Exhibit 10.33


 


EXECUTION
COPY




 


 





 


 


American
Crystal Sugar Company


 


 












 


 


First
Amendment


 


Dated as of November 26,
2003


To


 


Note
Purchase Agreement


 


Dated
January 15, 2003


 


 












 


 


Re:          $20,000,000
4.78% Senior Secured Guaranteed Notes, due February 1, 2010


 




 





 

















 


First
Amendment to Note Purchase Agreement


 


This First
Amendment dated as of November 26, 2003 (“First Amendment”) to the
Note Purchase Agreement dated as of January 15, 2003, is among American Crystal
Sugar Company, a Minnesota cooperative corporation (“Company”), Sidney Sugars
Incorporated, a Minnesota corporation (the “Guarantor”) and the Purchasers who are
party to the 2003 Note Agreement (collectively, the “2003 Noteholders”).


 


RECITALS:


 


A.            The Company and the
Noteholders have heretofore entered into those separate and several Note
Purchase Agreements each dated as of January 15, 2003 (collectively, the “2003  Note Agreement”).  The Company has heretofore issued the
$3,000,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010 bearing
PPN 02530# AD 3 (the “Note No. R-1”),
the $15,250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010
bearing PPN 02530# AD 3 (the “Note No. R-2”),
the $1,500,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010
bearing PPN 02530# AD 3 (the “Note No. R-3”)
and the $250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010
bearing PPN 02530# AD 3 (the “Note No. R-4”;
Note No. R-1,  Note No. R-2, Note
No. R-3 and Note No. R-4
are hereinafter  collectively
referred to as the “2003 Notes”) pursuant to the 2003 Note
Agreement.  The 2003 Noteholders are the
holders of 100% of the principal amount of the 2003 Notes presently
outstanding.  The Guarantor guaranteed the
payment and performance of the 2003 Notes and the 2003 Note Agreement by that
certain Guarantee Agreement dated as of January 15, 2003 (the “2003 Guarantee”).


 


B.            The Company and the
various Purchasers party thereto (the “1998
Noteholders”) have heretofore entered into those separate and
several Note Purchase Agreements each dated as of September 15, 1998 and as
amended by that certain First Amendment to Note Purchase Agreement dated
January 15, 2003 (collectively, the “1998
Note
Agreement”).  The Company has
heretofore issued its $12,500,000 7.32% Senior Secured Notes, Series A, Due
August 31, 2018 bearing PPN 02530# AA 9 (the “Series A Notes”), dated
September 24, 1998, its $15,000,000 7.37% Senior Secured Notes, Series B, Due
August 31, 2023 bearing PPN 02530# AB 7 (the “Series B Notes”), dated
September 24, 1998, and its $22,500,000 7.42% Senior Secured Notes, Series C,
Due August 31, 2028 bearing PPN 02530# AC 5, dated September 24, 1998, (the “Series C
Notes”; the Series A Notes, the Series B Notes, and the
Series C Notes are hereinafter collectively referred to as the “1998 Notes”)
pursuant to the 1998 Note Agreement. 
The Noteholders are the holders of 100% of the principal amount of the
1998 Notes presently outstanding.  The
Guarantor guaranteed the payment and performance of the 1998 Notes and the 1998
Note Agreement by that certain Guarantee Agreement dated as of January 15, 2003
(the “1998
Guarantee”, and together with the 2003 Guarantee, the “Guarantees”).


 


C.            This First Amendment
is executed in conjunction with the Second Amendment to the 1998 Note Purchase
Agreements (the “Second Amendment
to the 1998 Note Agreement”).


 

















 


D.            The Company has
requested the 2003 Noteholders and the 1998 Noteholders to amend and modify
various provisions in the 2003 Note Agreement and the 1998 Note Agreement as
set forth herein and the Second Amendment to the 1998 Note Agreement.


 


E.             All requirements of
law have been fully complied with and all other acts and things necessary to
make this First Amendment a valid, legal and binding instrument according to
its terms for the purposes herein expressed have been done or performed.


