THIRD SUPPLEMENT
AND
FORBEARANCE
TO THE
MASTER CREDIT AGREEMENT
THIS THIRD SUPPLEMENT AND FORBEARANCE TO THE MASTER
CREDIT AGREEMENT
("
Third Supplement
") is made and entered into as of ______________,
2008, by and between NEDAK ETHANOL, LLC, a Nebraska limited
liability company
("Borrower"), and AGCOUNTRY FARM CREDIT SERVICES, FCA (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
"), and that certain Second Supplement to Master
Credit Agreement dated as of February 14, 2007 ("
Second Supplement
")
(collectively, 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. The Project Costs have exceeded the projected budget by
approximately
$20.0 million.
C. The excess Project Costs have created one or more
defaults under the
Master Agreement and that certain Disbursing Agreement dated as of
February 14,
2007 by and among Borrower, Lender and Disbursing Agent (the
"
Disbursing
Agreement
").
D. In the letter dated April __, 2008, Lender has agreed to
forebear from
declaring a default, but Lender is not precluded from subsequently
declaring a
default at any time it elects to do so in Lender's sole discretion.
E. As a condition to advancing any portion of the Loan to
Lender on or
subsequent to the Effective Date, Borrower and Lender desire to
further amend
the Master Agreement as set forth in this Third Supplement to
provide for
additional terms and conditions.
AGREEMENT:
Now, therefore, in consideration of the mutual covenants
and agreements
herein contained and other good and valuable consideration,
the receipt and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as
follows:
A.
Amendments to Master Agreement.
The Master Agreement is amended as follows:
1. Section 1.01 is amended to add the following definitions:
Definitions
. Capitalized terms used and not otherwise defined in this Third
Supplement have the meanings attributed to them below or in
the Master
Agreement. Definitions in this Third Supplement control over
inconsistent
definitions in the Master Agreement, but only to the extent the
defined terms
apply to Loans under this Third Supplement. Definitions set forth
in the Master
Agreement control for all other purposes. As used in this Third
Supplement, the
following terms have the following meanings:
"
Bank of America LOC
" means the Letter of Credit from Bank of America dated
November 28, 2006 in the amount of $5,000,000.
"Bank of Virginia LOC
" means the Letter of Credit from Bank of Virginia
dated December 10, 2007 in the amount of $513,000.
"
Bank Hapoalim LOC
" means the Letter of Credit from Bank Hapoalim dated
April _, 2008 in the amount of $8,000,000.
"
Bateman
" means Bateman Litwin N.V.
"
Bateman Guarantee
" means the guarantee from Bateman to Borrower
guaranteeing Delta-T Corporation's performance of the Construction
Agreement.
"
Construction Lien
" means the Construction Lien filed against
Borrower on February 22, 2008 by Plant Performance Services, LLC
with the Holt
County Register of Deeds.
"
Earnings
" means NEDAK's net income for the quarterly periods ending
March 31, June 30, September 30 and December 31 as determined
by NEDAK's
financial statements prepared according to generally
accepted accounting
principles.
"
FNBO
" means First National Bank of Omaha.
"
LOC's
" means the Bank of America LOC, the Bank of Virginia LOC and
the
Bank Hapoalim LOC.
2. Article II, Section 2.01 II is amended to add the following
Conditions
Precedent.
In addition to the Conditions Precedent set forth
in the Master
Agreement, Lender will have no obligation under this Third
Supplement or any
other Loan Document until each of the following conditions
precedent is
satisfied or waived in accordance with Section 8.02 of the Master
Agreement:
(a)
Bateman shall have delivered the executed Bateman Guarantee to
Borrower in the form that is attached to the Letter of
Commitment and
Intent dated January 28, 2008;
(b)
Borrower shall have assigned the Bateman Guarantee to Lender
pursuant to the Collateral Assignment of Bateman Guarantee
in a form that
is acceptable to Lender;
(c)
The LOC's shall have been delivered to Borrower;
(d)
The Bank Hapoalim LOC shall have been confirmed by FNBO as
evidenced in writing satisfactory to Lender;
(e)
Borrower shall have assigned the LOCs to Lender in a form
acceptable to Lender;
(f)
Borrower and Delta-T shall have executed the Amendment No. 3 to
Engineering, Procurement and Construction Services Contract
dated April _,
2008 in substantially in a form acceptable to Lender;
(g)
Delta-T, NEDAk and Bateman shall have executed the Amended Letter
of Commitment and Intent dated April _, 2008 (the
"Amended Letter of
Commitment");
(h)
Borrower shall have assigned the Amended Letter of Commitment to
Lender
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