CoBank, ACB 5500 South Quebec Street Greenwood Village, Colorado 80111
“Borrower”:
CHS Inc. 5500 Cenex Drive Inver Grove Heights, Minnesota 55077
“Syndication Parties”: The entities named below on the signature pages
Execution Date:
May 8, 2007
Recitals:
A. CoBank, as Administrative Agent (in such capacity “Administrative Agent”) and as a Syndication Party, the Syndication Parties signatory thereto (collectively with any Persons who subsequently become Syndication Parties “Syndication Parties”), and Borrower, entered into that certain 2006 Amended and Restated Credit Agreement (Revolving Loan) dated as of May 18, 2006 (as amended, restated or replaced from time to time, the “Credit Agreement”), pursuant to which the Syndication Parties agreed to make certain loans to Borrower and to issue Letters of Credit for the account of Borrower (collectively “Facilities”) under the terms and conditions set forth in the Credit Agreement.
B. Borrower, Agent, and the present Syndication Parties now desire to amend the provisions of the Credit Agreement under the terms and conditions as set forth in this First Amendment to Credit Agreement (“First 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 Subsection 11.2.1 is hereby amended to read as set forth below:
11.2.1Annual Financial Statements. As soon as available, but in no event later than one hundred and twenty (120) days after the end of any Fiscal Year of Borrower occurring during the term hereof one copy of the audit report for such year and accompanying consolidated financial statements (including all footnotes thereto), including a consolidated balance sheet, a consolidated statement of earnings, a consolidated statement of capital, and a consolidated statement of cash flow for the Borrower and its Subsidiaries, showing in comparative form the figures for the previous Fiscal Year, all in reasonable detail, prepared in conformance with GAAP consistently applied and certified without qualification by PricewaterhouseCoopers, or other independent public accountants of nationally recognized standing selected by the Borrower and satisfactory to the Administrative Agent. Delivery to the Administrative Agent within the time period specified above of copies of Borrower’s Annual Report on Form 10-K as prepared and filed in accordance with the requirements of the Securities Exchange Commission shall be deemed to satisfy the requirements of this Subsection if accompanied by the required unqualified accountant’s certification. Such annual financial statements or Form 10-K’s required pursuant to this Subsection shall be accompanied by a Compliance Certificate signed by Borrower’s Chief Financial Officer or other officer of Borrower acceptable to the Administrative Agent.
1.2 Section 12.6 is amended to read as follows:
12.6Loans. Borrower shall not (nor shall it permit any of its Restricted Subsidiaries to) lend or advance money, credit, or property to any Person, except for: (a) loans to Restricted Subsidiaries; (b) trade credit extended in the ordinary course of business and advances against the purchase price for the purchase by Borrower of goods or services in the ordinary course of business; (c) the loan to NCRA advanced on February 28, 2005 and as evidenced by that certain loan agreement and that certain promissory note each dated October 1, 2004; and (d) other loans; provided that at all times the aggregate outstanding principal amount of all such loans retained by Borrower and any such Restricted Subsidiary shall not exceed $200,000,000.00.
1.3 Section 12.7 is amended to read as follows:
12.7Merger; Acquisitions; Business Form; Etc. Borrower shall not (nor shall it permit any of its Restricted Subsidiaries to) merge or consolidate with any entity, or acquire all or substantially all of the assets of any person or entity, or form or create any new Subsidiary (other than a Restricted Subsidiary formed by Borrower), acquire the controlling interest in any Person, change its business form from a cooperative corporation, or commence operations under any other name, organization, or entity, including any joint venture; provided, however,
(a) The foregoing shall not prevent any consolidation, acquisition, or merger if after giving effect thereto:
(i) The book value of the assets of Borrower and its Subsidiaries does not increase, due to any such merger, consolidation or acquisition, by an aggregate amount in excess of $500,000,000.00 during the term of this Agreement;
(ii) Borrower is the surviving entity; and
(iii) No Event of Default or Potential Default shall have occurred and be continuing.
