Waiver Letter between VeraSun Energy Corporation, VSE Guarantors, and VSE DIP Lenders (November 17, 2008)
This agreement is a waiver letter between VeraSun Energy Corporation, its guarantor subsidiaries, and several DIP lenders. The lenders agree to temporarily waive the requirement for VeraSun and its guarantors to deliver certain loan documentation by November 17, 2008, as originally required under their DIP financing agreement. However, if the documentation is not delivered by November 21, 2008, VeraSun will be in default and the loans will become immediately due. The waiver does not obligate the lenders to provide additional funds until the required documents are signed.
Exhibit 10.8
November 17, 2008
VeraSun Energy Corporation
Each of the VSE Guarantors signatory hereto
100 22nd Avenue
Brookings, South Dakota 57006
Re: VeraSun Energy Corporation — Waiver Letter
Ladies and Gentlemen:
This letter (this “Waiver Letter”) is delivered to you in connection with that certain letter agreement re: VeraSun Energy Corporation – DIP Facility Commitment Letter, dated as of November 3, 2008 (as amended, restated, supplemented or otherwise modified from time to time, the “Commitment Letter”), among the undersigned VSE DIP Lenders (as defined therein), VeraSun Energy Corporation (the “VSE Borrower”) and the VSE Guarantors (as defined therein; and, together with the VSE Borrower, the “VSE Obligors”). Capitalized terms used herein but not defined herein shall have the meanings provided therefor in the Commitment Letter.
Reference is made to that certain VeraSun Energy Corporation Priming Superpriority DIP Facility Definitive Summary of Terms and Conditions, dated as of November 3, 2008 (the “VSE DIP Term Sheet”), which was attached as (a) Exhibit A to the Commitment Letter and (b) Exhibit A to that certain Interim Order (I) Authorizing Debtors to Obtain Post-Petition Senior Secured Super-Priority Financing pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e), (II) Authorizing the Repayment of Certain Pre-Petition Secured Obligations, (III) Granting Adequate Protection to Pre-Petition First Lien Secured Parties pursuant to §§ 361, 362, 363 and 364, (IV) Scheduling Final Hearing pursuant to Bankruptcy Rules 4001(b) and (c), and (V) Related Relief, entered by the United States Bankruptcy Court for the District of Delaware in Case No. 08-12606 (BLS), in re: VeraSun Energy Corporation, et al, on November 3, 2008.
The VSE Obligors have requested that the VSE DIP Lenders waive certain requirements set forth in the VSE DIP Term Sheet. In furtherance thereof, the VSE DIP Lenders hereby agree to waive (a) the requirement set forth in the “Documentation” section of the VSE DIP Term Sheet that the VSE DIP Loan Documentation be executed and delivered by the parties thereto on or prior to November 17, 2008 (the “November 17 Delivery Requirement”) and (b) any default or requirement to repay the VSE DIP Loans that has arisen or may arise as a result of the failure of the VSE Obligors to meet the November 17 Delivery Requirement; provided, that (x) the VSE DIP Lenders shall not have any commitment to make any additional VSE DIP Loans prior to the date on which the VSE DIP Loan Documentation is executed and delivered by the parties thereto and (y) in the event that no such VSE DIP Loan Documentation is executed and delivered by the parties thereto on or prior to November 21, 2008, the VSE Obligors shall be considered in default under the Commitment Letter and the VSE DIP Loans shall become immediately due and payable.
This Waiver Letter shall be governed by, and construed in accordance with, the laws of the State of New York. This Waiver Letter may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. This Waiver Letter shall become effective on the date that each of the VSE DIP Lenders has received this Waiver Letter executed and delivered by a duly authorized officer of each of the VSE Obligors and each of the VSE DIP Lenders. Delivery of an executed signature page of this Waiver Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
By accepting this Waiver Letter, each VSE Obligor agrees to the foregoing provisions.
[SIGNATURE PAGES FOLLOW]
Please confirm that the foregoing is our mutual understanding by signing and returning to the VSE DIP Lenders an executed counterpart of this letter.
| Very truly yours, | ||
| TRILOGY PORTFOLIO COMPANY, LLC | ||
| By | /s/ Paul S. Greenberg | |
| Name: | Paul S. Greenberg | |
| Title: | Principal | |
| TRILOGY SPECIAL SITUATIONS MASTER FUND, LTD. | ||
| By | /s/ Paul S. Greenberg | |
| Name: | Paul S. Greenberg | |
| Title: | Principal | |
| MARINER LDC | ||
| By: | Mariner Investment Group, LLC as Investment Manager | |
| By | /s/ John C. Kelty | |
| Name: | John Kelty | |
| Title: | Authorized Signatory | |
[Signature Page to Waiver Letter]
| AIG GLOBAL INVESTMENT CORP., on behalf of various of its investment advisory and sub-advisory clients | ||
| By | /s/ Tim Lindvall | |
| Name: | Tim Lindvall | |
| Title: | Vice President | |
| AIG SUNAMERICA ASSET MANAGEMENT CORP., as Investment Advisor | ||
| By | /s/ Tim Lindvall | |
| Name: | Tim Lindvall | |
| Title: | Vice President | |
[Signature Page to Waiver Letter]
| WAYZATA OPPORTUNITIES FUND II, L.P. | ||
| By: WOF II GP, L.P., its General Partner | ||
| By: WOF II GP LLC, its General Partner | ||
| By | /s/ Patrick J. Halloran | |
| Name: | Pat Halloran | |
| Title: | Authorized Signatory | |
| WAYZATA OPPORTUNITIES FUND OFFSHORE II, L.P. | ||
| By: WOF Offshore II GP, LLC, its General Partner | ||
| By: Wayzata Investment Partners, LLC, its Manager | ||
| By | /s/ Patrick J. Halloran | |
| Name: | Pat Halloran | |
| Title: | Authorized Signatory | |
[Signature Page to Waiver Letter]
ACCEPTED AND ACKNOWLEDGED
AS OF NOVEMBER 17, 2008
VERASUN ENERGY CORPORATION, as VSE Borrower
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN GRANITE CITY, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN REYNOLDS, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN BIODIESEL, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN LITCHFIELD, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN TILTON, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
[Signature Page to Waiver Letter]
VERASUN AURORA CORPORATION, as VSE Guarantor
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary |
VERASUN CHARLES CITY, LLC, as VSE Guarantor
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN MARKETING, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN WELCOME, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN FORT DODGE, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
| VERASUN HARTLEY, LLC, as VSE Guarantor | ||
| By | /s/ Mark D. Dickey | |
| Name: | Mark D. Dickey | |
| Title: | Senior Vice President, General Counsel and Corporate Secretary | |
[Signature Page to Waiver Letter]
