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):


•                  TERM NOTE 2
which has a current principal balance of $9,360,401.39


•                  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.


 


	
  Dakota Ethanol, L.L.C.

  	
   

  	
  First National Bank of Omaha

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
    /s/
  Brian Woldt

  	
   

  	
  By:

  	
    /s/
  Mark A. Baratta

  	
   

  
	
  Brian Woldt

  	
   

  	
   

  	
   

  
	
  Chairman of
  the Board of Governors

  	
   

  	
  Its:

  	
    Vice
  President

  	
   

  
						



 

















 


Exhibit 6-A


 


TERM NOTE 5

(Long Term Revolver)


 


	
  Note Date:
  March

  	
   

  	
  , 2006

  	
   

  	
  $5,000,000.00 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maturity
  Date: September 1, 2011

  	
   

  	
   

  



 


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
contemporaneously with such change in the BASE RATE. Interest shall be
calculated on the basis of a 360-day year, counting the actual number of days
elapsed.


 


REVOLVING
FEATURE. The BORROWER may reborrow, on a
revolving basis, that principal amount repaid on this promissory note which remains at a variable interest rate. BORROWER
will pay BANK an unused commitment fee of three-eighths of one percent (3/8%) assessed quarterly in
arrears against the unused portion of the note amount. Pursuant to this
revolving loan feature the BANK will lend the BORROWER, from time to time until
maturity of this note 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, $5,000,000.00.
The BORROWER may borrow, repay and reborrow hereunder, from the date of this
AGREEMENT until the maturity of this note, said amount or any lesser sum which
is $10,000.00 or an integral multiple thereof.


 


INCENTIVE PRICING.
The interest rate applicable to this promissory note is subject ‘to reduction
In the event that BORROWER maintains, as measured quarterly, the following
ratios, the interest rates will be reduced
accordingly, for the subsequent quarter:


 


	
  If the Ratio of INDEBTEDNESS to

  	
   

  	
   

  
	
  NET WORTH is:

  	
   

  	
  Interest rate will be:

  
	
   

  	
   

  	
   

  
	
  Equal to or
  greater than 1.01:100

  	
   

  	
  BASE RATE
  plus 50 basis points

  
	
   

  	
   

  	
   

  
	
  Greater than
  .75:1.00, but less than 1.01:1.00

  	
   

  	
  BASE RATE
  plus 25 basis points

  
	
   

  	
   

  	
   

  
	
  Less than or
  equal to .75:1.00

  	
   

  	
  BASE RATE
  plus 0 basis points

  



 


REPAYMENT TERMS.
BORROWER will pay quarterly payments of interest. Any outstanding principal
balance, plus any accrued but unpaid interest, shall be fully due and payable
on September 1, 2011, if not sooner paid.


 


ADDITIONAL TERMS AND CONDITIONS.
The CONSTRUCTION LOAN AGREEMENT, and any amendments or substitutions, contains
additional terms and conditions, including default and acceleration provisions,
which are incorporated into this promissory note by reference. The BORROWER
agrees to pay all costs of collection, including reasonable attorneys
fees and legal expenses incurred by the BANK if this promissory note is not
paid as provided above. This promissory note shall be governed by the
substantive laws of the State of Nebraska.


 


WAIVER OF PRESENTMENT AND NOTICE OF DISHONOR.
BORROWER and any other person who signs, guarantees or endorses this promissory
note, to the extent allowed by law, hereby waives presentment, demand for
payment, notice of dishonor, protest, and any notice relating to the
acceleration of the maturity of this promissory note.


 


DAKOTA
ETHANOL, L.L.C.


 


	
  By

  	
    /s/
  Brain Woldt

  	
   

  
	
  Brian Woldt,

  
	
  Chairman of
  the Board of Governors

  



 

















 


STATE OF S. D.                   )


 


) ss.


 


COUNTY OF Lake      )


 


On this 28 day of March, 2006,
before me, the undersigned, a Notary Public, personally appeared Brian Woldt,
Chairman of the Board of Governors of Dakota Ethanol, L.L.C., on behalf of said
entity, who executed the foregoing instrument, and
acknowledged that he executed the same as his voluntary act and deed.


