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 is
by and between AMERICAN CRYSTAL SUGAR COMPANY, a Minnesota cooperative
corporation (“Borrower”), and CoBANK, ACB (“Lender”), and amends that certain Amended
and Restated Loan Agreement dated July 31, 2006, as amended from time to time
(the “Loan Agreement”). All capitalized terms not defined herein shall have the
meanings set forth in the Loan Agreement.


 


RECITALS


 


The
parties have agreed to modify certain terms and provisions of the Loan
Agreement as more fully set forth in this Fourth Amendment.


 


NOW,
THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party, the parties agree to amend the Loan Agreement in
the following respects:


 


1.                                       Defined
Terms.


 


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


 


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


 


“Revolving Loan Amount”:  An amount which shall not at any time be
greater than Three Hundred Sixty Million Dollars ($360,000,000), 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
Commitment Amount”:  Twenty Million
Dollars ($20,000,000).


 


“Term Loan
Availability Period”:  The period beginning
on the Closing Date and ending on August 1, 2009.


 

















 


“Term Loan T01 Amount”:  An amount which shall not at any time be
greater than (i) Fifty-Eight Million Two Hundred Seventy-Six Thousand Seven
Hundred Two Dollars ($58,276,702) through December 31, 2007, (ii) Forty-Eight
Million Seven Hundred Seven Thousand Four Hundred Two Dollars ($48,707,402)
effective as of January 1, 2008 through December 31, 2008; or (iii) Forty-One
Million 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 to
the terms of the Loan Agreement.


 


“Term Loan T01NP
Amount”:  An amount which shall not
at any time be greater than (i) Seventeen Million Six Hundred Seventy-Five Thousand
Nine Hundred Dollars ($17,675,900) through December 31, 2007, or (ii) Ten
Million Two Hundred Forty-Five Thousand Two Hundred Dollars ($10,245,200)
effective as of January 1, 2008, as determined from time to time according to
the terms of the Loan Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


2.                                       Section
2.1(c) of the Loan Agreement, Term Loan T01NP, shall be amended in
the following respect:  As of the date of
this Fourth Amendment, no further Advances will be made 


 


2

















 


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


 


3.                                       A
new subsection (e) shall be added to Section 2.1 of the Loan Agreement
as follows:


 


(e)                                  Term
Loan T04. The Lender has previously extended to the Borrower Term Loan T04
pursuant to that certain Non-Revolving Credit Supplement dated as of December
12, 2005, and numbered Z269T04B, in the original principal amount of
$36,000,000, which has an unpaid principal balance of $36,000,000, and a
maturity date of April 30, 2013. Term Loan T04 is subject to all of the terms
and conditions of the Loan Agreement, except to the extent any provision of the
Loan Agreement is in conflict with any provision of the Non-Revolving Credit
Supplement, in which event the applicable Non-Revolving Credit Supplement shall
control 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 the
purpose of transferring Borrower’s Obligations under all outstanding Term
Letters of Credit issued under Term Loan T06 to Term Loan T04, and for the
purpose of issuing additional Term Letters of Credit from time to time in
accordance with the Loan Agreement.


 


4.                                       A
new subsection (f) shall be added to Section 2.1 of the Loan Agreement as
follows:


 


(f)                                    Increase
in Loans. At any time prior to the Termination Date, the Borrower may
request 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 the
Borrower not less than twenty (20) Banking Days prior to the proposed effective
date of such increase, which notice (a “Loan Increase Notice”) shall specify
the amount of the proposed increase in the Loan and the proposed effective date
of 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 Loan
Increase Notice. The Lender shall notify the Borrower on or before the Banking
Day immediately prior to the proposed effective date to confirm the amount of
the increase in a Loan. Any increase in a Loan shall be subject to the
following conditions precedent:  (i) as
of the date of the Loan Increase Notice and as of the proposed effective date
of the increase in the Loan, all representations and warranties of the Borrower
in the Loan Agreement shall be true and correct in all material respects as
though made on such date and no event shall have occurred and then be
continuing which constitutes a Default or an Event of Default; (ii) the Borrower
and the Lender shall have executed a Commitment and Acceptance (“Commitment and
Acceptance”) substantially in the form of Exhibit F hereto; and (iii)
the Borrower and the Lender shall otherwise have executed and delivered such
other instruments and documents as may be required hereunder or that the Lender
shall have reasonably requested in connection with such increase. In the event
any provision of a Commitment and Acceptance shall be inconsistent with any
provisions of the Loan Agreement, the Loan Agreement shall govern. Upon
satisfaction of the conditions precedent to any increase in a Loan, the Lender
shall promptly advise the Borrower of 


 


3

















 


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


 


5.                                       Section
2.2 of the Loan Agreement, Existing Loans, shall be amended in the
following respect:  All references in Section
2.2 to “Term Loan T04” shall be deleted, it being understood and agreed
that 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 shall
continue in full force and effect.


