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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10

 

GENERAL FORM FOR REGISTRATION OF SECURITIES

Pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934

 

HERON LAKE BIOENERGY, LLC

(Exact name of registrant as specified in its charter)

 

Minnesota

 

41-2002393

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

 

 

91246 390th Avenue

 

 

Heron Lake, Minnesota

 

56137-3175

(Address of principal executive offices)

 

(Zip Code)

 

 

With copy to:

 

April Hamlin, Esq.

Michael L. Weaver, Esq.

Lindquist & Vennum P.L.L.P.

4200 IDS Center

80 South Eighth Street

Minneapolis, Minnesota 55402

Telephone: (612) 371-3211

Facsimile: (612) 371-3207

 

 

Registrant’s telephone number, including area code:   (507) 793-0077

 

Securities to be registered pursuant to Section 12(b) of the Act:   None

 

Securities to be registered pursuant to Section 12(g) of the Act:   Class A Units

   (Title of Class)

 

Indicate by checkmark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company:

 

Large Accelerated Filer

o

 

Accelerated Filer

o

 

 

 

 

 

Non-Accelerated Filer

o

 

Smaller Reporting Company

x

 

 

 



Table of Contents

 

TABLE OF CONTENTS

 

 

PAGE

 

 

Item 1. Business

1

 

 

Item 1A. Risk Factors

16

 

 

Item 2. Financial Information

29

 

 

Item 3. Properties

42

 

 

Item 4. Security Ownership of Certain Beneficial Owners and Management

43

 

 

Item 5. Directors and Executive Officers

45

 

 

Item 6. Executive Compensation

48

 

 

Item 7. Certain Relationships And Related Transactions, and Director Independence

51

 

 

Item 8. Legal Proceedings

55

 

 

Item 9. Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

56

 

 

Item 10. Recent Sales of Unregistered Securities

57

 

 

Item 11. Description of Registrant’s Securities to be Registered

58

 

 

Item 12. Indemnification of Directors and Officers

61

 

 

Item 13. Financial Statements and Supplementary Data

62

 

 

Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

63

 

 

Item 15. Financial Statements and Exhibits

64

 



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BACKGROUND

 

Withdrawn Form 10

 

On February 28, 2006, Heron Lake BioEnergy, LLC filed with the Securities and Exchange Commission, or SEC, a registration statement on Form 10.  On April 19, 2006, we submitted a request to withdraw such registration statement, which was granted on the same date. You should rely only on the disclosure in this registration statement on Form 10, as amended, and not the disclosure in the withdrawn registration statement on Form 10.

 

Industry and Market Data

 

We obtained the industry, market and competitive position data used throughout this registration statement from our own research, studies conducted by third parties, independent industry associations or general publications and other publicly available information.  In particular, we have based much of our discussion of the ethanol industry, including government regulation relevant to the industry and forecasted growth in demand, on information published by the Renewable Fuels Association, the national trade association for the U.S. ethanol industry.  Because the Renewable Fuels Association is a trade organization for the ethanol industry, it may present information in a manner that is more favorable to that industry than would be presented by an independent source.  Forecasts and forward-looking statements by the Renewable Fuels Association are particularly likely to be inaccurate, especially over long periods of time.

 

Ethanol Units

 

All references in this registration statement to gallons of ethanol are to gallons of denatured ethanol.  Denatured ethanol is ethanol blended with up to approximately 5.0% denaturant, such as gasoline, to render it undrinkable and thus not subject to alcoholic beverage taxes.

 

Caution Regarding Forward-Looking Statements

 

This registration statement contains forward-looking statements.  In some cases, you can identify these statements by forward-looking words such as “may,” “might,” “will,” “should,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “intends,” “potential” and similar expressions.  All of the forward-looking statements contained in this registration statement are based on estimates and assumptions made by our management. These estimates and assumptions reflect our best judgment based on currently known market and other factors. Although we believe such estimates and assumptions are reasonable, they are inherently uncertain and involve risks and uncertainties. In addition, management’s assumptions about future events may prove to be inaccurate. We caution you that the forward-looking statements contained in this registration statement are not guarantees of future performance and we cannot assure you that such statements will be realized. In all likelihood, actual results will differ from those contemplated by such forward-looking statements as a result of a variety of factors, including those factors discussed in “Item 1. Business — Risk Factors.” Except as required by law, we undertake no obligation to update any of these forward-looking statements.

 



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Item 1.  Business

 

Business Development

 

Overview

 

We were organized as a Minnesota limited liability company on April 12, 2001 under the name “Generation II, LLC.”  In June 2004, we changed our name to Heron Lake BioEnergy, LLC.

 

When we use the terms “Heron Lake BioEnergy,” “we,” “us,” “our,” the “Company” or similar words in this Registration Statement on Form 10, unless the context otherwise requires, we are referring to Heron Lake BioEnergy, LLC and its subsidiary, Lakefield Farmers Elevator, LLC.  Additionally, when we refer to “units” in this Registration Statement on Form 10, unless the context otherwise requires, we are referring to the Class A units of Heron Lake BioEnergy, LLC, which is described in detail in “Item 11. Description of Registrant’s Securities to be Registered” of this Registration Statement on Form 10.

 

Our principal executive offices are located at 91246 390th Avenue, Heron Lake, Minnesota 56137 and our telephone number is 507-793-0077.

 

Business of Heron Lake BioEnergy

 

We were formed for the purpose of constructing and operating an ethanol manufacturing facility near Heron Lake, Minnesota.  In February 2002, we obtained an option on land that is now part of the 216 acre site of our ethanol plant.  From our formation until the selection of our site, our business was primarily devoted to organization of our limited liability company and initial capitalization, investigating ethanol manufacturing process technologies, analyzing corn supply, analyzing site and related infrastructure and improvements and evaluating the ethanol industry.

 

In early 2004, we selected Fagen, Inc. to be the design-build firm to build our ethanol plant near Heron Lake, Minnesota, using process technology provided by ICM, Inc.  In September 2005, we entered into a lump-sum design-build agreement with Fagen, Inc.  Following selection of our design build firm, our efforts through the start of plant operations in September 2007 were devoted principally to developing and constructing our ethanol plant and related activities, including:

 

·                   the completion of the equity and debt financings necessary to fund our development efforts and to fund the construction and start-up of our ethanol plant;

 

·                   entering into the definitive construction contracts with Fagen, Inc. to construct the ethanol plant;

 

·                   the acquisition and preparation of our plant site near Heron Lake, Minnesota; and

 

·                   securing the necessary permits to construct the ethanol plant.

 

Additionally, on December 15, 2005, we purchased certain assets relating to elevator and grain storage facilities in Lakefield, Minnesota and Wilder, Minnesota for a total purchase price of approximately $3.1 million that we paid in cash.  The Lakefield and Wilder facilities are each less than 15 miles away from our plant.  The elevator and grain storage facilities, which provide us with additional storage of corn inventory and allow us to more favorably procure corn for the operation of our plant, have approximately 2.8 million bushels of combined upright and flat storage capacity and grain handling equipment.  We operate these facilities through our wholly-owned subsidiary, Lakefield Farmers Elevator, LLC.

 

On September 21, 2007, we began operations at our dry mill, coal fired ethanol plant.  Therefore, the period ended April 30, 2008 is the first full six months that includes revenue generated from our operations.  In the six months ended April 30, 2008, we sold approximately 25.6 million gallons of ethanol.  At nameplate, the ethanol plant has the capacity to process approximately 18.0 million bushels of corn each year, producing approximately 50 million gallons per year (mgy) of fuel-grade ethanol and approximately 160,000 tons of distillers grains with solubles. Under our design-build agreement with Fagen, Inc., the total cost for the design and construction of the plant was approximately $76.7 million.  Change orders increased the total cost with Fagen, Inc. to approximately $81.3 million.

 

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As of April 30, 2008, $77.5 million has been paid and we have retained approximately $3.8 million in payments to Fagen, Inc.  Final payment will be due when final completion of construction is achieved and the operation of our plant satisfies the air emissions warranties specified in the design-build agreement with Fagen, Inc.

 

Since the beginning of operations at our ethanol plant, our primary business is the production and sale of ethanol and co-products, including dried distillers grains.  We currently do not have or anticipate we will have any other lines of business or other significant sources of revenue other than the sale of ethanol and ethanol co-products.

 

History of Financing

 

We funded our early development activities through sales of our units and, to a lesser extent, from grants.  From inception through April 30, 2008, we have received approximately $48.7 million in gross proceeds from the sale of our units at prices from $0.50 per unit to $2.00 per unit.  We have also issued units for the purchase of land and an easement, as well as issued warrants to purchase units in consideration of the services of our board of governors.  From inception through April 30, 2008, we have received $250,000 in grant proceeds.

 

From our inception to October 2004, we received $1.2 million in gross proceeds from sales of our units as initial seed capital.  Of the gross proceeds we received from the sale of our units, $40.0 million of the gross proceeds was received from the sale of 21,604,875 units at a price of $2.00 per unit, subject to discounts, through an offering registered in the State of Minnesota.  We closed on the proceeds of this offering in October 2005.

 

In September 2005, we closed on senior debt financing with AgStar Financial Services, PCA, which consisted of $59.9 million in a term note and $2.0 million in a revolving line of credit.  With the proceeds from the sale of units in October 2005 and this senior debt financing, we broke ground on plant construction at our site in Heron Lake, Minnesota in November 2005.

 

In November 2006, our revolving line of credit was increased by $3.7 million to $5.7 million.  In December 2006, AgStar Financial Services increased our construction loan by $4.7 million.  In December 2006, we also completed a $7.5 million private placement of 3,750,000 Class B units at $2.00 per unit to Project Viking, LLC.  We used the proceeds from the sale of the Class B units, along with the additional debt availability from AgStar Financial Services, to fund increased construction costs of our plant.

 

In April 2007, Project Viking, LLC exchanged its Class B units for an equal number of Class A units.  As of July 31, 2008, Project Viking, LLC holds 21.8% of our outstanding units.  Project Viking, LLC is owned by Roland J. (Ron) Fagen and Diane Fagen, the principal shareholders of Fagen, Inc., our design-build firm.

 

In May 2007, we increased the availability on our revolving line of credit by $1.8 million to a total of $7.5 million to provide us with additional working capital for the operation of our business.

 

In July 2007, Ron Fagen loaned us approximately $4.2 million for the purchase of corn inventory and retention of previously purchased corn inventory. We repaid this note in November 2007.

 

In October 2007, our construction loan from AgStar Financial Services was amended and converted into an approximately $59.6 million term note and a $5.0 million revolving term note.  In November 2007, we entered into an agreement with AgStar Financial Services to renew our $7.5 million revolving line of credit.

 

In addition, we have obtained loans for specific purposes, such as to finance the purchase of electrical equipment that services our ethanol plant and for water treatment facilities.

 

Our Ethanol Plant

 

Our ethanol plant uses a dry milling process to produce fuel-grade ethanol and distillers grains.  The dry milling process involves grinding the entire corn kernel into flour and the starch is converted to ethanol through fermentation that also produces carbon dioxide and distillers grains.

 

The ethanol plant consists principally of a coal handling, storage and combustion area; storage and processing areas for corn; a fermentation area comprised mainly of fermentation tanks; a distillation finished product storage area; and a drying unit for processing the dried distillers grains. Additionally, the ethanol plant contains receiving facilities that have the ability to receive corn by rail and truck, store it for use in the plant and prepare the corn to be used in the plant.  We have storage tanks on site to store the ethanol we produce.  The plant also contains a storage building and silos to hold distillers grains until it is shipped to market.

 

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Description of Design-Build Agreement

 

On September 28, 2005 we entered into a Standard Form of Agreement between Owner and Designer — Lump Sum (referred to in this Registration Statement on Form 10 as the “design-build agreement”) with Fagen, Inc. Under the design-build agreement, Fagen, Inc. agreed to design and build a 50 mgy coal-fired ethanol plant near Heron Lake, Minnesota for a lump-sum price of approximately $76.7 million, subject to certain adjustments as described below.  Under the design-build agreement, Fagen, Inc. also agreed to utilize certain proprietary property and information of ICM, Inc. in the design and construction of our ethanol plant.

 

We have made payments to Fagen, Inc. as required under the design-build agreement and as provided in the design-build agreement.  We retained 10% of each payment until 50% of the required work was completed by Fagen, Inc.  As of April 30, 2008, we have retained approximately $3.8 million in payments to Fagen, Inc.  We will release to Fagen, Inc. all retained amounts when final completion of construction is achieved and the operation of our plant satisfies the air emissions warranties specified in the design-build agreement with Fagen, Inc.

 

Under the design-build agreement, substantial completion of the entire project must be achieved no later than 485 calendar days after the date of commencement of Fagen, Inc.’s work, excluding any delays caused by the modification of our construction air emission permit.  Following substantial completion of the work and delivery of a certificate of substantial completion, final completion of the work or identified portions of the work will be achieved as expeditiously as reasonably practicable, but not later than 60 days following issuance of the certificate.  Fagen, Inc. formally accepted our notice to proceed on May 1, 2006 and we delivered a certificate of substantial completion stating that substantial completion was achieved as of September 21, 2007.

 

If substantial completion is attained within 470 days after the date of commencement, we will pay Fagen, Inc. at the time of the final payment an early completion bonus of $10,000 per day for each day that substantial completion occurred in advance of the 470 days.  If substantial completion is not attained within 500 days after the date of commencement due to unexcused delay, Fagen, Inc. will pay us $20,000 as liquidated damages for each day that substantial completion extends beyond 500 days.  For the purposes of calculating these provisions, delay due to the modification of the construction air emission permit is specifically considered an excused delay.  Fagen, Inc.’s aggregate liability for liquidated damages, for failure to meet the performance and emission warranties, and for costs associated with constructing our ethanol plant as a gas-fired plant instead of a coal-fired plant is capped at $10.0 million.

 

As part of our design-build agreement with Fagen, Inc., we received the following performance guarantees on the production through put and process efficiencies of our ethanol plant:

 

Plant Capacity   –  Operate at a rate of 50 mgy based on 4.76% denaturant.

 

Corn to Ethanol   –  Not less than 2.80 denatured gallons of ethanol per bushel.

 

Electrical Energy   –  0.95 kWh per denatured gallon of fuel grade ethanol.

 

Btu Usage   –  Shall not exceed 37,000 Btu per denatured gallon of ethanol.

 

Fagen, Inc. has also warranted that the air emissions on our ethanol facility, taken as a whole, when operating at nameplate capacity meeting all of the performance guarantee criteria, will meet the requirements of a synthetic minor source within six months following the date of substantial completion. If this warranty is not met, Fagen, Inc. will pay all design, engineering, equipment, labor and construction costs associated with making the necessary corrections to meet the warranty, subject to certain restrictions.  Notwithstanding that our plant has been operational since September 21, 2007, our plant does not yet meet the warranties relating to air emissions.  See “Item 1. Business – Compliance with Environmental Laws and Other Regulatory Matters” for a discussion of our air emissions permit.

 

Site Transportation

 

We have made various improvements to our site and infrastructure in order to construct and operate our ethanol plant.   In 2008, we made several roadway improvements at the intersection of Minnesota Highway 60 and Jackson County Road 24 for ingress and egress access to the ethanol plant off of Highway 60, as well as completion of acceleration and turning lanes.  Union Pacific Railroad is the railroad adjacent to our site.  We installed a railroad siding with two loop tracks dedicated to outbound ethanol and distillers grains, with the potential for inbound corn

 

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and coal.  The ethanol plant has the facilities necessary to receive corn by truck and rail, coal by truck, and to load ethanol and distillers grains onto trucks and rail cars.

 

Utilities and Energy Used in Our Ethanol Plant

 

Our ethanol plant requires significant and uninterrupted amounts of electricity, coal and water.

 

In August 2006, we entered into an electric service agreement with Interstate Power and Light Company (a wholly-owned subsidiary of Alliant Energy Corporation).  Pursuant to our agreement with Interstate Power, we must obtain all of our electrical energy requirements from Interstate Power and Interstate Power must provide us with all of our electrical energy requirements, consisting of approximately 69,000 volts.  We must notify Interstate Power if we increase our demand for electrical energy in excess of 6,300 KVA.  We must pay for this service at the rates set out on a rate schedule applicable to bulk electricity supply, which may be changed from time to time in accordance with the agreement and applicable law.  The rates for the electrical service consist of a per day charge for basic service, a demand charge per kilowatt hour, a daily charge per kilowatt hour, a facilities charge and a reactive demand charge.  The rates used to calculate certain charges vary based on whether the kilowatt hours are used during peak periods and by season.  We are billed a minimum charge of our actual demand for the month plus energy charges for an additional 400 kilowatt hours.  We may not sell the electrical service to any other party and if we change electrical service, we will be responsible for expense associated with wiring.  The agreement with Interstate Power is for successive one-year terms beginning October 1, 2007 and may be terminated by either party upon 90 days’ written notice.

 

Despite our agreement with Interstate Power and Light Company, there can be no assurance that we will receive a reliable supply of the electricity that we need.  Further, the price of electricity, like any commodity, could fluctuate and increase significantly.

 

We also entered into a contract with Federated Rural Electric Association in December 2006 for the construction of the distribution system and electrical substation for the plant.  To fund the purchase of the distribution system and electrical substation for the plant, we entered into a loan agreement with Federated Rural Electric Association pursuant to which we borrowed $600,000 by a secured promissory note that bears no interest.  Under the note we are required to make monthly payments to Federated Rural Electric Association of $6,250 consisting of principal and an annual handling fee of 1% beginning on October 10, 2009.  In exchange for this loan, Federated Rural Electric Association was granted a security interest in the distribution system and electrical substation for the plant.

 

We have constructed a coal receiving, handling and storage facility next to the ethanol plant.  Due to air permitting, and performance and emissions guarantees of the design-build contract with Fagen, Inc., a Wyoming/Montana-sourced coal must be used.  As a result, in June 2007, we entered into a master coal supply agreement with Northern Coal Transportation Company (NCTC) to provide Powder River Basin (PRB) coal for the plant.  The master coal supply agreement expires upon 60 days notice by either party.  We are obligated to purchase coal and NCTC is obligated to sell coal identified in a confirmation that sets forth the quantity, price, term, mine and other relevant terms.  Under a letter confirmation dated July 2007, we agreed to purchase a minimum number of tons in each contract year which runs from June 1 to May 31 through the five year period ending May 31, 2012.  The letter confirmation also sets the price per ton for each contract year.  Also, in June 2007, we entered into a coal transloading agreement with Southern Minnesota Beet Sugar Cooperative (SMBSC).  SMBSC also uses coal of the same type as our ethanol plant to fuel its beet sugar plant.  In order to achieve transportation efficiencies, we and SMBSC entered into the coal transloading agreement so that both of our coal orders could be delivered to a single facility (the transloading facility) owned by SMBSC.  The coal is transferred from the transloading facility to each of our respective plants and we pay SMBSC a per ton charge handling fee for the use of the transloading facility.

 

Currently, fly-ash generated from the coal burned by our plant is hauled to a landfill.  If it qualifies to predefined industry standards, fly-ash can be used as an admixture for cement mixes instead of being hauled to landfills.  We are continuing to explore revenue-generating alternatives from fly-ash rather than incurring expense associated with shipping the fly-ash to landfills.

 

In October 2003, we entered into an industrial water supply development and distribution agreement with the City of Heron Lake, Jackson County, and Minnesota Soybean Processors (“MnSP”).  Pursuant to this agreement, the City acquired property on which to construct two water wells and associated facilities from which we draw the water necessary for our ethanol plant.  The City designed the wells, with the engineering and related services associated

 

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with such design paid by MnSP.  The City owns and operates the well facilities.  These facilities may not be connected to the City’s potable water supply nor may the City enter into supply contracts with potable water users without the consent of MnSP and us. Under the agreement, we have the exclusive right to the first 600 gallons per minute (“gpm”) of capacity of the wells and MnSP has the exclusive right to the second 600 gpm.  We are obligated to purchase our supply of untreated water exclusively from the City under this agreement.  In consideration of this agreement, we and MnSP are allocated equally the debt service on $735,000 in water revenue bonds that were issued by the City to support this project. We are also responsible for operating costs of the well facilities in proportion to our use; these operating costs include labor costs and other expenses associated with the operation, maintenance and repair of the well facilities and all costs associated with compliance with laws and permitting plus a 10% administrative fee to the City.  We began paying our portion of the debt service and operating costs when the plant became operational.  The agreement provided for changes in the payment schedule to result in the same aggregate payment to the City as if our plant had become operational in 2004.  Under this agreement, the City agreed to work cooperatively with us to develop any required water treatment facilities, with the expectation that we, together with any other users of the water treatment facilities, will pay the costs related to the facilities.  This agreement expires in February 2019 with the final scheduled maturities of the financing bonds.  The parties have agreed that prior to the scheduled expiration of the agreement, they will negotiate in good faith to replace the agreement with a further agreement regarding the wells and related facilities.

 

In connection with our agreement to be a party to the October 2003 industrial water supply development and distribution agreement, MnSP agreed that it would pay us $100,000 and we agreed to issue to MnSP $50,000 of our units.  In November 2003, we entered into a payment and subscription agreement with MnSP to document the payment from MnSP as received and by which we issued MnSP 28,750 units, the value of which was agreed to be $50,000.

 

In May 2006, we entered into an industrial water supply treatment agreement with the City of Heron Lake and Jackson County.  Under this agreement, the City agreed to construct, finance and operate a water treatment plant to supply treated water to our ethanol plant.  In exchange, we pay for operating and maintenance costs of the water treatment plant, as well as for certain assessments, extraordinary maintenance expenses and monthly installments over 24 months starting January 1, 2007 equal to one years’ debt service on the water revenue bonds, which will be returned to us if any remains after final payment in full on the bonds and assuming we comply with all payment obligations under the agreement.  Additionally, the industrial water supply treatment agreement allocated to us the supply of water from the well facilities over 1,200 gpm and up to 1,800 gpm.  We have the exclusive right to the first 900 gpm of capacity from the water treatment facility (and up to 1,200 gpm if we choose to expand) and the City has the right to supply others with the unused or excess capacity of treated water with our written consent.  We are obligated to purchase our supply of treated water exclusively from the City under this agreement.  The agreement has a term of 30 years.  If the agreement is terminated and not replaced by a similar agreement, we have the right to purchase the water treatment facility for its fair market value at the time, subject to the approval of the State of Minnesota.

 

Our Principal Products

 

The principal products that we produce are fuel grade ethanol and distillers grains.  Raw carbon dioxide is also a product of the ethanol production process, but we do not capture or market any carbon dioxide gas.

 

Ethanol

 

Ethanol is a type of alcohol produced in the U.S. principally from corn. Ethanol is primarily used in the U.S. gasoline fuel market as:

 

·    an octane enhancer in fuels;

 

·    an oxygenated fuel additive that can reduce ozone and carbon monoxide vehicle emissions;

 

·    a gasoline substitute generally known as E85, a fuel blend composed of 85% ethanol; and

 

·    as a renewable fuel to displace consumption of imported oil.

 

Ethanol used as an octane enhancer or fuel additive is blended with unleaded gasoline and other fuel products.  The principal purchasers of ethanol are generally wholesale gasoline distributors or blenders.

 

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Distillers Grains

 

The principal co-product of the ethanol production process is distillers grains, a high protein and high-energy animal feed ingredient.

 

Dry mill ethanol processing creates three primary forms of distillers grains: wet distillers grains, modified wet distillers grains, and dried distillers grains with solubles.  Wet distillers grains are processed corn mash that contains a substantial amount of moisture.  It has a shelf life of approximately three days and is primarily sold to feeders of beef animals within the immediate vicinity of the ethanol plant.  Modified wet distillers grains are similar to wet distillers grains except that it has been partially dried and contains less moisture.  Modified wet distillers grains has a shelf life of a maximum of fourteen days, contains less water to transport, is more easily adaptable to some feeding systems, and is sold to both local and regional markets, primarily for both beef and dairy animals.  Dried distillers grains with solubles are corn mash that has been dried to approximately 10% moisture.  It has an almost indefinite shelf life and may be sold and shipped to any market and to almost all types of livestock.  Most of the distillers grains that we sell are in the form of dried distillers grains.

 

Procurement and Marketing Agreements

 

Corn Procurement

 

The primary raw material used in the production of ethanol at our plant is corn.  We need to procure approximately 18 million bushels of corn per year for our dry mill ethanol process. We generally do not have long-term, fixed price contracts for the purchase of corn and our members are not obligated to deliver corn to us. Typically, we purchase our corn directly from grain elevators, farmers, and local dealers within approximately 80 miles of Heron Lake, Minnesota.

 

We generally purchase corn through cash fixed-price contracts and may utilize hedging positions in the corn futures market for a portion of our corn requirements to manage the risk of excessive corn price fluctuations. Our fixed-price forward contracts specify the amount of corn, the price and the time period over which the corn is to be delivered. These forward contracts are at fixed prices or prices based on the Chicago Board of Trade (CBOT) prices. Our corn requirements can be forward contracted on either a fixed-price basis or futures only contracts. The parameters of these contracts are based on the local supply and demand situation and the seasonality of the price. We also purchase a portion of our corn on a spot basis.

 

The price and availability of corn is subject to significant fluctuation depending upon a number of factors that affect commodity prices generally. These include, among others, crop conditions, crop production, weather, government programs, and export demands.  Recently, corn prices have been at historically high levels. We believe that our corn storage facilities in Lakefield and Wilder, Minnesota will enable us to more favorably procure corn for the operation of our plant.

 

Ethanol Marketing

 

In August 2006, we entered into an ethanol marketing agreement with Renewable Products Marketing Group, LLC that was transferred to its affiliate RPMG, Inc.  Under the agreement, RPMG must use its best efforts to market all ethanol produced by our ethanol plant pursuant to a pooled marketing arrangement. We receive a price equal to the actual pooled price received by RPMG, less the expense of distribution and a marketing fee charged per gallon of ethanol sold.  The initial term of the agreement began on the first day of the month we shipped ethanol from our plant and continues for a period of at least 24 months, but will terminate at the end of the first traditional ethanol marketing contract period after the 24-month period, the end of September or end of March, whichever occurs first. After the initial term, the agreement automatically renews for successive one-year terms unless terminated by either party upon 90 days’ notice.  If the ethanol marketing agreement is terminated, whether by non-renewal or otherwise, we are obligated to leases for railcars that RPMG has procured on our behalf.  Our ethanol may be distributed by truck and rail from the plant.

 

Distillers Grains Marketing

 

In addition to ethanol, our ethanol plant produces wet, modified wet and dried distillers grains. We attempt to monitor the values of distillers grains and produce a mix of wet, modified wet, and dry distillers grains to maximize return to the plant.

 

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In October 2005, we entered a marketing agreement with Commodity Specialists Corporation for the sale to Commodity Specialists Corporation of all distillers grains produced by our ethanol plant.  The term of the agreement is for a one-year period from the date of start-up of our operations, and thereafter, the agreement will remain in effect unless terminated by either party upon 90 days’ written notice.  Under the terms of the agreement, we receive a price equal to the selling price, less a charge of 2% or 4% of the price for distillers grains and a fee of $2.00 per ton of solubles, less the cost of delivering the product to the customer.  In August 2007, as part of CHS Inc.’s acquisition of Commodity Specialist Corporation, our agreement with Commodity Specialist Corporation was assigned to CHS Inc. with our consent.

 

Pricing of Corn and Ethanol

 

The sale of ethanol represented approximately 79% of our revenue for the six months ended April 30, 2008.  The cost of corn represented approximately 65% of our cost of sales for the six months ended April 30, 2008.  In the future, we expect that ethanol sales will represent our primary revenue source and corn will represent  our primary component of cost of goods sold.  Therefore, changes in the price at which we can sell the ethanol we produce and the price at which we buy corn for our ethanol plant present significant operational risks inherent in our business.

 

Generally, the price at which ethanol can be sold does not track with the price at which corn can be bought. Historically, ethanol prices have tended to correlate with wholesale gasoline prices, with demand for and the price of ethanol increasing as supplies of petroleum decreased or appeared to be threatened, crude oil prices increased and wholesale gasoline prices increased.  However, the prices of both ethanol and corn do not always follow historical trends. Trends in ethanol prices and corn prices are subject to a number of factors and are difficult to predict.

 

For example, in 2007, although the demand for ethanol increased, additions to ethanol production capacity and limitations on the ability to move production to the retail market kept ethanol prices in check.  Thus, as crude oil prices rose over June and July of 2007, ethanol prices did not correspondingly increase.  However, as crude prices declined in August and September of 2007, ethanol prices declined more sharply.  At the same time, the demand for and price of corn increased dramatically, which some attributed to the increased requirements of the ethanol industry.  However, in our fiscal year 2008, ethanol prices have increased significantly.

 

Demand for Ethanol

 

In recent years, the demand for ethanol has increased, particularly in the upper Midwest, in part because of two major programs established by the Clean Air Act Amendments of 1990:  the Oxygenated Gasoline Program and the Reformulated Gasoline Program.  Under these programs, an additive (oxygenate) was required to be added to the gasoline used in areas with excessive carbon monoxide or ozone pollution to help mitigate these conditions.  Oxygenates allow gasoline to burn cleaner, release less carbon monoxide and release fewer other exhaust emissions into the atmosphere.  According to the EPA, as of May 2007, various regions of 15 states and the District of Columbia were required to comply with the Reformulated Gasoline Program.  Although not required, according to the EPA, as of May 2007, all or a portion of 13 states had also voluntarily opted into the program.

 

Methyl tertiary butyl ether (MTBE) or ethanol were the two most common options to increase oxygen content in the fuel, with MTBE being used until recently in a majority of the oxygenated fuel sold in the United States.  Continued use of MTBE has raised serious environmental and health concerns.   In March 2000, the EPA announced that it had commenced regulatory action to achieve a significant reduction in or a complete ban on the use of MTBE.  In addition to those states that had already passed legislation banning or restricting the use of MTBE, other states voluntarily responded to the EPA’s announcement by enacting legislation prohibiting the sale of gasoline containing certain levels of MTBE or by phasing out the use of MTBE entirely.

 

Because of the potential health and environmental issues associated with MTBE and the actions of the EPA, ethanol is now used as the primary oxygenate in those areas requiring an oxygenate additive under programs associated with the Clean Air Act Amendments of 1990 or other federal law.

 

In addition to demand for ethanol as an oxygenate, ethanol demand has increased because of the adoption of programs setting national renewable fuels standards (RFS).  These RFS programs were adopted to help displace consumption of oil imported from non-U.S. sources and in response to the concern that the United States’ dependence on imported oil petroleum to meet its growing demand for transportation fuel undermines the United States’ energy security.

 

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The first RFS program was introduced through the Energy Policy Act of 2005.  The Energy Policy Act of 2005 introduced a RFS program that set a national minimum usage requirement that would phase in over seven years, beginning with approximately 4.0 billion gallons in 2006 and increasing to 7.5 billion gallons by 2012.  The minimum usage requirements under the 2005 RFS program were increased with the Energy Independence and Security Act of 2007. Currently, the minimum usage requirements are 13.2 billion gallons of renewable biofuels by 2012 and 15.0 billion gallons by 2015.  The Energy Independence and Security Act of 2007 also mandates a minimum requirement of 36 billion gallons of renewable fuels by 2022, with conventional biofuels accounting for 15 billion gallons of this total.  Conventional biofuel is ethanol derived from corn starch and conventional ethanol facilities that commence construction after the date of enactment and must achieve a 20 percent greenhouse gas (GHG) emissions reduction compared to baseline lifecycle GHG emissions.  Advanced biofuels are defined as cellulosic ethanol and other biofuels derived from feedstock other than corn starch that achieves a 50 percent GHG emissions reduction requirement. Cellulosic ethanol is any cellulose, hemicellulose, or lignin that is derived from renewable biomass and achieves a 60 percent GHG emission reduction requirement.

 

We believe the RFS program creates greater market for renewable fuels, such as ethanol, as a substitute for petroleum-based fuels.  While we cannot assure that this program’s mandates will continue in the future, the following chart illustrates the potential United States ethanol demand based on the schedule of minimum usage established by the program through the year 2022 (in billions of gallons).

 

Year

 

Conventional
Biofuel

 

Total
Advanced
Biofuel

 

Advanced
Biofuel —
Cellulosic
Biofuel

 

Advanced
Biofuel —Biomass-based
Diesel

 

Undifferentiated
Advanced Biofuel

 

Total RFS

 

2008

 

9.00

 

 

 

 

 

9.00

 

2009

 

10.50

 

.60

 

 

.50

 

0.10

 

11.10

 

2010

 

12.00

 

.95

 

.10

 

.65

 

0.20

 

12.95

 

2011

 

12.60

 

1.35

 

.25

 

.80

 

0.30

 

13.95

 

2012

 

13.20

 

2.00

 

.50

 

1.00

 

0.50

 

15.20

 

2013

 

13.80

 

2.75

 

1.00

 

 

1.75

 

16.55

 

2014

 

14.40

 

3.75

 

1.75

 

 

2.00

 

18.15

 

2015

 

15.00

 

5.50

 

3.00

 

 

2.50

 

20.50

 

2016

 

15.00

 

7.25

 

4.25

 

 

3.00

 

22.25

 

2017

 

15.00

 

9.00

 

5.50

 

 

3.50

 

24.00

 

2018

 

15.00

 

11.00

 

7.00

 

 

4.00

 

26.00

 

2019

 

15.00

 

13.00

 

8.50

 

 

4.50

 

28.00

 

2020

 

15.00

 

15.00

 

10.50

 

 

4.50

 

30.00

 

2021

 

15.00

 

18.00

 

13.50

 

 

4.50

 

33.00

 

2022

 

15.00

 

21.00

 

16.00

 

 

5.00

 

36.00

 

 

While the new RFS will likely stimulate the ethanol industry in the short term as production increases to keep pace with demand to achieve compliance with the RFS, the long-term impact of the RFS on the ethanol industry is uncertain.  Starting in 2016, all of the increase in the RFS targets must be met with advanced biofuels and the RFS targets for conventional biofuels remain level at 15 billion gallons per year from 2015 through 2022.  It is uncertain what effect this lack of increase in targets for conventional biofuels under the RFS program will have on the conventional biofuels industry or on our ethanol business in particular.

 

In addition to the RFS program, one important incentive for the ethanol industry and its customers is the Volumetric Ethanol Excise Tax Credit, commonly referred to as the “blender’s credit.”  The tax credit is provided to gasoline distributors as an incentive to blend their gasoline with ethanol.  For each gallon of gasoline blended with ethanol, the distributors receive a tax credit.  For 2008, the tax credit is 51¢ per gallon of pure ethanol or 5.1¢ per gallon of gasoline blended with 10% ethanol.  The per gallon credit is scheduled to be reduced to 45¢ per gallon of pure ethanol in 2009.  The tax credit is authorized through December 21, 2010.

 

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In Minnesota, a market we serve, the demand for ethanol is driven, in part, by state specific requirements. On May 10, 2005, Minnesota enacted a law that requires all Minnesota gasoline to be blended with 20 percent ethanol. The new E-20 mandate would take effect in 2013 unless ethanol has already replaced 20 percent of the state’s motor vehicle fuel by 2010. The rule would expire at the end of 2010 if Minnesota is not granted federal approval to use E-20 gasoline blends.  Minnesota has North America’s largest network of E-85 (85% ethanol blend) gas stations with approximately 130 stations now available to consumers. Minnesota was the first state to require the use of ethanol in gasoline.  Other states are beginning to enact similar legislation. In 2004, Hawaii enacted a measure similar to Minnesota’s mandate. Montana also adopted an E-10 requirement in May 2005.

 

According to the RFA, ethanol production increased to 6.5 billion gallons in 2007 from 4.9 billion gallons in 2006, an increase of 32%.  As of January 2008, ethanol was blended into more than 50% of the gasoline sold in the U.S., the majority as E10 (a blend of 10% ethanol and 90% gasoline). It is blended in every gallon of gasoline sold in some areas of the U.S., including California, Minnesota, Missouri, Texas, and along the Eastern seaboard from Washington, D.C. to Boston.

 

Markets For Ethanol

 

There are local, regional and national markets for ethanol.  Typically, a regional market is one that is outside of the local market, yet within the neighboring states.  Some regional markets include large cities that are subject to anti-smog measures in either carbon monoxide or ozone non-attainment areas, or that have implemented oxygenated gasoline programs, such as Chicago, St. Louis, Denver and Minneapolis.  We consider our primary regional market to be large cities within a 450-mile radius of our ethanol plant.  In the national ethanol market, the highest demand by volume is primarily in the southern United States and the east and west coast regions.

 

The markets in which our ethanol is sold will depend primarily upon the efforts of RPMG, our ethanol marketer.  However, we believe that local markets will be limited and must typically be evaluated on a case-by-case basis.  Although local markets will be the easiest to service, they may be oversold because of the number of ethanol producers near our plant, which may depress the price of ethanol in those markets.  In addition, Minnesota is a net exporter of ethanol.  According to the Minnesota Department of Agriculture, as of May 2008, Minnesota’s 17 operating ethanol plants have the capacity to produce 735 million gallons of ethanol annually, which will use 268 million bushels of corn.  In 2006, the most recent year for which statistics are available, about 260 million gallons were consumed in Minnesota and the state’s net ethanol export was 290 million gallons in 2006 or 53% of Minnesota’s total annual ethanol production.  Therefore, we will likely be among the ethanol producers whose ethanol is primarily exported from the State of Minnesota into regional markets.  Access to regional markets and the national market will be important to grow our business.

 

We transport our ethanol primarily by rail.  In addition to rail, we service certain regional markets by truck from time to time.  We believe that regional pricing tends to follow national pricing less the freight difference.

 

Markets for Distillers Grains

 

We sell distillers grains as animal feed for beef and dairy cattle, poultry and hogs. However, the modified wet distillers grains typically have a shelf life of a maximum of fourteen days.  This provides for a much smaller market and makes the timing of its sale critical.  Further, because of its moisture content, the modified wet distillers grains are heavier and more difficult to handle.  The customer must be close enough to justify the additional handling and shipping costs.  As a result, modified wet distillers grains are principally sold only to local feedlots and livestock operations.

 

Various factors affect the price of distillers grain, including, among others, the price of corn, soybean meal and other alternative feed products, the performance or value of distillers grains in a particular feed market, and the supply and demand within the market.  Like other commodities, the price of distillers grains can fluctuate significantly.

 

Government Incentives and Benefits

 

We benefit both directly and indirectly from various incentive programs created by the federal government and state governments, including the State of Minnesota.  The programs that we believe provide us with an indirect benefit by stimulating demand for ethanol production are discussed above under “Item 1.  Business – Demand For Ethanol.”

 

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These programs are not without controversy, due in part to the cost of these programs and the effect these programs have in reduction of tax revenues for the federal or state government.  Federal and state regulations regarding the production of ethanol are subject to future change.  We cannot predict what material impact, if any, these changes might have on our business.  Future changes in governmental incentives and benefits could reduce or eliminate benefits to us and that may adversely affect our business.  Future changes in governmental incentives and benefits could result in new incentive programs or benefits or increase benefits of programs for which we are not eligible, which could prove beneficial to our competitors and thus adversely affect our business.

 

The programs that directly benefit our business and our members are discussed below.

 

Federal Small Ethanol Producer Tax Credit

 

The Federal Small Ethanol Producer Credit provides an eligible ethanol producer a 10¢ per gallon tax credit for the first 15 million gallons of ethanol produced annually, subject to possible reduction for certain excise tax benefits.  Under the program, ethanol producers that qualify or their owners (for pass-through tax entities) can reduce their federal income tax liability by the amount of the annual credit, subject to limitations.  However, benefit of the credit is reduced somewhat because the amount of the credit must be added to regular taxable income (but not to alternative minimum taxable income).  Until recently, an eligible small ethanol producer was defined as a producer whose annual production capacity was 30 million gallons or less, which effectively precluded most new plants from qualifying for the tax credit.  The Energy Tax Incentives Act of 2005 increased the annual production capacity limitation to 60 million gallons.  The credit is scheduled to expire on December 31, 2010.  If it is not extended, taxpayers will have a three-year carryforward in which to utilize unused credits.

 

For fiscal year 2007, we were eligible as a small ethanol producer to participate in the Federal Small Ethanol Producer Credit.  In fiscal year 2007, we produced approximately 4.9 million gallons of ethanol that created a tax credit of approximately $493,000 that was passed on to our members.

 

Job Opportunity Building Zones (“JOBZ”) Designation

 

Our ethanol plant business currently qualifies for the State of Minnesota’s Job Opportunity Building Zones (“JOBZ”) program administered by the Minnesota Department of Employment and Economic Development (the “Department”).  Our ethanol plant is located in one of the ten Job Opportunity Building Zones designated by the Department.  Our facilities in Lakefield, Minnesota and Wilder, Minnesota are not located in a designated zone and, therefore, the operations of these facilities do not benefit directly from the JOBZ program.  Under the JOBZ program, qualifying businesses that operate in designated zones receive certain exemptions from sales, income and property taxes and are eligible to receive certain refundable jobs credits.  The tax exemptions afforded by this program will be available to qualified businesses until the expiration of the program, currently scheduled for December 31, 2015.

 

For our business, the material benefits we receive from the JOBZ program are:

 

·              A property tax exemption for our commercial and industrial property, both real and personal, located in a Job Opportunity Building Zone, excluding the land on which our ethanol plant was built.

 

·              A sales tax exemption that requires that goods or taxable services must be primarily used in the Job Opportunity Building Zone and purchased during a period when the area is designated as a zone within the JOBZ program.  This exemption extends to contract purchases (if the final use of the property is in the Job Opportunity Building Zone) and to local sales taxes.

 

We also receive a number of benefits under the JOBZ program that are not material to our overall operations, including, for example, an exemption from the motor vehicle sales tax for vehicles used by a business in a zone and exemption from certain minimum fees.

 

Some of the benefits under the JOBZ program relate to income tax.  We do not pay federal or state income tax as an entity; instead, our members pay tax on their proportionate share of our income.  Therefore, certain of the benefits under the JOBZ program will flow to our members, including the following, which we believe will be of more significant benefit to our members.

 

·              An individual income tax exemption for income derived from investing in or operating a qualified business in a Job Opportunity Building Zone such as our business.

 

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·              A refundable jobs credit to us as a qualified business operating in a Job Opportunity Building Zone equal to 7% of the lesser of either (i) the increase in the business payroll in the zone since the year of designation or (ii) the increases in total Minnesota payroll since the year of designation, minus the increase in the number of full time employees in the zone since designation multiplied by $30,000.  This credit applies against chapter 290 taxes (regular and alternative minimum tax under both the individual income and corporate franchise taxes).

 

·              An extension of the individual income tax exemption to the alternative minimum tax under the individual income tax and an exemption from corporate alternative minimum tax for income from our zone income.

 

·              A tax exemption for capital gains on our real and tangible personal property located in a zone or the sale of our business operated in a zone.

 

Our members will also be impacted, although we believe less significantly, by other aspects of the JOBZ program, including for example, reductions in dependent care credits and working family credits for tax-exempt JOBZ income.

 

We are required to submit an annual report to the commissioner of the Department on our performance and compliance with the business subsidy law.  Based on these annual reports, the commissioner may take action that he considers appropriate, such as removing particular properties from a zone or terminating a zone or subzone.  In calendar year 2007, we estimate the benefit we received as a company under the JOBZ program was approximately $2.3 million relating to the sales tax exemption on our purchases of otherwise taxable goods and services in connection with the construction of our ethanol plant.  Because we purchased much of the goods and services for the construction of our ethanol plant prior to the start of plant operations in September 2007, we expect our future direct benefits under the JOBZ program to diminish in fiscal year 2008.  To the extent the JOBZ program continues as currently enacted, we anticipate that our members will benefit from the JOBZ program primarily through the individual income tax exemptions.  As and if the income of our members attributable to our operations increases, so too will the benefits our members receive under the JOBZ program.

 

Competition

 

Producers of Ethanol

 

We compete with producers of ethanol products both locally and nationally, with more intense competition for sales of ethanol among ethanol producers in close proximity to our ethanol plant as these competitors may be more likely to sell to the same markets that we target for our ethanol.  Within an approximately 100 mile radius of our ethanol plant, there are 35 ethanol plants as of June 2008.

 

We sell our ethanol in a highly competitive market.  We are in direct competition with numerous other ethanol producers, both regionally and nationally, many of which have more experience and greater resources than we do.  Some of these producers are, among other things, capable of producing a significantly greater amount of ethanol or have multiple ethanol plants that may help them achieve certain benefits that we could not achieve with one ethanol plant.  Further, new products or methods of ethanol production developed by larger and better-financed competitors could provide them competitive advantages over us and harm our business.  A majority of the ethanol plants in the U.S. and the greatest number of gallons of ethanol production are located in the corn-producing states, such as Iowa, Nebraska, Illinois, Minnesota, South Dakota, Indiana, Ohio, Kansas, and Wisconsin.

 

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Below is the U.S. ethanol production by state in millions of gallons for the ten states with the most total ethanol production, either online or under construction/expansion, as of January 2008:

 

State

 

Online

 

Under
Construction/
Expansion

 

Total

 

Iowa

 

2,059.0

 

1,435.0

 

3,494.0

 

Nebraska

 

1,143.5

 

691.0

 

1,834.5

 

Illinois

 

887.0

 

254.0

 

1,141.0

 

Minnesota

 

619.6

 

457.5

 

1,077.1

 

South Dakota

 

683.0

 

283.0

 

966.0

 

Indiana

 

470.0

 

450.0

 

920.0

 

Ohio

 

68.0

 

470.0

 

538.0

 

Kansas

 

432.5

 

75.0

 

507.5

 

Wisconsin

 

408.0

 

90.0

 

498.0

 

Texas

 

100.0

 

255.0

 

355.0

 

 

Source: Renewable Fuels Association, January 2008

 

Accordingly, we face increased competition because of the location of our ethanol plant in Minnesota.

 

According to the Renewable Fuel Association (RFA), as of June 2008, 160 U.S. facilities have the capacity to produce approximately 9 billion gallons of ethanol annually with an additional 4.4 billion gallons of capacity under construction.  Despite the rapid increase in production, consumption of ethanol has been outpacing production for the past few years, which has led to increased imports in the United States, primarily from Brazil.  According to the RFA, in 2007, the U.S. produced 6.5 billion gallons of fuel ethanol and imported 426.2 million gallons, with approximately 44% imported from Brazil.  In addition to intense competition with local, regional and national producers of ethanol, we expect increased competition with imported ethanol and foreign producers of ethanol.

 

Producers of Other Fuel Additives and Alternative Fuels

 

In addition to competing with ethanol producers, we also compete with producers of other gasoline oxygenates.  Many gasoline oxygenates are produced by other companies, including oil companies, that have far greater resources than we do.  Historically, as an gasoline oxygenate, ethanol primarily competed with two gasoline oxygenates, both of which are ether-based:  MTBE (methyl tertiary butyl ether) and ETBE (ethyl tertiary butyl ether). Many states have enacted legislation prohibiting the sale of gasoline containing certain levels of MTBE or are phasing out the use of MTBE because of heath and environmental concerns.  As a result, national use of MTBE has decreased significantly in recent years.  Use of ethanol now exceeds that of MTBE and ETBE as a gasoline oxygenate.

 

While ethanol has displaced these two gasoline oxygenates, the development of ethers intended for use as oxygenates is continuing and we will compete with producers of any future ethers used as oxygenates.

 

A number of automotive, industrial and power generation manufacturers are developing alternative fuels and power systems, both for vehicles and other applications.  Fuel cells have emerged as a potential alternative power system to certain existing power sources because of their higher efficiency, reduced noise and lower emissions.  Fuel cell industry participants are currently targeting the transportation, stationary power and portable power markets in order to decrease fuel costs, lessen dependence on crude oil and reduce harmful emissions.

 

Additionally, there are more than a dozen alternative and advanced fuels currently in production or use, including the following alternative fuels that, like ethanol, have been or are currently commercially available for vehicles:

 

·    biodiesel

 

·    methanol

·    electricity

 

·    natural gas

·    hydrogen

 

·    propane

 

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Several emerging fuels are currently under development. Many of these fuels are also considered alternative fuels and may have other benefits such as reduced emissions or decreasing dependence upon oil.  Examples of emerging fuels include:

 

·                   Biobutanol: Like ethanol, biobutanol is an alcohol that can be produced through processing of domestically grown crops, such as corn and sugar beets, and other biomass, such as fast-growing grasses and agricultural waste products

 

·                   Biogas:  Produced from the anaerobic digestion of organic matter such as animal manure, sewage, and municipal solid waste. After it is processed to required standards of purity, biogas becomes a renewable substitute for natural gas and can be used to fuel natural gas vehicles.

 

·                   Fischer-Tropsch Diesel:  Diesel made by converting gaseous hydrocarbons, such as natural gas and gasified coal or biomass, into liquid fuel, including transportation fuel.

 

·                   Hydrogenation-Derived Renewable Diesel (HDRD): The product of fats or vegetable oils—alone or blended with petroleum—that has been refined in an oil refinery.

 

·                   P-Series: A blend of natural gas liquids (pentanes plus), ethanol, and the biomass-derived co-solvent methyltetrahydrofuran (MeTHF) formulated to be used in flexible fuel vehicles.

 

·                   Ultra-Low Sulfur Diesel: diesel fuel with 15 parts per million or lower sulfur content. This ultra-low sulfur content enables use of advanced emission control technologies on vehicles using ULSD fuels produced from non-petroleum and renewable sources that are considered alternative fuels.

 

Additionally, there are developed and developing technologies for converting natural gas, coal and biomass to liquid fuel, including transportation fuels such as gasoline, diesel, and methanol.

 

We expect that competition will increase between ethanol producers, such as Heron Lake BioEnergy, LLC and producers of these or other newly developed alternative fuels or power systems, especially to the extent they are used in similar applications such as vehicles.

 

Competition For Corn

 

We will compete with ethanol producers in close proximity for the supplies of corn we will require to operate our plant.  For 2008, Minnesota’s ethanol production is projected to reach 1 billion gallons, consuming approximately 25% of the state’s corn crop.  The existence and development of other ethanol plants, particularly those in close proximity to our plant, will increase the demand for corn that may result in higher costs for supplies of corn.

 

We compete with other users of corn, including ethanol producers regionally and nationally, producers of food and food ingredients for human consumption (such as high fructose corn syrup, starches, and sweeteners), producers of animal feed and industrial users.  According to the U.S. Department of Agriculture, for 2007:  25.2% of U.S. corn was used in ethanol production, with 45.9% being used in feed production, 18% exported and the remaining 10.9% being used in food, seed and other industrial uses.

 

Competition For Personnel

 

We will also compete with ethanol producers in close proximity for the personnel we will require to operate our plant.  The existence and development of other ethanol plants will increase competition for qualified managers, engineers, operators and other personnel.  We also compete for personnel with businesses other than ethanol producers and with businesses located outside the community of Heron Lake, Minnesota.

 

Competition for Distillers Grains

 

The amount of distillers grains produced annually in North America is expected to increase significantly as the number of ethanol plants increase.  We compete with these producers of distillers grains products both locally and nationally, with more intense competition for sales of distillers grains among ethanol producers in close proximity to our ethanol plant as these competitors may be more likely to sell to the same markets that we target for our distillers grains.

 

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Additionally, distillers grains compete with other feed formulations, including corn gluten feed, dry brewers grain and mill feeds.  The primary value of these products as animal feed is their protein content.  Dry brewers grain and distillers grains have about the same protein content, and corn gluten feed and mill feeds have slightly lower protein contents.  Distillers grains contain nutrients, fat content, and fiber that we believe will differentiate our distillers grains products from other feed formulations.  However, producers of other forms of animal feed may also have greater experience and resources than we do and their products may have greater acceptance among producers of beef and dairy cattle, poultry and hogs.  We believe that the demand for distillers grains may increase as the feed industry becomes more familiar with its benefits.  The market for distillers grains is generally confined to locations where freight costs allow it to be competitively priced against other feed ingredients.

 

Hedging

 

We may hedge anticipated corn purchases and ethanol sales through a variety of mechanisms.

 

We procure corn through spot cash, fixed-price forward, basis only, futures only, and delayed pricing contracts.  Additionally, we may use hedging positions in the corn futures and options market to manage the risk of excessive corn price fluctuations for a portion of our corn requirements.

 

For our spot purchases, we post daily corn bids so that corn producers can sell to us on a spot basis. Our fixed-price forward contracts specify the amount of corn, the price and the time period over which the corn is to be delivered. These forward contracts are at fixed prices indexed to Chicago Board of Trade, or CBOT, prices.  Our corn requirements can be contracted in advance under fixed-price forward contracts or options.  The parameters of these contracts are based on the local supply and demand situation and the seasonality of the price.  For delayed pricing contracts, producers will deliver corn to our elevators, but the pricing for that corn and the related payment will occur at a later date.

 

To hedge a portion of our exposure to corn price risk, we may buy and sell futures and options positions on the CBOT.  In addition, our facilities have significant corn storage capacity.  We generally maintain inventories of corn at our ethanol plant, but can draw from our elevators at Lakefield and Wilder to protect against supply disruption. At the ethanol plant, we have the ability to store approximately 10 days of corn supply and our elevators have capacity for approximately an additional 50 days of supply.

 

We market all of our ethanol through RPMG, Inc., which is obligated to use reasonable efforts to obtain the best price for our ethanol.  To mitigate ethanol price risk and to obtain the best margins on ethanol that is marketed and sold by RPMG, we may utilize ethanol swaps, over-the-counter (“OTC”) ethanol swaps, or OTC ethanol options that are typically settled in cash, rather than gallons of the ethanol we produce.

 

Our marketing and risk management committee, consisting of Doug Schmitz, David J. Woestehoff, Timothy O. Helgemoe, and David M. Reinhart, assists the board and our risk management personnel to, among other things, establish appropriate policies and strategies for hedging and enterprise risk.

 

Compliance with Environmental Laws and Other Regulatory Matters

 

Our business subjects us to various federal, state and local environmental laws and regulations, including those relating to discharges into the air, water and ground; the generation, storage, handling, use, transportation and disposal of hazardous materials; and the health and safety of our employees.

 

These laws and regulations require us to obtain and comply with numerous permits to construct and operate our ethanol plant, including water, air and other environmental permits.  On March 12, 2007, we entered into an agreement with Fagen Engineering, LLC, an affiliate of Fagen, Inc., for the development of environmental compliance programs and related services, which was completed in September 2007.  On March 26, 2008, we entered into an agreement with Fagen Engineering, LLC for environmental compliance training services.

 

The costs associated with obtaining these permits and meeting the demands of regulators reflected in the permits have increased our costs of construction.  In particular, we have incurred additional costs relating to an air-emission permit from the Minnesota Pollution Control Agency (“MPCA”).  We applied for a synthetic minor air-emissions source permit in July 2004 that was granted by the MPCA in May 2005.  In June 2005, a coalition of two environmental and one energy group challenged the grant of this air emissions permit by an appeal to the Minnesota Court of Appeals and in July 2006, the Minnesota Court of Appeals affirmed the MPCA’s issuance of the permit.  In conjunction with the permit and the permit dispute and to prevent further appeals by the coalition, we entered into a compliance agreement with the MPCA on January 23, 2007 that currently governs the air emissions from our plant.

 

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Under the compliance agreement, we also agreed to submit an amendment to our air permit to qualify our facility as a “major emissions source.”  We have submitted an amendment to our air permit as required under the compliance agreement and exclusively to comply with that agreement.  However, we are continuing discussions with the MPCA regarding the necessity for qualifying our facility as a major emissions source, particularly in light of recent changes in federal law that increased the limit of certain emissions allowed as a synthetic minor source.  Pending the resolution of this air permit issue, we continue to operate under the air emissions thresholds described in the compliance agreement in lieu of an amended permit.  During June and July 2008, we completed air pollution control device testing to determine compliance with synthetic minor source thresholds.  Some of these results have been provided to the MPCA, while others are still being processed.  Additionally, we, with the ongoing assistance of Fagen, Inc., anticipate conducting additional air emissions testing under different conditions.  Therefore, we continue to operate under the compliance agreement pending the results of testing and further discussions with the MPCA regarding qualifying our facility as a major emissions source.

 

Other than as discussed above, we have obtained all permits we believe are necessary for the construction and operation of our ethanol plant.

 

Compliance with these laws and permits in the future could require expensive pollution control equipment or operational changes to limit actual or potential impacts to the environment, as well as significant management time and expense.  A violation of these laws, regulations or permit conditions can result in substantial fines, natural resource damage, criminal sanctions, permit revocations and/or plant shutdown, any of which could have a material adverse effect on our operations.

 

Employees

 

We presently have 46 full-time employees, of which 38 are in operations and 8 are in executive, general management and administration.  We also have three part-time employees in operations.  We also have engaged James A. Gerber as our interim chief financial officer on a contract basis.  We do not maintain an internal sales organization, but instead rely upon third-parties to market and sell the ethanol and distillers grains that we produce.

 

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Item 1A.  Risk Factors

 

If any of the following risks actually occur, our results of operations, cash flows and the value of our units could be negatively impacted. Although we believe that we have identified and discussed below the key risk factors affecting our business, there may be additional risks and uncertainties that are not presently known or that are not currently believed to be significant that may adversely affect our performance or financial condition.

 

Risks Related To Our Business And Operations

 

Our business is highly dependent on commodity prices, which are subject to significant volatility and uncertainty, so our results could fluctuate significantly.

 

We generally do not have long-term, fixed price contracts for the purchase of corn, our principal input, or for the sale of ethanol, our principal product.  Therefore, our results of operations, financial position and business outlook are substantially dependent on commodity prices, especially prices for corn, ethanol and unleaded gasoline. Prices for these commodities are generally subject to significant volatility and uncertainty. As a result, our future financial results may fluctuate substantially.

 

In addition, we may experience periods of declining prices for our ethanol and increasing costs for our raw materials, which could result in operating losses. We may attempt to offset a portion of the effects of such fluctuations by entering into forward contracts to supply ethanol or to purchase corn, or by engaging in transactions involving options and futures contracts.  These activities involve substantial cost and substantial risk, and ultimately may be ineffective in mitigating the fluctuations in corn and ethanol prices.

 

Corn prices will fluctuate and could increase significantly, which will increase our operating costs and could adversely affect our operating results because we generally cannot pass on increases in corn prices to our customers.

 

Corn is the principal raw material we use to produce ethanol and distillers grains. At certain levels, corn prices would make ethanol uneconomical to use in fuel markets.  The price of corn is influenced by weather conditions (including droughts) and other factors affecting crop yields, farmer planting decisions and general economic, market and regulatory factors, including government policies and subsidies with respect to agriculture and international trade, and global and local supply and demand.  In particular, increasing domestic ethanol capacity could boost demand for corn and result in increased corn prices.  Any decline in the corn harvest, caused by farmer planting decisions or otherwise, could cause corn prices to increase and negatively impact our gross margins.  The price of corn has fluctuated significantly in the past and may fluctuate significantly in the future.  Generally, we are unable to pass along increased corn costs to our customers, and accordingly, rising corn prices will tend to produce lower profit margins.

 

Fluctuations in the selling price and production cost of gasoline may reduce our profit margins.

 

Ethanol is marketed both as a fuel additive to reduce vehicle emissions from gasoline and as an octane enhancer to improve the octane rating of gasoline with which it is blended. As a result, ethanol prices are influenced by the supply and demand for gasoline and our business, future results of operations and financial condition may be materially adversely affected if gasoline demand or prices decrease.

 

The price of distillers grains is affected by the price of other commodity products, such as soybeans, and decreases in the price of these commodities could decrease the price of distillers grains.

 

Distillers grains compete with other protein-based animal feed products. The price of distillers grains may decrease when the price of competing feed products decrease. The prices of competing animal feed products are based in part on the prices of the commodities from which they are derived. Downward pressure on commodity prices, such as soybeans, will generally cause the price of competing animal feed products to decline, resulting in downward pressure on the price of distillers grains. Because the price of distillers grains is not tied to production costs, decreases in the price of distillers grains would result in less revenue from the sale of distillers grains and could result in lower profit margins.

 

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As more ethanol plants are built, ethanol production will increase and, if demand does not sufficiently increase, the price of ethanol and distillers grains may decrease.

 

According to the RFA, domestic ethanol production capacity has increased steadily from 1.7 billion gallons per year in 1999 to 6.5 billion gallons per year in 2007. In addition, there is a significant amount of production capacity being added to the ethanol industry. According to the RFA, approximately 4 billion gallons per year of production capacity will come online in 2008 from 65 plants under construction or expanding. This capacity is being added to address anticipated increases in demand. However, demand for ethanol may not increase as quickly as expected or to a level that exceeds supply, or at all. Recently, several ethanol companies have announced the postponement of ethanol plants under construction due, in part, to concerns about excess production capacity in the ethanol industry and its impact on ethanol prices.

 

Excess ethanol production capacity also may result from decreases in the demand for ethanol or increased imported supply, which could result from a number of factors, including regulatory developments and reduced gasoline consumption in the U.S. Reduced gasoline consumption could occur as a result of increased prices for gasoline or crude oil, which could cause businesses and consumers to reduce driving or acquire vehicles with more favorable gasoline mileage, or as a result of technological advances, such as the commercialization of engines utilizing hydrogen fuel-cells, which could supplant gasoline-powered engines. There are a number of governmental initiatives designed to reduce gasoline consumption, including tax credits for hybrid vehicles and consumer education programs.

 

If ethanol prices decline for any reason, including excess production capacity in the ethanol industry, our business, results of operations and financial condition may be materially and adversely affected.

 

In addition, because ethanol production produces distillers grains as a co-product, increased ethanol production will also lead to increased production of distillers grains. An increase in the supply of distillers grains, without corresponding increases in demand, could lead to lower prices or an inability to sell our distillers grains production. A decline in the price of distillers grains or the distillers grains market generally could have a material adverse effect on our business, results of operations and financial condition.

 

Our operations could be adversely affected by infrastructure disruptions and the price of our ethanol could be depressed by lack of adequate transportation and storage infrastructure in certain areas.

 

We ship our ethanol to our customers primarily by the railroad adjacent to our site.  We also have the potential to receive inbound corn via the railroad, although we currently receive corn by truck from our facilities Lakefield, Minnesota and Wilder, Minnesota, each of which is less than 15 miles away from our plant.  Our customers require appropriate transportation and storage capacity to take delivery of the products we produce.  Therefore, our business is dependent on the continuing availability of rail, highway and related infrastructure.  Any disruptions in this infrastructure network, whether caused by labor difficulties, earthquakes, storms, other natural disasters, human error or malfeasance or other reasons, could have a material adverse effect on our business. We rely upon third-parties to maintain the rail lines from our plant to the national rail network, and any failure on their part to maintain the lines could impede our delivery of products, impose additional costs on us and could have a material adverse effect on our business, results of operations and financial condition.

 

In addition, lack of this infrastructure prevents the use of ethanol in certain areas where there might otherwise be demand and results in excess ethanol supply in areas with more established ethanol infrastructure, depressing ethanol prices in those areas.  In order for the ethanol industry to grow and expand into additional markets and for our ethanol to be sold in these new markets, there must be substantial development of infrastructure including:

 

·    additional rail capacity;

 

·    additional storage facilities for ethanol;

 

·    increases in truck fleets capable of transporting ethanol within localized markets;

 

·    expansion of refining and blending facilities to handle ethanol;  and

 

·    growth in service stations equipped to handle ethanol fuels.

 

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The substantial investments that will be required for these infrastructure changes and expansions may not be made on a timely basis, if at all, and decisions regarding these infrastructure improvements are outside of our control.  Significant delay or failure to improve the infrastructure that facilitates the distribution could curtail more widespread ethanol demand or reduce prices for our products in certain areas, which would have a material adverse effect on our business, results of operations or financial condition.

 

We face intense competition from competing ethanol producers.

 

Competition in the ethanol industry is intense. We face formidable competition in every aspect of our business from established producers of ethanol, including Archer Daniels Midland Company, Cargill, Inc., VeraSun Energy Corporation, and from other companies that are seeking to develop large-scale ethanol plants and alliances. According to the RFA, the top ten producers accounted for approximately 56% of the ethanol production capacity in the U.S. in 2007.  Some of our competitors are divisions of substantially larger enterprises and have substantially greater financial, operational, procurement, marketing, distribution and technical resources than we do.  Additionally, smaller competitors, such as farmer-owned cooperatives and independent companies owned by farmers and investors, have been able to compete successfully in the ethanol industry. Some of these competitors have business advantages, such as the ability to more favorably procure corn by operating smaller plants that may not affect the local price of corn as much as a larger-scale plant like ours or requiring their farmer-owners to sell them corn as a requirement of ownership.  A significant portion of production capacity in our industry consists of smaller-sized plants.  We expect competition to increase, both from large and small competitors, as the ethanol industry becomes more widely known and demand for ethanol increases.

 

We also face increasing competition from international suppliers. Although there is a tariff on foreign-produced ethanol (which is scheduled to expire in 2010) that is roughly equivalent to the federal ethanol tax incentive, ethanol imports equivalent to up to 7.0% of total domestic production from certain countries are exempted from this tariff under the Caribbean Basin Initiative to spur economic development in Central America and the Caribbean.  Currently, international suppliers produce ethanol primarily from sugar cane, which is a significantly more efficient raw material from which to produce ethanol than corn, and have cost structures that can be substantially lower than ours.

 

Competing ethanol producers may also introduce competitive pricing pressures that may adversely affect our sales levels and margins or our ability to procure corn at favorable prices. As a result, we cannot assure you that we will be able to compete successfully with existing or new competitors.

 

We have a limited operating history and a history of losses, and our business may not be successful.

 

We were organized as a Minnesota limited liability company in April 2001 and did not begin producing ethanol until September 21, 2007.  In October 2007, we began recording revenues from our ethanol production activity.  Accordingly, we have a limited operating history from which to evaluate our business and prospects.  We have accumulated losses from inception through October 31, 2007 of approximately $6.9 million.  If we cannot successfully address these risks, our business, future results of operations and financial condition may be materially adversely affected.  While we had a net profit of approximately $10.7 million for the six months ended April 30, 2008, we cannot assure you that we will be able to increase our revenues, operate profitably, or successfully operate our business.  Our prospects must be considered in light of the risks and uncertainties encountered by an early-stage company and in a rapidly evolving market, such as the ethanol market, where supply and demand may change significantly in a short period of time.  In addition, most of our governors and executive officers have no expertise in the ethanol industry or governing and operating a public company.  While our governors and executive officers are experienced in business generally, their lack of experience in the ethanol industry and managing a public company may present additional risks to our business.

 

Some of the risks and uncertainties we may encounter relate to our potential inability to:

 

·              effectively manage our business and operations, in particular the pricing risks inherent in the sale of ethanol and purchase of corn;

 

·              recruit and retain key personnel;

 

·              comply with our obligations as a public reporting company while maintaining a low-cost structure; and

 

·              successfully address the other risks described throughout this registration statement on Form 10.

 

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We engage in hedging transactions which involve risks that can harm our business.

 

In an attempt to offset some of the effects of volatility of ethanol prices and corn costs, we may enter into cash fixed-price contracts to sell a portion of our ethanol and distillers grains production or purchase a portion of our corn requirements. We may use exchange-traded futures contracts and options to manage commodity risk. The impact of these activities depends upon, among other things, the prices involved and our ability to sell sufficient products to use all of the corn for which we have futures contracts. Hedging arrangements also expose us to the risk of financial loss in situations where the other party to the hedging contract defaults on its contract or, in the case of exchange-traded contracts, where there is a change in the expected differential between the underlying price in the hedging agreement and the actual prices paid or received by us. Hedging activities can themselves result in losses when a position is purchased in a declining market or a position is sold in a rising market. A hedge position is often settled in the same time frame as the physical commodity is either purchased (corn) or sold (ethanol). We may experience hedging losses in the future.  We also vary the amount of hedging or other price mitigation strategies we undertake, and we may choose not to engage in hedging transactions at all.  As a result, whether or not we engage in hedging transactions, our business, results of operations and financial condition may be materially adversely affected by increases in the price of corn or decreases in the price of ethanol.

 

Operational difficulties at our plant could negatively impact our sales volumes and could cause us to incur substantial losses.

 

Our operations are subject to labor disruptions, unscheduled downtime and other operational hazards inherent in our industry, such as equipment failures, fires, explosions, abnormal pressures, blowouts, pipeline ruptures, transportation accidents and natural disasters. Some of these operational hazards may cause personal injury or loss of life, severe damage to or destruction of property and equipment or environmental damage, and may result in suspension of operations and the imposition of civil or criminal penalties. Our insurance may not be adequate to fully cover the potential operational hazards described above or we may not be able to renew this insurance on commercially reasonable terms or at all.  Furthermore, we may have difficulty managing the necessary process maintenance required to maintain our nameplate production capacity of 50 mgy.  If our ethanol plant does not produce ethanol and distillers grains at the levels we expect, our business, results of operations, and financial condition may be materially adversely affected.

 

Competition for qualified personnel in the ethanol industry is intense and we may not be able to hire and retain qualified personnel to operate our ethanol plant.

 

Our success depends in part on our ability to attract and retain competent personnel. For our ethanol plant, we must hire qualified managers, operations personnel, accounting staff and others, which can be challenging in a rural community.  Competition for employees in the ethanol industry is intense, and we may not be able to attract and retain qualified personnel.  If we are unable to hire productive and competent personnel and retain our existing personnel, our business may be adversely affected and we may not be able to efficiently operate our ethanol business and comply with our other obligations.

 

Technology in our industry evolves rapidly, potentially causing our plant to become obsolete, and we must continue to enhance the technology of our plant or our business may suffer.

 

We expect that technological advances in the processes and procedures for processing ethanol will continue to occur. It is possible that those advances could make the processes and procedures that we utilize at our ethanol plant less efficient or obsolete. These advances could also allow our competitors to produce ethanol at a lower cost than us. If we are unable to adopt or incorporate technological advances, our ethanol production methods and processes could be less efficient than those of our competitors, which could cause our ethanol plant to become uncompetitive.

 

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Ethanol production methods are constantly advancing. The current trend in ethanol production research is to develop an efficient method of producing ethanol from cellulose-based biomass such as agricultural waste, forest residue and municipal solid waste. This trend is driven by the fact that cellulose-based biomass is generally cheaper than corn and producing ethanol from cellulose-based biomass would create opportunities to produce ethanol in areas that are unable to grow corn. Another trend in ethanol production research is to produce ethanol through a chemical or thermal process, rather than a fermentation process, thereby significantly increasing the ethanol yield per pound of feedstock. Although current technology does not allow these production methods to be competitive, new technologies may develop that would allow these methods to become viable means of ethanol production in the future. If we are unable to adopt or incorporate these advances into our operations, our cost of producing ethanol could be significantly higher than those of our competitors, which could make our ethanol plant obsolete. Modifying our plant to use the new inputs and technologies would likely require material investment.

 

If ethanol fails to compete successfully with other existing or newly-developed oxygenates or renewable fuels, our business will suffer.

 

Alternative fuels, additives and oxygenates are continually under development. Alternative fuels and fuel additives that can replace ethanol are currently under development, which may decrease the demand for ethanol. Technological advances in engine and exhaust system design and performance could reduce the use of oxygenates, which would lower the demand for ethanol, and our business, results of operations and financial condition may be materially adversely affected.

 

We have a significant amount of debt, and our existing debt financing agreements contain, and our future debt financing agreements may contain, restrictive covenants that limit distributions and impose restrictions on the operation of our business. Our debt level or our failure to comply with applicable debt financing covenants and agreements could have a material adverse effect on our business, results of operations and financial condition.

 

As of April 30, 2008, our total long-term debt was approximately $67.4 million and our outstanding revolving line of credit balance was approximately $4.9 million.  We had total available long-term borrowing capacity on our revolving term note of $3.9 million and total short-term borrowing capacity on our revolving line of credit of $2.2 million.  We also may incur additional debt to fund operations at our plant or in connection with other development projects or acquisitions.

 

The use of debt financing makes it more difficult for us to operate because we must make principal and interest payments on the indebtedness and abide by covenants contained in our debt financing agreements. The level of our debt may have important implications on our operations, including, among other things:

 

·              limiting our ability to obtain additional debt or equity financing;

 

·              making us vulnerable to increases in prevailing interest rates;

 

·              placing us at a competitive disadvantage because we may be substantially more leveraged than some of our competitors;

 

·              subjecting all or substantially all of our assets to liens, which means that there may be no assets left for members in the event of a liquidation;

 

·              limiting our ability to adjust to changing market conditions, which could make us more vulnerable to a downturn in the general economic conditions of our business; and

 

·              limiting our ability to make business and operational decisions regarding our business and our subsidiaries, including, among other things, limiting our ability to pay dividends to our members, make capital improvements, sell or purchase assets or engage in transactions we deem to be appropriate and in our best interest.

 

The terms of our existing debt financing agreements contain, and any future debt financing agreement we enter into may contain, financial, maintenance, organizational, operational and other restrictive covenants. If we are unable to comply with these covenants or service our debt, we may lose control of our business and be forced to reduce or delay planned capital expenditures, sell assets, restructure our indebtedness or submit to foreclosure proceedings, all of which could result in a material adverse effect upon our business, results of operations and financial condition.

 

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Following the effectiveness of this Registration Statement on Form 10, we will be subject to financial reporting and other requirements for which our accounting, internal audit and other management systems and resources may not be adequately prepared.

 

Following the effectiveness of this Registration Statement on Form 10, we will become subject to reporting and other obligations under the Securities Exchange Act of 1934, as amended, or the Exchange Act.  None of our executive officers and only one of our governors has ever served as such with a company that is required to file reports under the Exchange Act.  These reporting and other obligations will place significant demands on our management, administrative, operational, internal audit and accounting resources. As a result, we may not be able or qualified to efficiently and correctly deal with our financial accounting issues and preparation of the Exchange Act reports.  If we are unable to correctly deal with our financial accounting issues and prepare our Exchange Act reports, we may be exposed to significant liabilities and have difficulty raising additional capital.

 

Our failure to achieve and maintain effective internal controls over financial reporting may have a material effect on our business.

 

In connection with the audit of our financial statements for our fiscal year ended October 31, 2007, the auditors noted that there were material weaknesses in our internal control over financial reporting relating to lack of segregation of duties, period-end closing procedures, and inadequate number of accounting department personnel.  A “material weakness” is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected.

 

We cannot be certain that any steps we take to remediate these deficiencies will ensure that we implement and maintain adequate controls over our financial reporting processes.  In addition, we cannot assure you that we will not in the future identify further material weaknesses or significant deficiencies in our internal control over financial reporting, which may impact the reliability of our financial reporting and financial statements.

 

In the future we will be subject to Section 404 of the Exchange Act, which requires an annual management assessment of the effectiveness of our internal control over financial reporting and an attestation by our independent auditors on management’s assessments.  In anticipation of these requirements, we are in the process of upgrading our systems, implementing additional financial and management controls, reporting systems and procedures, implementing an internal audit function and evaluating the necessity of hiring additional accounting, internal audit and finance staff.  The requirements of Section 404 will place significant demands on our management and internal accounting and we cannot assure you that our efforts to comply with Section 404 will result in adequate internal controls.

 

If we fail to implement required, new, or improved controls, if we encounter difficulties in implementing internal controls, or if we fail to remediate any existing or future material weakness, we may not be able to timely and reliably report our financial information, which may result in material misstatements in our financial statements or cause us to fail to meet our reporting obligations.  The existence of a material weakness in internal controls, difficulties in implementing appropriate internal controls, and the development and implementation of remediation plans may also result in increased expense associated with accounting, auditing and compliance professionals.  Our inability to provide timely and reliable financial information and otherwise meet our reporting obligations could cause investors to lose confidence in our reported financial information.  This inability could also damage our reputation with customers, suppliers, lenders, investors, and others.

 

Certain of our members exert significant influence over us. Their interests may not coincide with ours or the interests of our unitholders, and they may make decisions with which we or our unitholders may disagree.

 

As of July 31, 2008, Project Viking, LLC beneficially owned 21.8% of our outstanding units.  Project Viking is owned by Roland J. (Ron) Fagen and Diane Fagen, the principal shareholders of Fagen, Inc., our design-build firm.  Project Viking, together with our executive officers and governors, together control approximately 25.8% of our outstanding units as of July 31, 2008. As a result, these unitholders, acting individually or together, could significantly influence our management and affairs and all matters requiring member approval, including the election of governors and approval of significant corporate transactions. This concentration of ownership may also have the effect of delaying or preventing a change in control of our company and might affect the market price of our common stock.

 

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The interests of these members may not coincide with our interests or the interests of our other members. For example, Fagen, Inc. has invested and may continue to invest in a number of other ethanol producers, some of whom may compete with us.  As a result of these and other potential conflicting interests, these existing members may make decisions with respect to us with which we or our members may disagree.

 

Because we are primarily dependent upon one product, our business is not diversified, and we may not be able to adapt to changing market conditions or endure any decline in the ethanol industry.

 

Our success depends on our ability to efficiently produce and sell ethanol, and, to a lesser extent, distillers grains.  We do not have any other lines of business or other significant sources of revenue to rely upon if we are unable to produce and sell ethanol and distillers grains, or if the market for those products decline.  Our lack of diversification means that we may not be able to adapt to changing market conditions, changes in regulation, increased competition or any significant decline in the ethanol industry.

 

Risks Related to the Units

 

There is no public market for our units and no public market is expected to develop.

 

There is no established public trading market for our units, and we do not expect one to develop in the foreseeable future.  To maintain our partnership tax status, we do not intend to list the units on any stock exchange or automatic quotation system such as OTC Bulletin Board.  As a result, units held by our members may not be easily resold and members may be required to hold their units indefinitely.  Even if members are able to resell our units, the price may be less than the members’ investment in the units or may otherwise be unattractive to the member.

 

There are significant restrictions on the transfer of our units.

 

To protect our status as a partnership for tax purposes and to assure that no public trading market in our units develops, our units are subject to significant restrictions on transfer and transfers are subject to approval by our board of governors.  All transfers of units must comply with the transfer provisions of our Member Control Agreement and a unit transfer policy adopted by our board of governors.  Our board of governors will not approve transfers which could cause us to lose our tax status or violate federal or state securities laws.  Our unit transfer policy prohibits sales of units until 30 days after our plant has met performance guarantees following completion of construction.  As a result, members may not be able to transfer their units and may be required to assume the risks of an investment in for an indefinite period of time.

 

A transferee may be admitted as a member only upon approval by the board of governors and upon satisfaction of certain other requirements, including the transferee meeting the minimum unit ownership requirements to become a member (which for our present units requires holding a minimum of 2,500 units).  Any transferee that is not admitted as a member will be deemed an unadmitted assignee.  An unadmitted assignee will be a non-member unit holder and will have the same financial rights as other unit holders, such as the right to receive distributions that we declare or that are available upon our dissolution or liquidation.  As a non-member unit holder, an unadmitted assignee will not have the voting or other governance rights of members and will not be entitled to any information or accountings regarding our business or to inspect our books and records.

 

There is no assurance that we will be able to make distributions to our unit holders, which means that holders could receive little or no return on their investment.

 

Distributions of our net cash flow may be made at the sole discretion of our board of governors, subject to the provisions of the Minnesota Limited Liability Company Act, our Member Control Agreement and restrictions imposed by our creditors.  There is no assurance that we will generate any distributable cash from operations.  Although our intention is to make cash distributions sufficient to discharge our members’ anticipated tax liabilities arising from any taxable income generated, our board may elect to retain cash for operating purposes, debt retirement, plant improvements or expansion.  Consequently, members may receive little or no return on their investment in the units.

 

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We may authorize and issue units of new classes which could be superior to or adversely affect holders of our outstanding units.

 

Our board of governors, upon the approval of a majority in interest of our members, has the power to authorize and issue units of classes which have voting powers, designations, preferences, limitations and special rights, including preferred distribution rights, conversion rights, redemption rights and liquidation rights, different from or superior to those of our present units.  New units may be issued at a price and on terms determined by our board of governors.  The terms of the units and the terms of issuance of the units could have an adverse impact on your voting rights and could dilute your financial interest in us.

 

Our use of a staggered board of governors and allocation of governor appointment rights may reduce the ability of investors to affect the composition of the board.

 

We are managed by a board of governors, currently consisting of eight elected governors and two appointed governors. The seats on the board that are not subject to a right of appointment will be elected by the other members.  The initial board designated from among themselves three classes of governors.  The terms of the three classes of governors is staggered such that, beginning in 2008, our members will elect one-third (or as nearly as possible) of the non-appointed members of the board of governors annually.  An appointed governor serves indefinitely at the pleasure of the member appointing him or her (so long as such member and its affiliates continue to hold a sufficient number of units to maintain the applicable appointment right) until a successor is appointed, or until the earlier death, resignation or removal of the appointed governor.

 

The effect of these provisions may make it more difficult for a third party to acquire, or may discourage a third party from acquiring, control of us and may discourage attempts to change our management, even if an acquisition or these changes would be beneficial to our members.

 

Our units represent both financial and governance rights, and loss of status as a member would result in the loss of the holder’s voting and other rights and would allow us to redeem such holder’s units.

 

Holders of units are entitled to certain financial rights, such as the right to any distributions, and to governance rights, such as the right to vote as a member.  If a unit holder does not continue to qualify as a member or such holder’s member status is terminated, the holder would lose certain rights, such as voting rights, and we could redeem such holder’s units.  The minimum number of units presently required for membership is 2,500 units.  In addition, holders of units may be terminated as a member if the holder dies or ceases to exist, violates our Member Control Agreement or takes actions contrary our interests, and for other reasons.  Although our Member Control Agreement does not define what actions might be contrary to our interests, and our board of governors has not adopted a policy on the subject, such actions might include providing confidential information about us to a competitor, taking a board or management position with a competitor or taking action which results in significant financial harm to us in the marketplace.  If a holder of units is terminated as a member, our board of governors will have no obligation to redeem such holder’s units.

 

Voting rights of members are not necessarily equal and are subject to certain limitations.

 

Members of our company are holders of units who have been admitted as members upon their investment in our units and who are admitted as members by our board of governors.  The minimum number of units required to retain membership is 2,500 units.  Any holder of units who is not a member will not have voting rights.  Transferees of units must be approved by our board of governors to become members.  Members who are holders of our present units are entitled to one vote for each unit held.  The provisions of our Member Control Agreement relating to voting rights applicable to any class of units will apply equally to all units of that class.  However, our Member Control Agreement gives members who hold significant amounts of equity in us the right to designate governors to serve on our board of governors.  For every 9% of our units held, the member has the right to appoint one person to our board.  Project Viking, LLC has the right to appoint two persons to our board pursuant to this provision.  If units of any other class are issued in the future, holders of units of that other class will have the voting rights that are established for that class by our board of governors with the approval of our members.  Consequently, the voting rights of members may not be completely proportional to the number of units held.  Cumulative voting for governors is not allowed, which makes it substantially less likely that a minority of members could elect a member to the board of governors.  Members do not have dissenter’s rights.  This means that they will not have the right to dissent and seek payment for their units in the event we merge, consolidate, exchange or otherwise dispose of all or substantially all of our property.  Holders of units who are not members have no voting rights.  These provisions may limit the ability of members to change the governance and policies of our company.

 

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All members will be bound by actions taken by members holding a majority of our units, and because of the restrictions on transfer and lack of dissenters’ rights, members could be forced to hold a substantially changed investment.

 

We cannot engage in certain transactions, such as a merger, consolidation, dissolution or sale of all or substantially all of our assets, without the approval of our members.  However, if holders of a majority of our units approve a transaction, then all members will also be bound to that transaction regardless of whether that member agrees with or voted in favor of the transaction.  Under our Member Control Agreement, members will not have any dissenters’ rights to seek appraisal or payment of the fair value of their units.  Consequently, because there is no public market for the units, members may be forced to hold a substantially changed investment.

 

Risks Related to Our Debt Financing

 

Our debt financing agreements contain restrictive covenants that limit distributions and impose restrictions on the use of working capital, and these restrictions could have a material adverse effect upon our business.

 

We must abide by the financial, maintenance, organizational, operational and other restrictive covenants contained in our master loan agreement with AgStar Financial Services, PCA (“AgStar”) and our other debt financing agreements, which may make it more difficult for us to operate. These covenants may have important implications on our operations, including, among other things:

 

·              Limiting our ability to obtain additional debt or equity financing;

 

·              Placing us at a competitive disadvantage because we may be substantially more leveraged than some of our competitors;

 

·              Limiting our ability to adjust to changing market conditions, which could make us more vulnerable to a downturn in the general economic conditions of our business; and

 

·              Limiting our ability to make business and operational decisions regarding our business and our subsidiaries, including, among other things, limiting our ability to make distributions to our unit holders, make capital improvements, sell or purchase assets or engage in transactions we deem to be appropriate and in our best interest.

 

If we are unable to comply with these covenants, we may lose control of our business and be forced to reduce or delay planned capital expenditures, sell assets, restructure our indebtedness or submit to foreclosure proceedings, all of which would result in a material adverse effect upon our business.

 

Certain provisions of our master loan agreement with AgStar present special risks to our business.

 

As of April 30, 2008, our debt with AgStar consists of approximately $45.0 million in fixed rate obligations and $14.6 in variable rate obligations after giving effect to our election under our master loan agreement with AgStar to fix an interest rate of 6.58% on $45.0 million of our debt effective May 1, 2008 through April 30, 2011.  The variable rate on a portion of our debt may make us vulnerable to increases in prevailing interest rates.  If the interest rate on our variable rate debt were to increase, our aggregate annualized interest and principal payments would also increase and could increase significantly.

 

Additionally, the principal and interest payments on our $59.6 term loan are calculated using an amortization period of ten years even though the note will mature on October 1, 2012, five years from the date of its issuance.  As a result, at maturity of the term loan, there would be approximately $38.9 million in principal remaining under the term loan, without any additional payments that may be required under the master loan agreement.  In order to finance this large payment of principal that would be due at maturity, we may attempt to extend the term of the loan under the master loan agreement, refinance the indebtedness under the master loan agreement, in full or in part, or obtain a new loan to repay the term loan.  We cannot assure you that will be successful in obtaining an extension of or refinancing our indebtedness.  We also cannot assure you that we will be able to obtain a new loan in an amount that is sufficient for our needs, in a timely manner or on terms and conditions acceptable to us or our members.

 

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We also have a $5.0 million revolving term variable rate loan.  As of April 30, 2008, we have used approximately $1.2 million of AgStar’s commitment under this loan.  Beginning with October 1, 2008, and annually thereafter, AgStar’s commitment and the available amount of the loan decreases by $500,000 until October 2011.  The loan will mature on October 1, 2012.  As with the term loan, at maturity we may attempt to extend, refinance, or obtain a new loan to repay any outstanding balance.  We cannot assure you that any alternative will be sufficient for our needs, available in a timely manner or on terms and conditions acceptable to us or our members.

 

If we are unable to service our debt, we may lose control of our business and be forced to reduce or delay planned capital expenditures, sell assets, restructure our indebtedness or submit to foreclosure proceedings, all of which would result in a material adverse effect upon our business.

 

Risks Related to Construction of the Ethanol Plant

 

Our ethanol plant is not complete under our design-build agreement with Fagen, Inc. because the warranties relating to air emissions has not been satisfied.

 

Our ethanol plant was constructed under a design-build agreement with Fagen, Inc. as the design-builder.  As of April 30, 2008, $77.5 million has been paid and we have retained approximately $3.8 million in payments to Fagen, Inc.  Final payment will be due when final completion of construction is achieved and when our plant satisfies the air emissions warranties specified in the design-build agreement.  Under that warranty, Fagen, Inc. has warranted that within six months following the date of substantial completion, the emissions of our ethanol plant will meet the requirements of a synthetic minor source.  In lieu of an amended permit, we are currently operating subject to a compliance agreement with the Minnesota Pollution Control Agency that specifies air emissions thresholds.  Under the compliance agreement, we agreed to submit an amendment to our air permit to qualify our facility as a “major emissions source.”

 

During June and July 2008, we completed air pollution control device testing to determine compliance with synthetic minor source thresholds.  Some of these results have been provided to the MPCA, while others are still being processed.  Additionally, we anticipate conducting additional air emissions testing under different conditions.  Therefore, we continue to operate under compliance agreement pending the results of testing and further discussions with the MPCA regarding the need to qualify our facility as a major emissions source.  We have experienced substantial delays in construction due to issues associated with the air emissions permit for our plant and we have incurred substantial additional costs associated with air emissions permitting.  We may be required to incur additional costs to modify our plant to achieve compliance with the more stringent minor source emissions limits or to qualify our facility as a major emissions source.  We also may experience increased costs of operations to comply with any air emissions permit we receive.  Further, we cannot assure you when our plant will be complete under the design-build agreement or when we will remit the retainage to Fagen, Inc.

 

We may encounter defects in material, workmanship or design, which may hinder our ability to efficiently operate the ethanol plant.

 

If there are defects in material, workmanship or design in our ethanol plant, we will rely on Fagen, Inc. and ICM, Inc. to adequately address such deficiency.  The performance guarantees and warranties we have received from Fagen are unsecured and we may not be able to recover any losses we sustain arising from such deficiencies. If Fagen and/or ICM were unable to correct such deficiency in an acceptable manner or without the financial resources to pay for such deficiency as may be required by our design-build agreement, we may be forced to halt or discontinue our production of ethanol, which could damage our ability to generate revenues.

 

Government and Regulatory Risks

 

Federal and state regulation heavily influence the ethanol industry and changes in government regulation that adversely affect the demand for or supply of ethanol will have a material adverse effect on our business.

 

Various federal and state laws, regulations and programs impact the supply of and demand for ethanol. Some government regulation, for example those that provide economic incentives to ethanol producers, stimulate supply of ethanol by encouraging production and the increased capacity of ethanol plants.  Others, such as a federal excise tax incentive program that provides gasoline distributors who blended ethanol with gasoline to receive a federal excise tax rate reduction for each blended gallon they sell, stimulate demand for ethanol by making it price competitive with other oxygenates.  Further, tariffs generally apply to the import of ethanol from certain other countries, where the cost of production can be significantly less than in the U.S.  These tariffs are designed to

 

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increase the cost of imported ethanol to a level more comparable to the cost of domestic ethanol by offsetting the benefit of the federal excise tax program.  Tariffs have the effect of maintaining demand for domestic ethanol.  Additionally, the federal government has established renewable fuels standard (RFS) programs, most recently under the Energy Independence and Security Act of 2007, that set minimum national standards for use of renewable fuels.  The RFS and other state programs that require or provide incentives for the use of ethanol create demand for ethanol.  Government regulation and government programs that create demand for ethanol may also indirectly create supply for ethanol as additional producers expand or new companies enter the ethanol industry to capitalize on demand.

 

Federal and state laws, regulations and programs are constantly changing. We cannot predict what material impact, if any, these changes might have on our business. Future changes in regulations and programs could impose more stringent operational requirements or could reduce or eliminate the benefits we receive, directly and indirectly, under current regulations and programs.  Future changes in regulations and programs may increase or add benefits to ethanol producers other than us or eliminate or reduce tariffs or other barriers to entry into the U.S. ethanol market, any of which could prove beneficial to our competitors, both domestic and international.  Future changes in regulation may also hurt our business by providing economic incentives to producers of other renewable fuels or oxygenates or encouraging use of fuels or oxygenates that compete with ethanol.  In addition, both national and state regulation is influenced by public opinion and changes in public opinion.  For example, certain states oppose the use of ethanol because, as net importers of ethanol from other states, the use of ethanol could increase gasoline prices in that state and because that state does not receive significant economic benefits from the ethanol industry, which are primarily experienced by corn and ethanol producing states.  Further, some argue that the use of ethanol will have a negative impact on gasoline prices to consumers, result in rising food prices, add to air pollution, harm car and truck engines, and actually use more fossil energy, such as oil and natural gas, than the amount of ethanol that is produced.  We cannot predict the impact that opinions of consumers, legislators, industry participants, or competitors may have on the regulations and programs currently benefiting ethanol producers.

 

We may be adversely affected by environmental, health and safety laws, regulations and liabilities.

 

We are subject to various federal, state and local environmental laws and regulations, including those relating to the discharge of materials into the air, water and ground, and the health and safety of our employees.

 

Some of these laws and regulations require our plant to operate under permits that are subject to renewal or modification. These laws, regulations and permits may require pollution control equipment or operational changes to limit actual or potential impacts to the environment.

 

The costs associated with obtaining and complying with permits and complying with environmental laws have increased our costs of construction.  In particular, we have incurred additional costs relating to an air-emission permit from the Minnesota Pollution Control Agency (“MPCA”).  We applied for a synthetic minor air-emissions source permit in July 2004 that was granted by the MPCA in May 2005.  In June 2005, a coalition of two environmental and one energy group challenged the grant of this air emissions permit by an appeal to the Minnesota Court of Appeals and in July 2006, the Minnesota Court of Appeals affirmed the MPCA’s issuance of the permit.  In conjunction with the permit and the permit dispute and to prevent further appeals by the coalition, we entered into a compliance agreement with the MPCA on January 23, 2007 that currently governs the air emissions from our plant.  Under the compliance agreement, we also agreed to submit an amendment to our air permit to qualify our facility as a “major emissions source.”  We have submitted an amendment to our air permit as required under the compliance agreement and exclusively to comply with that agreement.  However, we are continuing discussions with the MPCA regarding the necessity for qualifying our facility as a major emissions source, particularly in light of recent changes in federal law that increased the limit of certain emissions allowed as a synthetic minor source.  Pending the resolution of this air permit issue, we continue to operate under the air emissions thresholds described in the compliance agreement in lieu of an amended permit. During June and July 2008, we completed air pollution control device testing to determine compliance with synthetic minor source thresholds.  Some of these results have been provided to the MPCA, while others are still being processed.  Additionally, we, with the ongoing assistance of Fagen, Inc., anticipate conducting additional air emissions testing under different conditions.  Therefore, we continue to operate under the compliance agreement pending the results of testing and further discussions with the MPCA regarding the necessity of qualifying our facility as a major emissions source.

 

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There can be no assurance that we will be able to comply with any of the conditions of the compliance agreement, any of our other permits, or with environmental laws applicable to us.  Compliance with these laws and permits could require expensive pollution control equipment or operational changes to limit actual or potential impacts to the environment, as well as significant management time and expense.  The resolution of our air emissions permit issue will likely involve significant management time and expense and may involve ongoing operational expense or further modifications to the design or equipment in our plant.  There can be no assurance that we will succeed in our discussions with the MPCA to qualify our ethanol plant as a minor emissions source.  A violation of environmental laws, regulations or permit conditions can result in substantial fines, natural resource damage, criminal sanctions, permit revocations or plant shutdown, any of which could have a material adverse effect on our operations.

 

The hazards and risks associated with producing and transporting our products (such as fires, natural disasters, explosions, and abnormal pressures and blowouts) may also result in personal injury claims or damage to property and third parties. As protection against operating hazards, we maintain insurance coverage against some potential losses. However, losses could be sustained for uninsurable or uninsured risks, or in amounts in excess of existing insurance coverage. Events that result in significant personal injury or damage to our property or third parties or other losses that are not fully covered by insurance could have a material adverse effect on our results of operations and our financial position.

 

Federal and state regulations affecting the operation of our ethanol plant are subject to future change. We cannot predict what material impact, if any, these changes might have on our business. Future changes in regulations or enforcement policies could impose more stringent requirements on us, compliance with which could require additional capital expenditures, increase our operating costs or otherwise adversely affect our business.  These changes may also relax requirements that could prove beneficial to our competitors and thus adversely affect our business.  In addition, regulations of the EPA and the MCPA depend heavily on administrative interpretations. We cannot assure you that future interpretations made by the EPA, or other regulatory authorities, with possible retroactive effect, will not adversely affect our business, financial condition and results of operations.

 

Failure to comply with existing or future regulatory requirements could have a material adverse effect on our business, financial condition and results of operations.

 

Risks Related to Tax Issues in a Limited Liability Company

 

EACH UNITHOLDER SHOULD CONSULT THE INVESTOR’S OWN TAX ADVISOR WITH RESPECT TO THE FEDERAL AND STATE TAX CONSEQUENCES OF AN INVESTMENT IN HERON LAKE BIOENERGY, LLC AND IMPACT ON THE INVESTOR’S TAX REPORTING OBLIGATIONS AND LIABILITY.

 

If we are not taxed as a partnership, we will pay taxes on all of our net income and you will be taxed on any earnings we distribute, and this will reduce the amount of cash available for distributions to holders of our units.

 

We consider Heron Lake BioEnergy, LLC to be a partnership for federal income tax purposes.  This means that we will not pay any federal income tax, and our members will pay tax on their share of our net income.  If we are unable to maintain our partnership tax treatment or qualify for partnership taxation for whatever reason, then we may be taxed as a corporation.  We cannot assure you that we will be able to maintain our partnership tax classification.  For example, there might be changes in the law or our company that would cause us to be reclassified as a corporation.  As a corporation, we would be taxed on our taxable income at rates of up to 35% for federal income tax purposes.  Further, distributions would be treated as ordinary dividend income to our unit holders to the extent of our earnings and profits.  These distributions would not be deductible by us, thus resulting in double taxation of our earnings and profits. This would also reduce the amount of cash we may have available for distributions.

 

Your tax liability from your allocated share of our taxable income may exceed any cash distributions you receive, which means that you may have to satisfy this tax liability with your personal funds.

 

As a partnership for federal income tax purposes, all of our profits and losses “pass-through” to our unit holders.  You must pay tax on your allocated share of our taxable income every year. You may incur tax liabilities from allocations of taxable income for a particular year or in the aggregate that exceed any cash distributions you receive in that year or in the aggregate.  This may occur because of various factors, including but not limited to, accounting methodology, the specific tax rates you face, and payment obligations and other debt covenants that

 

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restrict our ability to pay cash distributions.  If this occurs, you may have to pay income tax on your allocated share of our taxable income with your own personal funds.

 

You may not be able to fully deduct your share of our losses or your interest expense.

 

It is likely that your interest in us will be treated as a “passive activity” for federal income tax purposes.  In the case of unit holders who are individuals or personal services corporations, this means that a unit holder’s share of any loss incurred by us will be deductible only against the holder’s income or gains from other passive activities, e.g., S corporations and partnerships that conduct a business in which the holder is not a material participant.  Some closely held C corporations have more favorable passive loss limitations.  Passive activity losses that are disallowed in any taxable year are suspended and may be carried forward and used as an offset against passive activity income in future years.  Upon disposition of a taxpayer’s entire interest in a passive activity to an unrelated person in a taxable transaction, suspended losses with respect to that activity may then be deducted.

 

Interest paid on any borrowings incurred to purchase units may not be deductible in whole or in part because the interest must be aggregated with other items of income and loss that the unit holder has independently experienced from passive activities and subjected to limitations on passive activity losses.

 

You may be subject to federal alternative minimum tax

 

Individual taxpayers are subject to an “alternative minimum tax” if that tax exceeds the individual’s regular income tax.  For alternative minimum tax purposes, an individual’s adjusted gross income is increased by items of tax preference.  We may generate such preference items, the most significant of which is accelerated depreciation.  Accordingly, preference items from our operations together with other preference items you may have may cause or increase an alternative minimum tax to a unit holder.  You are encouraged and expected to consult with your individual tax advisor to analyze and determine the effect on your individual tax situation of the alternative minimum taxable income you may be allocated, particularly in the early years of our operations.

 

Preparation of your tax returns may be complicated and expensive.

 

The tax treatment of limited liability companies and the rules regarding partnership allocations are complex. We will file a partnership income tax return and will furnish each unit holder with a Schedule K-1 that sets forth our determination of that unit holder’s allocable share of income, gains, losses and deductions. In addition to United States federal income taxes, unit holders will likely be subject to other taxes, such as state and local taxes, that are imposed by various jurisdictions. It is the responsibility of each unit holder to file all applicable federal, state and local tax returns and pay all applicable taxes. You may wish to engage a tax professional to assist you in preparing your tax returns and this could be costly to you.

 

Any audit of our tax returns resulting in adjustments could result in additional tax liability to you.

 

The IRS may audit our tax returns and may disagree with the positions that we take on our returns or any Schedule K-1.  If any of the information on our partnership tax return or a Schedule K-1 is successfully challenged by the IRS, the character and amount of items of income, gains, losses, deductions or credits in a manner allocable to some or all our unit holders may change in a manner that adversely affects those unit holders. This could result in adjustments on unit holders’ tax returns and in additional tax liabilities, penalties and interest to you. An audit of our tax returns could lead to separate audits of your personal tax returns, especially if adjustments are required.

 

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Item 2.  Financial Information

 

Selected Consolidated Financial Data

 

The following table presents selected consolidated financial and operating data as of the dates and for the periods indicated. The selected consolidated balance sheet financial data as of October 31, 2006 and 2007 and the selected statement of operations data for the years ended October 31, 2006 and 2007 have been derived from the audited consolidated financial statements included elsewhere in this Registration Statement on Form 10.

 

The following selected consolidated financial data as of April 30, 2008 and for the six months ended April 30, 2007 and 2008 have been derived from our unaudited consolidated financial statements included elsewhere in this Registration Statement on Form 10.

 

This selected consolidated financial data should be read in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” within this Item 2 and the consolidated financial statements and the accompanying notes included elsewhere in this Registration Statement on Form 10. Among other things, those financial statements include more detailed information regarding the basis of presentation for the following consolidated financial data.

