Exhibit 10.29


 


PROMISSORY NOTE


(Variable
Rate, Revolving Loan)


 


	
  Not to Exceed
  $3,000,000.00

  	
   

  	
  Sioux Falls, South Dakota

  
	
   

  	
   

  	
  March 30, 2005

  



 


FOR VALUE RECEIVED,
NORTHERN LIGHTS ETHANOL, LLC, a South Dakota Limited Liability Company (“Borrower”),
hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a
national banking association (“Lender”, which term shall include any future
holder hereof), at 141 N. Main Avenue, Sioux Falls, South Dakota, or at such
other place as Lender may from time-to-time designate in writing, in lawful
money of the United States of America, the principal sum of Three Million &
00/100 Dollars ($3,000,000.00) or so much thereof as may be advanced hereunder.


 


CALCULATION AND PAYMENT OF INTEREST. The unpaid
principal balance will bear interest at an annual rate equal to prime rate
announced by Lender from time-to-time (the ‘Prime Rate”). The interest rate
shall be adjusted each time that the Prime Rate changes. Lender will strive to
inform Borrower of each change in the Prime Rate, but each adjustment in the
Prime Rate is effective whether or not Lender informs Borrower of such change.
Payments of all interest accrued hereunder shall be made March 31, June 30,
September 30 and December 31 of
each year unless such day is not a Business day as defined in the Loan
Agreement (in which case the Business Day which immediately follows such day
shall apply) in which any amount is outstanding under the Note (the “Quarterly
Payment Date”). The first Quarterly Payment Date shall be June 30, 2005,
and an interest only payment shall be due that day and each Quarterly Payment Date thereafter
until March 31, 2008 (the “Maturity Date”), if there is any amount
outstanding hereunder on each such date. The Prime Rate applicable on the date
of this Note shall be five and seventy-five hundredths percent (5.7%). Interest
shall be calculated on a 365/360 simple basis; that is, by applying the ratio
of the annual interest rate over a year of 360 days, multiplied by the
outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding.


 


REVOLVING FEATURE.
Borrower may from time to time prior to the Maturity Date draw, on a revolving
basis, the difference of the outstanding principal amount hereunder and the
lesser of (i) the Borrowing Base and (ii) Three Million Dollars ($3,000,000.00)
(the greater of the two being the “Loan Maximum”). Lender’s obligation to make
any advance under this Promissory Note is conditioned upon (i) all
representations and warranties made by  Borrower in the Loan Agreement remaining true, accurate and complete,
(ii) Borrower’s continued compliance with all other terms and conditions of
this Promissory Note and the Loan Agreement, (iii) no Event of Default having
occurred under this Promissory Note, or any other Promissory Note between the
parties hereto, or under any other Loan Document, and (iv) Borrower shall
demonstrate to Lender’s satisfaction that the funds requested to be advanced
shall be used in the operation of Borrower’s ethanol production facility, and
not for other purposes, including funding distributions to members. Subject to
these conditions, Lender shall advance to Borrower hereunder, such amounts as
Borrower may from time-to-time request, not to exceed the total principal amount
at any one time outstanding hereunder of Three Million Dollars ($3,000,000.00).
Such requests for advances hereunder shall be funded the next Business Day if


 





















 


received by Lender not later than 11:00 a.m.
of any Business Day, subject to Lender requiring additional time to confirm
Borrower has satisfied the foregoing conditions at the time each such advance
is requested and made.


 


PAYMENT IN FULL AT MATURITY.
 The
total unpaid principal amount and all interest thereon and any other amount due
hereunder shall be payable on the Maturity Date. THIS NOTE REQUIRES A BALLOON
PAYMENT.


 


MANDATORY PAYMENTS PRIOR TO MATURITY. In
the event the amount outstanding hereunder at any time, including interest and
any other amounts, exceeds the amount which could be borrowed on such date
according to the then applicable Borrowing Base (the “Eligible Balance”),
Borrower shall immediately pay to Lender an amount not less than the difference
between such balance and the Eligible Balance.


 


BORROWING  BASE.  Definitions. As used in this Promissory
Note: ‘Borrowing Base” means, as of the day for which it is calculated, .75
(75%) of the total of (i) the fair market value of the outstanding Inventory,
(ii) the Eligible Accounts Receivable, and (iii) hedging accounts at fair
market value; “Inventory” means all Borrower’s corn, and ethanol, and DDGS
Inventory, as determined to Lender’s
satisfaction; ‘Eligible Accounts Receivable” means Accounts owned by Borrower
that were generated by Borrower’s sale of Inventory, minus Ineligible Accounts;
“Ineligible Accounts” means Accounts which either have been outstanding more
than 30 days, or Accounts which otherwise would be Eligible Accounts Receivable
that Lender determines in its discretion should not so qualify. Eligible
Accounts Receivable shall exclude Borrower’s “contra”
accounts and any other obligations
or offsets which any of Borrower’s account obligors
may claim against Borrower.