 


 


	
   

  	
  /s/ Illegible Signature  9-22-2007

  
	
   

  	
  Notary Public

  



 

















 


	
  Dakota Ethanol, LLC

  	
   

  	
  [Handwritten: Dakota]

  
	
  2000060491-003
  (Repl)

  	
   

  	
   

  



 


TERM NOTE 5


(Long Term Revolver)


 


	
  Note Date:
  March 23, 2006

  	
   

  	
  $5,000,000.00

  
	
  Maturity
  Date: September 1, 2011

  	
   

  	
   

  



 


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 (the “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 contemporaneously with such change in the BASE
RATE. Interest shall be calculated on the basis of a 360-day year, counting the
actual number of days elapsed.


 


REVOLVING
FEATURE. The BORROWER may reborrow, on a
revolving basis, that principal amount repaid on this promissory note which
remains at a variable interest rate. BORROWER
will pay BANK an unused commitment fee of three-eighths of one percent (3/8%)
assessed quarterly in arrears against the unused portion of the note amount. Pursuant
to this revolving loan feature the BANK will lend the BORROWER, from time to
time until maturity of this note 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, $5,000,000.00.
The BORROWER may borrow, repay and reborrow hereunder, from the date of this
AGREEMENT until the maturity of this note, said amount or any lesser sum which
is $10,000.00 or an integral multiple thereof.


 

















 


INCENTIVE
PRICING. The
interest rate applicable to this promissory note is subject to reduction. In
the event that BORROWER maintains, as measured quarterly, the following ratios,
the interest rates will be reduced accordingly, for the subsequent quarter:


 


	
  If the Ratio of INDEBTEDNESS to

  	
   

  	
   

  
	
  NET WORTH is:

  	
   

  	
  Interest rate will be:

  
	
   

  	
   

  	
   

  
	
  Equal to or
  greater than 1.01:1.00

  	
   

  	
  BASE RATE
  plus 50 basis points

  
	
   

  	
   

  	
   

  
	
  Greater than
  .75:1.00, but less than 1.01:1.00

  	
   

  	
  BASE RATE
  plus 25 basis points

  
	
   

  	
   

  	
   

  
	
  Less than or
  equal to .75:1.00

  	
   

  	
  BASE RATE
  plus 0 basis points

  



 


REPAYMENT
TERMS. BORROWER will pay quarterly payments of
interest. Any outstanding principal balance, plus any accrued but unpaid
interest, shall be fully due and payable on September 1, 2011, if not sooner
paid.


 


ADDITIONAL
TERMS AND CONDITIONS. The CONSTRUCTION LOAN
AGREEMENT, and any amendments or substitutions, contains additional terms and
conditions, including default and acceleration provisions, which are
incorporated into this promissory note by reference. The BORROWER agrees to pay
all costs of collection, including reasonable attorneys
fees and legal expenses incurred by the BANK. if this
promissory note is not paid as provided above. This promissory note shall be
governed by the substantive laws of the State of Nebraska.


 


WAIVER
OF PRESENTMENT AND NOTICE OF DISHONOR. BORROWER
and any other person who signs, guarantees or endorses this promissory note, to
the extent allowed by law, hereby waives presentment, demand for payment,
notice of dishonor, protest, and any notice relating to the acceleration of the
maturity of this promissory note.


 


DAKOTA
ETHANOL, L.L.C.


 


	
  By

  	
    /s/
  Brian Woldt

  	
   

  
	
  Brian Woldt,

  
	
  Chairman of
  the Board of Governors

  



 


STATE OF S. Dakota
)


 


)ss.


 


COUNTY OF Lake)


 


On this 28 day of March, 2006,
before me, the undersigned, a Notary Public, personally appeared Brian Woldt,
Chairman of the Board of Governors of Dakota Ethanol, L.L.C., on behalf of said
entity, who executed the foregoing instrument, and
acknowledged that he executed the same as his voluntary act and deed.


 


	
   

  	
  /s/
  Illegible Signature   9-22-2007

  
	
   

  	
  Notary Public