Exhibit 10.1


 


EXECUTION VERSION


 


AMENDMENT
NO. 3 TO FORBEARANCE AGREEMENT 


 


THIS AMENDMENT
No. 3 TO FORBEARANCE AGREEMENT (this “Agreement”) is made and entered into as of September 20, 2016 by
and among DAKOTA PLAINS TRANSLOADING, LLC, a Minnesota limited liability company (“Dakota Transloading”), DAKOTA
PLAINS SAND, LLC, a Minnesota limited liability company (“Dakota Sand”), DAKOTA PLAINS MARKETING, LLC, a Minnesota
limited liability company (“Dakota Marketing” and, together with Dakota Transloading and Dakota Sand, the “Borrowers”),
DAKOTA PLAINS HOLDINGS, INC., a Nevada corporation (“Holdings”), DPTS MARKETING LLC, a Minnesota limited liability
company (“DPTSM”), DAKOTA PETROLEUM TRANSPORT SOLUTIONS, LLC, a Minnesota limited liability company (“DPTS”),
DPTS SAND, LLC, a Minnesota limited liability company (“DPTS Sand” and, together with Holdings, DPTSM and DPTS,
the “Guarantors”), the Lenders (the “Lenders”) from time to time party to the Credit Agreement
(defined below) and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (in such capacity, “Administrative
Agent”) and as Issuing Bank. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed
to such terms in the Credit Agreement (defined below).


 


RECITALS


 


A.          The Borrowers, Holdings, the Lenders
and the Administrative Agent are parties to that certain Revolving Credit and Term Loan Agreement, dated as of December 5, 2014
(as amended by that certain Amendment No. 1 to Revolving Credit and Term Loan Agreement dated as of August 6, 2015, as amended
by that certain Amendment No. 2 and Waiver to Revolving Credit and Term Loan Agreement dated as of December 4, 2015, as amended
by that certain Amendment No. 3 to Revolving Credit and Term Loan Agreement, Amendment No. 1 to Forbearance Agreement and One Time
Waiver of Revolving Loan Borrowing Requirements dated as of July 5, 2016, as amended by that certain Amendment No. 4 to Revolving
Credit and Term Loan Agreement and One Time Waiver of Revolving Loan Borrowing Requirements dated as of August 5, 2016, and as
further amended, restated, supplemented, replaced, refinanced or otherwise modified from time to time, the “Credit Agreement”).


 


B.          The Loan Parties,
the Administrative Agent and the Lenders are party to that certain Forbearance Agreement dated as of May 3, 2016 (as amended by
that certain Amendment No. 3 to Revolving Credit and Term Loan Agreement, Amendment No. 1 to Forbearance Agreement and One Time
Waiver of Revolving Loan Borrowing Requirements dated as of July 5, 2016, as amended by that certain Amendment No. 2 to Forbearance
Agreement dated as of September 1, 2016, and as further amended, restated, supplemented, replaced or otherwise modified from time
to time, the “Forbearance Agreement”), pursuant to which the Administrative Agent and Lenders are presently
forbearing from exercising certain rights and remedies available to them under the Credit Agreement, Loan Documents and applicable
law, which rights and remedies arose exclusively as a result of the occurrence, existence or continuation of the Anticipated Events
of Default (as defined in the Forbearance Agreement).


 


C.          The Loan Parties
have requested that the Administrative Agent and the Lenders amend the Forbearance Agreement as set forth herein.


 


D.          The Administrative
Agent and the Lenders have agreed to do so, but only pursuant to the terms and conditions set forth herein.


 






    	 



     


    

 


AGREEMENT


NOW, THEREFORE, IN CONSIDERATION
of the premises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.          Estoppel,
Acknowledgement and Reaffirmation. Each of the Loan Parties acknowledges and agrees that, as of September 20, 2016: the aggregate
outstanding principal amount of the Tranche A Term Loan was not less than $12,925,000; the aggregate outstanding principal amount
of the Tranche B Term Loan was not less than $22,500,000; the aggregate outstanding principal amount of all Revolving Loan was
not less than $21,500,000; and the LC Exposure was $0; each of which constitutes a valid and subsisting obligation of the Loan
Parties to the Lenders that is not subject to any credits, offsets, defenses, claims, counterclaims or adjustments of any kind.


