EXHIBIT 10.1
SIXTH AMENDMENT TO CONSTRUCTION
LOAN AGREEMENT
This Sixth
Amendment to Construction Loan Agreement is dated as of the
16 th
day of April, 2009, and is by and
between RED TRAIL ENERGY, LLC , a North Dakota limited
liability company (“BORROWER”), and FIRST NATIONAL
BANK OF OMAHA (“BANK”), a national banking
association established at Omaha, Nebraska.
WHEREAS, the
BANK and BORROWER executed a written Construction Loan Agreement
dated as of December 16, 2005 (“AGREEMENT”).
Now, Therefore,
in consideration of the AGREEMENT, and their mutual promises made
herein, BANK and BORROWER agree as follows:
1. Terms
which are typed herein as all capitalized words and are not defined
herein shall have same meanings as when described in the
AGREEMENT.
2. Notwithstanding
the provisions of Section 2.5 of the AGREEMENT, BORROWER has
requested that BANK defer the April 16, 2009 and July 16, 2009
principal payments due on the FIXED RATE NOTE, 2007 FIXED RATE
NOTE, and VARIABLE RATE NOTE until the LOAN TERMINATION DATE for
the TERM NOTES (“DEFERRED AMOUNTS”). BANK
agrees to such deferral, but does not waive its right to timely
payment of any other sums required by the
AGREEMENT. BORROWER acknowledges that the DEFERRED
AMOUNTS shall be due on or before the LOAN TERMINATION DATE for the
TERM NOTES.
3. BANK
and BORROWER have agreed to amend the interest rate of each of the
TERM NOTES. As the result, BORROWER and BANK agree that the
interest rate accruing on each of the TERM NOTES and REVOLVING NOTE
shall hereafter be payable at a rate equal to the three month LIBOR
RATE plus four hundred (400) basis points from time to time until
maturity, and six hundred (600) basis points in excess of said
aggregate interest rate from time to time after maturity, whether
by acceleration or otherwise. Interest shall be
calculated on the basis of a 360-day year, counting the actual
number of days elapsed. Interest accruing on the
principal balance outstanding on each of the TERM NOTES shall never
accrue at a rate less than six (6%) percent per annum.
4. Effective
immediately, Section 2.8.1 of the AGREEMENT is amended to
read:
2.8.1 Subject
to the terms hereof and BANK’s approval based on its sole
discretion, the BANK will lend the BORROWER, from time to time
until the LOAN TERMINATION DATE, such sums in integral multiples of
$10,000.00 as the BORROWER may request by reasonable same day
notice to the BANK, received by the BANK not later than 11:00 A.M.
of such day, but which shall not exceed in the aggregate principal
amount at any one time outstanding, $3,500,000.00 (the
“REVOLVING LOAN COMMITMENT”). The BORROWER
may borrow, repay without penalty or premium and reborrow
hereunder, from the date of this AGREEMENT until the LOAN
TERMINATION DATE, either the full amount of the REVOLVING LOAN
COMMITMENT or any lesser sum which is $10,000.00 or an integral
multiple thereof. It is the intention of the parties
that the ou