Exhibit 10.2
FOURTH SUPPLEMENT AND FORBEARANCE
AGREEMENT
TO THE
MASTER CREDIT AGREEMENT
THIS FOURTH SUPPLEMENT AND
FORBEARANCE AGREEMENT TO THE MASTER CREDIT AGREEMENT (“
Fourth Supplement ”) is made and
entered into as of March 27, 2009 (“ Effective
Date ”), by and between NEDAK ETHANOL, LLC, a
Nebraska limited liability company (“ Borrower
”), and AGCOUNTRY FARM CREDIT SERVICES, FLCA (formerly Farm
Credit Services of Grand Forks, FLCA) (“ Lender
”).
RECITALS:
A. Lender
and Borrower have entered into that certain Master Credit Agreement
dated as of February 14, 2007 (the “ Master Credit
Agreement ”), that certain First Supplement to Master
Credit Agreement dated as of February 14, 2007 (the “
First Supplement ”), that certain Second
Supplement to Master Credit Agreement dated as of February 14, 2007
(“ Second Supplement ”), and that certain
Third Supplement and Forbearance Agreement to Master Credit
Agreement dated as of April 11, 2008 (“ Third
Supplement ”, and together with the Master Credit
Agreement, First Supplement and Second Supplement, as amended,
replaced, restated, modified, or supplemented from time to time,
are referred to as the “ Master Agreement
”) pursuant to which Lender has extended certain credit
facilities to Borrower under the terms and conditions set forth in
the Master Agreement.
B. Borrower
did not obtain mechanical completion, as defined in the
Construction Agreement (“ Mechanical Completion
”), of the Project by or on July 15, 2008.
C. Borrower
did not achieve 100% name plate production for its ethanol facility
or pass the required performance tests within 60 days after
achieving Mechanical Completion.
D. Borrower
has not complied with any of the financial covenants set forth in
Article V of the Master Credit Agreement.
E. The
failure to (i) meet the Mechanical Completion date, (ii) achieve
100% name plate production, and (iii) to comply with the financial
covenants have created one or more defaults under the Master
Agreement.
F. In
the letter dated February 11, 2009, Lender declared a Default by
Borrower.
G. As
a condition to advancing any portion of the Loan to Lender on or
subsequent to the date hereof, Borrower and Lender desire to
further amend the Master Agreement as set forth in this Fourth
Supplement to provide for additional terms and
conditions.
AGREEMENT:
Now, therefore, in consideration of
the mutual covenants and agreements contained in this Agreement and
other good and valuable consideration, the receipt and adequacy of
which are acknowledged, the parties agree as follows:
A.
Effect of Fourth Supplement . This Fourth Supplement supplements
the Master Agreement (including the First Supplement, Second
Supplement and Third Supplement) and applies to all Loans
thereunder.
B.
Amendments to Master Agreement . The
Master Agreement is amended as follows:
1. The
following definitions, which are set forth in Section 1 of the
First Supplement, are amended to read as follows:
“Construction and Term Loan Maturity
Date” means the
earlier of (a) March 1, 2018, and (b) the date on which the
Obligations have been declared or have automatically become due and
payable, whether by acceleration or otherwise.
“Loan Conversion
Date” means the
date which is the first day of the month the Required Completion
Date, which date shall not be later than August 1, 2009.
“Margin” means five and forty hundredths percentage
points (5.40%) (540 basis points).
“Required Completion
Date” means the
date of Substantial Completion (as defined in the First
Supplement), which shall occur on or before July 31,
2009.
2. The
following definitions, which are set forth in Section 1 of the
Second Supplement, are amended to read as follows:
“Margin” means five and forty hundredths percentage
points (5.40%) (540 basis points).
“Revolving Facility
Maturity Date” means the earlier of (a) March 1, 2018, and (b)
the date on which the Obligations have been declared or have
automatically become due and payable, whether by acceleration or
otherwise.
3. Section
8 of the First Supplement is amended to read as
follows:
Interest Rate
. Interest on the unpaid principal
amount of the Construction and Term Loans will accrue on a variable
interest rate equal to LIBOR plus the Margin; provided, that the
interest rate shall not be less than 6.00% per annum (the “
Annual Rate ”).
4. Beginning
on the Effective Date and for all periods thereafter, Section 9(a)
of the First Supplement is amended to read as
follows:
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During Construction . During the Funding Period, Borrower
will pay in arrears, not later than the first day of each month,
accrued and unpaid interest at the Annual Rate based on the daily
balance on the Construction and Term Loan outstanding during the
related monthly period.
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5. Section
7 of the Second Supplement is amended to read as
follows:
Interest
. Interest on the unpaid principal
amount of Revolving Loans will accrue on a variable interest rate
equal to LIBOR plus the Margin; provided, that the interest rate
shall not be
less than 6.00% per annum. Interest
accruing on Revolving Loans will be paid in full in arrears on the
first date of each calendar month prior to the Revolving Facility
Maturity Date.
6. Article
I, Section 1.07 of the Master Credit Agreement is amended to read
as follows:
1.07
Computations . Computations of interest
and fees (to the extent computed on the basis of days elapsed)
hereunder will be made on the basis of a year of 360 days occurring
in the period for which such interest or fees are
payable. All interest and fees will be considered earned
when due.
7. Section
3 of the Third Supplement is amended to delete the previous Loan
Fee and replace it with the following:
Article I of the Master Credit
Agreement is amended to add the following Loan Fee:
Section 1.15
Loan
Fee . In addition to any other loan fees
provided in the Master Agreement, Borrower shall pay Lender a loan
fee in the amount of $250,000 (the “ Loan Fee
”). Borrower shall pay the Loan Fee in five
consecutive quarterly installments equaling $50,000 per quarter
with Borrower paying the first payment to Lender on or before April
1, 2010.
8. Article
I of the Master Credit Agreement is amended to add the following
Restructure Fee:
Section 1.16
Restructure
Fee . In addition to any other loan fees
provided in the Master Agreement, Borrower shall pay Lender a
restructure fee in the amount of $100,000 (the “
Restructure Fee ”). Borrower shall
pay the Restructure Fee on or before June 30, 2009.
9. Article
II, Section 2.1 of the Master Credit Agreement is amended to add
the following conditions precedent:
(i) The
Bank Hapoalim LOC and FNBO’s confirmation of the Bank
Hapoalim LOC must both be extended in writing in a form acceptable
to Lender through March 31, 2009 and that certain letter of credit
issued by Bank Hapoalim dated May 9, 2008 in the amount of
$5,500,000 (the “ Bank Hapoalim Second LOC
”) and confirmation by JPMorgan Chase Bank, N.A. (“
JPMorgan ”) of the Bank Hapoalim Second LOC
must both be extended in writing in a form acceptable to Lender
through March 31, 2009, or, in the event one or more of the
foregoing is not extended, all the funds available under the
applicable letter of credit shall be drawn by Lender.
(j) Before March 31, 2009, the Bank
Hapoalim LOC and FNBO’s confirmation of the Bank Hapoalim LOC
must both be