FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT
Parties:
|
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“CoBank”:
|
CoBank, ACB 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000 |
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“Borrower”:
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CHS Inc. 0000 Xxxxx Xxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxxxxxx 00000 |
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| “Syndication Parties”: The entities named below on the signature pages |
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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:
11.2.1 Annual 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:
12.6 Loans. 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:
12.7 Merger; 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 in Exhibit 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, on Exhibit 12.8(f) hereto; provided that the amount of such Investment shall not increase above the amount shown in Exhibit 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 Existing Exhibit 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”):
2.1 Representations 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.
2.2 Execution of Loan Documents. The Administrative Agent shall have received this First Amendment executed by Borrower and each of the Syndication Parties.
2.3 Payment 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.
2.4 No 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.
3.1 No Other Modifications. The Credit Agreement, as expressly modified herein, shall continue in full force and effect and be binding upon the parties thereto.
3.2 Successors 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.
3.3 Definitions. Capitalized terms used, but not defined, in this First Amendment shall have the meaning set forth in the Credit Agreement.
3.4 Severability. 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.
3.5 Governing 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.
3.6 Headings. 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.
3.7 Counterparts. 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]
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: Xxxx Xxxxxxx
Title: Executive Vice President and Chief Financial
Officer
SYNDICATION PARTIES:
CoBank, ACB
By:
Name: Xxxxxxx Xxxxxxxxxx
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: Xxxxxx Xxxxxxxx
Title: Managing Director
Bank of America, N.A.
By:
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Xxxxx Fargo Bank, National Association
By:
Name:
Title:
BNP Paribas
By:
Name: Xxxxxx Xxxxx
Title: Managing Director
Xxxxxx X. X.
By:
Name:
Title:
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank International” New York Branch
By:
Name:
Title:
Deere Credit, Inc.
By:
Name:
Title:
U.S. Bank National Association
By:
Name:
Title:
Natexis Banques Populaires
By:
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Fortis Capital Corp.
By:
Name:
Title:
The Bank of Nova Scotia
By:
Name:
Title:
Calyon New York Branch
By:
Name: Xxx X. Xxxxx
Title: Managing Director, Deputy Manager
National City Bank of Indiana
By:
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
M&I Xxxxxxxx & Xxxxxx Bank
By:
Name: Xxxx Xxxxx
Title: Vice President
Farm Credit Services of America, PCA
By:
Name: Xxxxxx X. Xxxxx
Title: Vice President
ING Capital LLC
By:
Name:
Title:
Comerica Bank
By:
Name: Xxxxxxx X’Xxxxxx
Title: Vice President
AgStar Financial Services, PCA
By:
Name: Xxxx Xxxxxxxx
Title: Vice President
HSH Nordbank AG New York Branch
By:
Name: Xxxxx Xxxxx Xxxxxxxx
Title: Senior Vice President
LaSalle Bank National Association
By:
Name: Xxxxxxx Xxxx
Title: Vice President
Société Générale
By:
Name: Xxxxxxx Xxxxxx
Title: Vice President
Wachovia Bank, National Association
By:
Name: Xxxxx Xxxxxx
Title: Vice President
AgFirst Farm Credit Bank
By:
Name: Xxxxx Xxxxxxx
Title: Vice President
U.S. AgBank
By:
Name: Xxxxxx X. Xxxx
Title: Vice President
Exhibit 12.8(f)
to Credit Agreement
EXISTING INVESTMENTS
(excluding Restricted Subsidiaries)
| Balance | Eliminations | Consolidated | ||||||||||
Ag Processing |
19,351,293 | 19,351,293 | ||||||||||
Xxxxxx Xxxxxxx 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 | ||||||||||
Xxxxx-Xxxxx 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 | ||||||||||
Xxxxxxx 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 | ||||||||||
Xxxxx/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 | ||||||||||
Xxxxxx Risk Funding Concepts, LLC |
1,713,228 | 1,713,228 | ||||||||||
Xxxxxxxx, 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
