Exhibit 10.8
FOURTH AMENDMENT TO AMENDED AND
RESTATED SECURED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement (the
"AMENDMENT") is dated as of February 13, 2002 by and among Minnesota Corn
Processors, LLC, a Colorado limited liability company (successor by merger to
Minnesota Corn Processors, Inc.) (the "COMPANY"), the Banks, and Xxxxxx Trust
and Savings Bank, as Agent.
WITNESSETH:
WHEREAS, the Company, the Banks and Xxxxxx Trust and Savings Bank, as
Agent, have heretofore executed and delivered an Amended and Restated Credit
Agreement dated as of November 4, 1998, as amended by the First Amendment to
Amended and Restated Credit Agreement dated as of September 21, 1999, as amended
by that certain Assumption Agreement and Second Amendment to Amended and
Restated Secured Credit Agreement dated as of June 30, 2000, and as further
amended by that certain Third Amendment to Amended and Restated Credit Agreement
dated October 18, 2000 (such Credit Agreement as so amended being referred to
herein as the ("CREDIT AGREEMENT"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that the
Credit Agreement shall be and hereby is amended as follows.
1. Section l.l(a) of the Credit Agreement is hereby amended by striking
the date "October 1, 2002" in the last line thereof and substituting therefore
date "October 1, 2003".
2. The definition of "Applicable Margin" set forth in Section 4 of the
Credit Agreement is hereby amended and restated to read as follows:
"APPLICABLE MARGIN" with respect to Domestic Rate
Loans and Eurodollar Loans shall mean the following:
Applicable Domestic Rate Loan 0.0%
Margin
Applicable Eurodollar Loan Margin 2.0%
3. Section 7.12 of the Credit Agreement is hereby amended in its
entirety and as so amended shall be restated to read as follows:
SECTION 7.12. CAPITAL EXPENDITURES. The Borrower
will not, and will not permit any Subsidiary to, expend or
become obligated for capital expenditures (as defined and
classified in accordance with generally accepted accounting
principles consistently applied but in any event including
the liability of the Borrower in respect of Capitalized
Leases) in any fiscal year in an aggregate amount in excess
of $40,000,000.
4. The Company represents and warrants to each Bank and the Agent that
(i) each of the representations and warranties set forth in Section 5 of the
Credit Agreement is true and correct on and as of the date of this Amendment as
if made on and as of the date hereof and as if each reference therein to the
Credit Agreement referred to the Credit Agreement as amended hereby; (ii) after
giving effect to this Amendment, no Potential Default and no Event of Default
has occurred and is continuing; and (iii) without limiting the effect of the
foregoing, the Company's execution, delivery and performance of this Amendment
have been duly authorized, and this Amendment has been executed and delivered by
duly authorized officers of the Company.
5. The Company has heretofore executed and delivered to the Agent the
Security Documents and the Company hereby agrees that notwithstanding the
execution and delivery of this Amendment, the Security Documents shall remain in
full force and effect and shall secure all indebtedness of the Company to the
Agent and the Banks under the Credit Agreement as amended hereby and that any
rights and remedies of the Agent and the Banks thereunder, obligations of the
Company thereunder and any liens or security interests created or provided for
thereunder shall be and remain in full force and effect and shall not be
affected, impaired or discharged hereby. Nothing herein contained shall in any
manner affect or impair the priority of the liens and security interests created
and provided for by the Security Documents as to the indebtedness which would be
secured thereby prior to giving effect to this Amendment.
6. This Amendment shall become effective upon the satisfaction of each
of the following conditions precedent:
(a) The Company, the Required Banks, and the Agent shall have
executed and delivered this Amendment.
(b) Each of the representations and warranties set forth in
Section 5 of the Credit Agreement shall be true and correct.
(c) The company shall be in full compliance with all of the
terms and conditions of the Credit Agreement and no Event of Default or
Potential Default shall have occurred and be continuing thereunder or
shall result after giving effect to this Amendment.
(d) All legal matters incident to the execution and delivery
hereof and the instruments and documents contemplated hereby shall be
satisfactory to the Agent and the Banks.
-2-
(e) The Company shall have executed and delivered to the Agent
an Amended and Restated Security Agreement in form and substance
satisfactory to the Agent and its counsel.
(f) The Agent shall have received for the ratable account of
the Banks in accordance with their Revolving Credit Commitments a
non-refundable amendment fee in an aggregate amount equal to $10,000.
(g) The Agent shall have received a copy, certified by the
Secretary or Assistant Secretary of the Company, of the resolutions of
the Company's board of directors authorizing the execution and delivery
of this Amendment.
(h) The Agent shall have received the favorable opinion of
counsel to the Company, in form and substance satisfactory to the Agent
and its counsel.
This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each of which
when so executed shall be an original but all of which shall constitute one and
the same instrument. Except as specifically amended and modified hereby, all of
the terms and conditions of the Credit Agreement and the other Loan Documents
shall remain unchanged and in full force and effect. All references to the
Credit Agreement in any document shall be deemed to be references to the Credit
Agreement as amended hereby. All capitalized terms used herein without
definition shall have the same meaning herein as they have in the Credit
Agreement. This Amendment shall be construed and governed by and in accordance
with the internal laws of the State of Illinois.
-3-
Dated as of the date first above written.
MINNESOTA CORN PROCESSORS, LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Title: Vice President of Finance and CFO
-------------------------------------
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Title: Vice President
-------------------------------------
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Title: Vice President
-------------------------------------
-4-
