COLLATERAL ASSIGNMENT
Letter of Commitment and Intent
and Bateman Guarantee
THIS COLLATERAL ASSIGNMENT
("
Assignment
"), is made as of __________, 2008,
by NEDAK ETHANOL, LLC, a Nebraska limited liability company ("
Borrower
"), and
AGCOUNTRY FARM CREDIT SERVICES, FCA (formerly Farm Credit
Services of Grand
Forks, FLCA) ("
Lender
"), both of whom are parties to the Credit Agreement (as
defined below).
WITNESSETH:
WHEREAS
, Borrower and Lender are parties to that certain Master
Credit
Agreement, dated as of February 14, 2007 (together with the
"Supplements"
defined therein and as further amended, restated, supplemented,
the "
Credit
Agreement
"; capitalized terms used herein and not otherwise defined shall
have
the meanings assigned to such terms in the Credit Agreement);
WHEREAS
, pursuant to the Credit Agreement, Lender has agreed to
make
certain credit facilities available to Borrower;
WHEREAS
, Borrower and Lender intend to enter into the Third Supplement
and
Forbearance to Master Credit Agreement (the "
Third Supplement
");
WHEREAS
, Lender, Delta-T Corporation ("
Delta-T
") and Bateman Litwin N.V.
("
Bateman
") are parties to that certain Letter of Commitment and Intent
dated
January 16, 2008 (the "
Letter of Commitment
").
WHEREAS
, in connection with the Third Supplement, Lender, Delta-T
and
Bateman intend to amended the terms of the Letter of Commitment
pursuant to a
new Letter of Commitment and Intent dated ____________, 2008
(the "
Amended
Letter of Commitment
");
WHEREAS
, in connection with the Third Supplement, Bateman Litwin
N.V.
("
Bateman
") intends to provide a Guarantee to Borrower dated as
of
_____________, 2008 (the "
Gurantee
") guaranteeing Delta-T Corporation's
performance of the Construction Agreement;
WHEREAS
, under the terms of the Third Supplement, it is a
condition
precedent to Lender's obligations to make loans available to
Borrower that
Borrower enters into this Assignment, pursuant to which Borrower
shall pledge
and collaterally assign to Lender all of Borrower's obligations,
right, title
and interest in and to the Amended Letter of Commitment and
the Guarantee
(collectively, the "
Assigned Agreements
"), and Borrower desires to satisfy, such
condition precedent.
NOW, THEREFORE
, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt and sufficiency
of which are
hereby acknowledged, Borrower agrees as follows:
1. As security for all Obligations, Borrower
collaterally assigns,
pledges and transfers to Lender, and grants to Lender, a security
interest in
all of its rights, remedies (at law or in equity), title,
obligations and
interest in and to the Assigned Agreement and all proceeds
and obligations thereof. Without limiting the generality of the
foregoing, as
security for Obligations, Borrower specifically collaterally
assigns, pledges
and transfers to Lender, and grants to Lender, a security interest
in all rights
of Borrower to receive any sums of money or property in
connection with the
Assigned Agreements, provided, that so long as no Event of Default
has occurred
and is continuing, Borrower shall be entitled to collect and
receive for its own
use monies paid under and in respect of the Assigned Agreements.
2. Borrower further acknowledges and affirms that the
representations,
warranties and covenants of Borrower and the rights and remedies
of Lender with
respect to the pledge of security interest in and collateral
assignment of the
Assigned Agreements made and granted hereby are more fully set
forth in the
Security Agreement, the terms and provisions of which are
incorporated by
reference herein as if fully set forth herein. [need to make sure
this does not
violate in any way our rights or their obligations - by adding
another sentence
to this paragraph.]
3. So long as no Event of Default has occurred and is
continuing, insofar
as Borrower may have any rights, privileges or claims under
the Assigned
Agreements, Borrower will use prudent business judgment
concerning the
enforcement of such rights, will enforce the same diligently and
in good faith
and will give Lender notice of each such enforcement undertaken by
Borrower.
4. Upon the occurrence and during the continuance of an
Event of Default,
Lender shall have the right, power and authority to (a) upon
satisfying any
Borrower payment obligation defaults to Delta-T, declare this
Assignment to be
unconditional and absolute, and thereby succeed fully to all
of Borrower's
rights, obligations, remedies, title and interest in, to and under
the Assigned
Agreements, (b) notify Delta-T and Bateman that the Assigned
Agreements have
been assigned to Lender, whether or not Lender has commenced
or completed
foreclosure or taken possession of thereof; and (c) to the extent
permitted by
applicable laws, exercise all rights and obligations of Borrower
under of the
Assigned Agreements. In furtherance of the foregoing, upon the
occurrence and
during the continuance of an Event of Default, Borrower hereby
irrevocably
authorizes and empowers Lender, in its sole discretion, to
assert, either
directly or on behalf of Borrower, any right, privilege or claim
which Borrower
then or thereafter may have under the Assigned Agreements, as
Lender may deem
proper, and to receive and collect any and all damages, awards and
other monies
resulting there from and to apply the proceeds thereof against
any Obligations
then outstanding. [this last part contradicts our purpose and
concept]
5. Borrower hereby irrevocably makes, constitutes and
appoints Lender (and
all officers, employees or agents designated by Lender) as its
true and lawful
attorney-in-fact for the purposes of enabling Lender or its agent
or designee to
exercise its rights and obligations under
Section 4
hereof.
6. [paragraph 6 is reserved]
7. Borrower further acknowledges and agrees that if, as a
result hereof,
any Person or party to the Assigned Agreements other than
Borrower becomes
obliged to pay or perform, and pays or performs, any debt,
liability or
obligation to Lender, as ass
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