 


NOW, THEREFORE,
the Company and the 2003 Noteholders, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, do hereby agree as
follows:


 


SECTION 1            Definitions; References.  Unless otherwise specifically defined
herein, each term used herein which is defined in the 2003 Note Agreement shall
have the meaning assigned to such term in the 2003 Note Agreement.  Each reference to “hereof”, “hereunder”,
“herein” and “hereby” and each other similar reference and each reference to
“this Agreement” and each other similar reference contained in the 2003 Note
Agreement shall from and after the date hereof refer to the 2003 Note Agreement
as amended hereby.


 


SECTION 2            Amendments.


 


2.1           Section
11(k) of the 2003 Note Agreement shall be and hereby is amended and restated in
its entirety, as follows:


 


(i) any Plan shall
fail to satisfy the minimum funding standards of ERISA or the Code for any plan
year or part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or any ERISA
Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded
benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under
the Company’s Plan A and Plan B, or any other current or successor defined
benefit pension plans established by the Company, determined in accordance with
Title IV of ERISA, shall exceed an amount equal to 10% of Consolidated Net
Worth,  (iv) the Company or
any ERISA Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, (v) the Company or
any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company
or any Subsidiary establishes or amends any employee welfare benefit plan that
provides post-employment welfare benefits in a manner that would increase the
liability of the Company or any Subsidiary thereunder; and any such event or
events described in clauses (i) through (vi) above, either individually or
together with any other such event or events, could reasonably be expected to
have a Material Adverse Effect.


 

















 


2.11         The definitions of “Funded Debt” and “Subsidiary” contained in Schedule B to
the 2003 Note Agreement shall be and hereby are amended and restated in their
entirety as follows:


 


“Funded Debt”
means all Debt of any Person which would, in accordance with GAAP, constitute
long term Debt including, but not limited to: (a) any Debt with a maturity of
more than one year after the creation of such Debt; (b) any Debt outstanding
under a revolving credit or similar agreement providing for borrowings (and
renewals and extensions thereof) which pursuant to its terms would constitute
long term Debt in accordance with GAAP; (c) any Capital Lease obligation; (d)
any guarantee with respect to Funded Debt of another person; provided, however,
excluding any Debt (including current maturities thereof) which would, in
accordance with GAAP, constitute short term Debt, including any revolving
credit or similar agreements which have maturities of 365 days or less; and (e)
notwithstanding GAAP, the amount by which any “amount of unfunded benefit
liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all
Plans, determined in accordance with Title IV of ERISA, exceeds 10% of
Consolidated Net Worth.


 


“Subsidiary”
means, as to any Person, any corporation, association or other business entity
in which such Person or one or more of its Subsidiaries or such Person and one
or more of its Subsidiaries owns sufficient equity or voting interests to
enable it or them (as a group) ordinarily, in the absence of contingencies, to
elect a majority of the directors (or Persons performing similar functions) of
such entity, and any partnership or joint venture if more than a 50% interest
in the profits or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless such
partnership can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries) other than the
Excepted Affiliates so long as each such entity is not consolidated with the
Company in accordance with GAAP; provided, however, for purposes
of determining compliance with Sections
9.11, 9.12, 9.13, 10.4, 10.5 and 10.6, ProGold Limited Liability Company
shall not be considered a Subsidiary but shall be treated as a minority
investment consistent with the prior accounting treatment applied to such
investment in the Company’s 2002 audited financial statements, provided the
Company does not increase its ownership interest in Pro Gold Limited Liability
Company beyond 51%.  Unless the context
otherwise clearly requires, any reference to a “Subsidiary” is a reference to a
Subsidiary of the Company.


 


2.12         Schedule
B to the 2003 Note Agreement shall be and hereby is amended by adding the
following new defined terms in alphabetical order thereto:


 


“Plan A”
means the Retirement Plan A for the Employees of American Crystal Sugar Company
(2002 Restatement), which is the Company’s  defined
benefit retirement plan for non-union employees.