 

 

 

Fiscal Year Ended

 

Six Months Ended

 

 

 

October 31,
2006

 

October 31,
2007

 

April 30,
2007

 

April 30,
2008

 

 

 

 

 

 

 

(unaudited)

 

(unaudited)

 

Statement of Operations Data:

 

 

 

 

 

 

 

 

 

Revenues

 

$

10,111,931

 

$

23,560,498

 

$

6,002,494

 

$

65,571,665

 

Cost of goods sold

 

9,818,395

 

24,313,695

 

7,529,077

 

50,655,715

 

Gross profit (loss)

 

293,536

 

(753,197

)

(1,526,583

)

14,915,950

 

Operating expenses

 

1,965,342

 

3,527,199

 

1,216,401

 

1,577,664

 

Operating income (loss)

 

(1,671,806

)

(4,280,396

)

(2,742,984

)

13,338,286

 

Other income (expense)

 

1,030,661

 

(1,167,890

)

(204,577

)

(2,622,468

)

Net income (loss)

 

$

(641,145

)

$

(5,448,286

)

$

(2,947,561

)

$

10,715,818

 

 

 

 

 

 

 

 

 

 

 

Weighted average units outstanding

 

23,129,554

 

26,361,406

 

25,740,122

 

27,104,625

 

 

 

 

 

 

 

 

 

 

 

Net income (loss) per unit – Basic and diluted

 

$

(0.03

)

$

(0.21

)

$

(0.11

)

$

0.40

 

 

 

 

As of

 

As of

 

 

 

October 31, 2006

 

October 31, 2007

 

April 30,
2008

 

 

 

 

 

 

 

(unaudited)

 

Balance Sheet Data:

 

 

 

 

 

 

 

Assets:

 

 

 

 

 

 

 

Current assets

 

$

7,743,428

 

$

24,382,053

 

$

22,963,656

 

Property and equipment

 

60,484,866

 

108,852,921

 

106,372,656

 

Other assets

 

550,291

 

724,984

 

2,030,190

 

Total assets

 

$

68,778,585

 

$

133,959,958

 

$

131,366,502

 

 

 

 

 

 

 

 

 

Current liabilities

 

25,541,399

 

29,712,918

 

$

17,212,741

 

Long-term debt

 

3,503,759

 

62,281,899

 

61,472,802

 

Members’ equity

 

39,733,427

 

41,965,141

 

52,680,959

 

Total liabilities and members’ equity

 

$

68,778,585

 

$

133,959,958

 

$

131,366,502

 

 

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Trends and Uncertainties Impacting Our Operations

 

Our current and future results of operation are affected and will continue to be affected by factors such as (a) volatile and uncertain pricing of ethanol and corn; (b) availability of corn that is, in turn, affected by trends such as corn acreage, weather conditions, and yields on existing and new acreage diverted from other crops; and (c) the supply and demand for ethanol, which is affected by acceptance of ethanol as a substitute for fuel, public perception of the ethanol industry, government incentives and regulation, and competition from new and existing construction, among other things.  Other factors that may affect our future results of operation include those factors discussed in “Item 1. Business — Risk Factors.”

 

Critical Accounting Estimates

 

Our management’s discussion and analysis of our financial condition and results of operations are based on our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of financial statements may require us to make estimates and assumptions that may affect the reported amounts of assets and liabilities and the related disclosures at the date of the financial statements.  We do not currently have any estimates or assumptions where the nature of the estimates or assumptions is material due to the levels of subjectivity and judgment necessary to account for highly uncertain matters or the susceptibility of such matters to change or the impact of the estimates and assumptions on financial condition or operating performance is material.

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The following table sets forth other key data for the six months ended April 30, 2008.  Since our ethanol plant began production on September 21, 2007, data for April 30, 2007 is not comparable and therefore is not presented.

 

 

 

Six Months Ended
April 30, 2008
(unaudited)

 

 

 

 

 

Financial data:

 

 

 

Net cash flows provided by operating activities

 

$

9,601,000

 

Operating data:

 

 

 

Ethanol sold (gallons)

 

25,649,000

 

Average gross price of ethanol sold per gallon

 

$

2.04

 

Dried distillers grains sold (tons)

 

60,000

 

Average dry distillers grains price per ton

 

$

146.17

 

Modified wet distillers grains sold (tons)

 

21,000

 

Average modified wet distillers grains price per ton

 

$

43.33

 

 

Year Ended October 31, 2007 Compared to Year Ended October 31, 2006

 

Executive Summary of Fiscal Year 2007.   Our business activity for the first ten months of fiscal year 2007 consisted of financing and overseeing the design and construction of our ethanol plant, which was originally scheduled to start production as early as May 2007.  On September 21, 2007, after significant delays in start up of the plant primarily due to construction and permitting issues, we began producing ethanol.  We began selling ethanol and co-products in October 2007.  In anticipation of start up of the plant, we purchased corn to be used in production and hired additional personnel.  With the delay of start up of the plant, we sold corn that would otherwise have been used in production to free up storage for the corn we were required to purchase under our commitments.  Additionally, as a result of the delay, increased labor costs and expense was not immediately offset by corresponding revenue, which resulted in overall higher than anticipated expenses and a negative gross profit margin.

 

Highlights for the year ended October 31, 2007 are as follows:

 

·     We completed construction of our ethanol plant during the fourth quarter of fiscal year 2007 and our ethanol plant began operations on September 21, 2007.

 

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·     From September 21, 2007 until the end of fiscal year 2007, revenue from sales of ethanol and distillers grains was approximately $6.8 million.

 

·     Revenue for fiscal year 2007 increased by approximately $13.4 million to approximately $23.6 million.

 

·     Our net loss increased by approximately $4.8 million from approximately $0.6 million in fiscal year 2006 to approximately $5.4 million in fiscal year 2007.

 

·    Loss per unit increased from $0.03 per unit in fiscal year 2006 to $0.21 per unit for fiscal year 2007.

 

Revenue.  Revenue increased by approximately $13.4 million, or 133%, from approximately $10.1 million in fiscal year 2006 to approximately $23.6 million in fiscal year 2007.  Of the total revenue increase, approximately $6.3 million was attributable to ethanol sales, approximately $439,000 to distillers grain sales, and approximately $6.7 million in grain and other revenue.  There was no revenue from the sale of ethanol or distillers grains in fiscal year 2006.

 

Ethanol Revenue – Our plant started production in September 2007.  Our ethanol was first sold in October 2007, the last month of our fiscal year.  From the start of production to the end of our fiscal year 2007, we sold approximately 4.0 million gallons of ethanol at an average price of $1.57 per gallon.

 

Distillers Grains – We first sold distillers grains in October 2007.  We sold approximately 3,000 tons of dried distillers grains at an average price of approximately $100 per ton.  We sold approximately 7,000 tons of modified wet distillers grains at an average price of approximately $19 per ton.  We continually review market pricing, storage availability and shelf life of product to determine the best production mix of dried distillers grains and modified wet distillers grains at any given time.  For the period of production during fiscal year 2007, our product mix was negatively affected by issues associated with start up as we focused on producing ethanol as our main product, operational issues with our distillers grains dryer, and increased supply of modified wet distillers grains in local markets that depressed prices for modified wet distillers grains.

 

Grain and Other Revenue – Grain and other revenue consist of revenue from the sale of grains, primarily corn and soybeans, sales of gasoline and diesel, and revenue from grain related services, such as storage and drying.  For fiscal year 2007, revenue from sales of grain and other sources was $16.8 million as compared to $10.1 million in fiscal year 2006.  The sale of grain accounted for a majority of this revenue in both fiscal year 2007 and 2006. The increase in revenue from the sale of grain in fiscal year 2007 as compared to fiscal year 2006 was primarily the result of both an increased number of corn bushels sold by approximately 27.3% and an increase in the average price of corn sold from $1.91 to $3.50 per bushel.  Because operations began nearly five months later than anticipated, we sold corn that we would have used in ethanol production to create storage as we fulfilled our ongoing corn purchase commitments, which resulted in the increased number of bushels sold in fiscal year 2007.  The increased price per bushel of corn was due to market factors. However, with the start-up of our ethanol plant, our primary use of the corn we purchase will be to produce ethanol.  Grain and other revenue are and will be insignificant as compared to the sale of our primary product, ethanol and its co-product, distillers grains.

 

Cost of Goods Sold.   Cost of goods sold consists primarily of the costs of corn, coal, depreciation, electricity and denaturant.  Cost of goods sold increased from approximately $9.8 million in fiscal 2006 to approximately $24.3 million in fiscal 2007.  This represented an increase of $14.5 million, or 148%.  Of this increase, approximately $8.0 million was related to the sale of ethanol and distillers grains in October 2007.  The remaining increase of approximately $6.5 million was related to the sale of corn and other sales.  Within the $6.5 million increase was approximately a $1.9 million increase in the recognition of derivative losses, which totaled $2.6 million in fiscal year 2007 as compared to $0.7 million in fiscal year 2006.

 

We recognize the gains or losses that result from the changes in the value of our derivative instruments in cost of goods sold at the end of each financial reporting period.  This method of recognition is referred to as “mark to market.”  As corn prices fluctuate, the value of our derivative instruments are impacted and, at the end of each financial reporting period, these fluctuations result in recognition of a gain or loss impacting cost of goods sold.

 

Corn is a market based commodity whose price can vary widely due to supply and demand circumstances, influenced by such factors as planting intentions, weather patterns, and foreign export demand.  Our hedging strategies and instruments relating to corn affect our cost of goods sold.  We recognize gains or losses on corn hedging instruments at the end of each financial period in cost of goods sold.  One of our strategies to control cost of goods sold focuses on utilizing our corn storage capacity to manage the number of bushels and the purchase price of

 

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corn to be used in our ethanol plant.  In order to reduce the pricing risk, we may use a significant portion of the 2.8 million bushels of space provided by our elevator facilities as a means of mitigating the more limited storage space at the ethanol plant, which totals 500,000 bushels.  By having this space available, we have more flexibility in the timing of our corn procurement needs and the use of derivative instruments such as forward purchases, futures, and option contracts to manage our corn costs.

 

Gross Profit .  Gross profit decreased from a gross profit of approximately $0.3 million in fiscal 2006 to a loss of approximately $0.8 million in fiscal year 2007.

 

Overall gross profit was negatively impacted in fiscal year 2007 by derivative losses of approximately $2.7 million in 2007 as compared to a loss of approximately $0.7 million in 2006, and an unfavorable mix between dried distillers grains and modified wet distillers grains affecting our revenue from distillers grains.

 

Operating Expenses .  Operating expenses increased approximately $1.6 million to approximately $3.5 million for fiscal 2007 from approximately $1.9 million for fiscal 2006.  The increase was primarily the result of increases in salaries and wages of $678,000, consulting and professional fees of approximately $336,000, repair and supply items of $180,000, depreciation and amortization of $114,000, and insurance of $80,000.  The increase in operating expenses in fiscal year 2007 as compared to fiscal year 2006 was primarily attributable to delays in start up of our ethanol plant.  Anticipating start up as early as May 2007, we hired plant and other employees earlier in the year and we also experienced increased expenses associated with addressing construction and permitting delays.

 

Other Income (Expense).   Interest income decreased from approximately $995,000 in fiscal 2006 to approximately $9,000 in fiscal 2007.  This decrease was primarily due to equity funds being invested in property and equipment in fiscal 2007 rather than being held as cash and equivalents.

 

Prior to production, interest costs were being capitalized as part of property and equipment cost.  With the commencement of production, interest is recognized as interest expense.  Therefore, interest expense increased from approximately $77,000 in fiscal 2006 to approximately $1.2 million in fiscal 2007.  Of this increase, approximately $732,000 was due to increased borrowings, primarily to finance inventory costs.  The remaining increase of $372,000 was due to commencement of ethanol operations.

 

Net Income (Loss).   For fiscal year 2007, our net loss was approximately $5.4 million as compared to a net loss of approximately $641,000 in fiscal year 2006.  The increase in net loss was primarily attributable to increased cost of goods sold and operating expenses.  While we generated significantly more revenue in fiscal year 2007 as compared to fiscal year 2006, cost of goods exceeded revenue for fiscal year 2007 by 3%, whereas cost of goods sold was less than revenue for fiscal year 2006 by 3%.  Costs of goods sold was significantly higher in fiscal year 2007 as compared to fiscal year 2006 due to derivative losses of approximately $2.7 million in 2007 as compared to derivative losses of approximately $0.7 million in 2006.  In addition we hired more employees in anticipation of start-up of our ethanol plant as early as May 2007 and experienced delays in start-up in fiscal year 2007.  Additionally, in fiscal year 2007, we had other expense of approximately $1.2 million as compared to other income of $1.1 million in fiscal year 2006.

 

Six Months Ended April 30, 2008 as Compared to Six Months Ended April 30, 2007

 

Since we began generating revenues from ethanol in October 2007, the six month period ended April 30, 2008 represents the first full period of production and revenue generating activities at our ethanol plant.  In contrast, during the six month period ended April 30, 2007, our business activity primarily consisted of financing and overseeing the design and construction of our ethanol plant.  Therefore, while the information may be presented below with respect to both the six month periods ended April 30, 2008 and April 30, 2007, these periods are inherently not comparable because of the differences in activity during these respective time periods.

 

Highlights of First Half of 2008.   Highlights for the six months ended April 30, 2008 are as follows:

 

·    Total revenues were $65.6 million for the six months ended April 30, 2008.

 

·    Net income was $10.7 million for the six months ended April 30, 2008.

 

·    Ethanol gallons sold were 25.6 million gallons for the six months ended April 30, 2008.

 

·    Income per unit was $0.40 for the six months ended April 30, 2008.

 

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Revenues .  Revenues were approximately $65.6 million for the six months ended April 30, 2008, consisting of revenues from the sale of ethanol of $51.5 million, from the sale of distillers grains of $9.7 million, and from the sale of grains and other revenue of $4.4 million.

 

Ethanol Revenue – We sold approximately 25.6 million gallons of ethanol during the six months ended April 30, 2008.  We also recognized derivative losses of approximately $0.9 million or $.035 per gallon sold for the six months ended April 30, 2008 on ethanol related derivative instruments. We recognize the gains or losses that result from the changes in the value of our ethanol derivative instruments at the end of each financial reporting period.  Therefore, as ethanol prices fluctuate, the value of our derivative instruments are impacted and, at the end of each financial reporting period, these fluctuations may result in recognition of a gain or loss impacting revenue from the sale of ethanol.  The price per gallon we received for the sale of our ethanol ranged between a low of $1.57 in October 2007 and a high of $2.29 in April 2008.

 

Distillers Grains Revenue – We sold 60,000 tons of dried distillers grains that generated revenues of approximately $9.0 million, or approximately $146 per ton on average.  During the six months ended April 30, 2008, the average selling price of dried distillers grains increased from approximately $100 per ton to approximately $154 per ton.  We believe the primary factor that caused the average selling price of distillers grain to increase was the increase in the cost of corn during the period.  We also sold approximately 20,000 tons of modified wet distillers that generated revenues of approximating $0.9 million, or approximately $43 per ton on average.  During the six months ended April 30, 2008, the average selling price of modified wet distillers grains increased from approximately $19 in October 2007 to approximately $49 in April 2008.  During the six months ended April 30, 2008, we focused on producing a higher volume of dried distillers grains.   We review market pricing, storage availability, and shelf life of product to determine the best production mix of dried distillers grains and modified wet distillers grains at any given time.

 

Grain and Other Revenue – During the six months ended April 30, 2008, we generated revenue from grain and other revenue of approximately $4.4 million.  With our ethanol plant in production, we use nearly all of the corn we purchase in production.  However, we sold approximately 362,000 bushels of corn in November 2007 due to space limitations.  We also accepted delivery of soybeans as an accommodation to our corn producers in the local area.  We do not expect these grain sales and other revenues to be a significant percentage of revenue in the future.

 

Cost of Goods Sold . Cost of goods sold was approximately $50.7 million for the six months ended April 30, 2008.  Cost of goods sold for the six months ended April 30, 2008 was comprised of the following costs:  corn, approximately $33.1 million; coal, approximately $3.4 million; depreciation, approximately $2.6 million; denaturant, approximately $1.4 million; and electricity, approximately $1.2 million.  The rising cost of corn that impacted cost of goods sold was partially offset by approximately $2.2 million of corn derivative gains.  Our corn cost of $33.1 million was approximately 65% of our cost of goods sold for the six months ended April 30, 2008.

 

Corn is a market based commodity whose price can vary widely due to supply and demand circumstances, influenced by such factors as planting intentions, weather patterns, and foreign export demand.  Our hedging strategies affect our cost of goods sold.  We recognize gains or losses on corn derivative instruments at the end of each financial period in cost of goods sold.  One of our strategies to control cost of goods sold focuses on utilizing our corn storage capacity to manage the number of bushels and purchase price of corn to be used in our ethanol plant.  In order to reduce the pricing risk, we may use a major portion of the 2.8 million bushels of space provided by our elevator facilities as a means of mitigating the more limited storage space at the ethanol plant, which totals 500,000 bushels.  By having this space available, we have more flexibility in the timing of our corn procurement needs and use of derivative instruments such as forward purchases, futures, and option contracts, to manage our corn costs.

 

Gross Profit .  For the six months ended April 30, 2008, gross profit was approximately $14.9 million, which was favorably impacted by relatively low corn costs as a result of our ability to use stored corn purchased at a price that was less than the then-current cost of corn on the CBOT for comparable volumes, hedging gains, and increase in ethanol prices. We sold approximately 80,000 tons of distillers grains through six months ended April 30, 2008.  Gross profit relating to distillers grains benefited from higher proportionate production of dried distillers grains with a higher per ton selling price and generally increasing average selling prices per ton for both dried and modified wet distillers grains during the period.

 

Operating Expenses . Operating expenses consist of costs not directly related to the production process of ethanol and distillers grains.  Operating expenses for the six months ended April 30, 2008 were $1.6 million, consisting of professional and consulting fees of approximately $452,000 and $868,000 in general and

 

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administrative expenses, such as salaries and wages, payroll taxes, employee benefits, depreciation and amortization, insurance, office supplies, and property taxes.  Operating expenses for the six months ended April 30, 2007 were approximately $1.2 million. Operating expenses for the six months ended April 30, 2008 were higher than the comparable period of fiscal year 2007 due to increased personnel for our operation as compared to the six months ended April 30, 2007 when our plant was not in operation.

 

Other Income (Expense).   Interest expense increased to approximately $2.7 million for the six months ended April 30, 2008 as compared to approximately $0.2 million the prior year period.  The increase was primarily due to the fact that prior to start-up of the ethanol plant, we capitalized interest on funds borrowed for construction of our ethanol plant.

 

Net Income (Loss).   Net income for the six months ended April 30, 2008 was $10.7 million as compared to a net loss of $2.9 million for the six months ended April 30, 2007.  The minimal revenues as compared to increased expenses resulted in the loss for the six months ended April 30, 2007, whereas net income resulted from a full six months of plant production and profitable operations in the six months ended April 30, 2008.

 

Liquidity and Capital Resources

 

Through fiscal 2007, our principal sources of liquidity consisted primarily of proceeds from the sale of our units and borrowings under our original and amended loan agreements with AgStar Financial Services, PCA (“AgStar”).  Our primary uses of liquidity prior to start up on September 21, 2007 were the use of cash to construct the plant, fund pre-startup costs, service debt, and for general corporate purposes.

 

In the six months ended April 30, 2008, our principal source of liquidity consisted of cash flow from operations and proceeds from borrowings under our loan agreements with AgStar.  Secondarily, we received proceeds from our shared savings contract and related escrow agreement with Interstate Power and Light Company and loan proceeds from a secured promissory note from Federated Rural Electric Association.

 

The following table summarizes our sources and uses of cash and equivalents from our condensed consolidated statements of cash flows for the periods presented (in thousands):

 

 

 

Six Months Ended
April 30,

 

Year Ended
October 31

 

 

 

2008

 

2007

 

2006

 

Net cash provided by (used in) operating activities

 

$

9,601

 

$

(12,721

)

$

(1,956

)

Net cash used in investing activities

 

(644

)

(4,175

)

(36,316

)

Net cash provided by (used in) financing activities

 

(6,133

)

17,362

 

776

 

Net increase (decrease) in cash and equivalents

 

$

2,824

 

$

466

 

$

(37,496

)

 

Year Ended October 31, 2007 Compared to Year Ended October 31, 2006

 

Operating Activities – We used approximately $12.8 million in operating activities in fiscal 2007 compared to using approximately $2.0 million in fiscal 2006.  This increase of approximately $10.8 million was due to a number of factors.  Contributing to the increase were the following:

 

(1)                                   Our net loss for the year ended October 31, 2007 increased by $4.8 million compared to the year ended October 31, 2006.  The increase in net loss can be attributed to delays in start-up of the ethanol plant and hedging losses of approximately $2.6 million;

 

(2)                                   We used cash to increase our inventories in fiscal year 2007 by $14.8 million in expectation of starting the plant;

 

(3)                                   In addition, accounts receivable and derivative instruments decreased by approximately $1.6 million and approximately $0.9 million, respectively; and

 

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(4)                                   Increases in accounts payable, as well as depreciation and accrued expenses, offset a portion of the increases in current assets.

 

Investing Activities – We used approximately $4.2 million in investing activities in fiscal 2007 compared to $36.3 million in fiscal 2006.  The net decrease of $32.1 million was due to property and equipment purchases being financed in 2006 equity proceeds, whereas the property and equipment purchases were primarily financed with debt in fiscal 2007.

 

Financing Activities – Cash provided by financing activities increased by $16.6 million in fiscal 2007 compared to fiscal 2006.  Contributing to the increase were the following:

 

(1)                                   We received proceeds of approximately $10.3 million of term debt in fiscal 2007 compared to approximately $0.8 million in fiscal 2006.  Of this activity, $4.2 million was borrowed from a major investor to assist in the carrying of corn inventory until our plant was operating.

 

(2)                                   We received proceeds from the issuance of equity of approximately $7.7 million in fiscal 2007, of which $7.5 million of funds received were from a major existing investor and $180,000 were proceeds from the exercise of warrants issued to our governors.  We received no proceeds from the sale of equity in fiscal 2006.

 

In addition to the cash activity described above, we had significant non-cash increases in property and equipment that were financed with construction payables of approximately $4.2 million and long-term debt of approximately $55.1 million.

 

At October 31, 2007, we had a $5.3 million dollar deficiency in working capital.  Of this deficiency, $4.1 million was due to construction retainage and payables, which we anticipate satisfying primarily from resources available from our long-term borrowing capacity when certain warranties are met.  We had an additional $2.7 million in current maturities of long-term debt at October 31, 2007, which we anticipate satisfying from operations in fiscal 2008.

 

At October 31, 2007, we had cash balances of approximately $3.1 million.  In addition, we had approximately $3.9 million of long-term borrowing capacity and $126,000 of short term borrowing capacity, net of outstanding letters of credit.

 

Six Months Ended April 30, 2008

 

Our cash increased from $3.1 million at October 31, 2007 to $5.9 million at April 30, 2008.  In addition, our working capital increased from a $5.3 million deficit at October 31, 2007 to a positive $5.7 million at April 30, 2008.  This increase in both cash and working capital was due primarily due to earnings from operations for the six months ending April 30, 2008.

 

Operating Activities – Operating activities provided cash flow of approximately $9.6 million for the six months ended April 30, 2008.  Cash from operations was approximately $13.6 million, including $2.8 million of depreciation and amortization.  The increase was offset by a $4.1 million use of cash for changes in assets and liabilities related to working capital.

 

Investing Activities - We used a net $0.6 million in the six months ended April 30, 2008 for investing activities, primarily for property and equipment additions.

 

Financing Activities – We used cash for financing activities of $6.1 million in the six months ended April 30, 2008.  Of the cash used in financing activities, we obtained $2.5 million from a draw from our revolving term note with AgStar and used these amounts for working capital purposes.  In the six months ended April 30, 2008, we used cash to pay down debt of $2.1 million on our line of credit, $4.2 million to pay off a related party note, and $2.6 million to reduce our long-term debt to AgStar.  The $2.6 million included the repayment of $2.5 million we drew on our revolving term note.

 

Working Capital – We had $5.8 million of working capital at April 30, 2008.  Our construction payable included a $3.8 million construction retainage, which we anticipate satisfying primarily from resources available from our long-term borrowing capacity when certain warranties are met.  Taking into consideration this long-term borrowing capacity item, we would have had $9.5 million of working capital.

 

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Capital Resources – Our cash and available debt resources at April 30, 2008 consisted of cash balances of $5.9 million, $3.9 million of long-term borrowing capacity, and $2.2 million of short-term borrowing capacity with our primary lender, net of outstanding letters of credit.

 

Our financial position and liquidity are, and will be, influenced by a variety of factors, including:

 

·                   our ability to generate cash flows from operations;

 

·                   the level of our outstanding indebtedness and the interest we are obligated to pay on this indebtedness; and

 

·                   our capital expenditure requirements, which consist primarily of completing construction of our ethanol plant and the purchase of equipment.

 

In the remainder of 2008, we expect to spend between $700,000 and $1.0 million for the completion of all remaining punchlist items for substantial and final completion of our ethanol plant, facility maintenance, and operational improvements.

 

We intend to fund our principal liquidity requirements through cash provided by operations and, if necessary, borrowings under our master loan agreement with AgStar Financial Services, PCA. We believe our sources of liquidity will be sufficient to meet the cash requirements of our operations for at least the next twelve months.

 

Off Balance-Sheet Arrangements

 

We have no off balance-sheet arrangements.

 

Credit Arrangements

 

Credit Arrangements with AgStar

 

Our primary credit arrangement is with AgStar Financial Services, PCA (“AgStar”).  The following table summarizes the history of our agreements with AgStar from September 29, 2005, when we first entered into the master loan agreement with AgStar, through November 19, 2007, the date of the last supplement.

 

 

 

 

 

Maximum Borrowing Capacity
Following Agreement or
Supplement/Amendment

 

Date

 

Basic Terms of Agreement or
Effect of Supplement/Amendment

 

Construction/
Term Note

 

Revolving
Term Note

 

Revolving
Line of Credit

 

September 29, 2005

 

·   We received construction loan of $59,883,000 for the purpose of acquiring, constructing, equipping and furnishing our ethanol plant.

·   We received a revolving line of credit of up to $2.0 million for general corporate and operating purposes.

·   Ron Fagen and Fagen, Inc. each executed a limited guaranty relating to our indebtedness to AgStar.

·   Supplements to the master loan agreement set out certain other terms and conditions, including interest.

·   Interest rate equal to LIBOR plus 3.25%. ·   Accrued interest on the revolving loan was payable monthly through the maturity date of that loan.

 

$

59,883,000

 

 

$

2,000,000

 

 

 

 

 

 

 

 

 

 

 

 

 

May 12, 2006

 

·   Amended and restated certain terms of the credit facilities.

 

$

59,883,000

 

 

$

2,000,000

 

 

 

 

 

 

 

 

 

 

 

 

 

November 20, 2006

 

·   Increased the line of credit by $3.7 million to provide funding for increased costs associated with the construction of our ethanol plant.

 

$

59,883,000

 

 

$

5,700,000

 

 

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Maximum Borrowing Capacity
Following Agreement or
Supplement/Amendment

 

Date

 

Basic Terms of Agreement or
Effect of Supplement/Amendment

 

Construction/
Term Note

 

Revolving
Term Note

 

Revolving
Line of Credit

 

December 27, 2006

 

·   Increased the construction loan by $4.7 million to pay for increased costs associated with the construction of our ethanol plant.

 

$

64,583,000

 

 

$

5,700,000

 

 

 

 

 

 

 

 

 

 

 

 

 

May 18, 2007

 

·   Increased the line of credit by $1.8 million to provide us with additional working capital for the operation of our business.

 

$

64,583,000

 

 

$

7,500,000

 

 

 

 

 

 

 

 

 

 

 

 

 

October 1, 2007

 

·   Converted the construction loan into a term loan of $59,583,000 and a revolving term loan of initially $5.0 million.
·   The revolving term loan commitment amount decreases from $5.0 million to $3.0 million by a decrease of $500,000 each October 1 from 2008 to 2011.
·   Both the term loan and the revolving term loan are payable in full on October 1, 2012.
·   Ron Fagen executed a personal guaranty by which he agreed to personally guarantee our obligations under the credit agreement with AgStar, up to a maximum of $3,740,000, on a basis similar to the original September 29, 2005 guarantee.

 

$

59,583,000

 

$

5,000,000

 

$

7,500,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

November 19, 2007

 

·   Renewed the revolving line of credit.
·   Our requests for revolving advances under the revolving line of credit loan also may be satisfied, in the sole discretion of AgStar, by issuance of letters of credit not exceeding $500,000.

 

$

59,583,000

 

$

5,000,000

 

$

7,500,000

 

 

Our indebtedness to AgStar as of April 30, 2008 consisted of:  (a) a revolving term loan in an amount not to exceed $5.0 million, with AgStar’s commitment on this term revolving loan decreasing over time to $3.0 million; (b) a term loan of $59,583,000, with a ten year amortization, of which $45.0 million carried a fixed interest rate and of which $14,583,000 carried a variable interest rate; and (c) a $7.5 million revolving line of credit, of which $4.9 million was outstanding.

 

The following is a description of the master loan agreement, as amended and restated, along with the supplements or amendments currently in effect, which we refer to as the “MLA”.  This description is a summary only and does not purport to be a complete description of every term and condition of the MLA.

 

Maturity, Interest Payment and Rates

 

All unpaid principal and all accrued interest on the term loan and the term revolving loan are due and payable on October 1, 2012.  Amounts under the revolving line of credit loan are due and payable on November 16, 2008.

 

On the term loan, we were required to make payments of accrued interest only monthly from November 1, 2007 to May 1, 2008.  Beginning on May 1, 2008 and on the first of each month thereafter, we are required to make equal monthly payments of principal and accrued interest in such amounts as will be required to fully amortize the entire outstanding principal of the term loan, together with accrued interest, over a ten year period.  The amount of our monthly payments will be recalculated and, if necessary, adjusted to account for changes in the effective rate of interest under the term loan and to maintain a ten year amortization schedule.  On the term revolving loan, we pay

 

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interest monthly on the amount outstanding and must prepay the term revolving loan on each October 1 by the amount the aggregate outstanding advances exceed the term revolving loan commitment then in effect, together with accrued interest.  On the revolving line of credit, we pay interest monthly on the amounts then outstanding and all amounts outstanding on the revolving line of credit loan are due upon maturity.  We must repay the revolving line of credit loan to the extent advances exceed AgStar’s maximum commitment for the revolving line of credit loan. We may borrow, repay and reborrow amounts under the term revolving loan and revolving line of credit loan up to the respective maximum commitment amounts.

 

Additionally, we had the right to convert all or any part of the term loan into a fixed rate loan, bearing interest at a rate listed for particular issues plus 3.00%.  We exercised this right effective May 1, 2008.  Therefore, beginning May 1, 2008 and ending April 30, 2011, the interest rate on $45.0 million of our construction loan was set at 6.58% per annum.

 

If the rate of interest under any loan with AgStar is variable, then the variable rate of interest will be calculated and adjusted based on the level of our “owner’s equity.”  Under this provision of the MLA and based on our owner’s equity, the term revolving loan and revolving line of credit loan have interest rates equal to LIBOR in effect from time-to-time plus between 2.75% and 3.25%.  Beginning May 1, 2008, the portion of the term loan that carries a variable rate also has a rate equal to LIBOR in effect from time to time plus 3.25%.

 

During the continuance of a default in payment, such overdue payment shall bear interest at an additional 2.00% per annum and during the continuance of any event of default, loans may bear interest at the option of AgStar at an additional 2.00% per annum. An additional late charge of 5.00% will be charged on any payment of principal or interest not paid within 10 days of the applicable due date.

 

Mandatory and Voluntary Prepayments

 

Under the MLA, we may prepay any of the loans in whole or in part upon notice to AgStar.  On the portion of the loan that is at a fixed interest rate, we must pay a prepayment fee; on the other amounts, there is no penalty for prepayment.  In addition, we are required to make quarterly mandatory prepayments on the outstanding term loan, commencing with the first calendar quarter following the construction loan maturity date, using 25% of “excess cash flow” from the previous fiscal quarter, provided however, that the total “excess cash flow” payments are not to exceed $2.0 million in any calendar year.  However, no “excess cash flow” payments will be required during any fiscal year if our “tangible owner’s equity” is greater than 50% at the end of the immediately preceding fiscal year.

 

Under the revolving loan, we are required to make mandatory prepayments based on the amount by which the outstanding credit exceeds the defined borrowing base, or alternatively, pledge and assign additional collateral. Amounts borrowed under the revolving loan may be repaid and reborrowed at any time until the revolving loan is terminated.

 

Covenants

 

The MLA contains customary affirmative and negative covenants and requirements affecting us and our operations. The affirmative covenants provide for, among other requirements, visitation and examination rights in favor of AgStar and periodic delivery to AgStar of financial statements and other information, including notices of certain events and conditions. There are also affirmative covenants relating to the officers and governors managing our business, safekeeping of collateral, perfection of security interests, and construction of our ethanol plant.  In addition, the affirmative covenants include standard covenants relating to the operation of our business, including covenants requiring it to, among other things, maintain insurance and comply with applicable laws and material contracts.

 

Moreover, the MLA contains negative covenants which, among other things, limit our ability to:

 

·         incur additional indebtedness and grant liens or encumbrances;

 

·         provide guarantees;

 

·         declare or pay dividends or distributions, or purchase or acquire any membership interests, except for distributions to our members for tax purposes (provided that appropriate supporting documentation is furnished to AgStar) and redemptions or distributions in an amount that does not exceed in the aggregate 65% of our net income in the immediately preceding fiscal year, subject to certain exceptions;

 

·         make certain investments or capital expenditures;

 

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·         conduct asset sales or other asset dispositions, merge or consolidate;

 

·         change our line of business;

 

·         change our state of organization, name or location of our executive office;

 

·         pay management, consulting or similar fees to any person unless not affiliated with us for services actually rendered;

 

·         change the ownership or management such that there is a failure of one or more of our members as of the closing date to hold 100% of our voting membership interests; change in our Chief Executive Officer or change in our equity ownership of our subsidiary; and

 

·         conduct transactions with affiliates.

 

The MLA also requires us to meet certain financial covenants, including covenants requiring us to maintain:

 

·         minimum working capital of at least $3.0 million at the end of the 12th month and $5.0 million at the end of the 24 th month following the closing date of October 1, 2007 and at least $5.0 million continually thereafter;

 

·         tangible net worth of not less than $39.0 million on the closing date of October 1, 2007, and after the closing date, a tangible net worth, measured at the end of each fiscal year, in an amount equal to the lesser of (a) our tangible net worth at the end of the immediately preceding fiscal year plus $500,000 or (b) our $39.0 million plus our retained earnings at the end of the current fiscal year;

 

·         tangible net worth divided by total assets of at least 50% beginning at the end of the 48 th  month following the completion date and maintained and measured annually thereafter; and

 

·         a fixed charge coverage ratio of not less than 1.20 to 1.00 beginning at the end of the 12 th month following the completion date and maintained and measured annually thereafter.

 

Events of Default

 

The MLA contains customary events of default, including:

 

·         failure to pay any principal, interest, fees or other amounts on the loans when due;

 

·         material breaches of representations and warranties;

 

·         failure to observe financial and negative covenants;

 

·         failure to provide financial statements and certain other financial information within five days of the due date;

 

·         failure to perform or observe any other term, covenant or agreement in the master loan agreement or in any related loan documents that is not cured within a specified grace period;

 

·         failure to pay certain indebtedness in excess of $50,000 or any other default under agreements governing such indebtedness;

 

·         events of bankruptcy and insolvency;

 

·         commencement of enforcement proceedings with respect to an order or judgment in excess of $50,000;

 

·         any provision of the master loan agreement, any security document or any other loan document ceases to be valid and binding on us;

 

·         security documents cease to create a valid lien;

 

·         the termination of any marketing agreement with a duration of more than one year;

 

·         the discontinuation of the business;

 

·         construction of our ethanol plant is halted or abandoned for a period of 30 consecutive days;

 

·         construction of our ethanol plant is not completed by the specified completion date;

 

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·         any event resulting in a material adverse effect on us, any subsidiary or any guarantor;

 

·         any guarantee or subordination agreement ceases to be in full force and effect;

 

·         breach by our subsidiary of its obligations under any guarantee or any other agreement it may have with AgStar;

 

·         a material breach or termination of a material contract or amendment of a material contract that would be materially adverse to AgStar; or

 

·         the loss, suspension or revocation by any governmental authority of the air quality emissions permit for our ethanol plant.

 

If any event of default is triggered, AgStar may terminate its obligations under the credit facility, accelerate the due date of the unpaid principal balance of all outstanding loans, appoint a receiver to take possession of all underlying collateral, enter the property to take actions to complete construction of our ethanol plant, require us to cash collateralize outstanding letters of credit and exercise all of its other rights and remedies.

 

Security and Guarantees

 

AgStar has been granted a security interest in substantially all of our assets. We also assigned our interest in our agreements for the sale of ethanol and distillers grains, and for the purchases of coal, corn and electricity, as well as our design-build agreement with Fagen, Inc.  AgStar also received a mortgage relating to our real property.  Roland J. (Ron) Fagen also personally guarantees our obligations under the credit agreements with AgStar, up to a maximum of $3,740,000, through a personal guaranty.  Mr. Fagen did not, and has not, received any consideration from us for acting as guarantor.  Fagen, Inc. also guaranteed a portion of our indebtedness to AgStar, but this guarantee was eliminated effective October 1, 2007.

 

The guaranty agreements also specify certain events of default, including: material breaches of representations and warranties; failure to perform or comply with any covenant or agreement in the guaranty agreement; or the occurrence of an event of default under the master loan agreement or other loan documents.

 

Fees and Expenses

 

We were required to pay an underwriting fee and participation fee in connection with the MLA of an aggregate of approximately $445,000.  We are also required to pay certain on-going fees in connection with the MLA, including annual facility fees of $20,000 paid on each October 1, 2007 anniversary of the closing date and letter of credit fees equal to 2.50% on an annualized basis of the maximum amount available to be drawn.

 

We must also pay a non-refundable, unused commitment fee equal to 0.25% per annum on the average daily unused portion of the revolving loan.

 

Other Credit Arrangements

 

In addition to our primary credit arrangement with AgStar, we have other material credit arrangements and debt obligations.

 

In October 2003, we entered into an industrial water supply development and distribution agreement with the City of Heron Lake, Jackson County, and Minnesota Soybean Processors.  In consideration of this agreement, we and Minnesota Soybean Processors are allocated equally the debt service on $735,000 in water revenue bonds that were issued by the City to support this project that mature in February 2019.  The parties have agreed that prior to the scheduled expiration of the agreement, they will negotiate in good faith to replace the agreement with a further agreement regarding the wells and related facilities.  In May 2006, we entered into an industrial water supply treatment agreement with the City of Heron Lake and Jackson County.  Under this agreement, we pay monthly installments over 24 months starting January 1, 2007 equal to one years’ debt service on approximately $3.6 million in water revenue bonds, which will be returned to us if any funds remain after final payment in full on the bonds and assuming we comply with all payment obligations under the agreement.  As of April 30, 2008, there was a total of $4.1 million in outstanding water revenue bonds and we classify our obligations under these bonds as assessments payable.  The interest rates on the bonds range from 0.50% to 8.73%.

 

In November 2007, we entered into a shared savings contract with Interstate Power and Light Company (“IPL”), our electrical service provider.  Under the agreement, IPL is required to pay $1,850,000 to fund project costs for the purchase and installation of electrical equipment.  In exchange, we are required to share a portion of the

 

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energy savings with IPL that may be derived from the decreased energy consumption from the new equipment.  We are required to pay IPL approximately $30,000 for the first thirteen billing cycles, $140,000 at the end of the thirteenth billing cycle, and thereafter, approximately $30,000 for the remainder of the billing cycles.  These amounts represent IPL’s portion of the shared savings.  We also granted IPL a security interest in the electrical equipment to be installed on our site.  The shared savings contract expires December 31, 2012.

 

In connection with the shared savings contract, IPL deposited $1,710,000 of the $1,850,000 in an escrow account on our behalf and we received the remaining $140,000 as cash proceeds. The escrow account expires at the same time as the shared savings contract or a termination by IPL of the escrow arrangement, at which time any remaining funds will be distributed to IPL.  We earn interest at a rate of 4.2% on the funds escrowed and we pay a rate of interest of 1.5% on the funds deposited into escrow.  Each month, a distribution from the escrow account is made to IPL to pay its portion of the shared savings under the shared savings contract.

 

To fund the purchase of the distribution system and substation for the plant, we entered into a loan agreement with Federated Rural Electric Association pursuant to which we borrowed $600,000 by a secured promissory note.  Under the note we are required to make monthly payments to Federated Rural Electric Association of $6,250 consisting of principal and an annual fee of 1% beginning on October 10, 2009.  In exchange for this loan, Federated Rural Electric Association was granted a security interest in the distribution system and substation for the plant.

 

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Item 3.  Properties

 

We own approximately 216 acres of land located near Heron Lake, Minnesota on which we have constructed our ethanol plant, which also includes corn, coal, ethanol, and distillers grains storage and handling facilities.  Located on these 216 acres is an approximately 7,320 square foot building that serves as our headquarters.  Our address is 91246 390 th Avenue, Heron Lake, Minnesota 56137-3175.

 

We also own elevator and grain storage facilities in Lakefield, Minnesota and Wilder, Minnesota.  The elevator and grain storage facilities at each location have grain handling equipment and both upright and flat storage capacity.  The storage capacity of the Lakefield, Minnesota facility is approximately 1.9 million bushels and the storage capacity of the Wilder, Minnesota facility is approximately 900,000 bushels.

 

All of our real property is subject to mortgages in favor of AgStar Financial Services, PCA as security for loan obligations.

 

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Item 4.  Security Ownership of Certain Beneficial Owners and Management

 

The following table sets forth certain information as of July 31, 2008 with respect to our units beneficially owned by (i) each governor, (ii) each person known to us to beneficially own more than 5% percent of our units, (iii) each executive officer named in the Summary Compensation Table (the “Named Executive Officers”), and (iv) all current executive officers and governors as a group. The beneficial ownership percentages are based on 27,104,625 units issued and outstanding as of July 31, 2008.

 

Under our Member Control Agreement, any member who, together with such member’s affiliates, holds 9% or more of the units outstanding is entitled to appoint one governor to the board for every 9% of units held. Project Viking, LLC has appointed two governors under this provision: Brian D. Thome and David M. Reinhart. An appointed governor serves indefinitely at the pleasure of the member appointing him or her (so long as such member and its affiliates continue to hold a sufficient number of units to maintain the applicable appointment right) until a successor is appointed, or until the earlier death, resignation or removal of the appointed governor.

 

In determining the voting power present for the purpose of the election of governors, units held by members who are entitled to appoint one or more governors under the Member Control Agreement and such members’ affiliates will not be considered, and members who are entitled to appoint one or more governors under the Member Control Agreement and such member’s affiliates are not entitled to vote for the election of governors. Therefore, Project Viking, LLC and its affiliates are not entitled to vote for the election of governors.

 

Unless otherwise indicated and subject to community property laws where applicable, each unit holder named in the table below has sole voting and investment power with respect to the units shown opposite such unit holder’s name. Each holder may be reached at our offices in Heron Lake, Minnesota.

 

 

 

Units Beneficially Owned

 

Name

 

Number

 

Percent

 

 

 

 

 

 

 

Holders of More Than 5% of  Units

 

 

 

 

 

Project Viking, LLC (1)

 

5,902,500

 

21.8

%

 

 

 

 

 

 

Governors and Officers

 

 

 

 

 

 

 

 

 

 

 

Robert J. Ferguson (2)(3)(4)

 

147,250

 

*

 

Doug Schmitz (2)(5)

 

208,000

 

*

 

Michael S. Kunerth (2)(6)

 

126,000

 

*

 

David J. Woestehoff (2)(7)

 

320,625

 

1.2

%

David J. Bach (2)(8)

 

101,750

 

*

 

Timothy O. Helgemoe (2)(9)

 

61,500

 

*

 

Milton J. McKeown (2)(10)

 

87,000

 

*

 

Robert J. Wolf (2)(11)

 

66,000

 

*

 

David M. Reinhart (2)(12)

 

 

*

 

Brian D. Thome (2)(12)

 

 

*

 

James A. Gerber (3)

 

 

*

 

All executive officers and governors as a group (11 persons)

 

1,097,125

 

4.0

 

 


* Indicates ownership of less than 1%.

 

(1)                                   Project Viking, LLC is owned by Roland J. (Ron) Fagen and Diane Fagen, the principal shareholders of Fagen, Inc. Our ethanol plant was design-built by Fagen, Inc.

 

(2)                                   Serves as a governor.

 

(3)                                   Named Executive Officer.

 

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(4)                                   Includes 126,250 units owned jointly by Mr. Ferguson and his spouse and 21,000 owned by son who resides with Mr. Ferguson.

 

(5)                                   Includes 25,000 units owned by Doug Schmitz, 10,500 units owned by Doug and Karen Schmitz, 25,000 units owned by Karen Schmitz, and 147,500 units owned by Schmitz Grain Inc., which is controlled by Doug Schmitz.

 

(6)                                   Includes 63,000 units owned by Michael Kunerth and Dawn Kunerth as trustees of the Michael Kunerth Trust under agreement dated July 18, 2006, and 63,000 units owned by Dawn Kunerth and Michael Kunerth as trustees of the Dawn Kunerth Trust under agreement dated July 18, 2006.

 

(7)                                   All units are owned jointly by Mr. Woestehoff and his spouse.

 

(8)                                   All units are owned jointly by Mr. Bach and his spouse.

 

(9)                                   Includes 15,000 units owned by Mr. Helgemoe’s spouse, 25,000 units owned jointly by Mr. Helgemoe and his spouse, and 21,500 units owned jointly by Mr. Helgemoe’s spouse and Mr. Helgemoe’s brother.

 

(10)                             All units are owned jointly by Mr. McKeown and his spouse.

 

(11)                             All units are owned jointly by Mr. Wolf and his spouse.

 

(12)                             Appointed as a governor by Project Viking, LLC.

 

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Item 5.  Directors and Executive Officers.

 

Our board of governors manages our business and affairs. Under our Member Control Agreement, the board of governors will consist of not less that seven nor more than eleven governors. Currently, our board of governors consists of ten governors.

 

Under our Member Control Agreement, a member and its affiliates holding nine percent or more of the units outstanding are entitled to appoint one governor to the board for every 9% of our units held. Project Viking, LLC, which holds 21.8% of our outstanding units as of July 31, 2008, has appointed two governors under this provision: Brian D. Thome and David M. Reinhart. An appointed governor serves indefinitely at the pleasure of the member appointing him or her (so long as such member and its affiliates continue to hold a sufficient number of units to maintain the applicable appointment right) until a successor is appointed, or until the earlier death, resignation or removal of the appointed governor. A member that is entitled to appoint one or more governors under the appointment right provided in the Member Control Agreement and such member’s affiliates are not entitled to vote for the election of governors by the members.  Currently, Project Viking, LLC and its affiliates are not entitled to vote in the election of governors.

 

All governors named below were appointed as initial board members at the time of our formation in April 2001.  In order to preserve continuity of governance and harmonious transition from the initial board, the initial board designated from among themselves three classes of governors to serve staggered terms so that members will elect one-third (or as nearly as possible) of the non-appointed members of the board of governors annually.  At the Annual Meeting of Members held on March 29, 2008 members first elected governors and Robert J. Ferguson, David J. Woestehoff and Timothy O. Helgemoe were elected to serve a three year term expiring at the Annual Meeting of Members in 2011.

 

The names, ages, addresses, terms, expiration dates and certain biographical information regarding our current governors and executive officers are set forth below.

 

Name

 

Age

 

Position

 

Term Expires/Appointed

 

 

 

 

 

 

 

Doug Schmitz

 

45

 

Governor, Vice Chairman of the Board

 

Term expires 2009

 

 

 

 

 

 

 

Robert J. Wolf

 

55

 

Governor

 

Term expires 2009

 

 

 

 

 

 

 

David J. Bach

 

47

 

Governor

 

Term expires 2009

 

 

 

 

 

 

 

Michael S. Kunerth

 

40

 

Governor, Board Treasurer

 

Term expires 2010

 

 

 

 

 

 

 

Milton J. McKeown

 

62

 

Governor

 

Term expires 2010

 

 

 

 

 

 

 

Robert J. Ferguson

 

59

 

Governor, Chairman of the Board, President and Chief Executive Officer

 

Term expires 2011

 

 

 

 

 

 

 

David J. Woestehoff

 

38

 

Governor, Board Secretary

 

Term expires 2011

 

 

 

 

 

 

 

Timothy O. Helgemoe

 

42

 

Governor

 

Term expires 2011

 

 

 

 

 

 

 

David M. Reinhart

 

59

 

Governor

 

Appointed

 

 

 

 

 

 

 

Brian D. Thome

 

35

 

Governor

 

Appointed

 

 

 

 

 

 

 

James A. Gerber

 

57

 

Interim Chief Financial Officer

 

 

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Doug Schmitz .  Mr. Schmitz attended Willmar Community College in Willmar, Minnesota, and majored in Ag Business. Doug is a third generation farmer who has been farming with his brother since 1988. In addition to agriculture, Mr. Schmitz owns and operates Schmitz Grain, Inc., which was purchased from his father in 1991.  Schmitz Grain has three locations in southwestern Minnesota and provides services to area farmers in grain merchandising, custom drying, feed sales, seed sales and fertilizer and chemical application. He also currently serves on the board of two privately-held companies: Agri-Tech Systems, Inc. located in Las Vegas, Nevada, and United Ag Resources of Slayton, Minnesota.

 

Robert J. Wolf .  Since 1994, Mr. Wolf has owned and operated County Seed Inc. He is currently a director of the Nobles County Corn & Soybean Association, and is a member of Minnesota Corn Growers Association and Minnesota Soybean Association. He is a Certified Crop Advisor and is a member of Knights of Columbus.  Mr. Wolf received an Associate of Arts Degree in Ag Business from Worthington Community College in Worthington, Minnesota.

 

David J. Bach .  Mr. Bach was raised on a family farm and has been farming full-time since 2001. From 1987 to 2001, Mr. Bach was employed at Pillsbury/Green Giant in Le Sueur, Minnesota.  During his time at Pillsbury/Green Giant, Mr. Bach held primarily supervisory positions and was most recently the Ag Research Station Coordinator. He graduated from the University of Minnesota in St. Paul with a B.S. degree in Agronomy.

 

Michael S. Kunerth .   Mr. Kunerth has operated a corn and soybean farm in Brewster, Minnesota since 1990. Since 1992, Mr. Kunerth has also operated a retail seed service business.  Since 1994, Mr. Kunerth has also served as the Clerk of Graham Lakes Township.  He holds a B.S. Degree in Business Management from St. John’s University, Collegeville, Minnesota.

 

Milton J. McKeown .  From 1991 to his retirement in October 2006, Mr. McKeown managed the Heron Lake Insurance Agency.  While he is currently retired, Mr. McKeown is active in community affairs.  In addition to serving on our board of governors, Mr. McKeown is currently a board member of the Southwest Minnesota Workforce Council. Mr. McKeown graduated from Dakota State University with a B.S. degree in Industrial Arts.

 

Robert J. Ferguson .  Since 1972, Mr. Ferguson has farmed near Heron Lake, Minnesota. Mr. Ferguson is a Jackson County Commissioner and serves on the Jackson County Planning and Zoning board and the Prairieland Economic Development board.  In addition, Mr. Ferguson is a member of the Chief Elected Officials board for the Private Industry Council and President of Heron Lake Development Corporation. He is a member of the Jackson County Corn and Soybean Associations, and the Heron Lake /Okabena Community Club.  Mr. Ferguson attended Worthington Community College to pursue his associate of arts degree in business administration but just before graduation was drafted by the U.S. Army to serve in the Vietnam War.

 

David J. Woestehoff .  Mr. Woestehoff operates grain farming operations in Belle Plaine, Minnesota and Arlington, South Dakota. Mr. Woestehoff also serves on various committees at First Lutheran Church in Le Sueur, Minnesota. Mr. Woestehoff graduated from the University of Wisconsin in 1990 with a B.S. degree in Agricultural Business and minors in Economics and Animal Science.

 

Timothy O. Helgemoe .  Mr. Helgemoe is a fifth generation farmer who has been farming with his brother since 1993. In addition to raising corn, soybeans, and custom farming, Mr. Helgemoe has owned and operated Helgemoe Bros, Inc., a local trucking business, since October 1999.  Mr. Helgemoe received his B.S. degree with an emphasis in dairy from the University of Minnesota.

 

David M. Reinhart .  Since 1975, Mr. Reinhart has operated family-owned supermarkets in Guthrie Center, Panora, and Stuart, Iowa. Mr. Reinhart serves as a board member of four privately-held ethanol production companies:  CORN, LP in Goldfield, Iowa; Big River Resources, LLC in West Burlington, Iowa; and Amaizing Energy in Dennison, Iowa. Mr. Reinhart graduated from Iowa Central Community College with an Associate’s Degree in Business and from the University of South Dakota with a Bachelor of Science degree in Education.

 

Brian D. Thome .  Since March 2007, Mr. Thome has owned his own business consulting firm.  After serving on its board of directors from inception, Mr. Thome served as President of US BioEnergy Corporation from March 2006 to March 2007.  From December 2004 to March 2006, he served as the Director of Financial Investments for Fagen, Inc.  From January 1999 to December 2004, he was employed with First National Bank of Omaha, serving as Second Vice President of Corporate Lending.  Mr. Thome graduated from the University of Nebraska with a B.S. in Business Administration, with majors in finance and marketing, and later completed his Executive MBA.

 

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James A. Gerber .  James A. Gerber has served as our Interim Chief Financial Officer since March 1, 2007 through our arrangement with Gerber & Haugen, PLLP, a public accounting firm. From November 1, 2006 to February 28, 2007, Mr. Gerber, through Gerber & Haugen, PLLP, provided accounting services to us.  Mr. Gerber has been a partner with Gerber & Haugen, PLLP since 1989 and with Grieme, Gerber & Associates from 1976 to 1988.  Mr. Gerber has also been an entrepreneur and had owned an aggregate business, a supper club and a Culligan dealership.  From 1979 to the present, Mr. Gerber has owned varying interests in Southwest Minnesota Concrete, Inc.  Currently, Mr. Gerber serves as Secretary of Southwest Minnesota Concrete, Inc.  Mr. Gerber holds a B.S. in Accounting from St. Cloud State College and is a certified public accountant.

 

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Item 6.  Executive Compensation.

 

Summary Compensation Table

 

The following table shows information concerning compensation earned for services in all capacities during fiscal year 2007 and 2006 for (i) Robert J. Ferguson, who acted as our Chief Executive Officer in fiscal year 2007; and (ii) James A. Gerber, who served as our Interim Chief Financial Officer in fiscal year 2007 (together referred to as our “Named Executive Officers”). There were no other executive officers of our company in fiscal years 2006 or 2007.

 

Name and Principal Position

 

Year

 

Salary ($)

 

All Other
Compensation
($)

 

Total ($)

 

Robert J. Ferguson (1)

 

2007

 

$

20,571

 

$

50,000

(2)

$

70,571

 

Chief Executive Officer

 

2006

 

 

$

50,000

(2)

 

 

 

 

 

 

 

 

 

 

 

 

James A. Gerber (3)

 

2007

 

 

$

58,144

 

$

58,144

 

Interim Chief Financial Officer

 

2006

 

 

$

9,047

 

 

 

 


(1)                                  Salary for Mr. Ferguson represents amounts other than meeting fees and additional fees for service as the board President paid to Mr. Ferguson in 2007. For an explanation of compensation paid to Mr. Ferguson in 2007 for his services as our governor and an officer of the board, please see the section of this Item 6 entitled “Governor Compensation.”

 

(2)                                  Represents compensation paid in August 2006 and January 2007 to Mr. Ferguson for oversight of the construction of our plant. See “Employment Arrangements with Named Executive Officers” for a description of this arrangement.

 

(3)                                  All other compensation for Mr. Gerber represents amounts we paid to Gerber & Haugen, PLLP, a public accounting firm of which Mr. Gerber is a partner.  For fiscal year 2006 and for the period from November 1, 2006 to February 28, 2007, amounts were for accounting services rendered by the firm to us.  For the period from March 1, 2007 to October 31, 2007, amounts were for the services of Mr. Gerber as our Interim Chief Financial Officer. See “Employment Arrangements with Named Executive Officers and Post-Employment Compensation” for a description of the arrangements with Gerber & Haugen, PLLP.

 

Employment Arrangements with Named Executive Officers and Post-Employment Compensation

 

In December 2007, our board of governors formed and adopted a written charter for the Compensation Committee, which has responsibility for compensation of our executive officers.  Because the Compensation Committee was only recently formed, the arrangements described below with the Named Executive Officers were not approved by the Compensation Committee, but instead were approved by the board of governors (excluding Mr. Ferguson in the case of his own compensation).  We expect that future compensation agreements and arrangements with our executive officers will be reviewed and approved by the Compensation Committee.

 

Robert J. Ferguson has served as the President of our board since our inception and, since September 1, 2007, has acted as our Chief Executive Officer through his position as board President. As an officer of the board, Mr. Ferguson received $27,000 in compensation in 2007 for that service in addition to the same per meeting fees paid to other governors. The amounts for meeting fees and additional fees for service as board President paid to Mr. Ferguson in 2007 are included in the table set forth in the section of Item 6 of this Registration Statement on Form 10 entitled “Governor Compensation.”

 

In addition to compensation for his services as our governor and an officer of the board, we also entered into an agreement with Mr. Ferguson under which we would pay Mr. Ferguson a total of $100,000 for his oversight of the construction of our plant. Under this agreement we paid Mr. Ferguson $50,000 in August 2006 and we paid $50,000 in January 2007. On September 1, 2007, we hired Mr. Ferguson an employee to serve as our Chief Executive Officer and entered into an employment agreement with him. The amounts paid to Mr. Ferguson in 2007 for construction oversight and for his service as our Chief Executive Officer are included in the Summary Compensation Table set forth in Item 6 of this Registration Statement on Form 10 entitled “Executive Compensation.”

 

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Under our employment agreement with Mr. Ferguson, he will serve as our Chief Executive Officer from September 1, 2007 to September 1, 2008. The employment agreement may be terminated earlier by either party upon 30 days’ written notice, except in the case of termination for unsatisfactory performance, for which notice is not required. Mr. Ferguson will be paid an annual base salary of $120,000 on a bi-weekly basis and is eligible to participate in any bonus to employees at the discretion of the board of governors. The employment agreement also contains confidentiality and non-compete provisions.

 

James A. Gerber has served as our Interim Chief Financial Officer since March 1, 2007 through a services agreement with Gerber & Haugen, PLLP, a public accounting firm.  Mr. Gerber has been a partner with Gerber & Haugen, PLLP since 1989.  In fiscal year 2006 and from November 1, 2006 to February 28, 2007, Gerber & Haugen, PLLP provided accounting services to us for which we paid $9,047 and $24,811, respectively.  Under the services agreement with Gerber & Haugen, PLLP, we will pay a minimum of $50,000 for the period from March 1, 2007 to March 1, 2008 for Mr. Gerber’s services as our Interim Chief Financial Officer. In addition, we will pay Gerber & Haugen, PLLP $50.00 per hour for each hour of Mr. Gerber’s service in excess of 1,000 hours in the period from March 2007 through February 2008.  However, the total compensation under our agreement with Gerber & Haugen, PLLP is capped at $85,000.  The services agreement was scheduled to terminated on March 1, 2008, but in February 2008, we extended the arrangement with Gerber & Haugen, PLLP for a minimum of 30 additional days.  The parties continue to operate under this services agreement on an on-going basis.   Because Mr. Gerber serves as our chief financial officer on an interim basis, we have begun a search for an executive officer to serve as our chief financial officer on a full time, permanent basis. Mr. Gerber has indicated that he is willing to continue his service to us as Interim Chief Financial Officer until a candidate is identified and hired.

 

Our agreements with Messrs. Ferguson and Gerber do not provide for severance or any other compensation following termination of the employment or services.

 

Governor Compensation

 

Members of our board of governors receive a per diem of $100 per half day and $200 per full day for attending meetings and carrying out duties on our behalf.  Members of our board of governors are also reimbursed for reasonable expenses included in carrying out their duties as governors, including mileage reimbursement for travel to meetings.

 

In addition to per meeting fees, officer of the board receive additional compensation for their board service. Doug Schmitz served as the Vice President of the board and received an additional $9,600 in 2007. Michael S. Kunerth served as the Treasurer of the board and received an additional $7,000 in 2007. David J. Woestehoff served as Secretary of the board and received an additional $2,400 in 2007. Robert J. Ferguson has served as the President of our board since our inception, and until September 1, 2007, acted as our Chief Executive Officer through his position as board President. As an officer of the board, Mr. Ferguson received an additional $27,000 in compensation in 2007 for that service. On September 1, 2007, we hired Mr. Ferguson an employee to serve as our Chief Executive Officer. In addition to compensation for his services as our governor and an officer of the board, we also paid Mr. Ferguson $50,000 on January 12, 2007 and $20,571 on November 20, 2007 in respect of his service as our Chief Executive Officer. The amounts other than meeting fees and additional fees for service as the board President paid to Mr. Ferguson in 2007 are included in the Summary Compensation Table set forth in Item 6 of this Registration Statement on Form 10 entitled “Executive Compensation.”

 

The following table shows for fiscal year 2007, the other compensation paid by us to each of our governors:

 

Name

 

Fees Earned or Paid in Cash ($) (1)

 

Robert J. Ferguson

 

$

29,550

 

Doug Schmitz

 

$

12,700

 

Michael S. Kunerth

 

$

10,200

 

David J. Woestehoff

 

$

8,550

 

David J. Bach

 

$

2,000

 

Timothy O. Helgemoe

 

$

2,750

 

Milton J. McKeown

 

$

3,600

 

Robert J. Wolf

 

$

2,900

 

David M. Reinhart (2)

 

$

600

 

Fagen, Inc. (3)

 

$

600

 

 


(1)           Represents cash retainer and meeting fees for fiscal year 2007 as described above and total compensation to each governor.

 

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(2)           Messrs. Reinhart and Thome were appointed by Project Viking, LLC as our governors in August 2007. Therefore, amounts represent a partial year of service.

 

(3)           Represents amounts paid to Fagen, Inc. in respect of the services of Brian D. Thome who is separately compensated by Fagen, Inc. for his service on our board.

 

In June 2004, we granted each of the nine then-serving members of our board of governors a warrant to purchase 25,000 units at an exercise price of $0.80 per unit, for a total of up to 225,000 units. The warrants vested September 29, 2005 upon closing on our primary project financing and were to remain exercisable for a period of five years thereafter. The warrants contained, as a condition to exercise, a requirement that the governor serve as a member of the board of governors up to closing on project financing. The warrants also contained customary anti-dilution adjustment provisions. The warrants were not transferable without our prior consent.  As of August 17, 2007, all of the warrants issued to the then-serving members of our board of governors were exercised.

 

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Item 7.  Certain Relationships And Related Transactions, and Director Independence.

 

Transactions Since Fiscal Year 2005

 

Since the beginning of fiscal year 2005, we have not entered into any transaction and there are no currently proposed transactions, in which we were or are to be a participant and the amount involved exceeds $120,000, and in which any related person had or will have a direct or indirect material interest, except as described in “Item 6. Executive Compensation” of this Form 10 or as described below.  Further, our promoters have not received any thing of value at any time during the past five fiscal years except as described below.

 

Corn Transactions . In the ordinary course of business, we regularly enter into transactions to buy grain.  From time to time, we may buy grain from related persons on the same basis as we buy grain from un-related parties. During fiscal years 2005 and 2006, no purchases from any related person exceeded $120,000.  During fiscal year 2007, we purchased approximately $511,000 in grain from Robert J. Ferguson and approximately $1.8 million in grain from Schmitz Grain, Inc.  Robert J. Ferguson is our governor and our Chief Executive Officer.  Schmitz Grain, Inc. is controlled by Doug Schmitz, our governor.

 

Fagen Participation in Equity and Debt Financing . On December 26, 2006, we issued 3,750,000 Class B units at a price of $2.00 per unit, or $7.5 million to Project Viking, LLC, a related party.  On April 11, 2007, the Class B units were exchanged for an equal number of Class A units pursuant to the provisions of our Articles of Organization and Member Control Agreement and with the approval of the board of governors.  Project Viking, LLC is owned by Roland J. (Ron) Fagen and Diane Fagen, the principal shareholders of Fagen, Inc., our design-build firm and a related party.  As of July 31, 2008, Project Viking holds 21.8% of our outstanding units.

 

Additionally, our primary credit arrangement is with AgStar Financial Services, PCA (“AgStar”).  On September 29, 2005 we entered into a Master Loan Agreement with AgStar a construction loan and a revolving loan.  This Master Loan Agreement, along with related agreements, has since been amended and restated, most recently as the Fourth Amended and Restated Master Loan Agreement dated October 1, 2007.  Ron Fagen is also a guarantor of our obligations under the credit agreements with AgStar, up to a maximum of $3,740,000.  The most recent personal guaranty executed by Ron Fagen was entered into on October 1, 2007 in connection with the Fourth Amended and Restated Master Loan Agreement.  Mr. Fagen did not received any consideration from us for acting as a guarantor.  Fagen, Inc. also guaranteed a portion of our indebtedness to AgStar, but this guarantee was eliminated effective October 1, 2007.

 

Design-Build Agreement & Environmental Agreements with Fagen . In September 2005, we signed a lump-sum design-build agreement with Fagen, Inc. relating to, among other things, the design and construction of our ethanol plant. In March 2007, we entered into a letter agreement with Fagen Engineering, LLC, an affiliate of Fagen, Inc., for the development of environmental compliance programs and related services.  Both Fagen, Inc. and Fagen Engineering, LLC are related parties.  Under these agreements with Fagen, Inc. and Fagen Engineering, LLC, we incurred an aggregate of approximately $45.2 million and approximately $36.0 million in fiscal years 2006 and 2007, respectively, as follows:

 

·       Fiscal Year 2006:  approximately $45.2 million under our design-build agreement with Fagen, Inc.; and

 

·       Fiscal Year 2007: approximately $36.0 million under our design-build agreement with Fagen, Inc. and $13,000 under our letter agreement with Fagen Engineering, LLC relating to environmental compliance support.

 

We paid no amounts in to Fagen, Inc. or its affiliates under these or similar agreements in fiscal year 2005, 2004 or 2003.  From the beginning of fiscal year 2008 to July 31, 2008, we have not entered into any agreements with Fagen, Inc. or its affiliates except for a March 2008 agreement with Fagen Engineering, LLC for environmental compliance training programs for $3,100.

 

Inventory Note from Ron Fagen . In July 2007, Ron Fagen lent us approximately $4.2 million for the purchase of corn inventory and the retention of previously purchased corn inventory.  Ron Fagen and his spouse, Diane Fagen, are the principal shareholders of Fagen, Inc., our design-build firm and a related party. Interest on the note evidencing the debt accrued at 8.75% and the note matured in December 2007. We repaid the note in November 2007.

 

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Issuances of Other Units and Warrants.   In the last five fiscal years, we have entered into transactions with our governors in which we sold governors the number of units set forth below and in exchange, we received the aggregate cash consideration set forth below.

 

Name

 

Units
Purchased
in March/
April 2004

 

Cash
Paid

 

Units
Purchased
in October
2004

 

Cash Paid

 

 

 

 

 

 

 

 

 

 

 

Robert J. Ferguson

 

50,000

 

$

50,000

 

19,250

 

$

35,000

 

Michael S. Kunerth

 

80,000

 

80,000

 

 

 

David J. Woestehoff

 

30,000

 

30,000

 

244,625

 

445,000

 

David J. Bach

 

20,000

 

20,000

 

35,750

 

65,000

 

Timothy O. Helgemoe

 

15,000

 

15,000

 

 

 

Milton J. McKeown

 

30,000

 

30,000

 

11,000

 

$

20,000

 

Doug Schmitz

 

25,000

 

25,000

 

 

 

Robert J. Wolf

 

20,000

 

20,000

 

 

 

 

Additionally, in June 2004, we issued to each of the above governors a warrant to purchase 25,000 units at an exercise price of $0.80 per unit in consideration of their services to us. The warrants vested September 29, 2005 upon closing on our primary project financing and were to remain exercisable for a period of five years thereafter.  In August 2007, all of these warrants were exercised and we issued 225,000 units to the governors.

 

Process for Review, Approval or Ratification of Transactions with Related Persons

 

The charter of our Audit Committee provides that the Audit Committee is responsible for reviewing and approving the terms and conditions of all transactions we enter into in which an officer, governor or any member holding greater than 5% or any affiliate of these persons has a direct or indirect material interest. Our Code of Business Conduct and Ethics, which is applicable to all of our employees and governors, also prohibits our employees, including our executive officers, and our governors from engaging in conflict of interest transactions. Requests for waivers by our executive officers and governors from the provisions of, or requests for consents by our executive officers and governors under, our Code of Business Conduct and Ethics must be made to the Audit Committee.

 

In addition, in December 2007, we adopted a formal related person transaction approval policy, which sets forth our policies and procedures for the review, approval or ratification of any transaction required to be reported in our filings with the Securities and Exchange Commission. Our policy applies to any financial transaction, arrangement or relationship or any series of similar transactions, arrangements or relationships in which our company is a participant and in which a related person has a direct or indirect interest. Through the policy, the Audit Committee has also identified and pre-approved certain transactions with related persons, including:

 

·         employment and compensation of our executive officers or governor compensation, if required to be reported in under the disclosure requirements of the Securities and Exchange Commission,

 

·         payment of ordinary expenses and business reimbursements;

 

·         transactions with related companies in which the dollar amount does not exceed $100,000 or 2% of the other company’s total revenues;

 

·         transactions with another company controlled by a related party or with a related party for the purchase by us of corn where (A) the amount of corn sold in the transaction does not exceed 200,000 bushels; (B) the contract for delivery of the corn specifies a delivery date of not more than sixty (60) days from the date of the contract; (C) the price per bushel is fixed at the time of the contract; and (D) the amount paid per bushel or other material terms of the transaction are based on consideration or criteria generally applicable to other sellers of corn of a like quality and quantity, given the conditions of the grain markets at the time of sale;

 

·         charitable contributions in which the dollar amount does not exceed $10,000 or 2% of the charitable organization’s receipts;

 

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·         payments made under our articles of organization, member control agreement, insurance policies or other agreements relating to indemnification;

 

·         transactions in which our members receive proportional benefits; and

 

·         transactions that involve competitive bids, banking transactions and transactions under which the terms are regulated by law or governmental authority.

 

The Audit Committee must approve any related person transaction subject to this policy before commencement of the related party transaction. If pre-approval is not feasible, the Audit Committee may ratify, amend or terminate the related person transaction. The Audit Committee will analyze the following factors, in addition to any other factors the Committee deems appropriate, in determining whether to approve a related party transaction:

 

·     whether the terms are fair to us;

 

·     whether the terms of the related party transaction are no less favorable than terms generally available to an unaffiliated third-party under the same or similar circumstances;

 

·     whether the related party transaction is material to us;

 

·     the role the related party has played in arranging the transaction;

 

·     the structure of the related party transaction;

 

·     the interests of all related parties in the transaction;

 

·     the extent of the related party’s interest in the transaction; and

 

·     whether the transaction would require a waiver of our Code of Business Conduct and Ethics.

 

The Audit Committee may, in its sole discretion, approve or deny any related person transaction. Approval of a related person transaction may be conditioned upon our company and the related person taking such precautionary actions as the Audit Committees deems appropriate.

 

Committees of the Board of Governors

 

Our board has established five separate standing committees: the Audit Committee, the Compensation Committee, the Nomination and Governance Committee, the Marketing and Risk Management Committee, and the Finance and Planning Committee. In December 2007, our board of governors adopted written charters for the Audit Committee, the Compensation Committee, and the

 

Nomination and Governance Committee. The composition and function of these committees are set forth below.

 

Compensation Committee . Currently, the Compensation Committee consists of three governors: Michael S. Kunerth (chair), Brian D. Thome, and David M. Reinhart. The Compensation Committee oversees our compensation and employee benefit plans and practices, including our executive compensation plans, governor compensation plans and incentive compensation and equity-based plans. The charter of the Compensation Committee requires that this committee consist of no fewer than two members. A majority of members of the Compensation Committee must satisfy the independence requirements of the Nasdaq Marketplace Rules, Section 16b-3 of the Exchange Act (if Section 16 is applicable to us), and Section 162(m) of the Internal Revenue Code of 1986. Each member of our Compensation Committee meets these requirements.

 

Nomination and Governance Committee .  Currently, the Nomination and Governance Committee consists of three governors:  Robert J. Wolf (chair), Milton J. McKeown and Doug Schmitz.  The Nomination and Governance Committee’s responsibilities include (1) identifying and recommending to the board individuals qualified to serve as governors and on committees of the board, (2) advising the governors with respect to the board’s composition, procedures and committees, (3) developing and recommending to the board a set of corporate governance principles and (4) overseeing the evaluation of the board and the board committees. The charter of the nomination and Governance Committee must consist of at least two members, a majority of whom must satisfy the independence requirements of the Nasdaq Marketplace Rules. The membership of our Nomination and Governance committee meets these requirements.

 

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Audit Committee . Currently, the Audit Committee consists of six governors: Michael S. Kunerth (chair), David M. Reinhart, Robert J. Wolf, David J. Bach, Milton J. McKeown, and Brian D. Thome. The Audit Committee assists the board in fulfilling its oversight responsibility for (I) the integrity of our financial statements and financial reporting process and our systems of internal accounting and financial controls, (2) the performance of our internal audit function, (3) the annual independent integrated audit of our consolidated financial statements and internal control over financial reporting and (4) our compliance with legal and regulatory requirements, including our disclosure controls and procedures. The duties and responsibilities of the Audit Committee include the engagement of our independent registered public accounting firm and the evaluation of our accounting firm’s qualifications, independence and performance. The charter of the Audit Committee requires that the Audit Committee be comprised of three members, a majority of whom must be “independent” under the Nasdaq Marketplace Rules. A majority of the members must also be non-executive governors, free from any relationship that would interfere with the exercise of independent judgment and “independent” as defined by the applicable rules and regulations of the Securities and Exchange Commission. Moreover, all members of the committee must have a basic understanding of finance and accounting and be able to read and understand fundamental financial statements, and at least one member of the committee must have accounting or related financial management expertise. The board of governors determined that each member of the Audit Committee meets the independence requirements of the charter. The board of governors also determined that the Audit Committee members meet the financial sophistication requirements of the charter.

 

Marketing and Risk Management Committee . Currently, the marketing and risk management committee consists of four governors: Doug Schmitz (chair), David J. Woestehoff, Timothy O. Helgemoe, and David M. Reinhart. The marketing and risk management committee assists the board and our management to, among other things, enhance our profitability and manage commodity price risk, by establishing appropriate policies and strategies for grain procurement, marketing of ethanol and distillers grains, and managing enterprise risk.

 

Finance and Planning Committee . Currently, the finance and planning committee consists of three governors: Michael S. Kunerth, David M. Reinhart and Brian D. Thome. The finance and planning committee assists the board and our management by (1) establishing effective financial management of our company and our subsidiaries, (2) establishing appropriate capital and operating budgets and financial forecasts and (3) evaluating matters relating to potential mergers, acquisitions or dispositions of assets.

 

Board Independence

 

The board of governors undertook a review of governor independence in March 2008 and again in August 2008 as to all ten governors then serving. As part of that process, the board reviewed all transactions and relationships between each governor (or any member of his immediate family) and Heron Lake BioEnergy, its executive officers and its auditors, and other matters bearing on the independence of governors. In particular, the board reviewed corn transactions by governors or their affiliates in relationship to the governor’s ability to exercise independent judgment, as well as the rights of Project Viking, LLC to appoint governors.

 

Although our units are not listed on any stock exchange, the board of governors is required to select and apply the independence standards of a stock exchange. For the purposes of determining the independence of our governors and committee members, the board of governors selected the Nasdaq Marketplace Rules. This is also the definition used for “independence” for the purposes of determining eligibility of governors to serve on committees.

 

As a result of its review, the board of governors affirmatively determined that Timothy O. Helgemoe, Robert J. Wolf, David J. Bach, Michael S. Kunerth, Milton J. McKeown, David M. Reinhart, and Brian D. Thome are independent according to the “independence” definition of the Nasdaq Marketplace Rules.  Robert J. Ferguson is not “independent” under the Nasdaq Marketplace Rules because he received compensation for his oversight of the construction of the plant in fiscal year 2007, was hired as our Chief Executive Officer in September 2007, and sold a significant amount of grain to us in our fiscal year 2007 and in the current fiscal year. Messrs. Woestehoff and Schmitz are also not independent because they each sold a significant amount of grain to us in our current fiscal year, individually or through their affiliated entities.  The charters of the Audit Committee, Compensation Committee, and Nomination and Governance Committee also established separate criteria for eligibility to serve as a member of those committees, which are discussed above.

 

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Item 8.  Legal Proceedings.

 

None.

 

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Item 9.  Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters.

 

Market Information

 

Although matching services may be available to help match buyers and seller of our units, there is no established public trading market for the units and we do not expect one to develop in the foreseeable future.  To maintain our partnership tax status, we do not intend to list the units on any stock exchange or over-the-counter securities market such as the OTC Bulletin board.

 

As of July 31, 2008, there are approximately 27,104,625 units outstanding, held of record by approximately 1,069 persons.  There are no outstanding options or warrants to purchase, or securities convertible into, our units.  No units are being publicly offered by us pursuant to this Registration Statement on Form 10.

 

As of July 31, 2008, all of our outstanding units are eligible for resale under Rule 144 of the Securities Act because all units have been held for at least one year, after applying the appropriate rules regarding tacking of holding periods as provided in Rule 144.  Affiliates must comply with the requirements of Rule 144, but non-affiliates need not comply with such requirements.  We have not agreed to register any of these units for resale under the Securities Act.

 

Distributions

 

We have never declared any distributions.  Our agreements with lenders currently materially limit our ability to make distributions to our members and these agreements are likely to limit materially the future payment of distributions.  For a further description of these restrictions, please see “Item 2. Financial Information – Management’s Discussion and Analysis of Financial Condition” and Note 7 of the notes to our audited consolidated financial statements.  In September 2007, we began operation of our ethanol plant and began generating revenue.  If our financial performance and loan covenants permit, we expect to make cash distributions at times and in amounts that will permit our members to make income tax payments.  If our financial performance and loan covenants further permit, we intend to make distributions in excess of those amounts.  Cash distributions are not assured, however, and we may never be in a position to make distributions.

 

Under Minnesota law, we cannot make a distribution to a member if, after the distribution, we would not be able to pay our debts as they become due or our liabilities, excluding liabilities to our members on account of their capital contributions, would exceed our assets.

 

Securities Authorized for Issuance under Equity Compensation Plans

 

There are no “compensation plans” (including individual compensation arrangements) under which any of our equity securities are authorized for issuance.

 

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Item 10.  Recent Sales of Unregistered Securities.

 

In the past three years, we have sold the following securities in transactions not registered under the Securities Act of 1933, as amended (the “Securities Act”):

 

In June 2004, we issued to each of our then-serving nine governors warrants to purchase 25,000 units at an exercise price of $0.80 per unit. The warrants vested September 29, 2005 upon closing on our primary project financing and were to remain exercisable for a period of five years thereafter.  Based on the manner of sale and representations of the governors, who are accredited by virtue of being our governors, we relied upon the exemption from registration afforded by Rule 701 of the Securities Act and Rule 506 of Regulation D promulgated under Section 4(2) of the Securities Act.  In August 2007, all of these warrants were exercised and we issued 225,000 units to the warrant holders.  Because the 225,000 units were issued upon exercise of the outstanding warrants and no commission or other remuneration was paid or given directly or indirectly for soliciting such exercise, we relied upon the exemption from registration afforded by Section 3(a)(9) of the Securities Act for the issuance of these 225,000 units.

 

From September 2004 through January 2005, we conducted an offering of units to residents in the State of Minnesota that was registered with the Minnesota Department of Commerce.  On October 5, 2005, we closed on the escrow associated with the offering and issued 21,604,875 units at prices of between $1.82 and $2.00 per unit, for a total price of $40.0 million.  Because the securities were offered and sold solely to persons resident within the State of Minnesota where we were formed, have our headquarters and where we conduct our business, we relied upon the exemption from registration under Section 3(a)(11) of the Securities Act or Rule 147 under the Securities Act.

 

On September 29, 2005, we issued 255,000 units to a husband and wife jointly as partial payment for land for the site of our ethanol plant.  The land was purchased for $1.5 million with $500,000 of the purchase price being paid for with the issuance of 255,000 units.  Based on the manner of sale in which there was no general solicitation or general advertising, the pre-existing relationship between us and the seller of the land (who was a member), the limited number of offerees and purchasers consisting solely of the seller of the land, and the representations of the seller of the land as to their investment intent, we relied upon the exemption from registration afforded by Section 4(2) of the Securities Act.

 

On December 26, 2006, we issued 3,750,000 Class B units at a price of $2.00 per unit, or $7.5 million to Project Viking, LLC.  Based on the manner of sale of these 3,750,000 Class B units and representations of the purchaser (which represented itself as an “accredited investor”), we relied upon the exemption from registration afforded by Section 4(2) of the Securities Act and Rule 506 of Regulation D promulgated under Section 4(2) of the Securities Act.  On April 11, 2007, the Class B units were exchanged for an equal number of Class A units pursuant to the provisions of our Articles of Organization and Member Control Agreement and with the approval of the board of governors. Because Class A units were issued in exchange for the outstanding warrants Class B units and no commission or other remuneration was paid or given directly or indirectly for soliciting such exchange, we relied upon the exemption from registration afforded by Section 3(a)(9) of the Securities Act for the issuance of Class A units to the holder of the Class B units.

 

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Item 11.  Description of Registrant’s Securities to be Registered

 

Authorized Capital

 

Our Articles of Organization and Member Control Agreement govern how we conduct our business and affairs, and the rights and obligations of our members under Minnesota law.

 

Under our Member Control Agreement, we are authorized to issue up to 50,000,000 units, of which 25,000,000 are designated as Class A units and 15,000,000 are designated as Class B units.  Pursuant to the Member Control Agreement, the authorized units not designated as Class A or Class B units in the Member Control Agreement may be designated as Class A units or Class B units by resolution of the board of governors.  A statement setting forth our name and the text of the resolution and certifying the adoption of the resolution and the date of adoption must be filed with the Secretary of State of the State of Minnesota before the acceptance of any capital contributions with respect to such units.  On April 11, 2007, the board of governors adopted resolutions designating as Class A Units the 10,000,000 authorized units that were not previously designated as Class A Units or Class B Units.  On April 13, 2007, a statement of designation was filed with the Minnesota Secretary of State with respect to this designation by the board of governors.  Therefore, our current authorized capital consists of 50,000,000 units, of which 35,000,000 are designated as Class A units and 15,000,000 are designated as Class B units.

 

As of July 31, 2008, we have 27,104,625 Class A units and no Class B units issued and outstanding. There are no differences in the rights and obligations between holders of Class A units and Class B units. The board of governors may accept capital contributions on our behalf and authorize the issuance of additional units, without member approval, on such terms and conditions as the board of governors and the person acquiring the units may agree.

 

Units

 

Our units represent an ownership interest in us.  Each person acquiring units will be required to sign our Member Control Agreement and become a member of our limited liability company.  Each member has the right to:

 

·    Share in our profits and losses ratably in proportion to units held;

 

·    Receive distributions when declared by the board of governors ratably in proportion to units held;

 

·    Participate in the distribution of our assets if we dissolve or liquidate our business;

 

·    Access and review certain information concerning our business and affairs; and

 

·    Vote on matters that require the consent of our members.

 

Holders of our units have no cumulative voting rights, preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to our units.

 

Voting

 

Each member may cast one vote for each Class A unit held.  Except those matters specifically identified in the Member Control Agreement, the members take action by the affirmative vote of the members holding a majority of the voting power of the members present, either in person or by proxy, at a duly held meeting of the members at which a quorum is present for the transaction of business.

 

In determining the voting power present for the purpose of the election of governors, units held by members who are entitled to appoint one or more governors under the Member Control Agreement and such members’ affiliates will not be considered, and members who are entitled to appoint one or more governors under the Member Control Agreement and such member’s affiliates are not be entitled to vote for the election of governors.   Project Viking, LLC holds 5,902,500 units, or 21.8% of our outstanding units on July 31, 2008, and has the right to appoint two governors under this provision of our Member Control Agreement.  Therefore, Project Viking, LLC and its affiliates are not entitled to vote as to the election of governors.

 

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Restrictions on Transfer

 

Transfer of units is restricted. All transfers must comply with our Member Control Agreement, which requires the prior approval of the board of governors.  The board of governors may also adopt a unit transfer policy setting forth the procedures and requirements for transferring your capital units.  The board of governors has adopted the following unit transfer policy:  No sales of units will be allowed until thirty days after the ethanol plant has met performance guarantees following completion of construction, provided that transfers upon death or without consideration to related parties which are made in accordance with the member control agreement and approved by the board are excepted from such transfer restriction.

 

The board of governors will not approve a transfer unless the transfer complies with our Member Control Agreement and certain tax regulations that are important to our maintaining our partnership tax status.  In particular, we will endeavor to take steps as are feasible and advisable to avoid classification as a “publicly traded partnership” as defined in Section 7704 of the Internal Revenue Code. If any member transfers his or her capital units in violation of our Member Control Agreement or without the prior written consent of the board of governors, the transfer will be null and void and the parties engaged in the transfer must indemnify and hold us and our members harmless against all cost, liability, and damage that arise from the transfer or attempted transfer.  However, the member may pledge or otherwise encumber all or any portion of his or her capital units, but any resulting transfer must comply with our Member Control Agreement.

 

Even if the board of governors approves a transfer of units by a member, the transfer is not effective unless the member complies with the requirements of our Member Control Agreement, such as providing opinions of counsel and information regarding the transferee.  We expect that our board of governors will routinely consent to transfers and admit the transferee as a member, if the transferor and transferee fully comply with our Member Control Agreement and there are no adverse tax consequences to us from the transfer.

 

Membership Requirements

 

On and after September 23, 2004, each member must own, or must have entered into a binding written agreement with and accepted by us to subscribe for, a minimum of 2,500 units.  Failure of any member to own or to subscribe for such minimum number of units on or after such date will result in the automatic termination of membership of such person, without further notice or action by us, and such person shall become and be a non-member unit holder, with no rights other than those financial rights with respect to the units owned by such person as provided for in and subject to our Member Control Agreement. The board of governors has the authority to increase the minimum ownership requirements and to place other membership restrictions on the holders of Class B units.

 

Classification of the Board of Governors

 

Under our Member Control Agreement, the Board is to consist of not less that seven nor more than eleven governors.  Currently, our Board of Governors consists of ten governors.  Governors that are elected by members are divided into three classes, with the term of one class expiring each year.  As the term of each class expires, the successors to the governors in that class will be elected for a three-year term and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.

 

Anti-Takeover Effects of Some Provisions of our Member Control Agreement

 

Some of the provisions of our Member Control Agreement could have the effect of delaying, deferring or preventing a change in control of our company.

 

Transfer Restrictions . Transfer of capital units is restricted. All transfers must comply with our Member Control Agreement. You cannot transfer your capital units without the prior approval of the board of governors.  We may prohibit a transferee from becoming a member for any reason or if the transferee does not comply with our Member Control Agreement.

 

Board of Governors . If a member holds 9% or more of the capital units outstanding, that member will be entitled to appoint one governor to the board for each 9% owned giving rise to the right to appoint.  An appointed governor serves indefinitely at the pleasure of the member appointing him or her (so long as such member and its affiliates continue to hold a sufficient number of units to maintain the applicable appointment right) until a successor is appointed, or until the earlier death, resignation or removal of the appointed governor.  A member that is entitled

 

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to appoint one or more governors under the appointment right provided in the Member Control Agreement and such member’s affiliates are not entitled to vote for the election of governors by the members.

 

The remaining seats on the board that are not subject to a right of appointment will be elected by the members (other than the members holdings rights of appointment).  Governors that are elected by members are divided into three classes, with the term of one class expiring each year.  As the term of each class expires, the successors to the governors in that class will be elected for a three-year term and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.

 

Transfer Agent and Registrar

 

We act as our own transfer agent and registrar for our units.

 

Listing or Quotation

 

There is no established public trading market for our units, and we do not expect one to develop in the foreseeable future.  To maintain our partnership tax status, we do not intend to list the units on any stock exchange or automatic quotation system such as the OTC Bulletin Board.

 

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Item 12.  Indemnification of Directors and Officers.

 

Under Minnesota law and our Member Control Agreement, no governor or officer is liable for any of our debts, obligations or liabilities merely because he or she is a governor or officer.  Further, our Member Control Agreement provides that no governor or officer is liable to us or our members for monetary damages for breach of fiduciary duty.  However, this provision of our Member Control Agreement will not eliminate or limit the liability of a governor or officer to the extent provided by applicable law for (a) breach of the governor’s duty of loyalty to us or our members; (b) acts or omissions that are not in good faith or involve intentional misconduct or a knowing violation of law or, with respect to officers, for acts of negligence; (c) knowing violations of certain securities laws or illegal distributions; or (d) a transaction from which the governor derived an improper personal benefit. If amendments to Minnesota Statutes later authorize limited liability companies to act to further limit or eliminate the personal liability of governors of a limited liability company, then the liability of our governors will be limited or eliminated to the greatest extent permitted by Minnesota Statutes, as so amended.

 

In addition, our Member Control Agreement generally requires us to indemnify each present and former governor or officer relating to any liability or damage or reasonable expenses incurred with respect to a proceeding if the governor or officer was a party to the proceeding in the capacity of a governor or officer, unless the proceedings arise out of or are related to matters for which a governor or officer is personally liable under the prior paragraph.

 

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Item 13.  Financial Statements and Supplementary Data.

 

See “Item 15. Financial Statements and Exhibits” of this Registration Statement on Form 10.

 

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Item 14.  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

 

None.

 

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Item 15.  Financial Statements and Exhibits

 

(a)   Financial Statements

 

 

 

Page Reference

 

 

 

 

 

Audited Financial Statements

 

 

 

 

 

 

 

Report of Independent Registered Public Accounting Firm

 

F-1

 

 

 

 

 

Consolidated Balance Sheets as of October 31, 2007 and 2006

 

F-2

 

 

 

 

 

Consolidated Statements of Operations for the fiscal years ended October 31, 2007, 2006 and 2005

 

F-4

 

 

 

 

 

Consolidated Statements of Changes in Members’ Equity for the fiscal years ended October 31, 2007, 2006, and 2005

 

F-5

 

 

 

 

 

Consolidated Statements of Cash Flows for the fiscal years ended October 31, 2007, 2006, and 2005

 

F-6

 

 

 

 

 

Notes to Consolidated Financial Statements

 

F-8

 

 

 

 

 

Unaudited Interim Financial Statements

 

 

 

 

 

 

 

Condensed Consolidated Balance Sheets as of April 30, 2008

 

F-24

 

 

 

 

 

Condensed Consolidated Statements of Operations for the six months ended April 30, 2008 and 2007

 

F-26

 

 

 

 

 

Condensed Consolidated Statements of Cash Flows for the six months ended April 30, 2008 and 2007

 

F-27

 

 

 

 

 

Notes to Condensed Consolidated Financial Statements

 

F-28

 

 

64



Table of Contents

 

(b)   Exhibits

 

Exhibit
Number

 

Exhibit Title

 

 

 

3.1

 

First Amended and Restated Articles of Organization of Heron Lake BioEnergy, LLC

3.2

 

Member Control Agreement of Heron Lake BioEnergy, LLC, as amended through March 29, 2008

4.1

 

Form of Class A Unit Certificate

10.1

 

Fourth Amended and Restated Loan Agreement dated October 1, 2007 by and between AgStar Financial Services, PCA and Heron Lake BioEnergy, LLC

10.2

 

Third Supplement dated October 1, 2007 to Fourth Amended and Restated Loan Agreement by and between AgStar Financial Services, PCA and Heron Lake BioEnergy, LLC

10.3

 

Fourth Supplement dated October 1, 2007 to Fourth Amended and Restated Loan Agreement by and between AgStar Financial Services, PCA and Heron Lake BioEnergy, LLC

10.4

 

Term Note dated October 1, 2007 in principal amount of $59,583,000 by Heron Lake BioEnergy, LLC to AgStar Financial Services, PCA as lender

10.5

 

Term Revolving Note dated October 1, 2007 in principal amount of $5,000,000 by Heron Lake BioEnergy, LLC to AgStar Financial Services, PCA as lender

10.6

 

Personal Guaranty dated October 1, 2007 by Roland Fagen, guarantor, in favor of AgStar Financial Services, PCA

 

65



Table of Contents

 

10.7

 

Fourth Amended and Restated Guaranty dated October 1, 2007 by Lakefield Farmers Elevator, LLC in favor of AgStar Financial Services, PCA.

10.8

 

Fifth Supplement dated November 19, 2007 to Fourth Amended and Restated Loan Agreement by and between AgStar Financial Services, PCA and Heron Lake BioEnergy, LLC

10.9

 

Revolving Line of Credit Note dated November 19, 2007 in principal amount of $7,500,000 by Heron Lake BioEnergy, LLC to AgStar Financial Services, PCA as lender

10.10

 

Industrial Water Supply Development and Distribution Agreement dated October 27, 2003 among Heron Lake BioEnergy, LLC (f/k/a Generation II Ethanol, LLC), City of Heron Lake, Jackson County, and Minnesota Soybean Processors

10.11

 

Industrial Water Supply Treatment Agreement dated May 23, 2006 among Heron Lake BioEnergy, LLC, City of Heron Lake and County of Jackson

10.12

 

Standard Form of Agreement between Owner and Designer — Lump Sum dated September 28, 2005 by and between Fagen, Inc. and Heron Lake BioEnergy, LLC†

10.13

 

Distiller’s Grain Marketing Agreement dated October 5, 2005 by and between Heron Lake BioEnergy, LLC and Commodity Specialist Company as assigned to CHS Inc. as of August 17, 2007

10.14

 

Ethanol Fuel Marketing Agreement dated August 7, 2006 by and between RPGM, Inc. and Heron Lake BioEnergy, LLC

10.15

 

Letter Agreement re: Environmental Compliance Support dated March 12, 2007 by and between Fagen Engineering, LLC Heron Lake BioEnergy, LLC

10.16

 

Coal Loading, Transport, and Delivery Agreement effective as of April 1, 2007 by and between Tersteeg Transport Inc. and Heron Lake BioEnergy, LLC

10.17

 

Coal Transloading Agreement dated June 1, 2007 by and between Southern Minnesota Beet Sugar Cooperative and Heron Lake BioEnergy, LLC†

10.18

 

Master Coal Purchase and Sale Agreement dated June 1, 2007 by and between Northern Coal Transport Company and Heron Lake BioEnergy, LLC, including confirmation letter dated July 13, 2007†

10.19

 

Loan Agreement dated December 28, 2007 by and between Federated Rural Electric Association and Heron Lake BioEnergy, LLC

10.20

 

Secured Promissory Note issued December 28, 2007 by Heron Lake BioEnergy, LLC as borrower to Federated Rural Electric Association as lender in principal amount of $600,000

10.21

 

Security Agreement dated December 28, 2007 by Heron Lake BioEnergy, LLC in favor of Federated Rural Electric Association

10.22

 

Electric Service Agreement dated October 17, 2007 by and between Interstate Power and Light Company and Heron Lake BioEnergy, LLC

10.23

 

Shared Savings Contract dated November 16, 2007 by and between Interstate Power and Light Company and Heron Lake BioEnergy, LLC

10.24

 

Escrow Agreement dated November 16, 2007 by and between Heron Lake BioEnergy, LLC , Farmers State Bank of Hartland for the benefit of Interstate Power and Light Company

10.25

 

Employment Agreement dated February 1, 2008 by and between Heron Lake BioEnergy, LLC and Robert J. Ferguson*

10.26

 

Services Contract dated March 1, 2007 by and between Heron Lake BioEnergy, LLC and Gerber & Haugen, P.L.L.P. relating to the services of James A. Gerber*

10.27

 

Letter Agreement dated February 28, 2008 by and between Heron Lake BioEnergy, LLC and Gerber & Haugen, P.L.L.P. relating to the services of James A. Gerber*

21.1

 

Subsidiaries of the Registrant

 


*

 

Indicates compensatory agreement.

 

Certain portions of this exhibit have been redacted and filed on a confidential basis with the Commission pursuant to a request for confidential treatment under Rule 24b-2 of under the Exchange Act. Spaces corresponding to the deleted portions are represented by brackets with asterisks [***].

 

66



Table of Contents

 

SIGNATURE

 

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Dated: August 20, 2008

HERON LAKE BIOENERGY, LLC

 

 

 

 

 

By:

/s/ Robert J. Ferguson

 

 

 

Robert J. Ferguson
President and Chief Executive Officer

 

POWER OF ATTORNEY

 

The undersigned officers and governors of Heron Lake BioEnergy, LLC hereby constitute and appoint Robert J. Ferguson and James A. Gerber, each acting alone, with power to act as our true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for us and in our stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this Registration Statement and all documents relating thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing necessary or advisable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities indicated on August 20, 2008.

 

/s/  Robert J. Ferguson 

 

Chief Executive Officer and President

Robert J. Ferguson

 

(principal executive officer), Governor

 

 

 

/s/  James A. Gerber

 

Interim Chief Financial Officer (principal financial

James A. Gerber

 

and accounting officer)

 

 

 

/s/ Doug Schmitz

 

Governor

Doug Schmitz

 

 

 

 

 

/s/  Michael S. Kunerth

 

Governor

Michael S. Kunerth

 

 

 

 

 

/s/  David J. Woestehoff

 

Governor

David J. Woestehoff

 

 

 

 

 

/s/  David J. Bach

 

Governor

David J. Bach

 

 

 

 

 

/s/  Timothy O. Helgemoe

 

Governor

Timothy O. Helgemoe

 

 

 

 

 

/s/  Milton J. McKeown

 

Governor

Milton J. McKeown

 

 

 

 

 

/s/  David M. Reinhart

 

Governor

David M. Reinhart

 

 

 

 

 

/s/  Brian D. Thome

 

Governor

Brian D. Thome

 

 

 

 

 

/s/  Robert J. Wolf

 

Governor

Robert J. Wolf

 

 

 

67



Table of Contents

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

Board of Governors

Heron Lake BioEnergy, LLC and Subsidiary

Heron Lake, Minnesota

 

We have audited the accompanying consolidated balance sheets of Heron Lake BioEnergy, LLC and Subsidiary, as of October 31, 2007 and 2006, and the related consolidated statements of operations, changes in members’ equity, and cash flows for the years ended October 31, 2007, 2006, and 2005. These consolidated financial statements are the responsibility of the Company’s management.  Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

 

We conducted our audits in accordance with auditing standards generally accepted in the United States of America.  Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement.  The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements.  An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation.  We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Heron Lake Bioenergy, LLC and Subsidiary, as of October 31, 2007 and 2006, and the results of its operations and its cash flows for the years ended October 31, 2007, 2006, and 2005 in conformity with accounting principles generally accepted in the United States of America.

 

/s/ Boulay, Heutmaker, Zibell & Co. P.L.L.P.

 

 

 

Certified Public Accountants

 

 

Minneapolis, Minnesota

March 18, 2008

 

F-1



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Consolidated Balance Sheets

 

 

 

October 31, 2007

 

October 31, 2006

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

Current Assets

 

 

 

 

 

Cash and equivalents

 

$

3,090,329

 

$

2,624,064

 

Restricted cash

 

221,350

 

512,850

 

Accounts receivable

 

1,954,126

 

403,683

 

Inventory

 

18,991,390

 

4,129,757

 

Prepaid expenses

 

124,858

 

73,074

 

Total current assets

 

24,382,053

 

7,743,428

 

 

 

 

 

 

 

Property and Equipment

 

 

 

 

 

Land and improvements

 

12,283,575

 

2,292,544

 

Plant buildings and equipment

 

96,859,303

 

2,585,934

 

Vehicles and other equipment

 

661,272

 

101,500

 

Office buildings and equipment

 

566,928

 

143,125

 

 

 

110,371,078

 

5,123,103

 

Accumulated depreciation

 

(1,518,157

)

(310,311

)

 

 

108,852,921

 

4,812,792

 

Construction in progress

 

 

55,672,074

 

Net property and equipment

 

108,852,921

 

60,484,866

 

 

 

 

 

 

 

Other Assets

 

 

 

 

 

Deferred loan costs, net

 

572,234

 

549,291

 

Debt service deposits and other

 

152,750

 

1,000

 

Total other assets

 

724,984

 

550,291

 

 

 

 

 

 

 

Total Assets

 

$

133,959,958

 

$

68,778,585

 

 

Notes to Consolidated Financial Statement are an integral part of this Statement.

