EXHIBIT 10.3
SYNDICATION ADOPTION AGREEMENT
This Syndication Adoption Agreement entered into this 22nd day of May,
2002 ("EFFECTIVE DATE") by and between CoBank, ACB, in its capacity as the
Administrative Agent under the Credit Agreement (as defined below) (in such
role, "ADMINISTRATIVE AGENT"), and each of the other parties signatory hereto
(each an "ADOPTING PARTY", and collectively, the "ADOPTING PARTIES").
RECITALS
A. Pursuant to the Credit Agreement (Revolving Loan) by and between
Administrative Agent, St. Paul Bank for Cooperatives, the Syndication Parties
named therein, and Cenex Harvest States Cooperatives ("BORROWER"), dated June 1,
1998, and amended by the First Amendment to Credit Agreement (Revolving Loan)
effective as of May 28, 1999, the Second Amendment to Credit Agreement
(Revolving Loan) dated May 23, 2000, the Third Amendment to Credit Agreement
(Revolving Loan) dated May 22, 2001, and the Fourth Amendment to Credit
Agreement (Revolving Loan) dated May 22, 2002 (as amended, and as it may be
amended in the future, the "CREDIT AGREEMENT"), the Syndication Parties thereto
have agreed to provide, limited to their respective Individual Commitments and
Pro Rata Shares, financing to Borrower in the maximum aggregate amount of
$550,000,000.00 through the 364-Day Facility and $200,000,000.00 through the
5-Year Facility, to be used for the purposes set forth in the Credit Agreement.
B. The Adopting Parties wish to become Syndication Parties under the
Credit Agreement with respect to the Individual 364-Day Commitment amounts set
forth beneath their signatures on this Syndication Adoption Agreement
("SYNDICATION INTEREST").
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which the parties hereto hereby acknowledge, and each to induce the others to
enter into this Syndication Adoption Agreement ("AGREEMENT"), the parties hereto
hereby agree as follows:
DEFINITIONS
Capitalized terms used herein without definition shall have the meaning
given them in the Credit Agreement, if defined therein.
1. ACQUISITION OF SYNDICATION INTEREST.
1.1. Each Adopting Party agrees to, as of the Effective Date, and at
all times thereafter, comply with all of the obligations of a Syndication Party
holding an Individual 364-Day Commitment in the amount shown beneath its
signature below, as such obligations are set forth in the Credit Agreement.
2. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS.
2.1. Each Adopting Party represents and warrants that: (a) the making
and performance of this Agreement including its agreement to be bound by the
Credit Agreement is within its power and has been duly authorized by all
necessary corporate and other action by it; (b) entering into this Agreement and
performance of its obligations hereunder and under the Credit Agreement will not
conflict with nor constitute a breach of its charter or by-laws nor any
agreements by which it is bound, and will not violate any judgment, decree or
governmental or administrative order, rule, law, or regulation applicable to it;
(c) no approval, authorization or other action by, or declaration to or filing
with, any governmental or administrative authority or any other Person is
required to be obtained or made by it in connection with the execution, delivery
and performance of its duties under this Agreement and the Credit Agreement; (d)
this Agreement has been duly executed by it, and, this Agreement and the Credit
Agreement, constitute its legal, valid, and binding obligation, enforceable in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the rights of creditors generally and general equitable
principles (regardless of whether such enforceability is considered in a
proceeding at law or in equity); and (e) the act of entering into and performing
its obligations under this Agreement and the Credit Agreement have been approved
by its credit committee at an authorized meeting thereof (or by written consent
in lieu of a meeting) and such action was duly noted in the written minutes of
such meeting, and it will, if requested by Administrative Agent, furnish
Administrative Agent with a certified copy of such minutes or an excerpt
therefrom reflecting such approval.
