SEVENTH AMENDMENT TO CREDIT AGREEMENT (Term Loan)
EXHIBIT 10.14G
SEVENTH AMENDMENT
TO
TO
CREDIT AGREEMENT
(Term Loan)
(Term Loan)
This Seventh amendment to Credit Agreement (Term Loan) (“Amendment Agreement”) is made May 19,
2005, to be effective as of the Effective Date, by and among CHS Inc. (formerly known as Cenex
Harvest States Cooperatives), a Minnesota cooperative corporation (“Borrower”), CoBank, ACB
(“CoBank”) as the Administrative Agent for the benefit of the present and future Syndication
Parties (in that capacity “Administrative Agent”), and the Syndication Parties signatory hereto,
including CoBank in such capacity (each a “Syndication Party” and collectively, the “Syndication
Parties”).
RECITALS
A. Borrower, CoBank, St. Xxxx Bank for Cooperatives (“St. Xxxx Bank”), and the Syndication
Parties signatory thereto entered into a Credit Agreement (Term Loan) (as amended, the “Credit
Agreement”) dated as of June 1, 1998.
B. The Credit Agreement was amended by the First Amendment to Credit Agreement (Term Loan)
effective as of May 31, 1999 (“First Amendment”), by the Second Amendment to Credit Agreement (Term
Loan) effective as of May 23, 2000 (“Second Amendment”), by the Third Amendment to Credit Agreement
(Term Loan) dated as of May 23, 2001 (“Third Amendment”), by the Fourth Amendment to Credit
Agreement (Term Loan) dated as of May 22, 2002 (“Fourth Amendment”), by the Fifth Amendment to
Credit Agreement (Term Loan) dated as of May 21, 2003 (“Fifth Amendment”) , and by the Sixth
Amendment to Credit Agreement (Term Loan) dated as of May 20, 2004 (“Sixth Amendment”).
C. CoBank is the successor by merger to the interests and obligations of St. Xxxx Bank under
the Credit Agreement.
D. The parties hereto desire to amend the Credit Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, including the mutual promises and agreements contained herein, the parties hereto
hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall have the definition
given to them in the Credit Agreement if defined therein.
2. Amendments to Credit Agreement. The parties hereto agree that the Credit Agreement
shall be amended as follows as of the Effective Date:
2.1 The following Sections in Article 1 are amended in their entirety to read as follows:
1.25 Consolidated Cash Flow: for any period, the sum of (a) earnings before income taxes of
Borrower and its Consolidated Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP; plus (b) amounts that have been deducted in the determination of such
earnings before income taxes for such period for (i) Consolidated Interest Expense for such period,
(ii) Depreciation for such period, (iii) Amortization for such period, and (iv) extraordinary
and/or one-time non-cash losses for such period; minus (c) the amounts that have been included in
the determination of such earnings before income taxes for such period for (i) extraordinary gains,
(ii) extraordinary and/or one-time income, (iii) non-cash patronage income, and (iv) non-cash
equity earnings in joint ventures.
1.28 Consolidated Funded Debt: all indebtedness for borrowed money of Borrower and its
Consolidated Subsidiaries, that is classified as long term debt in accordance with GAAP, and shall
include Debt of such maturity created or assumed by Borrower or any Consolidated Subsidiary either
directly or indirectly, including obligations of such maturity secured by liens upon property of
Borrower or its Consolidated Subsidiaries and upon which such entity customarily pays the interest,
and all rental payments under capitalized leases of such maturity.
1.39 Environmental Laws: any federal, state, or local law, statute, ordinance, rule,
regulation, administration order, or permit now in effect or hereinafter enacted, pertaining to the
public health, safety, industrial hygiene, or the environmental conditions on, under or about any
of the real property interests of a Person, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and
Recovery Act of 1976, the Clean Air Act, the Federal Water Pollution Control Act, the Superfund
Amendments and Reauthorization Act of 1986, the Federal Toxic Substances Control Act and the
Occupational Safety and Health Act, as any of the same may be amended, modified or supplemented
from time to time.