 

F-2



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Consolidated Balance Sheets

 

 

 

October 31, 2007

 

October 31, 2006

 

 

 

 

 

 

 

LIABILITIES AND MEMBERS’ EQUITY

 

 

 

 

 

Current Liabilities

 

 

 

 

 

Checks written in excess of bank balance

 

$

514,633

 

$

523,605

 

Line of credit

 

6,974,235

 

848,060

 

Note payable - related party

 

4,202,930

 

 

Current maturities of long-term debt

 

2,747,061

 

5,836,241

 

Accounts payable:

 

 

 

 

 

Trade accounts payable

 

8,610,097

 

2,232,296

 

Trade accounts payable - related party

 

1,435,520

 

94,543

 

Construction payable

 

349,042

 

1,126,734

 

Construction payable - related party

 

3,839,413

 

13,756,214

 

Accrued expenses

 

853,750

 

208,173

 

Derivative instruments

 

186,237

 

915,533

 

Total current liabilities

 

29,712,918

 

25,541,399

 

 

 

 

 

 

 

Long-Term Debt, net of current maturities

 

62,281,899

 

3,503,759

 

 

 

 

 

 

 

Commitments and Contingencies

 

 

 

 

 

 

 

 

 

 

 

Members’ Equity , 27,104,625 and 23,129,625 units outstanding at October 31, 2007 and 2006, respectively

 

41,965,141

 

39,733,427

 

 

 

 

 

 

 

Total Liabilities and Members’ Equity

 

$

133,959,958

 

$

68,778,585

 

 

Notes to Consolidated Financial Statement are an integral part of this Statement.

 

F-3



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Consolidated Statements of Operations

 

 

 

Year Ended

 

Year Ended

 

Year Ended

 

 

 

October 31, 2007

 

October 31, 2006

 

October 31, 2005

 

 

 

 

 

 

 

 

 

Revenues

 

$

23,560,498

 

$

10,111,931

 

$

 

 

 

 

 

 

 

 

 

Cost of Goods Sold

 

24,313,695

 

9,818,395

 

 

 

 

 

 

 

 

 

 

Gross Profit

 

(753,197

)

293,536

 

 

 

 

 

 

 

 

 

 

Operating Expenses

 

 

 

 

 

 

 

Professional and consulting fees

 

820,940

 

113,113

 

232,857

 

General and administrative

 

2,706,259

 

1,852,229

 

548,658

 

Total operating expenses

 

3,527,199

 

1,965,342

 

781,515

 

 

 

 

 

 

 

 

 

Operating Loss

 

(4,280,396

)

(1,671,806

)

(781,515

)

 

 

 

 

 

 

 

 

Other Income (Expense)

 

 

 

 

 

 

 

Grant income

 

 

 

148,121

 

Interest income

 

9,166

 

994,660

 

287,651

 

Interest expense

 

(1,181,442

)

(76,695

)

(121

)

Other income (expense)

 

4,386

 

112,696

 

1,760

 

Total other income (expense), net

 

(1,167,890

)

1,030,661

 

437,411

 

 

 

 

 

 

 

 

 

Net Loss

 

$

(5,448,286

)

$

(641,145

)

$

(344,104

)

 

 

 

 

 

 

 

 

Weighted Average Units

 

 

 

 

 

 

 

Outstanding - Basic and Diluted

 

26,361,406

 

23,129,554

 

2,820,534

 

 

 

 

 

 

 

 

 

Net Loss Per

 

 

 

 

 

 

 

 

 

 

Unit - Basic and Diluted

 

$

(0.21

)

$

(0.03

)

$

(0.12

)

 

Notes to Consolidated Financial Statement are an integral part of this Statement.

 

F-4



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Consolidated Statements of Changes in Members’ Equity

 

Balance - October 31, 2004

 

$

661,138

 

 

 

 

 

Capital contribution - 21,604,875 Class A units $1.82, $1.90, and $2.00 per unit, October 2005

 

40,000,000

 

 

 

 

 

Issuance of 255,000 Class A units for the purchase of land, October 2005

 

500,000

 

 

 

 

 

Warrants issued for the purchase of 225,000 Class A units for services

 

69,000

 

 

 

 

 

Cost of raising capital

 

(524,462

)

 

 

 

 

Net loss for the year ended October 31, 2005

 

(344,104

)

 

 

 

 

Balance - October 31, 2005

 

40,361,572

 

 

 

 

 

Issuance of 6,500 Class A units for the purchase of easement, November 2005

 

13,000

 

 

 

 

 

Net loss for the year ended October 31, 2006

 

(641,145

)

 

 

 

 

Balance - October 31, 2006

 

39,733,427

 

 

 

 

 

Capital Contribution - 3,750,000 Class A units, $2.00 per unit, December 2006

 

7,500,000

 

 

 

 

 

Capital Contribution - exercise of warrants for 225,000 Class A units, $.80 per unit, August 2007

 

180,000

 

 

 

 

 

Net loss for the year ended October 31, 2007

 

(5,448,286

)

 

 

 

 

Balance - October 31, 2007

 

$

41,965,141

 

 

Notes to Consolidated Financial Statement are an integral part of this Statement.

 

F-5



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Consolidated Statements of Cash Flows

 

 

 

Year Ended

 

Year Ended

 

Year Ended

 

 

 

October 31, 2007

 

October 31, 2006

 

October 31, 2005

 

 

 

 

 

 

 

 

 

Cash Flow From Operating Activities

 

 

 

 

 

 

 

Net loss

 

$

(5,448,286

)

$

(641,145

)

$

(344,104

)

Adjustments to reconcile net loss to net cash provided by (used in) operating activities:

 

 

 

 

 

 

 

Depreciation and amortization

 

1,269,117

 

302,647

 

5,739

 

Change in fair value of derivative instruments

 

150,088

 

915,533

 

 

Gain on disposal of assets

 

(4,396

)

(28,540

)

 

Warrants issued for services

 

 

 

69,000

 

Change in assets and liabilities:

 

 

 

 

 

 

 

Restricted cash

 

291,500

 

(512,850

)

 

Accounts receivable

 

(1,550,443

)

(380,383

)

(23,300

)

Inventory

 

(14,861,633

)

(3,569,069

)

 

Prepaid expenses

 

(51,784

)

(60,580

)

(7,367

)

Derivative instruments

 

(879,384

)

 

 

Accounts payable

 

7,718,778

 

1,821,999

 

90,445

 

Accrued expenses

 

645,577

 

196,288

 

9,999

 

Net cash used in operating activities

 

(12,720,866

)

(1,956,100

)

(199,588

)

 

 

 

 

 

 

 

 

Cash Flows from Investing Activities

 

 

 

 

 

 

 

Proceeds from short term - investments

 

 

 

299,859

 

Proceeds from sale of assets

 

29,421

 

338,000

 

 

Payments for elevator assets

 

 

(1,093,298

)

(117,390

)

Capital expenditures

 

(4,204,339

)

(35,560,610

)

(41,667

)

Net cash provided by (used in) investing activities

 

(4,174,918

)

(36,315,908

)

140,802

 

 

 

 

 

 

 

 

 

Cash Flows from Financing Activities

 

 

 

 

 

 

 

Checks written in excess of bank balance

 

(8,972

)

523,605

 

 

Proceeds from line of credit

 

6,126,175

 

848,060

 

 

Proceeds from note payable - related party

 

4,202,930

 

 

 

Proceeds from long-term debt

 

 

 

488,251

 

Payments on long-term debt

 

(307,168

)

(98,726

)

 

Payments for loan costs

 

(179,166

)

(496,723

)

(204,499

)

Debt service deposits included with other assets

 

(151,750

)

 

 

Member contributions

 

7,500,000

 

 

40,000,000

 

Member contributions related to warrant exercise

 

180,000

 

 

 

Redemption of member units

 

 

 

(750

)

Payments for cost of raising capital

 

 

 

(199,107

)

Net cash provided by financing activities

 

17,362,049

 

776,216

 

40,083,895

 

 

 

 

 

 

 

 

 

Net Increase (Decrease) in cash and equivalents

 

466,265

 

(37,495,792

)

40,025,109

 

 

 

 

 

 

 

 

 

Cash and Equivalents- Beginning of period

 

2,624,064

 

40,119,856

 

94,747

 

 

 

 

 

 

 

 

 

Cash and Equivalents- End of period

 

$

3,090,329

 

$

2,624,064

 

$

40,119,856

 

 

Notes to Consolidated Financial Statements are an integral part of this Statement.

 

F-6



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Consolidated Statements of Cash Flows

 

 

 

Year Ended

 

Year Ended

 

Year Ended

 

 

 

October 31, 2007

 

October 31, 2006

 

October 31, 2005

 

 

 

 

 

 

 

 

 

Supplemental Disclosure of Cash Flow Information

 

 

 

 

 

 

 

Interest expense paid

 

$

589,118

 

$

76,707

 

$

121

 

Interest capitalized paid

 

2,802,010

 

378,851

 

9,159

 

Total interest paid

 

$

3,391,128

 

$

455,558

 

$

9,280

 

 

 

 

 

 

 

 

 

Supplemental Disclosure of Non-Cash Activities

 

 

 

 

 

 

 

Property and equipment in construction payables

 

$

4,188,455

 

$

14,882,948

 

$

314,434

 

Property and equipment financed by long-term debt

 

$

40,245,680

 

$

2,010,575

 

$

1,438,900

 

Assessment payable related to property and equipment

 

$

867,500

 

$

3,550,000

 

$

 

Loan costs capitalized with property and equipment

 

$

99,387

 

$

151,931

 

$

 

Construction payables refinanced with long-term debt

 

$

14,882,948

 

$

 

$

 

Note payable for elevator assets purchased

 

$

 

$

1,950,000

 

$

 

Issuance of units for easement

 

$

 

$

13,000

 

$

 

Note payable repaid with construction note

 

$

 

$

439,900

 

$

 

Land option exercised for land purchase

 

$

 

$

 

$

1,000

 

Issuance of units for land purchase

 

$

 

$

 

$

500,000

 

Payments for acquisition costs in accounts payable

 

$

 

$

 

$

20,385

 

Other assets financed by note payable

 

$

 

$

 

$

1,000

 

 

Notes to Consolidated Financial Statements are an integral part of this Statement.

 

F-7



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Nature of Business

 

The Company was organized to fund and construct a 50 million gallon ethanol plant near Heron Lake, Minnesota with ethanol distribution to upper Midwest states.  In addition, the Company intends to produce and sell distillers grains with solubles as co-products of ethanol production.  The Company was formed on April 12, 2001 to have an indefinite life.  The Company began its ethanol plant operations in September 2007.  Prior to September 2007, the Company was in the development stage.  In December 2005, the Company acquired certain assets of Farmers Co-operative Elevator of Lakefield to give the Company the ability to procure and store corn more favorably as described in Note 3.  Since the plant did not commence ethanol operations until September 2007, the Company sold and distributed corn and other grains of approximately $16,801,000 and $10,112,000 in fiscal 2007 and 2006, respectively.  The Company expects future revenue from grain merchandising to decline significantly.

 

Principles of Consolidation

 

The financial statements include the accounts of Heron Lake BioEnergy, LLC and its wholly owned subsidiary, Lakefield Farmers Elevator, LLC, collectively, the “Company.”  All significant intercompany balances and transactions are eliminated in consolidation.

 

Fiscal Reporting Period

 

The Company’s fiscal year end for reporting financial operations is October 31.

 

Accounting Estimates

 

Management uses estimates and assumptions in preparing these financial statements in accordance with generally accepted accounting principles.  Those estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the reported revenues and expenses.  Actual results could differ from those estimates.

 

Revenue Recognition

 

Revenue from sales is recorded when title transfers to the customer.  The title transfers when the product is loaded into the railcar or truck, the customer takes ownership and assumes risk of loss.  Shipping costs incurred by the Company in the sale of ethanol are not specifically identifiable and as a result, revenue from the sale of ethanol and distillers grains are recorded based on the net selling price reported to the Company from the marketers.

 

In accordance with the Company’s agreements for the marketing and sale of ethanol and distillers grains, commissions due to the marketers are deducted from the gross sales price at the time payment is remitted to the Company.  Revenues are recorded net of commissions of approximately $40,000 for the year ended October 31, 2007.

 

F-8



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

The Company also receives revenue from grain storage and drying, which is based on standard storage and drying contract terms.

 

Cash and Equivalents

 

The Company considers all highly liquid debt instruments purchased with a maturity of three months or less to be cash and equivalents.

 

The Company maintains its accounts at five financial institutions.  At times throughout the year, the Company’s cash balances may exceed amounts insured by the Federal Deposit Insurance Corporation and the Securities Investor Protection Corporation.  The Company does not believe it is exposed to any significant credit risk on cash and equivalents.

 

Restricted Cash

 

The Company is periodically required to maintain cash balances at its broker related to derivative instrument positions.

 

Accounts Receivable

 

Credit terms are extended to customers in the normal course of business.  The Company performs ongoing credit evaluations of its customers’ financial condition and, generally, requires no collateral.

 

Accounts receivable are recorded at their estimated net realizable value.  Accounts are considered past due if payment is not made on a timely basis in accordance with the Company’s credit terms.  Accounts considered uncollectible are written off.  The Company’s estimate of the allowance for doubtful accounts is based on historical experience, its evaluation of the current status of receivables, and unusual circumstances, if any.  At October 31, 2007 and 2006, the Company was of the belief that such accounts would be collectable and thus an allowance was not considered necessary.

 

Inventory

 

Inventory consists of raw materials, work in process, finished goods, supplies, and other grain inventory. Corn is the primary raw material and, along with other raw materials and supplies, is stated at the lower of cost or market on a first-in, first-out (FIFO) basis. Work in process and finished goods, which consists of ethanol and distillers grains produced, are stated at the lower of average cost or market.  Other grain inventory, which consists of agricultural commodities, is valued at market value (net realizable value).  Other grain inventory is readily convertible to cash because of its commodity characteristics, widely available markets and international pricing mechanisms.  Other grain inventory is also freely traded, has quoted market prices, may be sold without significant further processing, and has predictable and insignificant disposal costs.  Merchandise inventory is valued at lower of cost or market on a first-in, first-out (FIFO) basis.

 

F-9



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

Derivative Instruments

 

The Company accounts for derivative instruments and hedging activities in accordance with Statement of Financial Accounting Standards (SFAS) No. 133, Accounting for Derivative Instruments and Hedging Activities , as amended. SFAS No. 133 requires a company to evaluate its contracts to determine whether the contracts are derivatives.  Certain contracts that literally meet the definition of a derivative may be exempted from SFAS No. 133 as normal purchases or normal sales.  Normal purchases and normal sales are contracts that provide for the purchases or sale of something other than a financial instrument or derivative instrument that will be delivered in quantities expected to be used or sold over a reasonable period in the normal course of business.  Contracts that meet the requirements of normal are documented as normal and exempted from accounting and reporting requirements of SFAS No. 133, and therefore, are not marked to market in our financial statements.

 

In order to reduce the risk caused by market fluctuations of corn, the Company may use option, futures and swap contracts.  These contracts are used to fix the purchase price of the Company’s anticipated requirements of corn in production activities.  The fair value of these contracts is based on quoted prices in active exchange-traded or over-the-counter markets.  The fair value of the derivatives is continually subject to change due to the changing market conditions.  The Company does not typically enter into derivative instruments other than for hedging purposes.  On the date the derivative instrument is entered into, the Company will designate the derivative as a hedge.  Changes in the fair value of a derivative instrument that is designated as, and meets all of the required criteria, for a cash flow or fair value hedge is recorded in accumulated other comprehensive income and reclassified into earnings as the hedged items affect earnings.  Changes in the fair value of a derivative instrument that is not designated as, and accounted for, as a cash flow or fair value hedge is recorded in current period earnings.  Although certain derivative instruments may not be designated as, and accounted for, as a cash flow or fair value hedge, they are economic hedges of specified risks.

 

Property and Equipment

 

Property and equipment are recorded at cost.  Depreciation is provided over an estimated useful life by use of the straight-line deprecation method.  Maintenance and repairs are expensed as incurred; major improvements and betterments are capitalized.  Construction in progress is comprised of costs related to the construction of the ethanol plant facilities.  Interest is capitalized during the construction period.  Depreciable useful lives are as follows:

 

Land improvements

 

15 Years

 

Plant building and equipment

 

7 - 40 Years

 

Vehicles and equipment

 

5 - 7 Years

 

Office buildings and equipment

 

3 - 40 Years

 

 

F-10



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

Long-Lived Assets

 

The Company reviews property and equipment and other long-lived assets for impairment in accordance with SFAS No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets   Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable.  Circumstances which could trigger a review include, but are not limited to: significant decreases in the market price of the asset; significant adverse changes in the business climate or legal factors; accumulation of costs significantly in excess of the amount originally expected for the acquisition of construction of the asset; current period cash flow or operating losses combined with a history of losses or a forecast of continuing losses associated with the use of the assets; and current expectation that the asset will more likely than not be sold or disposed significantly before the end of its estimated useful life.

 

Recoverability is assumed based on the carrying amount of the asset and its fair value which is generally determined based on the sum of the undiscounted cash flows expected to result from the use of the eventual disposal of the asset, as well as specific appraisal in certain instances.  An impairment loss is recognized when the carrying amount is not recoverable and exceeds fair value.  The Company has not recognized any long-lived asset impairment charges as of October 31, 2007 and 2006.

 

Offering Costs

 

The Company deferred the cost incurred to raise equity financing until the financing occurred.  In October 2005, equity proceeds were released from escrow and offering costs were netted against the proceeds received.

 

Deferred Loan Costs

 

Costs associated with the issuance of the debt discussed in Notes 7 and 9 are recorded as deferred loan costs, net of accumulated amortization.  Loan costs are amortized to operations over the term of the related debt using the effective interest method. Prior to the commencement of operations in September 2007, the Company capitalized loan costs with interest costs during the construction of the plant.  Once operations commenced, loan cost amortization was expensed.

 

Grants

 

The Company recognizes grant income for reimbursement of expenses incurred upon complying with the conditions of the grant.  For reimbursements of incremental expenses (expenses the Company otherwise would not have incurred had it not been for the grant), the grant proceeds are recognized as a reduction of the related expense.  For reimbursements of capital expenditures, the grants are recognized as a reduction of the basis of the asset upon complying with the conditions of the grant.

 

Financial Instruments

 

The Company believes the carrying value of cash and equivalents and restricted cash approximate fair value.

 

The Company believes the carrying amount of derivative instruments approximates fair value based on quoted prices in active exchange-traded or over-the-counter markets.

 

F-11



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

It is not currently practicable to estimate the fair value of the line of credit, note payable or long-term debt.  These agreements contain certain unique terms, conditions, covenants, and restrictions, as discussed in Notes 7, 8, and 9, which make comparisons to similar instruments impractical.

 

Income Taxes

 

The Company is treated as a partnership for federal and state income tax purposes and generally does not incur income taxes. Instead, its earnings and losses are included in the income tax returns of the members.  Therefore, no provision or liability for federal or state income taxes has been included in these financial statements.  Differences between financial statement basis of assets and tax basis of assets is related to capitalization and amortization of organization and start-up costs for tax purposes, whereas these costs are expensed for financial statement purposes. In addition, the Company uses the alternative depreciation system (ADS) for tax depreciation instead of the straight-line method that is used for book depreciation, which also causes temporary differences.

 

Share-Based Compensation

 

In 2006, the Company adopted Statement of Financial Accounting Standards No. 123 (revised 2004) (SFAS No. 123R), Share-Based Payment , which addresses the accounting for stock-based payment transactions in which an enterprise receives employee services in exchange for (a) equity instruments of the enterprise or (b) liabilities that are based on the fair value of the enterprise’s equity instruments or that may be settled by the issuance of such equity instruments. In January 2005, the SEC issued SAB No. 107, which provides supplemental implementation guidance for SFAS No. 123R. SFAS No. 123R eliminates the ability to account for stock-based compensation transactions using the intrinsic value method under Accounting Principles Board (“APB”) Opinion No. 25, Accounting for Stock Issued to Employees , and instead generally requires that such transactions be accounted for using a fair-value-based method. The Company uses the Black-Scholes-Merton (“BSM”) option-pricing model to determine the fair-value of stock-based awards.

 

Prior to 2006, the Company accounted for the grants of warrants using the intrinsic value method of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees and related interpretations.  Had compensation cost for share-based awards been determined consistent with SFAS 123R, the net loss would have been adjusted to the following pro forma amounts for the year ended October 31, 2005:

 

Net loss, as reported

 

$

(344,104

)

Plus:  Share-based compensation expense determined under fair value based methods

 

69,000

 

Less:  Share-based compensation expense determined under fair value based methods

 

(69,000

)

Pro forma net loss

 

$

(344,104

)

 

F-12



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

Net Income (Loss) per Unit

 

Basic net income (loss) per unit is computed by dividing net income (loss) by the weighted average number of members’ units outstanding during the period.  Diluted net income or loss per unit is computed by dividing net income (loss) by the weighted average number of members’ units and members’ unit equivalents outstanding during the period.  The warrants were not included in the calculation of diluted net loss per unit in fiscal 2007, 2006, and 2005 as they would have been anti-dilutive.

 

Environmental Liabilities

 

The Company’s operations are subject to environmental laws and regulations adopted by various governmental entities in the jurisdiction in which it operates.  These laws require the Company to investigate and remediate the effects of the release or disposal of materials at its location.  Accordingly, the Company has adopted policies, practices, and procedures in the areas of pollution control, occupational health, and the production, handling, storage and use of hazardous materials to prevent material environmental or other damage, and to limit the financial liability, which could result from such events.  Environmental liabilities are recorded when the liability is probable and the costs can be reasonably estimated.

 

Recently Issued Accounting Pronouncements

 

In September 2006, the FASB issued Statement of Financial Accounting Standards No. 157 (SFAS 157), Fair Value Measurements .  SFAS 157 defines fair value, establishes a framework for measuring fair value, and expands disclosures about fair value measurements. The statement is effective for financial assets and liabilities in financial statements issued for fiscal years beginning after November 15, 2007. It is effective for certain non-financial assets and liabilities in financial statements issued for fiscal years beginning after November 15, 2008. The Company is currently evaluating the effect that the adoption of SFAS 157 will have, if any, on its results of operations, financial position and related disclosures, but does not expect it to have a material impact on the financial statements.

 

In February 2007, the FASB issued Statement of Financial Accounting Standards No. 159, (SFAS 159), The Fair Value Option for Financial Assets and Financial Liabilities – including an amendment to FASB Statement No. 115 . This statement provides companies with an option to report selected financial assets and liabilities at fair value. This statement is effective for fiscal years beginning after November 15, 2007 with early adoption permitted. The Company is in the process of evaluating the effect, if any, that the adoption of SFAS No.159 will have on its results of operations and financial position.

 

F-13



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

Reclassifications

 

The balance sheet at October 31, 2006, changed to reclassify property and equipment amounts within property and equipment to conform to classifications used at October 31, 2007.  This reclassification had no effect on members’ equity, net income, or net cash flow previously reported.

 

2.  ASSETS PURCHASED

 

The Company formed its wholly owned subsidiary, Lakefield Farmers Elevator, LLC, for the purpose of purchasing assets from Farmers Co-operative Elevator of Lakefield.  On December 15, 2005, the Company purchased certain current assets, primarily inventory, of approximately $561,000 and property and equipment of approximately $2,600,000 for a total purchase price of approximately $3,161,000.  The assets are intended to provide additional storage of corn inventory and to allow the Company to more favorably procure corn for its ethanol operations.  The Company paid cash for these assets.  Since the ethanol plant experienced delays in commencing operations, the Company sold and distributed corn and other grains during fiscal 2006 and 2007, but considers this activity ancillary to its primary purpose of providing additional storage and procurement of corn for the ethanol plant.

 

3.  CONCENTRATIONS

 

The Company sells all of the ethanol and distiller grains produced to two customers under marketing agreements as described in Note 14.  At October 31, 2007, these two customers comprised 91% of accounts receivable.

 

4.  INVENTORY

 

Inventory consists of the following at October 31:

 

 

 

2007

 

2006

 

 

 

 

 

 

 

Raw materials

 

$

14,922,916

 

$

3,268,700

 

Work in process

 

899,160

 

 

Finished goods

 

1,050,411

 

 

Supplies

 

160,840

 

 

Other grains

 

1,958,063

 

861,057

 

Totals

 

$

18,991,390

 

$

4,129,757

 

 

In addition, the Company stored corn and bean inventory for farmers.  The value of these inventories owned by others is approximately $281,000 and $3,694,000 based on market prices at October 31, 2007 and 2006, respectively.

 

F-14



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

5. DERIVATIVE INSTRUMENTS

 

At October 31, 2007 and 2006, the Company recorded a liability for derivative instruments of approximately $186,000 and $916,000, respectively.  None of the positions open at October 31, 2007 and 2006 are designated as cash flow or fair value hedges.  The Company has recorded a loss of approximately $2,654,000 and $747,000 in cost of goods sold related to its derivative instruments for fiscal 2007 and 2006, respectively.  There were no corresponding gains and losses related to derivative instruments for fiscal 2005.

 

6. CONSTRUCTION IN PROGRESS

 

The Company capitalizes construction costs and construction period interest until the assets are placed in service. During fiscal 2007, 2006, and 2005, the Company capitalized interest during the construction period of approximately $2,901,000, $643,000 and $18,000, respectively.  Capitalized interest includes deferred loan costs that are amortized over the life of the loans, which totaled approximately $99,000 and $152,000 during fiscal 2007 and 2006, respectively.  Loan cost amortization was not significant during 2005.

 

7.  LINE OF CREDIT

 

The Company has a line of credit for up to $7,500,000, subject to certain borrowing base requirements, due November 2008.  In May 2007, the line of credit was increased from $5,700,000.  Amounts available under the line of credit are reduced by outstanding standby letters of credit.  Interest accrues on borrowings at the one month LIBOR plus 3.25%, which totaled 9.07% and 8.58% at October 31, 2007 and 2006, respectively.  The Company has a .25% commitment fee on the unused portion of the line of credit.  At October 31, 2007 and 2006, outstanding borrowings on the line of credit balance equaled $6,974,235 and $848,060, respectively.  The Company has outstanding standby letters of credit of $400,000 at October 31, 2007.

 

The line of credit and the term note and revolving term note discussed in Note 8 are subject to a general security agreement with the lending institution bank.  The terms of this agreement require the Company to maintain certain financial ratios and covenants such as working capital and net worth requirements, minimum debt to equity and debt service coverage, and restrictions on distributions.  Borrowings under the agreement are secured by substantially all corporate assets.

 

8. NOTE PAYABLE – RELATED PARTY

 

In July 2007, the owner of the general contractor advanced approximately $4,203,000 to the Company for the purchase of inventory.  Interest on the note accrues at 8.75% and had a maturity date of December 2007.  The Company repaid the note in November 2007.

 

F-15



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

9.  LONG-TERM DEBT

 

Long-term debt consists of the following at October 31:

 

 

 

2007

 

2006

 

 

 

 

 

 

 

Term note payable to lending institution, see terms below.

 

$

59,583,000

 

$

 

 

 

 

 

 

 

Revolving term note payable to lending institution, see terms below.

 

1,116,505

 

 

 

 

 

 

 

 

Construction note payable to lending institution, see terms below.

 

 

5,690,000

 

 

 

 

 

 

 

Note payable to Jackson County with interest at 4.00%, forgivable two years after plant completion based upon job creation thresholds at specified wages as part of the plant development, but no later than November 1, 2009. If the Company fails to meet the terms of the note, principal and accrued interest will be due and payable on November 1, 2009.

 

100,000

 

100,000

 

 

 

 

 

 

 

Assessment payable as part of water treatment agreement described in Note 14, due in semi-annual installments of $189,393 with interest at 6.55%, enforceable by statutory lien, with the final payment due in 2021. The Company is required to make deposits over 24 months, which began in January 2007, for one years worth of debt service payments that are held on deposit to be applied with the final payments of the assessment.

 

3,326,250

 

3,550,000

 

 

 

 

 

 

 

Assessment payable as part of water treatment agreement described in Note 14, due in semi-annual installments of $25,692 with interest at 0.50%, enforceable by statutory lien, with the final payment due in 2016.

 

451,115

 

 

 

 

 

 

 

 

Assessment payable as part of water supply agreement described in Note 14, due in monthly installments of $4,126 with interest at 8.73%, enforceable by statutory lien, with the final payment due in 2019.

 

354,229

 

 

 

 

 

 

 

 

Note payable for equipment, with monthly payments of $3,676 including effective interest of 6.97%, due in April 2011, secured by equipment.

 

97,861

 

 

Totals

 

65,028,960

 

9,340,000

 

Less amounts due within one year

 

2,747,061

 

5,836,241

 

 

 

 

 

 

 

Net long-term debt

 

$

62,281,899

 

$

3,503,759

 

 

F-16



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

Construction and Term Notes Payable

 

In September 2005, the Company obtained debt financing from a lending institution in the form of a construction loan and line of credit, as described in Note 7.  In December 2006, the construction loan was amended to increase the amounts available up to $64,583,000.  The construction loan incurred interest at the one-month LIBOR plus 3.25%, which totaled 8.58% at October 31, 2006. The construction loan converted to a $59,583,000 term note and a $5,000,000 revolving term note in October 2007.

 

The term note requires interest only payments from November 2007 to April 2008 at the one-month LIBOR plus 3.25%, which totaled 9.07% at October 31, 2007.  Beginning in May 2008, the Company will make equal monthly payments of principal and interest to amortize the note over a period not to exceed ten years, with a final balloon payment due in October 2012.  In addition, the Company is required to make additional payments on the term note of excess cash flow, as defined in the agreement, up to $2,000,000 per year to the lending institution until the Company meets a specified financial ratio.   As part of the debt financing, the premium above LIBOR may be reduced based on the ratio of members’ equity to assets.

 

The term note, the revolving term note described below, and the line of credit described in Note 7 are subject to a common credit agreement containing various financial and non-financial covenants that limit distributions, require minimum debt service coverage, net worth and working capital requirements and are secured by a security agreement on all of the Company’s business assets.  The owner of the general contractor has guaranteed approximately $3,740,000 of the term note and revolving term note.

 

Revolving Term Note

 

The Company has a revolving term note with the same lending institution for up to $5,000,000 for cash and inventory management purposes.  The Company pays interest on principal advances monthly at the one-month LIBOR rate plus 3.25%, which totaled 9.07% at October 31, 2007.  The availability under this note declines by $500,000 annually beginning in October 2008 until October 2011 when it will be $3,000,000 until the maturity in October 2012.  The Company pays a commitment fee of 0.35% per annum on the unused portion of the revolving term note.

 

At October 31, 2007, the Company was not in compliance with the debt covenant related to the annual submission of financial statements within 120 days. The lender waived compliance for this violation.

 

Estimated maturities of long-term debt at October 31, 2007 are as follows:

 

2008

 

$

2,747,061

 

2009

 

5,107,033

 

2010

 

4,981,872

 

2011

 

5,260,566

 

2012

 

44,034,155

 

After 2012

 

2,898,273

 

 

 

 

 

Total long-term debt

 

$

65,028,960

 

 

F-17



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

10.  MEMBERS’ EQUITY

 

The Company is authorized to issue 50,000,000 capital units, of which 28,750,000 have been designated Class A units, 11,250,000 have been designated as Class B units, and 10,000,000 have not yet been designated.  Members shall exercise their voting power in proportion to units held without regard to class, and are entitled to one vote for each unit held, subject to the appointment rights to the Board as provided in the Member Control Agreement.  No member may transfer all or any portion of an interest without prior written consent of the Board of Governors.  Subject to the Member Control Agreement, all units share equally in the profits and losses, distributions of assets, and voting rights on a per unit basis.

 

The Company was initially capitalized by contributions from its founding members and additional seed capital investors.  The founding members contributed $94,750 in exchange for 189,500 Class A units.  In addition, 122 members contributed an additional $39,750 for 79,500 Class A units.

 

Private Placement Memorandum

 

The Company issued a Private Placement Memorandum dated March 24, 2004 for the sale of 1,000,000 Class A units.  The units were offered at a price of $1.00 per unit.  All 1,000,000 units were sold and issued at April 30, 2004.

 

In April 2004, the Company issued 28,750 Class A units in exchange for a $50,000 contribution from Minnesota Soybean Processors as part of the agreement described in Note 13.

 

In connection with an amendment to the Articles of Organization in June 2004, members had the temporary right to demand payment for the fair value of their units. Members had thirty days to exercise the redemption right.  The Company determined the fair value of these units was equal to the amount of capital contribution with respect of such units.  The Company had 27 members exercise their redemption rights, which resulted in a total reduction of 13,500 Class A units and contributed capital of $6,750.  In addition, the Company redeemed 21,000 Class A units for $10,500 of a Governor who resigned.  The Company redeemed at total of 34,500 Class A units for $17,500.  All redemption rights ended in July 2004.

 

Warrants

 

The Company authorized warrants for 25,000 Class A units to the existing nine members of the Board of Governors.  The warrants granted to each member of the Board of Governors the right to purchase 25,000 Class A units at an exercise price of $.80 per unit.  The warrants vested at financial closing in fiscal 2005 and were exercisable for a period of five years thereafter.  The warrants were subject to forfeiture if the Governor did not continuously remain a Governor up to financial closing.  The Company recorded compensation expense of approximately $69,000 in fiscal 2005 related to the warrants.  These units were not used in the computation of net loss per unit for fiscal 2007, 2006, or 2005 as they would have been anti-dilutive.  All of the warrants were exercised in August 2007 whereby the Company received $180,000.

 

F-18



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

Registration Statement

 

The Company prepared a Registration Statement in Minnesota offering 20,000,000 Class A units for $40,000,000 and was declared effective in September 2004.  The offering included subscription incentives for early investment by providing investors who invested by pre-determined dates with additional units.  On January 29, 2005, the Company closed the offering, having raised $40,000,000 in exchange for 21,604,875 Class A, units and funds were released from escrow in October 2005.  Included in the $40,000,000 was $4,100,000 invested by an affiliate of the general contractor.

 

In October 2005, the Company issued 255,000 Class A units valued at $500,000 as partial payment for land owned by a member, as described in Note 13.

 

In November 2005, the Company issued 6,500 Class A units valued at $13,000 as partial payment for a land easement from a member, as described in Note 13.

 

In December 2006, an affiliate of the general contractor invested an additional $7,500,000 in exchange for 3,750,000 Class A units, as described in Note 13.

 

At October 31, 2007, the Company had 27,104,625 Class A units issued and outstanding.

 

11. LEASES

 

The Company leases equipment, primarily rail cars, under operating leases through 2017.  Equipment under operating lease primarily represents rail cars for which the rentals began in August 2007.  Rent expense for fiscal 2007, 2006, and 2005 was approximately $225,000, $9,000 and $4,000, respectively.

 

At October 31, 2007, the Company had the following minimum future lease payments, which at inception had non-cancelable terms of more than one year:

 

2007

 

$

840,228

 

2008

 

837,352

 

2009

 

831,600

 

2010

 

831,600

 

2011

 

831,600

 

After 2011

 

4,019,400

 

 

 

 

 

Total lease commitments

 

$

8,191,780

 

 

F-19



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

12. INCOME TAXES

 

The differences between consolidated financial statement basis and tax basis of assets were as follows at October 31:

 

 

 

2007

 

2006

 

 

 

 

 

 

 

Consolidated financial statement basis of assets

 

$

133,959,958

 

$

68,778,585

 

Plus:  Organization and start-up costs capitalized

 

4,328,425

 

2,392,439

 

Plus:  Warrant compensation expense

 

 

69,000

 

Less:  Accumulated tax depreciation and amortization greater than financial statement basis

 

(1,858,200

)

(256,322

)

 

 

 

 

 

 

Income tax basis of assets

 

$

136,430,183

 

$

70,983,702

 

 

 

 

2007

 

2006

 

 

 

 

 

 

 

Consolidated financial statement basis of liabilities

 

$

91,994,817

 

$

29,045,158

 

Less: Unrealized losses on derivatives

 

(186,238

)

(915,533

)

Less: Accrued expenses

 

(71,311

)

 

 

 

 

 

 

 

Income tax basis of liabilities

 

$

91,737,268

 

$

28,129,625

 

 

13. RELATED PARTY TRANSACTIONS

 

The Company purchased a parcel of land in fiscal 2005 from a member of the Company that is adjacent to the site where the ethanol plant is being built.  The land was purchased for $1,500,000 with $500,000 of the purchase price being paid for with the issuance of 255,000 Class A units of the Company.

 

In November 2005, the Company entered into an agreement with a member for a perpetual easement across the member’s land for $14,000, consisting of $1,000 in cash and 6,500 Class A units in the Company.

 

An affiliate of the general contractor of the plant became a member of the Company during fiscal 2005 by investing $4,100,000.  In December 2006, the affiliate invested an additional $7,500,000 in exchange for 3,750,000 Class A units.  The Company incurred approximately $81,287,000 in costs related to the design-build agreement and change orders as described in Note 14.  The Company was advanced approximately $4,203,000 from the owner of the general contractor for the purchase of inventory as described in Note 8, which was repaid in November 2007.

 

In May 2006, the Company purchased land and buildings from a member for $500,000 that is adjacent to the site where the ethanol plant is being built.

 

In December 2006, the Company entered into an agreement with a member to construct an electrical substation for approximately $1,020,000.  In November 2007, the Company obtained a loan from this member as described in Note 15.

 

F-20



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

The Company purchased approximately $8,836,000 and $1,218,000 of corn from members in fiscal 2007 and 2006, respectively.

 

14. COMMITMENTS AND CONTINGENCIES

 

Plant Construction

 

In October 2005, the Company signed a lump-sum design-build agreement with a general contractor, who is a related party, for approximately $76,700,000.  Change orders are provided in the design-build agreement upon mutual agreement and have raised the total costs to approximately $81,287,000.  Monthly applications are submitted for work performed.  Final payment will be due once the plant meets certain operating performance criteria.  The design-build agreement included a provision whereby the general contractor receives an early completion bonus of $10,000 per day for each day the construction is complete prior to 470 days.  In addition, the general contractor will owe the Company liquidated damages of $20,000 per day for each day construction is not complete after 500 days, limited to $10,000,000.  No amounts have been recorded based on the completion date of the plant.  The ethanol plant must meet certain performance and emission standards and the general contractor retains liability for failure to meet these standards along with potential liquidated damages.  The Company is undergoing performance testing in early 2008 and has not yet determined if any liquidated damages will be owed to the Company.

 

Water Agreements

 

In October 2003, the Company entered into an industrial water supply development and distribution agreement with the City of Heron Lake for 15 years.  The Company will have the exclusive rights to the first 600 gallons per minute of capacity that is available from the well, and provides for the Company, combined with Minnesota Soybean Processors (MnSP), to approve any other supply contracts that the City may enter into. In consideration, the Company will pay one half of the City’s water well bond payments of $735,000, plus a 5% administrative fee, totaling approximately $594,000, and operating costs, relative to the Company’s water usage, plus a 10% profit.  These costs will be paid as water usage fees at such time as the plant becomes operational.  The Company has recorded an assessment of approximately $367,000 with long-term debt as described in Note 9.  The Company pays operating and administrative expenses of approximately $12,000 per year.

 

In November 2003, the Company entered into a water supply agreement with MnSP.  The agreement provides for the inclusion of MnSP in the aforementioned water supply agreement with the City of Heron Lake, with additional obligations to the City that MnSP has agreed to.  In consideration for being included in this agreement and $50,000 worth of capital units, which was agreed to be 28,750 units, MnSP paid the Company $100,000.

 

In May 2006, the Company entered into a water treatment agreement with the City of Heron Lake and Jackson County for 30 years.  The Company will pay for operating and maintenance costs of the plant in exchange for receiving treated water.  In addition, the Company agreed to an assessment for a portion of the capital costs of the water treatment plant.  The Company has recorded assessments with long-term debt of $500,000 and $3,550,000 in fiscal 2007 and 2006, respectively, as described in Note 9.  The Company pays operating and maintenance expenses of approximately $205,000 per year.

 

F-21



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

Marketing Agreements

 

The Company has a marketing agreement with an unrelated party for the exclusive right to market, sell and distribute the entire ethanol inventory produced by the Company.  The Company will pay a marketing fee of $.01 per gallon.  The initial term is for two years with renewal options thereafter.  The Company would assume certain rail car leases if the agreement is not renewed.

 

The Company has a distiller’s grain marketing agreement with an unrelated party to purchase all of the Company’s distillers grains.  The agreement provides for predetermined formulas for the sale of distiller’s grains and solubles.  The initial term is for one year after operations commenced and is terminable thereafter with 90 days written notice.

 

Legal Proceeding

 

The Company was subject to a legal challenge from three special interest groups related to its air-emissions permit for the plant.  The permit and subsequent amendment were issued by the Minnesota Pollution Control Agency and were appealed to the Minnesota Court of Appeals and Minnesota Supreme Court.  The Minnesota Court of Appeals affirmed the issuance of the permit in 2006.  In fiscal 2007, the Minnesota Supreme Court dismissed the appeal after the Company agreed to expand their air permit to a major emissions source.  The application for the major source permit was filed in August 2007.

 

Contractual Obligations

 

The following table provides information regarding the consolidated contractual obligations of the Company as of October 31, 2007:

 

 

 

Total

 

Less than
One Year

 

One to Three
Years

 

Three to
Five Years

 

Greater
Than Five
Years

 

Long-term debt obligations (1)

 

$

86,121,369

 

$

5,562,298

 

$

19,582,006

 

$

57,065,002

 

$

3,912,063

 

Operating lease obligations

 

8,191,780

 

840,228

 

1,668,952

 

1,663,200

 

4,019,400

 

Purchase obligations (2)

 

43,636,534

 

19,098,559

 

14,412,766

 

10,125,209

 

 

Total contractual obligations

 

$

137,949,683

 

$

25,501,085

 

$

35,663,724

 

$

68,853,411

 

$

7,931,463

 

 


(1)           Long-term debt obligations include estimated interest and interest on unused debt.

(2)           Purchase obligations primarily include forward contracts for corn and coal.

 

The Company also has agreements to pay for the operating costs and maintenance expenses associated with the water agreement of approximately $12,000 and $205,000 per year with term lengths of approximately 15 and 30 years, respectively.

 

The Company has coal supply agreements with a minimum commitment of approximately $4,950,000 per year until May 2012, including transportation, with provisions for fuel surcharges and adjustments for inflation.  The amounts related to these agreements are included with purchase obligations in the table above.

 

F-22



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

October 31, 2007 and 2006

 

15.  SUBSEQUENT EVENTS

 

In November 2007, the Company obtained a loan for $600,000 from an electrical company, which is also an investor in the Company.  The loan was passed through from government entity that the electrical company received.  The loan requires 60 monthly payments of $6,250 with a 1% per year fee beginning in October 2009.

 

In November 2007, the Company was awarded and subsequently obtained a loan for $1,850,000 from a separate electrical company.  The loan was for electrical equipment previously installed by the Company.  The loan requires monthly payments of approximately $30,000 with implicit interest of 1.50% until December 2013.  The loan requires an additional $140,000 payment after the first year of the loan.  In addition, the loan is secured by equipment and approximately $1,710,000 maintained in escrow as part of the agreement.

 

F-23



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Condensed Consolidated Balance Sheets

 

 

 

April 30, 2008

 

October 31, 2007

 

 

 

(Unaudited)

 

 

 

ASSETS

 

 

 

 

 

Current Assets

 

 

 

 

 

Cash and equivalents

 

$

5,914,456

 

$

3,090,329

 

Restricted cash

 

421,391

 

221,350

 

Accounts receivable

 

4,922,080

 

1,954,126

 

Inventory

 

10,591,138

 

18,991,390

 

Derivative instruments

 

228,039

 

 

Prepaid expenses

 

886,552

 

124,858

 

Total current assets

 

22,963,656

 

24,382,053

 

 

 

 

 

 

 

Property and Equipment

 

 

 

 

 

Land and improvements

 

12,394,525

 

12,283,575

 

Plant buildings and equipment

 

97,066,987

 

96,859,303

 

Vehicles and other equipment

 

622,521

 

661,272

 

Office buildings and equipment

 

573,596

 

566,928

 

 

 

110,657,629

 

110,371,078

 

Accumulated depreciation

 

(4,284,973

)

(1,518,157

)

 

 

106,372,656

 

108,852,921

 

 

 

 

 

 

 

Other Assets

 

 

 

 

 

Deferred loan costs, net

 

512,578

 

572,234

 

Restricted cash

 

1,273,812

 

 

Debt service deposits and other

 

243,800

 

152,750

 

Total other assets

 

2,030,190

 

724,984

 

 

 

 

 

 

 

Total Assets

 

$

131,366,502

 

$

133,959,958

 

 

Notes to Condensed Consolidated Financial Statement are an integral part of this Statement.

 

F-24



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Condensed Consolidated Balance Sheets

 

 

 

April 30, 2008

 

October 31, 2007

 

 

 

(Unaudited)

 

 

 

LIABILITIES AND MEMBERS’ EQUITY

 

 

 

 

 

Current Liabilities

 

 

 

 

 

Checks written in excess of bank balance

 

$

 

$

514,633

 

Line of credit

 

4,900,000

 

6,974,235

 

Note payable - related party

 

 

4,202,930

 

Current maturities of long-term debt

 

5,923,065

 

2,747,061

 

Accounts payable:

 

 

 

 

 

Trade accounts payable

 

1,798,635

 

8,610,097

 

Trade accounts payable - related party

 

76,344

 

1,435,520

 

Construction payable

 

 

349,042

 

Construction payable - related party

 

3,832,555

 

3,839,413

 

Accrued expenses

 

682,142

 

853,750

 

Derivative instruments

 

 

186,237

 

Total current liabilities

 

17,212,741

 

29,712,918

 

 

 

 

 

 

 

Long-Term Debt, net of current maturities

 

61,472,802

 

62,281,899

 

 

 

 

 

 

 

Commitments and Contingencies

 

 

 

 

 

 

 

 

 

 

 

Members’ Equity , 27,104,625 units outstanding

 

52,680,959

 

41,965,141

 

 

 

 

 

 

 

Total Liabilities and Members’ Equity

 

$

131,366,502

 

$

133,959,958

 

 

Notes to Condensed Consolidated Financial Statement are an integral part of this Statement.

 

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Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Condensed Consolidated Statements of Operations

 

 

 

Six Months

 

Six Months

 

 

 

Ended

 

Ended

 

 

 

April 30, 2008

 

April 30, 2007

 

 

 

(Unaudited)

 

(Unaudited)

 

 

 

 

 

 

 

Revenues

 

$

65,571,665

 

$

6,002,494

 

 

 

 

 

 

 

Cost of Goods Sold

 

50,655,715

 

7,529,077

 

 

 

 

 

 

 

Gross Profit

 

14,915,950

 

(1,526,583

)

 

 

 

 

 

 

Operating Expenses

 

1,577,664

 

1,216,401

 

 

 

 

 

 

 

Operating Income (Loss)

 

13,338,286

 

(2,742,984

)

 

 

 

 

 

 

Other Income (Expense)

 

 

 

 

 

Interest income

 

37,665

 

2,594

 

Interest expense

 

(2,692,798

)

(210,572

)

Other income

 

32,665

 

3,401

 

Total other expense, net

 

(2,622,468

)

(204,577

)

 

 

 

 

 

 

Net Income (Loss)

 

$

10,715,818

 

$

(2,947,561

)

 

 

 

 

 

 

Weighted Average Units Outstanding - Basic and Diluted

 

27,104,625

 

25,740,122

 

 

 

 

 

 

 

Net Income (Loss) Per Unit - Basic and Diluted

 

$

0.40

 

$

(0.11

)

 

Notes to Condensed Consolidated Financial Statement are an integral part of this Statement.

 

F-26



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Condensed Consolidated Statements of Cash Flows

 

 

 

Six Months

 

Six Months

 

 

 

Ended

 

Ended

 

 

 

April 30, 2008

 

April 30, 2007

 

 

 

(Unaudited)

 

(Unaudited)

 

Cash Flow From Operating Activities

 

 

 

 

 

Net income (loss)

 

$

10,715,818

 

$

(2,947,561

)

Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:

 

 

 

 

 

Depreciation and amortization

 

2,844,472

 

176,908

 

Change in fair value of derivative instruments

 

(116,284

)

(65,968

)

Gain on disposal of assets

 

(16,500

)

(2,800

)

Change in assets and liabilities:

 

 

 

 

 

Restricted cash

 

143,445

 

438,250

 

Accounts receivable

 

(2,967,954

)

(218,025

)

Inventory

 

8,400,252

 

(2,223,601

)

Derivative instruments

 

(297,992

)

(664,310

)

Prepaid expenses

 

(761,694

)

(13,942

)

Accounts payable

 

(8,170,638

)

(1,936,681

)

Accrued expenses

 

(171,608

)

245,498

 

Net cash provided by (used in) operating activities

 

9,601,317

 

(7,212,232

)

 

 

 

 

 

 

Cash Flows from Investing Activities

 

 

 

 

 

Proceeds from sale of assets

 

43,500

 

2,800

 

Capital expenditures

 

(687,451

)

(5,751,610

)

Net cash used in investing activities

 

(643,951

)

(5,748,810

)

 

 

 

 

 

 

Cash Flows from Financing Activities

 

 

 

 

 

Checks written in excess of bank balance

 

(514,633

)

(523,605

)

Proceeds from line of credit, net

 

(2,074,235

)

4,851,175

 

Payments from note payable - related party

 

(4,202,930

)

 

Proceeds from long-term debt

 

3,289,176

 

 

Payments on long-term debt

 

(2,632,269

)

 

Payments for loan costs

 

 

(73,234

)

Debt service deposits included with other assets

 

(91,050

)

(60,700

)

Release of restricted cash

 

92,702

 

 

Member contributions

 

 

7,500,000

 

Net cash provided by (used in) financing activities

 

(6,133,239

)

11,693,636

 

 

 

 

 

 

 

Net Increase (Decrease) in cash and equivalents

 

2,824,127

 

(1,267,406

)

 

 

 

 

 

 

Cash and Equivalents - Beginning of period

 

3,090,329

 

2,624,064

 

 

 

 

 

 

 

Cash and Equivalents - End of period

 

$

5,914,456

 

$

1,356,658

 

 

 

 

 

 

 

Supplemental Disclosure of Cash Flow Information

 

 

 

 

 

Interest expense paid

 

$

2,863,338

 

$

210,572

 

Interest capitalized paid

 

 

830,303

 

Total interest paid

 

$

2,863,338

 

$

1,040,875

 

 

 

 

 

 

 

Supplemental Disclosure of Non-Cash Activities

 

 

 

 

 

Restricted cash from long-term debt proceeds

 

$

1,710,000

 

$

 

Property and equipment financed by long-term debt

 

$

 

$

29,041,776

 

Assessment payable related to property and equipment

 

$

 

$

867,500

 

Loan costs capitalized with property and equipment

 

$

 

$

55,210

 

Construction payables refinanced with long-term debt

 

$

 

$

6,927,708

 

 

Notes to Consolidated Financial Statements are an integral part of this Statement.

 

F-27



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

April 30, 2008

 

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Nature of Business

 

The Company is organized to fund and construct a 50 million gallon ethanol plant near Heron Lake, Minnesota with ethanol distribution to upper Midwest states.  In addition, the Company produces and sells distillers grains with solubles as co-products of ethanol production.  The Company began its ethanol plant operations in September 2007.  Prior to September 2007, the Company was in the development stage.  Since the plant did not commence ethanol operations until September 2007, the Company sold and distributed corn and other grains of approximately $4,438,000 and $6,003,000 in the six months ended April 30, 2008 and 2007, respectively.  The Company expects future revenue from grain merchandising to decline significantly.

 

Basis of Presentation

 

These condensed consolidated financial statements and related notes should be read in conjunction with the consolidated financial statements and notes included in the Company’s audited consolidated financial statements for the year ended October 31, 2007, contained elsewhere in this Form 10.

 

The condensed consolidated interim financial statements are unaudited.  These statements included all adjustments (consisting of normal recurring accruals) that we consider necessary to present a fair statement of the results of operations, financial position, and cash flows.  The results reported in these condensed consolidated financial statements should not be regarded as necessarily indicative of results that may be expected for the entire year.

 

Principles of Consolidation

 

The financial statements include the accounts of Heron Lake BioEnergy, LLC and its wholly owned subsidiary, Lakefield Farmers Elevator, LLC, collectively, the “Company.”  All significant intercompany balances and transactions are eliminated in consolidation.

 

Accounting Estimates

 

Management uses estimates and assumptions in preparing these financial statements in accordance with generally accepted accounting principles.  Those estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the reported revenues and expenses.  Actual results could differ from those estimates.

 

Revenue Recognition

 

Revenue from sales is recorded when title and risk of ownership transfers to the customer.  The title transfers when the product is loaded into the railcar or truck, the customer takes ownership and assumes risk of loss.  Shipping costs incurred by the Company in the sale of ethanol are not specifically identifiable and as a result, revenue from the sale of ethanol and distillers grains are recorded based on the net selling price reported to the Company from the marketers.  Revenues are recorded net of commissions of approximately $472,000 for the six months ended April 30, 2008.

 

F-28



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

April 30, 2008

 

The Company also receives revenue from grain storage and drying, which is based on standard storage and drying contract terms.

 

Derivative Instruments

 

The Company accounts for derivative instruments and hedging activities in accordance with Statement of Financial Accounting Standards (SFAS) No. 133, Accounting for Derivative Instruments and Hedging Activities , as amended. SFAS No. 133 requires a company to evaluate its contracts to determine whether the contracts are derivatives.  Certain contracts that literally meet the definition of a derivative may be exempted from SFAS No. 133 as normal purchases or normal sales.  Normal purchases and normal sales are contracts that provide for the purchases or sale of something other than a financial instrument or derivative instrument that will be delivered in quantities expected to be used or sold over a reasonable period in the normal course of business.  Contracts that meet the requirements of normal are documented as normal and exempted from accounting and reporting requirements of SFAS No. 133, and therefore, are not marked to market in our financial statements.

 

In order to reduce the risk caused by market fluctuations of corn and ethanol, the Company may use option, futures and swap contracts.  These contracts are used to fix the price of the Company’s anticipated purchases of corn or sales of ethanol.  The fair value of these contracts is based on quoted prices in active exchange-traded or over-the-counter markets.  The fair value of the derivatives is continually subject to change due to the changing market conditions.  The Company does not typically enter into derivative instruments other than for hedging purposes.  On the date the derivative instrument is entered into, the Company will designate the derivative as a hedge.  Changes in the fair value of a derivative instrument that is designated as, and meets all of the required criteria, for a cash flow or fair value hedge is recorded in accumulated other comprehensive income and reclassified into earnings as the hedged items affect earnings.  Changes in the fair value of a derivative instrument that are not designated as, and accounted for, as a cash flow or fair value hedge are recorded in current period earnings.  Although certain derivative instruments may not be designated as, and accounted for, as a cash flow or fair value hedge, they are economic hedges of specified risks.

 

Recently Issued Accounting Pronouncements

 

In March 2008, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards No. 161 (SFAS No. 161), Disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement No. 133 . SFAS 161 applies to all derivative instruments and nonderivative instruments that are designated and qualify as hedging instruments pursuant to paragraphs 37 and 42 of SFAS 133 and related hedged items accounted for under SFAS 133. SFAS 161 requires entities to provide greater transparency through additional disclosures about how and why an entity uses derivative instruments, how derivative instruments and related hedged items are accounted for under SFAS 133 and its related interpretations, and how derivative instruments and related hedged items affect an entity’s financial position, results of operations, and cash flows. SFAS 161 is effective as of the beginning of an entity’s first fiscal year that begins after November 15, 2008. The Company currently plans to adopt SFAS 161 during its 2009 fiscal year.  The Company does not believe that implementation of this standard will have a material impact on its consolidated financial position, results of operations or cash flows.

 

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Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

April 30, 2008

 

In May 2008, the FASB issued Statement of Financial Accounting Standards No. 162 (SFAS No. 162), “The Hierarchy of Generally Accepted Accounting Principles.” This Statement identifies the sources of accounting principles and the framework for selecting the principles to be used in the preparation of financial statements of nongovernmental entities that are presented in conformity with generally accepted accounting principles in the United States. This Statement is effective 60 days following the SEC’s approval of the Public Company Accounting Oversight Board amendments to AU Section 411, The Meaning of Present Fairly in Conformity With Generally Accepted Accounting Principles .  The Company does not believe that implementation of this standard will have a material impact on its consolidated financial position, results of operations or cash flows.

 

3.  INVENTORY

 

Inventory consists of the following at:

 

 

 

April 30
2008

 

October 31
2007*

 

 

 

 

 

 

 

Raw materials

 

$

8,134,622

 

$

14,922,916

 

Work in process

 

926,684

 

899,160

 

Finished goods

 

926,422

 

1,050,411

 

Supplies

 

373,618

 

160,840

 

Other grains

 

229,792

 

1,958,063

 

Totals

 

$

10,591,138

 

$

18,991,390

 

 


* Derived from audited consolidated financial statements.

 

2. DERIVATIVE INSTRUMENTS

 

At April 30, 2008 and October 31, 2007, the Company recorded an asset for derivative instruments of approximately $228,000 and a liability of approximately $186,000, respectively.  None of the positions open at April 30, 2008 and October 31, 2007 was designated as cash flow or fair value hedges.  The Company offset revenue with a loss of approximately $906,000 related to its ethanol derivative instruments for the six months ended April 30, 2008.  The Company did not incur any gains or losses related to revenue for the six months ended April 30, 2007.  The Company recorded a gain of approximately $2,234,000 and a loss of approximately $2,566,000 in cost of goods sold related to its corn derivative instruments for the six months ended April 30, 2008 and 2007, respectively.

 

3.  LINE OF CREDIT

 

The Company has a line of credit for up to $7,500,000, subject to certain borrowing base requirements, due November 2008.  Amounts available under the line of credit are reduced by outstanding standby letters of credit.  Interest accrues on borrowings at the one month LIBOR plus 3.25%, which totaled 5.98% and 9.07% at April 30, 2008 and October 31, 2007, respectively.  The Company has a .25% commitment fee on the unused portion of the line of credit.  At April 30, 2008 and October 31, 2007, outstanding borrowings on the line of credit were approximately $4,900,000 and $6,974,000 respectively.  The Company has outstanding standby letters of credit of $400,000 at April 30, 2008.

 

F-30



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

April 30, 2008

 

The line of credit and the term note and revolving term note discussed in Note 5 are subject to a general security agreement with the lending institution bank. The terms of this agreement require the Company to maintain certain financial ratios and covenants such as working capital and net worth requirements, minimum debt to equity and debt service coverage, and restrictions on distributions.  Borrowings under the agreement are secured by substantially all of the Company’s assets.

 

4.  NOTE PAYABLE – RELATED PARTY

 

In July 2007, the owner of the general contractor advanced approximately $4,203,000 to the Company for the purchase of inventory.  Interest on the note accrued at 8.75% and had a maturity date of December 2007.  The Company repaid the note in November 2007.

 

5.  LONG-TERM DEBT

 

Long-term debt consists of the following at:

 

 

 

April 30

 

October 31

 

 

 

2008

 

2007*

 

 

 

 

 

 

 

Term note payable to lending institution, see terms below.

 

$

59,583,000

 

$

59,583,000

 

 

 

 

 

 

 

Revolving term note payable to lending institution, see terms below.

 

1,165,681

 

1,116,505

 

 

 

 

 

 

 

Note payable to Jackson County with interest at 4.00%, forgivable two years after plant completion based upon job creation thresholds at specified wages as part of the plant development, but no later than November 1, 2009. If the Company fails to meet the terms of the note, principal and accrued interest will be due and payable on November 1, 2009.

 

100,000

 

100,000

 

Balance forward

 

$

60,848,681

 

$

60,799,505

 

 

F-31



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

April 30, 2008

 

 

 

April 30

 

October 31

 

 

 

2008

 

2007*

 

Balance from previous page

 

$

 60,848,681

 

$

 60,799,505

 

 

 

 

 

 

 

Assessment payable as part of water treatment agreement, due in semi-annual installments of $189,393 with interest at 6.55%, enforceable by statutory lien, with the final payment due in 2021. The Company is required to make deposits over 24 months, which began in January 2007, for one years’ worth of debt service payments that are held on deposit to be applied with the final payments of the assessment.

 

3,326,250

 

3,326,250

 

 

 

 

 

 

 

Assessment payable as part of water treatment agreement, due in semi-annual installments of $25,692 with interest at 0.50%, enforceable by statutory lien, with the final payment due in 2016.

 

451,115

 

451,115

 

 

 

 

 

 

 

Assessment payable as part of water supply agreement, due in monthly installments of $4,126 with interest at 8.73%, enforceable by statutory lien, with the final payment due in 2019.

 

344,556

 

354,229

 

 

 

 

 

 

 

Note payable for equipment, with monthly payments of $3,676 including effective interest of 6.97%, due in April 2011, secured by equipment.

 

85,321

 

97,861

 

 

 

 

 

 

 

Note payable to electrical provider, with monthly payments of $29,775 including implicit interest of 1.50%, due in December 2013, secured by equipment and restricted cash.

 

1,739,944

 

 

 

 

 

 

 

 

Note payable to electrical company with monthly payments beginning in October 2009 of $6,250 with a 1% maintenance fee due each October, due September 2017. The electrical company is a member of the Company.

 

600,000

 

 

 

 

 

 

 

 

Totals

 

67,395,867

 

65,028,960

 

Less amounts due within one year

 

5,923,065

 

2,747,061

 

 

 

 

 

 

 

Net long-term debt

 

$

61,472,802

 

$

62,281,899

 

 


* Derived from audited consolidated financial statements.

 

F-32



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

April 30, 2008

 

Term Note Payable

 

The term note required interest only payments from November 2007 to April 2008 at the one-month LIBOR plus 3.25%, which totaled 5.98% and 9.07% at April 30, 2008 and October 31, 2007, respectively.  In May 2008, the Company locked in an interest rate of 3.58% plus 3.00%, which totals 6.58% on $45,000,000 of the note, for three years ending April 30, 2011.  The Company will make equal monthly payments of principal and interest of approximately $702,000 to amortize the note over a period not to exceed ten years, with a final balloon payment due in October 2012.  In addition, the Company is required to make additional payments on the term note of excess cash flow, as defined in the agreement, up to $2,000,000 per year to the lending institution until the Company meets a specified financial ratio.  As part of the debt financing, the premium above LIBOR may be reduced based on the ratio of members’ equity to assets.

 

The term note, the revolving term note described below, and the line of credit described in Note 3 are subject to a common credit agreement containing various financial and non-financial covenants that limit distributions, require minimum debt service coverage, net worth and working capital requirements and are secured by a security agreement on all of the Company’s business assets.  The owner of the general contractor has guaranteed approximately $3,740,000 of the term note and revolving term note.

 

Revolving Term Note

 

The Company has a revolving term note with the same lending institution for up to $5,000,000 for cash and inventory management purposes.  The Company pays interest on principal advances monthly at the one-month LIBOR rate plus 3.25%, which totaled 5.98% and 9.07% at April 30, 2008 and October 31, 2007, respectively.  The availability under this note declines by $500,000 annually beginning in October 2008 until October 2011 when it will be $3,000,000 until the maturity in October 2012.  The Company pays a commitment fee of 0.35% per annum on the unused portion of the revolving term note.

 

Estimated maturities of long-term debt at April 30, 2008 are as follows:

 

2009

 

$

5,923,065

 

2010

 

6,241,916

 

2011

 

6,171,941

 

2012

 

6,378,942

 

2013

 

39,447,403

 

After 2013

 

3,232,600

 

 

 

 

 

Total long-term debt

 

$

67,395,867

 

 

F-33



Table of Contents

 

HERON LAKE BIOENERGY, LLC AND SUBSIDIARY

 

Notes to Consolidated Financial Statements

 

April 30, 2008

 

6. RELATED PARTY TRANSACTIONS

 

The Company was advanced approximately $4,203,000 from a member for the purchase of inventory as described in Note 4, which was repaid in November 2007.

 

The Company purchased approximately $18,760,000 and $711,000 of grain from members for the six months ended April 30, 2008 and 2007, respectively.

 

F-34


EXHIBIT 3.1

 

FIRST AMENDED AND RESTATED

 

ARTICLES OF ORGANIZATION

 

OF

 

HERON LAKE BIOENERGY, LLC

 

A LIMITED LIABILITY COMPANY ORGANIZED UNDER

MINNESOTA STATUTES, CHAPTER 322B

 



 

FIRST AMENDED AND RESTATED

 

ARTICLES OF ORGANIZATION

 

OF

 

HERON LAKE BIOENERGY, LLC

 

A LIMITED LIABILITY COMPANY ORGANIZED UNDER

MINNESOTA STATUTES, CHAPTER 322B

 

ARTICLE I

NAME AND REGISTERED OFFICE

 

The name of the limited liability company is Heron Lake BioEnergy, LLC. The address of the registered office and principal place of business of the limited liability company is 201 10 th Street, Heron Lake, Minnesota 56137, and its registered agent at that address is Robert J. Ferguson.

 

ARTICLE II

PURPOSE AND POWERS

 

The business and purpose of the limited liability company is (i) to engage in the development, financing, investment into, construction, ownership and operation of bio-energy facilities including ethanol production facilities, (ii) to pool, handle, deal, market, manufacture, process, or otherwise change the form or marketability of products of its members and others, including crops, livestock, and other agricultural products, (iii) to conduct any business and investment activity in which a limited liability company organized under the Minnesota Limited Liability Company Act and any successor statute thereto (the “Act”)  may lawfully be engaged, and (iv) to perform and conduct any and all activities necessary, related or incidental to the foregoing. The limited liability company shall possess and may exercise all the powers and privileges granted to the limited liability company by the Act or by any other law, subject to any limitations provided in these Articles or in a member control agreement of the limited liability company adopted or amended in accordance with the Act (a “Member Control Agreement”).

 

ARTICLE III

DURATION

 

Unless dissolved earlier according to law, the duration of the limited liability company shall be perpetual.

 

A-1



 

ARTICLE IV

CAPITAL

 

Section 4.1                                    Authorized Capital Units; Designation of Class A and Class B Units.

 

(a)                                   The limited liability company is authorized to issue 50,000,000 capital units. Capital units are the unit of measurement to quantify a unit holder’s share of the profits and losses of the limited liability company, a unit holder’s right to receive distributions of the assets of the limited liability company, and, with respect to a member, any right of the member to vote on or participate in the management of the limited liability company and to information concerning the business and affairs of the limited liability company.

 

(b)                                  Of the total number of authorized capital units, 25,000,000 capital units are hereby designated as Class A Units and 15,000,000 capital units are hereby designated Class B Units. The authorized capital units that are not designated herein as Class A or Class B Units may be designated as Class A Units or Class B Units by resolution of the Board of Governors, provided that a statement setting forth the name of the limited liability company and the text of the resolution and certifying the adoption of the resolution and the date of adoption shall be filed with the Secretary of State of the State of Minnesota before the acceptance of any capital contributions with respect to such capital units. The resolution is effective when the statement has been filed with the Secretary of State. A statement filed with the Secretary of State in accordance with this Section 4.1(b) shall not be considered an amendment of the Articles for purposes of Minnesota Statutes, Sections 322B.155 and 322B.383.

 

(c)                                   Subject to a Member Control Agreement, Class A and Class B Units will share profits and losses and distributions of assets equally on a per unit basis.

 

Section 4.2                                    Capital Contributions; Issuance of Units.

 

(a)                                   Each capital unit issued and outstanding as of the date these amended and restated Articles are adopted in accordance with the Act shall be and is hereby automatically converted into, and shall hereafter be deemed to be, a Class A Unit.

 

(b)                                  No member shall be obligated to make any additional capital contributions to the limited liability company or to pay any assessment to the limited liability company, other than the unpaid portion of such member’s written agreement to make capital contributions, and no capital units shall be subject to any mandatory assessment, requests or demands for capital.

 

(c)                                   Additional capital units may only be issued in consideration of capital contributions. The Board of Governors may accept capital contributions from members or persons seeking to become members, may authorize the limited liability company to enter into a written

 

A-2



 

subscription agreement with such member or persons seeking to become members to make capital contributions for the purchase of capital units, and may cause the limited liability company to issue additional capital units to such persons in consideration of capital contributions to the limited liability company. Subject to any consents, authorizations and requirements under these Articles or a Member Control Agreement, capital contributions and the issuance of additional capital units shall be made at such times and upon such terms and conditions as the Board of Governors and the person acquiring the capital units may agree.

 

(d)                                  Upon acceptance of capital contributions and the issuance of additional capital units, the Board shall cause the books and records of the limited liability company to be adjusted appropriately.

 

ARTICLE V

MEMBERSHIP

 

Section 5.1                                    Members; Rights and Powers Generally.

 

(a)                                   Members of the limited liability company are persons who are described in and meet the membership requirements established in or pursuant to this Article V or a Member Control Agreement and who have not ceased to be a member pursuant to the provisions of this Article V or such Member Control Agreement. As of the date these amended and restated Articles are effective in accordance with the Act, the members of the limited liability company are the persons who were members of the limited liability company immediately prior to such date as shown on the books and records of the limited liability company.

 

(b)                                  Additional persons may, upon the approval of the Board, become members of the limited liability company: (i) by submitting a completed subscription agreement to subscribe for capital units in the association upon the terms and conditions as may be set forth in the subscription agreement, and the acceptance thereof by the limited liability company, (ii) by meeting any and all requirements of membership established in or pursuant to this Article V or a Member Control Agreement, (iii) by submitting an executed counterpart signature agreeing to be bound by a Member Control Agreement, (iv) by submitting payment of the purchase price for the number of capital units subscribed for in the subscription agreement, in accordance with the terms of the subscription agreement, and (v) upon being admitted as a member by the Board; or in any other manner authorized in or pursuant to a Member Control Agreement. The Board may refuse to admit any person as a member in its sole discretion.

 

(c)                                   Transferees of capital units may become members provided they meet the membership requirements established in or pursuant to this Article V or a Member Control Agreement.

 

A-3



 

(d)                                  Each member of the limited liability company must own, or must have entered into a binding written agreement with and accepted by the limited liability company to subscribe for, a minimum of twenty five hundred (2,500) capital units, on and after the date that the limited liability company first issues capital units in connection with its closing on all or a portion of subscription agreements received and accepted in accordance with the terms of its initial public offering of capital units in the State of Minnesota or September 23, 2004, whichever occurs first. Failure of any member to own or to subscribe for such minimum number of capital units on or after such date shall result in the automatic termination of membership of such person, without further notice or action by the limited liability company, and such person shall become and be a non-member holder of capital units, with such financial rights with respect to the capital units they own as provided for in and subject to these Articles or a Member Control Agreement.

 

(e)                                   Additional qualifications and requirements of membership may be established in a Member Control Agreement or by the Board acting under authority granted by such Member Control Agreement.

 

(f)                                     Other than the right to elect or appoint governors to the Board, no member, other than a member acting in his, her or its capacity as an officer of the limited liability company, has any right or power to take part in the management or control of the limited liability company or its business and affairs. No member other than a member acting in his, her or its capacity as an officer of the limited liability company, has the authority or power to act for or on behalf of the limited liability company, to do any act that would be binding on the limited liability company, or to incur any expenditures on behalf of the limited liability company, except with the prior written consent of the Board.

 

(g)                                  No member shall have any voting right except with respect to those matters requiring a member vote or approval as specifically provided for in these Articles, in a Member Control Agreement, or as otherwise required by the Act. Subject to a Member Control Agreement, members shall exercise their voting power in proportion to capital units held and shall be entitled to one vote for each capital unit held.

 

Section 5.2                                    Termination of Membership. A member may not be expelled, provided that the failure of a member to comply with the membership requirements established in these Articles or in, or pursuant to authority granted by, a Member Control Agreement shall result in the termination of membership of such person. The membership of a member in the limited liability company shall terminate upon the occurrence of events described in these Articles, in a Member Control Agreement, or as otherwise provided for in the Act, including resignation and withdrawal. In the event a person ceases to be a member without having transferred all of the capital units owned by such person, such person shall lose all voting rights and shall be considered merely an assignee of the

 

A-4



 

financial rights associated with the capital units held by such person, having only the rights of an unadmitted assignee. Such person shall remain subject to the applicable provisions of these Articles and a Member Control Agreement with respect to such financial rights. Such person shall have no right to any information or accounting of the affairs of the limited liability company, shall not be entitled to inspect the books or records of the limited liability company, shall not be entitled to vote on any matters reserved to the members, and shall not have any of the other rights of a member under these Articles, a Member Control Agreement, or the Act. Further, such person shall not have the right to transfer such person’s capital units except by means of a transfer permitted by these Articles or a Member Control Agreement.

 

Section 5.3                                    Continuation of the Limited Liability Company. The limited liability company shall not be dissolved upon the occurrence of any event that is deemed to terminate the continued membership of a member. The limited liability company’s affairs shall not be required to be wound up. The limited liability company shall continue without dissolution.

 

Section 5.4                                    No Obligation to Purchase Member’s Interest. No member whose membership in the limited liability company terminates, nor any transferee of such member, shall have any right to demand or receive a return of such terminated member’s capital contributions or to require the purchase or redemption of the capital units owned by such terminated member. The other members and the limited liability company shall not have any obligation to purchase or redeem the capital units or capital contributions of any such terminated member or transferee of any such terminated member. No member whose membership has terminated shall be entitled to receive a distribution in complete redemption of the fair value of the capital units or capital contributions of such person (except as provided for in a dissolution and liquidation of the limited liability company), notwithstanding any provisions of the Act or any other provision of law. As a material part of the consideration for continuing or becoming a member of the limited liability company, each member hereby waives any right, and expressly agrees that it intends for this provision to negate any entitlement to receive a distribution in complete redemption of the fair value of the capital units or capital contributions owned by such member upon an event that terminates the membership of such member which, in the absence of the provisions in these Articles, it may otherwise be afforded by the Act.

 

ARTICLE VI

BOARD OF GOVERNORS

 

Section 6.1                                    Number and Board . The business and affairs of the limited liability company shall be managed by a Board of Governors of not less than seven (7) persons, as further provided in a Member Control Agreement. Governors shall be elected for the term, at the time and in the manner as a Member Control Agreement shall prescribe. The names and addresses of the

 

A-5



 

members of the first Board of Governors of the limited liability company, who shall serve for such terms and in such manner as a Member Control Agreement shall prescribe or, in the absence of a Member Control Agreement, until the annual meeting of the members held in 2007, are as follows:

 

Name

 

Address

 

 

 

 

 

Robert J. Ferguson

 

P.O. Box 167
Heron Lake, MN 56137

 

 

 

 

 

Michael S. Kunerth

 

34858 150 th Street
Brewster, MN 56119

 

 

 

 

 

David J. Woestehoff

 

15466 West 270 th Street
Belle Plaine, MN 56011

 

 

 

 

 

David J. Bach

 

27817 351 st Avenue
Henderson, MN 56044

 

 

 

 

 

Merrill Grisham

 

48834 226 th Street
Gaylord, MN 55334

 

 

 

 

 

Timothy O. Helgemoe

 

16087 Henry Drive
Utica, MN 55979

 

 

 

 

 

Milton J. McKeown

 

P.O. Box 201
Heron Lake, MN 56137

 

 

 

 

 

Doug Schmitz

 

P.O. Box 175, Highway 30
Currie, MN 56123

 

 

 

 

 

Robert Wolf

 

748 Kentucky Avenue
Adrian, MN 56110

 

 

Section 6.2                                    Limitation of Governor’s Liability. No governor of the limited liability company shall be personally liable to the limited liability company or its members for monetary damages for breach of fiduciary duty by such governor; provided, however, that this Article shall not eliminate or limit the liability of a governor to the extent provided by applicable law (i) for a breach of the governor’s duty of loyalty to the limited liability company or its members; (ii) for acts or omissions that are not in good faith or involve intentional misconduct or a knowing violation of law; (iii) for knowing violations of securities laws section 80A.23 of Minnesota Statutes or for illegal distributions; (iv) for a transaction from which the governor derived an improper personal benefit; or

 

A-6



 

(v) for an act or omission occurring prior to the effective date of this Article. It is the intention of the members of the limited liability company to limit or eliminate the personal liability of governors of the limited liability company to the greatest extent permitted under Minnesota law. If amendments to Minnesota Statutes are passed after this Article becomes effective which authorize limited liability companies to act to further limit or eliminate the personal liability of governors of a limited liability company, then the liability of governors of the limited liability company shall be limited or eliminated to the greatest extent permitted by Minnesota Statutes, as so amended. No amendment to or repeal of this Article shall apply to or have any effect on the liability or alleged liability of any governor of the limited liability company for or with respect to any acts or omissions of such governor occurring prior to such amendment or repeal.

 

ARTICLE VII

LIMITED LIABILITY

 

Except as otherwise expressly agreed to under a separate written agreement, the debts, liabilities and obligations of the limited liability company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the limited liability company, and no member of the limited liability company shall be personally liable for the acts, debts, obligations or liabilities of the limited liability company merely on the account of that status. The failure of the limited liability company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under these Articles, a Member Control Agreement, or the Act shall not be grounds for imposing liability on the members of the limited liability company for any debt, obligation or liability of the limited liability company.

 

ARTICLE VIII

NO CUMULATIVE VOTING

 

The members of the limited liability company shall not be entitled to cumulate their voting power for the election of governors.

 

ARTICLE IX

NO PREEMPTIVE RIGHTS

 

The members of the limited liability company shall have no preemptive rights to make contributions pursuant to Minnesota Statutes, Section 322B.33 or any similar provisions of future law.

 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

A-7



 

Adopted effective June 30, 2004

 

IN WITNESS WHEREOF , the undersigned hereby certifies that he is the President of the Board of Governors of Generation II Ethanol, LLC d/b/a Heron Lake BioEnergy, a limited liability company organized and existing under the laws of the State of Minnesota; that the foregoing is a true and correct copy of the resolution duly adopted by the Board of Governors to amend the Articles of Organization in their entirety to restate and supersede the original Articles of Organization and all amendments to them, taken as of June 9, 2004; that the passage of said resolution was in all respects legal and proper; that said resolution is in full force and effect; and that said resolution shall be submitted to a vote at a special meeting of the members to be held on June 29, 2004.

 

 

Dated: June 29, 2004

 

 

/s/ Robert J. Ferguson

 

Robert J. Ferguson, President of the Board of
Governors

 

(NO LIMITED LIABILITY COMPANY SEAL)

 

A-8


EXHIBIT 3.2

 

HERON LAKE BIOENERGY, LLC

 

A Minnesota Limited Liability Company

 

MEMBER CONTROL AGREEMENT

 

(Contains Restrictions On

Transfer Of Interests)

 



 

MEMBER CONTROL AGREEMENT

OF

HERON LAKE BIOENERGY, LLC

 

TABLE OF CONTENTS

 

SECTION 1:

THE LIMITED LIABILITY COMPANY

B-1

 

 

 

1.1

Formation

B-1

1.2

Name

B-1

1.3

Purpose; Powers

B-1

1.4

Principal Place of Business

B-2

1.5

Term

B-2

1.6

Filings; Articles and Amendments; Agent for Service of Process

B-2

1.7

Title to Property

B-2

1.8

Payments of Individual Obligations

B-3

1.9

Independent Activities

B-3

1.10

Member Authority

B-3

1.11

Access to and Confidentiality of Information

B-4

1.12

Limited Liability

B-4

1.13

Definitions

B-5

 

 

 

SECTION 2:

CAPITAL AND INTERESTS

B-12

 

 

 

2.1

Members

B-12

2.2

Units

B-12

2.3

Capital Contributions; Issuance of Units

B-12

2.4

Capital Accounts

B-13

 

 

 

SECTION 3:

ALLOCATIONS

B-14

 

 

 

3.1

Profits

B-14

3.2

Losses

B-14

3.3

Special Allocations

B-14

3.4

Curative Allocations

B-16

3.5

Loss Limitation

B-16

3.6

Other Allocation Rules

B-17

3.7

Tax Allocations: Code Section 704(c)

B-17

 

 

 

SECTION 4:

DISTRIBUTIONS

B-18

 

 

 

4.1

Net Cash Flow

B-18

4.2

Amounts Withheld

B-18

 



 

4.3

Limitations on Distributions

B-18

 

 

 

SECTION 5:

MANAGEMENT AND OPERATIONS

B-19

 

 

 

5.1

Management by Board of Governors

B-19

5.2

Actions by Governors; Committees; Reliance on Authority

B-22

5.3

The Board of Governors

B-22

5.4

Duties and Obligations of Governors

B-26

5.5

Officers

B-27

5.6

Limitation of Liability; Indemnification of Governors and Officers

B-28

5.7

Member Compensation; Expenses; Loans

B-29

5.8

Contracts with Members or their Affiliates

B-29

 

 

 

SECTION 6:

MEMBERS

B-30

 

 

 

6.1

Members; Rights and Powers Generally

B-30

6.2

Membership Requirements and Member Voting

B-31

6.3

Member Meetings

B-31

6.4

Termination of Membership

B-33

6.5

Continuation of the Company

B-34

6.6

No Obligation to Purchase Member’s Interest

B-34

6.7

Waiver of Dissenters’ Rights

B-34

 

 

 

SECTION 7:

UNIT CERTIFICATES

B-34

 

 

 

7.1

Certificates for Units

B-34

7.2

Transfer of Certificates

B-34

7.3

Loss or Destruction of Certificates

B-35

7.4

Certificate Regulations

B-35

7.5

Legends

B-35

 

 

 

SECTION 8:

ACCOUNTING, BOOKS AND RECORDS

B-35

 

 

 

8.1

Accounting, Books and Records

B-35

8.2

Reports

B-36

8.3

Tax Matters

B-37

8.4

Delivery to Members and Inspection

B-37

 

 

 

SECTION 9:

AMENDMENTS

B-38

 

 

 

9.1

Amendments

B-38

 

ii



 

SECTION 10:

TRANSFERS

B-39

 

 

 

10.1

Restrictions on Transfers

B-39

10.2

Permitted Transfers

B-39

10.3

Conditions to Permitted Transfers

B-39

10.4

Prohibited Transfers

B-41

10.5

Rights of Unadmitted Assignees

B-41

10.6

Admission of Transferees as Members

B-41

10.7

Representations Regarding Transfers; Legend

B-42

10.8

Distributions and Allocations in Respect of Transferred Units

B-43

 

 

 

SECTION 11:

[INTENTIONALLY OMITTED]

B-43

 

 

 

SECTION 12:

DISSOLUTION AND WINDING UP

B-43

 

 

 

12.1

Dissolution Events

B-43

12.2

Winding Up

B-44

12.3

Compliance With Certain Requirements of Regulations; Deficit Capital Accounts

B-44

12.4

Deemed Distribution and Recontribution

B-45

12.5

Rights of Unit Holders

B-45

12.6

Notice of Dissolution/Termination

B-45

12.7

Allocations During Period of Liquidation

B-45

12.8

Character of Liquidating Distributions

B-46

12.9

The Liquidator

B-46

12.10

Form of Liquidating Distributions

B-46

 

 

 

SECTION 13:

DISPUTE RESOLUTION

B-46

 

 

 

SECTION 14:

MISCELLANEOUS

B-47

 

 

 

14.1

Notices

B-47

14.2

Binding Effect

B-47

14.3

Construction

B-48

14.4

Time

B-48

14.5

Headings

B-48

14.6

Severability

B-48

14.7

Incorporation by Reference

B-48

14.8

Variation of Terms

B-48

14.9

Governing Law

B-48

14.10

Waiver of Jury Trial

B-49

14.11

Counterpart Execution

B-49

14.12

Specific Performance

B-49

 

iii



 

MEMBER CONTROL AGREEMENT

OF

HERON LAKE BIOENERGY, LLC

 

THIS MEMBER CONTROL AGREEMENT is hereby adopted and entered into effective as of the Effective Date (as defined below), by the Members (as defined below), pursuant to the provisions of the Act (as defined below), on the terms and conditions set forth herein.

 

SECTION 1

THE LIMITED LIABILITY COMPANY

 

1.1                                Formation and Agreement.

 

The Members have caused the Company to be formed as a Minnesota limited liability company pursuant to the provisions of the Act. The Members hereby agree that this Agreement constitutes the “member control agreement” within the meaning of Section 322B.37 of the Act.  To the extent that the rights or obligations of any Member are different by reason of any provision of this Agreement than they would be in the absence of such provisions, this Agreement, to the extent permitted by the Act, shall control.

 

1.2                                Name.

 

The name of the Company shall be Heron Lake BioEnergy, LLC, and all business of the Company shall be conducted in such name. The name of the Company may be changed from time to time in accordance with the Act.

 

1.3                                Purpose; Powers.

 

(a)                                   The business and purpose of the Company is (i) to engage in the development, financing, investment into, construction, ownership and operation of bio-energy facilities including ethanol production facilities, (ii) to pool, handle, deal, market, manufacture, process, or otherwise change the form or marketability of products of its Members and others, including crops, livestock, and other agricultural products, (iii) to conduct any business and investment activity in which a limited liability company organized under the Act may lawfully be engaged, and (iv) to perform and conduct any and all activities necessary, related or incidental to the foregoing.

 

(b)                                  The Company shall possess and may exercise all the powers and privileges granted to the Company by the Act or by any other law, subject to any limitations provided in the Articles or in this Agreement.

 

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1.4                                Principal Place of Business.

 

The principal place of business of the Company shall be as set forth in the Articles, or at such other place(s) within or without the State of Minnesota as the Board may determine.

 

1.5                                Term.

 

The term of the Company began on the date the Articles were originally filed with the Secretary of State of the State of Minnesota, and shall continue until the winding up and liquidation of the Company and its business is completed following a Dissolution Event as provided in Section 12 hereof.

 

1.6                                Filings; Agent for Service of Process.

 

(a)                                   The Company’s organizer has caused the Articles to be filed with the Secretary of State of the State of Minnesota, in accordance with the provisions of the Act. The Company shall take any and all other actions reasonably necessary to perfect and maintain the status of the Company as a limited liability company under the laws of the State of Minnesota.  The Board shall cause amendments to the Articles to be filed whenever required by the Act.

 

(b)                                  The Board shall cause the Company to make such filings and take any and all other actions as may be reasonably necessary to perfect and maintain the status of the Company as a limited liability company or similar type of entity under the laws of any other jurisdictions in which the Company engages in business.

 

(c)                                   The name and address of the agent for service of process on the Company resident in the State of Minnesota shall be as set forth in the Articles or any successor as appointed by the Board, and the Board is hereby authorized to change the Company’s registered office or resident agent, or both, from time to time without Member vote or approval.

 

(d)                                  In connection with the dissolution and completion of the winding up of the Company, the Board shall cause to be executed and filed a notice of dissolution and articles of termination whenever required by the Act, and make similar filings under the laws of any other jurisdictions in which the Board deems such filings necessary or advisable.

 

1.7                                Title to Property.

 

All Property owned by the Company shall be owned by the Company as an entity and no Unit Holder or Governor shall have any ownership interest in such Property in its individual name.  Each Unit Holder’s interest in the Company shall be personal property for all purposes.  The Company shall hold title to all of its Property in the name of the Company and not in the name of any Unit Holder or Governor.

 

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1.8                                Payments of Individual Obligations.

 

The Company’s credit and assets shall be used solely for the benefit of the Company, and no asset of the Company shall be Transferred or encumbered for, or in payment of, any individual obligation of any Unit Holder or Governor.

 

1.9                                Independent Activities.

 

(a)                                   Each Governor shall be required to devote only such time to the affairs of the Company as may be necessary to manage the business and affairs of the Company in accordance with Section 5 hereof, and shall be free to serve any other Person or enterprise in any capacity that the Governor may deem appropriate in his or her discretion.

 

(b)                                  Neither this Agreement nor any activity undertaken pursuant hereto shall (i) prevent any Unit Holder, Governor or its Affiliates, acting on their own behalf, from engaging in whatever activities they choose, whether the same are competitive with the Company or otherwise, and any such activities may be undertaken without having or incurring any obligation to offer any interest in such activities to the Company or any other Unit Holder or Governor, or (ii) require any Unit Holder or Governor to permit the Company or any other Unit Holder or Governor or its Affiliates to participate in any such activities, and as a material part of the consideration for the execution of this Agreement by each Member, each Member hereby waives, relinquishes, and renounces any such right or claim of participation.

 

1.10                         Member Authority.

 

Each Member represents and warrants to the Company and to the other Members that:

 

(a)                                   the Member, if not an individual, is duly organized, validly existing and in good standing under the laws of its state of organization and is duly qualified and in good standing as a foreign organization in the jurisdiction of its principal place of business if not organized therein;

 

(b)                                  the Member, if not an individual, has full corporate, limited liability company, partnership, trust or other applicable power and authority to execute and agree to this Agreement and to perform its obligations hereunder and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other Persons necessary or appropriate for the due authorization, execution, delivery and performance of this Agreement by that Member have been taken;

 

(c)                                   the Member has duly executed and delivered this Agreement; and

 

(d)                                  the Member’s authorization, execution, delivery and performance of this Agreement does not conflict with any other agreement or arrangement to which that Member is a party or by which it is bound.

 

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1.11                         Access to and Confidentiality of Information.

 

(a)                                   In addition to the other rights specifically set forth in this Agreement, each Member is entitled to all information to which the Member is entitled to have access pursuant to the Act under the circumstances and subject to the conditions therein stated, which conditions include but are not limited to such reasonable standards governing what information and documents are to be furnished at what time and location and at whose expense as may be set forth herein or otherwise established by the Board.  However, without limiting the foregoing, the Members agree that the Board may from time to time determine, due to contractual obligations, business concerns or other considerations, that certain Confidential Information should be kept confidential and not provided to some or all of the Members or that it is not just or reasonable for some or all of the Members or their assignees or representatives to examine or copy any such information.

 

(b)                                  Each Member acknowledges that from time to time the Member may receive Confidential Information from or regarding the Company, the release of which may be damaging to the Company or Persons with whom it does business.  Each Member agrees to hold in strict confidence any Confidential Information it receives regarding the Company that is identified as being confidential (and if such information is provided in writing, is so marked) and may not disclose such information to any Person, except for disclosures (i) to another Member having the right to such information, (ii) compelled by law, provided the Member must promptly notify an officer of the Board of any request or demand for such information, to the extent reasonably possible, (iii) to advisors or representatives of the Member, or to Persons (and their advisors or representatives) seeking to acquire all or any portion of the Member’s Interest through a Transfer in accordance with this Agreement, but only if in each case such Person has agreed to be bound by the provisions of this Section 1.11(b), or (iv) of information that the Member has also received from a source independent of the Company that the Member reasonably believes has the legal right to disclose such information to the Member.  Each Member acknowledges that a breach of the provisions of this Section 1.11(b) may cause the Company irreparable harm and injury for which monetary damages are inadequate or difficult to calculate or both.  Accordingly, each Member specifically agrees that the Company shall be entitled to injunctive relief to enforce the provisions of this Section 1.11(b), that such relief may be granted without the necessity of proving actual damages, and that such injunctive or equitable relief shall be in addition to, not in lieu of, the right to recover monetary damages for any breach of this Section 1.11(b) by the Member.  The obligations referred to in this Section 1.11(b) shall survive the termination of a Member’s membership in the Company.

 

1.12                         Limited Liability.

 

Except as otherwise expressly agreed to under a separate written agreement, the debts, liabilities and obligations of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member, Unit Holder or Governor of the Company shall be personally liable for the acts, debts, obligations or liabilities of the Company merely on account of that status.  The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act shall not be grounds for imposing liability on the Members, Unit Holders or Governors for any debt, obligation or liability of the Company.

 

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1.13                      Definitions.

 

Capitalized words and phrases used in this Agreement have the following meanings:

 

“2004 Offering” means the Company’s offering of Class A Units pursuant to the Registration Statement dated September 17, 2004.

 

“Act” means the Minnesota Limited Liability Company Act as set forth in Chapter 322B of the Minnesota Statutes Annotated (commencing with Section 322B.01), as amended from time to time (or any corresponding provision or provisions of any succeeding law).

 

“Adjusted Capital Account Deficit” means, with respect to any Unit Holder, the deficit balance, if any, in such Unit Holder’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:

 

(i)                                      Credit to such Capital Account any amounts which such Unit Holder is deemed to be obligated to restore pursuant to the next to the last sentences in Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and

 

(ii)                                   Debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)( d )( 4 ), 1.704-1(b)(2)(ii)( d )(5) and 1.704-1(b)(2)(ii)( d )(6) of the Regulations.

 

The foregoing definition is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.

 

“Affiliate” means, with respect to another Person, any of the following:  (i) any Person directly or indirectly owning, controlling, or holding with power to vote ten percent or more of the outstanding voting securities of such other Person, (ii) any Person ten percent or more of whose outstanding securities are directly or indirectly owned, controlled, or held, with power to vote, by such other Person, (iii) any Person directly or indirectly controlling, controlled by or under common control with such other Person, (iv) any executive officer, director, manager, governor, trustee or partner of such other Person, or (v) any legal entity on which such person acts as an executive officer, director, manager, governor, trustee or partner.  For purposes of this definition, the terms “controlling,” “controlled by” or “under common control with” mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person or entity, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least 50% of the board of directors or managers or governors, or persons exercising similar authority with respect to such Person or entities.

 

“Agreement” means this Member Control Agreement, as amended, modified, supplemented or restated from time to time. Words such as “herein,” “hereinafter,” “hereof,” “hereto” and “hereunder” refer to this Agreement as a whole, unless the context otherwise requires.

 

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“Articles” means the Articles of Organization filed with the Secretary of State of the State of Minnesota pursuant to the Act for the purpose of forming the Company, as amended, modified, supplemented or restated from time to time.

 

“Assignee” means a transferee of Units who is not admitted as a Member pursuant to Section 10.6 hereof.

 

“Board” means collectively the persons who are named as Governors of the Company in or designated or elected as Governors pursuant to this Agreement. “Governor” or “Governors” means any such person or persons.

 

“Capital Account” means the capital account maintained for each Unit Holder in accordance with Section 2.4 hereof.

 

“Capital Contributions” means, with respect to any Unit Holder, the amount of cash, property, services rendered or a promissory note or other obligation to contribute cash or property or to perform services contributed to the Company with respect to the Units in the Company held or purchased by such Unit Holder.

 

“CEO” means the Chief Executive Officer/General Manager of the Company, including any interim CEO, as appointed by the Board.

 

“Class A Units” means all Units that are designated as such pursuant to Section 2.2 hereof.

 

“Class B Units” means all Units that are designated as such pursuant to Section 2.2 hereof.

 

“Code” means the United States Internal Revenue Code of 1986, as amended from time to time.

 

“Company” means the limited liability company formed pursuant to the filing of the with the Secretary of State of the State of Minnesota and the limited liability company continuing the business of this Company in the event of dissolution of the Company as herein provided.

 

“Company Minimum Gain” has the meaning given the term “partnership minimum gain” in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.

 

“Confidential Information” means any information or compilation of information possessed by the Company that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, including but not limited to: (a) any information not generally known or readily ascertainable in the industry of the Company, regarding the Company’s products, pricing of products, research, marketing, business systems, and processing techniques etc.; (b) financial information concerning the Company and customers of the Company, including but not limited to, customer lists, information concerning accounts receivable of the customers of the Company; (c) quantity and types of products purchased by the Company and customers of the Company; and (d) any information that the Company may

 

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from time to time designate as “Confidential” which is not generally known in the Company’s industry.

 

“Debt” means (i) any indebtedness for borrowed money or the deferred purchase price of property as evidenced by a note, bonds, or other instruments, (ii) obligations as lessee under capital leases, (iii) obligations secured by any mortgage, pledge, security interest, encumbrance, lien or charge of any kind existing on any asset owned or held by the Company whether or not the Company has assumed or become liable for the obligations secured thereby, (iv) any obligation under any interest rate swap agreement, (v) accounts payable, and (vi) obligations under direct or indirect guarantees of (including obligations (contingent or otherwise) to assure a creditor against loss in respect of) indebtedness or obligations of the kinds referred to in clauses (i), (ii), (iii), (iv) and (v) above; provided that Debt shall not include obligations in respect of any accounts payable that are incurred in the ordinary course of the Company’s business and are not delinquent or are being contested in good faith by appropriate proceedings.

 

“Depreciation” means, for each Fiscal Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such Fiscal Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.

 

“Dissolution Event” has the meaning set forth in Section 12.1 hereof.

 

“Effective Date” means the date that the Company first issues Units in connection with its closing on all or a portion of subscription agreements received and accepted in accordance with the terms of the 2004 Offering or September 23, 2004, whichever occurs first.

 

“Financial Closing” means when the Board determines, in its sole discretion, that the Company has closed on the debt and equity financing necessary to construct the Company’s proposed ethanol plant and provide working capital at plant start-up.

 

“Fiscal Quarter” means, subject to a change in Fiscal Year pursuant to Section 8.1(b), (i) the period commencing with the formation of the Company and ending on July 31, 2003, (ii) any subsequent three-month period commencing on each August 1, November 1, February 1 and May 1 and ending on the last date before the next such date, and (iii) the period commencing on the immediately preceding August 1, November 1, February 1 and May 1 as the case may be, and ending on the date on which all Property is distributed to the Unit Holders pursuant to Section 12 hereof.

 

“Fiscal Year” means, subject to a change in Fiscal Year pursuant to Section 8.1(b), (i) the period commencing with the formation of the Company and ending on October 31, 2003, (ii) any subsequent twelve-month period commencing on November 1 and ending on October 31, and

 

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(iii) the period commencing on the immediately preceding November 1 and ending on the date on which all Property is distributed to the Unit Holders pursuant to Section 12 hereof or, if the context requires, any portion of a Fiscal Year for which an allocation of Profits or Losses or a distribution is to be made.

 

“GAAP” means generally accepted accounting principles in effect in the United States of America from time to time.

 

“Gross Asset Value” means with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

 

(i)                                      The initial Gross Asset Value of any asset contributed by a Unit Holder to the Company shall be the gross fair market value of such asset, as determined by the Board;

 

(ii)                                   The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values (taking Code Section 7701(g) into account) as determined by the Board as of the following times: (A) the acquisition of an additional interest in the Company by any new or existing Unit Holder in exchange for more than a de minimis Capital Contribution; (B) the distribution by the Company to a Unit Holder of more than a de minimis amount of Company property as consideration for an interest in the Company; (C) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); and (D) such other times as the Regulations may permit; provided that an adjustment described in clauses (A), (B) or (D) of this subparagraph shall be made only if the Board determines that such adjustment is necessary to reflect the relative economic interests of the Unit Holders in the Company.

 

(iii)                                The Gross Asset Value of any item of Company assets distributed to any Unit Holder shall be adjusted to equal the gross fair market value (taking Code Section 7701(g) into account) of such asset on the date of distribution as determined by the Board; and

 

(iv)                               The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)( m ) and subparagraph (vi) of the definition of “Profits” and “Losses” or Section 3.3(g) hereof; provided , however , that Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent that an adjustment pursuant to subparagraph (ii) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv).

 

If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (ii) or (iv), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.

 

“Interest” means, collectively, a Unit Holder’s share of the “Profits” and “Losses” of the Company, a Unit Holder’s right to receive distributions of the Company’s assets, and, with respect to a Member, any right of the Member to vote on or participate in the management of the Company and

 

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to information concerning the business and affairs of the Company as provided for in this Agreement. An Interest is quantified by the unit of measurement referred to herein as a “Unit” (as defined below).

 

“Issuance Items” has the meaning set forth in Section 3.3(h) hereof.

 

“Liquidation Period” has the meaning set forth in Section 12.7 hereof.

 

“Liquidator” has the meaning set forth in Section 12.9(a) hereof.

 

“Losses” has the meaning set forth in the definition of “Profits” and “Losses.”

 

“Majority in Interest” of the Members or any class(es) or series thereof means Members holding more than fifty percent (50%) of the Units then held by all Members, or of the Units of the specified class(es) or series of Units then held by all Members.

 

“Member” means any Person who is described in and meets the membership requirements established in Sections 6.1 and 6.2(a) hereof and who has not ceased to be a Member pursuant to the terms of this Agreement. “ Members ” means all such Persons.

 

“Net Cash Flow” means the gross cash proceeds of the Company less the portion thereof used to pay or establish reserves for all Company expenses, debt payments, obligations and liabilities, capital improvements, replacements, and contingencies, all as reasonably determined by the Board. “Net Cash Flow” shall not be reduced by depreciation, amortization, cost recovery deductions, or similar allowances, but shall be increased by any reductions of reserves previously established.

 

“Nonrecourse Deductions” has the meaning set forth in Section 1.704-2(b)(1) of the Regulations.

 

“Nonrecourse Liability” has the meaning set forth in Section 1.704-2(b)(3) of the Regulations.

 

“Permitted Transfer” has the meaning set forth in Section 10.2 hereof.

 

“Person” means any individual, partnership (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity.

 

“Profits” and “Losses” mean, for each Fiscal Year, an amount equal to the Company’s taxable income or loss for such Fiscal Year, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments (without duplication):

 

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(i)                                      Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses” shall be added to such taxable income or loss;

 

(ii)                                   Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses” shall be subtracted from such taxable income or loss;

 

(iii)                                In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraphs (ii) or (iii) of the definition of Gross Asset Value, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset Value of the asset) or an item of loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses;

 

(iv)                               Gain or loss resulting from any disposition of Property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the Property disposed of, notwithstanding that the adjusted tax basis of such Property differs from its Gross Asset Value;

 

(v)                                  In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year, computed in accordance with the definition of Depreciation;

 

(vi)                               To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) is required, pursuant to Regulations Section 1.704-(b)(2)(iv)( m )( 4 ), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Unit Holder’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; and

 

(vii)                            Notwithstanding any other provision of this definition, any items which are specially allocated pursuant to Section 3.3 and Section 3.4 hereof shall not be taken into account in computing Profits or Losses.

 

The amounts of the items of Company income, gain, loss or deduction available to be specially allocated pursuant to Sections 3.3 and Section 3.4 hereof shall be determined by applying rules analogous to those set forth in subparagraphs (i) through (vi) above.

 

“Property” means all real and personal property acquired by the Company, including cash, and any improvements thereto, and shall include both tangible and intangible property.