2.2. Each Adopting Party further represents that under the applicable
law in effect as of the date hereof, it is entitled to receive any payments to
be made to it under the Credit Agreement without the withholding of any tax and
will furnish to Administrative Agent and to Borrower such forms, certifications,
statements and other documents as Administrative Agent or Borrower may request
from time to time to evidence such Adopting Party's exemption from the
withholding of any tax imposed by any jurisdiction or to enable Administrative
Agent or Borrower, as the case may be, to comply with any applicable laws or
regulations relating thereto. Without limiting the effect of the foregoing, if
such Adopting Party is not created or organized under the laws of the United
States of America or any state thereof, such Adopting Party will furnish to
Administrative Agent and Borrower IRS Form 4224 or Form 1001, or such other
forms, certifications, statements or documents, duly executed and completed by
Adopting Party, as evidence of such Adopting Party's exemption from the
withholding of United States tax with respect thereto. Notwithstanding anything
herein to the contrary, Borrower shall not be obligated to make any payments to
or for the benefit of Adopting Party until Adopting Party shall have furnished
to Administrative Agent and Borrower the requested form, certification,
statement or document.
2.3. Each Adopting Party acknowledges receipt of true and correct
copies of all Loan Documents and agrees and represents that: (a) it has relied
upon its independent review of (i) the Loan Documents, and (ii) any information
independently acquired by it from Borrower or otherwise in making its decision
to acquire an interest in the Loan independently and without reliance on any
Syndication Party or Administrative Agent; (b) it has obtained such information
as it deems necessary (including any information it independently obtained from
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Borrower or others) prior to making its decision to acquire the Syndication
Interest; (c) it has made its own independent analysis and appraisal of and
investigation into Borrower's authority, business, operations, financial and
other condition, creditworthiness, and ability to perform its obligations under
the Loan Documents and has relied on such review in making its decision to
acquire the Syndication Interest, and will continue to rely solely upon its
independent review of the facts and circumstances related to Borrower, and
without reliance upon any Syndication Party or Administrative Agent, in making
future decisions with respect to all matters under or in connection with the
Loan Documents and its participation in the Loan as a Syndication Party.
2.4. Each Adopting Party acknowledges and agrees that: (a) neither
Administrative Agent nor any Syndication Agent nor any Syndication Party has
made any representation or warranty, except as expressly stated in this
Agreement or the Credit Agreement, nor do they assume any responsibility with
respect to the due execution, validity, sufficiency, enforceability or
collectibility of the Loan, the Loan Documents or the Notes or with respect to
the accuracy and completeness of matters disclosed, represented or warranted in
the Loan Documents by Borrower (including financial matters); (b) neither
Administrative Agent nor any Syndication Party assumes any responsibility for
the financial condition of Borrower or for the performance of Borrower's
obligations under the Loan Documents; (c) except as otherwise expressly provided
in this Agreement or the Credit Agreement, neither any Syndication Agent nor the
Administrative Agent nor any other Syndication Party shall have any duty or
responsibility to furnish to any other Syndication Parties any credit or other
information concerning Borrower which may come into its or their possession.
2.5. Each Adopting Party: (a) represents that it has acquired and is
retaining the Syndication Interest it is acquiring in the Loan for its own
account in the ordinary course of its banking or financing business; (b) agrees
that it will not sell, assign, convey or otherwise dispose of ("TRANSFER"), or
create or permit to exist any lien or security interest on, all or any part of
its Syndication Interest in the Loan without compliance with all of the terms
and conditions of the Credit Agreement, including Section 16.27 thereof.
2.6. Each Adopting Party:
2.6.1 Irrevocably consents and submits to the non-exclusive
jurisdiction of the courts of the State of Colorado and the
United States District Court for the District of Colorado and
waives any objection based on venue or forum non conveniens
with respect to any action instituted therein arising under
this Agreement or the Credit Agreement or in any way connected
with or related or incidental to the dealings of the parties
hereto in respect of this Agreement or the Credit Agreement or
the transactions related hereto, in each case whether now
existing or hereafter arising, and whether in contract, tort,
equity or otherwise, and agrees that any dispute with respect
to any such matters shall be heard only in the courts
described above.
