Exhibit 10.21C
FIFTH AMENDMENT TO
2003 AMENDED AND RESTATED CREDIT AGREEMENT
AND WAIVER
Parties:
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“CoBank”: |
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CoBank, ACB
5500 South Quebec Street
Greenwood Village, Colorado 80111 |
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“Borrower”: |
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National Cooperative Refinery
Association
2000 Main Street
P.O. Box 1404
McPherson, Kansas 67460 |
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“Syndication
Parties”: |
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Whose signatures appear below |
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Execution
Date :
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November 7, 2007 |
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Recitals:
A. CoBank (in its capacity as
the Administrative Agent (“ Agent ”) and as a
Syndication Party) and Borrower have entered into that certain 2003
Amended and Restated Credit Agreement dated as of December 16,
2003, and that certain First Amendment to 2003 Amended and Restated
Credit Agreement dated December 15, 2005, that certain Second
Amendment to 2003 Amended and Restated Credit Agreement dated
June 30, 2006, that certain Third Amendment to 2003 Amended
and Restated Credit Agreement dated December 13, 2006, and
that certain Fourth Amendment to 2003 Amended and Restated Credit
Agreement dated September 17, 2007 (as so amended, and as
further amended, modified, or supplemented from time to time, the
“ Credit Agreement ”) pursuant to which CoBank
and any entity which becomes a “Syndication Party” has
extended certain credit facilities to Borrower under the terms and
conditions set forth in the Credit Agreement.
B. Borrower has requested that
the Agent and the Syndication Parties make certain modifications to
the Credit Agreement with respect to loans by Borrower to, and
Investments by Borrower in, its wholly owned Subsidiary Jayhawk
Pipeline, L.L.C., which the Agent and the Syndication Parties are
willing to do under the terms and conditions as set forth in this
Fifth Amendment to 2003 Amended and Restated Credit Agreement
(“ Fifth Amendment ”).
C. Borrower has requested that
the Agent and the Syndication Parties waive any default on account
of the failure of the 2008 Budget to include capital expenditures
related to a new coker project anticipated for 2008, which the
Agent and the Syndication Parties are willing to do under the terms
and conditions as set forth in this Fifth 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 Section 1.82 is amended to
read as follows:
1.82 2-Year Maturity Date :
December 16, 2008.
1.2 Section 11.6 is amended to
read as follows:
11.6 Loans . Borrower shall
not lend or advance money, credit, or property to any Person,
except for trade credit extended in the ordinary course of
business, other than loans to its wholly owned Subsidiary Jayhawk
Pipeline, L.L.C.; provided that all such loans to Jayhawk Pipeline,
L.L.C., when aggregated with all of the Investments in Jayhawk
Pipeline, L.L.C. made pursuant to, and as permitted in, clause
(i) of Section 11.8 hereof, do not exceed
$75,000,000.00.
1.3 Clause (i) of
Section 11.8 is re-designated as clause (j) and a new
clause (i) is added to Section 11.8 reading as
follows:
(i) Investments made on and after
October 25, 2007 in Borrower’s wholly owned Subsidiary
Jayhawk Pipeline, L.L.C.; provided that all such Investments, when
aggregated with the amount of all loans to Jayhawk Pipeline,
L.L.C., do not exceed $75,000,000.00.
1.4 Section 10.16, but none of
the Subsections thereof, is amended to read as follows:
10.16 Financial Covenants .
Borrower shall maintain the following financial covenants, measured
as an aggregation of the results of Borrower (including
Borrower’s earnings on account of its minority interest in
Osage Pipe Line Company and in Kaw Pipe Line Company), Jayhawk
Pipeline, L.L.C. (so long as it is a wholly owned Subsidiary of
Borrower), and Cooperative (but no other Subsidiaries):
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