 

“Regulations” means the Income Tax Regulations, including Temporary Regulations, promulgated under the Code, as such regulations are amended from time to time.

 

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“Regulatory Allocations” has the meaning set forth in Section 3.4 hereof.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

“Syndication Expenses” means all expenditures classified as syndication expenses pursuant to Section 1.709-2(b) of the Regulations.

 

“Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other entity in which such Person owns, directly or indirectly, fifty percent (50%) or more of the outstanding equity securities or interests, the holders of which are generally entitled to vote for the election of the governing body of such entity.

 

“Transfer” means, as a noun, any voluntary or involuntary transfer, sale, pledge or hypothecation or other disposition, whether by operation of law (e.g., pursuant to a merger) or otherwise, and, as a verb, voluntarily or involuntarily to transfer, sell, pledge or hypothecate or otherwise dispose of.

 

“Unit” means the unit of measurement into which an Interest is divided for purposes of those provisions of this Agreement that require quantification of the rights, preferences and obligations represented by an Interest, as authorized and designated in Section 2.2 and issued pursuant to Section 2.3 hereof.

 

“Unit Holder” means a Person who owns Units, regardless of whether such Person is a Member. “Unit Holders” means all Unit Holders. Unit Holders may be designated with respect to specific types or classes of Units held.

 

“Unit Holder Nonrecourse Debt” has the same meaning as the term “partner nonrecourse debt” in Section 1.704-2(b)(4) of the Regulations.

 

“Unit Holder Nonrecourse Debt Minimum Gain” means an amount, with respect to each Unit Holder Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Unit Holder Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3) of the Regulations.

 

“Unit Holder Nonrecourse Deductions” has the same meaning as the term “partner nonrecourse deductions” in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.

 

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SECTION 2

CAPITAL AND INTERESTS

 

2.1                                Members.

 

The Members of the Company are those Persons described in Sections 6.1 and 6.2(a) hereof, who have not ceased to be Members.

 

2.2                                Authorized Capital Units; Designation of Class A and Class B Units.

 

(a)                                   The Company is authorized to issue 50,000,000 Units.

 

(b)                                  Of the total number of authorized Units, 25,000,000 Units are hereby designated as Class A Units and 15,000,000 Units are hereby designated Class B Units. The authorized Units that are not designated herein as Class A or Class B Units may be designated as Class A Units or Class B Units by resolution of the Board, provided that a statement setting forth the name of the Company and the text of the resolution and certifying the adoption of the resolution and the date of adoption shall be filed with the Secretary of State of the State of Minnesota before the acceptance of any Capital Contributions with respect to such Units. The resolution is effective when the statement has been filed with the Secretary of State. A statement filed with the Secretary of State in accordance with this Section 2.2(b) shall not be considered an amendment of the Articles for purposes of Minnesota Statutes, Sections 322B.155 and 322B.383.

 

(c)                                   The rights of Class A and Class B Units are established herein.

 

2.3                                Capital Contributions; Issuance of Units.

 

(a)                                   No Member shall be obligated to make any additional Capital Contributions to the Company or to pay any assessment to the Company, other than the unpaid portion of such Member’s written agreement to make Capital Contributions, and no Units shall be subject to any mandatory assessment, requests or demands for capital.

 

(b)                                  Additional Units may only be issued in consideration of Capital Contributions. The Board may accept Capital Contributions from Members or persons seeking to become Members, may authorize the Company to enter into a written subscription agreement with such Member or persons seeking to become Members to make Capital Contributions for the purchase of Units, and may cause the Company to issue additional Units to such persons in consideration of Capital Contributions to the Company. Capital Contributions and the issuance of additional Units shall be made at such times and upon such terms and conditions as the Board and the person acquiring the Units may agree.

 

(c)                                   Upon acceptance of Capital Contributions and the issuance of additional Units, the Board shall cause the books and records of the Company to be adjusted appropriately.

 

(d)                                  The Members shall have no preemptive rights to make contributions pursuant to

 

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Minnesota Statutes, Section 322B.33 or any similar provisions of future law.

 

2.4                                Capital Accounts.

 

A Capital Account shall be maintained for each Unit Holder in accordance with the following provisions:

 

(a)                                   To each Unit Holder’s Capital Account there shall be credited (A) such Unit Holder’s Capital Contributions, (B) such Unit Holder’s distributive share of Profits and any items in the nature of income or gain which are specially allocated pursuant to Sections 3.3 and 3.4 hereof, and (C) the amount of any Company liabilities assumed by such Unit Holder or which are secured by any Property distributed to such Unit Holder. The principal amount of a promissory note which is not readily traded on an established securities market and which is contributed to the Company by the maker of the note (or a Unit Holder related to the maker of the note within the meaning of Regulations Section 1.704-1(b)(2)(ii)(c)) shall not be included in the Capital Account of any Unit Holder until the Company makes a taxable disposition of the note or until (and to the extent) principal payments are made on the note, all in accordance with Regulations Section 1.704-1(b)(2)(iv)(d)(2);

 

(b)                                  To each Unit Holder’s Capital Account there shall be debited (A) the amount of money and the Gross Asset Value of any Property distributed to such Unit Holder pursuant to any provision of this Agreement, (B) such Unit Holder’s distributive share of Losses and any items in the nature of expenses or losses which are specially allocated pursuant to Sections 3.3 and 3.4 hereof, and (C) the amount of any liabilities of such Unit Holder assumed by the Company or which are secured by any Property contributed by such Unit Holder to the Company;

 

(c)                                   In the event Units are Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the Transferred Units; and

 

(d)                                  In determining the amount of any liability for purposes of subparagraphs (a) and (b) above there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.

 

The foregoing provisions and the other provisions of this Agreement relating to allocation of Profits and Loss, nonliquidating distributions, liquidating distributions, and the maintenance of Capital Accounts, including and subject to Section 12.3 hereof, are intended to comply with Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations. In the event the Board shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, without limitation, debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company or any Unit Holders), are computed in order to comply with such Regulations, the Board may make such modification, provided that it is not likely to have a material effect on the amounts distributed to any Person pursuant to Section 12 hereof upon the dissolution of the Company. The Board also shall (i) make any adjustments that are necessary or appropriate to

 

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maintain equality between the Capital Accounts of the Unit Holders and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b).

 

SECTION 3

ALLOCATIONS

 

3.1                                Profits.

 

After giving effect to the special allocations in Section 3.3 and Section 3.4 hereof, and except as otherwise provided in Section 3.5 hereof, Profits for any Fiscal Year shall be allocated among the Unit Holders ratably in proportion to Units held.

 

3.2                                Losses.

 

After giving effect to the special allocations in Section 3.3 and 3.4 hereof, and except as otherwise provided in Section 3.5 hereof, Losses for any Fiscal Year shall be allocated among the Unit Holders ratably in proportion to Units held.

 

3.3                                Special Allocations.

 

The following special allocations shall be made in the following order:

 

(a)                                   Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the Regulations, notwithstanding any other provision of this Section 3, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Unit Holder shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Unit Holder’s share of the net decrease in Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Unit Holder pursuant thereto. The items to be so allocated shall be determined in accordance with sections 1.704-2(f) (6) and 1.704-2(j) (2) of the Regulations. This Section 3.3(a) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.

 

(b)                                  Unit Holder Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i) (4) of the Regulations, notwithstanding any other provision of this Section 3, if there is a net decrease in Unit Holder Nonrecourse Debt Minimum Gain attributable to a Unit Holder Nonrecourse Debt during any Fiscal Year, each Unit Holder who has a share of the Unit Holder Nonrecourse Debt Minimum Gain attributable to such Unit Holder Nonrecourse Debt,

 

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determined in accordance with Section 1.704-2(i) (5) of the Regulations, shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Unit Holder’s share of the net decrease in Unit Holder Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i) (4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Unit Holder pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i) (4) and 1.704-2(j) (2) of the Regulations. This Section 3.3(b) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i) (4) of the Regulations and shall be interpreted consistently therewith.

 

(c)                                   Qualified Income Offset. In the event any Unit Holder unexpectedly receives any adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)( d )( 4 ), 1.704-1(b)(2)(ii)( d )( 5 ), or 1.704-1(b)(2)(ii)( d )( 6 ) of the Regulations, items of Company income and gain shall be specially allocated to such Unit Holder in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of the Unit Holder as quickly as possible, provided that an allocation pursuant to this Section 3.3(c) shall be made only if and to the extent that the Unit Holder would have an Adjusted Capital Account Deficit after all other allocations provided for in this Section 3 have been tentatively made as if this Section 3.3(c) were not in this Agreement.

 

(d)                                  Gross Income Allocation . In the event any Unit Holder has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Unit Holder is obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Unit Holder shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 3.3(d) shall be made only if and to the extent that such Unit Holder would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Section 3 have been made as if Section 3.3(c) and this Section 3.3(d) were not in this Agreement.

 

(e)                                   Nonrecourse Deductions . Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Unit Holders in proportion to Units owned.

 

(f)                                     Unit Holder Nonrecourse Deductions. Any Unit Holder Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Unit Holder who bears the economic risk of loss with respect to the Unit Holder Nonrecourse Debt to which such Unit Holder Nonrecourse Deductions are attributable in accordance with Regulations Section 1.704-2(i)(1).

 

(g)                                  Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset, pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)( m )( 2 ) or 1.704-1(b)(2)(iv)( m )( 4 ), to be taken into account in determining Capital Accounts as the result of a distribution to a Unit Holder in complete liquidation of such Unit Holder’s interest in the Company, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Unit Holders in accordance with their interests in the Company in the event Regulations Section 1.704-1(b)(2)(iv)( m )( 2 ) applies, or to the Unit Holder to whom such distribution was made in the event Regulations Section 1.704-1(b)(2)(iv)( m )( 4 ) applies.

 

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(h)                                  Allocations Relating to Taxable Issuance of Units . Any income, gain, loss or deduction realized as a direct or indirect result of the issuance of Units by the Company to a Unit Holder (the “Issuance Items” ) shall be allocated among the Unit Holders so that, to the extent possible, the net amount of such Issuance Items, together with all other allocations under this Agreement to each Unit Holder shall be equal to the net amount that would have been allocated to each such Unit Holder if the Issuance Items had not been realized.

 

(i)                                      Syndication Expenses . Syndication Expenses for any Fiscal Year shall be specially allocated to the Unit Holders in proportion to their Units, provided that, if Units are issued pursuant to Section 2.3 hereof during the Fiscal Year, all Syndication Expenses shall be divided among the Unit Holders from time to time so that, to the extent possible, the cumulative Syndication Expenses allocated with respect to each Unit at any time is the same amount. In the event the Board shall determine that such result is not likely to be achieved through future allocations of Syndication Expenses, the Board may allocate other items of income, gain, deduction, or loss so as to achieve the same effect on the Capital Accounts of the Unit Holders.

 

(j)                                      Equalization of Certain Profits or Loss Allocations. Immediately following Financial Closing, and subject to Section 3.3(i) hereof, items of income, loss and deduction shall be specially allocated to the extent possible among the Units until the cumulative Profits or Losses allocated to each Unit since the Company’s formation is equal.

 

3.4                                Curative Allocations.

 

The allocations set forth in Sections 3.3(a) through (g) and 3.5 hereof (the “Regulatory Allocations” ) are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 3.4. Therefore, notwithstanding any other provision of this Section 3 (other than the Regulatory Allocations), the Board shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Unit Holder’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Unit Holder would have had if the Regulatory Allocations were not part of this Agreement.

 

3.5                                Loss Limitation.

 

Losses allocated pursuant to Section 3.2 hereof shall not exceed the maximum amount of Losses that can be allocated without causing any Unit Holder to have an Adjusted Capital Account Deficit at the end of any Fiscal Year. In the event some but not all of the Unit Holders would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to Section 3.2 hereof, the limitation set forth in this Section 3.5 shall be applied on a Unit Holder by Unit Holder basis among the Units and Losses not allowable to any given Unit Holder as a result of such limitation shall be allocated to the other Unit Holders in accordance with the positive balances in such Unit Holders’ Capital Accounts, so as to allocate the maximum permissible Losses to each Unit Holder under Section 1.704-1(b)(2)(ii)( d ) of the Regulations. If this Section 3.5 causes Losses to be

 

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allocated in disproportion to Units, the effect of such allocation shall be reversed at the earliest opportunity by specially allocating Net Profits to the Unit Holders to whom such Losses were allocated, the most recently allocated Losses to be reversed first.

 

3.6                                Other Allocation Rules.

 

(a)                                   For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Board using any permissible method under Code Section 706 and the Regulations thereunder.

 

(b)                                  Generally, all Profits and Losses allocated to the Unit Holders or the Holders of specified Units or a specified class thereof shall be allocated among them in proportion to the Units or specified Units or class thereof, respectively, held by each. In the event Units are issued pursuant to Section 2.3 hereof during a Fiscal Year, the Profits (or Losses) allocated to the Unit Holders for each such Fiscal Year shall be allocated among the Unit Holders in proportion to the number of Units each holds from time to time during such Fiscal Year in accordance with Code Section 706, using any convention permitted by law and selected by the Board.

 

(c)                                   The Unit Holders are aware of the income tax consequences of the allocations made by this Section 3 and hereby agree to be bound by the provisions of this Section 3 in reporting their shares of Company income and loss for income tax purposes.

 

(d)                                  Solely for purposes of determining a Unit Holder’s proportionate share of the “excess nonrecourse liabilities” of the Company within the meaning of Regulations Section 1.752-3(a)(3), the Unit Holders’ aggregate interests in Company profits shall be deemed to be as provided in the Capital Accounts.

 

To the extent permitted by Regulations Section 1.704-2(h)(3), the Unit Holders shall endeavor to treat distributions of Net Cash Flow as having been made from the proceeds of a Nonrecourse Liability or a Unit Holder Nonrecourse Debt only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Unit Holder.

 

3.7                                Tax Allocations: Code Section 704(c).

 

(a)                                   In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction with respect to any Property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Unit Holders so as to take account of any variation between the adjusted basis of such Property to the Company for federal income tax purposes and its initial Gross Asset Value (computed in accordance with the definition of Gross Asset Value).

 

(b)                                  In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Gross Asset Value, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the

 

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adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Regulations thereunder.

 

(c)                                   Allocations pursuant to Section 3.7(a) shall be made using the “remedial allocation method” described in Regulations Section 1.704-3(d) (or any successor Regulation). Allocations pursuant to Section 3.7(b) shall be made as required or permitted by Regulations Section 1.704-3 pursuant to such method provided therein as may reasonably be designated by the Board. Any elections or other decisions relating to allocations under this Section 3.7 shall be made in any manner that the Board reasonably determines to reflect the purpose and intention of this Agreement. Allocations under this Section 3.7 are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Unit Holder’s Capital Account or share of Profits or Losses or distributions under any provision of this Agreement.

 

SECTION 4

DISTRIBUTIONS

 

4.1                                Net Cash Flow.

 

Except as otherwise provided in Section 12 hereof, Net Cash Flow, if any, shall be distributed to the Unit Holders ratably in proportion to the Units held.

 

4.2                                Amounts Withheld.

 

All amounts withheld pursuant to the Code or any provision of any state, local or foreign tax law with respect to any payment, distribution or allocation to the Company or the Unit Holders shall be treated as amounts paid or distributed, as the case may be, to the Unit Holders with respect to which such amount was withheld pursuant to this Section 4.2 for all purposes under this Agreement. The Company is authorized to withhold from payments and distributions, or with respect to allocations to the Unit Holders, and to pay over to any federal, state and local government or any foreign government, any amounts required to be so withheld pursuant to the Code or any provisions of any other federal, state or local law or any foreign law, and shall allocate any such amounts to the Unit Holders with respect to which such amount was withheld.

 

4.3                                Limitations on Distributions.

 

(a)                                   The Company shall make no distributions to the Unit Holders except as provided in this Section 4 and Section 12 hereof.

 

(b)                                  A Unit Holder may not receive a distribution from the Company to the extent that, after giving effect to the distribution, all liabilities of the Company, other than liability to Unit Holders on account of their Capital Contributions, would exceed the Gross Asset Value of the Company’s assets or the distribution would otherwise be prohibited by Section 322B.54 of the Act.

 

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SECTION 5

MANAGEMENT AND OPERATIONS

 

5.1                                Management by Board of Governors.

 

(a)                                   Except those matters for which consent or approval of the Members is required by this Agreement or any nonwaivable provisions of the Act, and subject to the provisions of Section 5.1(d) hereof, the powers and privileges of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Board and not by the Members. No Member, other than a Member acting in his or her capacity as an officer of the Board or as an officer of the Company, has the power or authority to act for or on behalf of the Company, to bind the Company by any act, or to incur any expenditures on behalf of the Company, except with the prior consent of the Board. Without limiting the foregoing authority of the Board to manage the business and affairs of the Company or the actions the Board may take in exercising the powers and privileges of the Company, the Board shall have the right to make the following decisions and take the following actions:

 

(i)                                      Acquire by purchase, lease, or otherwise any real or personal property;

 

(ii)                                   Operate, maintain, finance, improve, construct, own, grant operations with respect to, sell, convey, assign, mortgage, or lease any real estate and any personal property;

 

(iii)                                Execute any and all agreements, contracts, documents, certifications, and instruments necessary or convenient in connection with the management, maintenance, and operation of the business or affairs of the Company, including executing amendments to this Agreement and the Articles in accordance with the terms of this Agreement;

 

(iv)                               Borrow money and issue evidences of indebtedness, and secure the same by mortgage, pledge, or other lien on any or all of the Company’s assets;

 

(v)                                  Execute any deed, lease, mortgage, deed of trust, mortgage note, promissory note, bill of sale, contract, or other instrument purporting to convey or encumber any or all of the Company’s assets;

 

(vi)                               Prepay in whole or in part, refinance, recast, increase, modify, or extend any liabilities affecting the assets of the Company and in connection therewith execute any extensions or renewals of encumbrances on any or all of such assets;

 

(vii)                            Care for and distribute funds to the Members by way of cash income, return of capital, or otherwise, all in accordance with the provisions of this Agreement, and perform all matters in furtherance of the objectives of the Company or this Agreement;

 

(viii)                         Hire or contract on behalf of the Company for the employment and services of employees and/or independent contractors, such as consultants, lawyers and accountants, and delegate to such Persons the duty to manage or supervise any of the assets or operations of the Company;

 

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(ix)                                 Engage in any kind of activity and perform and carry out contracts of any kind (including contracts of insurance covering risks to Company assets and Governor liability), as may be lawfully carried on or performed by a limited liability company under the laws of each jurisdiction in which the Company is then formed or qualified;

 

(x)                                    Take, or refrain from taking, all actions, not expressly proscribed or limited by this Agreement, as may be necessary or appropriate to accomplish the purposes of the Company;

 

(xi)                                 Institute, prosecute, defend, settle, compromise, and dismiss lawsuits or other judicial or administrative proceedings brought on or in behalf of, or against, the Company, the Members or any Governor in connection with activities arising out of, connected with, or incidental to this Agreement, and engage counsel or others in connection therewith;

 

(xii)                              Purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in or obligations of domestic or foreign business entities, including corporations, associations, general or limited partnerships or other limited liability companies, or individuals or direct or indirect obligations of the United States or of any government, state, territory, government district or municipality or of any instrumentality of any of them;

 

(xiii)                         Subject to Section 2 hereof, designate classes or series of Units, agree with any Person as to the form and other terms and conditions of such Person’s Capital Contribution to the Company and cause the Company to issue Units in consideration of such Capital Contribution; and

 

(xiv)                          Indemnify a Member or Governor or officer or former Member or Governor or officer, and make any other indemnification that is authorized by this Agreement in accordance with the Act.

 

The Board may adopt such policies, rules, and regulations and may take such actions as it shall deem advisable in furtherance of the purposes of the Company, provided that the Board shall not act in a manner contrary to this Agreement.

 

(b)                                  No later than sixty (60) days prior to the beginning of each Fiscal Year, the Board shall adopt an Annual Operating Budget and Annual Capital Budget covering the Fiscal Year commencing in sixty (60) days. The Annual Operating Budget shall include projected operating revenues, expenses and working capital reserves for the Fiscal Year, and the Annual Capital Budget shall include projected capital expenditures and investments for the Fiscal Year. The Budgets may but shall not be required to be incorporated into a business plan for the Fiscal Year containing such other information, plans and strategies as the Board deems advisable. The Board may amend the Company’s Annual Operating Budget or Annual Capital Budget at any time.

 

(c)                                   Notwithstanding any other provision of this Agreement (including without limitation Section 5.1(a)), the Board may not take or approve the following actions, agreements, instruments or items without the affirmative vote of at least two-thirds of the voting power of the

 

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Governors in office:

 

(i)                                      The plans and specifications of the Company’s proposed ethanol plant and the contract to design and construct the proposed ethanol plant;

 

(ii)                                   The amount and terms of the debt financing and all documents and agreements entered into in connection therewith to construct and finance the start-up costs of the proposed ethanol plant;

 

(iii)                                The Annual Operating and Capital Budgets for each Fiscal Year;

 

(iv)                               Any contract, obligation, liability, disbursement or lawsuit settlement outside of the ordinary course of business in excess of $100,000 which is not part of the then current Fiscal Year’s approved Annual Operating or Capital Budget (provided that necessary expenditures to meet operational emergencies at the proposed ethanol plant may be incurred prior to such approval if immediate action is required for the safety or operation of the proposed ethanol plant);

 

(v)                                  Any investment in excess of $100,000 which is not part of the then current Fiscal Year’s approved Annual Capital Budget;

 

(vi)                               The acceptance of additional Capital Contributions, the issuance of additional Units, or the issuance of options or warrants to purchase Units;

 

(vii)                            The determination of the Gross Asset Values of the Company Property;

 

(viii)                         The admission of new Members and the terms of such admission;

 

(ix)                                 The sufficiency of any legal opinion required under Section 10 of this Agreement or the waiver of any such legal opinion;

 

(x)                                    Any tax elections under Section 8.3(a) of this Agreement; or

 

(xi)                                 Any amendment to the Articles or this Agreement.

 

(d)                                  Notwithstanding any other provision of this Agreement (including without limitation Section 5.1(a)), without the approval or consent of a Majority in Interest of the Members, the Board shall not have authority to approve, authorize or take any of the following actions with respect to the Company: (i) sell, lease, exchange or otherwise dispose of all or substantially all of the assets of the Company; (ii) merge or consolidate the Company with another Person; (iii) materially change the business purpose of the Company; or (iv) voluntarily dissolve the Company.

 

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5.2                                Actions by Governors; Committees; Reliance on Authority.

 

(a)                                   In managing the business and affairs of the Company and in exercising the powers and privileges of the Company, Governors shall act on behalf of the Company only (i) collectively through meetings of the Board held and conducted pursuant to the provisions of this Agreement or by written action taken pursuant to the provisions of this Agreement, (ii) through committees established pursuant to Section 5.2(b), and (iii) through officers of the Board and officers of the Company to whom authority and duties have been delegated pursuant to the provisions of this Agreement.

 

(b)                                  The Board, by resolution approved by the affirmative vote of a majority of the Governors then holding office, may from time to time establish one or more committees, each of which shall be comprised of one or more natural persons who may but need not be Governors or Members, provided that a majority of committee members on each committee must be a Governor or Member.  Any such committee shall have and may exercise only such authority and duties to the extent provided by the Board in such resolution, subject at all times to the limitations set forth in the Act, this Agreement and to the direction and control of the Board.  Unless otherwise provided by the Board, the presence of a majority of the members of any such committee shall constitute a quorum for the transaction of business at a meeting of the committee, and the committee shall act by the affirmative vote of a majority of committee members present at a duly held meeting.  In other matters of procedure the provisions of this Agreement shall apply to committees and the members thereof to the same extent they apply to the Board and Governors, including, without limitation, the provisions with respect to meetings and notice thereof, absent members, written actions, and valid acts.  Each committee shall keep regular minutes of its proceedings and report the same to the Board.  The Board may dissolve any committee at any time.

 

(c)                                   Any Person dealing with the Company, other than a Member or a Governor or an Affiliate of a Member or Governor, may rely on the authority of any officer of the Board or any officer of the Company in taking any action in the name of the Company without inquiry into the provisions of this Agreement or compliance herewith, regardless of whether the action is actually taken in accordance with the provisions of this Agreement, unless the Person dealing with the Company has actual knowledge that the officer lacks authority to act or the Act establishes that the officer lacks authority to act.

 

5.3                                The Board of Governors.

 

(a)                                   Number, Qualification and Term of Office.

 

(i)                                      Initial Board of Governors .  Governors shall be elected or appointed by the Members at the times, in the manner and for the terms as prescribed by this Agreement.  The initial Governors of the Company comprising the initial Board, who shall serve for such terms and in such manner as prescribed by this Agreement, are the following persons:

 

Robert J. Ferguson

 

 

Michael S. Kunerth

 

 

Timothy O. Helgemoe

 

 

Milton J. McKeown

 

 

 

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David J. Woestehoff

 

 

David J. Bach

 

 

Merrill Grisham

 

 

Doug Schmitz

 

 

Robert Wolf

 

 

 

and such other eligible natural persons designated as an initial Governor by the initial Board.  The number of initial Governors serving the Company shall be established by the initial Board, provided that the number of initial Governors shall not be less than seven (7) nor more than thirteen (13).

 

(ii)                                   Board of Governors following Financial Closing .  Commencing on the next business day following Financial Closing, the Board shall be composed of the Governors subject to appointment by certain Members pursuant to Section 5.3(a)(iv) below, if any, and the Governors subject to election by the Members pursuant to section 5.3(a)(iii) below, if any.  The number of Governors serving the Company following Financial Closing shall be established by the initial Board and thereafter may be changed by the Board from time to time, in each case having due consideration for the equitable representation of the membership, provided that (A) the number of Governors shall not be less than seven (7) nor more than eleven (11), (B) the number of Governors shall not be less than the number of Governors subject to appointment by certain Members pursuant to Section 5.3(a)(iv) below, and (C) the Board may not act so as to shorten the term of a Governor previously elected (the initial Governors and Governors designated to serve following Financial Closing pursuant to Section 5.3(a)(iii) below shall not be considered “previously elected” Governors for purposes of the foregoing clause).

 

(iii)                                Election of Governors; Terms .  Beginning at the annual meeting of the Members to be held in 2007 (“2007 Annual Meeting”), Governors shall be elected by the Members in such manner and for such terms as prescribed by this Agreement, subject to the right of certain Members to appoint Governors to the extent provided by Section 5.3(a)(iv) below.  A Member who is entitled to appoint one or more Governors pursuant to Section 5.3(a)(iv) below and such Member’s Affiliates shall not be entitled to vote for the election (or removal) of Governors by the Members, as their right to representation exists in their right of appointment.  Except as otherwise provided herein, all Governors elected by the Members shall serve three-year terms and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.  In order to preserve continuity of governance and the harmonious transition of the initial Governors to the elected Governors, the initial Board shall designate from among its members the Governors subject to election by the Members pursuant to this Section 5.3(a)(iii) to serve on the Board following Financial Closing until their successors are duly elected and qualified, and the terms of the Governors so designated shall be staggered such that one-third of such Governors (or as nearly as possible) shall be elected annually by the Members at the 2007 Annual Meeting and continuing each year thereafter.  The Board shall adopt nomination, reporting and other election procedures in advance of the 2007 Annual Meeting to achieve the desired staggered effect and election matters prescribed by this Agreement.

 

(iv)                               Appointed Governors .  Any Member who, together with such Member’s Affiliates, holds nine percent (9%) or more of the Units outstanding shall be entitled to appoint one Governor (each, an “ Appointed Governor ”) to the Board for every 9% of Units

 

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held.  In determining the appointment rights of Members and their Affiliates under this Section 5.3(a)(iv), Members and their Affiliates shall be counted only once, and the right of appointment accrues only on whole blocks of 9%.  For example, a Member who, together with such Member’s Affiliates, holds 17% of the Units outstanding would be entitled to appoint only one Governor.  A Member and such Member’s Affiliates shall agree among themselves on how the appointment rights provided in this Section 5.3(a)(iv) shall be exercised, and shall notify the Board of such agreement.  If any Member has the right to appoint more than one Governor under this Section 5.3(a)(iv), the voting power of all Governors such Member has the right to appoint may be exercised by any one or more such Appointed Governors, as further described in Section 5.3(i) below.  An Appointed Governor shall serve indefinitely at the pleasure of the Member appointing him or her (so long as such Member and its Affiliates continue to hold a sufficient number of Units to maintain the applicable appointment right) until a successor is appointed, or until the earlier death, resignation or removal of the Appointed Governor.  An Appointed Governor may be removed for any reason by the Member appointing him or her, upon written notice to an officer of the Board, which notice may designate and appoint a successor Governor to fill the vacancy, and which notice may be given at a meeting of the Board attended by the person appointed to fill the vacancy.

 

(v)                                  Qualification .  The initial Governors of the Company may but need not be Members, provided that a majority of the initial Governors must be Members or elected or appointed representatives of Members that are not natural persons.  The participation of non-member Governors in the management and decisions of the Board prior to the Effective Date of this Agreement is hereby confirmed and ratified in all respects.  Following the 2007 Annual Meeting, all Governors subject to election by the Members must be Members or elected or appointed representatives of Members that are not natural persons.  The provisions of this Section 5.3(a)(v) shall not apply to Appointed Governors.

 

(b)                                  Resignation.  Any Governor may resign at any time.  Such resignation shall be made in writing and shall take effect at the time specified therein or, if no time be specified then at the time of its receipt by the President or the Secretary of the Company.  The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation.

 

(c)                                   Removal.   An initial Governor or a Governor designated to serve following Financial Closing pursuant to Section 5.3(a)(iii) above may be replaced or removed for cause by the affirmative vote of two-thirds of the remaining initial or designated Governors, as the case may be (excluding Appointed Governors).  Following the election of a Governor, the Governor may be removed for any reason by the Members in such manner as prescribed by this Agreement.  The notice of the meeting shall state that such removal will be discussed and acted upon at the meeting, and must also be provided to the Governor in question at least ten (10) days in advance of such meeting.  The Governor in question has a right to be heard at such meeting.  The provisions of this Section 5.3(c) shall not apply to Appointed Governors.

 

(d)                                  Vacancies.    Any vacancy occurring on the Board (whether by reason of an increase in the number of Governors or by reason of a vacancy in an existing Governor seat)

 

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may be filled by appointment through an affirmative vote of a majority of the remaining Governors subject to election by the Members, though less than a quorum.  A Governor appointed by the Board to fill a vacancy at any time after the 2007 Annual Meeting shall serve until the next annual meeting of the Members (or special meeting held for the purpose of electing Governors), at which time the Members shall elect a new Governor to serve for the remainder of the original term of the vacated position.  The provisions of this Section 5.3(d) shall not apply to vacancies in Appointed Governor seats.

 

(e)                                   Meetings.   Regular meetings of the Board shall be held from time to time as determined by the Board.  Special meetings of the Board shall be held upon the call of the President or three (3) or more Governors.  Board meetings shall be held at the principal office of the Company or at such other place, either within or without the State of Minnesota, as shall be designated by the person calling the meeting and stated in the notice of the meeting or a duly executed waiver of notice thereof.  Governors may participate in a Board meeting by means of video or audio conferencing or similar communications equipment whereby all Governors participating in the meeting can hear each other.

 

(f)                                     Notice.   Oral or written notice of each meeting of the Board, stating the place, day and hour of the meeting, shall be given to each Governor at least 3 days before the day on which the meeting is to be held.  The notice or waiver of notice of any special or regular meeting of the Board does not need to specify the business to be transacted or the purpose of the meeting.

 

(g)                                  Waiver.   Whenever any notice is required to be given to a Governor under the provisions of this Agreement, a waiver thereof in writing signed by the Governor, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.  Attendance of a Governor at any meeting of the Board shall constitute waiver of notice of such meeting by the Governor, except where the Governor attends a meeting for the express purpose of stating his objection to the transaction of any business because the meeting is not lawfully called or convened.

 

(h)                                  Quorum.   Two-thirds of the voting power of the Governors in office shall constitute a quorum necessary for the transaction of business at any regular or special meeting of the Board.  If less than a quorum is present, those Governors present may adjourn the meeting from time to time until a quorum shall be present.

 

(i)                                      Voting and Act of the Board.   Each Governor shall have one vote; provided, however, that to the extent a Member holds the right to appoint more than one Governor pursuant to Section 5.3(a)(iv), the Board voting rights represented thereby may be exercised by any one or more such Appointed Governors present at such a meeting.  For example, if a Member is entitled to appoint two Governors pursuant to Section 5.3(a)(iv), each of the two such Appointed Governors may cast one vote on any matter considered by the Board at the meeting, or one such Appointed Governor may cast two votes (regardless of whether the there are one or two such Appointed Governors then serving). If more than one Governor appointed by a Member is present at a meeting then, unless such Appointed Governors shall

 

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announce the voting power to be exercised by each at such meeting at the beginning of the meeting, the voting power represented by such Appointed Governors shall be deemed to be evenly apportioned among them.  The Board shall take action by the affirmative vote of a majority of the voting power of the Governors present at a duly held meeting at which a quorum is present.

 

(j)                                      Action Without a Meeting.   Any action required or permitted to be taken at a meeting of the Board may be taken by written action signed by all of the Governors comprising the Board.

 

(k)                                   Absentee Governors.   A Governor of the Company may give advance written consent or opposition to a proposal to be acted on at a Board meeting.  If the Governor is not present at the meeting, consent or opposition to a proposal does not constitute presence for purposes of determining the existence of a quorum, but consent or opposition shall be counted as a vote in favor of or against the proposal and shall be entered in the minutes or other record of action at the meeting, if the proposal acted on at the meeting is substantially the same or has substantially the same effect as the proposal to which the Governor has consented or objected.

 

(l)                                      Compensation.   The Board may fix the compensation, if any, of Governors.  Governors shall also be entitled to reimbursement for actual expenses incurred in attending meetings of the Board or other business of the Company.

 

5.4                                Duties and Obligations of Governors.

 

(a)                                   Duties.   The Board shall cause the Company to conduct its business and operations separate and apart from that of any Member, Governor or any of its Affiliates.  The Board shall take all actions which may be necessary or appropriate (i) for the continuation of the Company’s valid existence as a limited liability company under the laws of the State of Minnesota and each other jurisdiction in which such existence is necessary to protect the limited liability of Members or to enable the Company to conduct the business in which it is engaged, and (ii) for the accomplishment of the Company’s purposes, including the acquisition, development, maintenance, preservation, and operation of Company property in accordance with the provisions of this Agreement and applicable laws and regulations. Each Governor shall have the duty to discharge the foregoing duties in good faith, in a manner the Governor reasonably believes to be in the best interests of the Company, and with the care an ordinarily prudent person in a like position would exercise under similar circumstances.  No Governor shall be under any other duty to the Company or the Members to conduct the affairs of the Company in a particular manner.

 

(b)                                  Employment of CEO.   At a reasonable time prior to the estimated start-up date of the Company’s operations, the Board shall select, employ, and fix the compensation of the CEO of the Company, who may be a member of the Board.  The CEO position shall be the principal executive officer position of the Company, and the CEO shall be the chief executive officer and chief manager of the Company.  The CEO shall have responsibility for all administrative and operational aspects of the Company, shall have responsibility for hiring and supervising all employees, and shall perform such other duties that may be assigned by the Board.

 

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(c)                                   Bonds and Insurance.   The Board may require all officers, agents and employees charged by this Company with responsibility for the custody of any of its funds or property to give bonds.  Bonds shall be furnished by a responsible bonding company and approved by the Board, and the cost shall be paid by the Company.  The Board shall cause the Company to provide for insurance of the property of the Company, or property which may be in the possession of the Company and not otherwise adequately insured by the owner of the property.  In addition, the Board shall cause the Company to provide for insurance covering liability of the Company to all employees and the public, in such commercially reasonable amounts as is customary for businesses similar to the Company.

 

5.5                                Officers.

 

(a)                                   Number; Qualification; Election .  Officers must be natural persons, and shall be elected or appointed by the Board on an annual or more often basis as determined by the Board.  The officers of the Company shall consist of a President, one or more Vice Presidents, a Secretary, a Treasurer, a CEO, and such other officers and assistant officers of the Company appointed by the Board as it deems necessary or advisable.  The President and Vice President may also be referred to as Chairman and Vice Chairman, respectively, and such officers must be Governors.  If the Company has more than one Vice President, then the Vice President who is also a Governor shall be considered the Vice Chairman officer and shall carry with it the requirement that such Vice President / Vice Chairman position must be held by a Governor.  All other officers of the Company, including any other Vice Presidents, may but need not be Governors.  Any number of officer positions or functions of those officer positions may be held or exercised by the same person.  Except as otherwise provided in this Agreement, the Board shall fix the powers, duties, and compensation of all officers of the Company.

 

(b)                                  Term of Office .  Any officer of the Company shall hold office at the pleasure of the Board and may be removed at any time with or without cause, subject to any contract rights which then may be in existence.

 

(c)                                   Removal and Vacancies .  Any officer elected or appointed by the Board may be removed, with or without cause, at any time by a resolution of the Board.  Any vacancy in an office of the Company shall be filled by a resolution of the Board.  An officer may resign at any time by giving written notice to the Company.  The resignation is effective without acceptance when the notice is given to the Company, unless a later effective date is specified in the notice.

 

(d)                                  President .  Unless provided otherwise by a resolution adopted by the Board, the President shall preside at meetings of the Members and Board; shall see that all orders and resolutions of the Board are carried into effect; may execute all documents, agreements, and instruments on behalf of the Company; may maintain records of and certify proceedings of the Board and Members; and shall perform such other duties as may from time to time be prescribed by the Board.

 

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(e)                                   Vice President .  The Vice President shall, in the absence or disability of the President, perform the duties and exercise the powers of the President and shall perform such other duties as the Board or the President may from time to time prescribe.  The Board may designate more than one Vice President, in which case the Vice President shall be designated as to denote which is most senior in office.

 

(f)                                     Treasurer .  Unless provided otherwise by a resolution adopted by the Board, the Treasurer shall be the Chief Financial Officer of the Company and: shall keep accurate financial records for the Company; shall deposit all monies, drafts, and checks in the name of and to the credit of the Company in such banks and depositories as the Board shall designate from time to time; shall endorse for deposit all notes, checks, and drafts received by the Company as ordered by the Board, making proper vouchers therefor; shall disburse Company funds and issue checks and drafts in the name of the Company as ordered by the Board, shall render to the CEO and the Board, whenever requested, an account of all such Officer’s transactions as Treasurer and of the financial condition of the Company, and shall perform such other duties as may be prescribed by the Board or the President from time to time.

 

(g)                                  Secretary .  The Secretary shall attend all meetings of the Board and of the Members and shall maintain records of, and whenever necessary, certify all proceedings of the Board and of the Members.  The Secretary shall keep the required records of the Company, when so directed by the Board or other person or persons authorized to call such meetings, shall give or cause to be given notice of meetings of the Members and of meetings of the Board, and shall also perform such other duties and have such other powers as the President or the Board may prescribe from time to time.

 

(h)                                  Delegation .  Unless prohibited by a resolution of the Board, an officer elected or appointed by the Board may delegate in writing some or all of the duties and powers of such person’s management position to other persons.  An officer who delegates the duties or powers of an office remains subject to the standard of conduct for an officer with respect to the discharge of all duties and powers so delegated.

 

(i)                                      Compensation .  Officers shall receive such compensation as may be determined from time to time by resolution of the Board.

 

5.6                                Limitation of Liability; Indemnification of Governors and Officers.

 

(a)                                   No Governor or officer of the Company shall be personally liable to this Company or its Members for monetary damages for a breach of fiduciary duty by such Governor or officer; provided that this provision shall not eliminate or limit the liability of a Governor or officer to the extent provided by applicable law (i) for a breach of the Governor’s duty of loyalty to the Company or its Members; (ii) for acts or omissions that are not in good faith or involve intentional misconduct or a knowing violation of law or, with respect to an officer, for acts of negligence; (iii) for knowing violations of securities laws section 80A.23 of Minnesota Statutes or for illegal distributions; (iv) for a transaction from which the Governor derived an improper personal benefit; or (v) for an act or omission occurring prior to the effective date of the corresponding provision of the

 

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Articles.  It is the intention of the Members to limit or eliminate the personal liability of Governors to the greatest extent permitted under Minnesota law.  If amendments to Minnesota Statutes are passed after this provision becomes effective which authorize limited liability companies to act to further limit or eliminate the personal liability of governors of a limited liability company, then the liability of Governors shall be limited or eliminated to the greatest extent permitted by Minnesota Statutes, as so amended.  No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any Governor for or with respect to any acts or omissions of such Governor occurring prior to such amendment or repeal.

 

(b)                                  The Company, its receiver, or its trustee (in the case of its receiver or trustee, to the extent of Company Property) shall indemnify, defend, save harmless, and pay all judgments and claims against, and reasonable expenses of, each present and former Governor or officer relating to any liability or damage or reasonable expenses incurred with respect to a proceeding if the Governor or officer (or former Governor or officer) was a party to the proceeding in the capacity of a Governor or officer of the Company (which reasonable expenses including reasonable attorneys’ fees may be paid as incurred). Notwithstanding the foregoing provisions, the Company shall not indemnify, defend, save harmless, or pay all judgments and claims against, and reasonable expenses of, a Governor or officer (or former Governor or officer) under this provision where such judgments and claims or proceedings arise out of or are related to matters for which a Governor or officer (or former Governor or officer) is personally liable under Section 5.6(a) hereof.

 

(c)                                   The Company may purchase and maintain insurance on behalf of any person in such person’s official capacity against any liability or expense asserted against or incurred by such person in or arising from that capacity, whether or not the Company would be required or permitted to indemnify the person against the liability.

 

5.7                                Member Compensation; Expenses; Loans

 

(a)                                   Except as otherwise provided in a written agreement approved by the Board, no Member shall receive any salary, fee, or draw for services rendered to or on behalf of the Company.  Except as otherwise approved by or pursuant to a policy approved by the Board, no Member shall be reimbursed for any expenses incurred by such Member on behalf of the Company.

 

(b)                                  Any Member or Affiliate may, with the consent of the Board, lend or advance money to the Company.  If any Member or Affiliate shall make any loan or loans to the Company or advance money on its behalf, the amount of any such loan or advance shall not be treated as a contribution to the capital of the Company but shall be a debt due from the Company.  The amount of any such loan or advance by a lending Member or Affiliate shall be repayable out of the Company’s cash and shall bear interest at a rate not in excess of the prime rate established, from time to time, by any major bank selected by the Board for loans to its most creditworthy commercial borrowers, plus up to four percent (4%) per annum as agreed upon by the Board and the Member, and on such other terms and conditions no less favorable to the Company than if the lender had been an independent third party.  None of the Members or their Affiliates shall be obligated to make any loan or advance to the Company.

 

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5.8                                Contracts with Governors or their Affiliates.

 

(a)                                   No contract or transaction between the Company and a Governor or its Affiliate or between the Company and any other entity in which a Governor or its Affiliate has a material financial interest shall be void or voidable or require the Governor to account to the Company and hold as trustee for it any profit or benefit derived therefrom solely for this reason, or solely because the Governor is present at or participates in the Board meeting at which the contract or transaction is authorized, if (i) the material facts as to the contract or transaction and as to the Governor’s or Governors’ material financial interest are fully disclosed or known to the Board, and (ii) the Board determines that the terms of the contract or transaction are commercially reasonable and no less favorable to the Company than could be obtained from an unaffiliated third party and authorizes, approves or ratifies the contract or transaction in good faith by a majority vote, but the interested Governor or Governors are not counted in determining the presence of a quorum and must not vote.

 

(b)                                  No contract or transaction involving the sale or delivery of corn between the Company and a Governor or its Affiliate or between the Company and any other entity in which a Governor or its Affiliate has a material financial interest shall be void or voidable or require the Governor to account to the Company and hold as trustee for it any profit or benefit derived therefrom solely for this reason, or solely because the Governor is present at or participates in the Board meeting at which or pursuant to which the contract or transaction is authorized or approved, notwithstanding the fact that the standard of Section 5.8(a) was not met, provided that the terms of the contract or transaction are or were commercially reasonable and no less favorable to the Company than could be or could have been obtained from an unaffiliated third party.

 

SECTION 6

MEMBERS

 

6.1                                Members; Rights and Powers Generally.

 

(a)                                   As of the Effective Date, the Members of the Company are the Persons who were members of the Company immediately prior to the Effective Date as shown on the books and records of the Company.

 

(b)                                  Additional persons may, upon the approval of the Board, become Members of the Company: (i) by submitting a completed subscription agreement to subscribe for Units in the Company upon the terms and conditions as may be set forth in the subscription agreement, which shall include a representation and warranty that the representations and warranties required of all Members in this Agreement are true and correct with respect to such Person, and the acceptance thereof by the Company, (ii) by meeting any and all requirements of membership established in or pursuant to this Agreement, (iii) by submitting an executed counterpart signature agreeing to be bound by this Agreement, (iv) by submitting payment of the purchase price for the number of Units subscribed for in the subscription agreement, in accordance with the terms of the subscription agreement, and (v) upon being admitted as a Member by the Board; or in any other manner

 

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authorized in or pursuant to this Agreement.  The Board may refuse to admit any Person as a Member in its sole discretion.

 

(c)                                   Transferees of Units may become Members as provided in Section 10.6 hereof.

 

(d)                                  Other than the right to elect or appoint Governors to the Board, no Member, other than a Member acting in his, her or its capacity as an officer of the Board or as an offericer of the Company, has any right or power to take part in the management or control of the Company or its business and affairs.  No Member other than a Member acting in his, her or its capacity as an officer of the Board or as an officer of the Company, has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company, or to incur any expenditures on behalf of the Company, except with the prior written consent of the Board.

 

(e)                                   No Member shall have any voting right except with respect to those matters requiring a Member vote or approval as specifically provided for in this Agreement or as otherwise required by the Act.

 

6.2                                Membership Requirements and Member Voting.

 

(a)                                   Membership.   Each Member of the Company must own, or must have entered into a binding written agreement with and accepted by the Company to subscribe for, a minimum of twenty five hundred (2,500) Units, on and after the date that the Company first issues Units in connection with its closing on all or a portion of subscription agreements received and accepted in accordance with the terms of its 2004 Offering or September 23, 2004, whichever occurs first.  Failure of any Member to own or to subscribe for such minimum number of Units on or after such date shall result in the automatic termination of membership of such Person, without further notice or action by the Company, and such Person shall become and be a non-member Unit Holder, with no rights other than those financial rights with respect to the Units owned by such Person as provided for in and subject to this Agreement, as further described in Section 6.4 hereof. The Board shall have authority to increase the minimum ownership requirements and to place other membership restrictions on the holders of Class B Units.

 

(b)                                  Voting.   Beginning with the 2007 Annual Meeting, Members shall elect Governors to the Board as provided in Section 5.3(a)(iii) of this Agreement.  In addition, Members shall be entitled to vote on any other matters coming to a vote of the Members as specifically provided by this Agreement or as required by the Act.  Each Member may cast one vote for each Unit held.  The Members shall not be entitled to cumulate their voting power for the election of Governors.  On those matters specifically identified in Sections 2.2, 5.1(c) and 9.1 of this Agreement as requiring the approval or consent of a Majority in Interest of the Members, the Members shall take action by the affirmative vote of a Majority in Interest of the Members.  On all other matters to be voted upon by the Members, including the election (or removal) of Governors by the Members, Members shall take action by the affirmative vote of the Members holding a majority of the voting power of the Members present, either in person, by proxy or by written ballot, at a duly held meeting of the Members at which a quorum is present for the transaction of business; provided, however, that

 

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in determining the voting power present for the purpose of the election (or removal) of Governors, Units held by Members who are entitled to appoint one or more Governors pursuant to Section 5.3(a)(iv) and such Members’ Affiliates shall not be considered, and Members who are entitled to appoint one or more Governors pursuant to Section 5.3(a)(iv) and such Member’s Affiliates shall not be entitled to vote for the election (or removal) of Governors by the Members, as their right to representation exists in their right of appointment..

 

6.3                                Member Meetings.

 

(a)                                   Place and Manner of Meeting.   All meetings of Members shall be held at such time and place, within or without the State of Minnesota, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.  Presence in person, or by proxy or written ballot, shall constitute participation in a meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully convened.

 

(b)                                  Conduct of Meetings.   All meetings of the Members shall be presided over by the President.  All meetings of the Members shall be conducted in general accordance with the most recent edition of Roberts’ Rules of Order , or such other rules and procedures as may be determined by the Board in its discretion.

 

(c)                                   Annual Meeting.   The annual meeting of the Members for the transaction of all business which may properly come before the meeting, including the election of Governors to the Board as provided in Section 5.3(a)(iii) of this Agreement, shall be held on a date determined by the Board.  Failure to hold the annual meeting at the designated time shall not be grounds for dissolution of the Company.

 

(d)                                  Special Meetings.   Special meetings of the Members may be called at any time by the President, the Board or by the Secretary upon the request of Members holding ten percent (10%) or more of the Units then held by all Members.  Such request shall state the purpose or purposes of such meeting and the matters proposed to be acted on at the special meeting.

 

(e)                                   Notice.   Written or printed notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than 15 nor more than 60 days before the date of the meeting either personally or by mail, by or at the direction of the President, the Secretary or the Board calling the meeting, to each Member entitled to vote at the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at the Member’s address as it appears on the records of the Company, with postage thereon prepaid.  If the purpose of the meeting is to consider removal of a Governor or any item requiring Member consent or approval pursuant to Section 2.2, 5.1(c) or 9.1 hereof, then the notice shall state such purpose, identify such Governor (if applicable), and a summary of the transaction to be considered or a verbatim statement of the amendment to be considered must accompany the notice.

 

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(f)                                     Quorum.   At any annual or special meeting of the Members, a Majority in Interest of Members, represented in person or by proxy, shall constitute a quorum necessary for the transaction of business.  The Members present at a duly organized meeting at which a quorum is present may transact business until adjournment, notwithstanding the departure or withdrawal of Members leaving less than a quorum.  The registration shall be verified by the Secretary and shall be reported in the minutes of the meeting.

 

(g)                                  Record Date.   For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof or in order to make a determination of Members for any other proper purpose, the Board may provide that the record books shall be closed for a stated period not exceeding 15 days. If the record books shall be closed for the purpose of determining Members entitled to notice of or to vote at a meeting of Members, such books shall be closed for a period not exceeding 15 days immediately preceding such meeting. In lieu of closing the record books, the Board may fix in advance a date as the record date for any such determination of Members, such date in any case to be not more than 60 days and in the case of a meeting of Members, not less than 15 days prior to the date of which the particular action requiring such determination of Members is to be taken. If the record books are not closed and no record date is fixed for the determination of Members entitled to notice of or to vote at a meeting of Members, the date on which notice of the meeting is mailed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 6.3(g), such determination shall apply to any adjournment thereof, except where the determination has been made through the closing of record books and the stated period of closing has expired.

 

(h)                                  Proxies.   At all meetings of Members, a Member may vote by proxy executed in writing by the Member or by his duly authorized attorney-in-fact.  Such proxy shall be filed with the Secretary of the Company before or at the time of the meeting. A proxy shall be considered filed with the Company when received by the Company at its executive offices, unless later revoked. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Member executing it.

 

6.4                                Termination of Membership.

 

A Member may not be expelled, provided that the failure of a Member to comply with the membership requirements established in, or pursuant to authority granted by, this Agreement  shall result in the termination of membership of such Person.  The membership of a Member in the Company shall terminate upon the occurrence of events described in this Agreement or as otherwise provided for in the Act, including resignation and withdrawal.  In the event a Person ceases to be a Member without having transferred all of the Units owned by such Person, such Person shall lose all voting rights and shall be considered merely an assignee of the financial rights associated with the Units held by such Person, having only the rights of an unadmitted assignee.  Such Person shall remain subject to the applicable provisions of this Agreement with respect to such financial rights.  Such Person shall have no right to any information or accounting of the affairs of the Company, shall not be entitled to inspect the books or records of the Company, shall not be entitled to vote on any matters reserved to the Members, and shall not have any of the other rights of a Member under this

 

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Agreement or of a member under the Act.  Further, such Person shall not have the right to Transfer such Person’s Units except by means of a Permitted Transfer in accordance with the provisions of Section 10 herein.

 

6.5                                Continuation of the Company.

 

The Company shall not be dissolved upon the occurrence of any event which is deemed to terminate the continued membership of a Member.  The Company’s affairs shall not be required to be wound up.  The Company shall continue without dissolution.

 

6.6                                No Obligation to Purchase Member’s Interest.

 

No Member whose membership in the Company terminates, nor any transferee of such Member, shall have any right to demand or receive a return of such terminated Member’s Capital Contributions or to require the purchase or redemption of the Units owned by such terminated Member.  The other Members and the Company shall not have any obligation to purchase or redeem the Units or Capital Contributions of any such terminated Member or transferee of any such terminated Member.  No Member whose membership has terminated shall be entitled to receive a distribution in complete redemption of the fair value of the Units or Capital Contributions of such Person (except as provided in Section 12 hereof following a Dissolution Event), notwithstanding any provisions of the Act or any other provision of law.  As a material part of the consideration for continuing or becoming a Member of the Company, each Member hereby waives any right, and expressly agrees that it intends for this provision to negate any entitlement to receive a distribution in complete redemption of the fair value of Units or Capital Contributions of such Member upon an event that terminates the membership of such Member which, in the absence of the provisions in this Agreement, it may otherwise be afforded by the Act.

 

6.7                                Waiver of Dissenters’ Rights.   Except for those transactions or events for which waiver of dissenters rights is expressly prohibited by the Act, each Member hereby waives and agrees not to assert any dissenters’ rights under the Act.

 

SECTION 7

UNIT CERTIFICATES

 

7.1                                Certificates For Units.

 

Certificates representing Units of the Company shall be in such form as determined by the Board. The President or the Vice President and by the Secretary or assistant Secretary of the Company shall sign the certificates. All certificates shall be consecutively numbered or otherwise identified. The name and address of the person to whom the certificate has been issued shall be entered on the books of the Company. All certificates surrendered to the Company for transfer shall be canceled and no new certificates shall be issued until the former certificate is surrendered and canceled by the Company.

 

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7.2                                Transfer of Certificates.

 

Transfer of certificates of the Company shall be made pursuant to this Agreement and only by the holder of record thereof or by the holder’s legal representative, who shall furnish proper evidence of authority to transfer, or by the holder’s attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary of the Company, and upon surrender of the certificate to the Company for cancellation. The Person in whose name the certificate appears on the books of the Company is deemed to be the owner thereof for all purposes.

 

7.3                                Loss or Destruction of Certificates.

 

In case of loss or destruction of any certificate, another certificate may be issued in its place upon proof of such loss or destruction, and upon the holder of the certificate giving a satisfactory bond of indemnity to the Company and to the transfer agent and registrar, if any, of such certificate, in such amount as the Board may provide.

 

7.4                                Certificate Regulations.

 

The Board have the power and authority to make such further rules and regulations, not inconsistent with this Agreement and the statutes of the State of Minnesota, as they may deem expedient concerning the issue, transfer, conversion and registration of certificates of the Company, including the appointment or designation of one or more transfer agents and one or more registrars. The Company may act as its own transfer agent and registrar.

 

7.5                                Legends.

 

The Board may place one or more legends on the certificates representing the Units to indicate restrictions on transfer, registration requirements, or other restrictions or obligations contained herein.

 

SECTION 8

ACCOUNTING, BOOKS AND RECORDS

 

8.1                                Accounting, Books and Records.

 

(a)                                   The books and records of the Company shall be kept, and the financial position and the results of its operations recorded, in accordance with GAAP, consistently applied; provided, that the financial provisions in this Agreement relating to Capital Contributions, Profits and Losses, distributions and Capital Accounts shall be construed and determined in accordance with this Agreement without regard to whether such provisions are inconsistent with GAAP.  The books and records shall reflect all the Company’s transactions and shall be appropriate and adequate for the Company’s business.  The Company shall maintain at its principal office all of the following:

 

(i)                                      A current list of the full name and last known business or residence address of each Unit Holder set forth in alphabetical order, together with the Capital Contributions, Capital Account and Units of each Unit Holder;

 

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(ii)                                   The full name and business address of each Governor;

 

(iii)                                A copy of the Articles and any and all amendments thereto together with executed copies of any powers of attorney pursuant to which the Articles or any amendments thereto have been executed;

 

(iv)                               Copies of the Company’s federal, state, and local income tax or information returns and reports, if any, for the six most recent taxable years;

 

(v)                                  A copy of this Agreement and any and all amendments thereto together with executed copies of any powers of attorney pursuant to which this Agreement or any amendments thereto have been executed;

 

(vi)                               Copies of the financial statements of the Company, if any, for the six most recent Fiscal Years; and

 

(vii)                            The Company’s books and records as they relate to the internal affairs of the Company for at least the current and past four Fiscal Years.

 

(b)                                  The Company shall use the accrual method of accounting in preparing its financial reports and for tax purposes and shall keep its books and records accordingly. The Board may, without any further consent of the Unit Holders (except as specifically required by the Code), apply for IRS consent to, and otherwise effect a change in, the Company’s Fiscal Year.

 

8.2                                Reports.

 

(a)                                   In General. The Treasurer of the Company shall be responsible for causing the preparation of financial reports of the Company and the coordination of financial matters of the Company with the Company’s accountants.

 

(b)                                  Periodic and Other Reports. The Company shall maintain and provide to each Member upon request, the financial statements listed in clauses (i) and (ii) below, prepared, in each case (other than with respect to Unit Holder’s Capital Accounts, which shall be prepared in accordance with this Agreement) in accordance with GAAP consistently applied, and such other reports as any Member may reasonably request from time to time; provided that, if the Board so determines within thirty (30) days thereof, such other reports shall be provided at such requesting Member’s sole cost and expense.

 

(i)                                      As soon as practicable following the end of each Fiscal Year (and in any event not later than ninety (90) days after the end of such Fiscal Year and at such time as distributions are made to the Unit Holders pursuant to Section 12 hereof following the occurrence of a Dissolution Event, a balance sheet of the Company as of the end of such Fiscal Year and the related statements of operations, Unit Holders’ Capital Accounts and changes therein, and cash flows for such Fiscal Year, together with appropriate notes to such financial statements and supporting schedules, all of which shall be audited and certified by the Company’s accountants, and in each

 

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case, to the extent the Company was in existence, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year end (in the case of the balance sheet) and the two (2) immediately preceding Fiscal Years (in the case of the statements).

 

(ii)                                   As soon as practicable following the end of the first three Fiscal Quarters of each Fiscal Year (and in any event not later than forty-five (45) days after the end of such Fiscal Quarter), an unaudited balance sheet of the Company as of the end of such Fiscal Quarter and the related unaudited statements of operations and cash flows for such Fiscal Quarter and for the Fiscal Year to date, in each case, to the extent the Company was in existence, setting forth in comparative form the corresponding figures for the prior Fiscal Year’s Fiscal Quarter and the Fiscal Quarter just completed.

 

8.3                                Tax Matters.

 

(a)                                   Tax Elections. The Board shall, without any further consent of the Members being required (except as specifically required herein), make any and all elections for federal, state, local, and foreign tax purposes including, without limitation, any election, if permitted by applicable law: (i) to make the election provided for in Code Section 6231(a)(1)(B)(ii) or take any other action necessary to cause the provisions of Code Sections 6221 through 6231 to apply to the Company [ refers to election by certain “small partnerships” that are not covered by the TEFRA audit rules to have such rules apply to them ] (ii) to adjust the basis of Property pursuant to Code Sections 754, 734(b) and 743(b), or comparable provisions of state, local or foreign law, in connection with Transfers of Units and Company distributions; (iii) with the consent of all of the Members, to extend the statute of limitations for assessment of tax deficiencies against the Unit Holders with respect to adjustments to the Company’s federal, state, local or foreign tax returns; and (iv) to the extent provided in Code Sections 6221 through 6231 and similar provisions of federal, state, local, or foreign law, to represent the Company and the Unit Holders before taxing authorities or courts of competent jurisdiction in tax matters affecting the Company or the Unit Holders in their capacities as Unit Holders, and to file any tax returns and execute any agreements or other documents relating to or affecting such tax matters, including agreements or other documents that bind the Unit Holders with respect to such tax matters or otherwise affect the rights of the Company and the Unit Holders. The Board shall designate a qualifying Member to act as the tax matters partner within the meaning of and pursuant to Regulations Sections 301.6231(a)(7)-1 and —2 or any similar provision under state or local law.

 

(b)                                  Tax Information. Necessary tax information shall be delivered to each Unit Holder as soon as practicable after the end of each Fiscal Year of the Company but not later than five (5) months after the end of each Fiscal Year.

 

8.4                                Delivery to Members and Inspection.

 

(a)                                   Upon the written request of any Member for purposes reasonably related to the interest of that Person as a Member, the Board shall cause the Company to deliver to the requesting Member, at the expense of the Company, a copy of the Company’s most recent annual financial statement and its most recent federal, state, and local income tax returns and reports.

 

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(b)                                  Each Member (or, in the case of Section 8.4(b)(i) below, his, her or its designated representative) has the right, upon reasonable written request for purposes reasonably related to the interest of the Person as a Member and for proper purposes, to:

 

(i)                                      Inspect and copy during ordinary business hours, at the Member’s expense, any of the Company records described in Sections 8.1(a)(i) through (vi) and, with respect to the Company records described in Section 8.1(a)(i), if such records are not available the Member shall be entitled to bring an action against the Company to obtain such records and recover its reasonable attorneys fees incurred in bringing such an action;

 

(ii)                                   Obtain from the Company true and full information regarding the current state of the Company’s financial condition, subject to normal changes or adjustments arising after, or following the end of, the period covered by such information; and

 

(iii)                                Obtain other information regarding the Company’s affairs or inspect during ordinary business hours other books and records of the Company as is just and reasonable.

 

(c)                                   The rights granted to a Member pursuant to this Section 8.4 are expressly subject to compliance by such Member with the safety, security and confidentiality procedures and guidelines of the Company, as such procedures and guidelines may be established from time to time by the Board, and to the provisions of Section 1.11 hereof.  Unadmitted assignees of Units shall not have the right to information regarding the Company afforded Members hereunder or by the Act.

 

SECTION 9

AMENDMENTS

 

9.1                                Amendments.

 

(a)                                   Amendments to this Agreement may be proposed by the Board or by the request of Members holding ten percent (10%) or more of the Units then held by all Members.  The Board shall submit to the Members a verbatim statement of any proposed amendment, providing that counsel for the Company shall have approved of the same in writing as to form, and the Board shall include in any such submission a recommendation as to the proposed amendment. The Board shall seek the written vote of the Members on the proposed amendment or shall call a meeting to vote thereon and to transact any other business that it may deem appropriate. A proposed amendment shall be adopted and be effective as an amendment hereto only if approved by a Majority in Interest of the Members.

 

(b)                                  Notwithstanding Section 9.1(a) hereof:

 

(i)                                      Except as provided in Section 2.2 for authorizations and designations of additional classes or series of Units and changes in numbers of authorized Units of any class or

 

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series (including Class A Units), this Agreement shall not be amended without the approval or consent of each Unit Holder adversely affected if such amendment would modify the limited liability of a Unit Holder, or the voting rights or interest of a Unit Holder in Profits, Losses, other items, or any distributions;

 

(ii)                                   A provision of this Agreement that requires the approval or consent of a specified percentage in interest of the Members or any class(es) or series thereof may not be amended without the affirmative vote of Members holding at least the specified percentage of the Units then held by all Members, or of the Units of the specified class(es) or series of Units then held by all Members; and

 

(iii)                                This Section 9 shall not be amended without the approval or consent of all Members.

 

SECTION 10

TRANSFERS

 

10.1                         Restrictions on Transfers.

 

No Transfer of Units shall be valid except as specifically permitted by this Section 10 of this Agreement.  It is the intent of this Agreement that (i) the tax status of the Company be the same as for a partnership, (ii) this Company preserve its partnership tax status by complying with Regulations Section 1.7704-1, et seq., and any amendments thereto, and (iii) to the extent possible, this Agreement shall be read and interpreted to prohibit the free transferability of Units.

 

10.2                         Permitted Transfers.

 

(a)                                   No Transfer of Units shall be binding on this Company without the approval of the Board nor until such Transfer shall have been entered in the books and records of this Company. The Board may adopt a Unit Transfer Policy to further implement the provisions of this Section 10.  The Board shall not approve, and the Company shall not recognize for any purpose, any purported Transfer of Units unless and until the provisions, conditions and restrictions set forth in this Section 10 (including Section 10.3 hereof) and of any Unit Transfer Policy adopted by the Board have been satisfied.  Any Transfer approved by the Board and satisfying the provisions, conditions and restrictions set forth in this Section 10 (including Sections 10.2 and 10.3 hereof) shall be referred to in this Agreement as a “Permitted Transfer” .  Notwithstanding the foregoing, a Member may pledge or otherwise encumber all or any portion of its Units as security for the payment of debt, provided that any subsequent foreclosure or transfer to the secured party in lieu of foreclosure shall be considered a Transfer for all purposes of this Agreement.

 

(b)                                  Following a Permitted Transfer, the Units held by the transferee shall remain subject to the Transfer restrictions set forth in this Section 10.

 

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10.3                         Conditions to Permitted Transfers.

 

A Transfer shall not be treated as a Permitted Transfer under Section 10.2 hereof unless and until the following conditions are satisfied:

 

(a)                                   Except in the case of a Transfer involuntarily by operation of law, the transferor and transferee shall execute and deliver to the Company (i) such documents and instruments of conveyance as may be necessary or appropriate in the opinion of counsel to the Company to effect such Transfer. In the case of a Transfer of Units involuntarily by operation of law, the Transfer shall be confirmed by presentation to the Company of legal evidence of such Transfer, in form and substance satisfactory to counsel to the Company. In all cases, the Company shall be reimbursed by the transferor and/or transferee for all costs and expenses that it reasonably incurs in connection with such Transfer.

 

(b)                                  The transferor and transferee shall furnish the Company with the transferee’s taxpayer identification number, sufficient information to determine the transferee’s initial tax basis in the Units transferred, and any other information reasonably necessary to permit the Company to file all required federal and state tax returns and other legally required information statements or returns. Without limiting the generality of the foregoing, the Company shall not be required to make any distribution otherwise provided for in this Agreement with respect to any transferred Units until it has received such information.

 

(c)                                   Except in the case of a Transfer of Units involuntarily by operation of law, either (a) such Units shall be registered under the Securities Act, and any applicable state securities laws, or (b) such Transfer shall be exempt from all applicable registration requirements and will not violate any applicable laws regulating the Transfer of securities, in the opinion of counsel to the Company.

 

(d)                                  Except in the case of a Transfer of Units involuntarily by operation of law, such Transfer will not cause the Company to be deemed to be an “investment company” under the Investment Company Act of 1940, in the opinion of counsel to the Company.

 

(e)                                   Except in the case of a Transfer of Units involuntarily by operation of law, such Transfer will not cause the Company to be deemed to be a “publicly-traded limited partnership” under applicable provisions of the Code, in the opinion of counsel to the Company.

 

(f)                                     Unless otherwise approved by the Board, no Transfer of Units shall be made except upon terms which would not, in the opinion of counsel chosen by and mutually acceptable to the Board and the transferor Member, result in the termination of the Company within the meaning of Section 708 of the Code or cause the application of the rules of Sections 168(g)(1)(B) and 168(h) of the Code or similar rules to apply to the Company. In determining whether a particular proposed Transfer will result in a termination of the Company, counsel to the Company shall take into account the existence of prior written commitments to Transfer made pursuant to this Agreement and such commitments shall always be given precedence over subsequent proposed Transfers.

 

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(g)                                  No notice or request initiating the procedures contemplated by Section 10.3 may be given by any Member after a Dissolution Event has occurred.  No Member may Transfer all or any portion of its Units after a Dissolution Event has occurred.

 

The Board shall have the authority to waive any legal opinion or other condition required in this Section10.3.

 

10.4                         Prohibited Transfers.

 

(a)                                   Any purported Transfer of Units that is not a Permitted Transfer shall be null and void and of no force or effect whatever; provided that, if the Company is required to recognize a Transfer that is not a Permitted Transfer (or if the Board, in its sole discretion, elects to recognize a Transfer that is not a Permitted Transfer), the Units Transferred shall be strictly limited to the transferor’s rights to allocations and distributions as provided by this Agreement with respect to the transferred Units, which allocations and distributions may be applied (without limiting any other legal or equitable rights of the Company) to satisfy any debts, obligations, or liabilities for damages that the transferor or transferee of such Units may have to the Company.

 

(b)                                  In the case of a Transfer or attempted Transfer of Units that is not a Permitted Transfer, the parties engaging or attempting to engage in such Transfer shall be liable to indemnify and hold harmless the Company and the other Members from all cost, liability, and damage that any of such indemnified Members may incur (including, without limitation, incremental tax liabilities, lawyers’ fees and expenses) as a result of such Transfer or attempted Transfer and efforts to enforce the indemnity granted hereby.

 

10.5                         Rights of Unadmitted Assignees.

 

Unless admitted as a Member pursuant to Section 10.6 hereof, a Person who acquires Units and is not already a Member shall only be entitled to allocations and distributions with respect to such Units in accordance with this Agreement, and shall not have any right to any information or accounting of the affairs of the Company, and shall not be entitled to inspect the books or records of the Company, and shall not have any of the rights of a Member under the Act or this Agreement.  In addition, the Units held by such Person shall continue to be subject to the restrictions on Transfer provided for in this Section 10.

 

10.6                         Admission of Transferees as Members.

 

A transferee of Units (whether as a result of a Permitted Transfer or otherwise) may be admitted as a Member only upon satisfaction of each of the following conditions:

 

(a)                                   The transferee acquired its Units by means of a Permitted Transfer;

 

(b)                                  The transferee meets all requirements of membership established in or pursuant to this Agreement (including Section 6.2(a) hereof), and such admission is approved by the Board which approval may be given or withheld in the sole and absolute discretion of the Board;

 

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(c)                                   The transferee of Units (other than, with respect to clauses (i) below, a transferee that was a Member prior to the Transfer) shall, by submitting an executed counterpart signature page agreeing to be bound by this Agreement and such other written instruments in form and substance reasonably satisfactory to the Board (and, in the case of clause (ii) below, the transferor Member), (i) accept and adopt the terms and provisions of this Agreement, including this Section 10, and (ii) assume the obligations of the transferor Member under this Agreement with respect to the transferred Units;

 

(d)                                  The transferee pays or reimburses the Company for all reasonable legal, filing, and publication costs that the Company incurs in connection with the admission of the transferee as a Member; and

 

(e)                                   Except in the case of a Transfer involuntarily by operation of law, the transferee (other than a transferee that was a Member prior to the Transfer) shall deliver to the Company evidence of the authority of such Person to become a Member and to be bound by all of the terms and conditions of this Agreement, and the transferee and transferor shall each execute and deliver such other instruments as the Members reasonably deems necessary or appropriate to effect, and as a condition to, such Transfer, including amendments to the Articles or any other instrument filed with the State of Minnesota or any other state or governmental authority.

 

10.7                         Representations Regarding Transfers; Legend.

 

(a)                                   Each Member hereby covenants and agrees with the Company for the benefit of the Company and all Members, that (i) it is not currently making a market in Units and will not in the future make a market in Units, (ii) it will not Transfer its Units on an established securities market, a secondary market (or the substantial equivalent thereof) within the meaning of Code Section 7704(b) (and any Regulations, proposed Regulations, revenue rulings, or other official pronouncements of the Internal Revenue Service or Treasury Department that may be promulgated or published thereunder), and (iii) in the event such Regulations, revenue rulings, or other pronouncements treat any or all arrangements which facilitate the selling of Company interests and which are commonly referred to as “matching services” as being a secondary market or substantial equivalent thereof, it will not Transfer any Units through a matching service that is not approved in advance by the Company. Each Member further agrees that it will not Transfer any Units to any Person unless such Person agrees to be bound by this Section 10.7(a) and to Transfer such Units only to Persons who agree to be similarly bound.

 

(b)                                  Each Member hereby represents and warrants to the Company and the Members that such Member’s acquisition of Units hereunder is made as principal for such Member’s own account and not for resale or distribution of such Units. Each Member further hereby agrees that the following legend may be placed upon any counterpart of this Agreement, the certificate, or any other document or instrument evidencing ownership of Units:

 

A Public Company Legend approved by the Board; and

 

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The Units represented by this document are subject to further restriction as to their sale, transfer, hypothecation, or assignment as set forth in the Member Control Agreement and agreed to by each Member. Said restriction provides, among other things, that no vendee, transferee, assignee, or endorsee of a Member shall have the right to become a Member without the consent of the Company’s Board of Governors which consent may be given or withheld in the sole and absolute discretion of the Board of Governors.

 

10.8                         Distributions and Allocations in Respect of Transferred Units.

 

If any Units are Transferred during any Fiscal Year in compliance with the provisions of this Section 10, Profits, Losses, each item thereof, and all other items attributable to the Transferred Units for such Fiscal Year shall be divided and allocated between the transferor and the transferee by taking into account their varying interests during the Fiscal Year in accordance with Code Section 706(d), using any conventions permitted by law and adopted from time to time by the Board. All distributions on or before the date of such Transfer shall be made to the transferor, and all distributions thereafter shall be made to the transferee. Solely for purposes of making such distributions, the Company shall recognize such Transfer not later than the end of the calendar month during which it is given notice of such Transfer, provided that, if the Company is given notice of a Transfer at least ten (10) Business Days prior to the Transfer, the Company shall recognize such Transfer as of the date of such Transfer, and provided further that if the Company does not receive a notice stating the date such Units were transferred and such other information as the Board may reasonably require within thirty (30) days after the end of the Fiscal Year during which the Transfer occurs, then all distributions may be made to the Person who, according to the books and records of the Company, was the Member of the Units on the last day of such Fiscal Year. Neither the Company nor any Unit Holder shall incur any liability for making allocations and distributions in accordance with the provisions of this Section 10.8, whether or not the Unitholders or the Company has knowledge of any Transfer of any Units.  The Members acknowledge that the method and convention designated by the Board constitutes an agreement among the partners within the meaning of Regulations Section 1.706-1.

 

SECTION 11

[INTENTIONALLY OMITTED]

 

SECTION 12

DISSOLUTION AND WINDING UP

 

12.1                         Dissolution Events.

 

(a)                                   Dissolution. The Company shall dissolve and shall commence winding up and liquidating upon the first to occur of any of the following (each a “Dissolution Event” ):

 

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(i)                                      The affirmative vote of a Majority in Interest of the Members to dissolve, wind up, and liquidate the Company; or

 

(ii)                                   The entry of a decree of judicial dissolution pursuant to the Act.

 

(b)                                  The Members hereby agree that, notwithstanding any provision of the Act, the Company shall not dissolve prior to the occurrence of a Dissolution Event.

 

12.2                         Winding Up.

 

Upon the occurrence of a Dissolution Event, the Company shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Members, and no Unit Holder shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Company’s business and affairs, provided that all covenants contained in this Agreement and obligations provided for in this Agreement shall continue to be fully binding upon the Unit Holders until such time as the Property has been distributed pursuant to this Section 12.2 and the Company has been terminated pursuant to the Act. The Liquidator shall be responsible for overseeing the prompt and orderly winding up and dissolution of the Company. The Liquidator shall take full account of the Company’s liabilities and Property and shall cause the Property or the proceeds from the sale thereof (as determined pursuant to Section 12.10 hereof), to the extent sufficient therefor, to be applied and distributed, to the maximum extent permitted by law, in the following order:

 

(a)                                   First, to creditors (including Governors and Members who are creditors, to the extent otherwise permitted by law) in satisfaction of all of the Company’s Debts and other liabilities (whether by payment or the making of reasonable provision for payment thereof), other than liabilities for which reasonable provision for payment has been made; and

 

(b)                                  Second, the balance, if any, to the Unit Holders in accordance with the positive balance in their Capital Accounts, after giving effect to all contributions, distributions and allocations for all periods.

 

12.3                         Compliance With Certain Requirements of Regulations; Deficit Capital Accounts.

 

In the event the Company is “liquidated” within the meaning of Regulations Section 1.704-1(b)(2)(ii)( g ), (a) distributions shall be made pursuant to this Section 12 to the Unit Holders who have positive Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)( b )( 2 ). If any Unit Holder has a deficit balance in his Capital Account (after giving effect to all contributions, distributions and allocations for all Fiscal Years, including the Fiscal Year during which such liquidation occurs), such Unit Holder shall have no obligation to make any contribution to the capital of the Company with respect to such deficit, and such deficit shall not be considered a debt owed to the Company or to any other Person for any purpose whatsoever. In the discretion of the Liquidator, a pro rata portion of the distributions that would otherwise be made to the Unit Holders pursuant to this Section 12 may be:

 

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(a)                                   Distributed to a trust established for the benefit of the Unit Holders for the purposes of liquidating Company assets, collecting amounts owed to the Company, and paying any contingent or unforeseen liabilities or obligations of the Company. The assets of any such trust shall be distributed to the Unit Holders from time to time, in the reasonable discretion of the Liquidator, in the same proportions as the amount distributed to such trust by the Company would otherwise have been distributed to the Unit Holders pursuant to Section 12.2 hereof; or

 

(b)                                  Withheld to provide a reasonable reserve for Company liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Company, provided that such withheld amounts shall be distributed to the Unit Holders as soon as practicable.

 

12.4                         Deemed Distribution and Recontribution.

 

Notwithstanding any other provision of this Section 12, in the event the Company is liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but no Dissolution Event has occurred, the Property shall not be liquidated, the Company’s Debts and other liabilities shall not be paid or discharged, and the Company’s affairs shall not be wound up. Instead, solely for federal income tax purposes, the Company shall be deemed to have contributed all of its Property and liabilities to a new limited liability company in exchange for an interest in such new company, and immediately thereafter, the Company will be deemed to liquidate by distributing such interest in the new company to the Unit Holders.

 

12.5                         Rights of Unit Holders.

 

Except as otherwise provided in this Agreement, each Unit Holder shall look solely to the Property of the Company for the return of its Capital Contribution and has no right or power to demand or receive Property other than cash from the Company. If the assets of the Company remaining after payment or discharge of the debts or liabilities of the Company are insufficient to return such Capital Contribution, the Unit Holders shall have no recourse against the Company or any other Unit Holder or Unit Holders.

 

12.6                         Notice of Dissolution/Termination.

 

(a)                                   Upon the occurrence of a Dissolution Event, the Board shall, within thirty (30) days thereafter, provide written notice thereof to each of the Unit Holders, and the Board may notify its known claimants and/or publish notice as further provided in the Act.

 

(b)                                  Upon completion of the distribution of the Company’s Property as provided in this Section 12, the Company shall be terminated, and the Liquidator shall cause the filing of a Articles of Termination in accordance with the Act and shall take all such other actions as may be necessary to terminate the Company.

 

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12.7                         Allocations During Period of Liquidation.

 

During the period commencing on the first day of the Fiscal Year during which a Dissolution Event occurs and ending on the date on which all of the assets of the Company have been distributed to the Unit Holders pursuant to Section 12.2 hereof (the “Liquidation Period” ), the Unit Holders shall continue to share Profits, Losses, gain, loss and other items of Company income, gain, loss or deduction in the manner provided in Section 3 hereof.

 

12.8                         Character of Liquidating Distributions.

 

All payments made in liquidation of the interest of a Unit Holder in the Company shall be made in exchange for the interest of such Unit Holder in Property pursuant to Section 736(b)(1) of the Code, including the interest of such Unit Holder in Company goodwill.

 

12.9                         The Liquidator.

 

(a)                                   Definition. The “Liquidator” shall mean a Person appointed by the Board to oversee the liquidation of the Company.  The Liquidator may be the Board or a committee of three or more Governors appointed by the Board.

 

(b)                                  Fees. The Company is authorized to pay a reasonable fee to the Liquidator for its services performed pursuant to this Section 12 and to reimburse the Liquidator for its reasonable costs and expenses incurred in performing those services.

 

(c)                                   Indemnification. The Company shall indemnify, save harmless, and pay all judgments and claims against such Liquidator or any officers, directors, agents or employees of the Liquidator relating to any liability or damage incurred by reason of any act performed or omitted to be performed by the Liquidator, or any officers, directors, agents or employees of the Liquidator in connection with the liquidation of the Company, including reasonable attorneys’ fees incurred by the Liquidator, officer, director, agent or employee in connection with the defense of any action based on any such act or omission, which attorneys’ fees may be paid as incurred, except to the extent such liability or damage is caused by acts or omissions that are not in good faith or involve negligence, fraud, intentional misconduct or a knowing violation of law, or for a transaction from which the Liquidator, officer, director, agent or employee derived an improper personal benefit.

 

12.10                  Form of Liquidating Distributions.

 

For purposes of making distributions required by Section 12.2 hereof, the Liquidator may determine whether to distribute all or any portion of the Property in-kind or to sell all or any portion of the Property and distribute the proceeds therefrom.

 

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SECTION 13

DISPUTE RESOLUTION

 

If a dispute arises out of or relates to this Agreement, or the performance or breach thereof, the parties agree first to try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to arbitration.  Thereafter, any remaining unresolved controversy or claim arising out of or relating to this Agreement, or the performance or breach thereof, shall be settled by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association as modified by this Section 13; PROVIDED, that this Section 13 shall not require use of the American Arbitration Association (only that such Rules as modified by this Section 13 shall be followed); and PROVIDED FURTHER, that arbitration shall not be required for allegations involving breach of contract, violations of state or federal securities laws, breach of fiduciary duty or other misconduct by the Company.  The arbitration shall be conducted in the State of Minnesota.  Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in any court having competent jurisdiction.  The parties shall (i) agree upon and appoint as the arbitrator a retired former trial Judge in Minnesota; (ii) direct the arbitrator to follow substantive rules of law and the Federal Rules of Evidence; (iii) allow for the parties to conduct discovery pursuant to the rules then in effect under the Federal Rules of Civil Procedure for a period not to exceed 60 days; (iv) require the testimony to be transcribed; and (v) require the award to be accompanied by findings of fact and a statement of reasons for the decision.  The cost and expense of the arbitrator and location costs shall be borne equally by the parties to the dispute.  All other costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute which is determined and/or settled by arbitration pursuant to this Section 13 shall be borne by the party incurring such cost and expense. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved.

 

SECTION 14

MISCELLANEOUS

 

14.1                         Notices.

 

Any notice, payment, demand, or communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be deemed to have been delivered, given, and received for all purposes (i) if delivered personally to the Person or to an officer of the Person to whom the same is directed, or (ii) when the same is actually received, if sent either by registered or certified mail, postage and charges prepaid, or by facsimile, if such facsimile is followed by a hard copy of the facsimile communication sent promptly thereafter by registered or certified mail, postage and charges prepaid, addressed as follows, or to such other address as such Person may from time to time specify by notice to the Company and the Unit Holders:

 

(a)                                   If to the Company, to the address determined pursuant to Section 1.4 hereof;

 

(b)                                  If to the Unit Holders, to the address set forth on record with the company;

 

B-47



 

14.2                         Binding Effect.

 

Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement shall be binding upon and inure to the benefit of the Members and their respective successors, transferees, and assigns.

 

14.3                         Construction.

 

Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any Member.

 

14.4                         Time.

 

In computing any period of time pursuant to this Agreement, the day of the act, event or default from which the designated period of time begins to run shall not be included, but the time shall begin to run on the next succeeding day. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday or legal holiday.

 

14.5                         Headings.

 

Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.

 

14.6                         Severability.

 

Except as otherwise provided in the succeeding sentence, every provision of this Agreement is intended to be severable, and, if any term or provision of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Agreement. Notwithstanding the foregoing, if such illegality or invalidity would be to cause any Member to lose the material benefit of its economic bargain, then the Members agree to negotiate in good faith to amend this Agreement in order to restore such lost material benefit.

 

14.7                         Incorporation by Reference.

 

Every exhibit, schedule, and other appendix attached to this Agreement and referred to herein is not incorporated in this Agreement by reference unless this Agreement expressly otherwise provides.

 

14.8                         Variation of Terms.

 

All terms and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, singular or plural, as the identity of the Person or Persons may require.

 

B-48



 

14.9                         Governing Law.

 

The laws of the State of Minnesota shall govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties arising hereunder.

 

14.10                  Waiver of Jury Trial.

 

Each of the Members irrevocably waives to the extent permitted by law, all rights to trial by jury and all rights to immunity by sovereignty or otherwise in any action, proceeding or counterclaim arising out of or relating to this Agreement.

 

14.11                  Counterpart Execution.

 

This Agreement may be executed in any number of counterparts with the same effect as if all of the Members had signed the same document. All counterparts shall be construed together and shall constitute one agreement.

 

14.12                  Specific Performance.

 

Each Member agrees with the other Members that the other Members would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms and that monetary damages would not provide an adequate remedy in such event. Accordingly, it is agreed that, in addition to any other remedy to which the nonbreaching Members may be entitled, at law or in equity, the nonbreaching Members shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and specifically to enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction thereof.

 

* * * * * * * * * * * * * * * * * * * * * * * * * *

 

IN WITNESS WHEREOF , the parties have adopted and entered into this Member Control Agreement as of the Effective Date.

 

B-49



 

ADDITIONAL MEMBER SIGNATURE PAGE

 

IN WITNESS WHEREOF, pursuant to Sections 6.1 and/or 10.6 of the Member Control Agreement of Heron Lake BioEnergy, LLC, of which this signature page is a part, in consideration of and as a condition to the undersigned’s being admitted as a Member and acquiring units in Heron Lake BioEnergy, LLC, the undersigned hereby executes and enters into this Member Control Agreement as an additional Member as of the Effective Date (as defined in this Member Control Agreement) or, if later, the effective date of the undersigned’s acquisition of Units and admission as a Member pursuant to this Member Control Agreement.  By execution of this signature page and on such date, the undersigned becomes a party to this Member Control Agreement, and agrees to be bound in all respects by the terms and conditions of this Member Control Agreement on and after such date.

 

Date Signed:

 

 

 

 

Individuals:

 

 

 

 

 

(signature)

 

(signature of joint investor)

 

 

 

 

 

(print name)

 

(print name of joint investor)

 

 

Entities:

 

 

 

 

(print name of entity)

 

 

 

 

 

 

(signature)

 

 

 

 

 

 

 

(print name of authorized signatory)

 

 

 

 

 

 

 

(print title of authorized signatory)

 

 

 

B-50


EXHIBIT 4.1

 

*Subject to the terms, conditions and restrictions printed on the back of this certificate and made a part hereof.*

 

ORGANIZED UNDER THE LAWS OF THE STATE OF MINNESOTA

 

CERTIFICATE NO.

 

00,000

UNITS

 

HERON LAKE BIOENERGY, LLC

 

Class A Units

 

THIS CERTIFIES THAT

 

is the owner of

 

  00,000    ) Class A Units of Heron Lake BioEnergy, LLC, transferable on the

books of the Company in person or by duly authorized Attorney upon surrender of this Certificate properly endorsed.

 

IN WITNESS WHEREOF, the Company has caused this Certificate to be signed by its duly authorized officers and sealed with the seal of the Company, as of the 5th day of October, 2005.

 

 

 

 

 

 

 

Secretary

 

NO SEAL

 

President

 


 

EXHIBIT 10.1

 

 

FOURTH AMENDED AND RESTATED

 

MASTER LOAN AGREEMENT

 

by and among

 

HERON LAKE BIOENERGY, LLC

 

and

 

AGSTAR FINANCIAL SERVICES, PCA

 

dated

as of

October 1, 2007

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I.

DEFINITIONS AND ACCOUNTING MATTERS2

 

 

 

 

Section 1.01

Certain Defined Terms

2

Section 1.02

Accounting Matters

12

Section 1.03

Construction

12

 

 

 

ARTICLE II.

AMOUNTS AND TERMS OF THE TERM LOANS

13

 

 

 

Section 2.01

Supplements

13

Section 2.02

Construction Loan

13

Section 2.03

Term Revolving Loan

13

Section 2.04

Revolving Line of Credit Loan

13

Section 2.05

Conversion of Construction Loan Into Term Loan

14

Section 2.06

Adjustments to Interest Rate

15

Section 2.07

Underwriting/Participation/Facility Fees

16

Section 2.08

Default Interest

16

Section 2.09

Late Charge

16

Section 2.10

Prepayment of Term Loan

16

Section 2.11

Changes in Law Rendering Certain LIBOR Rate Loans Unlawful

17

Section 2.12

Payments and Computations

17

Section 2.13

Maximum Amount Limitation

18

Section 2.14

Lender Records

18

Section 2.15

Loan Payments

19

Section 2.16

Purchase of Equity Interests in AgStar Financial Services, PCA

19

Section 2.17

Compensation

19

 

 

ARTICLE III

CONDITIONS PRECEDENT

20

 

 

 

Section 3.01

Conditions Precedent to Preliminary Advances

20

Section 3.02

Conditions Precedent to Construction Advances

24

 

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

24

 

 

 

Section 4.01

Representations and Warranties of the Borrower

24

 

 

ARTICLE V.

COVENANTS OF THE BORROWER

29

 

 

 

Section 5.01

Affirmative Covenants

29

Section 5.02

Negative Covenants

37

 

 

ARTICLE VI.

EVENTS OF DEFAULT AND REMEDIES

40

 

 

 

Section 6.01

Events of Default

40

Section 6.02

Remedies

43

Section 6.03

Remedies Cumulative

44

 

i



 

ARTICLE VII.

MISCELLANEOUS

45

 

 

 

Section 7.01

Amendments, etc

45

Section 7.02

Notices, etc.

45

Section 7.03

No Waiver; Remedies

46

Section 7.04

Costs, Expenses and Taxes

46

Section 7.05

Right of Set-off

46

Section 7.06

Severability of Provisions

47

Section 7.07

Binding Effect; Successors and Assigns; Participations

47

Section 7.08

Consent to Jurisdiction

48

Section 7.09

Governing Law

48

Section 7.10

Execution in Counterparts

48

Section 7.11

Survival

48

Section 7.12

Waiver of Jury Trial

48

Section 7.13

Entire Agreement

49

 

LIST OF SCHEDULES AND EXHIBITS

 

Schedule 3.01(d)

Real Property

Schedule 4.01(a)

Description of Certain Transactions Related to the Borrower’s Stock

Schedule 4.01(f)

Description of Certain Threatened Actions, etc.

Schedule 4.01(k)

Location of Inventory and Farm Products; Third Parties in Possession; Crops

Schedule 4.01(l)

Office Locations; Fictitious Names; Etc.

Schedule 4.01(p)

Intellectual Property

Schedule 4.01(t)

Environmental Compliance

Schedule 5.01(o)

Management

Schedule 5.02(a)

Description of Certain Liens, Lease Obligations, etc.

Schedule 5.02(k)

Transactions with Affiliates

 

 

Exhibit A

Compliance Certificate

Exhibit B

Project Sources and Uses Statement

Exhibit C

Form of Opinion Letter

 

ii



 

FOURTH AMENDED AND RESTATED MASTER LOAN AGREEMENT

 

THIS FOURTH AMENDED AND RESTATED MASTER LOAN AGREEMENT (this “Agreement” ), dated as of October 1, 2007, between AGSTAR FINANCIAL SERVICES, PCA, a United States corporation ( “Lender” ) and HERON LAKE BIOENERGY, LLC , a Minnesota limited liability company (the “Borrower” ).

 

RECITALS

 

A.                                    On or about September 29, 2005, Borrower and Lender entered into a Master Loan Agreement and First Supplement that provided for a construction loan in the amount of $59,883,000.00, for the purposes of acquiring, constructing, equipping and furnishing of an ethanol production facility to be located near Heron Lake, Jackson County, Minnesota (the “Project”).

 

B.                                      Simultaneously with the execution of the Master Loan Agreement and First Supplement, Borrower and Lender entered into a Second Supplement that provided for a revolving loan in the amount of $2,000,000.00, to provide for the general corporate and operating purposes of the Borrower and its subsidiaries.

 

C.                                      On or about May 12, 2006, Borrower and Lender entered into an Amended and Restated Master Loan Agreement and an Amended and Restated Second Supplement that amended certain terms and conditions of the credit facilities.

 

D.                                     On or about November 20, 2006, the Borrower and Lender entered into a Second Amended and Restated Second Supplement that increased the Elevator Revolving Note to provide for additional construction costs and additional operating costs related to the construction and operation of the Project.

 

E.                                       On or about December 27, 2007, the Borrower and Lender entered into a Second Amended and Restated Master Loan Agreement, an Amended and Restated First Supplement and a Third Amended and Restated Second Supplement that increased the Construction Loan to provide for additional construction costs related to the construction and operation of the Project.

 

F.                                       On or about May 18, 2007, the Borrower and Lender entered into a Third Amended and Restated Master Loan Agreement and a Fourth Amended and Restated Second Supplement that increased the Elevator Revolving Loan to provide for additional working capital related to the operation of the Project.

 

G.                                      The Borrower has further requested that the Construction Loan be converted into a term loan and a term revolving loan.

 

H.                                     The Lender is willing to extend such financing to the Borrower upon the terms and subject to the conditions set forth in this Agreement.

 

1



 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing, intending to be legally bound hereby, and in consideration of Lender making one or more loans to the Borrower, Lender and the Borrower agree as follows:

 

ARTICLE I.

DEFINITIONS AND ACCOUNTING MATTERS

 

Section 1.01.                              Certain Defined Terms . As used in this Agreement and in the Supplements, the following terms shall have the following meanings. Terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code, as amended from time to time. All references to dollar amounts shall mean amounts in lawful money of the United States of America.

 

Advances ” means the Loans or Letters of Credit provided the Borrower pursuant to this       Agreement and the Supplements to this Agreement.

 

Affiliate ” means, as to any Person, any other Person:  (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such Person; (b) that directly or indirectly beneficially owns or holds five percent (5%) or more of any class of voting stock of such Person; or (c) five percent (5%) or more of the voting stock of which is directly or indirectly beneficially owned or held by the Person in question. The term “control” means the possession, directly or indirectly, of the power to direct or cause direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise; provided, however , in no event shall the Lender or any Bank be deemed an Affiliate of the Borrower or any of their subsidiaries.

 

Air Permit ” means the air emissions permit the MPCA decided to issue to the Borrower for the Project in the Findings of Fact, Conclusions of Law and Order issued by the MPCA on May 10, 2005, in all material respects with the same terms and conditions proposed by MPCA as of that date, including the Project’s status as a synthetic minor source, and any amendments thereto issued by the MPCA, as modified by the compliance agreement entered into by and between the MPCA and the Borrower dated effective January 23, 2007, and including any applications for amendments thereto submitted or to be submitted to the MPCA by the Borrower, including the PSD major source permit application submitted in August 2007.

 

Agreement ” means this Agreement, as this Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Agreement from time to time.

 

Borrower ” means Heron Lake BioEnergy, LLC, a Minnesota limited liability company.

 

2



 

Borrower’s Equity ” means funds of at least 41.% of Project Costs, currently estimated to be $51,837,000.00, made up of the following amounts:  (i) members’ equity (including interest earned on member’s equity) of at least $50,747,000.00; and (ii) grants and loans from government agencies or utilities of not less than $1,090,000.00.

 

Business Day ” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Lender’s Office is located and, if such day relates to any LIBOR Rate, means any such day on which dealings in dollar deposits are conducted by and between banks in the applicable offshore dollar interbank market.

 

Capital Expenditures ” means, for any period, the sum of all amounts that would, in accordance with generally accepted accounting principles consistently applied, be included as additions to property, plant and equipment on a statement of cash flows for the Borrower during such period, with respect to:  (a) the acquisition, construction, improvement, replacement or betterment of land, buildings, machinery, equipment or of any other fixed assets or leaseholds; or (b) other capital expenditures and other uses recorded as capital expenditures having substantially the same effect.

 

Closing Date ” means October 1, 2007.

 

CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

 

Collateral ” means and includes, without limitation, all property and assets granted as collateral security for the Loans or Indebtedness, whether real or personal property, whether granted directly or indirectly, whether granted now or in the future, and whether granted in the form of a security interest, mortgage, assignment of rents, deed of trust, assignment, pledge, chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whether created by law, contract or otherwise.

 

Commitment ” means the respective amounts committed to by Lender under the Supplements and the Notes.

 

Compliance Certificate ” means a certificate of the Treasurer, or any other officer reasonably acceptable to the Lender, of the Borrower, substantially in the form attached hereto as Exhibit A, setting forth the calculations of current financial covenants and stating:  (a) the Financial Statements are true and correct and, other than the unaudited interim financial statements, have been prepared in accordance with generally accepted accounting principles consistently applied; (b) whether they have knowledge of the occurrence of any Event of Default under this Agreement, and if so, stating in reasonable detail the facts with respect thereto; and (c) reaffirm and ratify the representations and warranties, as of the date of the certificate, contained in this Agreement.

 

3



 

Construction Advance ” means any Advance, other than a Preliminary Advance, for the payment of Project Costs.

 

Construction Contracts ”  means any and all contracts, written or oral, between the Borrower and any Contractor and any subcontractor and between any of the foregoing and any other person or entity relating in any way to the construction of the Project, including the performing of labor or the furnishing of standard or specially fabricated materials in connection therewith.

 

Construction Loan ” means the loan from the Lender to the Borrower in the amount of $64,583,000.00 and pursuant to the terms and conditions provided for in the First Supplement to this Agreement.

 

Construction Note ” means that certain promissory note of even date herewith executed and delivered to the Lender by the Borrower in the amount of $64,583,000.00 and pursuant to the terms and conditions provided for in the Amended and Restated First Supplement to this Agreement.

 

Contractor ” means and includes any person or entity, including the General Contractor, engaged to work on or to furnish materials or supplies for the Project.

 

Current Portion of Long Term Debt ” means that portion of Funded Debt payable within one year from the date of such determination, determined in accordance with generally accepted accounting principles, consistently applied.

 

Debt ” means:  (A) indebtedness for borrowed money or for the deferred purchase price of property or services; (B) obligations as lessee under leases which shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases; (C) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (A) or (B) above or (E) through (G) below; (D) liabilities in respect of unfunded vested benefits under plans covered by Title IV of ERISA; (E) indebtedness in respect of mandatory redemption or mandatory dividend rights on equity interests but excluding dividends payable solely in additional equity interests; (F) all obligations of a Person, contingent or otherwise, for the payment of money under any noncompete, consulting or similar agreement entered into with the seller of a company or its assets or any other similar arrangements providing for the deferred payment of the purchase price for an acquisition permitted hereby or an acquisition consummated prior to the date hereof; and (G) all obligations of a Person under any Hedging Agreement.

 

Default Rate ” means the lesser of:  (a) the Maximum Rate; or (b) the rate per annum which shall from day-to-day be equal to two percent (2%) in excess of the then applicable rate of interest under any Supplement or Note.

 

4



 

Disbursing Agent ”  means Lender, its successors and assigns.

 

Disbursing Agreement ” means the Disbursing Agreement, dated December 27, 2006,  executed by the Title Company, the Borrower, and the Lender, as the same may be from time to time amended, modified, or supplemented.

 

Distribution ” means any dividend, distribution, payment, or transfer of property to any member of the Borrower.

 

Elevator Revolving Note ” means that certain promissory note in the amount of $7,500,000.00 executed and delivered to the Lender by the Borrower pursuant to the terms and conditions provided for in the Second Supplement to this Agreement.

 

Environmental Laws ” means all laws and regulations relating to environmental, health, safety and land use matters applicable to any property.

 

EBITDA ” means for any period, the total of the following each calculated without duplication for the Borrower for such period:  (i) net income from operations; plus (ii) any provision for (or less any benefit from) income taxes included in determining such net income; plus (iii) Interest Expense deducted in determining such net income; plus (iv) amortization and depreciation expense deducted in determining such net income.

 

ERISA ” means the Employee Retirement Income Security Act of 1974.

 

Events of Default ” has the meaning specified in Section 6.01.

 

Excess Cash Flow ” means EBITDA, less the sum of:  (i) required payments in respect of Funded Debt; (ii) Maintenance Capital Expenditures and (iii) an amount equal to 40% of Borrower’s current year’s Net Income.

 

Extraordinary Items ” means items which are material and significantly different from the Borrower’s typical business activities, determined in accordance with generally accepted accounting principles, consistently applied.

 

Fixed Charge Coverage Ratio ” means the ratio of (EBITDA +/- Extraordinary Items) divided by the sum of Current Portion of Long Term Debt + Interest Expense + dividends + Distributions + Tax Distributions + Maintenance Capital Expenditures) measured on a consolidated basis.

 

Food Security Act ” means the Food Security Act of 1985, 7 U.S.C. §1631, as amended, and the regulations promulgated thereunder.

 

Funded Debt ” means the principal amount of all Debt of the Borrower having a final maturity of more than one year from the date of origin thereof (or which is renewable or

 

5



 

extendible at the option of the obligor for a period or periods more than one year from the date of origin) excluding, however, the principal amount due under the Revolving Notes or any other line of credit used by Borrower for working capital purposes, all determined in accordance with generally accepted accounting principles, consistently applied for the period in question.

 

General Contractor ” means Fagen, Inc., a Minnesota corporation, and its successors and assigns.

 

Governmental Authority ” means and includes any and all courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, or otherwise) whether now or hereafter in existence.

 

Guarantor(s) ”  means Lakefield Farmers Elevator, LLC, a Minnesota limited liability company, and Roland Fagen, together with all other of the guarantors, sureties, and accommodation parties in connection with any Indebtedness.

 

Guaranties . The terms “Guaranty” and “Guaranties” shall mean those guaranties given by the Guarantor, pursuant to which the Guarantor shall guarantee the full and prompt payment and performance of the Borrower under the Notes and this Agreement.

