TENTH AMENDMENT
TO
CREDIT AGREEMENT
(Term Loan)
This Tenth Amendment to Credit
Agreement (Term Loan) (“ Amendment Agreement ”)
is made May 8, 2007, 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. Paul
Bank for Cooperatives (“ St. Paul 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
”), by the Seventh Amendment to Credit Agreement (Term Loan)
dated as of May 20, 2004 (“ Sixth Amendment
”), by the Seventh Amendment to Credit Agreement (Term Loan)
dated as of May 19, 2005 (“ Seventh Amendment
”), by the Eighth Amendment to Credit Agreement (Term Loan)
dated as of November 18, 2005 (“ Eighth Amendment
”), and by the Ninth Amendment to Credit Agreement (Term
Loan) dated as of May 18, 2006 (“ Ninth Amendment
”).
C. CoBank is the successor by
merger to the interests and obligations of St. Paul 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 Subsection 9.2.1 is
amended to read as follows:
9.2.1 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 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 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.
2.2 Section 10.6 is
amended to read as follows:
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; 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.
2.3 Section 10.7 is
amended to read as follows:
10.7 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 10.8
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 10.8(f) hereto.
2.4 Paragraphs (f) and
(k) of Section 10.8 are amended to read as follows:
(f) Investments in Persons,
which are not Restricted Subsidiaries, iden