1.94 Revolving Loan Credit Agreement: means that certain 2005 Amended and Restated Credit
Agreement (Revolving Loans) dated as of May 19, 2005 by and between Borrower , CoBank, as
administrative agent for all syndication parties thereunder, and as a syndication party thereunder,
and the other syndication parties set forth on the signature pages thereto, as it shall be amended
from time to time.
2.2 Subsection 9.15.1 is amended in its entirety to read as follows:
9.15.1 Working Capital. Borrower shall have at all times Consolidated Current Assets minus
Consolidated Current Liabilities of not less than $250,000,000.
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2.3 Sections 10.5 and 10.6, clauses (f), (i), and (j) of Section 10.8 (but no other portion of
Section 10.8), and Section 10.12 are amended in their entirety to read as follows:
10.5 Liabilities of Others. Borrower shall not (nor shall it permit any of its Restricted
Subsidiaries to) assume, guarantee, become liable as a surety, endorse, contingently agree to
purchase, or otherwise be or become liable, directly or indirectly (including, but not limited to,
by means of a maintenance agreement, an asset or stock purchase agreement, or any other agreement
designed to ensure any creditor against loss), for or on account of the obligation of any Person,
except (a) by the endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of the Borrower’s or any Restricted Subsidiary’s business, and
(b) guarantees made from time to time, whether in existence on the Closing Date or made subsequent
thereto, by Borrower and its Restricted Subsidiaries in the ordinary course of their respective
businesses with respect to the liabilities and obligations of Persons including National
Cooperative Refinery Association (“NCRA”); provided, however, that the aggregate amount of all
indebtedness guaranteed under this clause (b) shall not exceed $150,000,000.00 in the aggregate.
10.6 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; (d) loans made by Borrower
to its members on open account maintained by such members with Borrower or made by Borrower to its
members pursuant to its Affiliate Financing CoBank Participation Program; (e) loans made by Fin-Ag,
Inc. to agricultural producers; and (f) loans, in the amount of open account credit balances owing
by Borrower to its customers for goods purchased from such customers by Borrower, made to Cofina
Financial, LLC (a joint venture between Borrower and Cenex Finance Association); provided that at
all times the aggregate outstanding principal amount of all such loans retained by Borrower and
Fin-Ag, Inc. under clauses (d) and (e) of this Section shall not exceed $110,000,000.00.
10.8 Investments. Except for the purchase of Bank Equity Interests, Borrower shall not (nor
shall it permit any of its Restricted Subsidiaries to) own, purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital contribution to, or
otherwise make an Investment in, any Person, except that Borrower and the Restricted Subsidiaries
may own, purchase or acquire:
(f) Investments in Persons, which are not Restricted Subsidiaries, identified, including the
book value of each such Investment, on Exhibit 10.8(f) hereto; provided that the amount of
such Investment shall not increase above the amount shown in Exhibit 10.8(f),except for
Investments made pursuant to clauses (h) through (k) of this Section subsequent to the Closing
Date;
(i) Investments in NCRA in addition to (1) non-cash patronage dividends, and (2) those
Investments in NCRA by Borrower prior to the Closing Date, as shown, by amount and date, on
Exhibit 10.8(i) hereto, provided that the maximum amount of Investments in NCRA
subsequent to the Closing Date pursuant to this clause (i) shall not exceed $170,000,000.00;
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(j) Investments in Ventura Foods, LLC in addition to those Investments in Ventura Foods, LLC
by Borrower prior to the Closing Date, as shown, by amount and date, on Exhibit 10.8(j)
hereto, provided that the maximum amount of Investments in Ventura Foods, LLC subsequent to the
Closing Date pursuant to this clause (j) shall not exceed $80,000,000.00; and
10.12 ERISA. Borrower shall not: (a) engage in or permit any transaction which could result
in a “prohibited transaction” (as such term is defined in Section 406 of ERISA) or in the
imposition of an excise tax pursuant to Section 4975 of the Code with respect to any Borrower