 

Impound Agreement ” means that certain agreement dated as of September 16, 2004, by and between the Borrower and First State Bank Southwest, as amended, supplemented, modified, extended or restated.

 

Income Taxes ” means the applicable state, local or federal tax on the net income of the Borrower.

 

Inspecting Engineer ” means BBI, Inc., and its successors and permitted assigns.

 

Intellectual Property ” has the meaning specified in Section 4.01(p).

 

Interest Expense ” means for any period, the total interest expense of the Borrower calculated on a consolidated basis.

 

Interest Period ” means the period commencing on the date of an Advance and ending on the numerically corresponding day in the first calendar month thereafter, except that each such Interest Period which commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month. Notwithstanding the foregoing:  (a) each Interest Period which would otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day or if such succeeding Business Day falls in the next succeeding calendar month, on the next preceding Business Day; (b) any Interest Period which would otherwise extend beyond the

 

6



 

Maturity Date shall end on the Maturity Date; and (c) no Interest Period shall have a duration of less than one (1) month.

 

Inventory ” means all of the Borrower’s inventory, as such term is defined in the UCC, whether now owned or hereafter acquired, whether consisting of whole goods, spare parts or components, supplies or materials, whether acquired, held or furnished for sale, for lease or under service contracts or for manufacture or processing, and wherever located.

 

Lender ” means AgStar Financial Services, PCA, and its successors and assigns.

 

Letter of Credit ” means any letter of credit issued by Lender pursuant to the terms of this Agreement and any Supplement.

 

Letter of Credit Liabilities ” means, at any time, the aggregate maximum amount available to be drawn under all outstanding Letters of Credit (in each case, determined without regard to whether any conditions to drawing could then be met) and all unreimbursed drawings under Letters of Credit.

 

LIBOR Rate ” (London Interbank Offered Rate) means the rate (rounded upward to the nearest sixteenth and adjusted for reserves required on Eurocurrency Liabilities (as hereinafter defined) for banks subject to FRB Regulation D (as hereinafter defined) or required by any other federal law or regulation, quoted by the British Bankers Association (the “BBA”) at 11:00 a.m. London time two Banking Days (as hereinafter defined) before the commencement of the Interest Period for the offering of U.S. Dollar deposits in the London interbank market for an Interest Period of one month, as published by Bloomberg or another major information vendor listed on BBA’s official website. “Banking Day” shall mean a day on which Lender is open for business, dealings in U.S. dollar deposits are being carried out in the London interbank market, and banks are open for business in New York City and London, England. “Eurocurrency Liabilities” has the meaning as set forth in FRB Regulation D. “FRB Regulation D” means Regulation D as promulgated by the Board of Governors of the Federal Reserve System, 12 CFR Part 204, as amended from time to time.

 

“Loan and Carrying Charges ” means all commitment fees to the Lender, brokerage fees, standby fees, interest charges, service fees, attorneys’ fees, contractors’ fees, developers’ fees, funding fees, title insurance fees and charges, recording fees, registration taxes, real estate taxes, special assessments, insurance premiums, utility charges incurred by the Borrower in the construction of the Project and issuance of the Notes, all costs incurred in acquisition of the Real Property and any other costs incurred in the development of the Project.

 

Loan Documents ” means this Agreement, any and all Supplements to this Agreement, the Notes, Letters of Credit, the Security Agreement, the Mortgage and all other agreements, documents, instruments, and certificates of the Borrower delivered to, or in favor of, the Lender under this Agreement or in connection herewith or therewith, including, without

 

7



 

limitation, all agreements, documents, instruments, certificates and delivered in connection with the extension of Advances by the Lender.

 

Loan Obligations ” means all obligations, indebtedness, and liabilities of the Borrower to the Lender, including the Reimbursement Obligations, arising pursuant to any of the Loan Documents, whether now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, including, without limitation, the obligation of the Borrower to repay the Advances, interest on the Advances, and all fees, costs, and expenses (including attorneys’ fees and expenses) provided for in the Loan Documents.

 

Loan/Loans ” means and includes the Construction Loan, the Revolving Loan and any other financial accommodations extended to the Borrower by the Lender pursuant to the terms of this Agreement and any Supplements.

 

Long Term Debt ” means indebtedness that matures more than one year after the date of determination thereof.

 

Long Term Marketing Agreement ” means any contract, agreement or understanding of the Borrower having a term of one year or more after the date of determination thereof relating to the sale of any raw materials, inventory, products or by-products of the Borrower.

 

Maintenance Capital Expenditures ” means all Capital Expenditures made in the ordinary course of business to maintain existing business operations of the Borrower in any fiscal year, determined in accordance with generally accepted accounting principles, consistently applied.

 

Material Adverse Effect ” means any set of circumstances or events which:  (i) has or could reasonably be expected to have any material adverse effect upon the validity or enforceability of any Loan Documents or any material term or condition contained therein; (ii) is or could reasonably be expected to be material and adverse to the condition (financial or otherwise), business assets, operations, or property of the Borrower; or (iii) materially impairs or could reasonably be expected to materially impair the ability of the Borrower to perform the obligations under the Loan Documents.

 

Material Contract ” means (i) any contract or any other agreement, written or oral, or any of the Borrower or its Subsidiaries involving monetary liability of or to any such person in an amount in excess of $500,000.00 per annum; and (ii) any other contract or agreement, written or oral, of any of the Borrower or any of its Subsidiaries the failure to comply with which could reasonably be expected to have a Material Adverse Effect on any of the Borrower or its Subsidiaries; provided, however, that any contract or agreement which is terminable by a party other than any of the Borrower or its Subsidiaries without cause upon notice of 90 days or less shall not be considered a Material Contract.

 

Maturity Date ” means October 1, 2012.

 

8



 

Maximum Rate ” means the maximum nonusurious interest rate, if any, at any time, or from time to time, that may be contracted for, taken, reserved, charged or received under applicable state or federal laws.

 

Mortgage ” means that certain Third Amended and Restated Mortgage of even date                               herewith, pursuant to which a mortgage interest shall be given by the Borrower to the Lender         in the Real Property to secure payment to the Lender of the Loan Obligations.

 

MPCA ” means the Minnesota Pollution Control Agency of the State of Minnesota.

 

Net Income ” means income after all operating expenses including salaries and bonuses.

 

Note/Notes ” means and includes the Construction Note, Term Note, Term Revolving Note, and the Elevator Revolving Note and any promissory notes executed and delivered to the Lender by the Borrower pursuant to the terms of this Agreement and any Supplements as the same may be amended, modified, supplemented, extended or restated from time to time.

 

Ordinary Trade Payable Dispute ” means trade accounts payable, in an aggregate amount not in excess of $50,000.00 with respect to the Borrower, with respect to which:  (a) there exists a bona fide dispute between Borrower and the vendor; (b) the Borrower is contesting the same in good faith by appropriate proceedings; and (c) the Borrower has established appropriate reserves on its financial statements.

 

Owner Equity Ratio ” means Tangible Net Worth divided by total assets, measured on a consolidated basis.

 

Participation Fee ” shall have the meaning specified in Section 2.06.

 

Permit Litigation ” means (i) the dispute initiated by the Minnesota Center for Environmental Advocacy, Izaak Walton League of America, and Minnesotans for an Energy-Efficient Economy challenging the MPCA’s issuance of an air quality emissions permit to the Borrower for the Project as a synthetic minor source and any amendments thereto; and (ii) the compliance agreement entered into by and between the MPCA and the Borrower dated effective January 23, 2007, including any applications for amendments thereto submitted or to be submitted to the MPCA by the Borrower, including the PSD major source permit application submitted in August 2007, and any actions taken by the parties in connection therewith.

 

Person ” means any individual, corporation, business trust, association, company, partnership, joint venture, governmental authority, or other entity.

 

Personal Guarantor ” means Roland Fagen.

 

Personal Property ” means all buildings, structures, equipment, fixtures, improvements, building supplies and materials and personal property now or hereafter attached to, located

 

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in, placed in or necessary to the use of the improvements on the Real Property including, but without being limited to, all machinery, fixtures, equipment, furnishings, and appliances, as well as all renewals, replacements, additions, and substitutes thereof, and all products and proceeds thereof, and including without limitation all accounts, instruments, chattel paper, other rights to payment, money, deposit accounts, insurance proceeds and general intangibles of the Borrower, whether now owned or hereafter acquired.

 

Plans and Specifications ” means the final plans and specifications for the construction of the Project, to be prepared by the General Contractor, and approved by the Lender, and all amendments and modifications thereof approved by Lender.

 

Preliminary Advance ” means an Advance for purposes of (i) the acquisition of real property upon which the Project is to be constructed in an amount not to exceed $1,440,000.00;  (ii) preliminary excavation costs in an amount not to exceed $1,800,000.00; (iii) the acquisition of certain real property and improvements located in Lakefield, Minnesota in an amount not to exceed $1,950,000.00; and (iv) miscellaneous operating expenses of the Borrower in an amount not to exceed $500,000.00.

 

Program ” means the funds held program that Lender may offer, in its sole discretion and on such terms and conditions as Lender may establish from time to time, to permit the Borrower to make advance conditional payments on eligible loans.

 

Program Account ” means that account established by the Lender under the Program.

 

Project ” means any and all buildings, structures, fixtures, and other improvements made to the Real Property and other uses identified in the Project Sources and Uses Statement as part of the acquisition and construction of an ethanol production facility in Heron Lake, Minnesota, for which the Loans to Borrower are being made hereunder.

 

Project Costs ” means the total of all costs of acquiring the Real Property and constructing the Project as identified in the Project Sources and Uses Statement, together with all Loan and Carrying Charges.

 

Project Sources and Uses Statement ” means the statement attached hereto as Exhibit B which identifies the sources and uses of monies in a total amount of $123,920,000.00  related to the Project.

 

Real Property ” means that real property located in the County of Jackson, State of Minnesota, owned by the Borrower, upon which the Project is to be constructed and which is described in Schedule 3.01(d).

 

Reimbursement Obligation ” means the obligation of the Borrowers to reimburse the Lender for any demand for payment or drawing under a Letter of Credit.

 

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Related Documents ” means and includes without limitation all promissory notes, credit agreements, loan agreements, guaranties, security agreements, mortgages, deeds of trust, assignments and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.

 

Revolving Loan ” means any revolving loan provided by the Lender to the Borrower pursuant to the terms and conditions provided for in this Agreement and in any Revolving Loan Supplement.

 

Revolving Note ” means any promissory note executed and delivered to the Lender by the Borrower pursuant to the terms and conditions provided for in this Agreement and any Revolving Loan Supplement.

 

SARA ” means the Superfund Amendment and Reauthorizations Act of 1986, as amended.

 

Security Agreement ” means and includes, without limitation, any agreements, promises, covenants, arrangements, understandings, or other agreements, whether created by law, contract, or otherwise, which evidence, govern, represent, or create a Security Interest, as the same has been and may hereafter be amended or otherwise modified.

 

Security Interest ” means and includes without limitation any type of collateral security, whether in the form of a lien, charge, mortgage, assignment of rents, deed of trust, assignment, pledge, chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise.

 

Subordinated Debt ” means the following Debt:  (i) tax increment financing; (ii) debt owed the State of Minnesota or its agencies; and (iii) debt owed Federated Rural Electric Ass’n/USDA; and (iv) other Debt which has been approved by Lender in writing and subject to a subordination agreement acceptable to Lender in its sole discretion.

 

Subsidiary Guarantor ” means Lakefield Farmers Elevator, LLC, a Minnesota limited liability company.

 

Supplement ” has the meaning set forth in Section 2.01 of this Agreement.

 

Tangible Net Worth ” means the excess of total assets over total liabilities except Subordinated Debt, total assets and total liabilities each to be determined in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 5.01(c) for the Borrower, excluding, however, from the determination of total assets:  (i) goodwill, organizational expenses, research and development expenses, trademarks, trade names, copyrights, patents, patent applications, licenses and rights in any thereof, and other similar intangibles; (ii) treasury stock; (iii) securities which are not readily marketable; (iv) cash held in a sinking or other analogous

 

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fund established for the purpose of redemption, retirement or prepayment of capital stock or Debt; (v) any write-up in the book value of any asset resulting from a revaluation thereof subsequent to the Closing Date; (vi) amortized start-up costs; and (vii) any items not included in clauses (i) through (vi) above which are treated as intangibles in conformity with generally accepted accounting principles.

 

Tax Distributions ” has the meaning specified in Section 5.02(b).

 

Term Loan ” means any amortizing loan with a maturity of greater than one year provided by the Lender to the Borrower pursuant to the terms and conditions of this Agreement and Third Supplement to this Agreement.

 

Term Note ” means that certain promissory note of even date herewith executed and delivered to the Lender by the Borrower in the amount of $59,583,000.00 and pursuant to the terms and conditions provided for in the Agreement and the Third Supplement to this Agreement.

 

Term Revolving Loan Commitment ” shall mean the following:

 

On the Closing Date

 

$

5,000,000.00

 

October 1, 2008

 

$

4,500,000.00

 

October 1, 2009

 

$

4,000,000.00

 

October 1, 2010

 

$

3,500,000.00

 

October 1, 2011

 

$

3,000,000.00

 

 

 “ Term Revolving Note ” means that certain promissory note of even date herewith executed and delivered to the Lender by the Borrower in the amount of $5,000,000.00 and pursuant to the terms and conditions provided for in this Agreement and the Fourth Supplement to this Agreement.

 

Underwriting Fee ” shall have the meaning specified in Section 2.06.

 

Working Capital ” means current assets of the Borrower, including the available commitment under the Term Revolving Loan, less current liabilities of the Borrower.

 

Section 1.02.                              Accounting Matters . All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistently applied, except as otherwise stated herein. To enable the ready and consistent determination of compliance by the Borrower with its obligations under this Agreement, the Borrower will not change the manner in which either the last day of its fiscal year or the last days of the first three fiscal quarters of its fiscal years is calculated.

 

Section 1.03.                              Construction . Wherever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate. The headings, captions or arrangements used in any of the Loan Documents are, unless

 

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specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of the Loan Documents, nor affect the meaning thereof.

 

ARTICLE II

AMOUNTS AND TERMS OF THE LOANS

 

Section 2.01.                              Supplements . In the event the Borrower desires to borrow from Lender and Lender is willing to lend to the Borrower, or in the event Lender and Borrower desire to consolidate any existing loans hereunder, the parties will enter into a supplement to this Agreement (each supplement, as it may be amended, modified, supplemented, extended or restated from time to time, a Supplement and, collectively, the Supplements ). Each Supplement will set forth Lender’s commitment to make a Loan to the Borrower, the amount of the Loan(s), the purpose of the Loan(s), the interest rate or rate options applicable to the Loan(s), the repayment terms of the Loan(s), and any other terms and conditions applicable to the Loan(s). Each Supplement will also be accompanied by a Note of the Borrower setting forth the Borrower’s obligation to make payments of interest on the unpaid principal balance of the Loan(s), and fees and premiums, if any, and to repay the principal balance of the Loan(s). Each Loan will be governed by the terms and conditions contained in this Agreement and in the Note and the Supplement relating to that Loan.

 

Section 2.02.                              Construction Loan . Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in this Agreement, the Lender has agreed to lend to Borrower and Borrower has agreed to borrow from Lender $64,583,000.00. Such amount shall be loaned by Lender pursuant to the terms and conditions set forth in this Agreement and the First Supplement to this Agreement.

 

Section 2.03                                 Term Revolving Loan . Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in this Agreement, the Lender has agreed to lend to Borrower and Borrower has agreed to borrow from Lender, as of the Closing Date and from time to time thereafter, on a revolving basis an amount not to exceed the Term Revolving Loan Commitment. Such amount shall be loaned by Lender pursuant to the terms and conditions set forth in this Agreement and the Fourth Supplement to this Agreement. Pursuant to the terms and conditions in this Agreement, the Lender may extend additional Term Revolving Loans shall be provided by Lender pursuant to the terms and conditions of a further Term Revolving Loan Supplement.

 

Section 2.04.                              Revolving Line of Credit Loan . Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in this Agreement, the Lender has agreed, as of the Closing Date, to lend to Borrower and Borrower has agreed to borrow from Lender from time to time on a revolving basis an amount not to exceed $7,500,000.00. Such amount shall be loaned by Lender pursuant to the terms and conditions set forth in this Agreement and the Second Supplement to this Agreement. Pursuant to the terms and conditions in this Agreement, the Lender may extend additional Revolving Loans to the Borrower. Any such future Revolving Loans shall be provided by Lender pursuant to the terms and conditions of a future Revolving Loan Supplement.

 

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Section 2.05.                              Conversion of Construction Loan Into Term Loan and Term Revolving Loan . Pursuant to the terms and conditions contained in this Agreement, the Lender shall extend a Term Loan and Term Revolving Loan to the Borrower on the Closing Date, provided all of the terms, conditions, warranties, representations, and covenants of the Borrower set forth in this Agreement, the Third Supplement and the Fourth Supplement are satisfied. Any such amount shall be provided by Lender pursuant to the terms and conditions set forth in this Agreement, the Third Supplement, and the Fourth Supplement to this Agreement setting forth the terms and conditions of such term loan, provided, however , that (i) all unpaid principal and all accrued interest on the Term Loan and the Term Revolving Loan shall be due and payable on the Maturity Date and (ii) the Borrower shall have the right to convert all or any part of the Term Loan into a fixed rate loan, subject to the terms and conditions of this Agreement, which shall bear interest at a rate equal to the most recent ten-year fixed rate bonds sold by the Federal Farm Credit Banks Funding Corporation prior to the Construction Loan Maturity Date, plus 300 basis points. Should the Borrower elect such fixed rate option, such rate of interest shall not be subject to any adjustments under Section 2.06 of this Agreement.

 

(a)                                   Conditions Precedent . In addition to the terms and conditions of disbursement set forth in this Agreement and the Disbursing Agreement, the Lender shall not be obligated to extend a term loan to the Borrower on the Closing Date unless and until:

 

(i)                                      Amount of Term Loan . The maximum amount of the Term Loan shall be $64,583,000.00. On the Borrower’s written request on or before the Closing Date, the Construction Loan may be segmented into two credit facilities:  (i) a term revolving loan in an amount not to exceed $5,000,000.00, with no required amortization; and (ii) a term loan in an amount not to exceed $59,583,000.00, with a ten (10) year amortization. Both the term revolving loan and the term loan shall be payable in full on the Maturity Date;

 

(ii)                                   Construction Loan Exceeds Term Loan . In the event that the amount of the Construction Loan advanced by Lender exceeds the amount of the term loan to be made by the Lender, the Borrower shall immediately repay the amount of the Construction Loan which is not being converted into a term loan;

 

(iii)                                Facility Fee . The Borrower shall have paid Lender the Facility Fee which is due pursuant to Section 2.07;

 

(iv)                               Representations and Warranties . The representations and warranties set forth in this Agreement, the Second Supplement, the Third Supplement, and the Fourth Supplement, are true and correct in all material respects as of the Closing Date, except as disclosed in writing to the Lender, to the same extent and with the same effect as if made at and as of the date thereof;

 

(v)                                  No Defaults . The Borrower and each of its subsidiaries are not in default under the terms of this Agreement, the Related Documents or any other agreement to which the Borrower and each of its subsidiaries are a party and which relates to the construction or operation of the Project;

 

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(vi)                               Government Action . No license, permit, permission or authority necessary for the construction or operation of the Project has been revoked or challenged by or before any Governmental Authority except for the Permit Litigation; and

 

(vii)                            Marketing Agreements . The Borrower has executed marketing agreements for all ethanol and DDGS to be produced at the Project and provided Lender with collateral assignments of all such agreements in form and content which is reasonably satisfactory to Lender and its counsel and acknowledged by the non-Borrower party to all such agreements.

 

(b)                                  Excess Cash Flow . Such term loan shall require that, beginning with the first fiscal year end following the Closing Date, and every year thereafter, and in addition to all other payments of principal and interest required by the terms of the Third Supplement, an amount equal to 25% of the Borrower’s Excess Cash Flow for the immediately proceeding fiscal year (the “ Excess Cash Flow Payment ”), provided however , that the total Excess Cash Flow Payments required hereunder shall not exceed $2,000,000.00 in any calendar year. All Excess Cash Flow Payments shall be applied to the reduction of the outstanding principal balance of the Term Loan. No Excess Cash Flow Payments shall be required during any calendar year should the Tangible Owner’s Equity be greater than 50% at the end of the immediately proceeding fiscal year of the Borrower.

 

Section 2.06.                              Adjustments to Interest Rate . Notwithstanding any other provision of this Agreement, the Supplements, the Notes, or the Related Documents, the rate of interest under any Loan which bears interest on a variable rate, shall be adjusted according to the following schedule should the Owner’s Equity of the Borrower, measured on a consolidated basis, achieve the levels set forth below:

 

Owner’s Equity

 

Interest Rate

 

 

 

Less than 49.99%

 

Applicable LIBOR Rate plus 325 basis points

 

 

 

50.00%—59.99%

 

Applicable LIBOR Rate plus 300 basis points

 

 

 

Greater Than 60.00%

 

Applicable LIBOR Rate plus 275 basis points

 

Upon delivery of the monthly financial statements and the Compliance Certificate pursuant to Section 5.01(c)(iii) for each month that corresponds with each month end, the rate of interest for any month shall automatically be adjusted in accordance with the Owner’s Equity set forth therein and the rates set forth above. Such automatic adjustment to the rate of interest shall take effect as of the first Business Day of the month following the month in which the Lender received the related Compliance Certificate. The term “ Adjustment Date ” shall mean each such Business Day when such rates, margins or fees change pursuant to the immediately prior sentence or the next following sentence. If the Borrower fails to deliver such Compliance Certificate which so sets forth the

 

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Owner’s Equity within the period of time required by Section 5.01(c)(iii) hereof or if any Event of Default occurs, the rate of interest shall automatically be adjusted to a rate equal to the applicable LIBOR Rate plus 375 basis points, such automatic adjustments:  (a) to take effect as of the first Business Day after the last day on which the Borrower were required to deliver the applicable Compliance Certificate in accordance with Section 5.01(c)(iii) hereof or in the case of an Event of Default, on the date the written notice is given to the Borrower; and (b) to remain in effect until subsequently adjusted in accordance herewith upon the delivery of such Compliance Certificate or, in the case of an Event of Default, when such Event of Default has been cured to the satisfaction of the Lender.

 

Section 2.07.                              Underwriting/Participation/Facility Fees . The Borrower has paid to the Lender; the following:  (a) an Underwriting Fee of $75,000.00; and (b) a Participation Fee of  $371,298.00. In addition, the Borrower shall pay to Lender on or before the Closing Date, and on each anniversary of the Closing Date through the fourth anniversary, an annual Facility Fee of $20,000.00.

 

Section 2.08.                              Default Interest . In addition to the rights and remedies set forth above and notwithstanding any Note:  (i) if the Borrower fails to make any payment to Lender when due (including, without limitation, any purchase of equity of Lender when required), then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances of the Loans shall bear interest form the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect on the Loans under the terms of the applicable Note; (iii) after the maturity of any Loan, whether by reason of acceleration or otherwise, the unpaid principal balance of the Loan (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect on the Loan under the terms of the applicable Note. Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.

 

Section 2.09.                              Late Charge . If any payment of principal or interest due under this Supplement or the Construction Note is not paid within ten (10) days of the due date thereof, the Borrower shall, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of such payment.

 

Section 2.10.                              Prepayment of Term Loan . The Borrower may, by notice to the Lender, prepay the outstanding amount of the Term Loan in whole or in part with accrued interest to the date of such prepayment on the amount prepaid, without penalty or premium, except as provided in this Section. In the event any Loan is converted to a fixed rate loan, the Borrower shall pay the prepayment fee applicable to that fixed interest rate, if any. Prepayments made by the Borrower under Section 2.05(b) of this Agreement are not subject to any prepayment penalty.

 

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Section 2.11.                              Changes in Law Rendering Certain LIBOR Rate Loans Unlawful . In the event that any change in any applicable law (including the adoption of any new applicable law) or any change in the interpretation of any applicable law by any judicial, governmental or other regulatory body charged with the interpretation, implementation or administration thereof, should make it (or in the good-faith judgment of the Lender should raise a substantial question as to whether it is) unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then:  (a) the Lender shall promptly notify each of the other parties hereto; and (b) the obligation of the Lender to make LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness. During the period of any suspension, Lender shall make loans to Borrower that are deemed lawful and that as closely as possible reflect the terms of this Agreement.

 

Section 2.12.                              Payments and Computations .

 

(a)                                   Method of Payment . Except as otherwise expressly provided herein, all payments of principal, interest, and other amounts to be made by the Borrower under the Loan Documents shall be made to the Lender in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim, not later than 2:00 P.M. (Minneapolis, Minnesota time) on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). The Borrower shall, at the time of making each such payment, specify to the Lender the sums payable under the Loan Documents to which such payment is to be applied and in the event that the Borrower fail to so specify or if an Event of Default exists, the Lender may apply such payment and any proceeds of any Collateral to the Loan Obligations in such order and manner as it may elect in its sole discretion.

 

(b)                                  Application of Funds . Lender may apply all payments received by it to the Loan Obligations in such order and manner as Lender may elect in its sole discretion; provided that any payments received from any guarantor or from any disposition of any collateral provided by such guarantor shall only be applied against obligations guaranteed by such guarantor.

 

(c)                                   Payments on a Non-Business Day . Whenever any payment under any Loan Document shall be stated to be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and fees, as the case may be.

 

(d)                                  Proceeds of Collateral . All proceeds received by the Lender from the sale or other liquidation of the Collateral when an Event of Default exists shall first be applied as payment of the accrued and unpaid fees and expenses of the Lender hereunder, including, without limitation, under Section 7.04 and then to all other unpaid or unreimbursed Loan Obligations (including reasonable attorneys’ fees and expenses) owing to the Lender and then any remaining amount of such proceeds shall be applied to the unpaid amounts of Loan Obligations, until all the Loan Obligations have been paid and satisfied in full or cash collateralized. After all the Loan Obligations (including without limitation, all contingent Loan Obligations) have been paid and satisfied in full, all Commitments terminated and all other obligations of the Lender to the Borrower otherwise satisfied, any proceeds of Collateral shall be delivered to the Person entitled thereto as directed by the Borrower or as otherwise determined by applicable law or applicable court order.

 

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(e)                                   Computations . Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days lapsed over a year of 365 or 366 days, as appropriate. Interest shall accrue from and include the date of borrowing, but exclude the date of payment.

 

Section 2.13.                              Maximum Amount Limitation . Anything in this Agreement, any Supplement, any Note, or the other Loan Documents to the contrary notwithstanding, Borrower shall not be required to pay unearned interest on any Note or any of the Loan Obligations, or ever be required to pay interest on any Note or any of the Loan Obligations at a rate in excess of the Maximum Rate, if any. If the effective rate of interest which would otherwise be payable under this Agreement, any Note or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged, or received under this Agreement, any Note or any of the other Loan Documents shall be reduced to the Maximum Rate, if any. If any unearned interest or discount or property that is deemed to constitute interest (including, without limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations to the Lender under this Agreement, any Supplement, any Note, or any of the other Loan Documents are deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the option of the holder of such Note, be either refunded to the Borrower, or credited on the principal of such Note. It is further agreed that, without limitation of the foregoing and to the extent permitted by applicable law, all calculations of the rate of interest or discount contracted for, charged or received by the Lender under its Note, or under any of the Loan Documents, that are made for the purpose of determining whether such rate exceeds the Maximum Rate applicable to the Lender, if any, shall be made, to the extent permitted by applicable laws (now or hereafter enacted), by amortizing, prorating and spreading during the period of the full terms of the Advances evidenced by the Notes, and any renewals thereof all interest at any time contracted for, charged or received by Lender in connection therewith. This Section 2.11 shall control every other provision of all agreements among the parties to this Agreement pertaining to the transactions contemplated by or contained in the Loan Documents, and the terms of this Section 2.11 shall be deemed to be incorporated in every Loan Document and communication related thereto.

 

Section 2.14.                              Lender Records . All advances and all payments or prepayments made thereunder on account of principal or interest may be evidenced by the Lender in accordance with its usual practice in an account or accounts evidencing such advances and all payments or prepayments thereunder from time to time and the amounts of principal and interest payable and paid from time to time thereunder; in any legal action or proceeding in respect of the Notes, the entries made in such account or accounts shall be prima facie evidence of the existence and amounts of all advances and all payments or prepayments made thereunder on account of principal or interest. Lender shall provide monthly statements of such entries to Borrower for the purpose of confirming the accuracy of such entries.

 

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Section 2.15.                              Loan Payments . During the continuance of an Event of Default, the Lender may deduct any obligations due or any other amounts due and payable by the Borrower under the Loan Documents from any accounts maintained with the Lender.

 

Section 2.16.                              Purchase of Equity Interests in AgStar Financial Services, PCA . In addition to (and not in lieu of) the other amounts payable by Borrower under this Agreement or any Supplement, Borrower shall purchase $1,000.00 of equity interests in AgStar Financial Services, PCA. The purchase price for the equity interests shall be payable in full on or prior to the date hereof. Such purchases of equity interests shall comply with AgStar Financial Services, PCA’s respective by-laws and capital plans applicable to borrowers generally. Borrower hereby acknowledges receipt of the following information and materials pertaining to AgStar Financial Services, PCA prior to the execution of this Agreement: (i) copies of the by-laws of AgStar Financial Services, PCA; (ii) a written description of the terms and conditions under which the equity interests are issued; (iii) a copy of the most recent annual reports of AgStar Financial Services, PCA; and (iv) if more recent than the latest annual reports, the latest quarterly reports of AgStar Financial Services, PCA. AgStar Financial Services, PCA shall possess a statutory security interest in its equity interests. AgStar Financial Services, PCA reserves the right to sell participations on a non-patronage basis.

 

Borrower acknowledges and agrees that:  (a) only the portions of the Loans provided to Borrower by AgStar Financial Services, PCA are entitled to patronage distributions in accordance with the bylaws of AgStar Financial Services, PCA and its practices and procedures; and (b) any patronage or similar payments to which Borrower is entitled as a result of its ownership of the equity interests in AgStar Financial Services, PCA will not be based on any of the Loans not belonging to AgStar Financial Services, PCA or in which AgStar Financial Services, PCA has granted a participation interest at any time.

 

Section 2.17.                              Compensation . Upon the request of the Lender, the Borrower shall pay to the Lender such amount or amounts as shall be sufficient (in the reasonable opinion of the Lender) to compensate it for any loss, cost, or expense (excluding loss of anticipated profits incurred by it) as a result of: (i) any payment, prepayment, or conversion of a LIBOR rate loan for any reason on a date other than the last day of the Interest Period for such Loan; or (ii) any failure by the Borrower for any reason (including, without limitation, the failure of any condition precedent specified in Section 3.01 to be satisfied) to borrow, extend, or prepay a LIBOR rate loan on the date for such borrowing, extension, or prepayment specified in the relevant notice of borrowing, extension or prepayment under this Agreement.

 

Such indemnification may include any amount equal to the excess, if any, of:  (a) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrower, convert or extend to the last day of the applicable Interest Period (or in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such loan as provided for herein; over (b) the amount of interest (as reasonably determined by the Lender) which would have accrued to the Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank LIBOR

 

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market. The covenants of the Borrower set forth in this Section 2.16 shall survive the repayment of the Loans and other obligations under the Loan Documents hereunder.

 

ARTICLE III.

CONDITIONS PRECEDENT

 

Section 3.01.                              Conditions Precedent to Preliminary Advances . The effectiveness of this Agreement and obligations of the Lender to make any Advance, including any Preliminary Advance except for any fees or advances required to be paid by the Borrower under Section 7.04, are subject to the conditions precedent that the Lender shall have received the following, in form and substance satisfactory to the Lender:

 

(a)                                   This Agreement, duly executed by the Borrower and the Lender;

 

(b)                                  The Supplements, duly executed by the Borrower and the Lender;

 

(c)                                   The Notes, duly executed by the Borrower;

 

(d)                                  The Third Amended and Restated Mortgage, fully executed and notarized, to secure the Loans encumbering on a first Lien basis the fee interest and/or leasehold interest of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d);

 

(e)                                   A Security Agreement duly executed by the Borrower and in a form as provided by the Lender by which security agreement the Lender is granted a security interest by the Borrower in the Collateral;

 

(f)                                     A copy of the Construction Contract(s) and a complete set of the Plans and Specifications, together with copies of all permits and government approvals relating to the construction and use of the Project;

 

(g)                                  An assignment of contract for each of the Construction Contracts and the Plans and Specifications, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contract;

 

(h)                                  Copies of all Material Contracts between Borrower and third parties used in the normal operations of Borrower, including but not limited to management agreements, marketing agreements, and corn delivery agreements;

 

(i)                                      Assignments of the Material Contracts between Borrower, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such contracts, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such contract;

 

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(j)                                      Financing Statements in form and content satisfactory to the Lender and in proper form under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Lender, desirable to perfect the security interests created by the Security Agreement;

 

(k)                                   Copies of UCC, tax and judgment lien search reports listing all financing statements and other encumbrances which name the Borrower (under its present name and any previous name) and which are filed in the jurisdictions in which the Borrower is located, organized or maintains collateral, together with copies of such financing statements (none of which shall cover the collateral purported to be covered by the Security Agreement);

 

(l)                                      Evidence that all other actions necessary or, in the opinion of the Lender, desirable to enable the Lender to perfect and protect the security interests created by the Security Agreement have been taken;

 

(m)                                An ALTA mortgagee title insurance policy issued by a title insurance company acceptable to Lender, with respect to the Real Property, assuring the Lender that the Mortgage creates a valid and enforceable encumbrance on the Real Property, free and clear of all defects and encumbrances except Permitted Liens and containing:  (i) a comprehensive endorsement (ALTA form 9); (ii) a zoning endorsement (ALTA form 3.1) specifying an ethanol production facility as a permitted use for all of the parcels included in the Real Property; and (iii) such endorsements as the Lender shall reasonably require. All such title insurance policies shall be in form and substance reasonably satisfactory to the Lender and shall provide for affirmative insurance and such reinsurance as the Lender may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Lender;

 

(n)                                  Maps or plats of the Real Property certified to the Lender and the title insurance company issuing the policy referred to in Subsection 3.01(n) (the “ Title Insurance Company ”) in a manner reasonably satisfactory to each of the Lender and the Title Insurance Company, dated a date reasonably satisfactory to each of the Lender and the Title Insurance Company by an independent professional licensed land surveyor, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following:  (i) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (ii) the lines of streets abutting the sites and width thereof; (iii) all access and other easements appurtenant to the sites necessary to use the sites; (iv) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (v) any encroachments on any adjoining property by the building structures and improvements on the sites; and (vi) if the site is described as being on a filed map, a legend relating the survey to said map;

 

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(o)                                  Evidence as to:  (i) whether any portion of the Real Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “ Flood Hazard Property ”); and (ii) if any portion of the Real Property is a Flood Hazard Property:  (A) whether the community in which such Real Property is located is participating in the National Flood Insurance Program; (B) the Borrower’s written acknowledgment of receipt of written notification from the Lender (1) as to the fact that such Real Property is a Flood Hazard Property and (2) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program; and (C) copies of insurance policies or certificates of insurance of the Borrower evidencing flood insurance satisfactory to the Lender and naming the Lender as sole loss payee on behalf of the Lender;

 

(p)                                  Evidence reasonably satisfactory to the Lender that the Real Property and the contemplated use of the Real Property, are in compliance in all material respects with all applicable Laws including without limitation health and Environmental Laws, including, but not limited to all concentrated animal feedlot operations rules and regulations, erosion control ordinances, storm drainage control laws, doing business and/or licensing laws, zoning laws (the evidence submitted as to zoning should include the zoning designation made for the Real Property, the permitted uses of the Real Property under such zoning designation and zoning requirements as to parking, lot size, ingress, egress and building setbacks) and laws regarding access and facilities for disabled persons including, but not limited to, the Federal Architectural Barriers Act, the Fair Housing Amendments Act of 1988, the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990;

 

(q)                                  Certificates of the secretary of the Borrower and the Guarantor together with true and correct copies of the following:  (i) the Articles of Organization of the Borrower and Guarantor, including all amendments thereto, certified by the Office of the Secretary of State of the state of its incorporation and dated within 30 days prior to the date hereof; (ii) the Operating Agreements of the Borrower and the Guarantor, including all amendments thereto; (iii) the resolutions of the Board of Governors of the Borrower and the Guarantor authorizing the execution, delivery and performance of this Agreement, the other Loan Documents, and all documentation executed and delivered in connection therewith to which the Borrower is a party; (iv) certificates of the appropriate government officials of the state of organization of the Borrower and the Guarantor as to their existence and good standing, and certificates of the appropriate government officials in each state where each corporate Borrower and Guarantor does business and where failure to qualify as a foreign corporation would have a material adverse effect on the business and financial condition of the Borrower and Guarantor, as to their good standing and due qualification to do business in such state, each dated within 30 days prior to the date hereof; and (v) the names of the officers of the Borrower and Guarantor authorized to sign this Agreement and the other Loan Documents to be executed by each corporate Borrower and Guarantor, together with a sample of the true signature of each such officer;

 

(r)                                     Legal opinion of Lindquist & Vennum P.L.L.P., legal counsel for the Borrower, in the form attached hereto as “Exhibit C”;

 

(s)                                   Evidence the Facility Fee due pursuant to Section 2.07 and the costs and expenses (including, without limitation, attorney’s fees) referred to in Section 7.04, to the extent incurred and invoiced, shall have been paid in full;

 

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(t)                                     The results of the Lender’s inspection of the Collateral, and the Lender’s receipt of an appraisal of the Collateral acceptable to Lender in its sole discretion;

 

(u)                                  A Phase I Environmental Assessment in form and substance acceptable to the Lender;

 

(v)                                  The Borrower shall have provided to Lender evidence of ownership indicating that at least 50% of the owners of Borrower are eligible borrowers;

 

(w)                                A Commodity Account Control Agreement for all commodity accounts kept and maintained by the Borrower or any of its Subsidiaries;

 

(x)                                    A Deposit Account Control Agreement for all deposit accounts kept and maintained by the Borrower or any of its Subsidiaries;

 

(y)                                  The Subsidiary Guarantor shall have executed and delivered to Lender the Guaranty pursuant to which the Subsidiary Guarantor shall have guaranteed the full and prompt payment and performance by Borrower of the Notes, Indebtedness, the Supplements and this Agreement;

 

(z)                                    The Subsidiary Guarantor shall have executed and delivered to the Lender a Security Agreement in all of its assets to secure its guaranty;

 

(aa)                             Financing Statements in form and content satisfactory to the Lender and in proper form under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Lender, desirable to perfect the security interests created by the Security Agreement of the Subsidiary Guarantor;

 

(bb)                           The Subsidiary Guarantor shall have executed and delivered to the Lender a Third Amended and Restated Mortgage in all of its real property to secure its guaranty;

 

(cc)                             The Personal Guarantor shall have executed and delivered to the Lender a Guaranty pursuant to which the Personal Guarantor shall have guaranteed $3,740,000.00 of the Borrower’s Indebtedness provided that the execution and delivery of the Guaranty by the Personal Guarantor shall not be a condition precedent to any Advance following the termination of that Guaranty in accordance with the terms thereof.

 

(dd)                           Evidence that the insurance required by Sections 5.01(j) and 5.01(r)(xii) has been obtained by the Borrower; and

 

(ee)                             An assignment of the Borrower’s business interruption insurance policy, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to it’s business interruption insurance policy, and which assignment shall have been consented to and certified in writing by the other party(ies) to the insurance policy.

 

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Section 3.02                                 Conditions Precedent to Construction Advances The effectiveness of this Agreement and obligations of the Lender to make any Construction Advance are subject to the conditions precedent that the Lender shall have received the following, in form and substance satisfactory to the Lender:

 

(a)                                   The Participation Fee due pursuant to Section 2.06 has been paid;

 

(b)                                  The Borrower shall have ordered the General Contractor to begin construction of the Project, and construction shall have commenced;

 

(c)                                   A schedule, certified by Borrower as accurate and complete, setting forth:  (i) the necessary licenses, permits and consents required by applicable federal, state, and local governmental entities required for the lawful construction and operation of the Project; and (ii) the deadlines to obtain such licenses, permits and consents so that the completion of the Project occurs as scheduled;

 

(d)                                  Lender shall have received in form and substance acceptable to Lender, an agreement with an Inspecting Engineer of recognized standing and acceptable to Lender, by which agreement such Inspecting Engineer agrees to assist Lender in its inspection of the Project during construction, review and approve requests for Advances on the Construction Loan on behalf of Lender, and provide such additional services as Lender may reasonably require at the sole expense of Borrower; and

 

(e)                                   The Borrower shall have provided commitment to the Lender of its Borrower’s Equity.

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

 

Section 4.01                                 Representations and Warranties of the Borrower . The Borrower and each of its subsidiaries represent and warrant as follows:

 

(a)                                   Borrower . The Borrower and each of its subsidiaries are limited liability companies duly organized and validly existing and in good standing under the laws of the State of Minnesota and are qualified to do business in all jurisdictions in which the nature of their businesses make such qualification necessary and where failure to so qualify would have a Material Adverse Effect on their respective financial conditions or operations. Except for Permit Litigation, the Borrower and each of its subsidiaries have the power and authority to own and operate their assets and to carry on their business and to execute, deliver, and perform their respective obligations under the Loan Documents to which they may become a party. There are no outstanding subscriptions, options, warrants, calls, or rights (including preemptive rights) to acquire, and no outstanding securities or instruments convertible into, membership interests (units) of the Borrower or any of its subsidiaries, except for those transactions set forth on Schedule 4.01(a);

 

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(b)                                  The Loan Documents . The execution, delivery and performance by the Borrower and the Subsidiary Guarantor of the Loan Documents are within their respective powers, have been duly authorized by all necessary action, do not contravene:  (i) the articles or organization or operating agreements of either the Borrower or the Subsidiary Guarantor; or (ii) any law or any contractual restriction binding on or affecting the Borrower or the Subsidiary Guarantor, and do not result in or require the creation of any lien, security interest or other charge or encumbrance (other than pursuant to the terms thereof) upon or with respect to any of their respective properties;

 

(c)                                   Governmental Approvals . Except for (i) the Permit Litigation; (ii) the authorizations required under the Impound Agreement; (iii) the outstanding permits per the schedule provided under Section 3.02(c) of this Agreement; and (iv) the registration of the Borrower’s Class A Units pursuant to Section 12(g) of the Securities Exchange Act of 1934 and regulations promulgated thereunder relating thereto, no consent, permission, authorization, order or license of any Governmental Authority or of any party to any agreement to which any of the Borrower or any of its subsidiaries is a party or by which they or any of their respective property may be bound or affected, is necessary in connection with the project, acquisition or other activity being financed by this Agreement, the execution, delivery, performance or enforcement of the Loan Documents or the creation and perfection of the liens and security interest granted thereby, except as such have been obtained and are in full force and effect or which are required in connection with the exercise of remedies hereunder;

 

(d)                                  Enforceability . This Agreement is, and each other Loan Document to which the Borrower or the Subsidiary Guarantor is a party when delivered will be, legal, valid and binding obligations of the Borrower or the Subsidiary Guarantor enforceable against the Borrower or the Subsidiary Guarantor in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditor’s rights generally and by general principles of equity;

 

(e)                                   Financial Condition and Operations . The balance sheets of the Borrower on a consolidated basis with each of its subsidiaries, as of October 31, 2006, and the related statements of income and, with respect to the period ended October 31, 2006, the related statement of cash flow of the Borrower for the fiscal period then ended, copies of which have been furnished to the Lender, fairly present in all material respects the financial condition of the Borrower as at such date and the results of the operations of the Borrower for the period ended on such dates, all in accordance with generally accepted accounting principles, except for unaudited statements, consistently applied, and since October 31, 2006, there has been no material adverse change in such condition or operations, except for the Permit Litigation, the outstanding licenses, permits and consents per the schedule provided under Section 3.02(c) and outstanding claims, if any, that Borrower may have against Fagen, Inc., under the Design – Build Contract between Borrower and Fagen, Inc.;

 

(f)                                     Litigation . Except as described on Schedule 4.01(f), there is no pending or threatened action or proceeding affecting the Borrower or any of its subsidiaries or the transactions contemplated hereby before any court, governmental agency or arbitrator, which may materially adversely affect the financial condition or operations of the Borrower. As of the Closing Date, there are no outstanding judgments against the Borrower or any of its subsidiaries;

 

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(g)                                  Use of Proceeds of Advances, etc . (i) No proceeds of the Loans will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934 (provided, however, that this provision shall not prohibit Borrower from investing in certain value added cooperatives for the purposes of carrying out their overall business operations); (ii) the Borrower and any of its subsidiaries are not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System); and (iii) no proceeds of the Loans will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock;

 

(h)                                  Liens . There is no lien, security interest or other charge or encumbrance, and no other type of preferential arrangement, upon or with respect to any of the properties or income of the Borrower or any of its subsidiaries, which secures Debt of any Person, except as permitted by Section 5.02(a) and liens created by the Loan Documents;

 

(i)                                      Taxes . Each of the Borrower and its subsidiaries have filed or caused to be filed all federal, state and local tax returns that are required to be filed and have paid all other taxes, assessments, and governmental charges or levies upon it and its property, income, profits and assets which are due and payable, except where the payment of such tax, assessment, government charge or levy is being contested in good faith and by appropriate proceedings and adequate reserves in compliance with GAAP have been set aside on the Borrower’s or such subsidiary’s books therefore;

 

(j)                                      Solvency . As of and from and after the date of this Agreement, the Borrower:  (i) owns and will own assets the fair saleable value of which are: (A) greater than the total amount of liabilities (including contingent liabilities); and (B) greater than the amount that will be required to pay the probable liabilities of its then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to it; (ii) has capital that is not unreasonably small in relation to its business as presently conducted or any contemplated or undertaken transaction; and (iii) does not intend to incur and does not believe that it will incur debts beyond its ability to pay such debts as they become due;

 

(k)                                   Location of Inventory and Farm Products; Third Parties in Possession; Crops . The inventory and farm products pledged as collateral under the Security Agreement are located at the places (or, as applicable, jurisdictions) specified in Schedule 4.01(k) for the Borrower and its subsidiaries, except to the extent any such inventory and farm products are in transit. Schedule 4.01(k) correctly identifies, as of the date hereof, the landlords or mortgagees, if any, of each of its locations identified in Schedule 4.01(k) currently leased or owned by the Borrower or its subsidiaries. Except for the Persons identified on Schedule 4.01(k), no Person other than the Borrower or its subsidiaries and the Lender has possession of any of the Collateral. Except as described in above, none of its Collateral has been located in any location within the past four months other than as set forth on Schedule 4.01(k) for the Borrower and its subsidiaries;

 

(l)                                      Office Locations; Fictitious Names; Predecessor Companies; Tax I.D. Number . Each of the Borrower’s and the Subsidiary Guarantor’s chief places of business, chief executive offices, and jurisdiction of organization is located at the place identified for the Borrower

 

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and its subsidiary on Schedule 4.01(l). Within the last four months neither the Borrower or any of its subsidiaries has had any other chief place of business, chief executive office, or jurisdiction of organization. Schedule 4.01 (l) also sets forth all other places where the Borrower and the Subsidiary Guarantor keep their books and records and all other locations where the Borrower and the Subsidiary Guarantor have a place of business. Neither the Borrower or the Subsidiary Guarantor does business nor has the Borrower or the Subsidiary Guarantor done business during the past five (5) years under any trade-name or fictitious business name except as disclosed on Schedule 4.01(l). Schedule 4.01(l) sets forth an accurate list of all names of all predecessor companies of the Borrower and the Subsidiary Guarantor including the names of any entities it acquired (by stock purchase, asset purchase, merger or otherwise) and the chief place of business and chief executive office of each such predecessor company. For purposes of the foregoing, a “predecessor company” shall mean any Person whose assets or equity interests are acquired by the Borrower or any of its subsidiaries or who was merged with or into the Borrower or any of its subsidiaries within the last four months prior to the date hereof. The Borrower’s and the Subsidiary Guarantor’s United States Federal Income Tax I.D. Numbers and state organizational identification numbers are identified on Schedule 4.01(l);

 

(m)                                Title to Properties . Each of the Borrower and its subsidiaries have such title or leasehold interest in and to the Real Property owned or leased by them as is necessary or desirable to the conduct of their business and valid and legal title or leasehold interest in and to all of their Personal Property, including those reflected on the financial statements of the Borrower and it subsidiaries previously delivered to Lender, except those which have been disposed of by the Borrower and its subsidiaries subsequent to the date of such delivered financial statements which dispositions have been in the ordinary course of business or as otherwise expressly permitted hereunder;

 

(n)                                  Disclosure . All factual information furnished by or on behalf of the Borrower or its subsidiaries in writing to the Lender (including, without limitation, all factual information contained in the Loan Documents) for purposes of or in connection with this Agreement, the other Loan Documents or any transaction contemplated herein or therein is, and all other such factual information hereafter furnished by or on behalf of the Borrower or its subsidiaries to the Lender, will be true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information not misleading in any material respect at such time in light of the circumstances under which such information was provided;

 

(o)                                  Operation of Business . Except for the Permit Litigation, the outstanding licenses, permits and consents per the schedule provided under Section 3.02(c) and the registration of Borrower’s Class A Units under Section 12(g) of the Securities Exchange Act of 1934, the Borrower and each of its subsidiaries possess all licenses, permits, franchises, patents, copyrights, trademarks, and tradenames, or rights thereto, necessary to conduct their businesses substantially as now conducted and will obtain all such licenses, permits, franchises, patents, copyrights, trademarks, and tradenames, or rights thereto necessary to conduct its business as presently proposed to be conducted except those that the failure to so possess could not reasonably be expected to have a Material Adverse Effect on its financial condition or operations, and the Borrower and its subsidiaries are not

 

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in violation of any valid rights of others with respect to any of the foregoing except violations that could not reasonably be expected to have such a Material Adverse Effect;

 

(p)                                  Intellectual Property . The Borrower and each of its subsidiaries owns, or has the legal right to use, all patents, trademarks, tradenames, copyrights, technology, know-how and processes (the “ Intellectual Property ”) necessary for them to conduct their businesses as currently conducted except for those the failure to own or have such legal right to use could not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, set forth in Schedule 4.01(p) is a list of all Intellectual Property registered with the United States Copyright Office or the United States Patent and Trademark Office and owned by the Borrower and each of its subsidiaries or that the Borrower and its subsidiaries have the right to use. Except as provided in Schedule 4.01(p), no claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does the Borrower or any of its subsidiaries know of any such claim, and, to the knowledge of the Borrower and its subsidiaries, the use of such Intellectual Property by the Borrower or its subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect;

 

(q)                                  Employee Benefit Plans . Each of the Borrower and its subsidiaries are in compliance in all material respects with the applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder, the failure to comply with which could have a Material Adverse Effect on the Borrower or any of its subsidiaries;

 

(r)                                     Investment Company Act . The Borrower and its subsidiaries are not required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended;

 

(s)                                   Compliance with Laws . Each of the Borrower and its subsidiaries are in compliance in all material respects with all laws, rules, regulations, ordinances, codes, orders, and the like, the failure to comply with which could have a Material Adverse Effect on any of the Borrower or its subsidiaries;

 

(t)                                     Environmental Compliance . Borrower and each of its subsidiaries, except as set forth in Schedule 4.01(t), are in material compliance with all applicable Environmental Laws; and

 

(u)                                  Material Change . Except as previously disclosed in writing to the Lender, each of the Borrower and its subsidiaries have performed all of their material obligations, other than those obligations for which performance is not yet due, under all Material Contracts and, to the best knowledge of the Borrower or its subsidiaries, each other party thereto is in compliance with each such Material Contract. Each such Material Contract is in full force and effect in accordance with the terms thereof. Each of the Borrower and its subsidiaries has made available a true and complete copy of each such Material Contract for inspection by Lender.

 

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ARTICLE V.

COVENANTS OF THE BORROWER

 

Section 5.01.           Affirmative Covenants So long as any Loan Obligations remain unpaid or the Lender shall have any commitment hereunder, the Borrower and each of its subsidiaries will, unless the Lender shall otherwise consent in advance in writing:

 

(a)            Compliance with Laws, etc .  Comply in all material respects with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, (i) all applicable zoning and land use laws; (ii) all employee benefit and Environmental Laws, and (iii) paying before the same become delinquent all taxes, assessments and governmental charges imposed upon it or upon its property except to the extent contested in good faith;

 

(b)            Visitation Rights; Field Examination .  At any reasonable time and from time to time, permit the Lender or representatives,  to (i) examine and make copies of and abstracts from the records and books of account of the Borrower and each of its subsidiaries, and (ii) enter onto the property of the Borrower and each of its subsidiaries to conduct unannounced field examinations and collateral inspections, with such frequency as Lender in its sole discretion may deem appropriate, and (iii) discuss the affairs, finances, and accounts of the Borrower and each of its subsidiaries with any of Borrower’s and its subsidiaries officers or directors.  Borrower and any of its subsidiaries consent to and authorize Lender to enter onto the property of Borrower or any of its subsidiaries for purposes of conducting the examinations, inspections and discussions provided above.  Upon and during the occurrence of an Event of Default or in the event that there are deemed by the Lender to be any material inconsistencies and/or material noncompliance with respect to any financial or other reporting on the part of the Borrower or any of its subsidiaries, any and all visits and inspections deemed necessary or desirable on account of such Event of Default, inconsistency and/or noncompliance shall be at the expense of the Borrower.  In addition to the foregoing, at any reasonable time and from time to time, the Borrower and its subsidiaries also shall permit the Lender or representatives thereof, at the expense of the Lender, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Borrower or its subsidiaries, and to discuss the affairs, finances and accounts of the Borrower or its subsidiaries with any of their respective officers or directors;

 

(c)            Reporting Requirements .  Furnish to the Lender:

 

(i)             As soon as available, but in no event later than 120 days after the end of each fiscal year of the Borrower occurring during the term hereof, annual consolidated financial statements of the Borrower, prepared in accordance with GAAP consistently applied and in a format that demonstrates any accounting or formatting change that may be required by the various jurisdictions in which the business of the Borrower is conducted (to the extent not inconsistent with GAAP).  Such financial statements shall:  (i) be audited by independent certified public accountants selected by the Borrower and reasonably acceptable to Lender; (ii) be accompanied by a report of such accountants containing a certified opinion, without qualification, thereon reasonably acceptable to Lender; (iii) be prepared in reasonable detail, and in comparative form; and (iv) include a balance

 

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sheet, a statement of income, a statement of stockholders’, members’ or partner’s equity, a statement of cash flows, and all notes and schedules relating thereto and any management letter;

 

(ii)            Beginning with the first (1 st ) month following the Closing Date, as soon as available and in any event within 30 days after the end of each month, consolidated balance sheets of the Borrower as of the end of such month and consolidated statement of income of the Borrower for the period commencing at the end of the previous fiscal year and ending with the end of such month, certified by an authorized officer of the Borrower;

 

(iii)           As soon as available but in no event later than 30 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower occurring during the term hereof, unaudited quarterly consolidated financial statements of the Borrower, in each case prepared in accordance with GAAP consistently applied (except for the omission of footnotes and for the effect of normal year-end audit adjustments) and in a format that demonstrates any accounting or formatting change that may be required by various jurisdictions in which the business of the Borrower is conducted (to the extent not inconsistent with GAAP).  Each of such financial statements shall (i) be prepared in reasonable detail and in comparative form, including a comparison of actual performance to the budget for such quarter and year-to-date, delivered to Lender under Subsection 5.01(c)(vi) below, and (ii) include a balance sheet, a statement of income for such quarter and for the period year-to-date, and such other quarterly statements as Lender may specifically request which quarterly statements shall include any and all supplements thereto.    Such quarterly statements shall be certified by an authorized officer of the Borrower, and be accompanied by a Compliance Certificate which: (A) states that no Event of Default, and no event or condition that but for the passage of time, the giving of notice or both would constitute an Event of Default, has occurred or is in existence; and (B) shows in detail satisfactory to the Lender the calculation of, and the Borrower’ compliance with, each of the covenants contained in Sections 5.01(d), 5.01(e), 5.01(f), and 5.01(g);

 

(iv)           promptly upon the Lender’s request therefor, copies of all reports and notices which the Borrower or any of its subsidiaries files under ERISA with the Internal Revenue Service or the Pension Benefit Guaranty Corporation or the U.S. Department of Labor or which the  Borrower or any its subsidiary receives from such Corporation;

 

(v)            notwithstanding the foregoing Section 5.01(c)(iv), provide to Lender within 30 days after it becomes aware of the occurrence of any Reportable Event (as defined in Section 4043 of ERISA) applicable to the Borrower or any of its Subsidiaries, a statement describing such Reportable Event and the actions it proposes to take in response to such Reportable Event;

 

(vi)           by  November 1 of each fiscal year of the Borrower, an annual (with monthly break out) operating and capital assets budget of the Borrower for the immediately succeeding fiscal year containing, among other things, pro forma financial statements and forecasts for all planned lines of business;

 

(vii)          as soon as available but in any event not more than 30 days after the end of each month, production reports for the immediately preceding calendar month setting forth

 

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corn inputs, ethanol output, DDGS output, natural gas usage and CO 2 output, together with such additional production information as reasonably requested by Lender;

 

(viii)         promptly, upon the occurrence of an Event of Default or an event or condition that but for the passage of time or the giving of notice or both would constitute an Event of Default, notice of such Event of Default or event;

 

(ix)            promptly after the receipt thereof, a copy of any management letters or written reports submitted to the Borrower by its independent certified public accountants with respect to the business, financial condition or operation of the Borrower;

 

(x)             promptly after the receipt thereof, a copy of any notice of default under any Long-Term Marketing Agreement;

 

(xi)            furnish to the Lender, promptly after transmittal or filing thereof by the Borrower, copies of all proxy statements, notices and reports as it shall send to its members and copies of all registration statements (without exhibits) and all reports which it files with the Securities and Exchange Commission (or any governmental body or agency succeeding to the functions of the Securities and Exchange Commission), and promptly after the receipt thereof by the Borrower, copies of all management letters or similar documents submitted to the Borrower by independent certified public accountants in connection with each annual and any interim audit of the accounts of the Borrower or of the Borrower and any of its Subsidiaries.

 

(xii)           such other information respecting the condition or operations, financial or otherwise, of the Borrower or any of its respective subsidiaries as the Lender may from time to time reasonably request;

 

(xiii)         promptly after the commencement thereof, notice of the commencement of all actions, suits, or proceedings before any court, arbitrator, or government department, commission, board, bureau, agency, or instrumentality affecting the Borrower or any of its subsidiaries which, if determined adversely, could have a Material Adverse Effect on any of the Borrower or its subsidiaries;

 

(xiv)         without limiting the provisions of Section 5.01(c)(xiii) above, promptly after receipt thereof, notice of the receipt of all pleadings, orders, complaints, indictments, or any other communication alleging a condition that may require the Borrower or any of its subsidiaries to undertake or to contribute to a cleanup or other response under all laws relating to environmental protection, or which seek penalties, damages, injunctive relief, or criminal sanctions related to alleged violations of such laws, or which claim personal injury or property damage to any person as a result of environmental factors or conditions;

 

(xx)           promptly after filing, receipt or becoming aware thereof, copies of any filings or communications sent to and notices or other communications received by the Borrower or any of its subsidiaries from any Governmental Authority, including, without limitation, the Securities and Exchange Commission, the FCC, the PUC, or any other state utility commission relating to any

 

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material noncompliance by the Borrower or any of its subsidiaries with any laws or with respect to any matter or proceeding the effect of which, if adversely determined, could have a Material Adverse Effect on any of the Borrower of its subsidiaries;

 

(xxi)          promptly after becoming aware thereof, notice of any matter which has had or could have a Material Adverse Effect on any of the Borrower or its subsidiaries.

 

(d)            Working Capital .  Achieve and maintain, on a consolidated basis, Working Capital of at least $3.0 million at the end of the 12 th month following the Closing Date.  Achieve and maintain Working Capital of at least $5.0 million at the end of the 24 th month following the Closing Date.  Thereafter, continually maintain Working Capital, on a consolidated basis, of at least $5.0 million;

 

(e)            Tangible Net Worth .  On the Closing Date, the Borrower’s Tangible Net Worth shall be not less than $39,000,000.00 on a consolidated basis.  After the Closing Date, the Borrower shall maintain Tangible Net Worth, measured annually on a consolidated basis, in an amount equal to the lesser of:  (i) the Borrower’s Tangible Net Worth for the immediately preceding fiscal year plus $500,000.00; or (ii) $39,000,000.00 plus the Borrower’s retained earnings at the end of the current fiscal year;

 

(f)             Owner Equity Ratio Maintain at all times during the term of this Agreement, an Owner Equity Ratio of at least 50%, beginning at the end of the 48 th month following the Closing Date and measured annually thereafter on a consolidated basis;

 

(g)            Fixed Charge Coverage Ratio .  Maintain a Fixed Charge Coverage Ratio of not less than 1.20 to 1.00, measured initially at the end of the 12 th month following the Closing Date and maintained and measured annually thereafter on a consolidated basis.

 

(h)            Liens .  There shall be no lien, security interest or other charge or encumbrance, and no other type of preferential arrangement, upon or with respect to any of the properties or income of the Borrower or any of its subsidiaries, which secures Debt of any Person, except for the security interests of the Security Agreement or except as permitted by Section 5.02(a);

 

(i)             Landlord and Mortgagee Waivers .  Obtain and furnish to the Lender as soon as available, waivers, acknowledgments and consents, duly executed by each:  (i) real property owner, landlord and mortgagee having an interest in any of the premises owned or leased by the Borrower or any of  its subsidiaries or in which any Collateral of the Borrower or any of its subsidiaries is located or to be located (and if no Collateral is located at a parcel of property not owned or leased by a Borrower or any of its subsidiaries, no such waivers, acknowledgments or consents will be required); and (ii) each third party holding any Collateral, all in form and substance acceptable to the Lender, except as otherwise agreed to by the Lender;

 

(j)             Insurance .  Maintain insurance with financially sound and reputable insurance companies in such amounts and covering such risks as are usually carried by entities engaged in similar businesses and owning similar properties in the same general areas in which the

 

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Borrower and any of its subsidiaries operate, and make such increases in the type of amount or coverage as Lender may reasonably request, provided that in any event the Borrower will maintain and cause each of its subsidiaries to maintain workers’ compensation insurance, property insurance and comprehensive general liability insurance reasonably satisfactory to the Lender.  All such policies insuring any collateral for the Borrower’s obligations to Lender shall have lender or mortgagee loss payable clauses or endorsements in form and substance acceptable to Lender.  Each insurance policy covering Collateral shall be in compliance with the requirements of the Security Agreement;

 

(k)            Property and Insurance Maintenance Maintain and preserve all of its property and each and every part and parcel thereof that is necessary to or useful in the proper conduct of its business in good repair, working order, and condition, ordinary wear and tear excepted, and in material compliance with all applicable laws, and make all alterations, replacements, and improvements thereto as may from time to time be necessary in order to ensure that its properties remain in good working order and condition and compliance.  The Borrower and each of its subsidiaries agree that upon the occurrence and continuing existence of an Event of Default, at Lender’s request, which request may not be made more than once a year, the Borrower and each of its subsidiaries will furnish to Lender a report on the condition of the Borrower’s and any of its subsidiaries’ property prepared by a professional engineer satisfactory to Lender;

 

(l)             Keeping Books and Records .  Maintain and cause each of its subsidiaries to, maintain proper books of record and account in which full, true, and correct entries in conformity with generally accepted accounting principles shall be made of all dealings and transactions in relation to its business and activities;

 

(m)           Food Security Act Compliance .  If the Borrower or any of its subsidiaries acquire any Collateral which may have constituted farm products in the possession of the seller or supplier thereof, such Borrower or subsidiary shall, at its own expense, use its commercially reasonable efforts to take such steps to insure that all Liens (except the liens granted pursuant hereto) in such acquired Collateral are terminated or released, including, without limitation, in the case of such farm products produced in a state which has established a Central Filing System (as defined in the Food Security Act), registering with the Secretary of State of such state (or such other party or office designated by such state) and otherwise take such reasonable actions necessary, as prescribed by the Food Security Act, to purchase farm products free of liens (except the liens granted pursuant hereto); provided, however, that such Borrower or any of its subsidiaries may contest and need not obtain the release or termination of any lien asserted by any creditor of any seller of such farm products, so long as it shall be contesting the same by proper proceedings and maintain appropriate accruals and reserves therefor in accordance with the generally accepted accounting principles.  Upon the Lender’s request made, the Borrower and each of its subsidiaries agree to forward to the Lender promptly after receipt copies of all notices of liens and master lists of Effective Financing Statements delivered to the Borrower and its subsidiaries pursuant to the Food Security Act, which notices and/or lists pertain to any of the Collateral.  Upon the Lender’s request, the Borrower and each of its subsidiaries agree to provide the Lender with the names of Persons who supply the Borrower and its subsidiaries with such farm products and such other information as the Lender may reasonably request with respect to such Persons;

 

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(n)            Warehouse Receipts .  If any warehouse receipt or receipts in the nature of a warehouse receipt is issued in respect of any portion of the Collateral, then the Borrower and its subsidiaries:  (i) will not permit such warehouse receipt or receipts in the nature thereof to be “negotiable” as such term is used in Article 7 of the Uniform Commercial Code; and (ii) will deliver all such receipts to the Lender (or a Person designated by the Lender) within five (5) days of the Lender’s request and from time to time thereafter.  If no Event of Default exists, the Lender agrees to deliver to such Borrower or subsidiary any receipt so held by the Lender upon such Borrower’s request in connection with such sale or other disposition of the underlying inventory, if such disposition is in ordinary course of  the Borrower’s or subsidiary’s business;

 

(o)            Management of Borrower .  Management of the Borrower shall be maintained as set forth on Schedule 5.01(o) hereto, unless otherwise approved in Lender’s reasonable discretion;

 

(p)            Compliance with Other Agreements .  Borrower will perform in all material respects all obligations and abide in all material respects by all covenants and agreements contained in the following agreements:  (i) any and all Long Term Marketing Agreements; and (ii) any other Material Contracts;

 

(q)            Additional Assurances .  Make, execute and deliver to Lender such promissory notes, mortgages, deeds of trust, financing statements, control agreements, instruments, documents and other agreements as Lender or its counsel may reasonably request to evidence and secure the Loans and to perfect all Security Interest; and

 

(r)             Construction of Project Borrower shall:

 

(i)             diligently proceed with construction of the Project in accordance with the Plans and Specifications and in accordance with all applicable laws and ordinance and will complete the Project;

 

(ii)            use the proceeds of all Advances solely to pay the Project Costs as specified in the Project Sources and Uses Statement;

 

(iii)           use its commercially reasonable best efforts to require the Contractor(s) to comply with all rules, regulations, ordinances and laws relating to work on the Project;

 

(iv)           obtain the Lender’s prior written approval of any change in the Plans and Specifications for the Project approved by the Lender which might materially adversely affect the value of the Lender’s security, and has a cost of $25,000.00 or greater.  The Lender will have a reasonable time to evaluate any requests for its approval of any changes referred to in this paragraph. The Lender may approve or disapprove changes in its discretion, subject to the foregoing provisions of this Section 5.01(r)(iv).  If it reasonably appears to the Lender that any change may increase the Project Costs, the Lender may require the Borrower to deposit additional funds with the Lender

 

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pursuant to the provisions of this Agreement in an amount sufficient to cover the increased costs as a condition to giving its approval;

 

(v)            comply with and keep in effect all necessary permits and approvals obtained from any Governmental Authority relating to the lawful construction of the Project.  The Borrower will comply with all applicable existing and future laws, regulations, orders, and requirements of any Governmental Authority, judicial, or legal authorities having jurisdiction over the Real Property or Project, and with all recorded restrictions affecting the Real Property;

 

(vi)           furnish to the Lender from time to time on request by the Lender, in a form acceptable to the Lender, correct lists of all contractors and subcontractors employed in connection with construction of the Project and true and correct copies of all executed contracts and subcontracts.  The Lender may contact any contractor or subcontractor to verify any facts disclosed in the lists, Borrower must consent to the disclosure of such information by the contractors and subcontractors to Lender or its agents upon Lender’s request, and Borrower must assist Lender or its agents in obtaining such information upon Lender’s request;

 

(vii)          upon completion of the building foundation of the Project, deliver to the Lender an “as-built” survey of the Real Property which:  (a) sets forth the location and exterior lines and egress and other improvements completed on the Real Property and demonstrates compliance with all applicable setback requirements; (b) demonstrates that the Project is entirely within the exterior boundaries of the Real Property and any building restriction lines and does not encroach upon any easements or rights-of-way; and (c) contains such other information as the Lender may reasonably request;

 

(viii)         not purchase any materials, equipment, fixtures, or articles of personal property placed in the Project prior to the Construction Loan Maturity Date under any security agreement or other agreement where the seller reserves or purports to reserve title or the right of removal or repossession, or the right to consider them personal property after their incorporation in the work of construction, unless authorized by the Lender in writing;

 

(ix)            provide the Lender and its representatives with access to the Real Property and the Project at any reasonable time and upon reasonable notice to enter the Real Property and inspect the work or construction and all materials, plans, specifications, and other matters relating to the construction.  The Lender will also have the right to, at any reasonable time and upon reasonable notice, examine, copy, and audit the books, records, accounting data, and other documents of the Borrower and its contractors relating to the Real Property or construction of the Project;

 

(x)             pay and discharge all claims and liens for labor done and materials and services furnished in connection with the construction of the Project.  The Borrower will have the right to contest in good faith any claim or lien, provided that it does so diligently and without prejudice to the Lender or the ability to obtain title insurance in the manner required by this Agreement and the Disbursing Agreement.  Upon the Lender’s request, the Borrower will promptly

 

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provide a bond, cash deposit, or other security reasonably satisfactory to the Lender to protect the Lender’s interest and security should the contest be unsuccessful;

 

(xi)            at the Lender’s request and expense, post signs on the Real Property for the purpose of identifying the Lender as the “Lender.”  At the request of the Lender, or the participating local community banks, the Borrower will use its reasonable best efforts to identify the Lender as the lender in publicity concerning the Project;

 

(xii)           maintain in force until full payment of the Loan builder’s risk  insurance in such amounts, form, risk coverage, deductibles, insurer, loss payable and cancellation provisions as reasonably required by the Lender.  The Lender’s approval, however, will not be a representation of the solvency of any insurer or the sufficiency of any amount of insurance;

 

(xiii)          cooperate at all times with the Lender in bringing about the timely completion of the Project, and resolve all disputes arising during the work of construction in a manner which will allow work to proceed expeditiously.  With respect to such disputes, the Borrower will have the right to contest in good faith claims resulting in disputes, provided that it does so diligently and without prejudice to the Lender.  Upon the Lender’s request, the Borrower will promptly provide a bond, cash deposit, or other security reasonably satisfactory to the Lender to protect the Lender’s interest and security should the contest be unsuccessful;

 

(xiv)         pay the Lender’s and the Disbursing Agent’s out-of-pocket costs and expenses incurred in connection with the making or disbursement of the Loans or in the exercise of any of its rights or remedies under this Agreement, including but not limited to title insurance and escrow charges, disbursing agent fees, recording charges, and mortgage taxes, reasonable legal fees and disbursements, and reasonable fees and costs for services which are not customarily performed by the Lender’s salaried employees and are not specifically covered by the fees charged to originate the Loan, if any.  The provision of this paragraph will survive the termination of this Agreement and the repayment of the Loan;

 

(xv)          keep true and correct financial books and records on a cash basis for the construction of the Project and maintain adequate reserves for all contingencies.  If required by the Lender, the Borrower will submit to the Lender at such times as it requires (which will in no event be more often than monthly) a statement which accurately shows the application of all funds expended to date for construction of the Project and the source of those funds as well as the Borrower’s best estimate of the funds needed to complete the Project and the source of those funds.  The Borrower will promptly supply the Lender with any financial statements or other information concerning its affairs and properties as the Lender may reasonably request, and will promptly notify the Lender of any material adverse change in its financial condition or in the physical condition of the Property or Project;

 

(xvi)         comply with the requirements of any commitment or agreement entered into by Borrower with any Governmental Authority to assist the construction or financing of the Real Property and/or Project and with the terms of all applicable laws, regulations, and requirements governing such assistance;

 

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(xvii)        indemnify and hold the Lender harmless from and against all liabilities, claims, damages, reasonable costs, and reasonable expenses (including but not limited to reasonable legal fees and disbursements) arising out of or resulting from any defective workmanship or materials occurring in the construction of the Project.  Upon demand by the Lender, the Borrower will defend any action or proceeding brought against the Lender alleging any defective workmanship or materials, or the Lender may elect to conduct its own defense at the reasonable expense of the Borrower.  The provisions of this paragraph will survive the termination of this Agreement and the repayment of the Loan; and

 

(xviii)       obtain and deliver to the Lender copies of all necessary occupancy certificates relating to the Project.

 

Section 5.02.           Negative Covenants .  So long as any of the Loan Obligations remain unpaid or the Lender shall have any commitment hereunder, the Borrower will not, without the prior written consent of the Lender:

 

(a)            Liens, etc Create or suffer to exist, or permit any of its subsidiaries to create or suffer to exist, any lien, security interest or other charge or encumbrance, or any other type of preferential arrangement, upon or with respect to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its subsidiaries to assign, any right to receive income, in each case to secure any Debt (as defined below) of any Person, other than:

 

(i)             those described on Schedule 5.02(a) hereto and renewals and extensions on the same or substantially the same terms and conditions and at no increase in the debt or obligation; or

 

(ii)            liens or security interests which are subject to an intercreditor agreement in form and substance acceptable to Lender in Lender’s sole discretion; or

 

(iii)           the liens or security interests of the Security Agreement; or

 

(iv)           liens (other than liens relating to environmental liabilities or ERISA) for taxes, assessments, or other governmental charges that are not more than 30 days overdue or, if the execution thereof is stayed, which are being contested in good faith by appropriate proceedings diligently pursued and for which adequate reserves have been established; or

 

(v)            liens of warehousemen, carriers, landlords, mechanics, materialmen, or other similar statutory or common law liens securing obligations that are not yet due and are incurred in the ordinary course of business or, if the execution thereof is stayed, which are being contested in good faith by appropriate proceedings diligently pursued and for which adequate reserves have been established in accordance with generally accepted accounting principles; or

 

(vi)           liens resulting from good faith deposits to secure payments of workmen’s compensation unemployment insurance, or other social security programs or to secure the

 

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performance of tenders, leases, statutory obligations, surety, customs and appeal bonds, bids or contracts (other than for payment of Debt); or

 

(vii)          any attachment or judgment lien not constituting an Event of Default; or

 

(viii)         liens arising from filing UCC financing statements regarding leases not prohibited by this Agreement; or

 

(ix)            customary offset rights of brokers and deposit banks arising under the terms of securities account agreements and deposit agreements; or

 

(x)             any real estate easements and easements, covenants and encumbrances that customarily do not affect the marketable title to real estate or materially impair its use; or

 

(xi)            purchase money security interests in equipment and vehicles, not to exceed $25,000.00 for any single purchase.

 

(b)            Distributions, etc Declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests (units) now or hereafter outstanding, or make any distribution of assets to its stockholders, members or general partners as such, or permit any of its subsidiaries to purchase or otherwise acquire for value any stock, membership interest or partnership interest of the Borrower, provided, however, the Borrower and its subsidiaries may:  (i) declare and pay dividends and distributions payable in membership interests (units); (ii) purchase or otherwise acquire shares of the membership interests (units) of the Borrower or its subsidiaries with the proceeds received from the issuance of new membership interests (units); (iii) so long as the Borrower first provides such supporting documentation as the Lender may  request with respect to any fiscal year of the Borrower, the Borrower may pay aggregate cash dividends/distributions, during such fiscal year in an amount not to exceed the amount necessary for the members of the Borrower to pay their Income Taxes on such member’s allocable share of the taxable income of the Borrower for such taxable year or fiscal year, as applicable (“ Tax Distributions ”); (iv) pay redemptions, dividends or distributions in an amount not to exceed, in the aggregate, 65% of the Borrower’s Net Income ( “Allowed Distributions ”); (v) pay dividends or distributions which are immediately reinvested in the Borrower (“ Reinvestment Distributions ”) provided, however, that immediately prior to the proposed payment of any such dividends or distributions, or after giving effect thereto, no Default or Event of Default shall exist; and (vi) complete the transactions reflected on Schedule 4.01(a); or

 

(c)            Capital Expenditures .   Except for costs identified in the Project Costs and Uses Statement, make any investment in fixed assets in the aggregate amount of $500,000.00 during any fiscal year during  the term of this Agreement; or

 

(d)            Consolidation, Merger, Dissolution, Etc.   D irectly or indirectly, merge or consolidate with any other Person or permit any other Person to merge into or with or consolidate with the Borrower or any of its subsidiaries; or

 

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(e)            Indebtedness, etc .  Create, incur, assume or suffer to exist any Debt or other indebtedness, liabilities or obligations, whether matured or unmatured, liquidated or unliquidated, direct or contingent, joint or several, except:  (i) the liabilities of the Borrower to the Lender hereunder; (ii) trade accounts payable and accrued liabilities (other than Debt) arising in the ordinary course of the Borrower’s or any of its subsidiaries business; (iii) Subordinated Debt; (iv) the liabilities of the Borrower or its subsidiaries described on Schedule 5.02(a); and (v) under Material Contracts; or

 

(f)             Organization; Name; Chief Executive Office .  Change its state of organization, name or the location of its chief executive office without the prior written consent  of the Lender, except that the principal office shall be moved to the plant site when construction of the administration office is substantially complete; or

 

(g)            Loans, Guaranties, etc Make any loans or advances to (whether in cash, in-kind, or otherwise) any Person, or directly or indirectly guaranty or otherwise assure a creditor against loss in respect of any indebtedness, obligations or liabilities (contingent or otherwise) of any Person; or

 

(h)            Subsidiaries; Affiliates  Form or otherwise acquire any subsidiary or affiliated business, or acquire the assets of or acquire any equity or ownership interest in any Person, unless such subsidiary, affiliate or Person executes and delivers to the Lender:  (i) a guaranty of all of the Loan Obligations, in form and substance acceptable to the Lender in its sole discretion; (ii) security agreements in form substantially similar to the Security Agreement; and (iii) such other documents and amendments to this Agreement and the other Loan Documents as the Lender shall reasonably require; or

 

(i)             Transfer of Assets .  Sell, lease, assign, transfer, or otherwise voluntarily dispose of any of its assets, or permit any of its subsidiaries to sell, lease, assign, transfer, or otherwise voluntarily dispose of any of its assets except:  (i) dispositions of inventory in the ordinary course of business; and (ii) dispositions of: (A) obsolete or worn out equipment; (B) equipment or real property not necessary for the operation of its business; or (C) equipment or real property which is replaced with property of equivalent or greater value as the property which is disposed;

 

(j)             Lines of Business Engage in any line or lines of business activity other than the production of ethanol and DDGS and any activities incidental or reasonably related thereto;

 

(k)            Transactions with Affiliates .   Directly or indirectly enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate or with any director, officer or employee of the Borrower or any Affiliate, except (i) transactions listed on Schedule 5.02(k), (ii) transactions in the ordinary course of and pursuant to the reasonable requirements of the business of the Borrower or any of its subsidiaries and upon fair and reasonable terms which are fully disclosed to Lender and are no less favorable to the Borrower or such subsidiary than would be obtained in a comparable arm’s length transaction with a person or entity that is not an Affiliate, and (iii) payment of compensation to directors, officers

 

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and employees in the ordinary course of business for services actually rendered in their capacities as directors, officers and employees, provided such compensation is reasonable and comparable with compensation paid by companies of like nature and similarly situated.  Notwithstanding the foregoing, upon the election of Lender, no payments may be made with respect to any items set forth in clauses (i) and (ii) of the preceding sentence upon the occurrence and during the continuation of a Potential Default or an Event of Default; or

 

(l)             Management Fees and Compensation Directly or indirectly pay any management, consulting or other similar fees to any person, except legal or consulting fees paid to persons or entities that are not Affiliates of the Borrower or its subsidiaries for services actually rendered and in amounts typically paid by entities engaged in the Borrower’s or such subsidiary’s business; or

 

(m)           Material Control or Management .   (i) One or more of the members of the Borrower as of the date hereof shall fail, in the aggregate, to own, directly or indirectly, 100% of the common (voting) membership interests in the Borrower, or (ii) there should be any change in the chief executive officer of the Borrower, unless within 90 days of such event a person reasonably acceptable to Lender is appointed to such position, or (iii) the Borrower shall fail at any time to hold, legally or beneficially, 100% of the equity of each of the Guaranteeing Subsidiaries.

 

ARTICLE VI.

EVENTS OF DEFAULT AND REMEDIES

 

Section 6.01.           Events of Default .  Each of the following events shall be an “ Event of Default ”:

 

(a)            The Borrower shall fail to pay any installments of principal or interest, fees, expenses, charges or other amounts payable hereunder or under the other Loan Documents or to make any deposit of funds required under this Agreement when due; or

 

(b)            Any representation or warranty made by the Borrower, or any of its officers or directors under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; or

 

(c)            The Borrower shall fail to perform or observe any term, covenant or agreement contained in Sections 5.01(d), (e), (f) or (g) or take any action as prohibited by Section 5.02; or

 

(d)            The Borrower shall fail to deliver the financial statements or Compliance Certificate under Section 5.01(c) within 5 days of the date due; or

 

(e)            The Borrower shall fail to perform or observe any term, covenant or agreement contained in any Loan Document (other than those listed in clauses (a) through (d) of this Section 6.01) on its part to be performed or observed (other than the covenants to pay the Loan Obligations) and any such failure shall remain unremedied for ten (10) days after written notice

 

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thereof shall have been given to the Borrower by the Lender, provided, however, that no Event of Default shall be deemed to exist if, within said ten (10) day period, Borrower have commenced appropriate action to remedy such failure and shall diligently and continuously pursue such action until such cure is completed, unless such cure is or cannot be completed within thirty (30) days after written notice shall have been given; or

 

(f)             The Borrower shall fail to pay any indebtedness in an amount in excess of $50,000.00 (either in any individual case or in the aggregate) excluding indebtedness evidenced by the Notes and excluding Ordinary Trade Payable Disputes, or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness; or any other default under any agreement or instrument relating to any such indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such indebtedness (excluding Ordinary Trade Payable Disputes); or any such indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof (excluding Ordinary Trade Payable Disputes); or

 

(g)            The Borrower shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property, and, in the case of any such proceeding instituted against it (but not instituted by it) either such proceeding shall remain undismissed or unstayed for a period of 30 days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or the Borrower shall take any corporate action to authorize any of the actions set forth above in this subsection; or

 

(h)            Any one or more judgment(s) or order(s) for the payment of money in excess of $50,000.00 in the aggregate shall be rendered against the Borrower and either:  (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order; or (ii) there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or

 

(i)             Any provision of any Loan Document shall for any reason cease to be valid and binding on the Borrower or the Borrower shall so state in writing; or

 

(j)             The Mortgage or the Security Agreement shall for any reason, except to the extent permitted by the terms thereof, cease to create a valid lien, encumbrance or security interest in any of the property purported to be covered thereby; or

 

41



 

(k)            The termination of any Long Term Marketing Agreement prior to its stated expiration date, unless such Long Term Marketing Agreement is replaced by another Long Term Marketing Agreement acceptable to the Lender, within thirty (30) days of the termination of such Long Term Marketing Agreement; or

 

(l)             The Borrower dissolves, suspends, or discontinues doing business; or

 

(m)           Construction of the Project is halted or abandoned prior to completion for any period of thirty (30) consecutive days for any cause which is not beyond the reasonable control of the Borrower, its contractors and subcontractors; or

 

(n)            The construction of the Project shall be delayed for any reason and for such period that, in the reasonable judgment of the Lender, the Project will not be completed.  If such delay is curable and if Borrower has not been given a notice of a similar breach within the preceding twelve (12) months, it may be cured (and no Event of Default will have occurred) if Borrower cures the failure within thirty (30) days, which shall include advancing the progress of the Project to the point that, in the reasonable judgment of the Lender, the Project will be completed;

 

(o)            Any event, change or condition not referred to elsewhere in this Section 6.01 should occur which results in a Material Adverse Effect on the Borrower, any subsidiary or any guarantor of the Borrower’s obligations hereunder; or

 

(p)            Any guarantee, suretyship, subordination agreement, maintenance agreement, or other agreement furnished in connection with the Borrower’s obligations hereunder and under any Note shall, at any time, cease to be in full force and effect, or shall be revoked or declared null and void, or the validity or enforceability thereof shall be contested by the guarantor, surety or other maker thereof, or the Guarantor shall deny any further liability or obligations thereunder, or shall fail to perform its obligations thereunder, or any representation or warranty set forth therein shall be breached, or the Subsidiary Guarantor shall breach or be in default under the terms of any other agreement with Lender (including any loan agreement or security agreement);  or

 

(q)            The loss, suspension or revocation of, or failure to renew, any franchise, license, certificate, permit, authorization, approval or the like now held or hereafter acquired by the Borrower or any of its subsidiaries, if such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material Adverse Effect on the Borrower or (ii) any regulatory or Governmental Authority replaces the management of the Borrower or any of its subsidiaries or assumes control over the Borrower or such subsidiary; or

 

(r)             The Borrower or any of its subsidiaries should breach or be in default under a Material Contract in any material respect, including any material breach or default, or any termination shall have occurred, or any other event which would permit any party other than the Borrower or its subsidiaries to cause a termination, or any Material Contract shall have ceased for any reason to be in full force and effect prior to its stated or optional expiration date.

 

42



 

(s)            The Borrower or any of its subsidiaries should terminate, change, amend or restate, without the Lender’s prior consent any Material Contract, or any material Construction Contract.

 

(t)             Any Governmental Authority having jurisdiction over the Permit Litigation shall have issued any order, judgment or decree which has the affect of revoking or suspending the Air Quality Emissions permit for the Project.

 

Section 6.02.           Remedies .  Upon the occurrence of an Event of Default and at any time while such Event of Default is continuing, the Lender:

 

(a)            may accelerate the due date of the unpaid principal balance of the Notes, all accrued but unpaid interest thereon and all other amounts payable under this Agreement making such amounts immediately due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith immediately due and payable, without presentment, notice of intent to accelerate or notice of acceleration, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower and its subsidiaries; provided, however , that in the event of an actual or deemed entry of an order for relief with respect to any of the Borrower or any of its subsidiaries under the Federal Bankruptcy Code, the Notes, all such interest and all such amounts shall automatically become due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower and its subsidiaries;

 

(b)            may withhold or direct the Disbursing Agent to withhold any one or more Advances in its discretion,  and terminate the Lender’s obligations, if any, under this Agreement to make any Advances whereupon the commitment and obligations of the Lender to extend credit or to make Advances hereunder shall terminate, and no disbursement of Loan funds by the Lender will cure any default of the Borrower, unless the Lender agrees otherwise in writing;

 

(c)            may, by notice to the Borrower and its subsidiaries, obtain the appointment of a receiver to take possession of all Collateral of the Borrower and its subsidiaries, including, but not limited to all personal property, including all fixtures and equipment leased, occupied or used  by any of the Borrower and its subsidiaries.  Borrower and each of its subsidiaries hereby irrevocably consent to the appointment of such receiver and agree to cooperate and assist any such receiver as reasonably requested to facilitate the transfer of possession of  the Collateral to such receiver and to provide such receiver access to all books, records, information and documents as requested by such receiver;

 

(d)            in its discretion, enter the Real Property and take any and all actions necessary in its judgment to complete construction of the Project, including but not limited to making changes in Plans and Specifications, work or materials, and entering into, modifying, or terminating any contractual arrangements, subject to the Lender’s right at any time to discontinue any work without liability.  If the Lender elects to complete the Project, it will not assume any liability to the Borrower or any other person for completing the Project or for the manner or quality of construction of the Project, and the Borrower expressly waives any such liability.  The Borrower irrevocably appoints the Lender as its attorney-in-fact, with full power of substitution, to complete the Project in the

 

43



 

Borrower’s name, or the Lender may elect to complete construction in its own name.  In any event, all sums expended by the Lender in completing construction will be considered to have been disbursed to the Borrower and will be secured by the Mortgage and any other instruments or documents securing the Loans, and any such sums that cause the principal amount of the Loans to exceed the face amount of the Notes will be considered to be an additional loan to the Borrower bearing interest at the rate provided in the Notes and will be secured by the Mortgage  and any other instrument or documents securing the Loans.  The Lender will not have any obligation under the Plans and Specifications prepared for the Project, any studies, data, and drawings with respect thereto prepared by or for Borrower, or the contracts and agreements relating to the Plans and Specifications, or the aforesaid studies, data, and drawings, or to the construction of the Project unless it expressly hereafter agrees in writing.  The Lender will have the right to exercise any rights of the Borrower under those contracts and agreements or with respect to such Plans and Specifications, studies, data, and drawings upon any default by the Borrower under this Agreement, and shall have such other rights and remedies with respect thereto as are afforded a secured creditor under applicable law; and

 

(e)            may, by notice to the Borrower, require the Borrower to pledge to the Lender as security for the Loan Obligations an amount in immediately available funds equal to the then outstanding Letter of Credit Liabilities, such funds to be held in an interest bearing cash collateral account at the Lender without any right of withdrawal by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower or any of its subsidiaries under the Federal Bankruptcy Code, the Borrower shall, without notice, pledge to the Lender as security for the Loan Obligations an amount in immediately available funds equal to the then outstanding Letter of Credit Liabilities, such funds to be held in such an interest bearing cash collateral account at the Lender;

 

(f)             may exercise all rights to notify or instruct any Commodity Intermediary under any Commodity Account Control Agreement or Bank under any Deposit Account Control Agreement;

 

(g)            may apply any funds held by Lender in a Program Account toward the outstanding Loan Obligations of the Borrower; and

 

(h)            may exercise any other rights and remedies afforded to the Lender under the Loan Documents or by applicable law or equity.

 

Section 6.03.          Remedies Cumulative .   Each and every power or remedy herein specifically given shall be in addition to every other power or remedy, existing or implied, given now or hereafter existing at law or in equity, and each and every power and remedy herein specifically given or otherwise so existing may be exercised from time to time and as often and in such order as may be deemed expedient by Lender, and the exercise or the beginning of the exercise of one power or remedy shall not be deemed a waiver of the right to exercise at the same time or thereafter any other power or remedy. No delay or omission of Lender in the exercise of any right or power accruing hereunder shall impair any such right or power or be construed to be a waiver of any default or acquiescence therein.

 

44



 

ARTICLE VII.

MISCELLANEOUS

 

Section 7.01.                              Amendments, etc No amendment or waiver of any provision of any Loan Document to which the Borrower and its subsidiaries are a party, nor any consent to any departure by the Borrower and its subsidiaries therefrom, shall in any event be effective unless the same shall be agreed or consented to by the Lender and the Borrower, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

Section 7.02.                              Notices, etc All notices and other communications provided for under any Loan Document shall be in writing  and mailed, faxed, or delivered at the addresses set forth below, or at such other address as such party may specify by written notice to the other parties hereto:

 

If to the Borrower:

Heron Lake BioEnergy, LLC

 

91246 390 th Avenue

 

P.O. Box 198

 

Heron Lake, MN 56137-0198

 

Telephone:  (507) 793-0077

 

Fax: (507) 793-0078

 

Attention:  President

 

 

With a copy to:

Lindquist & Vennum P.L.L.P.

 

4200 IDS Center

 

80 South Eighth Street

 

Minneapolis, MN 55402-2205

 

Telephone: (612) 371-3211

 

Fax:  (612) 371-3207

 

Attn. Michael Weaver

 

 

If to the Lender:

AgStar Financial Services, PCA

 

1921 Premier Drive

 

P.O. Box 4249

 

Mankato, MN 56002-4249

 

Telephone: (507) 386-4242

 

Facsimile: (507) 344-5088

 

Attention: Mark Schmidt

 

 

With copy to:

Phillip L. Kunkel

 

Gray Plant Mooty

 

1010 West St. Germain, Suite 600

 

St. Cloud, MN 56301

 

Facsimile: (320) 252-4482

 

All such notices and communications shall have been duly given and shall be effective:  (a) when delivered; (b) when transmitted via facsimile to the number set forth above; (c) the Business Day

 

45



 

following the day on which the same has been delivered prepaid (or pursuant to an invoice arrangement) to a reputable national overnight air courier service; or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid.   Any confirmation sent by the Lender to the Borrower of any borrowing under this Agreement shall, in the absence of manifest error, be conclusive and binding for all purposes

 

Section 7.03.                              No Waiver; Remedies .  No failure on the part of the Lender to exercise, and no delay in exercising, any right under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right.  The remedies provided in the Loan Documents are cumulative and not exclusive of any remedies provided by law.

 

Section 7.04.                              Costs, Expenses and Taxes.

 

(a)                                   The Borrower agrees to pay on demand all costs and expenses in connection with the preparation, execution, delivery, filing, recording and administration of the Loan Documents and the other documents to be delivered under the Loan Documents, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Lender (who may be in-house counsel), and local counsel who may be retained by said counsel, with respect thereto and with respect to advising the Lender as to its respective rights and responsibilities under the Loan Documents, and all costs and expenses (including reasonable counsel fees and expenses) for the Lender in connection with the filing of the Financing Statements and the enforcement of the Loan Documents and the other documents to be delivered under the Loan Documents, including, without limitation, in the context of any bankruptcy proceedings.  In addition, the Borrower agrees to pay on demand the expenses described in Section 5.01(b).  In addition, the Borrower shall pay any and all stamp and other taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of the Loan Documents and the other documents to be delivered under the Loan Documents, and agrees to save the Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees.

 

(b)                                  If, due to payments made by the Borrower pursuant to Section 2.09 or due to acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, the Lender receives payments of principal of any Loan other than on the last day of an Interest Period relating thereto, the Borrower shall pay to the Lender on demand any amounts required to compensate the Lender for any additional losses, costs or expenses which it may incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Lender to fund or maintain such Loan.

 

Section 7.05.                              Right of Set-off .  The Lender is hereby authorized at any time and from time to time after an Event of Default, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by the Lender to or for the credit or the account of the Borrower and each of its subsidiaries against any and all of the Loan Obligations, irrespective of whether or not the Lender shall have made any demand under such Loan Document and although deposits, indebtedness

 

46



 

or such obligations may be unmatured or contingent.  The Lender agrees promptly to notify the Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of the Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which the Lender may have.

 

Section 7.06.                              Severability of Provisions .  Any provision of this Agreement or of any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof or affecting the validity or unenforceability of such provision in any other jurisdiction.

 

Section 7.07.                              Binding Effect; Successors and Assigns; Participations .

 

(a)                                   This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign or otherwise transfer its rights hereunder or any interest herein without the prior written consent of the Lenders.  Upon the request of Borrower, Lender shall provide copies of all invoices for costs and expenses to be reimbursed by Borrower under this Agreement or under any of the Loan Documents.

 

(b)                                  Borrower agrees and consents to Lender’s sale or transfer, whether now or later, of one or more participation interests in the Loans to one or more purchasers, whether related or unrelated to Lender.  Lender may provide, without any limitation whatsoever, to any one or more purchasers, or potential purchasers, any information or knowledge Lender may have about Borrower or about any other matter relating to the Loans, and Borrower hereby waives any rights to privacy it may have with respect to such matters; provided, however, that any information received by any such purchaser or potential purchaser under this provision which concerns the personal, financial or other affairs of the Borrower shall be received and kept by the purchaser or potential purchaser in full confidence and will not be revealed to any other persons, firms or organizations nor used for any purpose whatsoever other than for determining whether or not to participate in the Loans and in accord with the rights of Lender if a participation interest is acquired.  Borrower additionally waives any and all notices of sale of participation interests, as well as all notices of any repurchase of such  participation interest.  Borrower also agrees that the purchasers of any such participation interests will be considered as the absolute owners of such interests in the Loans and will have all the rights granted under the participation agreement or agreements governing the sale of such participation interests.  Borrower further waives all rights of offset or counterclaim that it may have now or later against Lender or against any purchaser of such a participation interest arising out of or by virtue of the participation and unconditionally agrees that either Lender or such purchaser may enforce Borrower’s obligation under the Loans irrespective of the failure or insolvency of any holder of any interests in the Loans.  Borrower further agrees that the purchaser of any such participation interests may enforce its interests irrespective of any personal claims or defenses that Borrower may have against Lender.

 

47



 

Section 7.08.                              Consent to Jurisdiction .

 

(a)                                   The Borrower hereby irrevocably submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to this Agreement, the Note and any instrument, agreement or document related hereto or thereto, and the Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such Minnesota state court or federal court.  The Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.  The Borrower irrevocably consents to the service of copies of the summons and complaint and any other process which may be served in any such action or proceeding by the mailing of copies of such process to Borrower at its address specified in Section 7.02.  The Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(b)                                  Nothing in this Section 7.08 shall affect the right of the Lender to serve legal process in any other manner permitted by law or affect the right of the Lender to bring any action or proceeding against the Borrower or its property in the courts of other jurisdictions.

 

Section 7.09.                              Governing Law .  THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF MINNESOTA.

 

Section 7.10.                              Execution in Counterparts .  This Agreement may be executed in any number of counterparts and on telecopy counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same agreement.

 

Section 7.11.                              Survival .  All covenants, agreements, representations and warranties made by the Borrower in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Advances and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Lender may have had notice or knowledge of any Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as any Loan Obligations are outstanding and unpaid and so long as the Lender has any unexpired commitments under this Agreement or the Loan Documents.  The expense reimbursement, additional cost, capital adequacy and indemnification provisions of this Agreement shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loan Obligations or the termination of this Agreement or any provision hereof.

 

Section 7.12.                              WAIVER OF JURY TRIAL .  THE BORROWER AND THE LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN

 

48



 

DOCUMENT TO WHICH IT IS A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.

 

Section 7.13.                              Entire Agreement .  THIS AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES THERETO.

 

The execution and delivery of this Third Amended and Restated Master Loan Agreement shall supersede and replace in its entirety the Amended and Restated Master Loan Agreement which shall thereafter be of no force or effect.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers and duly authorized, as of the date first above written.

 

BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS THIRD AMENDED AND RESTATED MASTER LOAN AGREEMENT, AND BORROWER AGREES TO ITS TERMS.  THIS AGREEMENT IS DATED AS OF THE DATE FIRST ABOVE STATED.

 

[SIGNATURE PAGE ON FOLLOWING PAGE]

 

49



 

SIGNATURE PAGE TO:

FOURTH AMENDED AND RESTATED MASTER LOAN AGREEMENT

by and among

HERON LAKE BIOENERGY, LLC

and

AGSTAR FINANCIAL SERVICES, PCA

DATED:  October 1, 2007

 

BORROWER:

 

HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company

 

 

/s/ Robert J. Ferguson

 

By Robert J. Ferguson

 

   Its President

 

 

LENDER:

 

AGSTAR FINANCIAL SERVICES, PCA

a United States instrumentality

 

 

/s/ Mark Schmidt

 

By Mark Schmidt

 

   Its Vice President

 

 

50



 

EXHIBIT A

COMPLIANCE CERTIFICATE

 

TO:                             AGSTAR FINANCIAL SERVICES, PCA (the “Lender”)

 

Pursuant to that certain Fourth Amended and Restated Master Loan Agreement dated October 1, 2007, by and between HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “Borrower”), and the Lender, and any amendments thereto and extensions thereof (the “Loan Agreement”), the undersigned hereby represents, warrants and certifies to the Lender as follows:

 

1.                                        The financial statement(s) attached hereto are complete and correct in all material respects and fairly present the financial condition of the Borrower as of the date of said financial statement(s) and the result of its business operations for the period covered thereby;

 

2.                                        Repeats and reaffirms to the Lender each and all of the representations and warranties made by the Borrower in the Loan Agreement and the agreements referred to therein or related thereto, and represents and warrants to the Lender that each and all of said warranties and representations are true and correct as of the date hereof except as set forth in Schedule 1 to this Compliance Certificate;

 

3.                                        No Event of Default (as that term is defined in the Loan Agreement), and no event which with the giving of notice or the passage of time or both would constitute an Event of Default, has occurred and is continuing as of the date hereof;

 

4.                                        All the calculations set forth below are made pursuant to the terms of the Loan Agreement and are true and accurate as of the date of the attached financial statements:

 

1.

Section 5.01(d) – Working Capital .

 

 

 

 

(tested annually)

 

 

 

 

 

 

 

 

(a)

Current Assets

 

$

                       

 

(b)

Available Commitment on the Term Revolving Loan

 

$

                       

 

(c)

Total Current Assets (line (a) plus line (b)

 

$

                       

 

(d)

Current Liabilities

 

$

                       

 

 

 

 

 

 

 

Line (c) less line (d)

 

 

 

 

 

 

 

In Compliance

Yes  o

 

No  o

 

 

 

 

2.

Section 5.01(e) – Tangible Net Worth .

 

 

 

 

(tested annually)

 

 

 

 

 

 

 

 

(a)

Required Tangible Net Worth

 

$

39,000,000.00

 

 

 

 

 

 

(b)

Actual Tangible Net Worth

 

 

 

 

 

 

 

 

 

(1) Total Assets

 

$

                       

 

 

(2) Less Intangible Assets (per definition)

 

$

                       

 

 

(3) Total Tangible Assets

 

$

                       

 

 

51



 

 

 

 

(4)  Total Liabilities

 

$

                       

 

 

(5)  Tangible Net Worth

 

$

                       

 

 

(line (4) minus line (5))

 

 

 

 

 

 

 

In Compliance

Yes  o

No  o

 

 

 

 

 

3.