(b) The foregoing shall not prevent Borrower from forming or creating any new Subsidiary provided:
(i) The Investment in such Subsidiary does not violate any provision of Section 12.8 hereof; and
(ii) Such Subsidiary shall not acquire all or substantially all of the assets of any Person except through an acquisition, consolidation, or merger satisfying the requirements of clause (a) of this Section.
(c) The foregoing shall not prevent Borrower from acquiring the controlling interest of any entity described inExhibit 12.8(f) hereto.
1.4 Paragraphs (f) and (k) of Section 12.8 are amended to read as follows:
(f) Investments in Persons, which are not Restricted Subsidiaries, identified, including the book value of each such Investment, onExhibit 12.8(f) hereto; provided that the amount of such Investment shall not increase above the amount shown inExhibit 12.8(f),except for Investments made pursuant to clauses (h) through (k) of this Section subsequent to May 8, 2007;
(k) Investments, in addition to those permitted by clauses (a) through (j) above, in an aggregate amount outstanding at any point in time not exceeding $350,000,000.00.
1.5 ExistingExhibit 12.8(f) is replaced by Exhibit 12.8(f) attached hereto.
2. Conditions to Effectiveness of this First Amendment.This First Amendment shall become effective on the date, not sooner than the Execution Date, on which Borrower has satisfied, to the Administrative Agent’s sole discretion, each of the following conditions precedent (“Effective Date”):
2.1Representations and Warranties. The representations and warranties of Borrower shall be true and correct in all material respects on and as of the Execution Date as though made on and as of such date.
2.2Execution of Loan Documents. The Administrative Agent shall have received this First Amendment executed by Borrower and each of the Syndication Parties.
2.3Payment of Fees and Expenses. Borrower shall have paid the Administrative Agent, by wire transfer of immediately available federal funds all fees required under the Credit Agreement, and all costs and expenses, including legal fees, incurred by the Administrative Agent in connection with the preparation, negotiation, and execution of this First Amendment and the other documents required in connection with this First Amendment.
2.4No Event of Default. No Event of Default shall have occurred and be continuing under the Credit Agreement as of the Execution Date of this First Amendment.
3. General Provisions.
3.1No Other Modifications. The Credit Agreement, as expressly modified herein, shall continue in full force and effect and be binding upon the parties thereto.
3.2Successors and Assigns. This First Amendment shall be binding upon and inure to the benefit of Borrower, the Administrative Agent, and the Syndication Parties, and their respective successors and assigns, except that Borrower may not assign or transfer its rights or obligations hereunder.
3.3Definitions. Capitalized terms used, but not defined, in this First Amendment shall have the meaning set forth in the Credit Agreement.
3.4Severability. Should any provision of this First Amendment be deemed unlawful or unenforceable, said provision shall be deemed several and apart from all other provisions of this First Amendment and all remaining provision of this First Amendment shall be fully enforceable.
3.5Governing Law. To the extent not governed by federal law, this First 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.
3.6Headings. The captions or headings in this First Amendment are for convenience only and in no way define, limit or describe the scope or intent of any provision of this First Amendment.
3.7Counterparts. This First 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 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 First Amendment by telefax, facsimile, or e-mail transmission of an Adobe® file format document also shall deliver an original executed counterpart of this First Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this First Amendment.
[SIGNATURES APPEAR ON THE NEXT PAGE]
1
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed as of the Effective Date.
ADMINISTRATIVE AGENT:
CoBank, ACB
By: Name: Title:
BORROWER:
CHS Inc. a cooperative corporation formed under the
laws of the State of Minnesota
By: Name: John Schmitz Title: Executive Vice President and Chief Financial Officer
SYNDICATION PARTIES:
CoBank, ACB
By: Name: Michael Tousignant Title: Vice President
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago
Branch
By: Name: Mr. Tsuguyuki Umene Title: Deputy General Manager
SunTrust Bank
By: Name: Michel Odermatt Title: Managing Director
Bank of America, N.A.
By: Name: Daniel R. Petrik Title: Senior Vice President
Wells Fargo Bank, National Association
By: Name: Title:
BNP Paribas
By: Name: Marcie Weiss Title: Managing Director
Harris N. A.