2.          Consent,
Reaffirmation and Ratification. By its signature below, each of the undersigned Loan Parties hereby: (a) acknowledges and consents
to this Agreement and the terms and provisions hereof; (b) reaffirms the covenants and agreements contained in each Loan Document
to which it is a party, including, in each case, as such covenants and agreements may be modified by this Agreement and the transactions
contemplated hereby; (c) reaffirms that each of the Liens created and granted in, or pursuant to, the Loan Documents in favor of
the Administrative Agent, for the benefit of the holders of the Obligations, is valid and subsisting and acknowledges and agrees
that this Agreement shall in no manner impair or otherwise adversely affect such Liens, except as explicitly set forth herein;
and (d) confirms that each Loan Document to which it is a party is and shall continue to be in full force and effect and the same
is hereby ratified and confirmed in all respects, except that upon the effectiveness of this Agreement, all references in such
Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import shall
mean the Credit Agreement and the Loan Documents, as the case may be, as in effect and modified by this Agreement.


3.         Amendments
to Forbearance Agreement. 


            (a)
       The penultimate sentence of Section 3 of the Forbearance Agreement is hereby amended
and restated in its entirety as follows:


As
used herein, a “Forbearance Termination Event” shall mean the earliest of the following to occur: (a) any Default
or Event of Default under the Credit Agreement or the other Loan Documents other than the Anticipated Events of Default; (b) a
breach by any Loan Party of any obligation or covenant under this Agreement; and (c) November 30, 2016 (such date, the “Forbearance
Termination Date”).


 


            (b)          Clause
(ii) of Section 7 of the Forbearance Agreement is hereby amended and restated in its entirety as follows:


(ii) conduct,
at such times and on such dates as reasonably requested by the Administrative Agent, a status update (in the form of a conference
call with the Administrative Agent) regarding the Loan Parties’ business operations, financial performance, liquidity position,
sale process and the status of any material events or litigation.





 


4.         Agent Financial
Advisor/Restructuring Officer. The Administrative Agent may engage (or direct its counsel to engage) a financial or restructuring
advisor (the “Agent Advisor”) to, among other things, perform a review of the Loan Parties’ financial
performance, financial reporting, financial forecasts, accounting details, operations and other related matters. In connection
therewith, the Loan Parties shall cooperate with the Agent Advisor and provide the Agent Advisor with reasonable access to such
of the Loan Parties’ facilities, employees, management and financial information as is necessary for the Agent Advisor perform
the services within the scope of its engagement, which access shall include without limitation all visitation and inspection rights
of the Administrative Agent under Section 5.7 of the Credit Agreement.


 






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5.         Forbearance Period
Milestones. The Loan Parties shall satisfy the following milestones on or before the date specified therefore:


 


(a)           on
or before October 30, 2016, the Loan Parties shall have received one or more executed letters of intent for the purchase of all
or substantially all of the Loan Parties’ equity or assets (such transaction, a “Potential Transaction”)
from potential purchasers with demonstrated ability to close a Potential Transaction (each such potential purchaser, a “Potential
Purchaser”); and 


(b)          on
or before November 20, 2016, the Loan Parties and one or more Potential Purchasers shall have entered into a definitive asset
purchase agreement for the sale of all or substantially all of the Loan Parties’ equity or assets. 


6.         Costs and Expenses.
The Borrowers shall pay all reasonable and documented out-of-pocket fees, costs and expenses incurred by the Administrative Agent
and the Lenders (including, without limitation, the reasonable and documented fees and out-of-pocket costs and expenses of counsel)
incurred in connection with the Credit Agreement, this Agreement and the other Loan Documents through the Effective Date (defined
below).


 


7.         Conditions
Precedent. This Agreement shall be effective as of the date hereof (the “Effective Date”) when, and only
when, each of the following conditions shall have been satisfied or waived, in the sole discretion of the Administrative Agent: 


 


(a)          The
Administrative Agent shall have received counterparts of this Agreement duly executed by each of the Loan Parties, the Lenders
and the Administrative Agent. 


(b)          The
Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which such Loan Party is a party. 