Section 5.01(f) – Owner Equity Ratio

 

 

 

 

(tested annually)

 

 

 

 

 

 

 

 

(a)

Tangible Net Worth

 

$

                       

 

(b)

Total Assets

 

$

                       

 

(c)

Owner Equity Ratio

 

 

 

 

(ratio of line (b) to (c))

 

             to 1.00

 

 

 

 

 

 

 

Required Ratio of 0.50 to 1.00

 

 

 

 

 

 

 

In Compliance

Yes  o

No  o

 

 

 

 

 

4.

Section 5.01(g) – Fixed Charge Ratio

 

 

 

 

 

 

 

 

(a)

EBITDA

 

$

                       

 

(b)

Extraordinary Items

 

$

                       

 

(c)

Numerator (sum of lines (a) and (b))

 

$

                       

 

 

 

 

 

 

(d)

Current Portion of Long Term Debt

 

$

                       

 

(e)

Interest Expense

 

$

                       

 

(f)

Dividends

 

$

                       

 

(g)

Tax Distributions

 

$

                       

 

(h)

Maintenance Capital Expenditures

 

$

                       

 

(i)

Denominator (sum of lines (d) through (h))

 

$

                       

 

 

 

 

 

 

Ratio of line (c) to (i)

 

             to 1.00

 

 

 

 

 

 

Required Ratio of 1.20 to 1.00

 

 

 

 

 

 

 

In Compliance

Yes  o

No  o

 

 

IN WITNESS WHEREOF, the undersigned has signed and delivered this Certificate to the Lender as of the       day of             ,      .

 

BORROWER:

 

HERON LAKE BIOENERGY, LLC

a Minnesota limited liability company

 

 

By

 

 

 

Its

 

 

 

52



 

EXHIBIT B

PROJECT SOURCE AND USE STATEMENT

 

 

 

Revised Budget

 

Budget

 

Revised Budget

 

 

 

December 13, 2006

 

Changes

 

5/1/2007

 

Sources:

 

 

 

 

 

 

 

Senior Debt - Construction Loan

 

64,583,000

 

 

64,583,000

 

Senior Debt - Elevator Revolver

 

5,500,000

 

2,000,000

 

7,500,000

 

Member Equity

 

48,767,000

 

 

 

48,767,000

 

Member Equity - Land Exchange

 

500,000

 

 

 

500,000

 

Member Equity - Board Warrants

 

160,000

 

20,000

 

180,000

 

Grants - USDA

 

250,000

 

 

 

250,000

 

Grants - Jackson County

 

100,000

 

 

 

100,000

 

Interest

 

1,300,000

 

 

1,300,000

 

Water bond, other

 

 

 

 

USDA / Alliant Energy - Loan

 

740,000

 

 

740,000

 

TOTAL:

 

121,900,000

 

2,020,000

 

123,920,000

 

Uses:

 

 

 

 

 

 

 

Plant Construction Costs

 

 

 

 

 

 

 

Plant design build contract

 

81,286,872

 

 

81,286,872

 

Change Order Loadouts

 

 

 

 

 

Unit train loadout (75) ethanol

 

 

 

 

 

Unit train loadout (75) DDGS

 

 

 

 

 

Elevator facility

 

2,600,000

 

 

 

2,600,000

 

Scale upgrade

 

35,000

 

 

 

35,000

 

Administration building

 

1,200,000

 

 

1,200,000

 

Scale House

 

130,000

 

 

130,000

 

Office Equipment

 

135,000

 

 

135,000

 

Computers, Software, Network

 

65,000

 

 

65,000

 

Construction Performance Bond

 

 

 

 

Construction Insurance Builders Risk

 

205,000

 

 

205,000

 

Capitalized Interest

 

1,350,000

 

 

1,350,000

 

Construction Contingency

 

1,618,299

 

 

1,618,299

 

TOTAL:

 

88,625,171

 

 

88,625,171

 

 

53



 

Site Costs

 

 

 

 

 

 

 

Land Acquisition - 201 acres

 

2,130,000

 

 

2,130,000

 

Site Engineering (survey & borings)

 

70,000

 

 

70,000

 

Site fencing

 

25,000

 

 

25,000

 

Site maintenance

 

25,000

 

 

25,000

 

Site improvements (includes phase 1)

 

3,350,000

 

 

3,350,000

 

Soil Stabilization

 

1,000,000

 

 

1,000,000

 

Electrical Sub Station

 

1,205,000

 

 

1,205,000

 

City water & sewer

 

 

 

 

Highway road safety upgrade

 

650,000

 

 

650,000

 

Hard Surface Roads

 

800,000

 

 

800,000

 

Site utilities (includes phase II)

 

50,000

 

 

50,000

 

Liquid propane fuel storage

 

100,000

 

 

100,000

 

Permitting

 

200,000

 

 

200,000

 

Construction manager fees

 

 

 

 

TOTAL:

 

9,605,000

 

 

9,605,000

 

 

 

 

 

 

 

 

 

Railroad

 

 

 

 

 

 

 

Mainline Rail Switch

 

300,000

 

 

300,000

 

Yard rail switches

 

110,000

 

 

110,000

 

Rail track - Loop

 

4,385,548

 

 

4,385,548

 

Rail track - additional

 

400,000

 

 

400,000

 

Coal track contingency

 

 

 

 

Railroad contingency

 

425,781

 

 

425,781

 

TOTAL:

 

5,621,329

 

 

5,621,329

 

 

 

 

 

 

 

 

 

Fire protection/Water Supply

 

 

 

 

 

 

 

Fire protection loop

 

410,000

 

 

410,000

 

Fire water tank

 

323,351

 

 

323,351

 

Fire water pumps

 

125,000

 

 

125,000

 

 

54



 

Wells or water access

 

50,000

 

 

50,000

 

Water system pumps

 

 

 

 

 

Drain field & septic tank

 

90,000

 

 

90,000

 

Reverse osmosis water system

 

431,649

 

 

431,649

 

TOTAL:

 

1,430,000

 

 

1,430,000

 

Rolling Stock

 

 

 

 

 

 

 

Used front end loader - Coal

 

 

 

 

 

 

 

Used front end loader - DDGS

 

75,000

 

 

75,000

 

New skid loader

 

35,000

 

 

35,000

 

Used fork lift

 

30,000

 

 

30,000

 

Used scissor lift - 30’

 

10,000

 

 

10,000

 

Rail engine

 

290,000

 

 

290,000

 

Used pick-up

 

20,000

 

 

20,000

 

TOTAL:

 

460,000

 

 

460,000

 

 

 

 

 

 

 

 

 

Financing Costs

 

 

 

 

 

 

 

Participation & Loan Origination Fees

 

575,000

 

 

575,000

 

Bank commitment fees

 

80,000

 

 

80,000

 

Filing fees

 

 

 

 

Bank service fees

 

25,000

 

 

25,000

 

Construction inspectors - bank required

 

40,000

 

 

40,000

 

Bank Attorney Fees

 

100,000

 

 

100,000

 

Title Insurance

 

60,000

 

 

60,000

 

Disbursement Agent Fee

 

15,000

 

 

15,000

 

Appraisal Cost

 

22,500

 

 

22,500

 

TOTAL:

 

917,500

 

 

917,500

 

 

 

 

 

 

 

 

 

Pre-production period costs

 

 

 

 

 

 

 

Startup costs

 

 

 

 

Administration labor

 

120,000

 

 

120,000

 

 

55



 

Production labor

 

200,000

 

 

200,000

 

Utilities

 

200,000

 

 

200,000

 

Training costs

 

30,000

 

 

30,000

 

Operating costs

 

100,000

 

 

100,000

 

TOTAL:

 

650,000

 

 

650,000

 

 

 

 

 

 

 

 

 

Inventory - Working Capital

 

 

 

 

 

 

 

Inventory - working capital

 

1,000,000

 

 

1,020,000

 

Inventory - working capital elevator

 

5,625,000

 

1,875,000

 

7,500,000

 

Inventory - Corn

 

1,200,000

 

125,000

 

1,325,000

 

Inventory - spare parts

 

200,000

 

 

200,000

 

Inventory - ethanol

 

2,500,000

 

 

2,500,000

 

Denaturant, chem., yeasts, enzymes

 

250,000

 

 

250,000

 

Inventory - corn hedged

 

 

 

 

Inventory - DDGS

 

600,000

 

 

600,000

 

Inventory - Coal

 

30,000

 

 

30,000

 

Inventory - propane

 

30,000

 

 

30,000

 

TOTAL:

 

11,435,000

 

2,000,000

 

13,455,000

 

 

 

 

 

 

 

 

 

Organizational Costs

 

 

 

 

 

 

 

401k expense

 

 

 

 

Accounting

 

267,000

 

 

267,000

 

Advertising

 

5,000

 

 

5,000

 

Bank charges

 

2,000

 

 

2,000

 

Consulting fees

 

475,000

 

 

475,000

 

Depreciation

 

25,000

 

 

25,000

 

Directors expense

 

450,000

 

 

450,000

 

Directors travel expense

 

100,000

 

 

100,000

 

Donations

 

2,500

 

 

2,500

 

 

56



 

Dues

 

8,500

 

 

8,500

 

Insurance - D&O

 

175,000

 

 

175,000

 

Insurance - operations

 

30,000

 

 

30,000

 

Internet service

 

4,000

 

 

4,000

 

Legal

 

700,000

 

 

700,000

 

Membership fees

 

2,000

 

 

2,000

 

Membership meetings

 

20,000

 

 

20,000

 

Miscellaneous

 

20,000

 

 

20,000

 

Office equipment

 

20,000

 

 

20,000

 

Office expense

 

50,000

 

 

50,000

 

Office labor

 

250,000

 

 

250,000

 

Payroll tax expense

 

25,000

 

 

25,000

 

Postage

 

30,000

 

 

30,000

 

Printing

 

35,000

 

 

35,000

 

Telephone

 

30,000

 

 

30,000

 

Cost of raising capital

 

430,000

 

 

430,000

 

Office Utilities

 

 

 

 

TOTAL:

 

3,156,000

 

 

3,156,000

 

 

 

 

 

 

 

 

TOTAL USES:

 

121,900,000

 

4,020,000

 

123,920,000

 

 

57



 

EXHIBIT C

FORM OF OPINION LETTER

Date:  October 1, 2007 [ Draft]

 

AgStar Financial Services, PCA

1921 Premier Drive

P.O. Box 4249

Mankato, MN56002-4249

 

 

Re:                              Fourth Amended Master Loan Agreement Dated October 1, 2007, by and between Heron Lake BioEnergy, LLC and AgStar Financial Services, PCA

 

Ladies and Gentlemen:

 

We have acted as counsel to Heron Lake BioEnergy, LLC, a Minnesota limited liability company (the “Company”), in connection with the negotiation of the Fourth Amended and Restated Master Loan Agreement (the “Loan Agreement”) by and between the Company and Agstar Financial Services, PCA (the “Lender” or “you”) dated as of the date hereof and the consummation of the transactions described therein.  This letter is furnished to satisfy a condition set forth in Section 3.01(r) of the Loan Agreement.  All capitalized terms used in this letter that are not otherwise defined herein have the meanings assigned to them in the Loan Agreement unless the context requires otherwise.

 

In our capacity as counsel to the Company, and for purposes of this opinion, we have examined the following documents:

 

(i)                                      the Loan Agreement;

 

(ii)                                   the Fourth Amended and Restated Second Supplement;

 

(iii)                                the Third Supplement to the Loan Agreement;

 

(iv)                               the Fourth Supplement to the Loan Agreement;

 

(v)                                  the Second Amended and Restated Revolving Note;

 

(vi)                               the Term Note;

 

(vii)                            the Revolving Term Note;

 

(viii)                         the Revolving Line of Credit Note;

 

(ix)                                 the Security Agreement;

 

(x)                                    the Mortgage;

 

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(xi)                                 the Disbursing Agreement;

 

(ix)                                 the Articles of Organization and Member Control Agreement, as amended, of the Company;

 

(x)                                    the records of proceedings and actions of the members and Board of Governors of the Company with respect to the transactions between you and the Company contemplated by the Loan Agreement;

 

(xi)                                 such other documents, agreements and materials as we have deemed necessary and appropriate to render the opinions set forth in this letter, subject to the limitations, assumptions and qualifications noted below.

 

The documents listed as items (i) through (x) above are dated as of the first date written above and are collectively referred to herein as the “Loan Documents.”  In addition, we have examined and relied upon representations and warranties as to matters of fact (other than facts constituting conclusions of law) contained in and made pursuant to the Loan Documents.

 

In addition, we have examined such other resolutions, documents, certificates and records and have made such investigations of law and fact as we have deemed necessary or appropriate to enable us to render the opinions expressed herein.

 

In reaching the opinions set forth below, we have assumed, and have not independently verified, the genuineness of all signatures on all documents, the legal capacity and competency for all purposes relevant hereto of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to the authentic originals of all documents submitted to us as copies, the correctness, completeness and accuracy of all facts set forth in all representations, warranties and certificates referred to or identified in this opinion, and that there are no documents, agreements or understandings to which the Lender is a party between the Lender, on the one hand, and the Company on the other hand, other than the Loan Documents, which would have an effect on the opinions set forth below.  In examining documents executed by parties other than the Company, we have assumed that such parties had the requisite power, right and authority (corporate or otherwise) to execute, deliver and perform all of their respective obligations thereunder and have also assumed the due authorization by all requisite corporate action and execution and delivery of such documents by such parties, and the validity, legality and binding effect of those documents on those parties.  As to questions of fact material to our opinions, we have relied upon the representations and warranties made in the Loan Documents and upon certificates of officers or other representatives of the Company and of public officials (“Certificates”). We have not independently or through third parties verified such representations and warranties or Certificates, or made any independent investigation as to the existence of agreements, instruments or other documents, orders, judgments or decrees by which the Company or any of its properties or assets may be bound.

 

In basing the opinions and other matters set forth herein on phrases such as “best of our knowledge,” “our knowledge,” or “known to us,” such phrases signify that, in the course of our representation of the Company in matters with respect to which we have been engaged by the

 

59



 

Company to give substantive attention as counsel, no information has come to our attention that would give us actual knowledge that any such opinion or other matters are not accurate or that any of the foregoing Certificates and other matters on which we have relied are not accurate and complete.  Except as otherwise stated herein, we have undertaken no independent investigation or verification of such matters.  The phrases “best of our knowledge,” “our knowledge,” “known to us” and similar language used herein are intended to be limited to the knowledge of the lawyers currently employed by our firm who have performed substantive legal services related to the Loan Documents and have specific knowledge of the substance of this opinion.

 

Based on our review of the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, it is our opinion that:

 

1.                                        The Company is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Minnesota.

 

2.                                        The Company has the power to enter into and perform its obligations under the Loan Documents.

 

3.                                        The Company has taken all necessary company action to authorize the execution, delivery, and performance by the Company of the Loan Documents, and the consummation by the Company of the transactions set forth in the Loan Documents.

 

4.                                        The Loan Documents have been duly and validly executed and delivered by the Company and constitute legal, valid, binding, and enforceable obligations of the Company.

 

5.                                        The execution and delivery by the Company of the Loan Documents do not, and the consummation by the Company of the transactions contemplated by the Loan Documents and the compliance by the Company with the provisions of the Loan Documents do not, (a) conflict with or result in a breach of any provision of the Company’s Articles of Organization, or Member Control Agreement, (b) to our knowledge, conflict with or result in a material violation of any applicable state or federal law or regulation, (c) to our knowledge, conflict with any order, judgment, or decree to which the Company are a party or subject or by which any of its properties or assets are bound, or (d) to our knowledge, conflict with any Material Contract to which the Company is a party or by which the Company or any of its properties or assets are bound.

 

6.                                        To our knowledge, except as expressly disclosed in the Loan Documents, there are no actions, suits or proceedings pending or threatened in writing against or affecting the Company before any court or arbitrator or by or before any administrative agency or government authority, which, if adversely determined, would constitute an material adverse effect on the Company.  We do, however, call your attention to the Permit Litigation to which the Company is a party, the outstanding licenses, permits and consents per the schedule provided under Section 3.02(c) to the Loan Agreement, and the claims and action described on Schedule 4.01(f) to the Loan Agreement.  We make no opinions herein with respect to the outcome or impact of those matters.

 

60



 

The foregoing opinions are subject to the following qualifications (in addition to the qualifications, exceptions, limitations and assumptions specified above):

 

A.                                    Our opinions as they relate to the legality, validity, binding effect and/or enforceability of the Loan Documents are subject to the limitations that might result from bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent or preferential transfer, fraudulent conveyance, and other state and federal laws relating to or affecting the rights or remedies of creditors generally, now or hereafter, in effect.

 

B.                                      Our opinions as they relate to the legality, validity, binding effect and/or enforceability of the Loan Documents are subject to the qualification that the availability of the remedies of specific performance or injunctive relief, or any other equitable remedy, is subject to the discretion of the court before which a proceeding therefor may be brought, equitable defenses and the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), including without limitation, concepts of materiality, reasonableness, good faith, fair dealing and other similar doctrines affecting the enforcement of agreements generally.

 

C.                                      Except as expressly stated herein, no opinion is expressed or implied as to the truth, accuracy or completeness of any of the representations, warranties or other statements of the Company or any other person contained in any of the Loan Documents or in any exhibit, schedule or attachment thereto.

 

D.                                     We express or imply no opinion as to what actions the parties to the Loan Documents are required to or may take or fail to take on or after the date hereof which, if taken or not taken, would affect or impair the legality, validity, binding effect and/or enforceability of the Loan Documents or the rights and remedies of the parties thereunder.

 

E.                                       With respect to the legality, validity, binding effect and enforceability of the remedies available to the Lender under the Uniform Commercial Code in force in the State of Minnesota (“UCC”), we have assumed that the Lender will enforce such remedies in accordance with the UCC and under such circumstances and in a manner in which it is commercially reasonable to do so.  In addition, because a claimant bears the burden of proof required to support its claim, our opinion assumes that you will undertake the effort and expense necessary to present your claims in the prosecution of any remedy accorded you under the Loan Documents.

 

F.                                       We express or imply no opinion as to the creation, attachment, perfection or priority of any security interest, mortgage or other lien which the Lender may claim in any real or personal property of the Company under any of the Loan Documents or otherwise.

 

G.                                      Our opinions as they relate to the legality, validity, binding effect and/or enforceability of the Loan Documents are subject to the limitations arising from state and federal court decisions involving statutes, public policy and/or principles of equity holding that (i) purported waivers of notice, remedies (or the delay in, omission of, or enforcement thereof) or the benefits of

 

61



 

statutory provisions or constitutional or common law rights and broadly or vaguely stated provisions waiving rights or waivers of unknown future rights or duties imposed by law are or may be void or unenforceable, (ii) under certain circumstances, provisions declaring that the failure to exercise or delay in exercising rights or remedies will not operate as a waiver of any such right or remedy are invalid, (iii) provisions declaring that the documents may only be amended or waived in writing may be unenforceable to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created modifying one or more provisions of the Loan Documents, (iv) the enforcement of public policy is of a paramount public interest which may prohibit enforcement of certain contractual provisions; (v) the indemnification and exculpation provisions of the Loan Documents may be unenforceable to the extent that the enforcement of such provisions is determined to be against public policy; and (vi) certain other provisions in the Loan Documents, including, without limitation, self-help provisions, provisions that purport to establish evidentiary standards, provisions requiring the payment of a late payment or repayment charge, fee, reinvestment charge, premium or penalty, however denominated, are or may be unenforceable in whole or in part.

 

H.                                     Since it is necessary for the Lender to elect its proper remedy in certain instances, no opinion is expressed or implied that any cumulative remedy provision contained in any of the Loan Documents is valid or enforceable.

 

I.                                          No opinion is expressed or implied as to the legality, validity, binding effect or enforceability of (i) any power of attorney granted to the Lender in any of the Loan Documents, or (ii) any document, certificate, agreement or instrument executed or delivered by the Lender pursuant thereto.

 

J.                                         Minnesota Statutes, Section 290.371, subd. 4, provides that any corporation required to file a Notice of Business Activities Report does not have a cause of action upon which it may bring suit under Minnesota law unless the corporation has filed a Notice of Business Activities Report and that the use of the courts of the State of Minnesota for all contracts executed and all causes of action that arose before the end of any period for which a corporation failed to file a required report is precluded.  We note, however, that a court may excuse the failure to file such a report under certain circumstances described in the statute.  Insofar as the foregoing opinion may relate to the legality, validity, binding effect and/or enforceability of any agreement under Minnesota law or in a Minnesota court, we have assumed that any party seeking to enforce the agreement has at all times been, and will continue at all times to be, exempt from the requirement of filing a Notice of Business Activities Report or, if not exempt, has duly filed, and will continue to duly file, all Notice of Business Activities Reports.

 

K.                                     In giving this opinion, we advise you that a Minnesota court may not strictly enforce certain covenants contained in the Loan Documents or allow acceleration of the maturity of the indebtedness evidenced by the Notes if it concludes that such enforcement or acceleration would be unreasonable under the then existing circumstances.  We do believe, however, that subject to the limitations expressed elsewhere in this opinion, enforcement or acceleration would be available if an Event of Default occurs as a result of a material breach of a material covenant contained in the Loan Documents.

 

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L.                                       Certain rights, remedies, waivers and indemnities contained in the Loan Documents, in addition to those specifically enumerated above, may be limited or rendered ineffective by applicable Minnesota laws or judicial decisions governing such provisions, but such laws and judicial decisions do not render the Loan Documents invalid as a whole, and there exist, in the Loan Documents or pursuant to applicable law, legally adequate remedies for a realization of the principal benefits intended to be provided by the Loan Documents.

 

In addition to the qualifications set forth above, the opinions set forth herein are also subject to the following qualifications:

 

M.                                  We are members of the Bar of the State of Minnesota.  The opinions expressed herein are limited to matters of Minnesota and federal law.  We express no opinion with respect to the laws of any other jurisdiction.  For purposes of this opinion we have assumed that the internal laws (as opposed to the choice of law rules) of the State of Minnesota and applicable federal law would apply and have rendered our opinion on that basis.  To the extent that the law of another jurisdiction applies, we have assumed that the law of that jurisdiction would be the same as Minnesota law.  We render no opinion as to the enforceability of any choice of law provision.

 

N.                                     We express no opinion with respect to title to any property, nor do we express any opinion with respect to the existence of encumbrances upon any property or the attachment, validity, perfection or priority of any liens or security interests.

 

O.                                     Except as explicitly addressed in the numbered opinions above, no opinion is expressed herein as to any of the topics listed under Section 19 “Specific Legal Issues” of the Third-Party Legal Opinion Report, published in 1991 by the Section of Business Law of the American Bar Association.

 

This opinion is limited to the specific legal issues addressed herein and no opinion is implied or may be inferred beyond the matters expressly set forth herein.  Our opinion is rendered to you solely for your benefit in connection with consummation of the transactions set forth in the Loan Documents and may not be quoted in whole or in part, filed publicly or delivered to, or relied upon by any other person without our prior written consent.  Our opinion is based upon the state of facts and the law existing and in effect on the date hereof, and we assume no obligation to revise, supplement or update this opinion in any respect at any time subsequent to the date hereof in order to account for any change in the law (whether or not hereinafter enacted or adopted) or future facts, events or circumstances affecting any of the transactions contemplated by any of the Loan Documents.

 

 

Very truly yours,

 

 

 

LINDQUIST & VENNUM P.L.L.P.

 

63



 

Schedule 3.01(d)

Real Property

 

Tract 1:

 

Part of the SE1/4 of Sec. 16, T104N, R37W, Jackson County, Minnesota, described as follows:

 

Beginning at an existing iron monument at the SW corner of the SE1/4 of said Sec. 16; thence North 00°29’31” East, bearing based on Jackson County Coordinate System, along the West line of the SE1/4 of said Sec. 16, a distance of 1995.89 feet, to a point on the Southerly right of way line of the Union Pacific Railroad; thence North 76°38’53” East, along the Southerly right of way line of said Union Pacific Railroad, a distance of 2701.22 feet, to a point on the East line of the SE1/4; thence South 00°18’29” West, along the East line of said SE1/4 a distance of 1950.98 feet; thence South  89°57’40” West, parallel with the South line of said SE1/4, a distance of 1005.15 feet; thence South 61°35’10” West a distance of 172.03 feet; thence South 00°18’29” West, parallel with the East line of said SE1/4, a distance of 585.18 feet, to a point on the South line of said SE1/4; thence South 89°57’40” West, along the South line of SE1/4, a distance of 1475.25 feet, to the point of beginning.

 

Tract 2:

 

Part of the SW1/4 of Sec. 16, T104N, R37W, Jackson County, Minnesota, lying Southerly of the Southerly right of way line of the Union Pacific Railroad, described as follows:

 

Beginning at an existing iron monument at the SE corner of the SW1/4 of said Sec. 16; thence South 89°57’49” West, along the South line of said SW1/4, a distance of 1031.09 feet; thence North 00°37’05” East, parallel with the West line of said SW1/4, a distance of 275.02 feet; thence South 89°57’49” West, parallel with the South line of said SW1/4, a distance of 1600.10 feet, to a point on the West line of said SW1/4; thence North 00°37’05” East, along the West line of said SW1/4, a distance of 593.98 feet; thence South 89°22’55” East a distance of 412.00 feet; thence North 00°37’05” East, parallel with the West line of said SW1/4, a distance of 400.00 feet; thence North 89°22’55” West a distance of 412.00 feet, to a point on the West line of said SW1/4; thence North 00°37’05” East, along the West line of SW1/4, a distance of 103.50 feet, to a point on the Southerly right of way line of the Union Pacific Railroad, thence North 76°38’53” East, along the Southerly right of way line of said Union Pacific Railroad, a distance of 2706.70 feet, to a point on the East line of said SW1/4; thence South 00°29’31” West, along the East line of said SW1/4, a distance of 1995.89 feet, to the point of beginning.

 

64



 

Schedule 4.01(a)

Description of Certain Transactions Related to the Borrowers’ Stock

 

Up to 225,000 Class A Units (in aggregate) were issued in August 2007, at the price of $.80 per unit, pursuant to five-year options granted to the Borrower’s Board of Governors (including estate of deceased former Governor).

 

3,750,000 Class A Units were issued, in exchange for 3,750,000 Class B Units, pursuant to a subscription and exchange agreement were entered into with Project Viking, LLC, an affiliate of Roland Fagen, in May 2007.

 

65



 

Schedule 4.01(f)

Description of Certain Threatened Actions, etc.

 

Permit Litigation (as defined in the Loan Documents) and Borrower’s proceedings in front of MPCA relating to the Air Permit.

 

The following proceeding is contemplated before the Securities and Exchange Commission:  Borrower intends to file a registration statement relating to the registration of the Borrower’s Class A Units pursuant to Section 12(g)(1) of the Securities Exchange Act of 1934 and regulations promulgated thereunder relating thereto.

 

Outstanding licenses, permits and consents on the schedule provided under Section 3.02(c).

 

Any claims between the Borrower and Fagen, Inc., under or in connection with the Design Build Contract (“Fagen Claims”).

 

Administrative Penalty Order issued by the MPCA dated August 7, 2007, requiring the Borrower to undertake certain specified corrective actions.

 

66



 

Schedule 4.01(k)

Location of Inventory and Farm Products; Third Parties in Possession; Crops

 

See Schedule 4.01(l) below (which locations are incorporated herein by reference).

 

Borrower and Subsidiary maintain various accounts with lenders/financial institutions that are subject to account control agreements in favor of Lender.

 

Borrower and Subsidiary will lease certain real property from Union Pacific Railroad Company with respect to the acquisition of the elevator facilities located at (Lakefield Facility):  105 Main Street, Lakefield, Minnesota 56150 and (Wilder Facility):  Highway 60, Wilder, Minnesota 56101, as further described in the purchase agreement for the facilities between Subsidiary and seller of such property.

 

Borrower and Subsidiary maintain petroleum, soybeans, corn and other inventory at the Real Property, on the leased real property referenced above and on the real property and improvements owned by Subsidiary.

 

67



 

Schedule 4.01(l)

Office Locations; Fictitious Names; Etc.

 

Locations :

 

Lakefield Facility:  105 Main Street, Lakefield, Minnesota 56150

 

Wilder Facility:  Highway 60, Wilder, Minnesota 56101

 

Heron Lake: 91246 390 th Avenue, PO Box 198, Heron Lake, Minnesota 56137-0198 (Jackson County)

 

Jurisdiction of Organization :

 

Minnesota

 

Other Names :

 

Heron Lake BioEnergy, LLC, f.k.a. Generation II Ethanol, LLC

 

Heron Lake BioEnergy (assumed name)

 

Lakefield Farmers Elevator

 

Income Tax Numbers :

 

Heron Lake BioEnergy - FEIN:  41-2002393; MN TID: 5537084

 

Lakefield Farmers Elevator, LLC – FEIN: 20-2990455; MN TID: 7995842

 

MN State Charter Numbers:

 

Heron Lake BioEnergy, LLC: 22013-LLC

 

Lakefield Farmers Elevator, LLC:  1398208-2

 

68



 

Schedule 4.01(p)

Intellectual Property

 

Tradenames:  Heron Lake BioEnergy; Generation II Ethanol; Lakefield Farmers Elevator

 

Domain Names used in the ordinary course of business.

 

69



 

Schedule 4.01(t)

Environmental Compliance

 

The environmental conditions identified on the Limited Phase II Assessment for the Lakefield elevator facility located at 105 and 111 Main Street, Lakefield, Minnesota 56150, a copy of which is attached hereto and incorporated herein, and any potential remediation measures identified in said Assessment that may be required to be addressed and/or taken prior to or in conjunction with acquisition of the Lakefield elevator facility or pursuant to a post-closing undertaking agreement between the Borrower or its subsidiaries and the seller of said property.

 

The Environmental Laws implicated by the schedule provided under Section 3.02(c).

 

70



 

Schedule 5.01(o)

Management

 

Our business and affairs are managed by or under the direction of our Board of Governors.  Our Board of Governors may create additional governorships and may fill those vacancies by the affirmative vote of a majority of the members of the Board of Governors serving at the time of the increase.  The members of this first Board of Governors shall serve until our first annual meeting of members.

 

Name

 

Position

 

Address

Robert J. Ferguson

 

Governor, Board President, CEO and General Manager

 

P.O. Box 167
Heron Lake, MN 56137

Michael S. Kunerth

 

Governor, Board Treasurer

 

34858 150 th Street
Brewster, MN 56119

David J. Woestehoff

 

Governor, Board Secretary

 

15466 West 270 th Street
Belle Plaine, MN 56011

David J. Bach

 

Governor

 

27817 351 st Avenue
Henderson, MN 56044

Timothy O. Helgemoe

 

Governor

 

16087 Henry Drive
Utica, MN 55979

Milton J. McKeown

 

Governor

 

P.O. Box 201
Heron Lake, MN 56137

Doug Schmitz

 

Governor, Board Vice President

 

P.O. Box 175, Hwy 30
Currie, MN 56123

Robert Wolf

 

Governor

 

748 Kentucky Avenue
Adrian, MN 56110

Brian Thome

 

Governor (Fagen Appointee)

 

501 W. Highway 212
Granite Falls, MN 56241

Dave Reinhart

 

Governor (Fagen Appointee)

 

501 W. Highway 212
Granite Falls, MN 56241

Jim Gerber

 

Chief Financial Officer – Contractor

 

1029 Frontage Rd
Slayton, MN 56172

 

We expect the balance of our employees will be hired and trained before we complete construction on the plant.  We expect that training of employees and on-site, start-up assistance will be part of our design-build contract with our Fagen, Inc.

 

71



 

Schedule 5.02(a)

Description of Certain Liens, Lease Obligations, etc.

 

See Section 5.02(a) and liens set forth therein and contemplated thereby.

 

The Borrower leases a copy machine and is subject to a lease agreement.

 

The Borrower intends to enter into a secured loan arrangement with the Federated Rural Electric Ass’n/USDA to obtain funds in the approximate principal amount of $600,000.00.  The Borrower’s obligations under the loan arrangement may be secured by a security interest in certain assets of the Borrower to be specified, provided any such security interest shall be subject to an intercreditor agreement reasonably satisfactory to the Lender.

 

The Borrower intends to enter into a secured loan arrangement with Interstate Power and Light Company and Alliant Energy Company to obtain funds in the approximate principal amount of $140,000.00.  The Borrower’s obligations under the loan arrangement may be secured by a security interest in certain assets of the Borrower to be specified; provided any such security interest shall be subject to an intercreditor agreement reasonably satisfactory to the Lender.

 

The Borrower leases 100 covered hopper cars pursuant to that certain Railroad Car Lease Agreement between Trinity Industries Leasing Company and Borrower dated June 26, 2006 and that certain Rider One (1) dated November 1, 2006.

 

At October 31, 2006, the Borrower had recorded a liability for derivative instruments related to corn futures positions of approximately $916,000.00.  The Borrower expects to incur and record liabilities for derivative instruments relating to commodity futures positions in future periods.

 

The Borrower has entered into a note payable in the original principal amount of $100,000.00 to Jackson County with interest at 4.00%, forgivable upon job creation thresholds at specified wages as part of the plant development within two years of plant completion, but no later than November 1, 2009.

 

Assessment payable as part of water treatment agreement in the amount of $3,550,000.00 as of October 31, 2006.

 

72



 

Schedule 5.02(k)

Transactions with Affiliates

 

Purchase of corn from any governor, officer or their affiliate, provided said purchase is in accordance with Borrower’s Member Control Agreement

 

The options and exchange agreement referenced in Schedule 4.01(a)

 

Transactions between Borrower and its subsidiaries pursuant to or in accordance with their respective member control agreements.

 

The Borrower has procured a software package from a vendor in conjunction with an Affiliate in order to maximize economic efficiencies associated with the procurement.

 

Transactions with Fagen, Inc. pursuant to the Design-Build Agreement between Fagen, Inc. and Borrower dated September 28, 2005.

 

Transaction with Federated Electric to construct and operate a sub-station.

 

73


EXHIBIT 10.2

 

THIRD SUPPLEMENT

TO THE MASTER LOAN AGREEMENT

(TERM LOAN)

 

THIS THIRD SUPPLEMENT TO THE MASTER LOAN AGREEMENT (this “Third Supplement” ), dated as of October 1, 2007, is between AGSTAR FINANCIAL SERVICES, PCA (the “Lender” ) and HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “Borrower” ), and supplements that certain Fourth Amended and Restated Master Loan Agreement, dated October 1, 2007, between the Lender and the Borrower (as the same may be amended, modified, supplemented, extended or restated from time to time, the “MLA” ).

 

1.             Definitions . As used in this Third Supplement, the following terms shall have the following meanings.  Capitalized terms used and not otherwise defined in this Third Supplement  shall have the meanings attributed to such terms in the MLA.  Terms not defined in either this Third Supplement or the MLA shall have the meanings attributed to such terms in the Uniform Commercial Code, as enacted in the State of Minnesota and as amended from time to time.

 

Fixed Rate Loan ” means that portion of the unpaid principal balance of the Term Loan converted to and accruing at a fixed rate of interest pursuant to Section 4 of this Third Supplement.

 

Term Note ” means that certain promissory note of even date herewith in the original principal amount of $59,583,000.00 to be executed and delivered to the Lender by the Borrower pursuant to the terms and conditions provided for in this Supplement and the MLA.

 

Term Loan Maturity Date ” means October 1, 2012.

 

2.             The Term Loan Amount and Purpose .   Pursuant to the terms and conditions set forth in the MLA and this Third Supplement, Lender agrees to convert a portion of the Construction Loan and obligations represented by the Construction Note into a Term Loan to the Borrower in the original principal amount of $59,583,000.00 for the purpose of refinancing the Construction Loan.

 

3.             Interest Rate .  Subject to the provisions of Sections 2.08 and 2.11 of the MLA and Section 9 and 12 of this Third Supplement, the portion of the Term Loan that has not been converted to a Fixed Rate Loan pursuant to Section 4 of this Third Supplement, the Term Loan shall bear interest at a rate equal to the LIBOR Rate plus 325 basis points.  The computation of interest, amortization, maturity and other terms and conditions of the Term Loan shall be as provided in the Term Note, provided, however, in no event shall the applicable rate exceed the Maximum Rate.

 

4.             Conversion to Fixed Rate Loan Pursuant to Section 2.05 of the MLA, on the Closing Date, the Borrower shall have the right to convert all or any part of the outstanding

 



 

principal balance of the Term Loan into a Fixed Rate Loan, with the consent of the Lender which shall not be unreasonably withheld, which shall bear interest at a rate equal to the rate listed in the “Government Agency and Similar Issues” section of the Wall Street Journal for the Federal Farm Credit Bank or the Federal Home Loan Bank having a maturity approximately equal to the Term Loan Maturity Date, or another rate as agreed upon by the Lender and Borrower,  which is in effect at the time of conversion plus 300 basis points.  Borrower shall provide written notice to Lender at least 30 days prior to the Closing Date of its intention to convert any portion of the Term Loan to a Fixed Rate Loan.  Such written notice shall specify the specific dollar amount that Borrower is electing to convert to a Fixed Rate Loan.   Any amount subject to a fixed rate of interest pursuant to this Section shall not be subject to any adjustments under Section 2.06 of the MLA.

 

5.             Term Loan Payments Beginning on November 1, 2007 and continuing on the first (1 st ) day of each month thereafter until May 1, 2008, Borrower will pay accrued interest on the Term Loan.  Beginning on the first (1 st ) day of May, 2008, and continuing on the first (1 st ) day of each month thereafter (the “Monthly Payment Date”) until the Term Loan Maturity Date, the Borrower shall make equal monthly payments of principal and accrued interest in such amounts as will be required to fully amortize the entire outstanding principal of the Term Note, together with accrued interest thereon, over a period not to exceed ten (10) years from date of this Third Supplement.  The amount of said monthly payments shall be recalculated and, if necessary, adjusted to account for changes in the effective rate of interest hereunder and to maintain said ten (10) year amortization.

 

6.             Effective Date Subject to the provisions of the MLA and this Third Supplement, the Term Loan shall become effective on the Closing Date.

 

7.             Term Loan Term The Term Loan term shall run for a period beginning on the Closing Date and ending on the Term Loan Maturity Date.

 

8.             Renewal .   Lender agrees that at the Term Loan Maturity Date Borrower may request in writing that Lender renew the Term Loan for a period of up to five (5) years on such terms and conditions as the Lender and Borrower may agree upon in writing.  Nothing in this Agreement shall commit the Lender to renew or extend any other accommodations to the Borrower regarding the Term Loan.

 

9.              Default Interest .  In addition to the rights and remedies set forth in the MLA:  (i) if the Borrower fails to make any payment to Lender when due (including, without limitation, any purchase of equity of Lender when required), then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances of the Term Loan shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect on the Term Loan under the terms of the Term Note; (iii) after the maturity of the Term Loan, whether by reason of acceleration or otherwise, the unpaid principal balance of the Term Loan

 

2



 

(including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect on the Term Loan under the terms of the Term Note.  Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.

 

10.           Late Charge .  If any payment of principal or interest due under this Third Supplement or the Term Note is not paid within ten (10) days of the due date thereof, the Borrower shall pay, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of such payment.

 

11.          Excess Cash Flow   In addition to all other payments of principal and interest required under the MLA, this Third Supplement and the Term Note, the Borrower shall remit to Lender, beginning with the first fiscal year end following the effective date of this Fourth Supplement, and continuing throughout the term of the Term Loan, the Borrower shall remit to Lender, in addition to all other installments of interest, an amount equal to 25% of the Borrower’s Excess Cash Flow for the immediately proceeding fiscal year (the “ Excess Cash Flow Payment ”), provided however , that the total Excess Cash Flow Payments required hereunder shall not exceed $2,000,000.00 in any calendar year.  All Excess Cash Flow Payments shall be applied to the reduction of the outstanding principal balance of the Term Loan.  No Excess Cash Flow Payments shall be required during any calendar year should the Tangible Owner’s Equity be greater than 50% at the end of the immediately proceeding fiscal year of the Borrower.

 

12.          Changes in Law Rendering Certain LIBOR Rate Loans Unlawful .  In the event that any change in any applicable law (including the adoption of any new applicable law) or any change in the interpretation of any applicable law by any judicial, governmental or other regulatory body charged with the interpretation, implementation or administration thereof, should make it (or in the good-faith judgment of the Lender should raise a substantial question as to whether it is) unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then:  (a) the Lender shall promptly notify each of the other parties hereto; and (b) the obligation of the Lender to make LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness.  During the period of any suspension, Lender shall make loans to Borrower that are deemed lawful and that as closely as possible reflect the terms of the MLA.

 

13.          Prepayment of Term Loan The Borrower may, by notice to the Lender, prepay the outstanding amount of the Term Loan in whole or in part with accrued interest to the date of such prepayment on the amount prepaid, without penalty or premium, except as provided in this Section and Section 2.09 of the MLA.  Any prepayment does not otherwise affect Borrower’s obligations to pay any fees due under the MLA or this Third Supplement.  In addition, in the event any portion of the Term Loan is converted to a fixed rate loan, the Borrower shall pay the prepayment fee applicable to that fixed interest rate, if any.

 

14.           Maximum Amount Limitation .  Anything in the MLA, this Third Supplement, or the other Loan Documents to the contrary notwithstanding, Borrower shall not be required to

 

3



 

pay unearned interest on the Term Note or any of the Loan Obligations, or ever be required to pay interest on the Term Note or any of the Loan Obligations at a rate in excess of the Maximum Rate, if any.  If the effective rate of interest which would otherwise be payable under the MLA, this Third Supplement, the Term Note, or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged, or received under the MLA, this Third Supplement, the Term Note, or any of the other Loan Documents shall be reduced to the Maximum Rate, if any.  If any unearned interest or discount or property that is deemed to constitute interest (including, without limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations to the Lender under the MLA, this Third Supplement, the Term Note, or any of the other Loan Documents are deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the option of the holder of the Term Note, be either refunded to the Borrower, or credited on the principal of the Term Note.  It is further agreed that, without limitation of the foregoing and to the extent permitted by applicable law, all calculations of the rate of interest or discount contracted for, charged or received by the Lender under the Term Note, or under any of the Loan Documents, that are made for the purpose of determining whether such rate exceeds the Maximum Rate applicable to the Lender, if any, shall be made, to the extent permitted by applicable laws (now or hereafter enacted), by amortizing, prorating and spreading during the period of the full terms of the Advances evidenced by the Term Note, and any renewals thereof all interest at any time contracted for, charged or received by Lender in connection therewith.  This Section shall control every other provision of all agreements among the parties to the MLA pertaining to the transactions contemplated by or contained in the Loan Documents, and the terms of this Section shall be deemed to be incorporated in every Loan Document and communication related thereto.

 

15 .          Funds Held Program .  Lender, in its sole discretion, may offer a funds held program (the “Program”) to permit the Borrower to make advance conditional payments on designated loans, on such terms and conditions as the Lender may establish from time to time.  Lender reserves the right, in its discretion, to amend or terminate the Program at any time upon notice to Borrower.  The following terms and conditions apply to all Program accounts in connection with loans from Lender:

 

(a)           Advance Payments .  Subject to Lender’s rights to direct the application of payments, an advance payment made to be applied to any amounts due and owing to the Lender on the Loan Obligations in the future, or used for any other purpose allowed by the Program, will be in a designated Program account as of the date received.  If a special prepayment of principal is desired, Borrower must so specify when an advance payment is made.

 

(b)           Program Interest .  Interest will accrue on funds in the Program account at such times and at such rates determined by Lender.  Lender may change the interest rate or accrual period from time to time without notice.  The Program may provide for different interest rates for different categories of loans.

 

4



 

(c)           Application of  Funds .  Funds in the Program account for a designated loan will be automatically applied by Lender on the Quarterly Payment Date toward payment of the installment or related charges when the loan installment or other related charge becomes due.  Any accrued interest in the Program account will be applied first to the installment or related charges.  If the funds in the Program account are insufficient to pay the entire installment or related charges, Borrower shall pay the difference by the Quarterly Payment Date.  Funds received after a loan installment or related charges have been billed will be applied to the installment or related charges due.  Funds received in excess of the billed installment amount or related charges will be placed in the Program account unless otherwise designated as a special principal payment by Borrower or designated for another purpose allowed by the Program.

 

(d)           Withdrawal of Funds .  Lender may, in its sole discretion, permit Borrower to withdraw funds from the Program account in accordance with Lender’s Program.

 

(e)           Limitations .  Lender, in its sole discretion, may restrict the availability of any funds in the Borrower’s Program account

 

(f)            Lender Options .  The Lender may, in its sole discretion, apply funds from the Program account without notice to Borrowers for the following reasons:

 

(i)            Protective Advance .  If the Borrower fails to pay when due any amounts Borrower is required to pay pursuant to the Loan Documents, Lender may apply funds in the Program account to pay such amounts.

 

(ii)           Account Ceiling .  If at any time the Program account balance exceeds the unpaid balance on the designated loan, Lender may apply the funds in the Program account to pay off the loan.  Any excess funds will be returned to Borrower.

 

(iii)          Transfer of Security .  If Borrower sells, assigns, or transfers any interest in any collateral for the loan, Lender may apply the funds in the Program account to the remaining loan balance.

 

(iv)          Termination .  In the event the Lender, in its sole discretion, terminates the Program, Lender may apply all funds in the Program account to the remaining loan balance effective on the termination date.

 

(g)           No Program Account Insurance .  Neither the advance payments nor the accrued interest in a Program account are insured by a governmental agency or instrumentality.

 

(h)           Liquidation of Lender .  If Lender is placed in liquidation, Borrower shall be sent by the receiver such notices as required by the Farm Credit Administration regulations then in effect.  Such regulations currently provide for advance notice from the receiver that funds in the Program account will be applied to the loan and that funds in the Program account will not earn interest after the receiver is appointed.

 

5



 

16.          Security .   The Borrower’s obligations hereunder and, to the extent related thereto, the MLA, shall be secured as provided in the MLA.

 

17.          Representations and Warranties of Borrower The Borrower hereby agrees with, reaffirms, and acknowledges as follows:

 

(a)           The representations and warranties contained in the MLA, this Third Supplement and the Related Documents.  Furthermore, the Borrower represents that the representations and warranties contained in the MLA, this Third Supplement and the Related Documents continue to be true and correct and in full force and effect.

 

(b)           The Borrower is not in default under the terms of the MLA, this Third Supplement, the Related Documents or any other Material Contracts to which the Borrower is a party and which relates to the construction of the Project or the operation of the Borrower’s business; and

 

(c)           No license, permit, permission or authority necessary for the construction or operation of the Project has been revoked or challenged by or before any Governmental Authority.

 

(d).          Borrower has the power and authority to execute, deliver, and perform this Third Supplement and any documents required under this Third Supplement and that all documents contemplated herein when executed and delivered to Lender will constitute the valid, binding and legally enforceable obligations of Borrower in accordance with their respective terms and conditions, except as enforceability may be limited by any applicable bankruptcy or insolvency laws.

 

18.          Effect on First Supplement Effective on the Closing Date, the Third Supplement, the Term Note, the Fourth Supplement and the Term Revolving Note shall supercede and replace in their entirety the Amended and Restated First Supplement and the Amended and Restated Construction Note which shall thereafter be of no force or effect.

 

IN WITNESS WHEREOF, the parties have caused this Third Supplement to the Fourth Amended and Restated Master Loan Agreement to be executed by their duly authorized officers as of the date shown above.

 

{SIGNATURE PAGE TO FOLLOW THIS PAGE}

 

6



 

SIGNATURE PAGE

TO

THIRD SUPPLEMENT (TERM LOAN)

BY AND BETWEEN

HERON LAKE BIOENERGY, LLC

AND

AGSTAR FINANCIAL SERVICES, PCA

DATED: October 1, 2007

 

 

 

 

 

HERON LAKE BIOENERGY, LLC, a
Minnesota limited liability company

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

      /s/ Robert J. Ferguson

 

 

 

 

 

      Robert J. Ferguson

 

 

 

 

 

      Its: President

 

 

 

 

 

 

 

 

 

AGSTAR FINANCIAL SERVICES, PCA

 

 

 

 

an United States corporation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

     /s/ Mark Schmidt

 

 

 

 

 

Mark Schmidt

 

 

 

 

 

Its Vice President

 

7


EXHIBIT 10.3

 

FOURTH SUPPLEMENT

TO THE MASTER LOAN AGREEMENT

(TERM REVOLVING LOAN)

 

THIS FOURTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT (this “Fourth Supplement” ), dated as of October 1, 2007, is between AGSTAR FINANCIAL SERVICES, PCA, an United States corporation (the “Lender” ) and HERON LAKE BIOENERGY,  LLC, a Minnesota limited liability company (the “Borrower” ), and supplements and incorporates all of the provisions of that certain Fourth Amended and Restated Master Loan Agreement, of even date herewith, between the Lender and the Borrower (as the same may be amended, modified, supplemented, extended or restated from time to time, the “MLA” ).

 

1.                                       Definitions .   As used in this Fourth Supplement, the following terms shall have the following meanings.  Capitalized terms used and not otherwise defined in this Fourth Supplement shall have the meanings attributed to such terms in the MLA.  Terms not defined in either this Fourth Supplement or the MLA shall have the meanings attributed to such terms in the Uniform Commercial Code, as enacted in the State of Minnesota and as amended from time to time.

 

First Supplement ” means that certain Amended and Restated First Supplement dated December 27, 2006.

 

Monthly Payment Date ” means the first (1 st ) day of each calendar month.

 

Outstanding Credit ” means, at any time of determination, the aggregate amount of Advances then outstanding.

 

Outstanding Revolving Advance ” means the total Outstanding Credit under this Fourth Supplement and the Term Revolving Note.

 

Request for Advance ” shall have the meaning specified in Section 7(a) of this Fourth Supplement.

 

Revolving Advance ” means an advance under this Fourth Supplement and the Term Revolving Note.

 

 “ Term Revolving Note ” means that certain promissory note of even date herewith to be executed and delivered to the Lender by the Borrower in the amount of $5,000,000.00 pursuant to the terms and conditions provided for in this Fourth Supplement and the MLA.

 

Term Revolving Loan Commitment ” shall mean the following:

 

On the Closing Date

 

$

5,000,000.00

 

October 1, 2008

 

$

4,500,000.00

 

October 1, 2009

 

$

4,000,000.00

 

October 1, 2010

 

$

3,500,000.00

 

October 1, 2011

 

$

3,000,000.00

 

 



 

Term Revolving Loan Maturity Date ” means October 1, 2012.

 

Term Revolving Loan Termination Date ” shall have the meaning specified in Section 3 of this Fourth Supplement.

 

Unused Commitment Fee ” shall have the meaning specified in Section 7(d) of this Fourth Supplement.

 

2.                                       Conversion of Construction Loan into Term Revolving Loan .   Pursuant to the terms and conditions contained in the MLA and this Fourth Supplement, Lender agrees to  convert a portion of the Construction Loan and obligations represented by the Construction Note into a Term Revolving Loan in the original principal amount of $5,000,000.00 to be used for, Project Cost, cash and inventory management purposes.   Notwithstanding the foregoing, no Advances under the Term Revolving Loan shall be made for purposes other than the payment of Project Costs without the written consent of the Lender.

 

                                                3.                                       Term Revolving Loan Commitment .  Lender agrees, on the terms and conditions set forth in the MLA and this Fourth Supplement, to convert $5,000,000.00 of the Construction Loan and obligations represented by the Construction Note into a Term Revolving Loan on the effective date of this Fourth Supplement, and to make one or more advances to the Borrower, during the period beginning on the effective date of this Fourth Supplement and ending on the Business Day immediately preceding the Term Revolving Loan Maturity Date (the “ Term Revolving Loan Termination Date ”), in an aggregate principal amount outstanding at any one time not to exceed Term Revolving Loan Commitment.  The Term Revolving Loan Commitment shall expire at 12:00 noon Central time on the Term Revolving Loan Maturity Date.  Under the Term Revolving Loan amounts borrowed and repaid or prepaid may be reborrowed at any time prior to and including the Term Revolving Loan Termination Date provided, however, that at no time shall the sum of the Outstanding Revolving Advances exceed the Term Revolving Loan Commitment.  The Borrower shall, without penalty or premium and within five (5) days following each annual anniversary date of the Closing Date, prepay the Outstanding  Revolving Advances in the amount, if any, by which the Outstanding Credit on such date exceeds the Term Revolving Loan Commitment then in effect, together with accrued interest thereon to the date of such prepayment.

 

4.                                       Purpose .   Advances under the Loan may be used for cash and inventory management purposes of the Borrower and its subsidiaries, including closing costs and fees associated with the Term Revolving Loan.  The Borrower agrees that the proceeds of the Loan are to be used only for the purposes set forth in this Section 4.

 

5.                                       Repayment of the Term Revolving Loan .   The Borrower will pay interest on the Term Revolving Loan on the first (1 st ) day of each month, commencing on the first (1 st ) Monthly Payment Date following the date on which the first Advance is made on the Term Revolving Loan, and continuing on each Monthly Payment Date thereafter until the Term Revolving Loan Maturity Date.  On the Term Revolving Loan Maturity Date, the amount of the then unpaid

 

2



 

principal balance of the Term Revolving Loan and any and all other amounts due and owing hereunder or under any other Loan Document relating to the Term Revolving Loan shall be due and payable.  If any Payment Date is not a Business Day, then the principal installment then due shall be paid on the next Business Day and shall continue to accrue interest until paid.

 

6.                                       Term Revolving Loan Term  The Term Revolving Loan term shall run for a period beginning on the Closing Date and ending on the Term Revolving Loan Maturity Date.

 

7.                                       Making the Advances.

 

(a)                                   Revolving Advances .  Each Revolving Advance shall be made, on notice from the Borrower (a “ Request for Advance ”) to the Lender delivered before 12:00 Noon (Minneapolis, Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of such Revolving Advance specifying the amount of such Revolving Advance,  provided that, no Revolving Advance shall be made while an Event of Default exists or if the interest rate for such LIBOR Rate Loan would exceed the Maximum Rate.  Any Request for Advance applicable to a Revolving Advance received after 12:00 Noon (Minneapolis, Minnesota time) shall be deemed to have been received and be effective on the next Business Day.  The amount so requested from the Lender shall, subject to the terms and conditions of this Fourth Supplement, be made available to the Borrower by:  (i) depositing the same, in same day funds, in an account of the Borrower; or (ii) wire transferring such funds to a Person or Persons designated by the Borrower in writing.

 

(b)                                  Requests for Advances Irrevocable .  Each Request for Advance shall be irrevocable and binding on the Borrower and the Borrower shall indemnify the Lender against any loss or expense it may incur as a result of any failure to borrow any Advance after a Request for Advance (including any failure resulting from the failure to fulfill on or before the date specified for such Advance the applicable conditions set forth in this Section 7 of this Fourth Supplement and the MLA), including, without limitation, any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Lender to fund such Advance when such Advance, as a result of such failure, is not made on such date.

 

(c)                                   Minimum Amounts .  Each Revolving Advance shall be in a minimum amount equal to $50,000.00.

 

(d)                                  Unused Commitment Fee .  In addition to the fees payable on the effective date of this Fourth Supplement, Borrower agrees to pay to the Lender an Unused Commitment Fee on the average daily unused portion of such Lender’s commitment under the Term Revolving Loan from the date of this Fourth Supplement until the Term Revolving Loan Maturity Date at the rate of 0.35% per annum, payable in arrears in quarterly installments payable on the first (1 st ) day of each third month after the effective date of this Fourth Supplement.

 

(e)                                   Conditions Precedent to All Advances .  The Lender’s obligation to make each Advance under the Term Revolving Note shall be subject to the terms, conditions and

 

3



 

covenants set forth in the MLA and this Fourth Supplement, including, without limitation, the following further conditions precedent:

 

(i)                                      Representations and Warranties .  The representations and warranties set forth in the MLA and this Fourth Supplement are true and correct in all material respects as of the date of the request for any Advance, except as disclosed in writing to the Lender, to the same extent and with the same effect as if made at and as of the date thereof except as disclosed in writing to the Lender;

 

(ii)                                   No Defaults .  The Borrower is not in default under the terms of the MLA, this Fourth Supplement, the Related Documents or any other Material Contracts to which the Borrower is a party and which relates to the construction of the Project or the operation of the Borrower’s business; and

 

(iii)                                Government Action .  No license, permit, permission or authority necessary for the construction or operation of the Project has been revoked or challenged by or before any Governmental Authority.

 

8.                                       Interest Rate .  Subject to the provisions of Section 2.08 and 2.11 of the MLA and Sections 9 and 12 of this Fourth Supplement, the Term Revolving Loan shall bear interest at a rate equal to the LIBOR Rate plus 325 basis points.  The computation of interest, amortization, maturity and other terms and conditions of the Term Revolving Loan shall be as provided in the Term Revolving Note, provided, however, in no event shall the applicable rate exceed the maximum nonusurious interest rate, if any, that at any time, or from time to time, may be contracted for, taken, reserved, charged, or received under applicable state or federal laws (the “ Maximum Rate ”).

 

9.                                       Default Interest .  In addition to the rights and remedies set forth in the MLA:  (i) if the Borrower fails to make any payment to Lender when due, then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances of the Term Revolving Loan shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect on the Term Revolving Loan under the terms of the Term Revolving Note; (iii) after the maturity of the Term Revolving Loan, whether by reason of acceleration or otherwise, the unpaid principal balance of the Term Revolving Loan (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect on the Term Revolving Loan under the terms of the Term Revolving Note.  Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.

 

10.                                Late Charge .  If any payment of principal or interest due under this Fourth Supplement or the Term Revolving Note is not paid within ten (10) days of the due date thereof, the Borrower shall, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of such payment.

 

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11.                                Excess Cash Flow .    In addition to all other payments of principal and interest required under the MLA, this Fourth Supplement and the Term Revolving Note, the Borrower shall remit to Lender, beginning with the first calendar quarter following the effective date of this Fourth Supplement, and continuing throughout the term of the Term Revolving Loan, the Borrower shall remit to Lender, in addition to all other installments of interest, an amount equal to 25% of the Borrower’s Excess Cash Flow for the immediately proceeding calendar quarter (the “ Excess Cash Flow Payment ”), provided however , that the total Excess Cash Flow Payments required hereunder shall not exceed $2,000,000.00 in any calendar year.  All Excess Cash Flow Payments shall be applied to the reduction of the outstanding principal balance of the Term Loan or the Term Revolving Loan, at the Lender’s sole discretion.  No Excess Cash Flow Payments shall be required during any calendar year should the Tangible Owner’s Equity be greater than 50% at the end of the immediately proceeding fiscal year of the Borrower.

 

12.                                Changes in Law Rendering Certain LIBOR Rate Loans Unlawful .  In the event that any change in any applicable law (including the adoption of any new applicable law) or any change in the interpretation of any applicable law by any judicial, governmental or other regulatory body charged with the interpretation, implementation or administration thereof, should make it (or in the good-faith judgment of the Lender should raise a substantial question as to whether it is) unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then:  (a) the Lender shall promptly notify each of the other parties hereto; and (b) the obligation of the Lender to make LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness.  During the period of any suspension, Lender shall make loans to Borrower that are deemed lawful and that as closely as possible reflect the terms of the MLA.

 

13.                                Maximum Amount Limitation .  Anything in the MLA, this Fourth Supplement, or the other Loan Documents to the contrary notwithstanding, Borrower shall not be required to pay unearned interest on the Term Revolving Note or any of the Loan Obligations, or ever be required to pay interest on the Term Revolving Note or any of the Loan Obligations at a rate in excess of the Maximum Rate, if any.  If the effective rate of interest which would otherwise be payable under the MLA, this Fourth Supplement, the Term Revolving Note, or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged, or received under the MLA, this Fourth Supplement, the Term Revolving Note, or any of the other Loan Documents shall be reduced to the Maximum Rate, if any.  If any unearned interest or discount or property that is deemed to constitute interest (including, without limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations to the Lender under the MLA, this Fourth Supplement, the Term Revolving Note, or any of the other Loan Documents are deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the option of the holder of the Term Revolving Note, be either refunded to the Borrower, or credited on the principal of the Term Revolving Note.  It is further agreed that, without limitation of the foregoing and to the extent permitted by applicable law, all calculations of the rate of interest or discount contracted for, charged or received by the Lender under the Term Revolving Note, or under any of the Loan Documents, that are made for the purpose of

 

5



 

determining whether such rate exceeds the Maximum Rate applicable to the Lender, if any, shall be made, to the extent permitted by applicable laws (now or hereafter enacted), by amortizing, prorating and spreading during the period of the full terms of the Advances evidenced by the Term Revolving Note, and any renewals thereof all interest at any time contracted for, charged or received by Lender in connection therewith.  This section shall control every other provision of all agreements among the parties to the MLA pertaining to the transactions contemplated by or contained in the Loan Documents, and the terms of this section shall be deemed to be incorporated in every Loan Document and communication related thereto.

 

14 .                                Security .   The Borrower’s obligations hereunder and, to the extent related thereto, the MLA, shall be secured as provided in the MLA.

 

15.                                Representation and Warranty The Borrower hereby agrees with, reaffirms, and acknowledges that Borrower has the power and authority to execute, deliver, and perform this Fourth Supplement and any documents required under this Fourth Supplement and that all documents contemplated herein when executed and delivered to Lender will constitute the valid, binding and legally enforceable obligations of Borrower in accordance with their respective terms and conditions, except as enforceability may be limited by any applicable bankruptcy or insolvency laws.

 

16.                                Effect on First Supplement Except as set forth in Section 2 of this Fourth Supplement, effective on the Closing Date, this Fourth Supplement, the Term Revolving Note, the Third Supplement, and the Term Note shall supersede and replace in their entirety the First Supplement and Construction Note which shall thereafter be of no force or effect.

 

IN WITNESS WHEREOF, the parties have caused this Fourth Supplement to the Fourth Amended and Restated Master Loan Agreement to be executed by their duly authorized officers as of the date shown above.

 

 

HERON LAKE BIOENERGY, LLC, a

 

Minnesota limited liability company

 

 

 

 

 

 

 

/s/ Robert J. Ferguson

 

 

By:  Robert J. Ferguson

 

 

Its: President

 

 

 

AGSTAR FINANCIAL SERVICES, PCA

 

an United States corporation

 

 

 

 

 

By:

 

/s/ Mark Schmidt

 

 

Mark Schmidt

 

 

Its Vice President

 

6


EXHIBIT 10.4

 

TERM N OTE

 

$59,583,000.00

 

 

October 1, 2007

 

1.                                        FOR VALUE RECEIVED, HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “ Borrower ”), hereby promises to pay to the order of AGSTAR FINANCIAL SERVICES, PCA , an United States corporation (the “ Lender ”), the principal sum of Fifty-Nine Million Five Hundred Eighty-Three Thousand and No/100ths ($59,583,000.00) Dollars, or so much thereof as may be advanced to, or for the benefit of, the Borrower and be outstanding, with interest thereon, to be computed on each advance from the date of its disbursement as set forth herein pursuant to that certain Fourth Amended and Restated Master Loan Agreement dated May 18, 2007, by and between the Lender and the Borrower (as it may be amended, modified, supplemented, extended or restated from time to time, the “MLA” ), and pursuant to that certain Third Supplement to the Master Loan Agreement, dated as of even date herewith, by and between the Lender and the Borrower  (as it may be amended, modified, supplemented, extended or restated from time to time, the “Third Supplement” ), and which remains unpaid, in lawful money of the United States and immediately available funds.  This Term Note (the “Note”) is issued pursuant to the terms and provisions of the MLA and the Third Supplement and is entitled to all of the benefits provided for in the MLA and the Third Supplement.  All capitalized terms used and not defined herein shall have the meanings assigned to them in the MLA and the Third Supplement.

 

2.                                        The outstanding principal balance of this Note shall bear interest at a variable rate determined by Lender to be three and one-quarter  percent (3.25%) above the LIBOR Rate in effect on the date of this Note.  Notwithstanding the foregoing, the rate of interest under this Note may be adjusted by Lender pursuant to the provisions of the MLA, the Third Supplement and this Note. On the date of this Note, part of the outstanding principal balance under this Note may, at Borrower’s option, be converted to a fixed rate of interest at a rate determined pursuant to the MLA and the Third Supplement.

 

3.                                        Pursuant to Section 2.04 of the MLA, on the effective date of this Note, the Borrower shall have the right to convert all or part of the outstanding principal balance of the Term Loan into a Fixed Rate Loan, with the consent of the Lender which shall not be unreasonably withheld, which shall bear interest at a rate equal to the rate listed in the “Government Agency and Similar Issues” section of the Wall Street Journal for the Federal Farm Credit Bank or the Federal Home Loan Bank having a maturity approximately equal to the Term Loan Maturity Date, or another rate as agreed upon by the Lender and Borrower,  which is in effect at the time of conversion plus 300 basis points. Borrower shall provide written notice to Lender at least 30 days prior to the conversion date of its intention to convert any portion of the Term Loan to a Fixed Rate Loan.  Such written notice shall specify the specific dollar amount that Borrower is electing to convert to a Fixed Rate Loan.   Any amount subject to a fixed rate of interest pursuant to this Section shall not be subject to any adjustments under Section 2.05 of the MLA.

 

4.                                        The “LIBOR Rate” means the rate (rounded upward to the nearest sixteenth and adjusted for reserves required on Eurocurrency Liabilities (as hereinafter defined) for banks subject to FRB Regulation D (as hereinafter defined) or required by any other federal law or regulation,

 



 

quoted by the British Bankers Association (the “BBA”) at 11:00 a.m. London time two Banking  Days (as hereinafter defined) before the commencement of the Interest Period for the offering of U.S. Dollar deposits in the London interbank market for am Interest Period  of one month, as published by Bloomberg or another major information vendor listed on BBA’s official website.  “ Banking Day ” shall mean a day on which Lender is open for business, dealings in U.S. dollar deposits are being carried out in the London interbank market, and banks are open for business in New York City and London, England.  “ Eurocurrency Liabilities ” has the meaning as set forth in FRB Regulation D.  “ FRB Regulation D ” means Regulation D as promulgated by the Board of Governors of the Federal Reserve System, 12 CFR Part 204, as amended from time to time

 

5.                                        The rate of interest due hereunder shall initially be determined as of the date hereof and shall thereafter be adjusted, as and when, and on the same day that, the LIBOR Rate changes. All such adjustments to the rate of interest shall be made and become effective as of the first day of the month following the date of any change in the LIBOR Rate and shall remain in effect until and including the day immediately preceding the next such adjustment (each such day hereinafter being referred to as an “ Adjustment Date ”).  All such adjustments to said rate shall be made and become effective as of the Adjustment Date, and said rate as adjusted shall remain in effect until and including the day immediately preceding the next Adjustment Date.  Interest hereunder shall be computed on the basis of a year of three hundred sixty-five or three hundred sixty-six (365 or 366) days, but charged for actual days principal is outstanding.

 

6.                                        Beginning on November 1, 2007 and continuing on the first (1 st ) day of each month thereafter until May 1, 2008, Borrower will pay accrued interest on the Term Loan. Beginning on the first (1 st ) day of May, 2008, and continuing on the first (1 st ) day of each month thereafter (the “Monthly Payment Date”) until the Term Loan Maturity Date, the Borrower shall make equal monthly payments of principal and accrued interest in such amounts as will be required to fully amortize the entire outstanding principal of this Note, together with accrued interest thereon, over a period not to exceed ten (10) years from date of this Note.  The amount of said monthly payments shall be recalculated  and, if necessary, adjusted to account for changes in the effective rate of interest hereunder and to maintain said ten (10) year amortization.

 

7.                                        In addition to all other payments of principal and interest required under the MLA, this Third Supplement and this Note, the Borrower shall remit to Lender, beginning with the first fiscal year end following the effective date of this Note, and continuing throughout the term of the Term Loan, the Borrower shall remit to Lender, in addition to all other installments of interest, an amount equal to 25% of the Borrower’s Excess Cash Flow for the immediately proceeding fiscal year (the “ Excess Cash Flow Payment ”), provided however , that the total Excess Cash Flow Payments required hereunder shall not exceed $2,000,000.00 in any calendar year.  All Excess Cash Flow Payments shall be applied to the reduction of the outstanding principal balance of this Note.  No Excess Cash Flow Payments shall be required during any calendar year should the Tangible Owner’s Equity be greater than 50% at the end of the immediately proceeding fiscal year of the Borrower.

 

8.                                        The outstanding principal balance hereof, together with all accrued interest, if not paid sooner, shall be due and payable in full on October 1, 2012 (the “Term Loan Maturity Date”).

 

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9.                                        All payments and prepayments shall, at the option of the Lender, be applied first to any costs of collection, second to any late charges, third to accrued interest and the remainder thereof to principal.

 

10.                                  This Note may be prepaid, at any time, at the option of the Borrower, either in whole or in part, subject to the obligations of the Borrower to compensate the Lender for any loss, cost or expense as a result of such prepayment as set forth in the MLA and the Third Supplement.  This Note is subject to mandatory prepayment, at the option of the Lender, as provided in the MLA and the Third Supplement.

 

11.                                  In addition to the rights and remedies set forth in the MLA and the Third  Supplement:  (i) if the Borrower fails to make any payment to Lender when due under this Note, then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment under this Note; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances under this Note shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect under the terms of this Note; (iii) after the Maturity Date, whether by reason of acceleration or otherwise, the unpaid principal balance of this Note (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect under this   Note.  Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.

 

12.                                  If the Borrower fails to make any payment to Lender within ten (10) days of the due date thereof (including, without limitation, any purchase of equity of Lender when required), the Borrower shall, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of such payment.

 

13.                                  This Note is secured by, among other instruments, that certain Third Amended and Restated Mortgage dated May 18, 2007 (the “Mortgage”) covering various parcels of real property, fixtures, and personal property located in Jackson County, Minnesota, and that certain Security Agreement dated September 29, 2005.  In the event any such security is found to be invalid for whatever reason, such invalidity shall constitute an event of default hereunder.  All of the agreements, conditions, covenants, provisions, and stipulations contained in the Mortgage, or any instrument securing this Note are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein. It is agreed that time is of the essence of this Note.

 

14.                                  Upon the occurrence at any time of an Event of Default or at any time thereafter, the outstanding principal balance hereof plus accrued interest hereon plus all other amounts due hereunder shall, at the option of the Lender, be immediately due and payable, without notice or demand and Lender shall be entitled to exercise all remedies provided in this Note, the MLA, the Third Supplement or any of the Loan Documents.

 

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15.                                  The occurrence at any time of an Event of Default or at any time thereafter, the Lender shall have the right to set off any and all amounts due hereunder by the Borrower to the Lender against any indebtedness or obligation of the Lender to the Borrower.

 

16.                                  The Borrower promises to pay all reasonable costs of collection of this Note, including, but not limited to, reasonable attorneys’ fees paid or incurred by the Lender on account of such collection, whether or not suit is filed with respect thereto and whether or not such costs are paid or incurred, or to be paid or incurred, prior to or after the entry of judgment.

 

17.                                  Demand, presentment, protest and notice of nonpayment and dishonor of this Note are hereby waived.

 

18.                                  This Note shall be governed by and construed in accordance with the laws of the State of Minnesota.

 

19.                                  The Borrower hereby irrevocably submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to this Note, the MLA and any instrument, agreement or document related hereto or thereto, and the Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such Minnesota state or federal court. The Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.   Nothing in this Note shall affect the right of the Lender to bring any action or proceeding against the Borrower or its property in the courts of any other jurisdiction to the extent permitted by law.

 

20.                                  Effective on the Closing Date, the Third Supplement, the Term Note, the Fourth Supplement and the Term Revolving Note shall supercede and replace in their entirety the Amended and Restated First Supplement and the Amended and Restated Construction Note which shall thereafter be of no force or effect.

 

 

HERON LAKE BIOENERGY, LLC, a

 

Minnesota limited liability company

 

 

 

 

 

     /s/ Robert J. Ferguson

 

By:  Robert J. Ferguson

 

Its:  President

 

4


EXHIBIT 10.5

 

TERM REVOLVING NOTE

 

$5,000,000.00

 

October 1, 2007

 

1.             FOR VALUE RECEIVED, HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “ Borrower ”), hereby promises to pay to the order of AGSTAR FINANCIAL SERVICES, PCA,  a United States corporation (the “ Lender ”), the principal sum of Five Million and No/100ths ($5,000,000.00) Dollars, or so much thereof as may be advanced to, or for the benefit of, the Borrower and be outstanding, with interest thereon, to be computed on each advance from the date of its disbursement as set forth herein pursuant to that certain Fourth Amended and Restated Master Loan Agreement of even date herewith, by and between the Lender and the Borrower (as it may be amended, modified, supplemented, extended or restated from time to time, the “MLA” ), and pursuant to that certain Fourth Supplement to the MLA, dated as of even date herewith, by and between the Lender and the Borrower (as it may be amended, modified, supplemented, extended or restated from time to time, the “Fourth Supplement” ), and which remains unpaid, in lawful money of the United States and immediately available funds.  This Term Revolving Note (the “ Note ”) is issued pursuant to the terms and provisions of the MLA and the Fourth Supplement and is entitled to all of the benefits provided for in the MLA and the Fourth Supplement. All capitalized terms used and not defined herein shall have the meanings assigned to them in the MLA and the Fourth Supplement.

 

2.             The outstanding principal balance of this Note shall bear interest at a variable rate determined by Lender to be three and one-quarter percent (3.25%) above the LIBOR Rate in effect on the date of the first Advance pursuant to this Note.  Notwithstanding the foregoing, the rate of interest under this Note may be adjusted by Lender pursuant to the provisions the MLA, the Fourth Supplement and this Note.

 

3.             The “LIBOR Rate” means the rate (rounded upward to the nearest sixteenth and adjusted for reserves required on Eurocurrency Liabilities (as hereinafter defined) for banks subject to FRB Regulation D (as hereinafter defined) or required by any other federal law or regulation, quoted by the British Bankers Association (the “BBA”) at 11:00 a.m. London time two Banking Days (as hereinafter defined) before the commencement of the Interest Period for the offering of U.S. Dollar deposits in the London interbank market for an Interest Period of one month, as published by Bloomberg or another major information vendor listed on BBA’s official website.  “ Banking Day ” shall mean a day on which Lender is open for business, dealings in U.S. dollar deposits are being carried out in the London interbank market, and banks are open for business in New York City and London, England.  “ Eurocurrency Liabilities ” has the meaning as set forth in FRB Regulation D.  “ FRB Regulation D ” means Regulation D as promulgated by the Board of Governors of the Federal Reserve System, 12 CFR Part 204, as amended from time to time

 

4.             The rate of interest due hereunder shall initially be determined as of the effective date of this Note and shall thereafter be adjusted, as and when, the LIBOR Rate changes. All such adjustments to the rate of interest shall be made and become effective as of the first day of the month following the date of any change in the LIBOR Rate and shall remain in effect until and including the day immediately preceding the next such adjustment (each such day hereinafter being referred to as an “ Adjustment Date ”).  All such adjustments to said rate shall be made and become effective as of the Adjustment Date, and said rate as adjusted shall remain in effect until and including the day

 



 

immediately preceding the next Adjustment Date.  Interest hereunder shall be computed on the basis of a year of three hundred sixty-five or three hundred sixty-six (365 or 366) days, but charged for actual days principal is outstanding.

 

5.             Beginning on the first (1 st ) day of the first calendar month following the month in which funds have been advanced to Borrower hereunder, and continuing on the first (1 st ) day of each succeeding month thereafter until the Term Revolving Loan Maturity Date, the Borrower shall make monthly payments of accrued interest.

 

6.             Repayment of principal on the Term Revolving Loan shall be governed by Section 3 of the Fourth Supplement.  The outstanding principal balance hereof, together with all accrued interest, if not paid sooner, shall be due and payable in full on October 1, 2012 (the “ Term Revolving Loan Maturity Date ”).

 

7.             All payments and prepayments shall, at the option of the Lender, be applied first to any costs of collection, second to any late charges, third to accrued interest and the remainder thereof to principal.

 

8.             This Note may be prepaid at any time, at the option of the Borrower, either in whole or in part, subject to the obligation of the Borrower to compensate the Lender for any loss, cost or expense as a result of such prepayment as set forth in the MLA and the Fourth Supplement.  This Note is subject to mandatory prepayment, at the option of the Lender, as provided in the MLA and the Fourth Supplement.

 

9.             In addition to the rights and remedies set forth in the MLA and the Fourth Supplement:  (i) if the Borrower fails to make any payment to Lender when due under this Note, then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment under this Note; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances under this Note shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect under the terms of this Note; (iii) after the Revolving Loan Maturity Date, whether by reason of acceleration or otherwise, the unpaid principal balance of this Note (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect under this Note.  Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.

 

10.           If the Borrower fails to make any payment to Lender within ten (10) days of the due date thereof, the Borrower shall pay, in addition to such amount, a late charge equal to five percent (5%) of the amount of such payment.

 

11.           This Note is secured by, among other instruments, that certain Third Amended and Restated Mortgage dated May 18, 2007 (the “Mortgage”) covering various parcels of real property, fixtures, and personal property located in Jackson County, Minnesota, and that certain Security Agreement dated September 29, 2005.  In the event any such security is found to be invalid for whatever reason, such invalidity shall constitute an event of default hereunder.  All of the

 

2



 

agreements, conditions, covenants, provisions, and stipulations contained in the Mortgage, or any instrument securing this Note are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein. It is agreed that time is of the essence of this Note.

 

12.           Upon the occurrence at any time of an Event of Default or at any time thereafter, the outstanding principal balance hereof plus accrued interest hereon plus all other amounts due hereunder shall, at the option of the Lender, be immediately due and payable, without notice or demand and Lender shall be entitled to exercise all remedies provided in this Note, the MLA, the Fourth Supplement, or any of the Loan Documents.

 

13.           Upon, the occurrence at any time of an Event of Default or at any time thereafter, the Lender shall have the right to set off any and all amounts due hereunder by the Borrower to the Lender against any indebtedness or obligation of the Lender to the Borrower.

 

14.           The Borrower promises to pay all reasonable costs of collection of this Note, including, but not limited to, reasonable attorneys’ fees paid or incurred by the Lender on account of such collection, whether or not suit is filed with respect thereto and whether or not such costs are paid or incurred, or to be paid or incurred, prior to or after the entry of judgment.

 

15.           Demand, presentment, protest and notice of nonpayment and dishonor of this Note are hereby waived.

 

16.           This Note shall be governed by and construed in accordance with the laws of the State of Minnesota.

 

17.           The Borrower hereby irrevocably submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to this Note, the MLA and any instrument, agreement or document related hereto or thereto, and the Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such Minnesota state or federal court. The Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.   Nothing in this Note shall affect the right of the Lender to bring any action or proceeding against the Borrower or its property in the courts of any other jurisdiction to the extent permitted by law.

 

18.           Except as set forth in Section 2 of the Fourth Supplement, effective on the Closing Date, this Fourth Supplement, the Term Revolving Note, the Third Supplement, and the Term Note shall supersede and replace in their entirety the First Supplement and Construction Note which shall thereafter be of no force or effect.

 

 

 

HERON LAKE BIOENERGY, LLC , a
Minnesota limited liability company

 

 

 

 

 

 

 

 

       /s/ Robert J. Ferguson

 

 

By: Robert J. Ferguson

 

 

  Its: President

 

3


EXHIBIT 10.6

 

PERSONAL GUARANTY

 

In consideration of and in order to induce AGSTAR FINANCIAL SERVICES, PCA, a United States instrumentality, with its main banking house located in Mankato, Minnesota (the “Lender”), to extend financial accommodations to HERON LAKE BIOENERGY, LLC , a Minnesota limited liability company (the “Borrower”), pursuant to that certain Fourth Amended and Restated Master Loan Agreement of even date herewith (the “Master Loan Agreement”), the Fourth Amended and Restated Second Supplement to the Master Loan Agreement dated May 18, 2007, the Third Supplement to the Master Loan Agreement of even date herewith, and the Fourth Supplement to the Master Loan Agreement of even date herewith, by and between the Lender and the Borrower (collectively with the Master Loan Agreement, the “Credit Agreement”), the undersigned (the “Guarantor”), hereby:

 

1. Unconditionally and absolutely guarantees to the Lender:

 

a.                                        the full and prompt payment, when due, whether at the maturity date specified therein or theretofore upon acceleration of maturity pursuant to the provisions thereof, of principal and accrued interest, and prepayment premium, if any, on that certain Term Note of even date herewith, executed and delivered by the Borrower to the Lender, in the original principal amount of $59,583,000.00 (the “Note”); and

 

b.                                       the payment and performance by the Borrower of all of its respective obligations under and pursuant to the Note, the Credit Agreement, and any and all documents related thereto (the Note, the Credit Agreement, and such other liability, indebtedness and obligations are herein collectively referred to as the “Obligations”) together with the full and prompt payment of any and all costs and expenses of and incidental to the collection of the Obligations for the enforcement of this Guaranty, including, without limitation, attorneys’ fees.

 

Notwithstanding any other provision of this Guaranty, Guarantor will be liable for not more than $3,740,000.00 of the unpaid principal balance of the Note, together with interest, late charges, collection costs, attorneys’ fees and the like as provided for in the Credit Agreement and the Note.

 

2.             Agrees that the Lender may demand payment from the Guarantor of any installment (or portion thereof) of principal or interest on the Note, when due, and the Guarantor shall immediately pay the same to the Lender, and the Lender may demand payment or performance of any or all of the other Obligations, when such payment or performance is due or required and the Guarantor shall immediately pay or perform the same, whether or not the Lender has (1) accelerated payment of the Obligations; or (2) commenced repossession of, or foreclosure of any security interest, mortgage or other lien in, any or all of the collateral securing the Obligations; or (3) otherwise exercised its rights and remedies hereunder or under the Obligations, the documents related thereto or applicable law.

 

3.             Waives (a) presentment, demand, notice of nonpayment, protest, and notice of protest and dishonor on the Obligations; (b) notice of acceptance of this Guaranty by the Lender; and (c) notice of the creation or incurrence of the Obligations by the Borrower.

 

4.             Agrees that the Lender may, from time to time, without notice to the Guarantor, which notice is hereby waived by the Guarantor, extend, modify, renew or compromise the Obligations, in

 



 

whole or in part, without releasing, extinguishing or affecting in any manner whatsoever the liability of Guarantor hereunder, the foregoing acts being hereby consented to by the Guarantor.

 

5.             Agrees that the Lender shall not be required to first resort for payment to the Borrower or any other person, corporation or entity, or their properties or estate, or any other right or remedy whatsoever, prior to enforcing this Guaranty.

 

6.             Agrees that this Guaranty shall be construed as a continuing, absolute, and unconditional guaranty without regard to (a) the validity, regularity or enforceability or the Obligations or the disaffirmance thereof in any insolvency or bankruptcy proceeding relating to the Borrower; or (b) any event or any conduct or action of the Borrower or the Lender or any other party which might otherwise constitute a legal or equitable discharge of a surety or guarantor but for this provision.

 

7.             Agrees that this Guaranty shall remain in full force and effect and be binding upon the Guarantor until the earlier of (a) the date on which the Obligations are paid in full or (b) the date on which (i) an air quality emissions permit for the Borrower is issued to the Borrower and is not subject to challenge or appeal; (ii) the litigation pending as of the date of this Guaranty initiated by the Minnesota Center for Environmental Advocacy, the Izaak Walton League of America, and Minnesotans for an Energy-Efficient Economy challenging the issuance of the air quality emissions permit for the Borrower, is resolved by the entry of a final, nonappelable order or judgment by any court or agency with jurisdiction over such litigation in favor of the Borrower; and (iii) the Project has met all the performance criteria as stipulated in (a) that certain Standard Form of Agreement Between Owner and Design-Builder – Lump Sum dated September 28, 2005, by and between the Borrower and Fagen, Inc. and (b) that certain License Agreement dated September 28, 2005, by and between the Borrower and ICM, Inc..

 

8.             Agrees that the Lender is expressly authorized to forward or deliver any or all collateral and security which may, at any time, be placed with it by the Borrower, the Guarantor or any other person, directly to the Borrower for collection and remittance or for credit, or to collect the same in any other manner and to renew, extend, compromise, exchange, release, surrender or modify the installments of, any or all of such collateral and security with or without consideration and without notice to the Guarantor and without in any manner affecting the absolute liability of the Guarantor hereunder; and that the liability of the Guarantor hereunder shall not be affected or impaired by any failure, neglect or omission on the part of the Lender to realize upon the Obligations, or upon any collateral or security therefore, nor by the taking by the Lender of any other guaranty or guaranties to secure the Obligations or any other indebtedness of the Borrower to the Lender, nor by the taking by the Lender of collateral or security of any kind nor by any act or failure to act whatsoever which, but for this provision, might or could in law or in equity act to release or reduce the Guarantor’s liability hereunder.

 

9.             Agrees that notwithstanding any payment or payments made by the Guarantor hereunder or any setoff or application of funds of the Guarantor by the Lender, the Guarantor shall not be entitled to be subrogated to any of the rights of the Lender against the Borrower or any other guarantor or any collateral security or guaranty or right of offset held by the Lender for the payment of the Obligations, nor shall the Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or any other guarantor in respect of payments made by the Guarantor hereunder, until all amounts owing to the Lender by the Borrower and on account of the Obligations are paid in full.  Notwithstanding any of the foregoing, to the extent (a) any right of subrogation which the Guarantor may have pursuant to this Guaranty or otherwise, or (b) any right of reimbursement or contribution or similar right against the Borrower, any property of the Borrower or any other guarantor of any of the Obligations would result in

 

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the Guarantor being “creditors” of or the holders of a “claim” against the Borrower within the meaning of Title 11 of the United States Bankruptcy Code as now in effect or hereafter amended, or any comparable provision of any successor statute, the Guarantor hereby irrevocably waives such right of subrogation, reimbursement or contribution.

 

10.           Agrees that the liability of the Guarantor hereunder shall not be affected or impaired by the existence or creation from time to time, with or without notice to the Guarantor, which notice is hereby waived, of indebtedness from the Borrower to the lender in addition to the indebtedness evidenced by the Note; the creation or existence of such additional indebtedness being hereby consented to by the Guarantor.

 

11.           Agrees that the possession of this instrument of guaranty by the Lender shall be conclusive evidence of due execution and delivery hereof by the Guarantor.

 

12.           Agrees that this Guaranty shall be binding upon the legal representative, successors and assigns of the Guarantor, and shall inure to the benefit of the Lender and its successors, assigns and legal representative; that notwithstanding the foregoing, the Guarantor shall have no right to assign or otherwise transfer their rights and obligations under this Guaranty to any third party without the prior written consent of the Lender; and that any such assignment or transfer shall not release or affect the liability of the Guarantor hereunder in any manner whatsoever.

 

13.           Agrees that the Guarantor may be joined in any action or proceeding commenced against the Borrower in connection with or based upon the Obligations and recovery may be had against the Guarantor in any such action or proceeding or in any independent action or proceeding against the Guarantor should the Borrower fail to duly and punctually pay any or the principal of or interest on the Obligations without any requirement that the Lender first assert, prosecute or exhaust any remedy or claim against the Borrower.

 

14.           Agrees that upon the occurrence at any time of an Event of Default (as defined in the Credit Agreement), the Lender shall have the right to set off any and all amounts due hereunder by the Guarantor to the Lender against any indebtedness or obligation of the Lender to the Guarantor.

 

15.           Agrees that the Guarantor shall be liable to the Lender for any deficiency remaining after foreclosure of any mortgage on real estate or any security interest in personal property granted by the Borrower, the Guarantor or any third party to the Lender to secure repayment of the Obligations and the subsequent sale by the Lender of the property subject thereto to a third party (whether at a foreclosure sale or at a sale thereafter by the Lender in the event the Lender purchases said property at the foreclosure sale) notwithstanding any provision of applicable law which may prevent the Lender from obtaining a deficiency judgment against, or otherwise collecting a deficiency from, the Borrower, including without limitation, Minnesota Statutes Section 580.23.

 

16.           Agrees that this Guaranty shall be deemed a contract made under and pursuant to the laws of the State of Minnesota and shall be governed by and construed under the laws of such state; and that, wherever possible, each provision of this Guaranty shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provisions of this Guaranty shall be prohibited by or invalid under 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 the Guaranty.

 

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17.           Agrees that no failure on the part of the Lender to exercise, and no delay in exercising, any right or remedy hereunder shall operate as or constitute a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted hereby or by any related document or by law.

 

18.                                  Agrees to deliver to the Lender, as soon as possible, but in no event later than ninety (90) days after the end of the Guarantor’s fiscal year, a signed personal financial statement in a form acceptable to Lender and dated as of December 31 of the immediately preceding year, which financial statement presents the financial condition (including all guaranty and other contingent obligations) of the Guarantor, together with the Guarantor’s federal and state income tax returns and schedules.  In addition, Guarantor agrees with reasonable promptness, to provide to Lender such further information regarding the business, operations, affairs and financial and other condition of the Guarantor as the Lender may reasonably request.

 

19.                                  Waives any and all claims against the Lender and defenses to performance and payment hereunder relating in any way, directly or indirectly, to the performance of the Lender’s obligations or exercise of any of its rights under the Note and the documents related thereto.

 

20.                                  Warrants and represents to the Lender as follows:

 

a.                                        Enforceability .  This Guaranty constitutes the legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms (subject, as to enforceability, to limitations resulting from bankruptcy, insolvency or other similar laws affecting creditors’ rights generally).

 

b.                                       Litigation .  There is no action, suit or proceeding pending or, to the knowledge of the Guarantor, threatened against or affecting the Guarantor which, if adversely determined, would have a material adverse effect on the condition (financial or otherwise), property or assets of the Guarantor, or which would question the validity of this Guaranty or any instrument, document or other agreement related hereto or required hereby, or impair the ability of the Guarantor to perform their obligations hereunder or thereunder.

 

c.                                        Default .  Guarantor is not in default of a material provision under any material agreement, instrument, decree or order to which they are parties or by which they or their property is bound or affected.

 

d.                                       Consents .  No consent, approval, order or authorization , registration, declaration or filing with, or notice to, any governmental authority or any third party is required in connection with the execution and delivery of this Guaranty or any of the agreements or instruments herein mentioned to which Guarantor is a party or the carrying out or performance of any of the transactions required or contemplated hereby or thereby or, if required, such consent, approval, order or authorization has been obtained or such registration, declaration or filing has been accomplished or such notice has been given prior to the date hereof.

 

e.                                        Taxes .  Guarantor has filed all tax returns required to be filed and have paid all taxes shown thereon to be due, including interest and penalties, which are not being contested

 

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in good faith and by appropriate proceedings and none of them has any information or knowledge of any objections to or claims for additional taxes in respect of federal income or excess profits tax returns for prior years.

 

21.                                  Agrees that (a) the Guarantor will indirectly benefit by and from the making of the loan by the Lender to the Borrower evidenced by the Note; (b) the Guarantor has received legal and adequate consideration for the execution of this Guaranty and has executed and delivered this Guaranty to the Lender in good faith in exchange for reasonably equivalent value; (c) the Guarantor is not presently insolvent and will not be rendered insolvent by virtue of the execution and delivery of this Guaranty; (d) the Guarantor has not executed or delivered this Guaranty with actual intent to hinder, delay or defraud the Guarantor’s creditors; and (e) the Lender has agreed to make such loan in reliance upon this Guaranty.

 

22.                                  Agrees that if, at any time, all or any part of any payment previously applied by the Lender to any of the Obligations must be returned by the Lender for any reason, whether by court order, administrative order or settlement, the Guarantor shall remain liable for the full amount returned as if said amount had never been received by the Lender, notwithstanding any term of this Guaranty or the cancellation or return of any note or other agreement evidencing the Obligations.

 

23.                                  Agrees that (a) the Guarantor irrevocably submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to the Note, the Credit Agreement, and any instrument, agreement or document related thereto; (b) all claims in respect of such action or proceeding may be heard and determined in such Minnesota state or federal court; (c) the Guarantor irrevocably waives, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding; (d) the Guarantor irrevocably consent to the service of copies of the Summons and Complaint and any other process which may be served in any such action or proceeding by the mailing by United States certified mail, return receipt requested, of copies of such process to the Guarantor’s last known addresses; (e)  judgment final by appeal, or expiration of time to appeal without an appeal being taken, in any such action or proceeding shall be conclusive and may be enforced in any other jurisdictions by suit on the judgment or in any other manner provided by law; and (f) nothing in this Paragraph shall affect the right of the Lender to serve legal process in any other manner permitted by law or affect the right of Lender to bring any action or proceeding against the Guarantor or their property in the courts of any other jurisdiction to the extent permitted by law.

 

Dated this 1 st day of October, 2007.

 

 

 

 

 

 

 

 /s/ Roland Fagen

 

 

Roland Fagen

 

5


EXHIBIT 10.7

 

FOURTH AMENDED AND RESTATED GUARANTY

 

In consideration of and in order to induce AGSTAR FINANCIAL SERVICES, PCA, a United States instrumentality, with its main banking house located in Mankato, Minnesota (the “Lender”), to extend financial accommodations to HERON LAKE BIOENERGY, LLC , a Minnesota limited liability company (the “ Borrower ”), pursuant to that certain Fourth Amended and Restated Master Loan Agreement of even date herewith (the “ Master Loan Agreement ”), the Fourth Amended and Restated Second Supplement to the Master Loan Agreement dated May 18, 2007, the Third Supplement to the Master Loan Agreement of even date herewith, and the Fourth Supplement to the Master Loan Agreement of even date herewith, by and between the Lender and the Borrower (collectively with the Master Loan Agreement, the “ Credit Agreement ”), the undersigned (the “ Guarantor ”), hereby:

 

1. Unconditionally and absolutely guarantees to the Lender:

 

a.                                        the full and prompt payment, when due, whether at the maturity date specified therein or theretofore upon acceleration of maturity pursuant to the provisions thereof, of the outstanding principal and accrued interest, and prepayment premium, if any, on that certain Term Note of even date herewith, executed and delivered by the Borrower to the Lender, in the original principal amount of $59,583,000.00; on that certain Term Revolving Note of even date herewith, executed and delivered by the Borrower to the Lender, in the original principal amount of $5,000,000.00; and on that certain Second Amended and Restated Revolving Note dated May 18, 2007, executed and delivered by the Borrower to the Lender, in the original principal amount of $7,500,000.00; (the “ Notes ”); and

 

b.                                       the payment and performance by the Borrower of all of its respective obligations under and pursuant to the Notes, the Credit Agreement, the Supplements and any and all documents related thereto (the Notes, the Credit Agreement, the Supplements and such other liability, indebtedness and obligations are herein collectively referred to as the “ Obligations ”) together with the full and prompt payment of any and all costs and expenses of and incidental to the collection of the Obligations for the enforcement of this Guaranty, including, without limitation, attorneys’ fees.

 

Capitalized terms used and not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Credit Agreement.

 

Agrees that the Lender may demand payment from the Guarantor of any installment (or portion thereof) of principal or interest on the Notes, when due, and the Guarantor shall immediately pay the same to the Lender, and the Lender may demand payment or performance of any or all of the other Obligations, when such payment or performance is due or required and the Guarantor shall immediately pay or perform the same, whether or not the Lender has (1) accelerated payment of the Obligations; or (2) commenced repossession of, or foreclosure of any security interest, mortgage or

 

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other lien in, any or all of the collateral securing the Obligations; or (4) otherwise exercised its rights and remedies hereunder or under the Obligations, the documents related thereto or applicable law.

 

3.                                        Waives (a) presentment, demand, notice of nonpayment, protest, and notice of protest and dishonor on the Obligations; (b) notice of acceptance of this Guaranty by the Lender; and (c) notice of the creation or incurrence of the Obligations by the Borrower.

 

4.                                        Agrees that the Lender may, from time to time, without notice to the Guarantor, which notice is hereby waived by the Guarantor, extend, modify, renew or compromise the Obligations, in whole or in part, without releasing, extinguishing or affecting in any manner whatsoever the liability of Guarantor hereunder, the foregoing acts being hereby consented to by the Guarantor.

 

5.                                        Agrees that the Lender shall not be required to first resort for payment to the Borrower or any other person, corporation or entity, or their properties or estate, or any other right or remedy whatsoever, prior to enforcing this Guaranty.

 

6.                                        Agrees that this Guaranty shall be construed as a continuing, absolute, and unconditional guaranty without regard to (a) the validity, regularity or enforceability of the Obligations or the disaffirmance thereof in any insolvency or bankruptcy proceeding relating to the Borrower; or (b) any event or any conduct or action of the Borrower or the Lender or any other party which might otherwise constitute a legal or equitable discharge of a surety or guarantor but for this provision.

 

7.                                        Agrees that this Guaranty shall remain in full force and effect and be binding upon the Guarantor until the Obligations are paid in full.

 

8.                                        Agrees that the Lender is expressly authorized to forward or deliver any or all collateral and security which may, at any time, be placed with it by the Borrower, the Guarantor or any other person, directly to the Borrower for collection and remittance or for credit, or to collect the same in any other manner and to renew, extend, compromise, exchange, release, surrender or modify the installments of, any or all of such collateral and security with or without consideration and without notice to the Guarantor and without in any manner affecting the absolute liability of the Guarantor hereunder; and that the liability of the Guarantor hereunder shall not be affected or impaired by any failure, neglect or omission on the part of the Lender to realize upon the Obligations, or upon any collateral or security therefore, nor by the taking by the Lender of any other guaranty or guaranties to secure the Obligations or any other indebtedness of the Borrower to the Lender, nor by the taking by the Lender of collateral or security of any kind nor by any act or failure to act whatsoever which, but for this provision, might or could in law or in equity act to release or reduce the Guarantor’s liability hereunder.

 

9.                                        Agrees that notwithstanding any payment or payments made by the Guarantor hereunder or any setoff or application of funds of the Guarantor by the Lender, the Guarantor shall

 

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not be entitled to be subrogated to any of the rights of the Lender against the Borrower or any other guarantor or any collateral security or guaranty or right of offset held by the Lender for the payment of the Obligations, nor shall the Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or any other guarantor in respect of payments made by the Guarantor hereunder, until all amounts owing to the Lender by the Borrower and on account of the Obligations are paid in full.  Notwithstanding any of the foregoing, to the extent (a) any right of subrogation which the Guarantor may have pursuant to this Guaranty or otherwise, or (b) any right of reimbursement or contribution or similar right against the Borrower, any property of the Borrower or any other guarantor of any of the Obligations would result in the Guarantor being “creditors” of or the holders of a “claim” against the Borrower within the meaning of Title 11 of the United States Bankruptcy Code as now in effect or hereafter amended, or any comparable provision of any successor statute, the Guarantor hereby irrevocably waives such right of subrogation, reimbursement or contribution.

 

10.                                  Agrees that the liability of the Guarantor hereunder shall not be affected or impaired by the existence or creation from time to time, with or without notice to the Guarantor, which notice is hereby waived, of indebtedness from the Borrower to the lender in addition to the indebtedness evidenced by the Notes; the creation or existence of such additional indebtedness being hereby consented to by the Guarantor.

 

11.                                  Agrees that the possession of this instrument of guaranty by the Lender shall be conclusive evidence of due execution and delivery hereof by the Guarantor.

 

12.                                  Agrees that this Guaranty shall be binding upon the legal representative, successors and assigns of the Guarantor, and shall inure to the benefit of the Lender and its successors, assigns and legal representative; that notwithstanding the foregoing, the Guarantor shall have no right to assign or otherwise transfer their rights and obligations under this Guaranty to any third party without the prior written consent of the Lender; and that any such assignment or transfer shall not release or affect the liability of the Guarantor hereunder in any manner whatsoever.

 

13.                                  Agrees that the Guarantor may be joined in any action or proceeding commenced against the Borrower in connection with or based upon the Obligations and recovery may be had against the Guarantor in any such action or proceeding or in any independent action or proceeding against the Guarantor should the Borrower fail to duly and punctually pay any of the principal of or interest on the Obligations without any requirement that the Lender first assert, prosecute or exhaust any remedy or claim against the Borrower.

 

14.                                  Agrees that upon the occurrence at any time of an Event of Default (as defined in the Credit Agreement), the Lender shall have the right to set off any and all amounts due hereunder by the Guarantor to the Lender against any indebtedness or obligation of the Lender to the Guarantor.

 

15.                                  Agrees that the Guarantor shall be liable to the Lender for any deficiency remaining after foreclosure of any mortgage on real estate or any security interest in personal property granted

 

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by the Borrower, the Guarantor or any third party to the Lender to secure repayment of the Obligations and the subsequent sale by the Lender of the property subject thereto to a third party (whether at a foreclosure sale or at a sale thereafter by the Lender in the event the Lender purchases said property at the foreclosure sale) notwithstanding any provision of applicable law which may prevent the Lender from obtaining a deficiency judgment against, or otherwise collecting a deficiency from, the Borrower, including without limitation, Minnesota Statutes Section 580.23.

 

16.                                  Agrees that this Guaranty shall be deemed a contract made under and pursuant to the laws of the State of Minnesota and shall be governed by and construed under the laws of such state; and that, wherever possible, each provision of this Guaranty shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provisions of this Guaranty shall be prohibited by or invalid under 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 the Guaranty.

 

17.                                  Agrees that no failure on the part of the Lender to exercise, and no delay in exercising, any right or remedy hereunder shall operate as or constitute a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted hereby or by any related document or by law.