2.6.2 Agrees that, with respect to litigation concerning this
Agreement or the Credit Agreement within the jurisdiction of
the courts of the State of Colorado or the United States
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District Court for the District of Colorado: (a) in the event
it shall not maintain a duly appointed agent for service of
summons in Colorado, it hereby waives personal service of any
and all process upon it and consents that all such service or
process may be made by certified mail (return receipt
requested) directed to its address set forth in Section 17.4
of the Credit Agreement (as provided herein) and service so
made shall be deemed to be completed five (5) days after the
same shall have been so deposited in the U.S. mails, or, at
the option of the party making such service, by service in any
other manner provided under the rules of any such courts; and
(b) within thirty (30) days after such service, Adopting Party
shall appear in answer to such process, failing which it shall
be deemed in default and judgment may be entered against it
for the amount of the claim and other relief requested.
2.6.3 HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS
AGREEMENT OR THE CREDIT AGREEMENT OR (b) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO IN RESPECT OF THIS AGREEMENT OR THE CREDIT AGREEMENT OR
THE TRANSACTIONS RELATED THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. EACH ADOPTING PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT
ADMINISTRATIVE AGENT OR ANY SYNDICATION PARTY MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ADOPTING PARTY TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
3. GENERAL.
3.1. Each Adopting Party's address for notice under Section 17.4 of the
Credit Agreement shall be as set forth beneath its signature below as "Contact
Name".
IN WITNESS HEREOF, the parties hereto have caused this Syndication
Adoption Agreement to be executed as of the Effective Date by their duly
authorized representatives.
Administrative Agent (as
Administrative Agent):
COBANK, ACB
By
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Name:
Title: Vice President
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ADOPTING PARTY:
NATIONAL CITY BANK OF INDIANA
By
------------------------------
Name:
Title:
Contact Name:
Title:
Address:
Phone No.:
Fax No.:
Individual 364-Day Commitment: $13,000,000.00
Individual 5-Year Commitment: $0.00
Payment Instructions:
Bank _____
ABA -
Acct. Name:
Attention:
Ref: Cenex Harvest States Cooperatives
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ADOPTING PARTY:
DEERE CREDIT, INC.
By
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Name: Jack W. Harris
Title: Manager Credit
Operations/Administration
Contact Name: Jack W. Harris
Title: Manager Credit
Operations/Administration
Address: 6400 NW 86th Street
P.O. Box 6650-Dept 140
Johnston, IA 50131-6650
Phone No.: 515/267-4349
Fax No.: 515/267-4020
Individual 364-Day Commitment: $38,000,000.00
Individual 5-Year Commitment: $0.00
Payment Instructions:
Bank: Bank One
Bank Address: Chicago, IL
ABA - 071000013
Acct. Name: Deere Credit Services
Account Number - 51-52135
Ref: Cenex Harvest States Cooperatives
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ADOPTING PARTY:
HARRIS TRUST AND SAVINGS BANK
By
------------------------------
Name:
Title:
Contact Name: Robert H. Wolohan
Title: Vice President
Address: 111 W. Monroe Street
20th Floor West
Chicago, IL 60603
Phone No.: 312/461-6049
Fax No.: 312/293-4280
Individual 364-Day Commitment: $29,000,000.00
Individual 5-Year Commitment: $0.00
Payment Instructions:
Bank: Harris Trust and Savings Bank,
Chicago, IL
ABA#: 071000288
Credit Account #1092154 Credit Services
Notify: Robert Nelson 461-3118
Ref: Cenex Harvest States Cooperatives
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BORROWER'S CONSENT
Borrower hereby signifies its consent to acquisition of Individual
364-Day Commitment by each Adopting Party as described above.
CENEX HARVEST STATES COOPERATIVES
By
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Name John Schmitz
Title Chief Financial Officer
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