Exhibit 10.1
SIXTH AMENDMENT TO CONSTRUCTION
LOAN AGREEMENT
This Sixth Amendment to Construction
Loan Agreement is dated as of the 23rd day of March, 2006, and is
by and between DAKOTA ETHANOL, L.L.C., a South Dakota limited
liability company (“BORROWER”) and FIRST NATIONAL BANK
OF OMAHA (“BANK”), a national banking association
established at Omaha, Nebraska.
WHEREAS, BANK and BORROWER executed
a Construction Loan Agreement dated as of September 25, 2000 (the
Construction Loan Agreement, together with all amendments thereto
is herein called the “AGREEMENT”);
Now, therefore, for valuable
consideration, receipt and adequacy of which is acknowledged, the
parties agree as follows:
1.
All capitalized terms herein that are not otherwise defined shall
have the meanings assigned to them in the AGREEMENT.
2.
BORROWER acknowledges and agrees it owes BANK (as part of its
OBLIGATIONS):
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TERM NOTE 2 which has a current
principal balance of $9,360,401.39
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TERM NOTE 4 which has a current
principal balance of $88,121.03 that is to be paid on April 1,
2006;
•
TERM NOTE 5 which has a current
principal balance of $0, and a commitment of $5,000,000;
•
REVOLVING NOTE which has a current
principal balance of $0, and a commitment of
$3,000,000.00.
3.
The parties desire to revise TERM NOTE 5 to amend it from a
Reducing Revolver to a Long Term Revolving Note, which will provide
at all times a $5,000,000 revolving facility to BORROWER after TERM
NOTE 4 is paid, and to revise the repayment schedule of TERM NOTE
5.
4.
Attached hereto as Exhibit 6-A is a replacement TERM NOTE 5, which
by execution hereof, will replace the TERM NOTE 5 Reducing Revolver
with a new TERM NOTE 5 Long Term Revolver, with the revised
repayment terms as described in the new TERM NOTE 5.
5.
Section 1.17 of the AGREEMENT (definition of MANAGEMENT CONTRACT)
is hereby deleted in its entirety, effective
immediately.
6.
Section 1.18 of the AGREEMENT is hereby amended to read, effective
immediately:
1.18 “MARKETING
CONTRACTS” means the written contract dated as of November
30, 2005, between BORROWER and Renewable Products
Marketing
Group, L.L.C. to market ethanol, and
the written contract dated as of November 28, 2005, between
BORROWER and Commodity Specialists Company to market Dry
Distiller’s Grain.
7.
Section 7.1.13 of the AGREEMENT (regarding Broin and Associates as
management company) is hereby deleted in its entirety, effective
immediately.
8.
Effective immediately, Section 7.1.14 of the AGREEMENT is hereby
amended to read:
7.1.14 The BORROWER shall fail to
keep MARKETING CONTRACTS in force.
9.
Effective immediately, the BANK’s address as stated in
Section 8.7 is hereby amended to read, effective
immediately:
If to the BANK:
First National Bank of
Omaha
1620 Dodge St., STOP 1050
Omaha, NE 68197-1050
Attention: Chris Reiner
10.
BORROWER certifies by its execution hereof that the representations
and warranties set forth in Section 5.1. of the AGREEMENT are true
as of this date, and that no EVENT OF DEFAULT Ender the AGREEMENT,
and no event which, with the giving of notice or passage of time or
both, would become such an EVENT OF DEFAULT, has occurred as of
this date.
11.
Except as amended hereby the parties ratify and confirm as binding
upon them all of the terms of the AGREEMENT.
IN WITNESS WHEREOF, the parties
hereto have caused this AGREEMENT to be executed by their
respective officers or managers thereunto duly authorized, as of
the date first above written.
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Dakota Ethanol,
L.L.C.
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First National Bank of
Omaha
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By:
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/s/ Brian
Woldt
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By:
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/s/ Mark A.
Baratta
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Brian Woldt
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Chairman of the Board of
Governors
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Its:
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Vice
President
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Exhibit 6-A
TERM NOTE 5
(Long Term Revolver)
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Note Date: March
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, 2006
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$5,000,000.00
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Maturity Date: September 1,
2011
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FOR VALUE RECEIVED,
DAKOTA ETHANOL, L.L.C., a South
Dakota limited liability company (“BORROWER”) promises
to pay to the order of First National Bank of Omaha
(“BANK” ), at its principal office or such other
address as BANK or holder may designate from time to time, the
principal sum of Five Million and no hundredths Dollars
($5,000,000.00), or the amount shown on the BANK’s records to
be outstanding, plus interest (calculated on the basis of 360-day
year) accruing each day on the unpaid principal balance at the
annual interest rates defined below. Absent manifest error, the
BANK’s records shall be conclusive evidence of the principal
and accrued interest owing hereunder.
This promissory note is executed
pursuant to a Construction Loan Agreement (“CONSTRUCTION LOAN
AGREEMENT”) between BORROWER and BANK dated as of September
25, 2000, as it may have been amended, from time to time. This
promissory note is a modification or substitution for the TERM NOTE
described therein. All capitalized terms not otherwise defined in
this note shall have the meanings provided in the CONSTRUCTION LOAN
AGREEMENT.
INTEREST ACCRUAL.
Interest on the principal amount
outstanding shall accrue at a rate (time “RATE”) fifty
(50) basis points above the BASE RATE in effect from time to time
until maturity, and three per cent (3%) above the BASE RATE in
effect from time to time after maturity, whether by acceleration or
otherwise. Provided, however, at no time shall the RATE be less
than five (5%) percent per annum. For purposes hereof, BASE RATE
shall mean the rate announced by BANK from time to time as its
“National Base Rate”.
Each time the BASE RATE shall
change, the RATE shall change contempo