 


Borrower Reports. Each
request for an advance hereunder shall be accompanied by Borrowers report to
Lender evidencing the Borrowing Base as of the close of the previous Business
Day, in a form and containing such content as Lender shall from time-to-time
specify to Borrower, including but not limited to: reports of the Borrower’s
accounts itemized by age; reports of the Inventory itemized by type, including
its quantity, geographical location, and information identifying any third
party in possession or control thereof. Borrower Report shall also report
Eligible Accounts Receivable on a gross basis, and be itemized as to all
offsets that may be claimed by any account obligor as further set forth in the
definition of Eligible Accounts Receivable above, If at the end of any calendar
month any amount is outstanding hereunder, not later than the 15th day of the
following month, Borrower shall provide Lender a report containing the above
information as of the end of such prior month. Borrower shall also provide
Lender such reports at other times specified by Lender. The request for
advances shall be on the form attached hereto as Exhibit A, unless Lender
specifies otherwise.


 


Reasonable Processes and Controls. Borrower
shall maintain reasonable processes and controls, provide accurate calculation
of the Borrowing Base and otherwise assure compliance with the Lender’s
collateral audit program, including instituting policies requiring its employee
marketers to accurately enter each contract for purchase or sale of Inventory
(including other relevant


 


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information as to the status of the contract, including any dispute by
the other party thereto) into Borrower’s accounting system immediately upon
entry into the contract. Among other information which shall be available to
Lender on a daily basis are the
amount, identity, location, telephone number and other relevant information
concerning each account obligor, and the location and quantity of all
Inventory.


 


UNUSED COMMITMENT FEE.
Borrower shall pay Lender in
arrears each Quarterly Payment Date an unused commitment fee equal to
three-eights percent (3/8%) multiplied by the difference, if any, of the Loan
Maximum minus the average daily outstanding principal balance due hereunder for
such prior quarter.


 


PAYMENTS. All
payments under this Note shall be made in immediately available funds. In the
event there is no outstanding Event of Default, all payments made hereunder
shall be credited first to accrued
interest, next to unpaid principal, and next, in such order as Lender may
determined in its sole and absolute discretion, to other fees, charges, or
costs and expenses payable by Borrower under this Note or in connection with
any other Loan Document.


 


PREPAYMENTS. Borrower
may prepay this Note in whole or
in part at any time, and if in part from time-to-time, during the entire term
of this Note, without penalty or premium. No prepayment shall reduce the amount of any scheduled payment.


 


COLLATERAL; COORDINATION WITH LOAN AGREEMENT.
This Note is within the definition of the “Note” in
the Loan Agreement, and is subject to the additional terms and conditions set
forth in the Loan Agreement and the Loan Documents referred to therein. This
Note is secured by a Security Agreement dated March 30, 3005, and a
Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Financing
Statement dated as of July 11, 2001, on the Project, as well as other collateral described in the Loan Agreement and the other Loan
Documents. Capitalized terms not defined herein shall have the meaning given
such terms in the Loan Agreement.


 


LATE PAYMENT; GRACE PERIOD; DEFAULT. If
a payment due hereunder is not made within ten (10) days after the date when due, Borrower shall
pay to Lender a late payment charge of Five Hundred
Dollars ($500.00) to compensate Lender for a portion of the cost related to
handling the overdue payment Any
default under this Promissory Note, the Security Agreement dated March 30,
2005, or any Event of Default as
defined in the Loan Agreement, shall constitute an “Event of Default” for purposes of this Note. After any Event of
Default, the entire principal sum evidenced by this Note, together with all
accrued and unpaid interest, shall,
at the option of the holder hereof; bear interest at the rate per annum (the “Default
Rate”) equal to 3% in excess of the rate of interest per annum which would otherwise be payable hereunder, and become
immediately due and payable without further
notice (except as provided in the
Loan Agreement), demand or presentment for payment, and without any relief
whatever from any valuation or
appraisement laws.