Benefit Plan; (b) engage in or permit any transaction or other event which could result in a
“reportable event”( as such term is defined in Section 4043 of ERISA) for any Borrower Pension
Plan; (c) fail to make full payment when due of all amounts which, under the provisions of any
Borrower Benefit Plan, Borrower is required to pay as contributions thereto; (d) permit to exist
any “accumulated funding deficiency” (as such term is defined in Section 302 of ERISA) as of the
end of any Fiscal Year, in excess of five percent (5.0%) of net worth (determined in accordance
with GAAP) of Borrower and its Consolidated Subsidiaries, whether or not waived, with respect to
any Borrower Pension Plan; (e) fail to make any payments to any Multiemployer Plan that Borrower
may be required to make under any agreement relating to such Multiemployer Plan or any law
pertaining thereto; or (f) terminate any Borrower Pension Plan in a manner which could result in
the imposition of a lien on any property of Borrower pursuant to Section 4068 of ERISA. Borrower
shall not terminate any Borrower Pension Plan so as to result in any liability to the PBGC.
2.4 The following Section in Article 13 is amended in its entirety to read as follows:
13.26 Purchase for Own Account; Restrictions on Transfer; Participations. Each Syndication
Party represents that it has acquired and is retaining its interest in the Loans for its own
account in the ordinary course of its banking or financing business and not with a view toward the
sale, distribution, further participation, or transfer thereof. Each Syndication Party other than
CoBank agrees that it will not sell, assign, convey or otherwise dispose of (“Transfer”) to any
Person, or create or permit to exist any lien or security interest on all or any part of its
interest in the Loans, without the prior written consent of the Administrative Agent and Borrower
(which consent will not be unreasonably withheld, provided that Borrower shall have no approval
rights upon the occurrence and during the continuance of an Event of Default); provided that: (a)
any such Transfer (except a Transfer to another Syndication Party or a Transfer by CoBank) must be
in a minimum amount of $10,000,000.00, unless it Transfers its entire Syndication Interest; (b)
each Syndication Party must maintain an Individual Commitment of no less than $5,000,000.00; (c)
the transferee must execute an agreement substantially in the form of Exhibit 13.26 hereto
(“Syndication Acquisition Agreement”) and assume all of the transferor’s obligations hereunder and
execute such documents as the Administrative Agent may reasonably require; and (d) the Syndication
Party making such Transfer must pay, or cause the transferee to pay, the Administrative Agent an
assignment fee of $3,500.00. Any Syndication
Party may participate any part of its interest in the Loans to any Person with the prior
written consent of the Administrative Agent and Borrower (which consent will not be unreasonably
withheld, provided that Borrower shall have no approval rights upon the occurrence and during the
continuance of an Event of Default), provided that no such consent shall be required where the
participant is a Person at least fifty percent (50%) the equity interest in which is owned by such
Syndication Party or which owns at least fifty percent (50%) of the equity interest in such
Syndication Party or at least fifty percent (50%) of the equity interest of which is owned by
the
same Person which owns at least fifty percent (50%) of the equity interest of
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such Syndication
Party, and each Syndication Party understands and agrees that in the event of any such
participation: (x) its obligations hereunder will not change on account of such participation; (y)
the participant will have no rights under this Credit Agreement, including, without limitation,
voting rights (except as provided in Section 13.31 hereof with respect to Voting Participants) or
the right to receive payments or distributions; and (z) the Administrative Agent shall continue to
deal directly with the Syndication Party with respect to the Loans (including with respect to
voting rights, except as provided in Section 13.31 hereof with respect to Voting Participants) as
though no participation had been granted and will not be obligated to deal directly with any
participant (except as provided in Section 13.31 hereof with respect to Voting Participants).