 

















 


“Plan B”
means the Retirement Plan B for the Employees of American Crystal Sugar Company
(2002 Restatement), which is Company’s  defined
benefit retirement plan for union employees.


 


SECTION 3            Representations and Warranties.


 


Each of the Company and the Guarantor hereby
collectively and severally represent and warrant to the 2003 Noteholders that
as of the date hereof:


 


(a)           Each of the Company and
the Guarantor has the power and authority and the legal right to execute,
deliver and perform this First Amendment and has taken all necessary corporate
action to authorize such execution, delivery and performance.


 


(b)           This
First Amendment has been duly executed and delivered on behalf of each of the
Company and the Guarantor and constitutes the legal, valid and binding
obligation of each, enforceable against each in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the rights of creditors generally
and the effect of equitable principles whether applied in an action at law or a
suit in equity.


 


(c)           The representations and
warranties of each of the Company and the Guarantor contained in the 2003 Note
Purchase Agreements, the Guarantees, the Security Documents and all related
documents are accurate and complete in all material respects as of the date
hereof.


 


(d)           As of the date hereof, there is no Default or Event of Default existing
under the 2003 Note Purchase Agreement or the Guarantees which has not been
waived.


 


SECTION 4            Miscellaneous.


 


(a)           The Company and the Guarantor hereby affirm
and agree that (a) nothing in this First Amendment shall in any way amend,
impair, invalidate or otherwise affect any of the obligations of the Company or
the Guarantor or the rights of the 2003 Noteholders under the 2003 Note
Purchase Agreements, the 2003 Notes, the Guarantees, the Security Documents, or
any other document or instrument made or given by the Issuer or the Guarantor
in connection therewith except to the extent expressly set forth herein, and
(b) the Collateral Agent, on behalf of the 2003 Noteholders, shall continue to
hold a perfected lien on the Collateral, subject only to encumbrances expressly
permitted by the Security Documents, and in accordance with the Amended and
Restated Intercreditor and Collateral Agency Agreement dated as of January 15,
2003.  Any and all notices,
requests, certificates and other instruments executed and delivered after the
execution and delivery of this First Amendment may refer to the Note Agreement
without making specific references to this First Amendment, but nevertheless
all such references shall include this First Amendment unless the context
otherwise requires.


 


(b)           The
descriptive headings of the various Sections or parts of this First Amendment
are for convenience only and shall not affect the meaning or construction of
any of the provisions hereof.


 

















 


(c)           This
First Amendment shall be construed and enforced in accordance with and the
rights of the parties shall be governed by the law of the State of New York
excluding choice of law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.


 


(d)           This First Amendment
may be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.


 


IN WITNESS WHEREOF, the parties hereto have caused
this First Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.


 


 


	
   

  	
   

  	
   

  	
   

  	
  American Crystal Sugar
  Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:  

  	
    /s/ Sam Wai

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Its: 

  	
  Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Sidney Sugars Incorporated

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:  

  	
    /s/ Sam Wai

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Its:

  	
  Treasurer

  	
   

  
											



 

















 


Accepted and Agreed:


 


 


	
   

  	
  John Hancock Life Insurance

  Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ David E.
  Johnson

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Authorized Signatory

  	
   

  
					



 

















 


Accepted and Agreed:


 


 


	
   

  	
  John Hancock Variable Life

  Insurance Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David E. Johnson

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its: 

  	
  Authorized Signatory

  	
   

  
					



 

















 


	
   

  	
  John Hancock Life Insurance

  Company of Vermont

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David E. Johnson

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Authorized Signatory

  	
   

  
					



 



















 





 


 


American
Crystal Sugar Company


 


 












 


 


Second
Amendment


 


Dated as of November 26,
2003


To


 


Note
Purchase Agreement


 


Dated
September 15, 1998


 


And
as Amended on January 15, 2003


 


 












 


Re:          $12,500,000
7.32% Senior Secured Notes, Series A, Due August 31, 2018