 


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 principal of Term Loan T01 shall be payable as follows:  On December 31, 2007, a principal payment
shall be due in the amount of $9,569,300; on December 31, 2008, a principal
installment shall be due in the amount of $6,754,800; on December 31, 2009, a
principal payment shall be due in an amount equal to one-third (1/3) of the
outstanding principal balance of Term Loan T01 as of the last day of the Term
Loan Availability Period; the remaining principal balance shall be payable in
two 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 Loan
T01 on the Term Loan Maturity Date shall be immediately due and payable on such
date.


 


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


 


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


 


8.                                       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, 2009, a
principal payment shall be due in an amount equal to one-third (1/3) of the
outstanding principal balance of Term Loan T06 as of the last day of the Term
Loan Availability Period; the remaining principal balance shall be payable in
two 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
Loan T06 on the Term Loan Maturity Date shall be immediately due and payable on
such 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 and
outstanding Term 


 


4

















 


Letters of Credit shall not exceed $20,000,000. The
remaining provisions of Section 2.9 shall continue in full force and
effect.


 


10.                                 Section
2.14(a) of the Loan Agreement, Loan Fees, shall be amended by adding
the following:


 


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


 


11.                                 Section
2.14(c) of the Loan Agreement, Letter of Credit Fees, shall be
amended by adding the following:


 


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


 


12.                                 Section
5.1(g) of the Loan Agreement shall be deleted, eliminating the requirement
to provide periodic financial statements of Crystech.


 


13.                                 Section
6.15, Net Working Capital, Section 6.16, Capitalization
Ratio, and Section 6.17, Interest Coverage Ratio, shall be
amended as follows:  For purposes of
calculating Net Working Capital, the Capitalization Ratio and the Interest
Coverage Ratio, amounts attributable to Crystech shall no longer be excluded.


 


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


 


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


 


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


 


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


 


5

















 


provisions of the Loan Agreement shall
continue in full force and effect, but to the extent the terms of this Fourth
Amendment conflict with the Loan Agreement, the terms of this Fourth Amendment
shall control.


 


IN WITNESS
WHEREOF, the parties have executed this Fourth Amendment to be effective as of
the 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

  	
   

  



 


6

















 


Exhibit A-5


 


Form of Term Note T04


 


Attached


 

















 


TERM NOTE T04


 


	
  $61,000,000.00

  	
   

  	
  July 25, 2007

  
	
   

  	
   

  	
  Denver,
  Colorado

  



 


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


 


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


 


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


 


Should any Event of Default occur as provided for in
the Loan Agreement, all principal and interest outstanding hereunder may be
declared immediately due and payable in accordance with the Loan Agreement. The
Borrower and all guarantors and endorsers, for themselves, their legal
representatives, successors and assigns, hereby severally waive presentment for
payment, protest and demand, notice of protest, demand and dishonor and
nonpayment of this note, and consent that the holder may extend the time of
payment or otherwise modify the terms of payment of any part or the whole of
the indebtedness evidenced by this note, and such consent shall not alter or
diminish the liability of the Borrower or said guarantors or endorsers. The
undersigned agrees to pay all costs and expenses of collection, including
reasonable attorney’s fees.


 


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


 


THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS
NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF COLORADO WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.


 

















 


THE UNDERSIGNED AND THE HOLDER (BY ITS
ACCEPTANCE HEREOF) IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY,

  
	
   

  	
  a Minnesota
  cooperative corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Samuel
  S.M. Wai

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Treasurer

  	
   

  



 


2

















 


Exhibit D-1


 


Form of Compliance Certificate


 


Attached


 

















 


CoBANK, ACB


 


COMPLIANCE CERTIFICATE – CERTIFIED INTERIM FINANCIALS


 


This certificate is being furnished to
CoBANK, ACB (“CoBank”) to induce CoBank to make and/or continue to make
advances to the Company and to comply with and demonstrate compliance with the
terms, covenants, and conditions of the Company’s Master Loan Agreement and all
Promissory Note and Supplements thereto. The undersigned hereby certifies that:
(i) this certificate was prepared from the books and records of the Company, is
in agreement with them, and is correct to the best of the undersigned's
knowledge and belief;  (ii) no “Event of
Default” (as defined in the Master Loan Agreement) or event which, with the
giving of notice and/or the passage of time and/or the occurrence of any other
condition, 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 financial
statement(s) dated as of                                          
, to the best of the undersigned’s 
knowledge, the attached financial statement(s) are accurate and complete
for the period reflected.


 


This certificate is attached to and made a
part of the Company’s interim financial statements for the reporting period
ending                 .


 


	
   

  	
   

  	
  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.

  



 

















 


	
   

  	
   

  	
  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 a
consolidated basis in accordance with Section 10 of the Master Loan Agreement
(which excludes the financial results of ProGold from such calculations and
ratios).


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  (“Company”)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
    Authorized
  Signature

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
    Title

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
    Date

  



 

















 


Exhibit F


 


Commitment and Acceptance


 


To be provided