By: Name: Title:
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank International” New York Branch
By: Name: Title:
2
Deere Credit, Inc.
By: Name: Title:
U.S. Bank National Association
By: Name: Title:
Natexis Banques Populaires
By: Name: Stephen Jendras Title: Vice President
Fortis Capital Corp.
By: Name: Title:
The Bank of Nova Scotia
By: Name: Title:
Calyon New York Branch
By: Name: Lee E. Greve Title: Managing Director, Deputy Manager
National City Bank of Indiana
By: Name: Christopher A. Susott Title: Vice President
M&I Marshall & Ilsley Bank
By: Name: Gary Sloan Title: Vice President
Farm Credit Services of America, PCA
By: Name: Steven L. Moore Title: Vice President
ING Capital LLC
By: Name: Title:
Comerica Bank
By: Name: Timothy O’Rourke Title: Vice President
3
AgStar Financial Services, PCA
By: Name: Troy Mostaert Title: Vice President
HSH Nordbank AG New York Branch
By: Name: David Lopez Menendez Title: Senior Vice President
LaSalle Bank National Association
By: Name: Jeffery Ware Title: Vice President
Société Générale
By: Name: Milissa Goeden Title: Vice President
Wachovia Bank, National Association
By: Name: Clint Bryant Title: Vice President
AgFirst Farm Credit Bank
By: Name: Bruce Fortner Title: Vice President
U.S. AgBank
By: Name: Travis W. Ball Title: Vice President
4
Exhibit 12.8(f) to Credit Agreement EXISTING INVESTMENTS (excluding Restricted Subsidiaries)
Balance
Eliminations
Consolidated
Ag Processing
19,351,293
19,351,293
Archer Daniels Midland
1,598,271
1,598,271
CF Industries
62,257,909
62,257,909
Cenex Finance Association
1,621,564
1,621,564
Chicago Board of Trade
4,417,821
4,417,821
Clarkson Grain Co
600,000
600,000
Co Grain Inc
566,221
566,221
CoBank
11,714,091
11,714,091
Cooperative Finance Association
403,871
403,871
Intrade, NV
757,714
757,714
International Malting – Lesaffre
700,000
700,000
Land O’ Lakes, Inc.
37,719,728
37,719,728
Lewis-Clark Terminal, Inc
1,576,125
1,576,125
New York Mercintile Exchange
23,076,000
23,076,000
Universal Cooperatives, Inc.
6,988,036
6,988,036
Washington Biodiesel
1,400,000
1,400,000
Various: Transport Cooperatives
540,670
540,670
Electric & Telephone Coops
1,365,125
1,365,125
Other Cooperatives, Etc.
2,208,662
(7,800
)
2,200,862
Local Patron Coops
2,295,711
—
2,295,711
Other
842,015
842,015
INVESTMENTS IN COOPERATIVES & OTHER
182,000,828
(7,800
)
181,993,028
CONSOLIDATED INVESTMENTS
Country Operations Shell Subsidiaries
29,453,124
(29,453,124
)
—
Ag States Agency
20,106,283
(20,106,283
)
—
Ag States Agency – Goodwill
557,115
557,115
CHS IH
2,413,992
(2,413,992
)
—
CHS Calgary
8,049
(8,049
)
Cenex Ag, Inc.
773,962
(773,962
)
—
Cenex Petroleum, Inc.
(2,543,341
)
2,543,341
—
Circle Land Management, Inc.