$15,000,000 7.37% Senior Secured Notes, Series B, Due
August 31, 2023


$22,500,000 7.42% Senior Secured Notes, Series C, Due
August 31, 2028




 


 





 

















 


Second
Amendment to Note Purchase Agreement


 


This Second
Amendment dated as of November 26, 2003 (“Second Amendment”) to the
Note Purchase Agreement dated as of September 15, 1998 and amended pursuant to
that First Amendment to the Note Purchase Agreement dated as of January 15,
2003, is among American Crystal Sugar Company, a Minnesota cooperative
corporation (“Company”), Sidney Sugars Incorporated, a Minnesota
corporation (the “Guarantor”) and the Purchasers who are party to the 1998
Note Agreement (collectively, the “1998 Noteholders”).


 


RECITALS:


 


A.            The Company and the
Purchasers have heretofore entered into those separate and several Note
Purchase Agreements each dated as of September 15, 1998 and as amended by that
certain First Amendment to Note Purchase Agreement dated January 15, 2003
(collectively, the “1998  Note
Agreement”).  The Company has
heretofore issued its $12,500,000 7.32% Senior Secured Notes, Series A, Due
August 31, 2018 bearing PPN 02530# AA 9 (the “Series A Notes”), dated
September 24, 1998, its $15,000,000 7.37% Senior Secured Notes, Series B, Due
August 31, 2023 bearing PPN 02530# AB 7 (the “Series B Notes”), dated
September 24, 1998, and its $22,500,000 7.42% Senior Secured Notes, Series C,
Due August 31, 2028 bearing PPN 02530# AC 5, dated September 24, 1998, (the “Series C
Notes”; the Series A Notes, the Series B Notes, and the
Series C Notes are hereinafter collectively referred to as the “1998 Notes”)
pursuant to the 1998 Note Agreement. 
The Noteholders are the holders of 100% of the principal amount of the
1998 Notes presently outstanding.    The
Guarantor guaranteed the payment and performance of the 1998 Notes and the 1998
Note Agreement by that certain Guarantee Agreement dated as of January 15, 2003
(the “1998 Guarantee”).


 


B.            The Company and the
Noteholders have heretofore entered into those separate and several Note
Purchase Agreements each dated as of January 15, 2003 (collectively, the “2003  Note Agreement”).  The Company has heretofore issued the
$3,000,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010 bearing
PPN 02530# AD 3 (the “Note No. R-1”),
the $15,250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010
bearing PPN 02530# AD 3 (the “Note No. R-2”),
the $1,500,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010
bearing PPN 02530# AD 3 (the “Note No. R-3”)
and the $250,000 4.78% Senior Secured Guaranteed Notes, Due February 1, 2010
bearing PPN 02530# AD 3 (the “Note No. R-4”;
Note No. R-1,  Note No. R-2, Note
No. R-3 and Note No. R-4
are hereinafter  collectively
referred to as the “2003 Notes”) pursuant to the 2003 Note
Agreement.  The 2003 Noteholders are the
holders of 100% of the principal amount of the 2003 Notes presently
outstanding.  The Guarantor guaranteed
the payment and performance of the 2003 Notes and the 2003 Note Agreement by
that certain Guarantee Agreement dated as of January 15, 2003 (the “2003
Guarantee”, and together with the 1998 Guarantee, the “Guarantees”).


 


C.            This Second Amendment
is executed in conjunction with the First Amendment to the 2003 Note Purchase
Agreements (the “First Amendment  to the 2003 Note Agreement”).


 

















 


D.            The Company has
requested the 1998 Noteholders and the 2003 Noteholders to amend and modify
various provisions in the 2003 Note Agreement and the 1998 Note Agreement as
set forth herein and the First Amendment to the 2003 Note Agreement.


 


E.             All requirements of
law have been fully complied with and all other acts and things necessary to
make this Second Amendment a valid, legal and binding instrument according to
its terms for the purposes herein expressed have been done or performed.