Notwithstanding any provision contained herein to the contrary, any Syndication Party may at any
time pledge or assign all or any portion of its interest in the Loans to any Federal Reserve Bank
or the Federal Farm Credit Bank in accordance with applicable law. CoBank reserves the right to
sell participations on a non-patronage basis.
2.5 The following Subsection in Article 14 is amended in its entirety to read as follows:
| 14.4.1 | Borrower: CHS Inc. 0000 Xxxxx Xxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxxxxxx 00000 FAX: (000) 000-0000 Attention: Executive Vice President and Chief Financial Officer e-mail address: xxxx.xxxxxxx@xxxxxx.xxx with a copy to: CHS Inc. 0000 Xxxxx Xxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxxxxxx 00000 FAX: (000) 000-0000 Attention: Sr. Vice President and General Counsel e-mail address: xxxxx.xxxxxxxx@xxxxxx.xxx |
3. Borrower’s Representations. Borrower hereby represents and warrants that, after giving
effect to this Amendment Agreement and the transactions contemplated hereby, no Potential Default
or Event of Default has occurred and is continuing under the Credit Agreement or other Loan
Documents.
4. Effective Date. This Amendment Agreement shall become effective on May 19, 2005
(“Effective Date”), so long as on or before that date the Administrative Agent receives (a) an
original copy of this Amendment Agreement (or original counterparts thereof) duly executed by each
party hereto; (b) proof of the execution of, and satisfaction of all conditions to the
effectiveness of, the 2005 Amended and Restated Credit Agreement (Revolving Loans) between
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the
Administrative Agent (as Administrative Agent thereunder and as Bid Agent and as a Syndication
Party), each other Syndication Party who is a named party thereto, and Borrower; and (c) payment by
wire transfer of each of the costs, expenses described in Section 5 hereof. Upon the satisfaction
of all conditions precedent hereto, the Administrative Agent will notify each party hereto in
writing and will provide copies of all appropriate documentation in connection herewith.
5. Costs; Expenses and Taxes. Borrower agrees to reimburse the Administrative Agent on
demand for all out-of-pocket costs, expenses and charges (including, without limitation, all fees
and charges of external legal counsel for the Administrative Agent) incurred by the Administrative
Agent in connection with the preparation, reproduction, execution and delivery of this Amendment
Agreement and any other instruments and documents to be delivered hereunder.
6. General Provisions.
6.1 The Credit Agreement, except as expressly modified herein, shall continue in full force
and effect and be binding upon the parties thereto.
6.2 Borrower agrees to execute such additional documents as the Administrative Agent may
require to carry out or evidence the purposes of this Amendment Agreement.
6.3 The execution, delivery and effectiveness of this Amendment Agreement shall not operate as
a waiver of any right, power or remedy of the Administrative Agent or any Syndication Party under
any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents,
and the Credit Agreement, as expressly modified hereby, and each other Loan Document are hereby
ratified and confirmed and shall continue in full force and effect and be binding upon the parties
thereto. Any direct or indirect reference in the Loan Documents to the “Credit Agreement” shall be
deemed to be a reference to the Credit Agreement as amended by this Amendment Agreement.
7. Governing Law. This Amendment Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
8. Counterparts. This Amendment Agreement may be executed in any number of counterparts
and by different parties to this Amendment Agreement in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. 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 Amendment
Agreement by telefax, facsimile, or e-mail transmission of an
Adobe® file format document also shall deliver an original executed counterpart of this Amendment
Agreement, but the failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment Agreement.
[EXECUTION PAGES BEGIN ON THE NEXT PAGE].
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh amendment to Credit Agreement
(Term Loan) to be executed by their duly authorized officers as of the Effective Date.
| 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 | |||
| ADMINISTRATIVE AGENT: COBANK, ACB |
||||
| By: | ||||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
| SYNDICATION PARTY: COBANK, ACB |
||||
| By: | ||||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
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