 

18.                                  Agrees to deliver to the Lender, as soon as available and in any event within one hundred twenty (120) days after the end of Guarantor’s fiscal year ending December 31, 2006, and for each succeeding fiscal year, a copy of the audited financial statements (including balance sheet, statements of income and cash flows, all accompanying notes thereto and any management letter), for such year for the Guarantor, certified, without qualification, in an opinion acceptable to the Lender by independent certified public accountants of recognized standing selected by the Guarantor and acceptable to the Lender, and the federal and state income tax returns and schedules of the Guarantor, or copies of all extensions for such returns and returns within 30 days of filing.  In addition, Guarantor agrees with reasonable promptness, to provide to Lender such further information regarding the business, operations, affairs and financial and other condition of the Guarantor as the Lender may reasonably request.

 

19.                                  Waives any and all claims against the Lender and defenses to performance and payment hereunder relating in any way, directly or indirectly, to the performance of the Lender’s obligations or exercise of any of its rights under the Notes and the documents related thereto.

 

20.                                  Warrants and represents to the Lender as follows:

 

a.                                        Enforceability .  This Guaranty constitutes the legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms (subject, as to enforceability, to limitations resulting from bankruptcy, insolvency or other similar laws affecting creditors’ rights generally).

 

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b.                                       Litigation .  There is no action, suit or proceeding, other than the Permit Litigation, pending or, to the knowledge of the Guarantor, threatened against or affecting the Guarantor which, if adversely determined, would have a material adverse effect on the condition (financial or otherwise), property or assets of the Guarantor, or which would question the validity of this Guaranty or any instrument, document or other agreement related hereto or required hereby, or impair the ability of the Guarantor to perform their obligations hereunder or thereunder.

 

c.                                        Default .  Guarantor is not in default of a material provision under any material agreement, instrument, decree or order to which they are parties or by which they or their property is bound or affected.

 

d.                                       Consents .  No consent, approval, order or authorization , registration, declaration or filing with, or notice to, any governmental authority or any third party is required in connection with the execution and delivery of this Guaranty or any of the agreements or instruments herein mentioned to which Guarantor is a party or the carrying out or performance of any of the transactions required or contemplated hereby or thereby or, if required, such consent, approval, order or authorization has been obtained or such registration, declaration or filing has been accomplished or such notice has been given prior to the date hereof.

 

e.                                        Taxes .  Guarantor has filed all tax returns required to be filed and have paid all taxes shown thereon to be due, including interest and penalties, which are not being contested in good faith and by appropriate proceedings and none of them has any information or knowledge of any objections to or claims for additional taxes in respect of federal income or excess profits tax returns for prior years.

 

21.                                  Agrees that (a) the Guarantor will indirectly benefit by and from the making of the loan by the Lender to the Borrower evidenced by the Notes by virtue of the fact that the Guarantor is a subsidiary of the Borrower and the Borrower is the sole member of the Guarantor; (b) the Guarantor has received legal and adequate consideration for the execution of this Guaranty and has executed and delivered this Guaranty to the Lender in good faith in exchange for reasonably equivalent value; (c) the Guarantor is not presently insolvent and will not be rendered insolvent by virtue of the execution and delivery of this Guaranty; (d) the Guarantor has not executed or delivered this Guaranty with actual intent to hinder, delay or defraud the Guarantor’s creditors; and (e) the Lender has agreed to make such loan in reliance upon this Guaranty.

 

22.                                  Agrees that if, at any time, all or any part of any payment previously applied by the Lender to any of the Obligations must be returned by the Lender for any reason, whether by court order, administrative order or settlement, the Guarantor shall remain liable for the full amount returned as if said amount had never been received by the Lender, notwithstanding any term of this Guaranty or the cancellation or return of any note or other agreement evidencing the Obligations.

 

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23.                                  Agrees that (a) the Guarantor irrevocably submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to the Notes, the Credit Agreement, and any instrument, agreement or document related thereto; (b) all claims in respect of such action or proceeding may be heard and determined in such Minnesota state or federal court; (c) the Guarantor irrevocably waives, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding; (d) the Guarantor irrevocably consent to the service of copies of the Summons and Complaint and any other process which may be served in any such action or proceeding by the mailing by United States certified mail, return receipt requested, of copies of such process to the Guarantor’s last known addresses; (e)  judgment final by appeal, or expiration of time to appeal without an appeal being taken, in any such action or proceeding shall be conclusive and may be enforced in any other jurisdictions by suit on the judgment or in any other manner provided by law; and (f) nothing in this Paragraph shall affect the right of the Lender to serve legal process in any other manner permitted by law or affect the right of Lender to bring any action or proceeding against the Guarantor or their property in the courts of any other jurisdiction to the extent permitted by law.

 

Dated this 1 st day of October, 2007.

 

 

 

GUARANTOR:

 

 

 

 

 

LAKEFIELD FARMERS ELEVATOR,

 

 

LLC, a Minnesota limited liability company

 

 

 

 

 

 

 

 

      /s/ Robert J. Ferguson

 

 

By: Robert J. Ferguson

 

 

Its:  President

 

6


EXHIBIT 10.8

 

FIFTH SUPPLEMENT

TO THE MASTER LOAN AGREEMENT

(REVOLVING LINE OF CREDIT LOAN)

 

THIS FIFTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT (this “Fifth Supplement” ), dated as of November 19, 2007, is between AGSTAR FINANCIAL SERVICES, PCA (the “Lender” ) and HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “Borrower” ), and supplements that certain Fourth Amended and Restated Master Loan Agreement, dated October 1, 2007, between the Lender and the Borrower (as the same may be amended, modified, supplemented, extended or restated from time to time, the “MLA” ).

 

1.                                       Definitions .   As used in this Fifth Supplement, the following terms shall have the following meanings.  Capitalized terms used and not otherwise defined in this Fifth Supplement shall have the meanings attributed to such terms in the MLA.  Terms not defined in either this Fifth Supplement or the MLA shall have the meanings attributed to such terms in the Uniform Commercial Code, as enacted in the State of Minnesota and as amended from time to time.

 

Availability Date ” shall have the meaning specified in Section 5 of this Fifth Supplement.

 

Borrowing Base ” means, at any time, the lesser of: (a) $7,500,000.00; or (b) commencing sixty days after start-up of operations, the sum of: (i) 75% of Borrower’s Eligible Accounts Receivable; plus (ii) 75% of Borrower’s Eligible Inventory.

 

Borrowing Base Certificate ” means the certificate in the form of Exhibit A attached hereto properly completed and duly executed by an authorized officer of the Borrower.

 

Eligible Accounts Receivable ” means all unpaid Accounts, net of any credits, except the following shall not in any event be deemed Eligible Accounts:

 

(a)  That portion of Accounts unpaid 30 days or more after the invoice date:

 

(b)  That portion of Accounts that is disputed or subject to a claim of offset or a contra account;

 

(c)  That portion of Accounts not yet earned by the final delivery of goods or rendition of services, as applicable, by any Borrower to the customer;

 

(d)  Accounts owed by any unit of government, whether foreign or domestic except Incentive Payments will be considered a part of Eligible Accounts as defined in this Agreement;

 

(e)   Accounts owed by an account debtor located outside the United States;

 

(f)  Accounts owed by an account debtor that is insolvent, the subject of bankruptcy proceedings or has gone out of business;

 

(g)  Accounts owed by a shareholder, Guarantor, Affiliate, officer or employee of any Borrower;

 



 

(h)  Accounts not subject to a duly perfected security interest in the Lender’s favor or which are subject to any lien, security interest or claim in favor of any Person other than the Lender, including, without limitation, any payment or performance bond;

 

(i)   That portion of Accounts that has been restructured, extended, amended or modified;

 

(j)   That portion of Accounts that constituted advertising, finance charges, service charges or sales or excise taxes; and

 

(k)  Accounts, or portions thereof, otherwise deemed ineligible by the Lender, in its sole discretion, exercised reasonably.

 

Eligible Inventory ” means all inventory held for ultimate sale or lease, or which has been or will be supplied under contracts of service, or which are raw materials, work in process, or materials used or consumed in the Borrower’s business and that has been specifically identified and accepted by the Lender, excluding all of the following inventory:

 

(a) Covered by documents of title, instruments, or chattel paper when these documents, instruments and paper are not owned and held by the Borrower or are subject to competing claims, liens or encumbrances.

 

(b)   Intended to be sold outside of the ordinary course of business.

 

(c)  Consigned, sold or leased to others or on consignment or lease from others or subject to a bailment.

 

(d)  Subject to a competing claim, lien or encumbrance.

 

(e) Paid for in advance with progress payments or any other sums to the  Borrower in anticipation of the sale and delivery of inventory.

 

(f)  Obsolete or unusable in the ordinary course of business.

 

(g)  Inventory of work in progress.

 

(h) Inventory that the Lender, in its sole discretion, disqualifies as Eligible Inventory, exercised reasonably.

 

Incentive Payments ” means any and all federal or state governmental subsidies, payments, transfers or other benefits, whether now or hereafter established, received by the Borrower in any fiscal year aged less than 120 days.

 

Letters of Credit ” shall have the meaning specified in Section 7 of this Fifth Supplement.

 

Maximum Rate ” shall have the meaning specified in Section 8 of this Fifth Supplement.

 

Monthly Payment Date ” means the first (1 st ) day of each calendar month.

 

Outstanding Credit ” means, at any time of determination, the aggregate amount of Advances then outstanding under this Fifth Supplement and the Revolving Line of Credit Note.

 

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Outstanding Revolving Advance ” means the total Outstanding Credit under this Fifth Supplement and the Revolving Line of Credit Note.

 

Revolving Advance ” means an advance under this Fifth Supplement and the Revolving Line of Credit Note.

 

Revolving Line of Credit Loan ” shall have the meaning specified in Section 2 of this Fifth Supplement.

 

Revolving Line of Credit Loan Commitment ” shall have the meaning specified in Section 2 of this Fifth Supplement.

 

Revolving Line of Credit Loan Maturity Date ” shall have the meaning specified in Section 2 of this Fifth Supplement.

 

Revolving Line of Credit Loan Termination Date ” shall have the meaning specified in Section 2 of this Fifth Supplement.

 

Unused Commitment Fee ” shall have the meaning specified in Section 6(d) of this Fifth Supplement.

 

2.                                       Revolving Line of Credit Loan Commitment .  On the terms and conditions set forth in the MLA and this Fifth Supplement, Lender agrees to make one or more advances (collectively, the “ Revolving Line of Credit Loan ”) to the Borrower, during the period beginning on the Availability Date (as defined in Section 5 of this Fifth Supplement) and ending on the Business Day immediately preceding the Revolving Line of Credit Loan Maturity Date (as hereinafter defined in this Section 2) (the “ Revolving Line of Credit Loan Termination Date ”), in an aggregate principal amount outstanding at any one time not to exceed $7,500,000.00 (the “ Revolving Line of Credit Loan Commitment ”) provided, however, that at no time shall the Outstanding Revolving Advance exceed the Borrowing Base.  The Revolving Line of Credit Loan Commitment shall expire at 12:00 noon Central time on November 16, 2008 (the “ Revolving Line of Credit Loan Maturity Date ”).  Subject to Section 7 of this Fifth Supplement, under the Revolving Line of Credit Loan Commitment amounts borrowed and repaid or prepaid may be reborrowed at any time prior to and including the Revolving Line of Credit Loan Termination Date.

 

3.                                       Purpose .   The purposes for which advances under the Loan may be used are for general corporate and operating purposes of the Borrower and its subsidiaries, including closing costs and fees associated with the Revolving Line of Credit Loan.  The Borrower agrees that the proceeds of the Loan are to be used only for the purposes set forth in this Section 3.

 

4.                                       Repayment of the Revolving Line of Credit Loan .   The Borrower will pay interest on the Revolving Line of Credit Loan on the first day of each month, commencing on the first Monthly Payment Date following the date on which the first Advance is made on the Revolving Line of Credit Loan, and continuing on each Monthly Payment Date thereafter until the Revolving Line of Credit Loan Maturity Date.  On the Revolving Line of Credit Loan Maturity Date, the amount of the then unpaid principal balance of the Revolving Line of Credit Loan and any and all other amounts due and owing hereunder or under any other Loan Document relating to the Revolving Line of Credit Loan will be due and payable.  If any Payment Date is not a Business Day, then the principal installment then due shall be paid on the next Business Day and shall continue to accrue interest until paid.

 

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5.                                       Availability . Subject to the provisions of the MLA and this Fifth Supplement, during the period commencing on the date on which all conditions precedent to the initial advance under the Revolving Line of Credit Loan are satisfied (the “ Availability Date” ) and ending on the Revolving Line of Credit Loan Termination Date, advances under the Revolving Line of Credit Loan will be made as provided in this Fifth Supplement.

 

6.                                       Making the Advances .

 

(a)                                   Revolving Advances .  Each Revolving Advance shall be made, on notice from the Borrower (a “ Request for Advance ”) to the Lender delivered before 12:00 Noon (Minneapolis, Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of such Revolving Advance specifying the amount of such Revolving Advance, provided that, no Revolving Advance shall be made while an Event of Default exists or if the interest rate for such LIBOR Rate Accounts would exceed the Maximum Rate.  Any Request for Advance applicable to a Revolving Advance received after 12:00 Noon (Minneapolis, Minnesota time) shall be deemed to have been received and be effective on the next Business Day.  The amount so requested from the Lender shall, subject to the terms and conditions of this Fifth Supplement, be made available to the Borrower by:  (i) depositing the same, in same day funds, in an account of the Borrower; or (ii) wire transferring such funds to a Person or Persons designated by the Borrower in writing.

 

(b)                                  Requests for Advances Irrevocable .  Each Request for Advance shall be irrevocable and binding on the Borrower and the Borrower shall indemnify the Lender against any loss or expense it may incur as a result of any failure to borrow any Advance after a Request for Advance (including any failure resulting from the failure to fulfill on or before the date specified for such Advance the applicable conditions set forth in Article III of this Fifth Supplement), including, without limitation, any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Lender to fund such Advance when such Advance, as a result of such failure, is not made on such date.

 

(c)                                   Minimum Amounts .  Each Revolving Advance shall be in a minimum amount equal to $10,000.00.

 

(d)                                  Unused Commitment Fee .  Borrower agrees to pay to the Lender an Unused Commitment Fee on the average daily unused portion of the Revolving Line of Credit Loan Commitment from the effective date of this Agreement until the Revolving Line of Credit Loan Maturity Date.  Such Unused Commitment Fee shall be equal to a rate of 0.25% per annum, payable in arrears in quarterly installments on the first (1 st ) day of each third month after the effective date of this Agreement.

 

(e)                                   Draft Loan Program .  At the Borrower’s request and at the Lender’s sole discretion, the Borrower may obtain a Revolving Advance by using draft forms furnished by the Lender to the Borrower, subject to the following terms and conditions:

 

(i)                                      Borrower Authorization and Responsibility.   The Borrower shall be deemed to have authorized and directed the Lender and its duly authorized agents to accept drafts and to disburse Revolving Line of Credit Loan funds by due execution of any draft.  The Borrower shall be responsible for all disbursements made pursuant to this authorization and direction.  The Lender shall not be obligated to inquire as to whether the Borrower has issued specific directions for any particular draft or to determine whether the Borrower has received the benefit of the proceeds of any particular draft before honoring such draft.  The execution of any draft by the Borrower shall constitute a representation and warranty to the Lender that the conditions set forth in Section 6(e) have been met as of the date of all such drafts.

 

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(ii)                                   Minimum Amount .  Each draft shall be in a minimum amount equal to $10,000.00 and shall not be written in excess of the Revolving Line of Credit Loan Commitment provided, however; that at no time shall any draft be written that results in the Outstanding Revolving Advance exceeding the Borrowing Base or the Revolving Line of Credit Loan Commitment, whichever is less.

 

(iii)                                Stop Payment Provisions .  The Borrower may stop payment on a draft by written request to the Lender.  The Lender shall not be liable in the event the draft is honored following a stop-payment order, if such order is not received in sufficient time to permit the dishonor.  The Borrower shall reimburse the Lender for all damages, costs and expenses as a result of the Lender’s refusal to honor a draft due to a stop payment order requested by the Borrower.

 

(iv)                               Fees .  Reasonable fees may be charged the Borrower by Lender for the use of drafts and are subject to change at the Lender’s discretion.  In addition, the Borrower may be charged additional fees for each draft that is not in compliance with the provisions set forth in this Section 6(d) and for any draft for which the Borrower requests a stop-payment order.

 

(v)                                  Limitations .  The Borrower shall not issue any draft as payment on this or other Loan Obligations of the Borrower or for any purpose other than as permitted in the Loan Documents.

 

(vi)                               Revocation of Rights and Rejection of Drafts .  The Lender reserves the right to revoke all future draft privileges without notice to the Borrower in the event the payment of any draft would result in the Outstanding Revolving Advance exceeding the Borrowing Base or the Revolving Line of Credit Loan commitment, whichever is less.  The Lender reserves the right to reject drafts that are not written for purposes specified in or pursuant to the terms and conditions of the Loan Documents.  In the event that Lender chooses to honor a draft which exceeds the limits as set forth in this Section 6(d)(ii), Borrower shall repay all the amounts by which the Outstanding Revolving Advances exceed the Borrowing Base or the Revolving Line of Credit Loan Commitment, whichever is less, plus interest and a reasonable overdraft fee, upon demand by Lender.

 

(vii)                            Notification .  The Borrower agrees to immediately notify the Lender in the event one or more drafts are lost, stolen, destroyed or otherwise misused and to indemnify the Lender and hold the Lender harmless from any loss or claim if any draft is lost, stolen, forged, altered or otherwise misused.

 

(viii)                         Authorization .  This authorization and direction shall be effective until the Lender receives written notice of revocation by the Borrower, provided the privilege of using drafts may be terminated by the Lender at any time in its sole discretion.  Upon such termination, the Borrower shall surrender to the Lender all unused drafts on demand.

 

(f)                                     Conditions Precedent to All Advances .  The Lender’s obligation to make each Advance under the Revolving Line of Credit Note shall be subject to the terms, conditions and covenants set forth in the MLA and this Fifth Supplement, including, without limitation, the following further conditions precedent:

 

(i)                                      Representations and Warranties .  The representations and warranties set forth in the MLA and this Fifth Supplement are true and correct in all material respects as of the date of the request for any Advance to the same extent and with the same effect as if made at and as of the date thereof except as disclosed in writing to the Lender;

 

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(ii)                                   Compliance With Disbursing Agreement .  All of the terms and conditions of the Disbursing Agreement have been satisfied with respect to each such Advance;

 

(iii)                                No Defaults .  The Borrower is not in default under the terms of the MLA, the Related Documents or any other Material Contracts to which the Borrower is a party and which relates to the construction of the Project or the operation of the Borrower’s business; and

 

7.                                       Letters of Credit .

 

(a)                                   Commitment to Issue .  The Borrower may request Revolving Advances by the Lender, and the Lender, subject to the terms and conditions of this Fifth Supplement, may, in its sole discretion, issue letters of credit for any Borrower’s account (such letters of credit, being hereinafter referred to collectively as the “ Letters of Credit ”); provided, however , that:

 

(i)                                      the aggregate amount of outstanding Letter of Credit Liabilities shall not at any time exceed the amount of $500,000.00;

 

(ii)                                   the sum of the outstanding Letters of Credit plus the Outstanding Revolving Advances shall not at any time exceed the Borrowing Base.

 

(b)                                  Letter of Credit Request Procedure .  The Borrower shall give the Lender irrevocable prior notice (effective upon receipt) on or before 3:00 P.M. (Minneapolis, Minnesota time) on the Business Day three Business Days prior to the date of the requested issuance of a Letter of Credit specifying the requested amount, expiry date and issuance date of each Letter of Credit to be issued and the nature of the transactions to be supported thereby.  Any such notice received after 3:00 P.M. (Minneapolis, Minnesota time) on a Business Day shall be deemed to have been received and be effective on the next Business Day.  Each Letter of Credit shall be in the form of Exhibit B to this Fifth Supplement, have an expiration date that occurs on or before the Maturity Date, shall be payable in U.S. dollars, must be satisfactory in form and substance to the Lender, and shall be issued pursuant to such documentation as the Lender may require, including, without limitation, the Lender’s standard form letter of credit request and reimbursement Fifth Supplement; provided that, in the event of any conflict between the terms of such Fifth Supplement and the other Loan Documents, the terms of the other Loan Documents shall control.

 

(c)                                   Letter of Credit Fees .  The Borrower shall pay to the Lender for (i) all fees, costs, and expenses of the Lender arising in connection with any Letter of Credit, including the Lender’s customary fees for amendments, transfers, and drawings on Letters of Credit and (ii) on the date of the issuance of the Letter of Credit, and at the anniversary date of issuance of such Letter of Credit, an issuance fee equal to two and one-half (2.5%) percent, on an annualized basis, of the maximum amount available to be drawn under the Letter of Credit.

 

(d)                                  Funding of Drawings .  Upon receipt from the beneficiary of any Letter of Credit of any demand for payment or other drawing under such Letter of Credit, the Issuer shall promptly notify the Borrower as to the amount to be paid as a result of such demand or drawing and the respective payment date.  Any notice pursuant to the forgoing sentence shall specify the amount to be paid as a result of such demand or drawing and the respective payment date.

 

(e)                                   Reimbursements .  After receipt of the notice delivered pursuant to clause (d) of this section  with respect to a Letter of Credit, the Borrower shall be irrevocably and unconditionally obligated to reimburse the Lender for any amounts paid by the Lender upon any demand for payment or

 

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drawing under the applicable Letter of Credit, without presentment, demand, protest, or other formalities of any kind other than the notice required by clause (d) of this section.  Such  reimbursement shall occur no later than 3:00 P.M. (Minneapolis, Minnesota time) on the date of payment under the applicable Letter of Credit if the notice under clause (d) of this section is received by 2:00 P.M. (Minneapolis, Minnesota time) on such date or by 11:00 A.M. (Minneapolis, Minnesota time) on the next Business Day, if such notice is received after 2:00 P.M. (Minneapolis, Minnesota time).  All payments on the Reimbursement Obligations (including any interest earned thereon) shall be made to the Lender for the account of the Lender in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim.

 

(f)                                     Reimbursement Obligations Absolute The Reimbursement Obligations of the Borrower under this Fifth Supplement shall be absolute, unconditional, and irrevocable, and shall be performed strictly in accordance with the terms of the Loan Documents under all circumstances whatsoever and the Borrower hereby waives any defense to the payment of the Reimbursement Obligations based on any circumstance whatsoever, including, without limitation, in any case, the following circumstances:  (i) any lack of validity or enforceability of any Letter of Credit or any other Loan Document; (ii) any amendment or waiver of or any consent to departure from any Loan Document; (iii) the existence of any claim, set-off, counterclaim, defense, or other rights which any Borrower or any other Person may have at any time against any beneficiary of any Letter of Credit, the Lender or any other Person, whether in connection with any Loan Document or any unrelated transaction; (iv) any statement, draft, or other documentation presented under any Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; (v) payment by the Lender under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or (vi) any other circumstance whatsoever, whether or not similar to any of the foregoing; provided that Reimbursement Obligations with respect to a Letter of Credit may be subject to avoidance by a Borrower if the Borrower proves in a final non-appealable judgment that it was damaged and that such damage arose directly from the Lender’s willful misconduct or gross negligence in determining whether the documentation presented under the Letter of Credit in question complied with the terms thereof.

 

(g)                                  Issuer Responsibility .  Borrower assumes all risks of the acts or omissions of any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit.  Neither the Lender, nor any of its respective officers or directors shall have any responsibility or liability to the Borrower or any other Person for:  (a) the failure of any draft to bear any reference or adequate reference to any Letter of Credit, or the failure of any documents to accompany any draft at negotiation, or the failure of any Person to surrender or to take up any Letter of Credit or to send documents apart from drafts as required by the terms of any Letter of Credit, or the failure of any Person to note the amount of any instrument on any Letter of Credit, each of which requirements, if contained in any Letter of Credit itself, it is agreed may be waived by the Lender; (b) errors, omissions, interruptions, or delays in transmission or delivery of any messages; (c) the validity, sufficiency, or genuineness of any draft or other document, or any endorsement(s) thereon, even if any such draft, document or endorsement should in fact prove to be in any and all respects invalid, insufficient, fraudulent, or forged or any statement therein is untrue or inaccurate in any respect; (d) the payment by the Lender to the beneficiary of any Letter of Credit against presentation of any draft or other document that does not comply with the terms of the Letter of Credit; or (e) any other circumstance whatsoever in making or failing to make any payment under a Letter of Credit.  The Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.

 

8.                                       Interest Rate .  Subject to the provisions of Sections 9 and 11 of this Fifth Supplement, the Revolving Line of Credit Loan shall bear interest at a rate equal to the LIBOR Rate plus 325 basis points.  The computation of interest, amortization, maturity and other terms and conditions of the Revolving Line of Credit Loan shall be as provided in the Revolving Line of Credit Note, provided,

 

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however, in no event shall the applicable rate exceed the maximum nonusurious interest rate, if any, that at any time, or from time to time, may be contracted for, taken, reserved, charged, or received under applicable state or federal laws (the “ Maximum Rate ”).

 

9.                                       Default Interest .  In addition to the rights and remedies set forth in the MLA:  (i) if the Borrower fails to make any payment to Lender when due (including, without limitation, any purchase of equity of Lender when required), then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances of the Revolving Line of Credit Loan shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect on the Revolving Line of Credit Loan under the terms of the Revolving Line of Credit Note; (iii) after the maturity of the Revolving Line of Credit Loan, whether by reason of acceleration or otherwise, the unpaid principal balance of the Revolving Line of Credit Loan (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect on the Revolving Line of Credit Loan under the terms of the Revolving Line of Credit Note.  Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.

 

10.                                Late Charge .  If any payment of principal or interest due under this Fifth Supplement or the Revolving Line of Credit Note is not paid within ten (10) days of the due date thereof, the Borrower shall, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of such payment.

 

11.                                Changes in Law Rendering Certain LIBOR Rate Loans Unlawful .  In the event that any change in any applicable law (including the adoption of any new applicable law) or any change in the interpretation of any applicable law by any judicial, governmental or other regulatory body charged with the interpretation, implementation or administration thereof, should make it (or in the good-faith judgment of the Lender should raise a substantial question as to whether it is) unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then:  (a) the Lender shall promptly notify each of the other parties hereto; and (b) the obligation of the Lender to make LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness.  During the period of any suspension, Lender shall make loans to Borrower that are deemed lawful and that as closely as possible reflect the terms of the MLA.

 

12.                                Payments and Computations .

 

(a)                                   Method of Payment .  Except as otherwise expressly provided herein, all payments of principal, interest, and other amounts to be made by the Borrower under the Loan Documents shall be made to the Lender in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim, not later than 2:00 P.M. (Minneapolis, Minnesota time) on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day).  The Borrower shall, at the time of making each such payment, specify to the Lender the sums payable under the Loan Documents to which such payment is to be applied and in the event that the Borrower fail to so specify or if an Event of Default exists, the Lender  may apply such payment and any proceeds of any Collateral to the Loan Obligations in such order and manner as it may elect in its sole discretion, subject to Section 12(c).

 

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(b)                                  Application of Funds Apply all payments received by it to the Borrower’s obligations to Lender in such order and manner as Lender may elect in its sole discretion; provided that any payments received from any guarantor or from any disposition of any collateral provided by such guarantor shall only be applied against obligations guaranteed by such guarantor.

 

(c)                                   Payments on a Non-Business Day .  Whenever any payment under any Loan Document shall be stated to be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and fees, as the case may be.

 

(d)                                  Proceeds of Collateral .  All proceeds received by the Lender from the sale or other liquidation of the Collateral when an Event of Default exists shall first be applied as payment of the accrued and unpaid fees and expenses of the Lender hereunder and then to all other unpaid or unreimbursed Loan Obligations (including reasonable attorneys’ fees and expenses) owing to the Lender and then any remaining amount of such proceeds shall be applied to the unpaid amounts of Loan Obligations, until all the Loan Obligations have been paid and satisfied in full or cash collateralized.  After all the Loan Obligations (including without limitation, all contingent Loan Obligations) have been paid and satisfied in full, all Commitments terminated and all other obligations of the Lender to the Borrower otherwise satisfied, any proceeds of Collateral shall be delivered to the Person entitled thereto as directed by the Borrower or as otherwise determined by applicable law or applicable court order.

 

(e)                                   Computations .  Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days lapsed over a year of 365 or 366 days, as appropriate.  Interest shall accrue from and include the date of borrowing, but exclude the date of payment.

 

13.                                Maximum Amount Limitation .  Anything in this MLA, this Fifth Supplement, or the other Loan Documents to the contrary notwithstanding, Borrower shall not be required to pay unearned interest on the Revolving Line of Credit Note or any of the Loan Obligations, or ever be required to pay interest on the Revolving Line of Credit Note or any of the Loan Obligations at a rate in excess of the Maximum Rate, if any.  If the effective rate of interest which would otherwise be payable under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged, or received under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents shall be reduced to the Maximum Rate, if any.  If any unearned interest or discount or property that is deemed to constitute interest (including, without limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations to the Lender under the MLA, this Fifth Supplement, the Revolving Line of Credit Note, or any of the other Loan Documents are deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the option of the holder of the Revolving Line of Credit Note, be either refunded to the Borrower, or credited on the principal of the Revolving Line of Credit Note.  It is further agreed that, without limitation of the foregoing and to the extent permitted by applicable law, all calculations of the rate of interest or discount contracted for, charged or received by the Lender under the Revolving Line of Credit Note, or under any of the Loan Documents, that are made for the purpose of determining whether such rate exceeds the Maximum Rate applicable to the Lender, if any, shall be made, to the extent permitted by applicable laws (now or hereafter enacted), by amortizing, prorating and spreading during the period of the full terms of the Advances evidenced by the Revolving Line of Credit Note, and any renewals thereof all interest at any time contracted for, charged or received by Lender in connection therewith.  This section shall control every other provision of all agreements among the parties to the MLA pertaining to the transactions contemplated by or contained in the Loan

 

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Documents, and the terms of this section shall be deemed to be incorporated in every Loan Document and communication related thereto.

 

14.                                Lender Records .  All advances and all payments or prepayments made thereunder on account of principal or interest may be evidenced by the Lender in accordance with its usual practice in an account or accounts evidencing such advances and all payments or prepayments thereunder from time to time and the amounts of principal and interest payable and paid from time to time thereunder; in any legal action or proceeding in respect of the Notes, the entries made in such account or accounts shall be prima facie evidence of the existence and amounts of all advances and all payments or prepayments made thereunder on account of principal or interest.  Lender shall provide monthly statements of such entries to Borrower for the purpose of confirming the accuracy of such entries.

 

15.                                Mandatory Prepayments or Collateralization . The Borrowers shall, within five (5) days following the earlier of the delivery of each Borrowing Base Certificate hereof or the day upon which such Borrowing Base Certificate was due, either (i) prepay the Advances in the amount, if any, by which the Outstanding Credit on the date of prepayment under this Section 15 exceeds the Borrowing Base at such time, together with accrued interest to the date of such prepayment on the amount prepaid, or (ii) pledge and assign to the Lender additional collateral acceptable to the Lender, in the Lender’s sole discretion, and deliver all documentation that the Lender, in its sole discretion, may require in connection with such pledge and assignment and the perfection of a first-priority security interest in such additional collateral, so that the Borrowing Base plus the value assigned by the Lender, in its sole discretion, to such additional collateral equals or exceeds the Outstanding Credit.

 

16.                                Loan Payments .  During the continuance of an Event of Default, the Lender may deduct any obligations due or any other amounts due and payable by the Borrower under the Loan Documents from any accounts maintained with the Lender.

 

17.                                Reporting Requirements In addition to the reporting requirements under Section 5.01(c) in the MLA, the Borrower will furnish to the Lender as soon as available and in any event within 30 days after the end of each month (or at such other times or with such greater frequency as is requested by the Lender), a duly completed Borrowing Base Certificate, setting forth the Borrowing Base as of the last day of such month calculated based upon collateral value criteria and advance rates which do not exceed those set forth in the Borrowing Base Certificate, and including such other information, representation and warranties contemplated therein, certified by the appropriate authorized officer of the Borrower.

 

18.                                Compensation Upon the request of the Lender, the Borrower shall pay to the Lender such amount or amounts as shall be sufficient (in the reasonable opinion of the Lender) to compensate it for any loss, cost, or expense (excluding loss of anticipated profits incurred by it) as a result of: (i) any payment, prepayment, or conversion of a LIBOR rate loan for any reason on a date other than the last day of the Interest Period for such Loan; or (ii) any failure by the Borrower for any reason (including, without limitation, the failure of any condition precedent specified in the MLA or this Fifth Supplement to be satisfied) to borrow, extend, or prepay a LIBOR rate loan on the date for such borrowing, extension, or prepayment specified in the relevant notice of borrowing, extension or prepayment under this Agreement.

 

Such indemnification may include any amount equal to the excess, if any, of:  (a) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or extended, for the period from the date of such prepayment or of such failure to borrower, convert or extend to the last day of the applicable Interest Period (or in the case of a failure to borrow, convert or extend, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such loan as provided for herein; over (b) the amount of interest (as reasonably determined

 

10



 

by the Lender) which would have accrued to the Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank LIBOR market. The covenants of the Borrower set forth in this section shall survive the repayment of the Revolving Line of Credit Loan and other obligations under the Loan Documents hereunder.

 

19.                                Security .   The Borrower’s obligations hereunder and, to the extent related thereto, the MLA, shall be secured as provided in the MLA.

 

20.                                Effect of Fifth Supplement .   The execution and delivery of this Fifth Supplement and the Revolving Line of Credit Note shall supercede and replace in its entirety the Fourth Amended and Restated Second Supplement and the Second Amended and Restated Revolving Note dated May 18, 2007, which shall be of no force or effect.

 

IN WITNESS WHEREOF, the parties have caused this Fifth Supplement to the Fourth Amended and Restated Master Loan Agreement to be executed by their duly authorized officers as of the date shown above.

 

 

HERON LAKE BIOENERGY, LLC

 

a Minnesota limited liability company

 

 

 

 

 

By:

   /s/ Robert J. Ferguson

 

Name: Robert J. Ferguson

 

Title: President

 

 

 

AGSTAR FINANCIAL SERVICES, PCA

 

an United States corporation

 

 

 

 

 

By:

   /s/ Mark Schmidt

 

 

Mark Schmidt

 

 

Its Vice President

 

11



 

EXHIBIT A

BORROWING BASE CERTIFICATE

 

Date:                                            ,

 

1

Accounts Receivable:

 

 

 

 

 

 

                                             (ethanol)

 

$

 

 

 

 

                                             (DDGs)

 

$

 

 

 

 

Other

 

$

 

 

 

 

Other

 

$

 

 

 

 

Total

 

$

 

 

 

 

Deduct Ineligible Accounts

 

$

 

 

 

 

(31 days or more from invoice date)

 

 

 

 

 

 

Deduct Ineligible Accounts

 

$

 

 

 

 

(as determined by Bank)

 

 

 

 

 

 

Eligible Accounts Receivable

 

$

 

 

 

 

Multiply by Borrowing Base Factor

 

75.00

%

 

 

 

Accounts Receivable Loan Availability

 

 

 

$

 

 

 

 

 

 

 

 

2

Corn and Distiller’s Dried Grain (current value)

 

 

 

 

 

 

Ending Corn Inventory

 

$

 

 

 

 

Ending DDGs Inventory

 

$

 

 

 

 

Total Inventory

 

 

 

 

 

 

Multiply by Borrowing Base Factor

 

75.00

%

 

 

 

Corn Inventory Loan Availability

 

 

 

$

 

 

 

 

 

 

 

 

3

Ethanol Inventories (lower of cost or market)

 

 

 

 

 

 

Ending Fuel Ethanol Inventory

 

$

 

 

 

 

Ending Denaturant Inventory

 

$

 

 

 

 

Ending AA Enzyme Inventory

 

$

 

 

 

 

Ending GA Enzyme Inventory

 

$

 

 

 

 

Other Inventory

 

 

 

 

 

 

Total Inventory

 

$

 

 

 

 

Multiply by Borrowing Base Factor

 

75.00

%

 

 

 

Inventory Loan Availability

 

 

 

$

 

 

 

 

 

 

 

 

4

Total Borrowing Base (Totals from #1, #2, & #3)

 

 

 

$

 

 

 

 

 

 

 

 

5

Outstanding Loan Balance (as of month end)

 

$

 

 

 

 

 

 

 

 

 

 

6

Margin (Line 4 minus Line 5)

 

 

 

$

 

 

12



 

EXHIBIT B

FORM OF LETTER OF CREDIT

 

IRREVOCABLE STANDBY LETTER OF CREDIT NO.

 

(Date)

 

 

(Beneficiary)

 

Ladies and Gentlemen:

 

At the request of Heron Lake BioEnergy, LLC,                                   , Heron Lake, MN                                , we hereby establish our Irrevocable Standby Letter of Credit in your favor in the amount of $                 U.S. dollars.

 

We undertake that drawings under this Irrevocable Standby  Letter of Credit will be honored upon presentation of your draft drawn on AgStar Financial Services, PCA, at 1921 Premier Drive, Mankato, Minnesota 56002-4249 and the original of this Irrevocable Standby Letter of Credit prior to the expiration date set forth herein.  All drafts submitted to Agstar Financial Services, PCA must indicate the number and date of this Irrevocable Standby Letter of Credit.

 

This Irrevocable Standby Letter of Credit expires on                           .

 

Except as expressly stated herein, this undertaking is not subject to any conditions or qualification.  The obligation of AgStar Financial Services, PCA, under this Irrevocable Standby  Letter of Credit shall be the individual obligation of AgStar Financial Services, PCA, and in no way contingent upon reimbursement with respect thereto.

 

This Irrevocable Standby Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits, 1993 Version, of the International Chamber of Commerce or any successor publication.

 

Sincerely,

 

AGSTAR FINANCIAL SERVICES, PCA

 

Mark Schmidt

 

13


EXHIBIT 10.9

 

REVOLVING LINE OF CREDIT NOTE

 

$7,500,000.00

 

November 19, 2007

 

1.             FOR VALUE RECEIVED, HERON LAKE BIOENERGY, LLC , a Minnesota limited liability company (the “Borrower”), hereby promises to pay to the order of AGSTAR FINANCIAL SERVICES, PCA , an United States instrumentality (the “Lender”), the principal sum of Seven Million Five Hundred Thousand and No/100ths ($7,500,000.00) Dollars, or so much thereof as may be advanced to, or for the benefit of, the Borrower and be outstanding, with interest thereon, to be computed on each advance from the date of its disbursement as set forth herein pursuant to that certain Fourth Amended and Restated Master Loan Agreement  dated October 1, 2007, by and between the Lender and the Borrower (as it may be amended, modified, supplemented, extended or restated from time to time, the “MLA” ), and in that certain Fifth Supplement to the MLA, dated as of even date herewith, by and between the Lender and the Borrower  (as it may be amended, modified, supplemented, extended or restated from time to time, the “Fifth Supplement” ), and which remains unpaid, in lawful money of the United States and immediately available funds.  This Revolving Line of Credit Note (the “ Note ”) is issued pursuant to the terms and provisions of the MLA and the Fifth Supplement and is entitled to all of the benefits provided for in the MLA and the Fifth Supplement.  All capitalized terms used and not defined herein shall have the meanings assigned to them in the MLA and the Fifth Supplement.

 

2.             The outstanding principal balance of this Note shall bear interest at a variable rate determined by Lender to be three and one-quarter percent (3.25%) above the LIBOR Rate in effect on the first Advance pursuant to this Note.  Notwithstanding the foregoing, the rate of interest under this Note may be adjusted by Lender pursuant to the provisions of MLA and the Fifth Supplement.

 

3.             The “LIBOR Rate” means the rate (rounded upward to the nearest sixteenth and adjusted for reserves required on Eurocurrency Liabilities (as hereinafter defined) for banks subject to FRB Regulation D (as hereinafter defined) or required by any other federal law or regulation, quoted by the British Bankers Association (the “BBA”) at 11:00 a.m. London time two Banking  Days (as hereinafter defined) before the commencement of the Interest Period for the offering of U.S. Dollar deposits in the London interbank market for am Interest Period  of one month, as published by Bloomberg or another major information vendor listed on BBA’s official website.  “ Banking Day ” shall mean a day on which Lender is open for business, dealings in U.S. dollar deposits are being carried out in the London interbank market, and banks are open for business in New York City and London, England.  “ Eurocurrency Liabilities ” has the meaning as set forth in FRB Regulation D.  “ FRB Regulation D ” means Regulation D as promulgated by the Board of Governors of the Federal Reserve System, 12 CFR Part 204, as amended from time to time

 

4.             The rate of interest due hereunder shall initially be determined as of the date hereof and shall thereafter be adjusted, as and when, and on the same day that, the LIBOR Rate changes. All such adjustments to the rate of interest shall be made and become effective as of the date of any change in the LIBOR Rate and shall remain in effect until and including the day immediately preceding the next such adjustment (each such day hereinafter being referred to as an “ Adjustment Date ”).  All such adjustments to said rate shall be made and become effective as of the Adjustment Date, and said rate as adjusted shall remain in effect until and including the day immediately preceding the next Adjustment Date.  Interest hereunder shall be computed on the basis of a year of

 



 

three hundred sixty-five or three hundred sixty-six (365 or 366) days, but charged for actual days principal is outstanding.

 

5.             Beginning on the first (1 st ) day of December, 2007, and continuing on the first (1 st ) day of each succeeding month thereafter until the Maturity Date, the Borrower shall make monthly payments of accrued interest.

 

6.             The outstanding principal balance hereof, together with all accrued interest, if not paid sooner, shall be due and payable in full on November 16, 2008 (the “Maturity Date”).

 

7.             All payments and prepayments shall, at the option of the Lender, be applied first to any costs of collection, second to any late charges, third to accrued interest and the remainder thereof to principal.

 

8.             This Note may be prepaid at any time, at the option of the Borrower, either in whole or in part, subject to the obligation of the Borrower to compensate the Lender for any loss, cost or expense as a result of such prepayment as set forth in the Fifth Supplement.  This Note is subject to mandatory prepayment, at the option of the Lender, as provided in the MLA and the Fifth Supplement.

 

9.             In addition to the rights and remedies set forth in the MLA and the Fifth Supplement:  (i) if the Borrower fails to make any payment to Lender when due (including, without limitation, any purchase of equity of Lender when required ) under this Note, then at Lender’s option in each instance, such obligation or payment shall bear interest from the date due to the date paid at 2% per annum in excess of the rate of interest that would otherwise be applicable to such obligation or payment under this Note; (ii) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s option in each instance, the unpaid balances under this Note shall bear interest from the date of the Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be in effect under the terms of this Note; (iii) after the Maturity Date, whether by reason of acceleration or otherwise, the unpaid principal balance of this Note (including without limitation, principal, interest, fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that would otherwise be in effect under this Note.  Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.

 

10.           If the Borrower fails to make any payment to Lender within ten (10) days of the due date thereof (including, without limitation, any purchase of equity of Lender when required), the Borrower shall, in addition to such amount, a late charge equal to five percent (5%) of the amount of such payment.

 

11.           Upon the occurrence at any time of an Event of Default or at any time thereafter, the outstanding principal balance hereof plus accrued interest hereon plus all other amounts due hereunder shall, at the option of the Lender, be immediately due and payable, without notice or demand and Lender shall be entitled to exercise all remedies provided in this Note, the MLA, the Fifth Supplement, or any of the Loan Documents.

 

2



 

12.           The occurrence at any time of an Event of Default or at any time thereafter, the Lender shall have the right to set off any and all amounts due hereunder by the Borrower to the Lender against any indebtedness or obligation of the Lender to the Borrower.

 

13.           The Borrower promises to pay all reasonable costs of collection of this Note, including, but not limited to, reasonable attorneys’ fees paid or incurred by the Lender on account of such collection, whether or not suit is filed with respect thereto and whether or not such costs are paid or incurred, or to be paid or incurred, prior to or after the entry of judgment.

 

14.           Demand, presentment, protest and notice of nonpayment and dishonor of this Note are hereby waived.

 

15.           This Note shall be governed by and construed in accordance with the laws of the State of Minnesota.

 

16.           The Borrower hereby irrevocably submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to this Note, the MLA, the Fifth Supplement and any instrument, agreement or document related hereto or thereto, and the Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such Minnesota state or federal court. The Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.   Nothing in this Note shall affect the right of the Lender to bring any action or proceeding against the Borrower or its property in the courts of any other jurisdiction to the extent permitted by law.

 

17.           The execution and delivery of this Revolving Line of Credit Note shall supercede and replace that certain Second Amended and Restated Revolving Note dated May 18, 2007, which shall be of no force or effect.

 

 

HERON LAKE BIOENERGY, LLC

 

a Minnesota limited liability company

 

 

 

 

 

    /s/ Robert J. Ferguson

 

By: Robert J. Ferguson

 

  Its: President

 

3


EXHIBIT 10.10

 

INDUSTRIAL WATER SUPPLY DEVELOPMENT AND DISTRIBUTION AGREEMENT

 

THIS INDUSTRIAL WATER SUPPLY DEVELOPMENT AND DISTRIBUTION AGREEMENT (“Agreement”), is made this 27rd day of October, 2003, between the CITY OF HERON LAKE, MINNESOTA, a Minnesota municipal corporation (the “City”), JACKSON COUNTY, MINNESOTA, a Minnesota municipal corporation (the “County”), GENERATION II ETHANOL, LLC, a Minnesota limited liability company (“Generation II”) and MINNESOTA SOYBEAN PROCESSORS, a Minnesota cooperative corporation (“MNSP”)

 

WITNESSETH,

 

WHEREAS , MNSP is developing a soybean crushing facility for the production of soy oil and may develop a soy diesel facility for production of biodiesel fuel and certain other improvements in the City of Brewster, Minnesota (collectively, the “MNSP Project”), all as more particularly described in a Development Agreement between the Rural Development Financing Authority of the Counties of Nobles and Jackson, Minnesota, and MNSP dated as of December 1, 2002; and

 

WHEREAS , Generation II contemplates developing a biorefining facility adjacent to the City, for the production of ethanol (“Generation II Project”); and

 

WHEREAS , the MNSP Project and the Generation II Project will both require untreated industrial water, which the City has agreed to supply, upon the terms and conditions hereinafter set forth; and

 

WHEREAS , the City has agreed to construct, finance and operate a system of water production wells and distribution pipelines and related facilities to supply such untreated industrial water to both the Generation II Project and the MNSP Project, all as hereinafter provided; and

 

WHEREAS , in order to facilitate MNSP’s desired timetable for operation of the MNSP Project, the City commenced construction of an approximately eleven (11) mile pipeline from the MNSP Project to a well to be constructed on the Well Property (as hereinafter defined) pursuant to the terms and conditions of that certain Repayment Agreement dated as of September 10,2003 by and among the City, the County and MNSP (the “Repayment Agreement”):

 

NOW, THEREFORE, the City, the County, Generation II and MNSP hereby agree as follows:

 

1.              Definitions .

 

1.1           Joint powers Agreement : That certain Joint Powers Agreement between the City and the County dated as of Oct. 27, 2003, pursuant to which the Trunk Pipeline Bonds (as hereinafter defined) shall be issued, and the respective obligations of the City and County with respect to the ownership and operation of the Trunk Pipeline defined.

 



 

1.2           Trunk Pipeline : a pipeline, and associated facilities, to convey water from the Well Facilities to the MNSP Project, including pumps and pumping stations, metering, valves, controls, and other equipment, electrical installations, fencing and security devices, pipes and piping, and all other personal property, equipment and fixtures in connection therewith.

 

1.3           Trunk Pipeline Bonds : An issue of taxable general obligation water revenue  bonds, issued by the County, pursuant to the Joint Powers Agreement, in the principal amount of $1 ,670,000 (including, to the extent determined by the County, any refunding bonds), to be used to finance Trunk Pipeline Development Costs. The Joint Powers Agreement provides, among other things, for the “guarantee” of payment of principal and interest on the bonds by the County by the County’s levy of ad valorem taxes, for the disbursement of proceeds thereof, for the collection of debt service thereon from MNSP by the City, and for the deposit into a debt service reserve of one year’s debt service by MNSP, to be credited against MNSP’s final debt service payment. The City shall be entitled to all interest earnings on such deposit. A preliminary breakdown of the proposed use of the proceeds of such bond issue and tentative repayment schedule is attached hereto as Exhibit “C”.

 

1.4           Trunk Pipeline Development Costs : All costs incurred by the City and the County to design, construct, test and render operational the Trunk Pipeline including, without limitation, costs to acquire temporary or permanent easements or similar rights of way, the cost of acquisition of certain existing water rights or related property interests of MNSP (more particularly described below), engineering studies and investigations, design costs, feasibility costs, environmental costs, costs of complying with all applicable laws, rules and regulations, permits and  licenses (including the cost of complying with any conditions attached to such permits and licenses), all costs of contractors and subcontractors for labor and . matena1s, fees of consultants, insurance premiums, as well as bond underwriters’ fees or discounts, all other costs of bond issuance, including bond counsel fees, fees of counsel to the City and the County, and costs associated with collateral for the obligations of MNSP hereunder.

 

1.5           Trunk Pipeline Operating Costs : All costs of maintenance, repair and replacement of the Trunk Pipeline, and all components thereof, including reasonable reserves for the repair or replacement of items of personal property, fixtures or equipment that must be repaired or replaced on a periodic basis, all costs of complying with all now existing or hereafter enacted laws, rules and regulations and all costs of complying with all new or hereafter required permits and licenses (including the cost of complying with any conditions attached to such permits and licenses), as well as lease payments on a Leasehold Parcel (as defined below) originally intended by MNSP for water well development purposes, as described below, but excluding debt service on the Trunk Pipeline Bonds and depreciation. Trunk Pipeline Operating Costs shall include a ten percent (10%) administrative fee to the City .

 



 

1.6           Water Revenue Bonds : One or more issues (including, to the extent determined  by the City, any refunding bonds) of the City of Heron Lake Taxable General Obligation Water Supply Bonds, in the total cumulative amount of approximately $735,000, to fund Well Facilities Development Costs. A preliminary breakdown of the proposed use of the proceeds of such bond issue and tentative repayment schedule is attached hereto as Exhibit “A”.

 

1.7           Well Facilities : Water wells and associated facilities, including pumps and  pumping stations, metering, valves, controls, and other equipment, electrical installations, fencing and security devices, pipes and piping, and all other personal property, equipment and fixtures or other improvements constructed or to be constructed on the Well Property as part of the water well system developed by the City hereunder.

 

1.8           Well Facilities Development Costs : All costs incurred by the City to acquire the Well Property and design, construct, test and render operational the Well Facilities thereon, including, without limitation, land purchase costs paid to Generation II or to third parties in connection with acquisition of the Well Property, costs of all water rights in connection therewith, costs of clearance of improvements therefrom, costs of engineering studies and investigations, design costs, feasibility costs, environmental remediation and other costs associated with the preparation of the Well Property for the development of the Well Facilities thereon, costs of complying with all laws, rules and regulations, permits and licenses (including the cost of complying with any conditions attached to such permits and licenses), all costs of contractors and subcontractors for labor and materials, fees of consultants and engineers, insurance premiums, bond underwriters’ fees or discounts and all other costs involved in bond issuance, including bond counsel fees, as well as the fees of counsel to the City and the County.

 

1.9           Well Facilities Operating Costs : All costs of City staff or City employees or contractors associated with maintenance, repair, and replacement of the Well Facilities and all costs of such maintenance, repair or replacement, including reasonable reserves for the repair or replacement of items of equipment that must be repaired or replaced on a periodic basis, all costs of complying with all now existing or hereafter enacted laws, rules and regulations and all costs of complying with all now or hereafter required permits and licenses (including the cost of complying with any conditions attached to such permits and licenses), but excluding debt service on the Water Revenue Bonds and depreciation. Well Facilities Operating Costs shall include a ten percent (10%) administrative fee to the City.

 

1.10         Well Property : A parcel of approximately four (4) acres, preliminarily depicted on Exhibit “B” attached hereto, which real property shall be the site of the Well Facilities. The parties understand that the exact configuration and location of the Well Property will reflect the requirements of Minnesota governmental agencies, including the Minnesota Department of Health and Minnesota Department of



 

Natural Resources having jurisdiction of the development of water supplies, having regard for the need for a well head protection area.

 

2.              City Issuance of Water Revenue Bonds: City Acquisition of Well Property.

 

2.1           Not more than thirty (30) days after the date hereof, the City shall use its best  efforts to issue its Water Revenue Bonds, having such interest rate, maturity and other provisions as the City, in its discretion, shall deem appropriate.

 

2.2           Not more than forty-five (45) days after the date hereof, the City shall use its best  efforts to acquire fee title to the Well Property at a price per acre not in excess of Ten Thousand Dollars ($10,000). In the event the City is unable to acquire the Well Property for such price within such 45 day period, the City shall condemn the Well Property, using the “quick take” procedure of Minnesota Statutes, Section 117.042. Notwithstanding the $10,000 per acre target price, all costs of acquiring the Well Property and all costs and expenses of condemnation shall constitute Well Facilities Development Costs.

 

3.              Design, Construction by the City of Well Facilities.

 

3.1           The City, or engineers retained by the City, shall design the Well Facilities, with design review by DGR Consulting Engineers, who shall be employed by and paid by MNSP to assure the compatibility of the overall design and output of the Well Facilities with the Trunk Pipeline. The parties acknowledge that it is their intent to cause the Well Facilities to have a peak initial capacity of not less than 1,200 gallons per minutes (gpm) of which 600 gpm shall be reserved for Generation II and 600 gpm shall be reserved for MNSP. MNSP shall cooperate fully in the City’s efforts to obtain all necessary licenses, permits, governmental approvals and consents for the construction of the Well Facilities. MNSP and Generation II represent and warrant to the City and the County that they have engaged various engineers, hydrologists and other experts to examine and analyze the capacity, quality, feasibility, cost of construction and cost of operation of the Well Facilities and that MNSP and Generation II are satisfied with the results of such examination and analysis.

 

3.2           Promptly upon acquisition of title to the Well Property, the City shall commence and diligently pursue construction of the Well Facilities. The City and its contractors shall allow access to the work to MNSP and its engineers, who shall actively monitor construction of the Well Facilities in order to determine that the Well Facilities are being constructed in accordance with the applicable construction contract and in accordance with all laws, rules, regulations, licenses and permits. Additionally, MNSP and its engineers shall attend preconstruction and construction progress meetings.

 

3.3           The City shall use commercially reasonable efforts to complete, test, and obtain  approval by governmental agencies having jurisdiction by November 1,2003

 



 

(“Initial Completion Date”), except that such Initial Completion Date shall be extended by events of Force Majeure (as described in Section 17 hereof).

 

3.4           The City may construct the Well Facilities in one or several phases, so long as the supply needs of Generation II and MNSP are satisfied as set forth in Section 4.2 below. Generation II shall be required to give at least six (6) months written’ notice to the City in advance of its actual need of such capacity,

 

3.5           To the extent that any Well Facilities Development Costs are not eligible for funding from the proceeds of the Water Revenue Bonds, or in the event that the available proceeds from the Water Revenue Bonds are insufficient to pay all Well Facilities Development Costs, MNSP shall, upon written notice from the City, promptly pay such amounts to or as directed by the City,

 

4.              Operation of Well Facilities: Capacity Priorities of MNSP and Generation II: Payments by MNSP and Generation II.

 

4.1           The City shall own and operate the Well Facilities, which shall remain separate from the existing potable water well and water supply and distribution system of the City. During the term of this Agreement, no connection of the Well Facilities to the City’s present or future potable water supply system shall be made without the prior written consent of MNSP and Generation II.

 

4.2           Subject to Section 3.4 above, Generation II shall have the right to the first 600 gpm of capacity available from the Well Facilities. MNSP shall have the exclusive right to the next 600 gpm of available capacity. Until operation of the Generation II Project, MNSP shall have the exclusive right to the first 600 gpm of capacity available from the Well Facilities. The City may develop and sell any unused or surplus capacity without restrictions other than the following:

 

4.2.1.        Any supply contract with a third party shall be made on a secondary and interruptible basis, such that should the City be unable to meet the capacity requirements of Generation II and/or MNSP defined above, any water sales to secondary users must cease until sufficient excess capacity has been restored; and

 

4.2.2.        During the term of this Agreement, the City shall not enter into supply contracts to potable water users, including Red Rock Rural Water or the Cities of Okabena and Brewster, or other cities, without first securing the written approval of both Generation II and MNSP, which approval may be withheld or conditioned by either of such entities, in their discretion.

 

All amounts received the by the City from sale of such unused or excess capacity may be used by the City without restriction (subject to the provisions of Section 4.3.3 below).

 

4.3           Debt service on the Water Revenue Bonds, including a five percent (5%) administrative fee payable to the City, shall be allocated and paid in equal shares

 



 

by Generation II and MNSP over the life of the Water Revenue Bonds on a monthly basis, regardless of actual water usage by either party provided, that:

 

4.3.1.       Generation II’s payments under this Section 4.3 shall not commence until the General II Project first becomes operational. In the event that the Generation II Project first becomes operational in a calendar year following 2004, Generation II’s debt service payments shall be increased by such amount as shall result in the same aggregate payment by Generation II over the term of the Water Revenue Bonds remaining as of the year in which the Generation II Project becomes operational, as Generation II would have paid had the Generation II Project been operational in 2004. MNSP shall be solely responsible for its one-half of the debt service payments on the Water Revenue Bonds in all events.

 

4.3.2.       MNSP and the City (on the same percentage basis as set forth in Section 4.3.4 hereof) shall be responsible for the debt service payments on the Water Revenue Bonds that would be payable by Generation II had the Generation II Project become operational in 2004 until such time as the Generation II Project shall become operational and Generation II commences making the payments required by Section 4.3.1. To the extent that MNSP and the City have previously made payments on the Water Revenue Bonds that Generation II would have made had the Generation II Project become operational in 2004, the City shall refund to MNSP or keep (as appropriate) such amounts as and when, and only to the extent, received from Generation II.

 

4.3.3.       If MNSP or Generation II fails to make any debt service payment required by this Agreement in any year, the City shall cover any shortfall for such year from the net revenue received by the City from the sale of any unused or surplus capacity from the Well Facilities solely in such year. Any revenue remaining after covering any such shortfall for the applicable year may be used by the City without restriction.

 

4.3.4.       To the extent Generation II fails to make its share of debt service payments on the Water Revenue Bonds after it has become obligated to do so under Section 4.3.1, or in the event that Generation II is not obligated to make its share of debt service payments on the Water Revenue Bonds because the Generation II Project has not become operational, and in the further event that any net revenues received by the City from the sale of unused or surplus capacity from the Well Facilities in any applicable year are insufficient to cover such payments, the City shall, in any calendar year, make payments of a percentage of the resulting shortfall in debt service derived from a fraction, the numerator of which shall be the volume (in gallons) of sales by the City of potable water (excluding all sales of industrial water) during the prior calendar year and the denominator of which shall be the total volume (in gallons) of water, both industrial (untreated) water furnished under this Agreement or otherwise

 



 

to MNSP and sales by the City of potable water to residential and other users of the City’s potable water system during the same prior calendar year; and MNSP shall pay the balance of any such shortfall.

 

4.3.5.       To the extent either the City or MNSP has made unreimbursed shortfall payments pursuant to Section 4.3.4 above, they shall be reimbursed, in proportion to their respective payments, out of future payments made by or collected from Generation II if and when received.

 

4.4           All Well Facilities Operating Costs shall be borne by MNSP and Generation II in each calendar year in proportion to the volume of water taken by the MNSP Facility and the Generation II Facility, respectively. Until such time as the Generation II Project becomes operational, all Well Facilities Operating Costs shall be borne by MNSP. Sale of untreated industrial water to third party users by the City shall not affect the respective shares of Well Facilities Operating Costs payable by MNSP and Generation II hereunder.

 

4.5           During the term of this Agreement, both Generation II and MNSP shall purchase all of their respective untreated water supply exclusively from the City, and shall refrain from developing alternate water sources or purchasing water from any other party, except in the situation that the Well Facilities and Well Property are not capable, or cease to be capable, of producing water in the volumes contemplated by this Agreement.

 

4.6           Generation II and MNSP accept fully the risk that the Well Facilities and Well Property may not become operational by November 1, 2003; and that the Well Facilities and Well Property may not be capable, or may cease to be capable, of producing water in the volumes contemplated by this Agreement. The City and County shall have no duty or responsibility to arrange to supply water from any source other than the Well Facilities and Well Property, and Generation II and  MNSP shall make the payments required by this Section 4 whether or not water, or sufficient quantities of water, are supplied.

 

5.              Design and Construction of Trunk Pipeline; City and County Ownership; Payments by MNSP.

 

5.1           Not more than forty-five (45) days after the date hereof, MNSP, either by itself or through its engineers, will submit to the City and its engineers final plans for the Trunk Pipeline. Approval of such plans for the Trunk Pipeline shall not be unreasonably withheld or delayed by the City. MNSP shall cooperate fully in the City’s efforts to obtain all necessary licenses, permits, governmental approvals and consents for the construction of the Trunk Pipeline, including any necessary easements or permits from landowners or governmental units, including the County.

 

5.2           The final routing of the Trunk Pipeline shall be selected by MNSP, but MNSP shall, in selecting such route, accommodate reasonable adjustments as necessary

 



 

to maximize the utility of the trunk Pipeline to other potential users, and the reasonable requirements of the County. MNSP represents and warrants to the City and the County that it has engaged various engineers, hydrologists and other experts to examine and analyze the capacity, quality; feasibility, cost of construction and cost of operation of the Trunk Pipeline, and that MNSP is satisfied with the results of such examination and analysis.

 

5.3           The parties acknowledge that construction of the Trunk Pipeline has commenced, and construction and final testing of the Trunk Pipeline to the MNSP facility shall be diligently pursued and the City shall use commercially reasonable efforts to complete the Trunk Pipeline by November 1, 2003, except that such completion date shall be extended by events of Force Majeure. To the extent that any Trunk Pipeline Development Costs are not eligible for funding from the proceeds of the Trunk Pipeline Bonds, or in the event that the available proceeds from the Trunk Pipeline Bonds are insufficient to pay all Trunk Pipeline Development Costs, MNSP shall, upon written notice from the City, promptly pay such amounts to or as directed by the City.

 

5.4           During the term of this Agreement, the Trunk Pipeline shall remain physically separate from, and shall not be connected to, the existing potable water well and distribution system of the City. MNSP shall make the following payments regardless of actual water use:

 

5.4.1.       All payments of debt service on the Trunk Pipeline Bonds, as and when due thereunder, together with an administrative fee payable to the City for remittance to the County of five percent (5%) of such debt service on a monthly basis.

 

5.4.2.       All Trunk Pipeline Operating Costs as and when required.

 

5.4.3.       All annual lease payments on the Leasehold Parcel, described below.

 

5.4.4.       Concurrently with the execution of this Agreement, an amount equal to one (1) year’s debt service on the Trunk Pipeline Bonds, which shall be credited against the final debt service payment due from MNSP on the Trunk Pipeline Bonds on the condition that MNSP has made all payments required of it under this Agreement.

 

5.5           Under the Joint Powers Agreement, the City and County will co-own the Trunk Pipeline.

 

5.6           MNSP accepts fully the risk that the Well Facilities and Well Property may not be completed by November 1, 2003, that the Well Facilities and Well Property may not be capable, or may cease to be capable, of producing water in the volumes for MNSP contemplated by this Agreement, and that the Trunk Pipeline carries no or inadequate quantities of water for its needs. The City and County shall have no duty to arrange for the Trunk Pipeline to carry water from any source other than the Well Facilities and Well Property, and MNSP shall make the payments

 



 

required by this Section 5 whether or not water, or sufficient quantities of water are carried by the Trunk Pipeline.

 

6.              City Acquisition of MNSP Water Rights: Assignment of Lease Rights by MNSP to City.

 

6.1           MNSP has an option to acquire certain property (the “Fee Parcel”) and the lessee’s interest in a lease of another parcel (the “Leasehold Parcel”), such parcels being located in or adjacent to the City of Brewster, and such options were acquired by MNSP for well development purposes. The City shall acquire fee title to the Fee Parcel for One Hundred Thousand Dollars ($100,000), such amount to be paid simultaneously with the closing of the issuance of the Trunk Pipeline Bonds and the availability of proceeds therefrom. The cost of acquisition of such parcel shall be included in Trunk Pipeline Development Costs. Simultaneously with such payment:

 

6.1.1.       MNSP shall exercise its current option on the Fee Parcel and pay all costs thereof including the entire option/purchase price required by said Option Agreement and convey the title so-acquired to the City by Warranty Deed; and

 

6.1.2.       MNSP shall assign its lease rights on the Leasehold Parcel to the City and shall simultaneously deliver to the City the consent (if required) of the Lessor under said lease to the assignment.

 

6.2           MNSP represents and warrants to the City that: a) it has delivered to the City a true, correct and complete copy of the lease for the Leasehold Parcel (hereinafter, the “Lease”); b) the Lease is in full force and effect and all payments required by the Lease have been made through the date hereof; and c) to the best of its knowledge, neither party to the Lease is in default of any of its obligations thereunder.

 

6.3           MNSP may obtain additional sources of water supply as a substitute for the Leasehold Parcel and, at its election, may convey fee title to such additional source to the City, and City shall accept the same, so long as the capacity of such substitute source is at least equal to that of the Leasehold Parcel and the City does not assume any obligations related to ownership of said land not contemplated by this Agreement, and upon such conveyance, MNSP shall be relieved of liability for lease payments included in Trunk Pipeline Operating Costs arising from the Lease on the condition that MNSP procures for the City a release of the City from all further responsibility for such Lease payments.

 

6.4           The City shall have the right to develop, sell, lease or otherwise dispose of the Fee Parcel and the Leasehold Parcel in its sole discretion at any time.

 



 

7.              City Development of Water Treatment Plant: MNSP to use City-Supplied Water: MNSP Water Treatment.

 

7.1           The parties anticipate that Generation II may require water treatment facilities  needed for the Generation II Project, and the City will work cooperatively with Generation II to develop and design such treatment facility, with the expectation that in the event such water treatment system is developed, that all users thereof, including Generation II, will cover all construction, financing, operation and maintenance costs thereof in a manner comparable to the payments by MNSP and Generation II of the construction, financing, operation and maintenance of the Well Facilities and Trunk Pipeline hereunder.

 

7.2           In the event the water treatment facility for Generation II is developed, the City  will entertain a proposal for the City ownership and financing thereof, and the possible use of tax increment financing, but nothing herein contained shall bind the City to such public ownership, financing or use of tax increment. Nothing herein shall affect any other obligations of the parties hereto, and the development of the treatment plant shall not impact any obligations of the parties under any previous financing or otherwise unless a conversion of the entire water system from untreated to treated water is developed, by mutual agreement of all parties hereto, in which event, MNSP, Generation II and the City agree to negotiate in good faith the equitable share of the costs, including design, development, construction, financing, operation and maintenance of such system-wide treatment facility.

 

7.3           MNSP shall construct and maintain its own water treatment and water storage facilities, at its sole cost and expense.

 

8.              City to Furnish Cost Data: Audit Rights of MNSP and Generation II.

 

8.1           The City shall furnish MNSP (and Generation II, upon completion of the Generation II Facility), not less often than annually, detailed accounting records detailing the Water Facilities Operating Costs, the debt service payments and the administrative fees required by this Agreement, and shall furnish MNSP similarly detailed records showing Trunk Pipeline Operating Costs.

 

8.2           Either MNSP or Generation II may, at its expense, cause an audit of records related to Water Facilities Operating Costs, Trunk Pipeline Operating Costs, debt service payments, administrative fees, or any other costs borne by either MNSP or Generation II hereunder, such audit to be performed by an independent certified public accountant, and in a manner that is not disruptive to ordinary operations of the City. A copy of any report of such auditor shall be furnished to the City.

 

9.              Default, Cure and Early Termination.

 

9.1           If any party fails to comply with any of the provisions of this Agreement, any other party may provide notice of default by sending written notice of default to the defaulting party, with a copy to all other parties. The notice of default shall begin a 90-day cure period. If the defaulting party fails to cure the default before the expiration of the cure period, any or all of the non-defaulting parties may

 



 

commence an action against the defaulting party to recover damages suffered or incurred (subject, however, to the limitations contained in Section 16 hereof) or to compel the defaulting party’s performance of this Agreement in an appropriate equitable proceeding. Subject to the provisions of Section 9.2 hereof, no party to this Agreement shall have the right to terminate this Agreement on account of the default by any other party.

 

9.2           Without limiting any other right or remedy hereunder, in the event of a default by either MNSP or Generation n under this Agreement, the City or the County may terminate or suspend water service to such defaulting party (and sell such water as excess or unused water) unless and until such default is cured to the reasonable satisfaction of the City or the County.

 

10.           Mortgage and Security Interest to the City and the County. MNSP shall, at its expense, provide the City and the County a mortgage and security interest in the MNSP Project in an amount sufficient to securitize payment of the Trunk Pipeline Bonds. The mortgage and security interest shall be secondary to any interest held by MNSP’s financing bank, and must be satisfactory to such bank.

 

11.           Representations and Warranties. MNSP and Generation II each represent and warrant to  the City and the County that: all licenses and permits necessary for construction of the Well Facilities have been obtained and, if not held by the applicable contractor, are assignable and have been assigned to the City or the County; to the best of their knowledge, all property rights necessary for the construction of the Well Facilities have been obtained and transferred to the City or the County; this Agreement has been duly and validly authorized and executed by each of them; this Agreement does not violate any provision of their respective articles, bylaws, or any other document, instrument or agreement applicable to each of them or their respective property; and this Agreement is fully enforceable against each of them in accordance with its terms. MNSP further represents and warrants to the City and the County that: all licenses and permits necessary for construction of the Trunk Pipeline have been obtained and, if not held by the applicable contractor, are assignable and have been assigned to the City or the County; and, to the best of its knowledge, all property rights necessary for the construction of the Trunk Pipeline have been obtained and transferred to the City or the County.

 

12.           Acknowledgments. MNSP and Generation II each acknowledge and agree that the City and the County have made no representations or warranties of any type or kind: (a) that the Well Facilities and the Trunk Pipeline can be constructed in accordance with applicable laws, rules, regulations, licenses and permits; (b) that the contracts for construction, and the applicable contractors are sufficient and capable to construct the Well Facilities and the Trunk Pipeline to meet the needs of MNSP and for Generation II; (c) with respect to costs of construction, operation, maintenance and replacement of the Well Facilities and the Trunk Pipeline; or (d) that the Well Facilities and the Trunk Pipeline or the quantity or quality of water available by operation thereof, will meet the needs of the MNSP Project or the Generation II Project, or will be available at any particular date.

 



 

13.           Resolutions and Opinions. Concurrently with the execution of this Agreement: a) MNSP and Generation II will each provide the City and the County with resolutions of their governing body authorizing and approving the execution of this Agreement, and a legal opinion of outside legal counsel opining to such matters as the City and the County and their legal counsel shall require; and b) MNSP will provide the City and the County with the written consent of the City of Brewster to the provision of water by the City to the MNSP Project.

 

14.           Unconditional Payments. The payment obligations of MNSP and Generation II hereunder are absolute and unconditional, and shall not be affected, excused or delayed for any reason whatsoever including, but not limited to: (a) negligence, failure or omission by the City, the County or any of their respective employees or representatives; (b) any default or other failure of the applicable contractor to complete construction of the Well Facilities and the Trunk Pipeline in a timely manner or in accordance with the requirements of the applicable construction contract or applicable laws, rules, regulations, licenses or permits; (c) any default or other failure of MNSP or Generation II to make any payments or take any actions required by this Agreement; or (d) the amount of water capable of being supplied by the Well Property and Well Facilities.

 

15.           Modification: Interest: Attorney’s Fees. This Agreement can only be modified or amended, or any provision waived, by written instrument duly executed by all parties. Any amounts not paid when due shall bear interest at the rate of eight percent (8%) per annum until paid. In the event that any party is required to commence legal action to enforce its rights under this Agreement, and in the event that it is the prevailing party in such action, it shall be entitled to recover its reasonable costs and expenses (including legal fees).

 

16.           Limitation of Liability

 

16.1         IN NO EVENT SHALL THE CITY OR THE COUNTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES OF ANY TYPE OR KIND, REGARDLESS OF WHETHER THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

16.2         MNSP AND GENERATION II AGREE THAT THE CITY AND THE COUNTY’S COLLECTIVE LIABILITY HEREUNDER FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, SHALL NOT EXCEED THE DEBT SERVICE PAYMENTS MADE BY MNSP AND GENERATION II HEREUNDER IN THE PRECEDING TWELVE (12) MONTH PERIOD.

 

17.           Force Majeure

 

17.1         Any delay of any party to perform its obligations hereunder shall be excused if, and to the extent that, it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, such as by way of example and not by way of limitation, acts of God, actions by any

 



 

governmental authority (whether valid or invalid), failure to obtain necessary licenses or permits, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, material shortages, or court injunction or order. No such event or occurrence shall excuse or delay any obligation to pay amounts due under this Agreement.

 

17.2         During the period of such delay or failure to perform by a party, such party shall provide all other parties with prompt written notice of such delay (including a description of the cause of the event or circumstance, an estimate of the duration of the delay and a statement regarding the remedial steps that are being undertaken to resume performance.)

 

18.           Assignment. This Agreement or any part of this Agreement may not be assigned or transferred by any party without the prior written consent of all other parties hereto. Any assignment or transfer without such consent shall be null and void.

 

19.           Notices and Demands.

 

19.1         Except as otherwise expressly provided in this Agreement, any notice, demand or other communication under this Agreement by any party shall be sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally as follows:

 

If to MNSP:

 

Minnesota. Soybean Processors
Attn: Rodney Christianson P.O.
Box 100

 

Brewster, MN 56119-0100

 

If to Generation II:

 

Generation II Ethanol LLC
34858 150 th Street Brewster,
MN 56119

 

If to the City:

 

City of Heron Lake

 

P.O. Box 315, 312 10 th Street
Heron Lake, MN 56137-0315

 



 

If to the County:

 

County of Jackson, Minnesota
Attn: Robert C. O’Connor, Esq.
County Attorney, Jackson
County Jackson County
Courthouse
405 4 th Street, Suite 2D
Jackson, MN 56143-1588

 

or at such other address with respect to any party as such party may, from time to time, designate in writing.

 

20.           Miscellaneous.

 

20.1         This Agreement shall have a term of approximately fifteen (15) years and four (4) months to the February 1, 2019, final scheduled maturities of the Trunk Pipeline Bonds and Well Facilities Bonds. Not later than the fourteenth (14 th ) anniversary of the date hereof, the parties hereto shall commence negotiations in good faith and with reasonable diligence to replace this Agreement with a further agreement or agreements on the subjects set forth herein.

 

20.2         Minnesota law governs this Agreement.

 

20.3         This Agreement shall bind and apply to the respective parties hereto and to their successors and permitted assigns.

 

20.4         This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, oral or written, including the Repayment Agreement; provided, however, that the provisions of Section 3 of the Repayment Agreement shall survive and remain in full force and effect.

 

20.5         The headings in this Agreement are for the convenience of the parties and shall not constitute a part of this Agreement.

 

20.6         This Agreement may be executed in counterparts.

 



 

IN WITNESS WHEREOF, the parties have executed this Industrial Water Supply and Development Agreement as of the day and year first above-written.

 

 

CITY OF HERON LAKE, MINNESOTA, a Minnesota municipal corporation

 

 

 

 

 

 

 

By

 /s/ John Hay

 

Its Mayor

 

 

 

 

By

 /s/ Judy Haberman

 

Its City Clerk

 

 

 

 

 

 

 

COUNTY OF JACKSON, MINNESOTA,
a Minnesota municipal corporation

 

 

 

 

 

 

 

By

 /s/ Robert J. Ferguson

 

Its

Board Chairman

 

 

 

 

 

 

 

And by

 /s/ Janice Fransen

 

Its County Coordinator

 

 

 

 

Approved as to form and content:

 

 

 

 

By

 /s/ Robert O’Connor

 

 

County Attorney

 

 

 

 

GENERATION II ETHANOL, LLC

 

 

 

 

 

 

 

By

 /s/ Robert Ferguson

 

Its

 Board Chairman

 

 

 

 

MINNESOTA SOYBEAN PROCESSORS,
a Minnesota cooperative corporation

 

 

 

 

By

 /s/ Rodney Christianson

 

Its

 CEO

 

 

 



 

EXHIBIT A

Water Revenue Bonds

Use of Proceeds and Repayment Schedule

 

City of Heron Lake, Minnesota.

 

 

$735,000

 

FINAL

TAXABLE GO Water Supply Bonds, Series 2003B

 

 

Uses of Funds

 

 

 

 

 

 

 

 

 

 

 

Well Construction & Related Contracts

 

 

 

473,778

 

Contingencies

 

 

 

11,844

 

Engineering & surveying

 

 

 

39,902

 

Land and water rights acquisition

 

 

 

140,000

 

Legal

 

 

 

14,213

 

Administration (including feasibility study)

 

 

 

15,000

 

Total

 

 

 

694,737

 

Underwriter’s Discount Allowance

 

1.5000

%

11,025

 

Fiscal Fee

 

 

 

8,000

 

Bond Counsel

 

 

 

3,500

 

Pay Agent/Registrar

 

 

 

400

 

Printing & Misc

 

 

 

1,000

 

Rating Agency Fee

 

 

 

 

Capitalized Interest

 

 

 

15,000

 

 

 

 

 

733,662

 

Sources of Funds

 

 

 

 

 

 

 

 

 

 

 

Bond Issue

 

 

 

735,000

 

Cash Contribution

 

 

 

 

Construction Fund Earnings (excess proceeds)

 

 

 

(1,338

)

 

 

 

 

733,662

 

 

Bond Details

 

 

 

 

 

 

 

Set Sale Date

 

9/10/2003

 

Sale Date

 

9/30/2003

 

Dated Date

 

10/1/2003

 

Closing Date

 

10/14/2003

 

1st Interest Payment

 

8/1/2004

 

Proceeds spent by

 

12/31/2003

 

 

 

to Dated Date

 

Purchase Price

 

723,975.00

 

Net Interest Cost

 

423,300.00

 

Net Effective Rate

 

5.4514

%

Average Coupon

 

5.309

%

Average Life

 

10.5646

 

Call Option

 

2/1/2009

 

Purchaser

 

Northland Securities

 

Bond Counsel

 

Briggs & Morgan, P.A.

 

Pay Agent

 

US Bank, N.A.

 

Tax Status

 

Taxable

 

Continuing Disclosure Election

 

None

 

 

Payment Schedule & Cashflow

 

Payments Schedule

 

Pledged Revenues

 

Account Balances

 

12-Month
Period ending

 

Principal

 

Rate

 

Interest

 

Payment
Total

 

plus 5%
Coverage

 

MnSP
Payments*

 

Gen II
Payments**

 

Surplus
(deficit)

 

Account
Balance

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10/1/2003

 

 

 

 

 

 

 

 

Reserve Fund and Accrued Interest>

 

16,358

 

2/1/2004

 

 

0.000

%

 

 

 

12,917

 

 

12,917

 

29,275

 

2/1/2005

 

 

0.000

%

50,150

 

50,150

 

52,658

 

38,750

 

 

(19,908

)

15,367

 

2/1/2006

 

 

0.000

%

37,613

 

37,613

 

39,493

 

38,750

 

 

(743

)

14,624

 

2/1/2007

 

 

0.000

%

37,613

 

37,613

 

39,493

 

38,750

 

 

(743

)

13,881

 

2/1/2008

 

40,000

 

3.500

%

37,613

 

77,613

 

81,493

 

38,750

 

49,514

 

6,771

 

20,652

 

2/1/2009

 

50,000

 

4.000

%

36,213

 

86,213

 

90,523

 

38,750

 

49,514

 

(2,259

)

18,393

 

2/1/2010

 

50,000

 

4.500

%

34,213

 

84,213

 

88,423

 

38,750

 

49,514

 

(159

)

18,233

 

2/1/2011

 

50,000

 

4.750

%

31,963

 

81,963

 

86,061

 

38,750

 

49,514

 

2,203

 

20,437

 

2/1/2012

 

55,000

 

5.000

%

29,588

 

84,588

 

88,817

 

38,750

 

49,514

 

(553

)

19,884

 

2/1/2013

 

55,000

 

5.100

%

26,838

 

81,838

 

86,929

 

38,750

 

49,514

 

2,335

 

22,218

 

2/1/2014

 

60,000

 

5.200

%

24,033

 

84,033

 

88,234

 

38,750

 

49,514

 

30

 

22,248

 

2/1/2015

 

65,000

 

5.300

%

20,913

 

85,913

 

90,208

 

38,750

 

49,514

 

(1,944

)

20,304

 

2/1/2016

 

70,000

 

5.400

%

17,468

 

87,468

 

91,841

 

38,750

 

49,514

 

(3,577

)

16,727

 

2/1/2017

 

75,000

 

5.600

%

13,688

 

88,688

 

93,122

 

38,750

 

49,514

 

(4,858

)

11,869

 

2/1/2018

 

80,000

(1)

5.750

%

9,488

 

89,488

 

93,962

 

38,750

 

49,514

 

(5,698

)

6,171

 

2/1/2019

 

85,000

(1)

5.750

%

4,888

 

89,888

 

94,382

 

38,750

 

49,514

 

(6,118

)

53

 

 

 

735,000

 

 

 

412,275

 

1,147,275

 

1,204,639

 

594,167

 

594,167

 

(16,305

)

 

 

 


* MnSP monthly payments commence Nov 1, 2003.

** Gen II monthly payments commence no later than 2/1/2007.

 



 

EXHIBIT B

 

WELL PROPERTY

 

That part of the Southwest Quarter (SWI/4) (i.e. also being known as part of Lot 5, State· Subdivision of the SWI/4 16-104-37), of Section Sixteen (16), Township One Hundred Four (104) North, Range Thirty-seven (37) West, Jackson County, Minnesota, described as follows: Commencing at an existing iron monument at the southwest comer of the SWI/4 of said Section 16; thence north 00 degrees 37 minutes 05 seconds east, bearings based on Jackson County Coordinate System, along the west line of said SWI/4, a distance of 869.00 feet to the POINT OF BEGINNING; thence continuing north 00 degrees 37 minutes 05 seconds east, along said west line, a distance of 400.00 feet; thence north 89 degrees 22 minutes 55 seconds east a distance of 412.00 feet; thence south 00 degrees 37 minutes 05 seconds west, parallel with the west line of said SWI/4, a distance of 400.00 feet; thence north 89 degrees 22 minutes 55 seconds west a distance of 412.00 feet to the point of beginning, containing 3.78 acres.

 



 

EXHIBIT C

Trunk Pipeline Bonds

Use of Proceeds and Repayment Schedule

 

Jackson County, Minnesota

FINAL

 

 

$1,670,000

Cronin & Co., Inc.

TAXABLE GO Water Revenue Bonds, Series 2003A (Heron Lake Water Project)

 

 

Uses of Funds

 

 

 

 

 

 

 

 

 

 

 

Pipe Construction Bld., Carstensen

 

 

 

1,300,000

 

Construction contingency

 

 

 

100,000

 

Engineering

 

 

 

78,000

 

West Well Field Acquisition

 

 

 

100,000

 

Legal Fees

 

 

 

39,000

 

City Administration

 

 

 

12,500

 

County Administration

 

 

 

5,000

 

Total

 

 

 

1,634,500

 

Underwriter’s Discount Allowance (1.5%)

 

0.911

%

15,208

 

Fiscal Fee

 

 

 

9,500

 

Bond Counsel

 

 

 

5,000

 

Pay Agent/Registrar

 

 

 

400

 

Printing & Misc

 

 

 

1,500

 

Rating Agency Fee

 

 

 

5,300

 

Debt Service Reserve

 

 

 

160,000

 

 

 

 

 

1,831,408

 

 

 

 

 

 

 

Sources of Funds

 

 

 

 

 

 

 

 

 

 

 

Bond Issue

 

 

 

1,670,000

 

Prepayment from MnSP

 

 

 

160,000

 

Construction Fund Earnings (excess proceeds)

 

 

 

1,408

 

 

 

 

 

1,831,408

 

 

Bond Details

 

 

 

 

 

 

 

Set Sale Date

 

9/23/2003

 

Sale Date

 

10/14/2003

 

Dated Date

 

10/1/2003

 

Closing Date

 

10/27/2003

 

1st Interest Payment

 

8/1/2004

 

Proceeds spent by

 

6/1/2004

 

 

 

to Dated Date

 

Purchase Price

 

1,654,792.30

 

Net Interest Cost

 

810,422.70

 

Net Effective Rate

 

5.2722

%

Average Coupon

 

5.173

%

Average Life

 

9.2046

 

Call Option

 

2/1/2009

 

Purchaser

 

Cronin & Co., Inc.

 

Bond Counsel

 

Tony Stemberger, Briggs & Morgan

 

Pay Agent

 

US Bank, N.A.

 

Tax Status

 

Taxable

 

Continuing Disclosure Election

 

Limited, on request

 

 

Payment Schedule & Cashflow

 

Payment Schedule

 

Pledged Revenues

 

Account Balances

 

12-Month

 

 

 

 

 

 

 

Payment

 

plus 5%

 

MnSP

 

0.00%

 

Surplus

 

Account

 

Period ending

 

Principal

 

Rate

 

Interest

 

Total

 

Coverage

 

Payments*

 

Interest

 

(deficit)

 

Balance

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10/1/2003

 

 

 

 

 

 

 

 

 

Accrued Interest>>

 

5,836

 

2/1/2004

 

 

0.000

%

 

 

 

42,339

 

 

42,339

 

48,174

 

2/1/2005

 

85,000

 

3.500

%

107,740

 

192,740

 

202,377

 

169,354

 

 

(33,023

)

15,151

 

2/1/2006

 

85,000

 

3.500

%

77,830

 

162,830

 

170,972

 

169,354

 

 

(1,618

)

13,534

 

2/1/2007

 

85,000

 

3.500

%

74,855

 

159,855

 

167,848

 

169,354

 

 

1,506

 

15,040

 

2/1/2008

 

90,000

 

4.000

%

71,880

 

161,880

 

169,974

 

169,354

 

 

(620

)

14,420

 

2/1/2009

 

95,000

 

4.200

%

68,280

 

163,280

 

171,444

 

169,354

 

 

(2,090

)

12,330

 

2/1/2010

 

95,000

 

4.200

%

64,290

 

159,290

 

167,255

 

169,354

 

 

2,100

 

14,430

 

2/1/2011

 

100,000

 

4.700

%

60,300

 

160,300

 

168,315

 

169,354

 

 

1,039

 

15,469

 

2/1/2012

 

105,000

 

5.000

%

55,600

 

160,600

 

168,630

 

169,354

 

 

724

 

16,193

 

2/1/2013

 

110,000

 

5.100

%

50,350

 

160,350

 

168,368

 

169,354

 

 

987

 

17,179

 

2/1/2014

 

120,000

 

5.200

%

44,740

 

164,740

 

172,977

 

169,354

 

 

(3,623

)

13,556

 

2/1/2015

 

125,000

(1)

5.500

%

38,500

 

163,500

 

171,675

 

169,354

 

 

(2,321

)

11,235

 

2/1/2016

 

135,000

(1)

5.500

%

31,625

 

166,625

 

174,556

 

169,354

 

 

(5,602

)

5,633

 

2/1/2017

 

140,000

(1)

5.500

%

24,200

 

164,200

 

172,410

 

169,354

 

 

(3,056

)

2,577

 

2/1/2018

 

145,000

(1)

5.500

%

16,500

 

161,500

 

169,575

 

169,354

 

 

(221

)

2,356

 

2/1/2019

 

155,000

(1)

5.500

%

8,525

 

163,525

 

171,701

 

169,354

 

 

(2,347

)

9

 

 

 

1,670,000

 

 

 

 

 

2,465,015

 

2,588,47?

 

2,582,649

 

 

 

(5,827

)

 

 

 


* Paid monthly to City of Heron Lake starting November 1, 2003.

 


Exhibit 10.11

 

INDUSTRIAL WATER SUPPLY TREATMENT AGREEMENT

 

THIS INDUSTRIAL WATER SUPPLY TREATMENT AGREEMENT (the “Agreement”) is made this 23rd day of May, 2006, by and among the CITY OF HERON LAKE, MINNESOTA, a Minnesota municipal corporation (the “City”), the COUNTY OF JACKSON, MINNESOTA, a Minnesota municipal corporation (the “County”), and HERON LAKE BIOENERGY, LLC, a Minnesota limited liability company (the “Company”).

 

W I T N E S S E T H,

 

WHEREAS , the Company is developing an ethanol production facility in the City of Heron Lake, Minnesota (the “Project”); and

 

WHEREAS , the Project will require a supply of untreated industrial water, which the City has agreed to supply upon the terms and conditions set forth in that certain Industrial Water Supply Development and Distribution Agreement dated as of October 27, 2003, by and among the City, County, Company (as successor to Generation II Ethanol, LLC) and Minnesota Soybean Processors (“MNSP”) (the “2003 Agreement”); and

 

WHEREAS , such untreated water will need to be treated prior to its use in the Project, as contemplated by Section 7 of the 2003 Agreement; and

 

WHEREAS , the City has agreed to construct, finance and operate a water treatment plant (the “Water Treatment Plant”) to supply treated industrial water to the Project, all as hereinafter provided; and

 

WHEREAS , the City has procured two grants, each in the amount of $500,000, from the State of Minnesota for the Water Treatment Plant; and

 

WHEREAS , in order to facilitate the Company’s desired timetable for operation of the Project, the City commenced construction of the Water Treatment Plant pursuant to the terms and conditions of that certain Repayment Agreement dated as of April 24, 2006, by and among the City, County and Company (the “Repayment Agreement”):

 

NOW, THEREFORE , the City, County, and Company hereby agree as follows:

 

1.              Definitions .

 

1.1            Joint Powers Agreement : That certain Joint Powers Agreement between the City and County dated as of May 23, 2006, pursuant to which the Bonds (as hereinafter defined) shall be issued, defining the respective obligations of the City and County with respect to the ownership and operation of the Water Treatment Plant.

 

1.2            Water Treatment Plant : a water treatment plant, and associated facilities, to treat water from the Well Facilities for the Company’s use at the Project, including pumps and pumping stations, metering, valves, controls, and other equipment, electrical installations, fencing and security devices, pipes and piping, and all other personal property, equipment and fixtures in connection therewith.  The

 



 

Water Treatment Plant is further identified by materials to be attached hereto as Exhibit “E” .

 

1.3            Bonds : An issue of taxable general obligation water revenue bonds, issued by the County pursuant to the Joint Powers Agreement, in the principal amount of $3,550,000 (including, to the extent determined by the County, any refunding bonds), to be used to finance Water Treatment Plant Development Costs.  The Joint Powers Agreement provides, among other things, for the “guarantee” of payment of principal and interest on the bonds by the County by the County’s levy of ad valorem taxes, for the disbursement of proceeds thereof, for the collection of debt service thereon from the Assessments and from other payments by the Company to the City, and for the deposit into a debt service reserve of one year’s debt service by the Company (to be returned to the Company upon final payment of the Bonds).  The County shall cumulate interest earnings on the debt service reserve in the debt service reserve, and all amounts remaining in the debt service reserve shall be returned to the Company upon final payment of the Bonds.  A preliminary breakdown of the proposed use of the proceeds of such bond issue and tentative repayment schedule is attached hereto as Exhibit “C” .

 

1.4            Water Treatment Plant Development Costs : All costs incurred by the City and County to design, construct, test and render operational the Water Treatment Plant including, without limitation, costs to acquire temporary or permanent easements or similar rights of way, the cost of acquisition of the site, engineering studies and investigations, design costs, feasibility costs, environmental costs, costs of complying with all applicable laws, rules and regulations, permits and licenses (including the cost of complying with any conditions attached to such permits and licenses), all costs of contractors and subcontractors for labor and materials, fees of consultants, insurance premiums, as well as bond underwriters’ fees or discounts, all other costs of bond issuance, including bond counsel fees, fees of counsel to the City and County.  Attached as Exhibit “D” is a cost pro forma for Water Treatment Plant Development Costs with sources and uses.

 

1.5            Water Treatment Plant Operating Costs : All costs of maintenance, repair and replacement of the Water Treatment Plant, and all components thereof, including reasonable reserves for the repair or replacement of items of personal property, fixtures or equipment that must be repaired or replaced on a periodic basis, all costs of complying with all now existing or hereafter enacted laws, rules and regulations and all costs of complying with all new or hereafter required permits and licenses (including the cost of complying with any conditions attached to such permits and licenses), but excluding debt service on the Bonds and depreciation.  Water Treatment Plant Operating Costs shall include a $1,500 per month addition as an administrative fee to the City.

 

1.6            Water Treatment Plant Property : A parcel of approximately 3.62 acres, preliminarily depicted on Exhibit “A” attached hereto, which real property is the site of the Water Treatment Plant.

 

2



 

1.7            Well Facilities : As provided in the 2003 Agreement, water wells and associated facilities, including pumps and pumping stations, metering, valves, controls, and other equipment, electrical installations, fencing and security devices, pipes and piping, and all other personal property, equipment and fixtures or other improvements constructed or to be constructed on the Well Property as part of the water well system developed by the City.

 

1.8            Well Property : As provided in the 2003 Agreement, a parcel of approximately four (4) acres, preliminarily depicted on Exhibit “B” attached hereto, which real property is the site of the Well Facilities.

 

1.9            Grants : The $500,000 grant set forth in the “General Obligation Bond Proceeds Grant Agreement Construction Grant for the Heron Lake Public Infrastructure Project” by and between the City and Minnesota Department of Employment and Economic Development (“DEED”), and the $500,000 grant from DEED from the Small Cities Development Program.

 

1.10          Assessments : Special assessments for the capital costs of the Water Treatment Plant, other than those costs paid by the Grants, to be levied by the City pursuant to Minnesota Statutes, Chapter 429, against the Project and paid over by the City to the County for use in paying the Bonds as provided in the Joint Powers Agreement.

 

2.              County Issuance of Bonds; City Acquisition of Water Treatment Plant Property .

 

2.1            Not more than thirty (30) days after the date hereof, the County shall use its best efforts to issue its Bonds, having such interest rate, maturity and other provisions as the County, in its discretion, shall deem appropriate.  The Bonds shall be an aggregate principal amount that provides proceeds in the amount shown on the pro forma set forth as Exhibit “D” .

 

2.2            The Company is acquiring property that includes the Water Treatment Plant Property from third parties.  Not more than forty-five (45) days after the date hereof, the City shall use its best efforts to acquire fee title to the Water Treatment Plant Property from the Company at a price of $310,000, which amount shall be included in Water Treatment Plant Development Costs.

 

3.              Design, Construction by the City of Water Treatment Plant .

 

3.1            Engineers retained by the City have designed the Water Treatment Plant, and the design has been reviewed by U.S. Water, Inc. (a party employed by and paid by the Company to assure the compatibility with the Project of the overall design and output of the Water Treatment Plant).  The parties acknowledge that it is their intent to cause the Water Treatment Plant to have a peak initial capacity of not less than 1400 gallons per minutes (gpm).  The Company shall cooperate fully in the City’s efforts to obtain all necessary licenses, permits, governmental approvals and consents for the construction of the Water Treatment Plant.

 

3



 

3.2            Promptly upon acquisition of title to the Water Treatment Plant Property, the City shall commence and diligently pursue construction of the Water Treatment Plant.  The City and its contractors shall allow access to the work to the Company and its engineers, who shall actively monitor construction of the Water Treatment Plant in order to determine that the Water Treatment Plant is being constructed in accordance with the applicable construction contract and in accordance with all laws, rules, regulations, licenses and permits.  Additionally, the Company and its engineers shall attend preconstruction and construction progress meetings.

 

3.3            The City shall use commercially reasonable efforts to complete, test, and obtain approval by governmental agencies having jurisdiction by January 15,2007 (“Initial Completion Date”), except that such Initial Completion Date shall be extended by events of Force Majeure (as described in Section 17 hereof).

 

3.4            To the extent that any Water Treatment Plant Development Costs are not eligible for funding from the proceeds of the Bonds or Grants, or in the event that the available proceeds from the Bonds and Grants are insufficient to pay all Water Treatment Plant Development Costs, the Company shall, upon written notice from the City, promptly pay such amounts to or as directed by the City.  The Company acknowledges and agrees that the conditions in the Grants can be met.

 

3.5            If the Water Treatment Plant as designed and constructed does not produce water with the specifications necessary for the Company’s use, the Company shall have no damage remedy against the City or County or both, but the Company shall be subrogated to the rights of the City with respect to engineers, suppliers and contractors.

 

3.6            If the Water Treatment Plant does not, when operated as designed, produce water with the specifications necessary for the Company’s use, the Company shall be responsible for the capital costs and operational costs of any additional treatment.  The Company, City and County shall cooperate in identifying and providing (at the Company’s expense) the capital facilities for such additional treatment, and in coordinating or integrating such additional treatment with or into the operations of the Water Treatment Plant.  This provision shall not prejudice the Company’s right to pursue remedies against third parties pursuant to its subrogation rights set forth in Section 16.3.

 

4.              Operation of Water Treatment Plant; Capacity Priorities of the Company and Others; Payments by the Company and Others .

 

4.1            The City (together with the County) shall own and operate the Water Treatment Plant, which shall remain separate from the existing potable water well and water supply, treatment and distribution system of the City.  During the term of this Agreement, no connection of the Water Treatment Plant to the City’s present or future potable water supply system shall be made without the prior written consent of the Company.

 

4



 

4.2            The availability of water from the Well Facilities is governed by the 2003 Agreement.  The capacity of the Well Facilities is currently estimated by the City and Company to be 1800 gpm, but a permit for that volume has not yet been procured.  Under the 2003 Agreement, the first 600 gpm of capacity of the Well Facilities has been reserved for the Company, and MNSP has the exclusive right to the next 600 gpm of capacity.  Pursuant to this Agreement, the next capacity of the Well Facilities over 1200 gpm and up to 1800 gpm is reserved for the Company.  Subject to Section 3.1 above, the Company shall have the right to the first 900 gpm of capacity available from the Water Treatment Plant initially, and the first 1200 gpm of capacity if the Company shall expand the capacity of the Project.  With the prior written consent of the Company, others shall have the potential to use the remainder of available capacity.  The City may develop and sell any unused or surplus capacity without restrictions other than the following:

 

4.2.1         Any supply contract with a third party shall be made on a secondary and interruptible basis, such that should the City be unable to meet the capacity requirements of the Company defined above, any water sales to secondary users must cease until sufficient excess capacity has been restored; and

 

4.2.2         During the term of this Agreement, the City shall not enter into supply contracts to potable water users, including Red Rock Rural Water or the Cities of Okabena and Brewster, or other cities, without first securing the written approval of the Company, which approval may be withheld or conditioned in its discretion.

 

All amounts received the by the City from sale of such unused or excess capacity may be used by the City without restriction.

 

4.3            Debt service on the Bonds shall be paid from the Assessments and other net revenues of the Water Treatment Plant.  The Company acknowledges and agrees that the market value of its property, including the Project, will increase by an amount at least equal to the entire cost of the Water Treatment Plant.

 

4.4            All Water Treatment Plant Operating Costs shall be borne by the Company in each calendar year.

 

4.5            During the term of this Agreement, the Company shall purchase all of its treated water supply exclusively from the City, and shall refrain from developing alternate water sources or purchasing water from any other party, except in the situation that the Water Treatment Plant is not capable, or ceases to be capable, of producing water in the volumes contemplated by this Agreement.

 

4.6            The Water Treatment Plant may not be capable, or may cease to be capable, of producing treated water in the volumes contemplated by this Agreement.  The City and County shall have no duty or responsibility to arrange to supply water

 

5



 

which will be treated at the Water Treatment Plant from any source other than the Well Facilities and Well Property.

 

5.              Design and Construction of Water Treatment Plant~ City and County Ownership~ Payments by the Company .

 

5.1            The Company shall cooperate fully in the City’s efforts to obtain all necessary licenses, permits, governmental approvals and consents for the construction of the Water Treatment Plant, including any necessary easements or permits from landowners or governmental units, including the County.

 

5.2            Intentionally Omitted.

 

5.3            The parties acknowledge that construction of the Water Treatment Plant has commenced, and construction and final testing of the Water Treatment Plant shall be diligently pursued and the City shall use commercially reasonable efforts to complete the Water Treatment Plant by January 15,2007, except that such completion date shall be extended by events of Force Majeure.  To the extent that any Water Treatment Plant Development Costs are not eligible for funding from the proceeds of the Bonds or Grants, or in the event that the available proceeds from the Bonds and Grants are insufficient to pay all Water Treatment Plant Development Costs, the Company shall, upon written notice from the City, promptly pay such amounts to or as directed by the City.

 

5.4            During the term of this Agreement, the Water Treatment Plant shall remain physically separate from, and shall not be connected to, the existing potable water well, water treatment and distribution system of the City.  The Company shall make the following payments regardless of actual treated water use:

 

5.4.1        Payments of the Assessments as part of the Company’s payment of its ad valorem real estate taxes.

 

5.4.2        All Water Treatment Plant Operating Costs, monthly or more frequently as and when required.

 

5.4.3        Monthly in equal installments over 24 months, commencing January 15, 2007, the Company shall pay to the County an amount which aggregates to one (1) year’s debt service on the Bonds, which shall be returned to the Company if and to the extent it remains after final payment in full of the Bonds, on the condition that the Company has made all payments required of it under this Agreement.