 


NOW, THEREFORE,
the Company and the 1998 Noteholders, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, do hereby agree as
follows:


 


SECTION 5            Definitions; References.  Unless otherwise specifically defined
herein, each term used herein which is defined in the 1998 Note Agreement shall
have the meaning assigned to such term in the 1998 Note Agreement.  Each reference to “hereof”, “hereunder”,
“herein” and “hereby” and each other similar reference and each reference to
“this Agreement” and each other similar reference contained in the 1998 Note
Agreement shall from and after the date hereof refer to the 1998 Note Agreement
as amended hereby.


 


SECTION 6            Amendments.


 


2.1           Section
11(k) of the 1998 Note Agreement shall be and hereby is amended and restated in
its entirety, as follows:


 


(i) any Plan shall
fail to satisfy the minimum funding standards of ERISA or the Code for any plan
year or part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is reasonably
expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or any ERISA
Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded
benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under
the Company’s Plan A and Plan B, or any other current or successor defined
benefit pension plans established by the Company, determined in accordance with
Title IV of ERISA, shall exceed an amount equal to 10% of Consolidated Net
Worth,  (iv) the Company or
any ERISA Affiliate shall have incurred or is reasonably expected to incur any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, (v) the Company or
any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company
or any Subsidiary establishes or amends any employee welfare benefit plan that
provides post-employment welfare benefits in a manner that would increase the
liability of the Company or any Subsidiary thereunder; and any such event or
events described in clauses (i) through (vi) above, either individually or
together with any other such event or events, could reasonably be expected to
have a Material Adverse Effect.


 


2

















 


2.11         The definitions of “Funded Debt” and “Subsidiary” contained in Schedule B to
the 1998 Note Agreement shall be and hereby are amended and restated in their
entirety as follows:


 


“Funded Debt”
means all Debt of any Person which would, in accordance with GAAP, constitute
long term Debt including, but not limited to: (a) any Debt with a maturity of
more than one year after the creation of such Debt; (b) any Debt outstanding
under a revolving credit or similar agreement providing for borrowings (and
renewals and extensions thereof) which pursuant to its terms would constitute
long term Debt in accordance with GAAP; (c) any Capital Lease obligation; (d)
any guarantee with respect to Funded Debt of another person; provided, however,
excluding any Debt (including current maturities thereof) which would, in
accordance with GAAP, constitute short term Debt, including any revolving
credit or similar agreements which have maturities of 365 days or less; and (e)
notwithstanding GAAP, the amount by which any “amount of unfunded benefit
liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all
Plans, determined in accordance with Title IV of ERISA, exceeds 10% of
Consolidated Net Worth.


 


“Subsidiary”
means, as to any Person, any corporation, association or other business entity
in which such Person or one or more of its Subsidiaries or such Person and one
or more of its Subsidiaries owns sufficient equity or voting interests to
enable it or them (as a group) ordinarily, in the absence of contingencies, to
elect a majority of the directors (or Persons performing similar functions) of
such entity, and any partnership or joint venture if more than a 50% interest
in the profits or capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries (unless such
partnership can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries) other than
the Excepted Affiliates so long as each such entity is not consolidated with
the Company in accordance with GAAP; provided, however, for
purposes of determining compliance with
Sections 9.11, 9.12, 9.13, 10.4, 10.5 and 10.6, ProGold Limited
Liability Company shall not be considered a Subsidiary but shall be treated as
a minority investment consistent with the prior accounting treatment applied to
such investment in the Company’s 2002 audited financial statements, provided
the Company does not increase its ownership interest in Pro Gold Limited
Liability Company beyond 51%.  Unless
the context otherwise clearly requires, any reference to a “Subsidiary” is a
reference to a Subsidiary of the Company.


 


2.12         Schedule
B to the 1998 Note Agreement shall be and hereby is amended by adding the
following new defined terms in alphabetical order thereto:


 


“Plan A”
means the Retirement Plan A for the Employees of American Crystal Sugar Company
(2002 Restatement), which is the Company’s  defined
benefit retirement plan for non-union employees.