 


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PAYMENT OF OTHER ITEMS.  If Borrower defaults under any of the terms
of this Note, Borrower shall pay all reasonable costs and expenses,
including without limitation attorneys’ fees (including any service tax
thereon) and costs, incurred by Lender in enforcing this Note immediately upon Lenders demand, whether or not any
action or proceeding is commenced by Lender. Without limiting the generality of
the preceding sentence, such costs and expenses shall include all attorneys’
fees and costs incurred by Lender in connection with any federal or state
bankruptcy, insolvency, reorganization, or other similar proceeding by or
against Borrower or any surety, guarantor or endorser of this Note which in any
way affects Lenders exercise of its rights and remedies under this Note or
under the Loan Agreement or any other Loan Document. Maker hereby stipulates
that Lender is a “regulated lender” within the meaning of SDCL 54-3-13 and
other applicable South Dakota statutes.


 


NO OFFSET. No
indebtedness evidenced by this Note shall be offset by all or part of any
claim, cause of action, or cross-claim of any kind, whether liquidated or
unliquidated, which Borrower now has or may hereafter acquire or allege to have
acquired against Lender. To the fullest extent permitted by law, Borrower
waives the benefits of any applicable law, regulation, or procedure which
provides, in substance, that where cross demands for money exist between
parties at any point in time when neither demand is barred by the applicable
statute of limitations, and an action is thereafter commenced by one such
party, the other party may assert the defense of payment in that the two
demands are compensated so far as they equal each other, notwithstanding that
an independent action asserting the claim would at the time of filing the
response be barred by the applicable statute of limitations.


 


CERTAIN BORROWER WAIVERS.
Borrower waives presentment, protest and demand, notice of protest, demand and
of dishonor and nonpayment of this Note and any lack of diligence or delays in
collection or enforcement of this Note. Borrower agrees that this Note, or any
payment hereunder, may be extended from time-to-time, and Borrower consents to
the release of any party liable for the obligation evidenced by this Note, the
release of any of the security for this Note, the acceptance of any other
security therefor, or any other indulgence or forbearance whatsoever, all
without notice to any party and without affecting the liability of Borrower.


 


APPLICABLE LAW. This
note shall be construed under and governed by the laws of the State of South
Dakota, without giving effect to conflict of laws or principles thereof; but
giving effect to federal laws of the United States applicable to national
banks. Whenever possible, each provision of this note and any other statement,
instrument or transaction contemplated hereby or relating hereto, shall be
interpreted in such manner as to be effective and valid under
such applicable law, but, if any provision of this note or any other statement,
instrument or transaction contemplated hereby or relating hereto shall be held
to be prohibited or invalid under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this note or any other statement, instrument or transaction contemplated hereby
or relating hereto.


 


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NO WAIVER; CERTAIN MISCELLANEOUS PROVISIONS.
Failure to exercise any option provided herein shall not constitute a waiver of
the right to exercise the same in the event of any subsequent default. No
modification or waiver by Lender of any of the terms of this Note shall be
valid or binding on Lender unless such modification or waiver is in writing and
signed by Lender. Without limiting the generality of the preceding sentence, no
delay, omission or forbearance by Lender in exercising or enforcing any of its
rights and remedies under this Note shall constitute a waiver of such rights or remedies. Lender’s
rights and remedies under this Note are cumulative with and in addition to all other legal and equitable rights and
remedies Lender may have in connection with the Loan. The headings of
paragraphs of this Note are for convenience of the parties only and shall not
be used in interpreting this Note. If this Note is lost, stolen, or destroyed,
upon Borrower’s receipt of a reasonably satisfactory indemnification agreement
executed by Lender, or if this Note is mutilated, upon Lender’s surrender of
the mutilated Note to Borrower, Borrower shall execute and deliver to Lender a
new promissory note which is identical in form and content to this Note to
replace the lost, stolen, destroyed or mutilated Note. Time is of the essence
in the performance of each provision of this Note by Borrower. All exhibits
hereto are incorporated herein.


 


AT THE OPTION OF LENDER, THIS NOTE MAY BE
ENFORCED IN ANY FEDERAL COURT OR SOUTH DAKOTA STATE COURT SITTING IN SIOUX
FALLS, SOUTH DAKOTA; AND BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY
SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.
IN THE EVENT BORROWER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE
UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE
RELATIONSHIP CREATED BY THIS NOTE, LENDER AT ITS OPTION SHALL BE ENTITLED TO
HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES
ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE
LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.


 


BORROWER AND LENDER EACH IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE OR ANY OF THE LOAN DOCUMENTS (AS DEFINED IN THE LOAN
AGREEMENT) OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


IN WITNESS WHEREOF, Borrower has executed
this Note as of the date first above written.


 


	
   

  	
  NORTHERN LIGHTS ETHANOL, LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Delton Strasser

  	
   

  
	
   

  	
   

  	
  Delton Strasser

  	
   

  
	
   

  	
   

  	
  Its:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


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