the aggregate unpaid
principal balance of Term Loan T04 and the aggregate amount of Unpaid Drawings
relating to a Term T04 Letter of Credit to exceed the Term Loan T04
Amount.  Each Letter of Credit request
shall set forth (i) the face amount and expiry date of such Letter of
Credit; (ii) the beneficiary of such Letter of 


 


5

















 


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


 


10.   Letters of Credit.  For avoidance of doubt, the parties agree
that the Letters of Credit described on Schedule 2.9, which is attached
hereto and incorporated herein by this reference, are all of the Letters of
Credit issued pursuant to the terms of the Agreement as of the date of this
Amendment.


 


11.   Annex I, Pricing Grid (setting
forth Margin Percentages and Percentages for computation of Letter of Credit
Fees and Commitment Fees), attached to the Agreement, is hereby deleted in its
entirety and replaced with Annex 1-A, which is attached hereto and
incorporated herein by this reference. 
Any reference to Annex I in the Agreement shall hereinafter be
deemed to refer to Annex I-A.


 


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


 


13.           This Amendment shall be an integral
part of the Agreement, and all of the terms set forth therein are hereby
incorporated in this Amendment by reference, and all terms of this Amendment are
hereby incorporated into said Agreement as if made an original part
thereof.  All of the terms and conditions
of the Agreement, which are not modified in this Amendment, shall remain in
full force and effect.  To the extent the
terms of this Amendment conflict with the terms of the Agreement, the terms of
this Amendment shall control.


 


14.           This Amendment may be executed in
several counterparts, each of which shall be construed together as one
original.  Facsimile signatures on this
Amendment shall be considered as original signatures.


 


[Signature
Page Follow]


 


6

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Fifth Amendment to Amended and Restated Loan
Agreement 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

  



 


 


{SIGNATURE
PAGE ONE OF ONE TO FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT}


 


7

















 


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


 


8





















 


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

  	
   

  



 


9