1,462,431
(1,462,431
)
—
Cenex Pipeline Company
39,512,941
(39,512,941
)
—
Fin-Ag, Inc
150,000
(150,000
)
—
Front Range Pipeline Co
50,152,539
(50,152,539
)
—
HSC Brazil
1,250,000
(1,250,000
)
—
HSC Europe
16,200
(16,200
)
—
Horizon Milling Canada
15,554,761
(15,554,761
)
—
National Co-op Refinery Association (NCRA)
412,756,666
(412,756,666
)
—
Partnered Beverages
1,536,763
(1,536,763
)
—
Provista
2,255,979
(2,255,979
)
—
Provista Goodwill
1,714,866
1,714,866
Country Hedging, Inc
875,000
(875,000
)
—
Tillamook/GTA Feeds, LLC
750,179
(750,179
)
—
Plains Partner
2,970,747
(2,970,747
)
—
HSC/PGG Feed
1,021,068
(1,021,068
)
—
TOTAL CONSOLIDATED INVESTMENTS
582,749,325
(580,477,344
)
2,271,981
CORP, AGRONOMY, ENERGY, GRAIN MARKETING JV’S
CHS IH- MCIC Ag
924,799
924,799
CHS IH-Multigrain Ag
21,151,623
21,151,623
Cenex Canada
5,834
5,834
Green Bay Terminal Corp.
456,617
456,617
Tacoma Export Marketing Co, (Temco)
9,963,589
9,963,589
United Harvest, LLC
5,347,061
5,347,061
United Country Brands 50% (Agriliance LLC 25%)
110,295,187
110,295,187
United Country Brands Goodwill
26,740,000
26,740,000
CHS Holding – Canada
17,504,015
17,504,015
Whitman Terminal Assn, LLC
832,859
832,859
US BioEnergy
121,708,106
121,708,106
NCRA – Investments in LLC’s
4,983,367
(711,425
)
4,271,942
Investment in Nor-Lakes Services made 4/30/07
4,000,000
4,000,000
Investment in The Farm Oyl Company made 4/30/07
3,000,000
3,000,000
TOTAL CORP, AGRONOMY, ENERGY, GRN MKTG
326,913,056
(711,425
)
326,201,631
COUNTRY OPS & BUSINESS SOLUTIONS JOINT VENTURES
Allied Agronomy, LLC
380,250
380,250
Allied Agronomy Goodwill
(21,454
)
(21,454
)
Battle Creek/CHS, LLC
903,652
903,652
Central Montana Propane, LLC
452,366
452,366
CHS/ADM, LLC
1,480,682
1,480,682
Classic Farms, LLC
645,934
645,934
Cornerstone AG, LLC
2,758,783
2,758,783
Dakota Agronomy Partners
2,009,831
2,009,831
Energy Partners, LLC
3,338,065
3,338,065
Genetic Marketing Group, LLC
9,929
9,929
Kropf/CHS, LLC
1,344,203
1,344,203
Montevideo Grain, LLC
360,872
360,872
Mountain Country
339,935
339,935
Mountain View of Montana, LLC
1,585,050
1,585,050
Norick Risk Funding Concepts, LLC
1,713,228
1,713,228
Parshall, LLC
3,000,000
3,000,000
Prairie Lakes Grain Storage, LLC
71,973
71,973
Safety Resource Alliance, LLC
30,000
30,000
CoFina
39,439,339
39,439,339
TOTAL COUNTRY OPS & BUSINESS SOLUTIONS
59,842,638
—
59,842,638
WHEAT MILLING JOINT VENTURES
Horizon Milling, LLC
19,926,538
19,926,538
Horizon Milling, LLC Non-base Capital
5,528,205
5,528,205
Horizon Milling Contracts
7,127,494
7,127,494
Horizon Milling General Partnership
13,862,778
13,862,778
United Processors, LLC (Rocky Mountain Milling)
1,513,089
1,513,089
TOTAL WHEAT JV’S
47,958,104
—
47,958,104
FOODS JOINT VENTURES
Ventura Foods, LLC
123,208,000
123,208,000
Ventura Foods-Original Goodwill
3,838,696
3,838,696
Ventura Foods-Additional 10% Goodwill
12,864,429
12,864,429
TOTAL FOODS JOINT VENTURES
139,911,125
—
139,911,125
TOTAL INVESTMENTS
1,339,375,076
(581,196,569
)
758,178,507
NCRA Loan
112,500,000
112,500,000
TOTAL
1,451,875,076
(581,196,569
)
870,678,507
REVISED MAY, 2007
3693862_5.DOC
5
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