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FOURTH SUPPLEMENT AND FORBEARANCE AGREEMENT TO THE MASTER CREDIT AGREEMENT

Default Notice Forbearance Agreement

FOURTH SUPPLEMENT AND FORBEARANCE AGREEMENT TO THE MASTER CREDIT AGREEMENT | Document Parties: NEDAK ETHANOL, LLC | AGCOUNTRY FARM CREDIT SERVICES You are currently viewing:
This Default Notice Forbearance Agreement involves

NEDAK ETHANOL, LLC | AGCOUNTRY FARM CREDIT SERVICES

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Title: FOURTH SUPPLEMENT AND FORBEARANCE AGREEMENT TO THE MASTER CREDIT AGREEMENT
Governing Law: North Dakota     Date: 4/2/2009

FOURTH SUPPLEMENT AND FORBEARANCE AGREEMENT TO THE MASTER CREDIT AGREEMENT, Parties: nedak ethanol  llc , agcountry farm credit services
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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:

 

 

(a)

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.

 

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

 

 

 

2


 

 

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


 
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