 


3

















 


“Plan B”
means the Retirement Plan B for the Employees of American Crystal Sugar Company
(2002 Restatement), which is Company’s  defined
benefit retirement plan for union employees.


 


SECTION 7            Representations and Warranties.


 


Each of the Company and the Guarantor hereby
collectively and severally represent and warrant to the 1998 Noteholders that
as of the date hereof:


 


(a)           Each of the Company and
the Guarantor has the power and authority and the legal right to execute,
deliver and perform this Second Amendment and has taken all necessary corporate
action to authorize such execution, delivery and performance.


 


(b)           This
Second Amendment has been duly executed and delivered on behalf of each of the
Company and the Guarantor and constitutes the legal, valid and binding
obligation of each, enforceable against each in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the rights of creditors generally
and the effect of equitable principles whether applied in an action at law or a
suit in equity.


 


(c)           The representations and
warranties of each of the Company and the Guarantor contained in the 1998 Note
Purchase Agreements, the Guarantees, the Security Documents and all related
documents are accurate and complete in all material respects as of the date
hereof.


 


(d)           As of the date hereof, there is no Default or Event of Default existing
under the 1998 Note Purchase Agreement or the Guarantees which has not been
waived.


 


SECTION 8            Miscellaneous.


 


(a)           The Company and the Guarantor hereby affirm
and agree that (a) nothing in this First Amendment shall in any way amend,
impair, invalidate or otherwise affect any of the obligations of the Company or
the Guarantor or the rights of the 1998 Noteholders under the 1998 Note Purchase
Agreements, the 1998 Notes, the Guarantees, the Security Documents, or any
other document or instrument made or given by the Issuer or the Guarantor in
connection therewith except to the extent expressly set forth herein, and (b)
the Collateral Agent, on behalf of the 1998 Noteholders, shall continue to hold
a perfected lien on the Collateral, subject only to encumbrances expressly
permitted by the Security Documents, and in accordance with the Amended and
Restated Intercreditor and Collateral Agency Agreement dated as of January 15,
2003.  Any and all notices,
requests, certificates and other instruments executed and delivered after the
execution and delivery of this Second Amendment may refer to the Note Agreement
without making specific references to this Second Amendment, but nevertheless
all such references shall include this Second Amendment unless the context
otherwise requires.


 


(b)           The
descriptive headings of the various Sections or parts of this Second Amendment
are for convenience only and shall not affect the meaning or construction of
any of the provisions hereof.


 


4

















 


(c)           This
Second Amendment shall be construed and enforced in accordance with and the
rights of the parties shall be governed by the law of the State of New York
excluding choice of law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.


 


(d)           This Second Amendment
may be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Second Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.


 


 


	
   

  	
   

  	
   

  	
   

  	
  American Crystal Sugar
  Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By: 

  	
   /s/ Sam Wai

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Its: 

  	
  Treasurer

  	
   

  
								



 


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
  Sidney Sugars Incorporated

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By: 

  	
   /s/ Sam Wai

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Its: 

  	
  Treasurer

  	
   

  
									



 


5

















 


Accepted and Agreed:


 


 


	
   

  	
  John Hancock Life Insurance

  Company

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David E. Johnson

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its: 

  	
  Authorized Signatory

  	
   

  
					



 


6

















 


Accepted and Agreed:


 


	
   

  	
  John Hancock Variable Life

  Insurance Company

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David E. Johnson

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  Authorized Signatory

  	
   

  
					



 


7

















 


Accepted and Agreed:


 


 


	
   

  	
  The
  Paul Revere Life Insurance Company

  
	
   

  	
  By:

  	
  Provident Investment
  Management, LLC

  
	
   

  	
  Its:

  	
  Agent

  



 


 


	
   

  	
  By

  	
  /s/ Ben Vance

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its 

  	
  Asst. Vice President

  	
   

  
						



 


8