(c)          Counsel to the Administrative Agent shall have received reimbursement from the Loan Parties for all reasonable
fees, costs and expenses charged the Administrative Agent and the Lenders
in connection with the Credit Agreement, this Agreement and the other Loan Documents through the Effective Date. 


8.         Incorporation
of Agreement. Except as specifically modified herein, the terms of the Loan Documents shall remain in full force and effect.
The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of the
Administrative Agent under the Loan Documents, or constitute a waiver or amendment of any provision of the Loan Documents, except
as expressly set forth herein. The breach in any material respect of any provision or representation under this Agreement shall
constitute an immediate Event of Default under the Credit Agreement, and this Agreement shall constitute a Loan Document.


 






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9.         Representations
of the Loan Parties. Each of the Loan Parties represents and warrants to the Administrative Agent and the Lenders as follows:


 


(a)          Except
as acknowledged herein, no Default or Event of Default exists under the Loan Documents on and as of the date hereof. 


(b)          It
has taken all necessary action to authorize the execution, delivery and performance of this Agreement and any other documents
delivered by it in connection herewith.


(c)          This
Agreement and each other document delivered by it in connection herewith has been duly executed and delivered by such Person and
constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding at law or in equity). 


(d)          No
consent, approval, authorization or order of, registration or qualification with, any court or Governmental Authority or third
party is required in connection with the execution, delivery or performance by such Person of this Agreement. 


(e)          The
execution and delivery of this Agreement or any other document delivered by it in connection herewith does not (i) violate, contravene
or conflict with any provision of its organizational documents or (ii) materially violate, contravene or conflict with any laws
applicable to it or any of its Subsidiaries. 


(f)          After
giving effect to this Agreement, the representations and warranties of the Loan Parties contained in the Loan Documents, as supplemented
by the disclosures on Schedule 11(f) to the Forbearance Agreement, are true, accurate and complete in all materials respects
on and as of the date hereof to the same extent as though made on and as of such date except to the extent such representations
and warranties specifically relate to an earlier date. 


10.       Release; No Action,
Claims, Etc.. In consideration of the Administrative Agent’s, the Lenders’ and the Issuing Bank’s willingness
to enter into this Agreement, each of the Loan Parties hereby releases and forever discharges the Administrative Agent, the Lenders,
the Issuing Bank and each of the Administrative Agent’s, Lenders’ and Issuing Bank’s respective predecessors,
successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives, and affiliates (hereinafter
all of the above collectively referred to as the “Lender Group”), from any and all claims, counterclaims, demands,
damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, in each case to the extent arising in
connection with the Loan Documents through the date of this Agreement, whether arising at law or in equity, whether known or unknown,
whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen, and
whether or not heretofore asserted, which each of the Loan Parties may have or claim to have against any of the Lender Group. As
of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of
action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against any member of the Lender
Group arising from any action by such Person, or failure of such Person to act under the Loan Documents on or prior to the date
hereof.


 






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11.       Further Assurances.
Each of the parties hereto agrees to execute and deliver, or to cause to be executed and delivered, all such instruments as may
reasonably be requested to effectuate the intent and purposes, and to carry out the terms, of this Agreement.


 


12.       No Third Party
Beneficiaries. This Agreement and the rights and benefits hereof shall inure to the benefit of each of the parties hereto and
their respective successors and assigns. No other Person shall have or be entitled to assert rights or benefits under this Agreement.


 


13.       Governing Law;
Jurisdiction; Consent to Service of Process; Waiver of Jury Trial. The governing law, jurisdiction, consent to service of process
and waiver of jury trial provisions set forth in Sections 10.5 and 10.6 of the Credit Agreement are hereby incorporated by reference,
mutatis mutandis.


 


14.       Entirety.
This Agreement and the other Loan Documents embody the entire agreement between the parties and supersede all prior agreements
and understandings, if any, relating to the subject matter hereof. This Agreement and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of
the parties.


