SECOND LETTER OF COMMITMENT
AND INTENT
Date:
August 4, 2008
By and Between:
NEDAK Ethanol, LLC
87590 Hillcrest Road
Atkinson, Nebraska
68713
Delta-T Corporation
133 Waller Mill Road
Williamsburg, VA
23185
DELTA-T CORPORATION, a Virginia corporation ("Delta-T"),
and NEDAK Ethanol LLC,
a Nebraska
limited
liability
company
("owner" or
"NEDAK"),
entered into an
Engineering,
Procurement and Construction Services Fixed Price Contract,
dated
August 9, 2006 ("EPC Contract"), for the design and construction of
a 44 million
gallon per year (MGPY) fuel ethanol
plant
located in Atkinson,
Nebraska
(the
"Facility"),
as Amended by a Letter of
Commitment
and Intent
dated
April 2,
2008.
Delta-T is
committed
to
completing
the
Facility
and
achieving
Mechanical
Completion
on or
before
July 28,
2008
and
performance
testing/name
plate
production
within sixty (60) days thereafter.
To further this commitment,
the
parties agree to this Second Letter of Commitment and Intent
("Second Letter of
Commitment")
and agree to
negotiate
in good
faith to amend the EPC
Contract
consistent with these completion
dates.
NEDAK and Delta-T intend to enter into
an amendment to the EPC Contract,
Amendment No. 4, with the following terms and
conditions:
1. Incentive Payment:
The $5 million incentive payment due from NEDAK to Delta-T
will be deferred and the entire
amount,
principle and
interest,
shall become
payable 24 months after Performance Test Acceptance.
NEDAK will pay interest at
1% above the cost of borrowing for Bateman Litwin NV, Delta-T's
Parent Company.
2. Mechanical Completion Date:
July 28, 2008
Performance Testing Completed
And Name Plate Production Reached:
sixty (60) days after
Mechanical Completion
3. Liquidated Damages:
Mechanical Completion:
NEDAK agrees with the new Mechanical Completion Date
of July 28,
2008,
and that there
cannot be any
Schedule
Liquidated
Damages
assessed
prior to that
date and in
accordance
with
this
Second
Letter
of
Commitment. Delta-T understands that if Mechanical Completion is
not attained by
the scheduled
Mechanical
Completion
Date, NEDAK will suffer damages which are
difficult to determine and accurately specify. Delta-T agrees that
if Mechanical
Completion is not attained on or before July 28, 2008, Delta-T will
pay to NEDAK
or have deducted
from the Contract
Price,
as liquidated
damages and not as a
penalty, the amount of $21,000 for each full day after July 28,
2008 the Project
is not
mechanically
complete for a period of four (4) full weeks,
after which
the liquidated damages shall increase to $28,000 for each full day.
The Plant as
currently
constructed
meets
Mechanical
Completion
for the
purposes of this
Second Letter of Commitment.
Performance
Testing/Name
Plate
Production:
NEDAK
agrees
that
the
Performance Testing will not include the Dryer/RTO.
Delta-T understands that if
the performance
testing and name plate production is not attained by the agreed
upon
performance
testing
and name plate
production
date,
NEDAK will suffer
damages which are difficult to determine and accurately specify.
Delta-T agrees
that if the performance testing and name plate prod