 


15.       Miscellaneous


 


(a)          This
Agreement shall be binding on and shall inure to the benefit of the Loan Parties, the Administrative Agent, the Lenders and their
respective successors and permitted assigns. It is the intent of the undersigned Lenders that any third party acquiring any such
Lender’s rights and obligations under the Credit Agreement shall, with respect to such Lender’s portion of the Loan,
be subject to, and bound by, the terms and conditions of this Agreement. The terms and provisions of this Agreement are for the
purpose of defining the relative rights and obligations of the Loan Parties, the Administrative Agent, the Issuing Bank and the
Lenders with respect to the transactions contemplated hereby and there shall be no third party beneficiaries of any of the terms
and provisions of this Agreement. 


(b)          Section
headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement
for any other purpose. 


(c)          Wherever
possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions
of this Agreement. 


(d)          Except
as otherwise expressly provided in this Agreement, if any provision contained in this Agreement is in conflict with, or inconsistent
with, any provision in the Loan Documents, the provision contained in this Agreement shall govern and control. 


(e)          This
Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one
agreement. Delivery of an executed counterpart of this Agreement by telecopy or other electronic means shall be effective as an
original. 



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(f)          This
Agreement does not represent a commitment by the Lenders and/or the Administrative Agent to make any new loans, restructure the
Obligations or grant or extend any financial accommodations to the Loan Parties, except for the agreements expressly set forth
herein. 


 


16.       No Waiver.
Nothing herein shall constitute a waiver of the Anticipated Events of Default, as such term is defined in the Forbearance Agreement.


 


[Signature pages follow.]


 




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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
and delivered as of the date first above written. 





	 	 	 	 
	BORROWERS:	DAKOTA PLAINS TRANSLOADING, LLC	 
	 	 	 	 
	 	By:	/s/ Gabriel G. Claypool	 
	 	Name:	Gabriel G. Claypool	 
	 	Title:	President, CEO and Secretary	 
	 	 	 	 
	 	DAKOTA PLAINS SAND, LLC	 
	 	 	 	 
	 	By:	/s/ Gabriel G. Claypool	 
	 	Name:	Gabriel G. Claypool	 
	 	Title:	President, CEO and Secretary	 
	 	 	 	 
	 	DAKOTA PLAINS MARKETING, LLC	 
	 	 	 	 
	 	By:	/s/ Gabriel G. Claypool	 
	 	Name:	Gabriel G. Claypool	 
	 	Title:	President, CEO and Secretary	 
	 	 	 	 
	HOLDINGS:	DAKOTA PLAINS HOLDINGS, INC.	 
	 	 	 	 
	 	By:	/s/ Gabriel G. Claypool	 
	 	Name:	Gabriel G. Claypool	 
	 	Title:	President and COO	 
	 	 	 	 
	SUBSIDIARY LOAN PARTIES:	DPTS MARKETING LLC	 
	 	 	 	 
	 	By:	/s/ Gabriel G. Claypool	 
	 	Name:	Gabriel G. Claypool	 
	 	Title:	Manager	 
	 	 	 	 
	 	DAKOTA PETROLEUM TRANSPORT SOLUTIONS, LLC
	 	 	 	 
	 	By: 	/s/ Gabriel G. Claypool	 
	 	Name:	Gabriel G. Claypool	 
	 	Title:	Manager	 
	 	 	 	 
	 	DPTS SAND, LLC,	 
	 	 	 	 
	 	By:	/s/ Gabriel G. Claypool	 
	 	Name:	Gabriel G. Claypool	 
	 	Title:	Manager	 





















 


SIGNATURE
PAGE

DAKOTA PLAINS – AMENDMENT NO. 3 TO FORBEARANCE AGREEMENT







 







    	 



     


    

 





	ADMINISTRATIVE	 	 	 
	AGENT:	SUNTRUST BANK,	 
	 	as Administrative Agent	 
	 	 	 	 
	 	By: 	/s/ Janet R. Naifeh	 
	 	Name:	Janet R. Naifeh	 
	 	Title:	Senior Vice President	 
	 	 	 	 
	LENDERS:	SUNTRUST BANK,	 
	 	as a Lender and Issuing Bank	 
	 	 	 	 
	 	By:	/s/ Janet R. Naifeh	 
	 	Name:	Janet R. Naifeh	 
	 	Title:	Senior Vice President	 










 


SIGNATURE
PAGE

DAKOTA PLAINS – AMENDMENT NO. 3 TO FORBEARANCE AGREEMENT