 

5.4.4        Upon demand of the City for extraordinary maintenance expenses of the Water Treatment Plant, the Company shall pay the amount of such extraordinary maintenance expenses.

 

5.5            Under the Joint Powers Agreement, the City and County will co-own the Water Treatment Plant.

 

6



 

5.6            Intentionally Omitted.

 

5.7            If this Agreement has terminated and not been replaced as contemplated by Section 20.1, the Company shall have the option to purchase the Water Treatment Plant from the City and County for its fair market value at the time, if such sale is approved by the State of Minnesota if such approval is required by law at the time.  The parties hereto recognize that if the state bonds which financed one of the Grants are outstanding at the time of such purchase by the Company, state law provides a procedure for, and conditions on, the sale of the Water Treatment Plant, and payments related to the sale of the Water Treatment Plant may need to be made by the City to the State of Minnesota.

 

6.              Intentionally Omitted .

 

7.              Other Obligations .  Nothing herein shall affect any other obligations of the parties hereto, and the development of the Water Treatment Plant shall not impact any obligations of the parties under any previous financing or otherwise, including the 2003 Agreement.  There has been no conversion of the entire water system from untreated to treated water by mutual agreement of all parties to the 2003 Agreement.

 

8.              City to Furnish Cost Data~ Audit Rights of the Company .

 

8.1            The City shall furnish the Company, not less often than annually, detailed accounting records detailing the Water Treatment Plant Operating Costs and the administrative fees required by this Agreement.

 

8.2            The Company may, at its expense, cause an audit of records related to Water Treatment Plant Operating Costs, administrative fees, or any other costs borne by the Company hereunder, such audit to be performed by an independent certified public accountant, and in a manner that is not disruptive to ordinary operations of the City.  A copy of any report of such auditor shall be furnished to the City.

 

9.              Default, Cure and Early Termination .

 

9.1            If any party fails to comply with any of the provisions of this Agreement, any other party may provide notice of default by sending written notice of default to the defaulting party, with a copy to all other parties.  The notice of default shall begin a 90-day cure period.  If the defaulting party fails to cure the default before the expiration of the cure period, any or all of the non-defaulting parties may commence an action against the defaulting party to recover damages suffered or incurred (subject, however, to the limitations contained in Section 16 hereof) or to compel the defaulting party’s performance of this Agreement in an appropriate equitable proceeding.  Subject to the provisions of Section 9.2 hereof, no party to this Agreement shall have the right to terminate this Agreement on account of the default by any other party.

 

9.2            Without limiting any other right or remedy hereunder, in the event of a default by the Company under this Agreement, the City or County may terminate or suspend

 

7



 

water service to such defaulting party (and sell such water as excess or unused water) unless and until such default is cured to the reasonable satisfaction of the City or County.

 

10.            No Mortgage or Security Interest to the City and County .  The Company shall not provide the City and County a mortgage or security interest in the Project.  The Assessments are enforceable by a statutory tax lien.

 

11.            Representations and Warranties .  The Company represents and warrants to the City and County that: this Agreement has been duly and validly authorized and executed by it; this Agreement does not violate any provision of its articles, bylaws, or any other document, instrument or agreement applicable to it or its property; and this Agreement is fully enforceable against it in accordance with its terms.

 

12.            Acknowledgments .  The Company acknowledges and agrees that the City and County have made no representations or warranties of any type or kind: (a) that the Water Treatment Plant can be constructed in accordance with applicable laws, rules, regulations, licenses and permits; (b) that the contracts for construction, and the applicable contractors, are sufficient and capable to construct the Water Treatment Plant to meet the needs of the Company; (c) with respect to costs of construction, operation, maintenance and replacement of the Water Treatment Plant; or (d) that the Water Treatment Plant, or the quantity or quality of treated water available by operation thereof, will meet the needs of the Project, or will be available at any particular date.

 

13.            Resolutions and Opinions .  Concurrently with the execution of this Agreement, the Company will provide the City and County with resolutions of its governing body authorizing and approving the execution of this Agreement, and a legal opinion of outside legal counsel opining to such matters as the City and County and their legal counsel shall require.

 

14.            Unconditional Payments .  The payment obligations of the Company hereunder are absolute and unconditional, and shall not be affected, excused or delayed for any reason whatsoever including, but not limited to: (a) negligence, failure or omission by the City, the County or any of their respective employees or representatives; (b) any default or other failure of the applicable contractor to complete construction of the Water Treatment Plant in a timely manner or in accordance with the requirements of the applicable construction contract or applicable laws, rules, regulations, licenses or permits; (c) any default or other failure of the Company to make any payments or take any actions required by this Agreement; or (d) the amount of water capable of being treated by the Water Treatment Plant.

 

15.            Modification; Interest; Attorney’s Fees .  This Agreement can only be modified or amended, or any provision waived, by written instrument duly executed by all parties.  Any amounts not paid when due shall bear interest at the rate of eight percent (8%) per annum until paid.  In the event that any party is required to commence legal action to enforce its rights under this Agreement, and in the event that it is the prevailing party in

 

8



 

such action, it shall be entitled to recover its reasonable costs and expenses (including legal fees).

 

16.            Limitation of Liability .

 

16.1          IN NO EVENT SHALL THE CITY OR COUNTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES OF ANY TYPE OR KIND, REGARDLESS OF WHETHER THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

16.2          THE COMPANY AGREES THAT THE CITY AND COUNTY’S COLLECTIVE LIABILITY HEREUNDER FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, SHALL NOT EXCEED THE WATER TREATMENT PLANT OPERATING COST PAYMENTS MADE BY THE COMPANY HEREUNDER IN THE PRECEDING TWELVE (12) MONTH PERIOD.

 

16.3          The Company shall be subrogated to the rights of the City and County with respect to claims arising out of the design, engineering, construction and acquisition of the Water Treatment Plant.

 

17.            Force Majeure .

 

17.1          Any delay of any party to perform its obligations hereunder shall be excused if, and to the extent that, it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, such as by way of example and not by way of limitation, acts of God, actions by any governmental authority (whether valid or invalid), failure to obtain necessary licenses or permits, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, material shortages, or court injunction or order.  No such event or occurrence shall excuse or delay any obligation to pay amounts due under this Agreement.

 

17.2          During the period of such delay or failure to perform by a party, such party shall provide all other parties with prompt written notice of such delay (including a description of the cause of the event or circumstance, an estimate of the duration of the delay and a statement regarding the remedial steps that are being undertaken to resume performance.)

 

18.            Assignment .  This Agreement or any part of this Agreement may not be assigned or transferred by any party without the prior written consent of all other parties hereto.  Any assignment or transfer without such consent shall be null and void.

 

19.            Notices and Demands .

 

19.1          Except as otherwise expressly provided in this Agreement, any notice, demand or other communication under this Agreement by any party shall be sufficiently

 

9



 

given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally as follows:

 

If to the Company:

 

Heron Lake BioEnergy, LLC
201 Tenth St.
Heron Lake MN 56137

 

If to the City:

 

City of Heron Lake
P.O. Box 315, 312 10th Street
Heron Lake MN 56137-0315

 

If to the County:

 

County of Jackson, Minnesota
Attn: Janice Fransen, County Coordinator
County Attorney, Jackson County
Jackson County Courthouse
405 4th Street
Jackson MN 56143-1588

 

or at such other address with respect to any party as such party may, from time to time, designate in writing.

 

20.            Miscellaneous.

 

20.1          This Agreement shall have a term of thirty (30) years.  Not later than the twenty-ninth (29th) anniversary of the date hereof, the parties hereto shall commence negotiations in good faith and with reasonable diligence to replace this Agreement with a further agreement or agreements on the subjects set forth herein.

 

20.2          Minnesota law governs this Agreement.

 

20.3          This Agreement shall bind and apply to the respective parties hereto and to their successors and permitted assigns.

 

20.4          This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, oral or written, including the Repayment Agreement; provided, however, that the provisions of Section 3 of the Repayment Agreement shall survive and remain in full force and effect.

 

20.5          The headings in this Agreement are for the convenience of the parties and shall not constitute a part of this Agreement.

 

20.6          This Agreement may be executed in counterparts.

 

10



 

IN WITNESS WHEREOF , the parties have executed this Industrial Water Supply Treatment Agreement as of the day and year first above-written.

 

 

CITY OF HERON LAKE, MINNESOTA, a
Minnesota municipal corporation

 

 

 

 

 

By

/s/ John Hay

 

Its

Mayor

 

 

 

 

 

 

 

By

/s/ Judy Haberman

 

Its

City Clerk

 

 

Industrial Water Supply Treatment Agreement.

 

11



 

 

COUNTY OF JACKSON, MINNESOTA, a
Minnesota municipal corporation

 

 

 

 

 

By

/s/ Roger V. Ringkob

 

Its

Chair of County Board

 

 

 

 

 

 

 

And by

/s/ Janice Fransen

 

Its

County Coordinator

 

 

 

 

Approved as to form and content:

 

 

 

 

 

 

 

By

/s/ Robert C. O’Connor

 

 

County Attorney

 

 

Industrial Water Supply Treatment Agreement.

 

12



 

 

HERON LAKE BIOENERGY, LLC

 

 

 

 

 

By

/s/ Robert J. Ferguson

 

Its

President

 

 

Industrial Water Supply Treatment Agreement.

 

13



 

EXHIBIT A

 

Water Treatment Plant Property

 

A-1



 

EXHIBIT B

 

WELL PROPERTY

 

That part of the Southwest Quarter (SWl/4) (i.e. also being known as part of Lot 5, State Subdivision of the SW1/4 16-104-37), of Section Sixteen (16), Township One Hundred Four (104) North, Range Thirty-seven (37) West, Jackson County, Minnesota, described as follows:  Commencing at an existing iron monument at the southwest corner of the SW1/4 of said Section 16; thence north 00 degrees 37 minutes 05 seconds east, bearings based on Jackson County Coordinate System, along the west line of said SWl/4, a distance of 869.00 feet to the POINT OF BEGINNING; thence continuing north 00 degrees 37 minutes 05 seconds east, along said west line, a distance of 400.00 feet; thence north 89 degrees 22 minutes 55 seconds east a distance of 412.00 feet; thence south 00 degrees 37 minutes 05 seconds west, parallel with the west line of said SW1/4, a distance of 400.00 feet; thence north 89 degrees 22 minutes 55 seconds west a distance of 412.00 feet to the point of beginning, containing 3.78 acres.

 

B-1



 

EXHIBIT C

 

Bonds

Use of Proceeds and Repayment Schedule

 

Uses of Funds

 

 

 

 

 

Construction & Engineering

 

 

 

3,891,392

 

Land Acquisition

 

 

 

310,000

 

Contingency

 

 

 

155,997

 

Total Project Costs

 

 

 

4,357,389

 

Underwriter’s Discount Allowance

 

1.2500

%

44,375

 

Fiscal Fee

 

 

 

13,000

 

Bond Counsel

 

 

 

10,000

 

Pay Agent/Registrar

 

 

 

500

 

Printing & Misc

 

 

 

1,000

 

Rating Agency Fee

 

 

 

6,500

 

Capitalized Interest

 

 

 

137,300

 

 

 

 

 

4,570,064

 

 

 

 

 

 

 

Sources of Funds

 

 

 

 

 

Bond Issue

 

 

 

3,550,000

 

Grant/Loan

 

 

 

1,000,000

 

Construction Fund Earnings

 

 

 

20,064

 

 

 

 

 

4,570,064

 

 

David Drown and Associates, Inc.

 

Exhibit 1

 

C-1



 

EXHIBIT D

 

Water Treatment Plant Development Costs

 

Cost Pro Forma with Sources and Uses

 

Jackson County/Heron Lake, Minnesota

Water Treatment Plant Project

 

Base Bid

 

$

2,759,900.00

 

Engineering

 

$

245,000.00

 

Base Bid Contingency

 

$

88,497.00

 

Land Acquisition

 

$

310,000.00

 

Change Order #1

 

$

211,492.00

 

Lime & Soda Project

 

$

675,000.00

 

Lime & Soda Contingency

 

$

67,500.00

 

 

 

 

 

TOTAL:

 

$

4,357,389.00

 

 

D-1



 

EXHIBIT E

 

Water Treatment Plant Plans and Specifications

 

and Standards

 

E-1



 

REPAYMENT AGREEMENT

 

This Agreement is entered into as of this 4th day of April, 2006, by and among the City of Heron Lake, Minnesota (the “City”), the County of Jackson, Minnesota (the “County”, and jointly with the City the “Municipalities”), and Heron Lake BioEnergy, LLC (the “Company”).

 

WITNESSETH :

 

WHEREAS, the Company is currently constructing an ethanol production facility in the City of Heron Lake, Minnesota (the “Facility”), which will be owned and operated by the Company; and

 

WHEREAS, operation of the Facility requires approximately 1400 gallons of treated water per day, which the Company will obtain from a well located in the City’s limits and owned by the City; and

 

WHEREAS, the Company is the successor to Generation II Ethanol, LLC, and has entered into a contract with the City, County and Minnesota Soybean Processors relating to the water from that well; and

 

WHEREAS, the Company has requested that the Municipalities construct a water treatment plant in or near the City (the “Water Treatment Plant”) and associated facilities sufficient to treat water from such well for delivery to the Facility in accordance with the specifications developed by the Company, the cost of which would be paid from bonds issued by the County and the debt service payments on which bonds would be made from payments received by the Municipalities (1) from the Company under a long-term water treatment agreement and (2) from costs assessed by the City against the Facility; and

 

WHEREAS, the Municipalities are currently considering this request and are holding various discussions with representatives of the Company about various aspects of the project; and

 

WHEREAS, the Company desires that construction of the Water Treatment Plant commence immediately in order to ‘obtain the necessary supply of treated water to commence operation of the Facility on its desired timetable; and

 

WHEREAS, the City has put out for bid, in compliance with applicable public bidding requirements, the contract for construction of the Water Treatment Plant (the “Water Treatment Plant Construction Contract”), and the City wishes to accept the bid of                                            (the “Water Treatment Plant Contractor”); and

 

WHEREAS, in order to induce the City to enter into the Water Treatment Plant Construction Contract and the City and County to enter into a Joint powers agreement for the Water Treatment Plant, the Company has agreed to make all payments required under the Water Treatment Plant Construction Contract and to make any additional payments required to construct the Water Treatment Plant in compliance with all applicable laws, rules, regulations, licenses and permits, if the City, County and Company fail to reach agreement for the long term operation and maintenance of the Water Treatment Plant and supply of treated water; and

 

1



 

WHEREAS, the parties are entering into this Agreement in order to memorialize their understanding with respect to the above described matters:

 

NOW, THEREFORE, in consideration of the foregoing premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows:

 

1.             The Company agrees to unconditionally and promptly pay: (a) all amounts which the City or County is required to pay under the Water Treatment Plant Construction Contract; and (b) all additional amounts which the City, County and Water Treatment Plant Contractor mutually agree (regardless of whether a change order to the Water Treatment Plant Construction Contract has been executed) are required to construct the Water Treatment Plant in compliance with all applicable laws, rules, regulations, licenses and permits.  Such payments shall be made directly to the City or as directed, in writing, by the City.

 

2.             The Company further agrees to cause a qualified representative of the Company to actively monitor the construction of the Water Treatment Plant in order to determine that the Water Treatment Plant is being constructed in accordance with the Water Treatment Plant Construction Contract, and in accordance with all laws, rules, regulations, licenses and permits.

 

3.             The Company hereby represents and warrants to the Municipalities that: (a) it has obtained all necessary studies of the capacity, quality, cost of construction, cost of operation and maintenance and durability of the Water Treatment Plant that the Company desires; (b) this Agreement has been duly and validly authorized and executed by the Company; (c) this Agreement does not violate any provision of the Company’s articles, bylaws, or any other document, instrument or agreement applicable to the Company or its property; and (d) this Agreement is fully enforceable against the Company in accordance with its terms.

 

4.             The Company acknowledges and agrees that the Municipalities have made no representations or warranties of any type or kind: (a) that the Water Treatment Plant can be constructed in accordance with applicable laws, rules, regulations, licenses and permits; (b) that the Water Treatment Plant Construction Contract and the Water Treatment Plant Contractor are sufficient and capable to construct the Water Treatment Plant to meet the needs of the Company; (c) with respect to costs of construction, operation, maintenance and replacement of the Water Treatment Plant; or (d) that the Water Treatment Plant or the quantity or quality of water available by operation of the afore-described well, pump and Water Treatment Plant will meet the needs of the Facility.

 

5.             The Company further acknowledges and agrees that: (a) the Municipalities have no obligation to finance construction of the afore-described well, pump and Water Treatment Plant or provide any other assistance of any type or kind to the Company, the project or the Water Treatment Plant; and (b) upon construction of the Water Treatment Plant, the Municipalities have no obligation to operate the Water Treatment Plant and make water available to the Company without further written agreement acceptable to the Municipalities covering rates for supply of water, repair and maintenance, and setting forth the responsibility of the Company for all costs of operation, capital replacement and legal compliance.

 

2



 

6.             Concurrently with the execution of this Agreement, the Company will provide the Municipalities with resolutions of its governing body authorizing and approving the execution of this Agreement, and a legal opinion of its outside legal counsel opining as to such matters as the Municipalities and their legal counsel shall require.

 

7.             The payment obligations of the Company hereunder are absolute and unconditional, and shall not be affected, excused or delayed for any reason whatsoever including, but not limited to: (a) negligence, failure or omission by the Municipalities or any of their employees or representatives, or (b) any default or other failure of the Water Treatment Plant Contractor to complete construction of the Water Treatment Plant in a timely manner or in accordance with the requirements of the Water Treatment Plant Construction Contract or applicable laws, rules, regulations, licenses or permits.

 

8.             This Agreement sets forth the entire understanding of the parties with respect to the matters covered hereby, and supersedes any and all prior or contemporaneous discussions, negotiations or agreements.  This Agreement can only be modified or amended, or any provision waived, by written instrument duly executed by all parties.  Any amounts not paid when due shall bear interest at the rate of eight percent (8%) per annum until paid.  In the event that any party is required to commence legal action to enforce its rights under this Agreement, and in the event that it is the prevailing party in such action, it shall be entitled to recover its reasonable costs and expenses (including legal fees).

 

9.             When the Company has made all the payments required by this Agreement, the City and County shall transfer ownership of the Water Treatment Plant to the Company on an “as is, where is” basis by quitclaim deed.

 

10.           The parties hereto contemplate that this agreement may be terminated if they enter into a separate later agreement for the long term operation and maintenance of the Water Treatment Plant and for the supplying of treated water.

 

3



 

IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written.

 

 

COUNTY OF JACKSON, MINNESOTA

 

 

 

 

 

By

/s/ Roger V. Ringkob

 

Its

Chair of the County Board

 

 

 

 

 

 

 

And by

/s/ Janice Fransen

 

Its

County Coordinator

 

 

 

 

Approved as to form and content:

 

 

 

 

 

 

 

By

/s/ Robert C. O’Connor

 

 

County Attorney

 

 

Repayment Agreement by and among City of Heron Lake, Minnesota, County of Jackson, Minnesota, and Heron Lake BioEnergy, LLC.

 

4



 

 

CITY OF HERON LAKE, MINNESOTA

 

 

 

 

 

 

 

By

/s/ John Hay

 

Its

Mayor

 

 

 

 

 

 

 

And by

/s/ Judy Haberman

 

Its

Clerk-Treasurer

 

 

Repayment Agreement by and among City of Heron Lake, Minnesota, County of Jackson, Minnesota, and Heron Lake BioEnergy, LLC.

 

5



 

 

HERON LAKE BIOENERGY, LLC

 

 

 

 

 

By

/s/ Robert J. Ferguson

 

Its

President

 

Repayment Agreement by and among City of Heron Lake, Minnesota, County of Jackson, Minnesota, and Heron Lake BioEnergy, LLC.

 

6


EXHIBIT 10.12

 

CERTAIN INFORMATION INDICATED BY [***] HAS BEEN DELETED FROM THIS EXHIBIT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2.

 

 

Standard Form of Agreement Between

Owner and Design-Builder - Lump Sum

 

This document has important legal consequences. Consultation with

an attorney is recommended with respect to its completion or modification.

 

This AGREEMENT is made as of the 28th day of September in the year of 2005, by and between the following parties, for services in connection with the Project identified below.

 

OWNER:

(Name and address)

 

Heron Lake BioEnergy, LLC

201 10 th Street

PO Box 198

Heron Lake, MN 56137

 

DESIGN-BUILDER:

(Name and address)

 

Fagen, Inc.

501 W. Highway 212

P. O. Box 159

Granite Falls, MN 56241

 

PROJECT:

(Include Project name and location

as it will appear in the Contract

Documents)

 

50 MGY Coal-fired Dry Grind Ethanol Plant

 

In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein.

 



 

Article 1

 

Scope of Work

 

1.1           Design-Builder shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Work described in and reasonably inferable from the Contract Documents.

 

Article 2

 

Contract Documents

 

2.1           The Contract Documents are comprised of the following:

 

.1              All written modifications, amendments and change orders to this Agreement issued in accordance with DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (1998 Edition) (“General Conditions of Contract”);

 

.2              This Agreement, including all exhibits and attachments, executed by Owner and Design-Builder, said Exhibits being:

 

Exhibit A - Performance Guarantee Criteria – (2) Pages;

Exhibit B - General Project Scope - (3) Pages;

Exhibit C –Owner’s Responsibilities - (7) Pages;

Exhibit D – License of Proprietary Property of ICM, Inc. – (6) Pages;

Exhibit E – Start-up Services to be Provided to Owner (1) Page;

Exhibit F – Project Schedule;

Exhibit G – Letter Agreement between Owner and Design-Builder;

Exhibit H – Letter Agreement #2 between Owner and Design-Builder.

 

.3              Written Supplementary Conditions, consisting of three pages, to the General Conditions of Contract;

 

.4              The General Conditions of Contract;

 

.5              Preliminary Construction Documents prepared by Design-Builder; and

 

.6              The following other documents, if any:  N/A

 

Article 3

 

Interpretation and Intent

 

3.1           The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event

 

2



 

of any inconsistency, conflict, or ambiguity between or among the Contract Documents, the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof.

 

3.2           Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the Supplementary Conditions and General Conditions of Contract.

 

3.3           The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein. The Contract Documents supercede any prior letters of intent between the parties, and such letters of intent are now null and void. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents.

 

Article 4

 

Ownership of Work Product

 

4.1           Work Product . All drawings, specifications and other documents and electronic data furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including the copyrights thereto.

 

4.2           Owner’s Limited License Upon Payment in Full. Upon Owner’s payment in full for all Work performed under the Contract Documents, Design-Builder shall vest in Owner a limited license to use the Work Product in connection with Owner’s occupancy and repair of the Project and Design-Builder shall provide Owner with a copy of the “as built” plans, conditioned on Owner’s express understanding that its use of the Work Product and its acceptance of the “as built” plans is at Owner’s sole risk and without liability or legal exposure to Design-Builder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”), provided, however, that any performance guarantees and warranties (of equipment or otherwise) shall remain in effect according to the terms of this Agreement. Owner shall be entitled to use the Work Product for the purpose relating to this Project, but shall not be entitled to use the Work Product on any other projects, including expansion of this Project. The limited license to use the Work Product granted herein by Design-Builder to Owner shall be governed by and construed in accordance with the same terms and provisions contained in the License Agreement between Owner and ICM, attached hereto as Exhibit D and incorporated herein by reference thereto, except (i) references in such License Agreement to ICM and Proprietary Property shall refer to Design-Builder and Work Product, respectively, (ii) the laws of the State of Minnesota shall govern such limited license, and (iii) the arbitration provisions contained in Article 10 of the General Conditions shall apply to any breach or threatened breach of Owner’s duties or obligations under such limited license other than Design-Builder shall have the right to seek injunctive relief in a court of competent jurisdiction against Owner or its Representatives for any such breach or threatened breach. Design-Builder is utilizing certain proprietary property and information of ICM, Inc., a Kansas corporation (“ICM”), in the design and construction of the Project, and Design-Builder may incorporate proprietary property and information of ICM into the Work Product. Owner’s use of the proprietary property and information of ICM shall be governed by the terms and provisions of the License Agreement between Owner and ICM, attached hereto as Exhibit D, to be executed by such parties in connection with the execution of this Agreement. The preceding last three sentences of this paragraph also apply to Articles 4.3 and 4.4 below.

 

4.3           Owner’s Limited License Upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate. If Owner terminates the Project for its convenience as set forth in Article 8 hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, Design-Builder shall, then upon Owner’s payment in full of the amounts due Design-Builder under the Contract Documents, vest in Owner a limited license to use the Work Product to complete the Project and subsequently occupy and repair the Project, subject to the following:

 

3



 

.1              Use of the Work Product is at Owner’s sole risk without liability or legal exposure to any Indemnified Party; provided, however, that any “pass through” warranties regarding equipment or express warranties regarding equipment provided by this Agreement shall remain in effect according to their terms; and

 

.2              If the termination for convenience is by Owner or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, then Owner agrees to pay Design-Builder the additional sum of One Million Dollars ($1,000,000.00) as compensation for the limited right to use the Work Product (completed “as is” on the date of termination) in accordance with this Article 4.

 

4.4           Owner’s Limited License Upon Design-Builder’s Default. If this Agreement is terminated due to Design-Builder’s default pursuant to Section 11.2 of the General Conditions of Contract and (i) it is determined that Design-Builder was in default and (ii) Owner has fully satisfied all of its obligations under the Contract Documents through the time of Design-Builder’s default, then Design-Builder shall grant Owner a limited license to use the Work Product in connection with Owner’s completion and occupancy and repair of the Project. This limited license is conditioned on Owner’s express understanding that its use of the Work Product is at Owner’s sole risk and without liability or legal exposure to any Indemnified Party; provided, however, that any “pass through” warranties regarding equipment or express warranties regarding equipment provided by this Agreement shall remain in effect according to their terms. This limited license would grant Owner the ability to repair the Project at Owner’s discretion.

 

4.5           Owner’s Indemnification for Use of Work Product. If Owner uses the Work Product under any of the circumstances identified in this Article 4, Owner shall defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys’ fees, arising out of or resulting from the use of the Work Product; provided, however, that any “pass through” warranties regarding equipment or express warranties regarding equipment provided by this Agreement shall remain in effect according to their terms.

 

Article 5

 

Contract Time

 

5.1           Date of Commencement. The Work shall commence within five (5) days of Design-Builder’s receipt of Owner’s written Notice to Proceed (“Date of Commencement”) unless the parties mutually agree otherwise in writing. The parties agree that a valid Owner’s Notice to Proceed cannot be given until: 1) Owner has title to the real estate on which the project will be constructed; 2) a Letter of Commitment for all necessary financing to construct the project is received; 3) the Phase I and Phase II site work required of Owner, as described in Exhibit ”C” is completed along with Phase II redline drawings; however, Design-Builder will consider accepting Owner’s Notice to Proceed after the site is graded and the road/laydown is completed and rocked; 4)  the air permit(s) and/or other applicable local, state or federal permits necessary so that construction can begin, have been obtained; 5) it appears reasonable that financial close on the Letter of Commitment will occur within sixty (60) days of the issuance of said Notice to Proceed; and 6) Owner shall execute a sales tax exemption certificate and provide to Design-Builder. Design-Builder must receive a valid Owner’s Notice to Proceed within 270 days of the signing of this Agreement; otherwise, the Contract Price referred to in Section 6.1 is subject to a price increase.

 

5.2           Substantial Completion and Final Completion

 

4



 

5.2.1        Substantial Completion of the entire Work shall be achieved no later than four hundred eighty-five (485) calendar days after the Date of Commencement. However, any delays caused by the modification of Owner’s construction air emission permit as referenced in Section 11, are hereby specifically excluded from the 485 calendar days specified in this section.

 

5.2.2        Interim milestones and/or Substantial Completion of identified portions of the Work shall be achieved as described in Exhibit F. The Scheduled Substantial Completion date will likewise be extended a corresponding amount of days for each day Owner exceeds the deliverable timeframes referred to in Exhibit F.

 

5.2.3        Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable, but not later than sixty (60) days following issuance of the Certificate of Substantial Completion.

 

5.2.4        All of the dates set forth in this Article 5 (“Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract. Specifically, if delays in the Contract Time occur because of delay in the delivery of materials or equipment that is beyond the control of Design-Builder, the Contract Time will be adjusted, without penalty to Design-Builder, pursuant to Sections 8.2.1 and 8.2.2 of the General Conditions of Contract.

 

5.3           Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents.

 

5.4           Early Completion Bonus.

 

5.4.1        If Substantial Completion is attained within 470 days after the Date of Commencement, Owner shall pay Design-Builder at the time of Final Payment under Section 7.3  hereof an early completion bonus of $10,000.00 per day, for each day that Substantial Completion occurred in advance of said 470 days.

 

5.4.2        In all events, payment of said bonus, if applicable, at the time of Final Payment is subject to release of funds by senior lender. If senior lender does not allow release of funds at the time of Final Payment to pay said early completion bonus in full, any unpaid balance shall be converted to an unsecured Promissory Note payable by Owner to Design-Builder, accruing interest at ten percent (10%), as such rate may change from time to time. On each anniversary of the Note, any unpaid accrued interest shall be converted to principal and shall accrue interest as principal thereafter. Owner shall pay said Promissory Note as soon as allowed by senior lender; in any event, the Note, plus accrued interest, shall be paid in full before Owner pays or makes any distributions to or for the benefit of its owners (shareholders, members, partners, etc.). All payments shall be applied first to accrued interest and then to principal.

 

5.5           Liquidated Damages.

 

5.5.1        Design-Builder understands that if Substantial Completion is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not attained within 500 days after the Date of Commencement due to unexcused delay (delay due to the modification of the construction air emission permit, as referenced in Article 11 and Exhibit G, is specifically considered an excused delay and is therefore not subject to the calculation of liquidated damages), Designer-Builder shall pay Owner Twenty Thousand Dollars ($20,000.00) as liquidated damages for each day that Substantial Completion extends beyond 500 days. Owner, at its discretion, may elect to offset any such liquidated damages from any retainage or any amounts owed by Owner to Design Builder. The liquidated damages provided herein shall be in lieu of all

 

5



 

liability for any and all extra costs, losses, expenses, claims, penalties and any other damages, whether special or consequential, and of whatsoever nature incurred by Owner which are occasioned by any delay in achieving Substantial Completion.

 

5.5.2        Design-Builder’s total aggregate liability for liquidated damages under section 5.5.1, for failure to meet the performance and emission warranties under Article 11, and for liability under Exhibit H, shall be capped at and shall not exceed $10.0 Million.

 

Article 6

 

Contract Price

 

6.1           Contract Price. Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum of Seventy-six million, six hundred eighty-six thousand three hundred eighty-two and 00/100 Dollars ($76,686,382.00) (“Contract Price”), subject to adjustments made in accordance with the General Conditions of Contract. The Contract Price assumes the use of Wyoming/Montana-sourced coal as the energy source as further described in Exhibit C and referred to in Exhibit A. Owner acknowledges that it has taken no action which would impose a union labor or prevailing wage requirement on Design-Builder, Owner or the Project. The Parties acknowledge and agree that if after the date hereof, a change in Applicable Law or a Governmental Authority acting pursuant to a change in Applicable Law shall require Design-Builder to employ union labor or compensate labor at prevailing wages, the Contract Price shall be adjusted upwards to include any increased costs associated with such labor or wages. Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements. If Owner directs Design Builder to claim an exemption from such taxes for all or part of the Work (over and above what is generally available under capital equipment exemptions etc), then, subject to Section 7.2 of the General Conditions of Contract, Owner and Design-Builder will enter into a Change Order (pursuant to Article 9 of the General Conditions of Contract) to adjust the Contract Price to pass along any such savings to Owner.

 

6.2           Markups for Changes. The parties agree that changes shall not occur pursuant to Sections 9.4.1.3 or 9.4.1.4 of the General Conditions of Contract, but may occur pursuant to the other provisions therein.

 

Article 7

 

Procedure for Payment

 

7.0           Payment at Financial Close . As part of the Contract Price, Owner shall pay Design-Builder Five Million Dollars ($5,000,000) as soon as allowed by its organizational documents, the Escrow Agreement and any other relevant agreements or laws as a mobilization fee. Provided, however, that said payment, if not made earlier, shall be paid at Financial Close. Financial Close is defined as Owner executing final loan documents obtaining all necessary financing to construct the project and funds are available to pay disbursements. Said Five Million ($5,000,000) Dollar payment shall be subject to the retainage as provided by Article 7.2.1.

 

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7.1           Progress Payments

 

7.1.1        Design-Builder shall submit to Owner on the twenty-fifth ( 25 th ) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract.

 

7.1.2        Owner shall make payment within ten (10) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract.

 

7.2           Retainage on Progress Payments

 

7.2.1        Owner will retain ten percent ( 10%) of each payment provided, however, that when fifty percent (50%) of the Work ($38,343,191.00 aggregate payment) has been completed by Design-Builder, Owner will not retain any additional amounts from Design-Builder’s subsequent payments, unless there is less than $3,834,319.10 total retainage. Owner will also reasonably consider reducing retainage for Subcontractors completing their work early in the Project.

 

7.2.2        Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion, provided that such payment shall only be made if Design-Builder has met the Performance Guarantee Criteria listed in Exhibit A.

 

7.3           Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design-Builder’s properly submitted and accurate Final Application for Payment within thirty (30) days after Owner’s receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract and Design-Builder has met the Performance Guarantee Criteria listed in Exhibit A.

 

7.4           Interest. Payments which are due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear interest commencing five (5) days after payment is due at the rate of eighteen percent (18%) per annum.

 

7.5           Record Keeping and Finance Controls. With respect to changes in the Work performed on a cost basis by Design-Builder pursuant to the Contract Documents, Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access from time to time, upon reasonable notice, to Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to changes in the Work performed on a cost basis in accordance with the Contract Documents, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment.

 

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Article 8

 

Termination for Convenience

 

8.1           Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following:

 

.1              All Work executed, and for proven loss, cost or expense in connection with the Work;

 

.2              The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and

 

.3              Overhead and profit margin in the amount of fifteen percent ( 15 %) on the sum of items .1 and .2 above, except that overhead and profit shall not be due regarding amounts due in settlement of terminated contracts with subcontractors and design consultants.

 

8.2           In addition to the amounts set forth in Section 8.1 above, Design-Builder shall be entitled to receive all retainage withheld by Owner.

 

8.3           If Owner terminates this Agreement pursuant to Section 8.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner’s rights to use the Work Product shall be as set forth in Section 4.3 hereof.

 

Article 9

 

Representatives of the Parties

 

9.1           Owner’s Representatives

 

9.1.1        Owner designates the individual listed below as its Senior Representative (“Owner’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract:  (Identify individual’s name, title, address and telephone numbers)

 

TBD

 

9.1.2        Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract:  (Identify individual’s name, title, address and telephone numbers)

 

TBD

 

9.2           Design-Builder’s Representatives

 

9.2.1        Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract:  (Identify individual’s name, title, address and telephone numbers)

 

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Roland “Ron” Fagen, CEO and President

501 W. Highway 212

P.O. Box 159

Granite Falls, MN 56241

Telephone:  (320) 564-3324

 

9.2.2        Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract:  (Identify individual’s name, title, address and telephone numbers)

 

Aaron Fagen

Chief Operating Officer

501 W. Highway 212, PO Box 159

Granite Falls, MN 56241

Telephone:  (320) 564-3324

 

Article 10

 

Bonds and Insurance

 

10.1         Insurance. Design-Builder shall procure in accordance with Article 5 of the General Conditions of Contract the following insurance coverage: A certificate of insurance will be provided prior to starting construction. Policy limits shall be as follows:

 

Commercial General Liability:

 

 

 

 

 

 

 

General Aggregate

 

$

2,000,000

 

Products-Comp/Op AGG

 

$

2,000,000

 

Personal & Adv Injury

 

$

1,000,000

 

Each Occurrence

 

$

1,000,000

 

Fire Damage (Any one fire)

 

$

50,000

 

Med Exp (Any one person)

 

$

5,000

 

 

 

 

 

Automobile Liability:

 

 

 

Combined Single Limit

 

$

1,000,000

 

 

 

 

 

Excess Liability – Umbrella Form

 

 

 

Each Occurrence

 

$

20,000,000

 

Aggregate

 

$

20,000,000

 

 

 

 

 

Workers Compensation and Employers’ Liability:

 

 

 

Statutory Limits:

 

 

 

Each Accident

 

$

1,000,000

 

Disease-Policy Limit

 

$

1,000,000

 

Disease-Each Employee

 

$

1,000,000

 

 

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Contractor’s Professional Liability Coverage:

 

 

 

Per Claim

 

$

5,000,000

 

Aggregate

 

$

5,000,000

 

 

Owner shall provide the following within 10 days of Design-Builder’s receipt of Owner’s Notice to Proceed:

 

·               Owner shall obtain a builder’s risk policy naming Owner as the insured, with Design-Builder as additional insured, in an amount not less than the Contract Price.

·               Owner shall also obtain Boiler and Machinery Insurance protecting Owner, Design-Builder, Design Consultants, Subcontracts and Subcontractors.

·               In addition, Owner shall obtain terrorism coverage as described by the Terrorism Risk Insurance Act of 2002.

 

Article 11

 

Other Provisions

 

11.1         Other provisions, if any, are as follows:

 

·       Performance Guarantee:  The Design-Builder guarantees the Criteria listed in Exhibit A. If there is a performance shortfall, Design-Builder will pay all design and construction costs associated with making the necessary corrections. Design-Builder retains the right to use its sole discretion in determining the method to remedy any performance related issues.

 

·       If Owner, for whatever reason, prevents Design-Builder from demonstrating the Performance      Guarantee Criteria within 30 days of Design-Builder’s notice that the Project is ready for Performance Testing, Design-Builder is thereby deemed to have fulfilled all of its Performance Guarantee obligations listed in Exhibit A.

 

·       Price Guarantee:  The Design-Builder guarantees the Contract Price for the Work delineated by the Contract Documents. Any and all price increases would require, in addition to Owner’s approval, the approval of Owner’s senior lender.

 

·       Winter Construction:  Owner shall have no responsibility for any winter construction related activities including, but not limited to, special material costs, sheltering, heating, and equipment rental, except that Owner shall pay all the reasonable costs incurred for frost removal including, but not limited to, equipment costs, equipment rental costs, and associated labor costs so that winter construction can proceed.

 

·       Design-Builder shall obtain or cooperate in obtaining a performance bond if such a bond is requested by Owner. If the bond is obtained by Design-Builder, Owner shall pay Design-Builder for the cost of the bond, plus pay Design-Builder a fee of 7.5%, said fee calculated by multiplying 7.5% on the cost of the bond. If purchased by Owner, Owner shall pay all costs of obtaining the bond.

 

·       Design-Builder warrants that within six (6) months following the date of Substantial Completion, the atmospheric emissions of the ethanol plant, taken as a whole, when operating at nameplate capacity meeting all performance guarantee criteria listed in Exhibit A (including but not limited to the drying of all DDGS to produce 11% moisture DDGS), shall meet the requirements of a “synthetic minor source” of air pollutants (1) as currently

 

10



 

prescribed, as of the date hereof, by the State of Minnesota Pollution Control Agency and (2) as necessary to maintain its designation and status as a “synthetic minor source” for purposes of the federal Clean Air Act and associated regulations adopted by the U.S. Environmental Protection Agency as currently prescribed as of the date hereof. Verification shall be provided by a written report from Design-Builder. If this warranty is not met, Design-Builder will pay all design, engineering, equipment, labor and construction costs associated with making the necessary corrections in order to meet the warranty, subject to Exhibit G. Design-Builder retains the right to use its sole discretion in determining the method to remedy the warranty related issues, subject to commercial reasonableness.

 

·       Owner acknowledges that Owner’s current air emission permit may require modifications prior to Design-Builder being able to construct certain process equipment and emission control devices. Construction or Equipment ordering delays due to such modification are the responsibility and expense of Owner as follows: (1) Owner shall be solely responsible for its own costs and expenses incurred by such delay, including attorneys fees; (2) Owner will issue Design-Builder a Change Order (pursuant to Article 9 of the General Conditions of Contract) for the time adjustment(s) necessitated by such delay and to reimburse Design-Builder for price increases on equipment (at cost) or increases in subcontractor costs necessitated by such delay. If such delay would require Design-Builder to demobilize and remobilize, Design-Builder and Owner will share in such costs under an agreed-upon in good faith Change Order issued pursuant to Article 9 of the General Conditions of Contract

 

·       To the fullest extent permitted by law, Owner hereby agrees to indemnify, defend and hold harmless Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly for any of them, and their officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and expenses incurred as a result of third party claims or actions brought against such indemnified party (other than claims or actions brought by any such indemnified party), including attorneys’ fees and expenses, arising out of or resulting from such modification to Owner’s current air emission permit.

 

·       Subject to Section 10.5.2 of the General Conditions of Contract, Owner agrees that Design-Builder shall not be liable for any consequential losses or damages resulting Owner’s requirement to modify its existing construction air emission permit, whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, including but not limited to losses of use, profits, business, reputation or financing.

 

In executing this Agreement, Design-Builder represents that it has the necessary financial resources to fulfill its obligations under this Agreement and has the necessary corporate approvals to execute this Agreement and perform the services described herein. Owner represents that it has the necessary organizational approvals to execute this Agreement; that Owner is seeking financing for the project and that Owner agrees to keep Design-Builder informed of Owner’s progress in obtaining commitments for and closing on such financing.

 

OWNER:

 

DESIGN-BUILDER:

 

 

 

Heron Lake BioEnergy, LLC

 

Fagen, Inc.

(Name of Owner)

 

(Name of Design-Builder)

 

 

 

 

 

 

(Signature)

 

(Signature)

 

 

 

 

 

Roland “Ron” Fagen

 

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(Printed Name)

 

(Printed Name)

 

 

 

 

 

CEO and President

(Title)

 

(Title)

 

 

 

Date:
 
Date:

 

12



 
EXHIBIT A

 

Performance Guarantee Criteria

 

Table 1

 

Criteria

 

Specification

 

Testing Statement

 

Documentation

Plant Capacity – fuel grade ethanol

 

Operate at a rate of 50 million gallons per year of denatured fuel grade ethanol meeting the specifications of ASTM 4806 based on 353 days of operation per calendar year and 4.76% denaturant.

 

Seven day performance test

 

Production records and a written report by Design-Builder.

 

 

 

 

 

 

 

Dried Distillers Grains with Solubles (DDGS)

 

Dry all DDGS to produce 11% moisture DDGS

 

Seven day performance test

 

Production records and written analysis by Design-Builder.

 

 

 

 

 

 

 

Corn to Ethanol Conversion ratio; [***]

 

Not be less than 2.80 denatured gallons of ethanol per bushel (56#) of corn

 

As determined by meter readings during a seven day performance test.

 

Production records and written analysis by Design-Builder.

 

 

 

 

 

 

 

Electrical Energy (guarantee subject to adjustment per Exhibit G).

 

0.95 kWh per denatured gallon of fuel grade ethanol [***]

 

As determined by meter readings during a seven day performance test.

 

Production records and written analysis by Design-Builder.

 

 

 

 

 

 

 

Coal (Powder River Coal Company’s North Antelope Mine, located in Gillette, Cambell County, Wyoming).

 

Shall not exceed 37,000 Btu per denatured gallon of fuel grade ethanol. (This Performance Criteria relates to production of ethanol and excludes any energy usage that may occur for drying corn.)

 

As determined by meter readings during a seven day performance test.

 

Production records and written analysis by Design-Builder.

 

 

 

 

 

 

 

Process Water Discharge

 

Zero gallons under normal operations

 

Process discharge meter

 

Control System reports

 

DISCLAIMER:   Owner’s failure to materially comply with the operating procedures issued by ICM, Inc./Fagen, Inc. shall void all performance guaranties and warranties set forth in this Design-Build Agreement.

 

Owner understands that the startup of the plant requires resources and cooperation of the Owner, vendors and other suppliers to the project.  Design-Builder disclaims any liability and Owner indemnifies Design-Builder for non-attainment of the Performance Guarantee Criteria directly or indirectly caused by material non-performance or negligence of third parties not retained by Design-Builder.  Owner should expect the plant to experience more downtime with coal-fired equipment than natural gas fired equipment, provided the attainment of the Plant Capacity Specification Guarantee shall still be met.

 



 

EXHIBIT B

 

General Project Scope

 

Construct a 50 million-gallon per year (MGY) coal-fired ethanol plant near Heron Lake, Minnesota.  The plant will grind approximately 17.9 million bushels per year to produce approximately 50 MGY year of fuel grade ethanol denatured with five percent gasoline.  The plant will also produce approximately 160,750 tons per year of 11% moisture dried distillers grains with solubles (DDGS), and approximately 151,250 tons per year of raw carbon dioxide (CO 2 ) gas.

 

Delivered corn will be dumped in the receiving building.  The receiving building will have two truck grain receiving bays and a rail receiving bay, including an underground conveyor from the rail pit to the second truck receiving bay both of which share a common receiving leg.  Said receiving building shall have sufficient height to accommodate end-dump trailers.  There will be two 14’ x 100’ scales for the truck drivers to drive onto for weigh-in and weigh-out located near the administration building.  The trucks will be weighed and sampled, then drive to the receiving building, dump the grain, then proceed to the second scale and obtain a final weight ticket from the scale operator.  The trucks will not be required to move during the unloading process in the receiving building.  Maximum truck dump time is ten minutes.  Two independent 15,000-bushel legs will lift the corn to one of two 250,000 — bushel concrete storage bins or corn day bin.  A dust collection system will be installed on the grain receiving system to limit particulate emissions as described in the Air Quality Permit application.

 

Ground corn will be mixed in a slurry tank, routed through a pressure vessel and steam flashed off in a flash vessel.  Cooked mash will continue through liquefaction tanks and into one of the fermenters.  Simultaneously, propagated yeast will be added to the mash as the fermenter is filling.  After batch fermentation is complete, the beer will be pumped to the beer well and then to the beer column to vaporize the alcohol from the mash.

 

Alcohol streams are purified in the rectifier column and the side stripper, and dehydrated in the molecular sieve system.  Two hundred proof alcohol is pumped to the tank farm day tank and blended with five percent natural gasoline as the product is being pumped into one of two 1,200,000 gallon final storage tanks.  One loading facility for truck and two loading facilities for rail cars will be provided and are supplied by three loadout pumps rated at 3600 gallons per minute.  The loading facility is sized to allow loading of 75 car unit trains of ethanol.  Emissions from the rail and truck loading is controlled by a flare.  Tank farm tanks include:  one tank for 190 proof storage, one tank for 200 proof storage, one tank for denaturant storage and two 1,200,000 gallon tanks for denatured ethanol storage.

 

Corn mash from the beer column is dewatered in the centrifuge(s).  The solids, called wet cake are conveyed to the dryer system. The liquid, called thin stillage is routed to the evaporators where moisture is removed.  The wet cake and syrup are routed to the steam tube drying system.  The exhaust from the steam tube drying system will be routed as combustion air to the coal combustor.

 

A modified wet or wet cake pad is located along side the DDGS dryer building to divert modified wet or wet cake to the pad when necessary such as start up or for limited production of modified wet or wet cake for sales.  DDGS is pneumatically conveyed to flat storage in the DDGS storage building.  DDGS is transferred to the bulk storage silo with the in-floor conveyor system.  The bulk storage silo has a capacity of approximately 4,000 tons of DDGS.  An approximately 225 ton per hour capacity unloader is used to transfer the

 



 

DDGS from the DDGS bulk storage silo through the approximately 10,600 bushel per hour capacity bulk weigh system and into railcars or trucks via telescopic spouts.  The system will simultaneously load two railcars with DDGS.

 

Steam will be generated in a waste heat boiler driven by the flue gases from the coal combustor.  Since the dryer exhaust is routed to the coal combustor for combustion air, the coal combustor destroys VOCs and acts like a Thermal Oxidizer.  The combustion air is routed in such fashion that it also fluidizes a sand bed in which the coal is introduced to combust.  The combustor requires natural gas or propane for start up.  To achieve emission constraints, limestone will be metered in with the coal to react with sulfur.  The layout of the combustor, boiler, and economizer are intended to provide drop out points for fly ash.  The final item in the layout before the induced draft fan is a dust collector.  All ash exiting the system will exit as fly ash.  Both fly ash and limestone silos are included.  The fly ash and limestone silos have nominal storage capacities of seven days.

 

Coal, received by truck delivery, will be stored in two silos with a combined storage capacity of seven days.  At the outlet of each coal silo, coal will be sized (3/4” minus) and limestone added before being routed to the coal feeder bunkers.  The coal combustor will also utilize anhydrous ammonia for NOx emission reduction.  A CEMS (Continuous emission monitoring system) is included.

 

Fresh water for the boilers, cooking, cooling tower and other processes will be obtained from the Owner supplied water pretreatment system.  Boiler water conditioned in regenerative softeners will be pumped through a deaerator scrubber and into a deaerator tank.  Appropriate boiler chemicals will be added as preheated water is sent to the boiler.

 

The process will be cooled by circulating water through heat exchangers, a chiller, and a cooling tower.

 

The design includes a compressed air system consisting of air compressor(s), a receiver tank, pre-filter, coalescing filter, and double air dryer(s).

 

The design also incorporates the use of a clean-in-place (CIP) system for cleaning cook, fermentation, distillation, evaporation, centrifuges, and other systems.  Fifty percent caustic soda is received by truck and stored in a tank.

 

Under normal operating circumstances, the plant will not have any wastewater discharges that have been in contact with corn, corn mash, cleaning system, or contact process water.  An ICM/Phoenix Bio-Methanator will reduce the BOD in process water allowing complete reuse within the plant.  The plant will have blowdown discharges from the cooling tower and may have water discharge from any water pre-treatment processes.  Owner shall provide on-site connection to sanitary sewer or septic system.

 

Most plant processes are computer controlled by a Siemens/Moore APACS distributed control system with graphical user interface and three workstations.  The process control room control console will have dual monitors to facilitate operator interface between two graphics screens at the same time.  Additional programmable logic controllers (PLCs) will control certain process equipment.  Design Builder provides lab equipment.

 

The cooking system requires the use of anhydrous ammonia, and other systems require the use of sulfuric acid.  Therefore, a storage tank for ammonia and a storage tank for acid will be on site to provide the quantities necessary.  The ammonia storage requires that plant

 



 

management implement and enforce a Process Safety Management (PSM) program.  The plant design may require additional programs to ensure safety and to satisfy regulatory authorities.

 

NOTE:  Exhibit B is a general description of the plant’s basic operation.  Not all equipment and equipment sizes quoted may be used on every plant.  Site specific equipment and equipment sizes will be determined during each plant’s final design.

 



 

EXHIBIT C

 

Owner’s Responsibilities

 

The Owner shall perform and provide the permits, authorizations, services and construction as specifically described hereafter:

 

1)               Land and Grading – Owner shall provide a site near or in Heron Lake, MN. Owner shall obtain all legal authority to use the site for its intended purpose and perform technical due diligence to allow Design-Builder to perform including, but not limited to, proper zoning approvals, building permits, elevation restrictions, soil tests, and water tests. The site shall be rough graded per Design-Builder specifications and be +/- three inches of final grade including the rough grading for Site roadways.  The site soils shall be modified as required to provide a minimum allowable soil bearing pressure as described in Table 1.

 

Other items to be provided by the Owner include, but are not limited to, the following: initial site survey (boundary and topographic) as required by the Design-Builder, layout of the property corners including two construction benchmarks, Soil Borings and subsequent Geotechnical Report describing recommendation for Roads, foundations and if required, soil stabilization/remediation, land disturbance permit, erosion control permit, site grading as described above with minimum soil standards, placement of erosion control measures, plant access road from a county, state or federal road designed to meet local county road standards, plant storm and sanitary sewers, fire water system with hydrants and plant water main branches taken from the system to be within five feet of the designated building locations, all tanks, motors and other equipment associated with or necessary to operate the fire water loop and associated systems, plant roads as specified and designed for the permanent elevations and effective depth, “construction” grading plan as drawn (including site retention pond), plant water well and associated permit(s).  Owner shall also provide the final grading, seeding and mulching, and site fencing at the site.

 

Owner is encouraged to obtain preliminary designs/information and estimates of the cost of performing all Owner required permits and services as stated in this Exhibit C.  Specifically, the cost of the fire water systems (including associated fire water pumps, required tank, building (if required), sprinklers, and all other equipment and materials associated with the fire water delivery systems) is estimated being in excess of $1,000,000.  The requirements of each state and the decisions of each Owner will increase or decrease the actual cost.

 

The Owner’s required activities related to site preparation for construction are to be divided into Phase I and Phase II activities as described below:

 

Deliverables by Owner prior to start of Phase 1 Civil Design:

 

Procure Boundary & Topographic Survey (to one foot contours)

Procure Soil Borings and Geotechnical Report with recommendations (at Design-Builder’s requested locations and depth)

 

Phase 1 (Deliverable Site):

 

Design-Builder provides engineering services to develop these items:

 

1.                Final Plant Layout with FFE and Top of Road Elevations

 



 

2.                Final Cut/Fill Quantity Calculations

3.                Grading and Erosion Control Plan

4.                Clear & Grubbing Plan - graded to +/- 3” of subgrade

Subgrade is defined as 1’ below proposed Building FFE and Administration Building FFE and 20” to 30” (based on rail designer input) below top of rail for the rail spurs.  Subgrade for the in-plant roads will be determined upon recommendations from the geotechnical engineer (12” to 24” below final top of road)

 

*Owner shall prepare site according to Design-Builder’s engineering plans for the above items.

 

Plant Access Road and all in-plant roads (which will act as base for final roadway system)

Soil Stabilization

Site Grading

Replacement Fill

Construction Layout (parking, laydown, access areas, temp. drainage and temp. facilities)

Storm Water Drainage & Detention

 

Phase 2 Site Work (Final Civil Design Plans):

 

Design-Builder provides engineering services to develop these items:

Site Utilities (Within Property Line):

 

1. Sanitary Sewer System

2. Potable Water Supply and Distribution

3. Process Water Supply and Distribution

4. Gas Supply and Distribution

5. Fire Loop and Fire Protection System

6. Site Electric

7. Site Natural Gas/Propane

 

Wells and Well Pumps (supply of sufficient quantity for construction activities)

Minimum 3 Phase, 480 Volt, 1,000 KVA Electrical Power Available for Construction at two locations (at Design-Builder’s requested location)

 

Design/Builder shall be reimbursed on a “Time & Material” basis for any management of these Owner requirements and any design engineering requested by the Owner not otherwise required to be provided by Design-Builder pursuant to this Agreement.

 

2)               Permits - Owner shall obtain all Operating Permits including, but not limited to, air quality permits, in a timely manner to allow startup of the plant as designed by Design-Builder.  Owner shall obtain all testing and site inspections required to secure the necessary operating permits.

 

3)               Storm Water Runoff Permit – Owner shall obtain the construction storm – water runoff permit, permanent storm-water runoff permit, and the erosion control/land disturbance permit.

 



 

4)               Minnesota Pollutant Elimination Discharge Permit – Owner shall obtain a permit to discharge cooling tower water and reverse osmosis (“R.O.”) reject water and any other waste water directly to a designated waterway or other location Owner shall supply the discharge piping to transport to the designated waterway or other location.

 

5)               Natural Gas, Propane, Coal Supply and Ash Disposal Agreements – Owner shall procure and supply a supply of natural gas or propane for the preheat and start up of the coal combustor.  For the coal combustor, two separate gas burners will require natural gas or propane:  the underbed air preheater rated for 20 mmbtu/hr and the overfire air preheater rated for 50 mmbtu/hr.  Consumption will start at approximately 30 % of the total rating and be ramped up to maximum over a nominal 8 hr period, depending on the starting temperature.  Minimum demand will be 21 mm btu/hr and ramp up to a maximum of 70 mm btu/hr.  Owner shall provide all natural gas and/or propane piping to the use points and supply meters, regulators, and vaporizers to provide burner tip pressures as specified by Design-Builder.  Owner shall also supply a digital flowmeter on-site with appropriate output for monitoring by the plant’s computer control system.

 

The coal combustor design will be based on typical analysis of coal provided by owner, which to date is from the Powder River Coal Company’s North Antelope mine located in Gillette, Cambell County, Wyoming.  Planned emission control is to mix limestone with the coal, as the sulfur content is .24%.  The as received heat value is 8,800 btu/lb, and the expected consumption will be 300 tons/day at the 50 mm gpy production rate.  Procurement and supply of coal and limestone will be the responsibility of the owner.

 

Ash is noted to be 5.3%, so a nominal 18 tons/day of ash will need to be removed from the site each day.  All ash is removed from the system as fly ash.  Disposal will be at owner’s responsibility.

 

6)               Electrical Service – (1) The Owner is responsible to secure continuous service from an energy supplier to serve the facility.  The service from the energy supplier shall be of sufficient size to provide at a minimum 10 MW of electrical capacity to the site.  (2) The Owner is responsible for procurement, installation and maintenance of the site distribution system, including but not limited to the required substation and all associated distribution lines, switchgear, sectional cabinets, distribution transformers, transformer pads, etc.  An on-site primary digital meter is also to be supplied for monitoring of electrical usage and demand.  This meter must have the capability to be monitored via a telephone line or other electrical signal.  (3) The responsibility of the Design-Builder starts at the secondary electrical terminals of the site distribution system transformers that have been installed by Owner (i.e., the 480 volt terminals for the process building transformers; the 480 volt terminals for the energy center transformers; the 480 volt terminals for the grains transformer; the 480 volt terminals for the pumphouse transformer; and the 4160 volt terminals for the chiller transformer; and the 4160 volt terminals of the thermal oxidizer transformer).  (4) The site distribution system requirements, layout, and meters are to be determined jointly by the Owner, the Design-Builder and the energy supplier.

 

Design-Builder will be providing soft start motor controllers for all motors greater than 150 horsepower and where demanded by process requirements.  Owner is encouraged to discuss with its electrical service supplier whether additional soft start motor

 



 

controllers are advisable for this facility and such can be added, with any increased cost being an Owner’s cost.

 

Design-Builder will provide power factor correction to 0.92 lagging at plant nameplate capacity.  Owner is encouraged to discuss with its electrical service supplier any requirements for power factor correction above 0.92 lagging.  Additional power factor correction can be added with any increased cost being an Owner’s cost.

 

7)               Water Supply and Service Agreement – Owner shall supply on-site process wells or other water source capable of providing a quantity of water which includes process water, R.O. feed water, cooling tower make-up water, of a quality which will allow discharges to comply with NPDES limits.  Owner should consider providing a redundant supply source.  Design-Builder shall provide the standard zeolite water softener system.  Any increased costs incurred for another water treatment system if water does not meet the quality requirements shall be the responsibility of the Owner.  Owner will supply one process fresh water supply line terminating within five (5) feet of the point of entry designated by Design-Builder, one potable supply line terminating within five (5) feet of the process building at a point of entry designated by Design-Builder, and one potable supply line to the administration building at a point of entry designated by administration building contractor.

 

Owner is advised that most projects require a water pre-treatment system.  Such system is an Owner’s cost and Owner is advised that the purchase and installation cost of such water pre-treatment system may exceed $2,000,000.  Owner is also advised that such systems may be leased if Owner desires to avoid the costs of owning such a system.

 

8)               Wastewater Discharge System, Permits and/or Service Agreement – Owner shall provide the discharge piping, septic tank and drainfield system or connect to municipal system as required for the sanitary sewer requirements of the Plant.  These provisions shall comply with all federal, state, and local regulations, including any permitting issues.

 

9)               Roads and Utilities – Owner shall provide and maintain the ditches and permanent roads, including the gravel, pavement or concrete, with the roads passing standard compaction tests.  (Design-Builder will maintain aggregate construction roads during construction of the Plant and will return to original pre-construction condition prior to Owner completing final grade and surfacing.)

 

Except as otherwise specifically stated herein the Owner shall install all utilities so that they are within five (5) feet of the designated building/structure locations.

 

10)         Administration Building – The administration building – one story free standing, office computer system, telephone system, office copier and fax machine and office furniture and any other office equipment and personal property for the administration building shall be the sole and absolute cost and responsibility of Owner and Design-Builder shall have no responsibility in regards thereto.

 

11)         Maintenance and Power Equipment – The maintenance and power equipment as described in Table 2 and any other maintenance and power equipment as required by

 



 

the plant or desired by Owner shall be the sole and absolute cost and responsibility of Owner and Design-Builder shall have no responsibility in regards thereto.

 

12)         Railroads – Owner is responsible for any costs associated with the railroads including, but not limited to, all rail design and engineering and construction and Design-Builder shall have no responsibility in regards thereto.

 

13)         Drawings – Owner shall supply drawings to Design-Builder of items supplied under items 10) and 12) and also supply Phase II redline drawings.

 

14) Fire Protection System – Fire protection system requirements vary by governmental requirements per location and by insurance carrier requirements.  Owner is responsible to provide the required fire protection system for the Plant.  This may include storage tanks, pumps, underground fire water mains, fire hydrants, foam or water monitor valves, sprinkler systems, smoke and heat detection, deluge systems, or other provisions as required by governmental codes or Owner’s insurance carrier’s fire protection criteria.  Design-Builder will provide assistance to the Owner on a “Time & Material” basis for design and/or construction of the Fire Protection Systems required for the plant.

 

Table 1 Minimum Soil Bearing Pressure – Responsibility of Owner

 

Description

 

Required Allowable Soil Bearing Pressure
(pounds per square foot)

 

Grain Storage Silos

 

8,000

 

Cook Water Tank

 

3,500

 

Methanator Feed Tank

 

3,500

 

Liquifaction Tank #1

 

3,500

 

Liquifaction Tank #2

 

3,500

 

Coal Combustor

 

4,000

 

Coal Surge Silo #1

 

6,000

 

Coal Surge Silo #2

 

6,000

 

Boiler

 

4,000

 

Dust Collector

 

3,500

 

Fermentation Tank #1

 

4,000

 

Fermentation Tank #2

 

4,000

 

Fermentation Tank #3

 

4,000

 

Fermentation Tank #4

 

4,000

 

Beerwell

 

4,000

 

Whole Stillage Tank

 

3,500

 

Thin Stillage Tank

 

3,500

 

Syrup Tank

 

3,500

 

190 Proof Day Tank

 

3,000

 

200 Proof Day Tank

 

3,000

 

Denaturant Tank

 

3,000

 

Fire Water Tank

 

3,000

 

Denatured Ethanol Tank #1

 

4,000

 

Denatured Ethanol Tank #2

 

4,000

 

All Other Areas

 

3,000

 

 



 

Table 2 Maintenance and Power Equipment – Responsibility of Owner

 

Description

 

Additional Description

Spare Parts

 

Spare parts
Parts bins
Misc. materials, supplies and equipment

 

 

 

Shop supplies and
equipment

 

One shop welder
One portable gas welder
One plasma torch
One acetylene torch
One set of power tools
Two sets of hand tools with tool boxes
Carts and dollies
Hoists (except centrifuge overhead crane)
Shop tables
Maintenance office furnishings & supplies
Fire Extinguishers
Reference books
Safety manuals
Safety cabinets & supplies, etc.

 

 

 

Rolling stock

 

Used 1 ½ yard front end loader
New Skid loader
Used Fork lift
Used Scissors lift, 30 foot
Used Pickup truck
Track Mobile

 



 

EXHIBIT D

 

LICENSE AGREEMENT

 

THIS LICENSE AGREEMENT (this “License Agreement”) is entered into and made effective as of the             day of                                             , 2005 (“Effective Date”) by and between Heron Lake BioEnergy, LLC, a limited liability company (“OWNER”), and ICM, Inc., a Kansas corporation (“ICM”).

 

WHEREAS, OWNER has entered into that certain Design-Build Lump Sum Contract dated September 28, 2005 (the “Contract”) with Fagen, Inc., a Minnesota corporation (“Fagen”), under which Fagen is to design and construct a 50 million gallon per year ethanol plant for OWNER to be located in or near Heron Lake, Minnesota (the “Plant”);

 

WHEREAS, ICM has granted Fagen the right to use certain proprietary technology and information of ICM in the design and construction of the Plant; and

 

WHEREAS, OWNER desires from ICM, and ICM desires to grant to OWNER, a license to use such proprietary technology and information in connection with OWNER’s ownership and operation of the Plant, all upon the terms and conditions set forth herein;

 

NOW, THEREFORE, the parties, in consideration of the foregoing premises and the mutual promises contained herein and for other good and valuable consideration, receipt of which is hereby acknowledged, agree as follows:

 

1.                ICM grants to OWNER a limited license to use the Proprietary Property (hereinafter defined) solely in connection with the design, construction, operation, maintenance and repair of the Plant, subject to the limitations provided herein (the “Purpose”).  In the event OWNER fails to pay to Fagen all amounts due and owing Fagen under the Contract or the Contract is terminated for any reason prior to the substantial completion of the Plant, ICM may terminate the limited license granted to OWNER herein upon written notice to OWNER.

 

2.                The “Proprietary Property” means, without limitation, documents, Operating Procedures (hereinafter defined), materials and other information that are furnished by ICM to OWNER, whether directly or indirectly through Fagen, in connection with the Purpose including, without limitation, the design, arrangement, configuration, and specifications of (i) the combinations of distillation, evaporation, and alcohol dehydration equipment (including, but not limited to, pumps, vessels, tanks, heat exchangers, piping, valves and associated electronic control equipment) and all documents supporting those combinations; (ii) the combination of the distillers grain drying (DGD), and heat recovery steam generation (HRSG) equipment (including, but not limited to, pumps, vessels, tanks, heat exchangers, piping and associated electronic control equipment) and all documents supporting those combinations; and (iii) the computer system, known as the distributed control system (DCS and/or PLC) (including, but not limited to, the software configuration, programming, parameters, set points, alarm points, ranges, graphical interface, and system hardware connections) and all documents supporting that system. 

 



 

The “Operating Procedures” means, without limitation, the process equipment and specifications manuals, standards of quality, service protocols, data collection methods, construction specifications, training methods, engineering standards and any other information prescribed by ICM from time to time concerning the Purpose.  Proprietary Property shall not include any information or materials that OWNER can demonstrate by written documentation:  (i) was lawfully in the possession of OWNER prior to disclosure by ICM; (ii) was in the public domain prior to disclosure by ICM; (iii) was disclosed to OWNER by a third party other than Fagen having the legal right to possess and disclose such information or materials; or (iv) after disclosure by ICM comes into the public domain through no fault of OWNER or its directors, officers, employees, agents, contractors, consultants or other representatives (hereinafter collectively referred to as “Representatives”).  Information and materials shall not be deemed to be in the public domain merely because such information is embraced by more general disclosures in the public domain, and any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain if the combination itself and its principles of operation are not in the public domain.

 

3.                OWNER shall not use the Proprietary Property for any purpose other than the Purpose.  OWNER shall not use the Proprietary Property in connection with any expansion or enlargement of the Plant.

 

4.                OWNER’s failure to materially comply with the Operating Procedures shall void all guarantees, representations and warranties, whether expressed or implied, if any, that were given by ICM to OWNER, directly or indirectly through Fagen, concerning the performance of the Plant that ICM reasonably determines are materially affected by OWNER’s failure to materially comply with such Operating Procedures.  OWNER agrees to indemnify, defend and hold harmless ICM, Fagen and their respective Representatives from any and all losses, damages and expenses including, without limitation, reasonable attorneys’ fees resulting from, relating to or arising out of (a) Owner’s or its Representatives’ failure to materially comply with the Operating Procedures  or (b) negligent or unauthorized use of the Proprietary Property.

 

5.                Any and all modifications to the Proprietary Property by OWNER or its Representatives shall be the property of ICM.  OWNER shall promptly notify ICM of any such modification and OWNER agrees to assign all right, title and interest in such modification to ICM; provided, however, OWNER shall retain the right, at no cost, to use such modification in connection with the Purpose.

 

6.                ICM has the exclusive right and interest in and to the Proprietary Property and the goodwill associated therewith.  OWNER will not, directly or indirectly, contest ICM’s ownership of the Proprietary Property.  OWNER’s use of the Proprietary Property does not give OWNER any ownership interest or other interest in or to the Proprietary Property except for the limited license granted to OWNER herein.

 

7.                OWNER shall pay no license fee or royalty to ICM for OWNER’s use of the Proprietary Property pursuant to the limited license granted to OWNER, the consideration for this limited license is included in the amounts payable by OWNER to Fagen for the construction of the Plant under the Contract.

 

8.                OWNER may not assign the limited license granted herein, in whole or in part,

 



 

without the prior written consent of ICM, which will not be unreasonably withheld or delayed.  Prior to any assignment, OWNER shall obtain from such assignee a written instrument, in form and substance reasonably acceptable to ICM, agreeing to be bound by all the terms and provisions of this License Agreement.  Any assignment of this License Agreement shall not release OWNER from (i) its duties and obligations hereunder concerning the disclosure and use of the Proprietary Property by OWNER or its Representatives, or (ii) damages to ICM resulting from, or arising out of, a breach of such duties or obligations by OWNER or its Representatives.  ICM may assign its right, title and interest in the Proprietary Property, in whole or part, subject to the limited license granted herein.

 

9.                The Proprietary Property is confidential and proprietary.  OWNER shall keep the Proprietary Property confidential and shall use all reasonable efforts to maintain the Proprietary Property as secret and confidential for the sole use of OWNER and its Representatives for the Purpose.  OWNER shall retain all Proprietary Property at its principal place of business and/or the Plant.  OWNER shall not at any time without ICM’s prior written consent, copy, duplicate, record, or otherwise reproduce the Proprietary Property, in whole or in part, or otherwise make the same available to any unauthorized person provided, OWNER shall be permitted to copy, duplicate or otherwise reproduce the Proprietary Property in whole or in part in connection with the Purpose so long as all such copies, duplicates or reproductions are kept at its principal place of business and/or the Plant and are treated the same as any other Proprietary Property.  OWNER shall not disclose the Proprietary Property except to its Representatives who are directly involved with the Purpose, and even then only to such extent as is necessary and essential for such Representative’s involvement.  OWNER shall inform such Representatives of the confidential and proprietary nature of such information and, if requested by ICM, OWNER shall obtain from such Representative a written instrument, in form and substance reasonably acceptable to ICM, agreeing to be bound by all of the terms and provisions of this License Agreement relating to the disclosure and use of the Proprietary Property.  OWNER shall make all reasonable efforts to safeguard the Proprietary Property from disclosure by its Representatives to anyone other than permitted hereby.  In the event that OWNER or its Representatives are required by law to disclose the Proprietary Property, OWNER shall provide ICM with prompt written notice of same so that ICM may seek a protective order or other appropriate remedy.  In the event that such protective order or other appropriate remedy is not obtained, OWNER or its Representatives will furnish only that portion of the Proprietary Property which in the reasonable opinion of its or their legal counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance that the Proprietary Property so disclosed will be accorded confidential treatment.

 

10.          OWNER agrees to indemnify ICM for any and all damages (including, without limitation, reasonable attorneys’ fees) arising out of or resulting from any unauthorized disclosure or use of the Proprietary Property by OWNER or its Representatives.  OWNER agrees that ICM would be irreparably damaged by reason of a violation of the provisions contained herein and that any remedy at law for a breach of such provisions would be inadequate.  Therefore, ICM shall be entitled to seek injunctive or other equitable relief in a court of competent jurisdiction against OWNER or its Representatives for any unauthorized disclosure or use of the Proprietary Property without the necessity of proving actual monetary loss or posting any bond.  It is expressly understood that

 



 

the remedy described herein shall not be the exclusive remedy of ICM for any breach of such covenants, and ICM shall be entitled to seek such other relief or remedy, at law or in equity, to which it may be entitled as a consequence of any breach of such duties or obligations.

 

11.          The duties and obligations of OWNER under this License Agreement, and all provisions relating to the enforcement of such duties and obligations shall survive and remain in full force and effect notwithstanding any termination or expiration of the Contract or the license granted herein under paragraph 1 or 12.

 

12.          ICM may terminate the limited license granted to OWNER herein upon written notice to OWNER if OWNER willfully or wantonly (a) uses the Proprietary Property for any purpose, or (b) discloses the Proprietary Property to anyone, in each case other than permitted herein.  Upon termination of the license under paragraph 1 or this paragraph 12, OWNER shall cease using the Proprietary Property for any purpose (including the Purpose) and, upon request by ICM, shall promptly return to ICM all documents or other materials in OWNER’s or its Representatives’ possession that contain Proprietary Property.

 

13.          The laws of the State of Kansas, United States of America, shall govern the validity of the provisions contained herein, the construction of such provisions, and the interpretation of the rights and duties of the parties.  Any legal action brought to enforce or construe the provisions of this License Agreement shall be brought in the federal or state courts located in Wichita, Kansas, and the parties agree to and hereby submit to the exclusive jurisdiction of such courts and agree that they will not invoke the doctrine of forum non conveniens or other similar defenses in any such action brought in such courts.  In the event the Plant is located in, or OWNER is organized under the laws of, a country other than the United States of America, OWNER hereby specifically agrees that any injunctive or other equitable relief granted by a court located in the State of Kansas, United States of America, or any award by a court located in the State of Kansas, shall be specifically enforceable as a foreign judgment in the country in which the Plant is located, OWNER is organized or both, as the case may be, and agrees not to contest the validity of such relief or award in such foreign jurisdiction, regardless of whether the laws of such foreign jurisdiction would otherwise authorize such injunctive or other equitable relief, or award.  OWNER agrees that the aggregate recovery of OWNER (and everyone claiming by or through OWNER), as a whole, under this License Agreement and the Contract against ICM and ICM’s Representatives, collectively, shall not exceed the amount paid by Fagen to ICM for the issuance of this License Agreement in connection with the Contract.

 

14.          OWNER hereby agrees to waive all claims against ICM and ICM’s Representatives for any consequential damages that may arise out of or relate to this License Agreement, the Contract or the Proprietary Property whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, including but not limited to losses of use, profits, business, reputation or financing.  OWNER further agrees that the aggregate recovery of OWNER and Fagen (and everyone claiming by or through OWNER and Fagen), as a whole, against ICM and ICM’s

 



 

Representatives, collectively, for any and all claims that arise out of, relate to or result from this License Agreement, the Proprietary Property or the Contract, whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, shall not exceed the amount paid by Fagen to ICM in connection with the OWNER’s project under the Contract.

 

15. The terms and conditions of this License Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any prior understandings, agreements or representations by or between the parties, written or oral.  Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of this License Agreement.  This License Agreement may not be modified or amended at any time without the written consent of the parties.

 

16. All notices, requests, demands, reports, statements or other communications (herein referred to collectively as “Notices”) required to be given hereunder or relating to this License Agreement shall be in writing and shall be deemed to have been duly given if transmitted by personal delivery or mailed by certified mail, return receipt requested, postage prepaid, to the address of the party as set forth below.  Any such Notice shall be deemed to be delivered and received as of the date so delivered, if delivered personally, or as of the third business day following the day sent, if sent by certified mail.  Any party may, at any time, designate a different address to which Notices shall be directed by providing written notice in the manner set forth in this paragraph.

 

17. In the event that any of the terms, conditions, covenants or agreements contained in this License Agreement, or the application of any thereof, shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such term, condition, covenant or agreement shall be deemed void ab initio and shall be deemed severed from this License Agreement.  In such event, and except if such determination by a court of competent jurisdiction materially changes the rights, benefits and obligations of the parties under this License Agreement, the remaining provisions of this License Agreement shall remain unchanged unaffected and unimpaired thereby and, to the extent possible, such remaining provisions shall be construed such that the purpose of this License Agreement and the intent of the parties can be achieved in a lawful manner.

 

18.  The duties and obligations herein contained shall bind, and the benefits and advantages shall inure to, the respective successors and permitted assigns of the parties hereto.

 

19. The waiver by any party hereto of the breach of any term, covenant, agreement or condition herein contained shall not be deemed a waiver of any subsequent breach of the same or any other term, covenant, agreement or condition herein, nor shall any custom, practice or course of dealings arising among the parties hereto in the administration hereof be construed as a waiver or diminution of the right of any party hereto to insist upon the strict performance by any other party of the terms, covenants, agreement and conditions herein contained.

 

20. In this License Agreement, where applicable, (i) references to the singular shall include the plural and references to the plural shall include the singular, and (ii) references to the male, female, or neuter gender shall include references to all other

 



 

such genders where the context so requires.

 

IN WITNESS WHEREOF, the parties hereto have executed this License Agreement, the Effective Date of which is indicated on page 1 of this License Agreement.

 

OWNER:

 

ICM:

 

 

 

Heron Lake BioEnergy, LLC

 

ICM, Inc.

 

 

 

By:

 

By:

 

 

 

Title:

 

Title:

 

 

 

Date Signed:

 

Date Signed:

 

 

 

Address for giving notices:

 

Address for giving notices:

 

 

 

 

 

301 N First Street
Colwich, KS 67030

 



 

EXHIBIT E

 

START-UP SERVICES TO BE PROVIDED TO OWNER

 

Start-up services will be provided to Owner as follows: Electrical and instrumentation checkout,  and approximately two (2) weeks of on-site training at the US Energy Partners Plant (USEP) in Russell, Kansas, or other location, such to be provided for project Owner employees, including operators, laboratory personnel, general, plant and maintenance managers.  (Other personnel of the project Owner can be provided such on-site training by separate agreement and as time is available.)  All trainer and costs associated with the trainer, including labor and all training materials will be provided to Owner without cost.  The Owner will be responsible for all travel and related expenses of its employees and the project Owner will pay all wages for its personnel during the training and will cover all other expenses related to the on-site training.  Said training services will include training on computers, lab procedures, field operating procedures, and overall plant section performance expectations.  Two persons shall be provided to lead the Owner during the initialization and start-up of the plant.  The Owner will provide all other personnel and pay all other costs related to start-up of the plant.  Personnel will be maintained on-site by Design-Builder or a subcontractor until all performance testing is complete and accepted by the Owner, unless the Owner fails to execute or allow performance testing within 30 days after receiving a written request from Design-Builder or its subcontractor to begin performance testing or the work on the project work is substantially stopped for any reason for a period of 30 days or more.  Design-Builder or its subcontractor will provide an additional one month on-site support after Substantial Completion start-up of the plant and from date of Substantial Completion start-up will provide six (6) months of off-site technical and operating procedure support by telephone, computer modem, the Internet and email.

 

Design-Builder shall deliver to Owner all manuals, instructions or other written materials that it receives from equipment manufacturers and suppliers/vendors of equipment.

 



 

EXHIBIT F

 

Work Schedule

 

OWNER’S RESPONSIBILITIES

 

NUMBER OF DAYS TO BE
COMPLETED AFTER
NOTICE TO PROCEED

Notice to Proceed

 

0

Obtain Builder’s Risk policy in the amount of the Contract Price, obtain Boiler and Machinery Insurance, and obtain Terrorism Coverage per TRIA

 

[***]

Storm Water Permits Complete

 

[***]

Natural Gas/Propane Supply Agreements Complete

 

[***]

Water Supply and Service Agreements Complete

 

[***]

Risk Insurance Provider Selected/Fire Protection Requirements Known

 

[***]

NPDES Discharge Point Selected

 

[***]

Electrical Service

 

[***]

Water Pre-Treatment System Design Complete

 

[***]

Wastewater Discharge System Complete

 

[***]

Operating Permits Complete

 

[***]

Discharge Permits Complete

 

[***]

Pumphouse/Water Pre-treatment System Complete

 

[***]

Fire Protection System Complete

 

[***]

Administration Building Complete

 

[***]

Paving (Plant Roads) Complete

 

[***]

Rail Spur Complete

 

[***]

Employees Hired and Ready for Training

 

[***]

Natural Gas Pipeline Complete

 

[***]

 

DESIGN-BUILDER’S RESPONSIBILITIES

 

NUMBER OF DAYS TO BE
COMPLETED AFTER
NOTICE TO PROCEED

Substantial Completion

 

485

Final Completion

 

545

 



 

EXHIBIT G

 

Letter Agreement

to the

Design-Build Lump Sum Agreement

by and between

Heron Lake BioEnergy, LLC (OWNER)

and

Fagen, Inc. (DESIGN-BUILDER)

Dated September 28, 2005

 

The parties have agreed to the following additions to the above-referenced Agreement:

 

In the event design, engineering, equipment, labor and construction costs (the “Costs”) are required in order for [***] to be reduced to Owner’s air permit limit, then, as to the amount of such Costs, Owner and Design-Builder agree as follows:

 

(1)           Design-Builder shall be responsible for [***] to reduce the [***] to [***].  Owner and Design-Builder agree [***] in the responsibility for the Costs required to reduce the [***] from [***] to Owner’s permit limit, such that each party shall be responsible for [***] of those Costs;

 

(2)           The amount of that portion of [***] required to reduce the [***] from [***] to Owner’s permit limits shall be calculated based on the actual cost of materials and labor plus burden, in addition to any additional jobsite overhead costs, incurred by Design-Builder, with no mark-up applied;

 

(3)           Owner’s [***] of the Costs under the second sentence of paragraph 1 above will be made at the time and subject to the conditions as provided for in Section 5.4.2 of the Lump Sum Contract regarding payment of any early completion bonus, such that Design-Builder will pay [***] of the Costs at the time they are incurred and due and owing, and Owner will pay its [***]share to Design-Builder at the time and in accordance with the payment terms and conditions described in Section 5.4.2.  As to priority between any early completion bonus payment and payment of Owners [***] share of costs hereunder, Design-Builder shall be reimbursed its [***] share of costs first.

 

(4)           If the additional work required by this Exhibit G requires additional equipment to [***] from [***] to Owner’s permit limits, then the electrical performance guarantees as provided in Exhibit A shall be subject to commercial reasonable adjustment.

 

This Agreement shall hereafter constitute part of the Contract Documents.  All other terms and conditions of the Contract Documents shall remain in full force and effect, except as specifically modified by this Agreement.

 

This Agreement is hereby entered into and effective between the parties as of the 28th day of September, 2005.

 

IN WITNESS WHEREOF, the undersigned have entered into and agreed to the foregoing Exhibit G- Letter Agreement- to the Design-Build Agreement as of the date first set forth above.

 



 

OWNER:

 

 

DESIGN-BUILDER:

HERON LAKE BIOENERGY, LLC

 

 

FAGEN, INC

 

 

 

 

 

 

By:

 

 

By:

 

 

Authorized Representative

 

 

Authorized Representative

 

 

 

 

 

Title:

 

 

Title:

 

 



 

EXHIBIT H

 

Letter Agreement No. 2

to the

Design-Build Lump Sum Agreement

by and between

Heron Lake BioEnergy, LLC (OWNER)

and

Fagen, Inc. (DESIGN-BUILDER)

Dated September 28, 2005

 

The parties have agreed to the following additions to the above-referenced Agreement:

 

In the event the design, engineering, equipment, labor and construction costs required in order for Design-Builder to meet its Performance and Emission Guarantees set forth in Article 11 of the Agreement would exceed 10 million dollars (based on supporting documentation provided to Owner), then Owner and Design-Builder agree as follows:

 

(5)           Owner will consider and accept a commercially reasonable proposal presented by Design-Builder to design and construct a 50 or 100 MGY Gas-fired Dry Grind Ethanol Plant in lieu of the 50 MGY Coal-fired Dry Grind Ethanol Plant described in the Agreement, and the contract price of such ethanol plant shall be $56,619,000 (for 50 mgy) or $98,000,000 (for 100 mgy), as the case may be;

 

(6)           In consideration of Owner accepting the foregoing proposal, Design-Builder shall be responsible for and agrees to pay [***] of the construction costs of the gas plant including the costs to bring the natural gas line to the site, less the amount of any costs (if any) incurred and paid by Design-Builder in trying to meet its performance and emission guaranty under Article 11 of the Agreement;

 

(7)           In consideration of Owner accepting the foregoing proposal, Design-Builder will pay for [***] of Owner during the period from when the decision to switch to gas is made to when Owner can deliver a valid notice to proceed to Design-Builder on the gas-fired ethanol plant (which notice shall require among other items that all financing for such plant be secured and available for construction and that Owner have an issued air permit for the gas plant);

 

(8)           In consideration of Owner accepting the foregoing proposal, Design-Builder hereby agrees to indemnify, defend and hold harmless Owner, its consultants, subcontractors, anyone employed directly or indirectly for any of them, and their officers, directors, employees and agents (including Owner’s legal counsel), from and against any and all claims, losses, damages, liabilities and expenses incurred as a result of third party claims or actions brought against such indemnified party (other than claims or actions brought by any such indemnified party against another indemnified party), including attorneys’ fees and expenses, arising out of or resulting from this Agreement or the switch to a natural-gas fired ethanol plant;

 

(9)           Design-Builder’s total aggregate liability for liquidated damages under section 5.5.1 of the Design-Build Lump Sum Agreement, for failure to meet the

 



 

performance and emission warranties under Article 11 of the Design-Build Lump Sum Agreement, [***] shall be capped at and shall not exceed $10.0 Million.

 

This Agreement shall hereafter constitute part of the Contract Documents.  All other terms and conditions of the Contract Documents shall remain in full force and effect, except as specifically modified by this Agreement.

 

This Agreement is hereby entered into and effective between the parties as of the 28th day of September, 2005.

 

This Agreement shall be considered drafted equally by both parties hereto, and shall not be construed for or against either party.

 

IN WITNESS WHEREOF, the undersigned have entered into and agreed to the foregoing Agreement as of September 29, 2005.

 

 

OWNER:

 

 

DESIGN-BUILDER:

HERON LAKE BIOENERGY, LLC

 

 

FAGEN, INC

 

 

 

 

 

 

By:

 

 

By:

 

 

Authorized Representative

 

 

Authorized Representative

 

 

 

 

 

Title:

 

 

Title:

 

 


EXHIBIT 10.13

 

DISTILLER’S GRAIN MARKETING AGREEMENT

 

THIS DISTILLER’S GRAIN MARKETING AGREEMENT (the “Agreement”), is entered into effective as of October 5 th , 2005, by Heron Lake Bio-energy LLC, a Minnesota Limited Liability Corporation (“Seller”), and Commodity Specialists Company, a Delaware Corporation (“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller desires to sell and Buyer desires to purchase the Distiller’s Dried Grains with Solubles (“DDGS”), Wet Distillers Grains (“WDG”), and solubles (“Solubles”) (hereinafter DDGS, WDG and Solubles), are referred to collectively as the “Products”) output of the ethanol production plant which Seller owns in Heron Lake, Minnesota; and

 

WHEREAS, Seller and Buyer wish to agree in advance of such sale and purchase to the price formula, payment, delivery and other terms thereof in consideration of the mutually promised performance of the other;

 

NOW, THEREFORE, in consideration of the promises and the mutual covenants and conditions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, it is hereby agreed:

 

1.                                        BUYER PERFORMANCE . Buyer agrees to perform the services that it provides for Seller in a professional and competent manner.

 

2.                                        PURCHASE AND SALE . Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the entire bulk feed grade DDGS, WDG and Solubles output from Seller’s plant at Heron Lake, Minnesota. (hereinafter the “Plant”), subject to all terms and conditions set forth in this Agreement. Buyer shall label all Product that is sold by Buyer and shall register all labels with the states where the Products are sold.

 

3.                                        TRADE RULES . All purchases and sales made hereunder shall be governed by the Feed Trade Rules of the National Grain and Feed Association unless otherwise specified. Said Trade Rules, a copy of which is appended hereto as Exhibit A, shall, to the extent applicable, be a part of this Agreement as if fully set forth herein.

 

4.                                        TERM . The term of this Agreement shall be for one year commencing as of completion and start-up of production of the Plant. Start-up is anticipated to be June 1, 2006. Thereafter this agreement shall remain in effect until terminated by either party at its unqualified option by providing the other party hereto not less than 90 days written notice of its election to terminate this Agreement.

 

5.                                        DELIVERY AND TITLE.

 

A.                                    The place of delivery for all the Products sold pursuant to this Agreement shall be FOB Plant. Buyer and Buyer’s agents shall be given access to Seller’s Plant in a manner and at all times reasonably necessary and convenient for Buyer to take delivery as provided herein. Buyer shall schedule the loading and shipping of all outbound

 



 

Products purchased hereunder which is shipped by truck or rail. All labor and equipment necessary to load trucks or rail cars shall be supplied by Seller without charge to Buyer. Seller agrees to handle the Products in a good and workmanlike manner in accordance with Buyer’s reasonable requirements and in accordance with normal industry practice. Seller shall maintain the truck and rail loading facilities in safe operating condition in accordance with normal industry standards.

 

B.                                      Seller further warrants that storage space for not less than not less than seven days production of DDGS shall be reserved for Buyer’s use at the Plant and shall be continuously available for storage of DDGS purchased by Buyer hereunder at no charge to Buyer. Seller shall also make available the necessary storage for WDG and Solubles which is adequate for Buyer to market such products. Seller shall be responsible at all times for the quantity, quality and condition of any the Products in storage at the Plant. Seller shall not be responsible for the quantity, quality and condition of any of the Products stored by Buyer at locations other than the Plant.

 

C.                                      Buyer shall give to Seller a schedule of quantities of the Products to be removed by truck and rail with sufficient advance notice reasonably to allow Seller to provide the required services. Seller shall provide the labor, equipment and facilities necessary to meet Buyer’s loading schedule and, except for any consequential or indirect damages, shall be responsible for Buyer’s actual costs or damages resulting from Seller’s failure to do so. Buyer shall order and supply trucks and rail cars as scheduled for truck and rail shipments. All freight charges shall be the responsibility of Buyer and shall be billed directly to Buyer.

 

D.                                     Buyer shall provide loading orders as necessary to permit Seller to maintain Seller’s usual production schedule, provided, however, that Buyer shall not be responsible for failure to schedule removal of the Products unless Seller shall have provided to Buyer production schedules as follows: Five (5) days prior to the beginning of each calendar month during the term hereof, Seller shall provide to Buyer a tentative schedule for production in the next calendar month. Seller shall inform Buyer daily of inventory and production status. For purposes of this paragraph, notification will be sufficient if made bye-mail or facsimile as follows:

 

If to Buyer, to the attention of Steve Markham, Facsimile number 612-330-9894 or email to smarkham@csc-world.com, and

 

If to Seller, to the attention of                   , Facsimile number or email to

 

Or to such other representatives of Buyer and Seller as they may designate to the other in writing.

 

E.                                       Title, risk of loss and full shipping responsibility shall pass to Buyer upon loading the Products into trucks or rail cars and delivering to Buyer of the bill of lading for each such shipment.

 

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6.                                        PRICE AND PAYMENT

 

A.                                    Buyer agrees to pay Seller as follows: for all DDGS removed by Buyer from the Plant a price equal to ninety eight (98%); for WDG removed by Buyer from the Plant a price equal to ninety six (96%) of the FOB Plant price actually received by Buyer from its customers and for Solubles a fee of $2.00 per ton. For purposes of this provision, the FOB Plant price shall be the actual sale price, less all freight costs incurred by Buyer in delivering the Product to its customer. Buyer agrees that it shall not sell Product for delivery more than 90 days from the date of entering into a sale without the consent of Seller. Buyer agrees to use commercially reasonable efforts to achieve the highest resale price available under prevailing market conditions. Seller’s sole and exclusive remedy for breach of Buyer’s obligations hereunder shall be to terminate this Agreement. Buyer shall collect all applicable state tonnage taxes on Products sold by Buyer and shall remit to the appropriate governmental agency.

 

B.                                      In the event that Buyer has to incur out-of-pocket costs in order to sell High Moisure Product, and the fee to be paid to Buyer is less than such out-of-pocket costs, Seller shall pay Buyer an amount which is sufficient, when added to the fee earned by Buyer, to repay Buyer for all of its reasonable out-of-pocket costs. Such payment shall be made with 30 days from receipt of documentation evidencing the expenses.

 

C.                                      Within ten (10) days following receipt of certified weight certificates, which certificates shall be presented to Buyer each Thursday for all DDGS shipments during the preceding week, Buyer shall pay Seller the full price, determined pursuant to paragraph 6A above, for all properly documented shipments. Buyer agrees to maintain accurate sales records and to provide such records to Seller upon request. Seller shall have the option to audit Buyer’s sales invoices at any time during normal business hours and during the term of this Agreement.

 

D.                                     Within five (5) business days following the 15th and last day of each month, Buyer shall pay Seller the full price, determined as provided for above, for all WDG and syrup shipments made in the first 15 days of the month and the balance of the month, as the case may be. Weights shall be determined by on-site certified scales Buyer agrees to maintain accurate sales records and to provide such records to Seller upon request. Seller shall have the option to audit Buyer’s sales invoices at any time during normal business hours and during the term of this Agreement.

 

7.                                        QUANTITY AND WEIGHTS .

 

A.                                    It is understood that the output of the Products shall be determined by Seller’s production schedule and that no warranty or representation has been made by Seller as to the exact quantities of Products to be sold pursuant to this Agreement.

 

B.                                      The quantity of Products delivered to Buyer from Seller’s Plant shall be established by weight certificates obtained from scale at the Plant which is certified as of the time of weighing and which complies with all applicable laws, rules and regulations or in the event that the scale at the Plant is inoperable then at other scales which are

 

3



 

certified as of the time of weighing and which comply with all applicable laws, rules and regulations. The outbound weight certificates shall be determinative of the quantity of the Products for which Buyer is obligated to pay pursuant to Section 5.

 

8.                                        QUALITY .

 

A.                                    Seller understands that Buyer intends to sell the Products purchased from Seller as a primary animal feed ingredient and that said Products are subject to minimum quality standards for such use. Seller agrees and warrants that the Products produced at its plant and delivered to Buyer shall be accepted in the feed trade under current industry standards.

 

B.                                      Seller warrants that all Products, unless the parties agree otherwise, sold to Buyer hereunder shall, at the time of delivery to Buyer, conform to the following minimum quality standard:

 

 

 

Protein

 

Fat

 

Fiber

 

Moisture

 

Ash

 

 

 

Min

 

Max

 

Min

 

Max

 

Min

 

Max

 

Min

 

Max

 

Min

 

Max

 

DDGS

 

25

 

 

 

10

 

 

 

 

 

15

 

 

 

12

 

 

 

6

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wet Distillers Grain

 

13

 

 

 

5

 

 

 

 

 

7

 

 

 

50

 

 

 

3

 

 

The standard for DDGS and WDG will be determined on an as is basis rather than a dry weight basis. Minimum quality standards for Solubles shall be agreed upon by the parties at a subsequent date.

 

C.                                      Seller warrants that at the time of loading, the Products will not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and that each shipment may lawfully be introduced into interstate commerce under said Act. Payment of invoice does not waive Buyer’s rights if goods do not comply with terms or specifications of this Agreement. Unless otherwise agreed between the parties to this Agreement, and in addition to other remedies permitted by law, the Buyer may, without obligation to pay, reject either before or after delivery, any of the Products which when inspected or used fail in a material way to conform to this Agreement. Should any of the Products be seized or condemned by any federal or state department or agency for any reason except noncompliance by Buyer with applicable federal or state requirements, such seizure or condemnation shall operate as a rejection by Buyer of the goods seized or condemned and Buyer shall not be obligated to offer any defense in connection with the seizure or condemnation. When rejection occurs before or after delivery, at its option, Buyer may:

 

(1)                                   Dispose of the rejected goods after first offering Seller a reasonable opportunity of examining and taking possession thereof, if the condition of the goods reasonably appears to Buyer to permit such delay in making disposition; or

 

4



 

(2)                                   Dispose of the rejected goods in any manner directed by Seller which Buyer can accomplish without violation of applicable laws, rules, regulations or property rights; or

 

(3)                                   If Buyer has no available means of disposal of rejected goods and Seller fails to direct Buyer to dispose of it as provided herein, Buyer may return the rejected goods to Seller, upon which event Buyer’s obligations with respect to said rejected goods shall be deemed fulfilled. Title and risk of loss shall pass to Seller promptly upon rejection by Buyer.

 

(4)                                   Seller shall reimburse Buyer for all costs reasonably incurred by Buyer in storing, transporting, returning and disposing of the rejected goods. Buyer shall have no obligation to pay Seller for rejected goods and may deduct reasonable costs and expenses to be reimbursed by Seller from amounts otherwise owed by Buyer to Seller.

 

(5)                                   If Seller produces Products which comply with the warranty in Section C above but which do not meet applicable industry standards, Buyer agrees to purchase such Products for resale but makes no representation or warranty as to the price at which such Product can be sold. If the Products deviates so severely from industry standard as to be unsalable, then it shall be disposed of in the manner provided for rejected goods in Section C above.

 

D.                                     If Seller knows or reasonably suspects that any of the Products produced at its Plant are adulterated or misbranded, or outside of industry quality standards, Seller shall promptly so notify Buyer so that such Product can be tested before entering interstate commerce. If Buyer knows or reasonably suspects that any of the Products produced by Seller at its Plant are adulterated, misbranded or outside of industry quality standards, then Buyer may obtain independent laboratory tests of the affected goods. If such goods are tested and found to comply with all warranties made by Seller herein, then Buyer shall pay all testing costs; and if the goods are found not to comply with such warranties, Seller will pay all testing costs.

 

9.              RETENTION OF SAMPLES . Seller will take an origin sample of DDGS from each truck and rail car before it leaves the Plant using standard sampling methodology. Seller will label these samples to indicate the date of shipment and the truck or railcar number involved. Seller will also retain the samples and labeling information for no less than one year.

 

10.            INSURANCE .

 

A.             Seller warrants to Buyer that all employees engaged in the removal of the Products from Seller’s Plant shall be covered as required by law by worker’s compensation and unemployment compensation insurance.

 

B.             Seller agrees to maintain throughout every term of this Agreement comprehensive general liability insurance, including product liability coverage, with combined single limits of not less than $2,000,000. Seller’s policies of comprehensive

 

5



 

general liability insurance shall be endorsed to require at least thirty (30) days advance notice to Buyer prior to the effective date of any decrease in or cancellation of coverage. Seller shall cause Buyer to be named as an additional insured on Seller’s insurance policy and shall provide a certificate of insurance to Buyer to establish the coverage maintained by Seller not later than fourteen (14) days prior to completion and start-up of production of the Plant.

 

C.                                      Buyer agrees to carry such insurance on its vehicles operating on Seller’s property as Seller reasonably deems appropriate. The parties acknowledge that Buyer may elect to self insure its vehicles. Upon request, Buyer shall provide certificate of insurance to Seller to establish the coverage maintained by Buyer.

 

D.                                     Notwithstanding the foregoing, nothing herein shall be construed to constitute a waiver by either party of claims, causes of action or other rights which either party may have or hereafter acquire against the other for damage or injury to its agents, employees, invitees, property, equipment or inventory, or third party claims against the other for damage or injury to other persons or the property of others.

 

11.                                  REPRESENTATIONS AND WARRANTIES

 

A.                                    Seller represents and warrants that all of the Products delivered to Buyer shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and may lawfully be introduced into interstate commerce pursuant to the provisions of the Act. Seller further warrants that the Products shall fully comply with any applicable state laws governing quality, naming and labeling of product. Payment of invoice shall not constitute a waiver by Buyer of Buyer’s rights as to goods which do not comply with this Agreement or with applicable laws and regulations.

 

B.                                      Seller represents and warrants that the Products delivered to Buyer shall be free and clear of liens and encumbrances.

 

12.                                  EVENTS OF DEFAULT . The occurrence of any of the following shall be an event of default under this Agreement: (1) failure of either party to make payment to the other when due; (2) default by either party in the performance of the covenants and agreements set forth in this Agreement; (3) if either party shall become insolvent, or make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its assets, or be adjudicated bankrupt, or file a petition in bankruptcy, or apply to a court for the appointment of a receiver for any of its assets or properties with or without consent, and such receiver shall not be discharged within sixty (60) days following appointment.

 

13.                                  REMEDIES . Upon the happening of an Event of Default, the parties hereto shall have all remedies available under applicable law with respect to a Event of Default by the other party. Without limiting the foregoing, the parties shall have the following remedies whether in addition to or as one of the remedies otherwise available to them; (1) to declare all amounts owed immediately due and payable; and (2) immediately to terminate this Agreement effective upon receipt by the party in default of the notice of termination,

 

6



 

provided, however, the parties shall be allowed 10 days from the date of receipt of notice of default for to cure any default. Notwithstanding any other provision of this Agreement, Buyer may offset against amounts otherwise owed to Seller the price of any product which fails to conform to any requirements of this Agreement.

 

14.                                  FORCE MAJEURE . Neither Seller nor Buyer will be liable to the other for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, act of the public enemy, riots, civil disorders, sabotage, strikes, lockouts, labor disputes, labor shortages, war stoppages or slowdowns initiated by labor, transportation embargoes, failure or shortage of materials, acts of God, or acts or regulations or priorities of the federal, state or local government or branches or agencies thereof.

 

15.                                  INDEMNIFICATION .

 

A.                                    Seller shall indemnify, defend and hold Buyer and its officers, directors, employees and agents harmless, from any and all losses, liabilities, damages, expenses (including reasonable attorneys’ fees), costs, claims, demands, that Buyer or its officers, directors, employees or agents may suffer, sustain or become subject to, or as a result of (i) any misrepresentation or breach of warranty, covenant or agreement of Seller contained herein or (ii) the Seller’s negligence or willful misconduct.

 

B.                                      Buyer shall indemnify, defend and hold Seller and its officer, directors, employees and agents harmless, from any and all losses, liabilities, damages, expenses (including reasonable attorneys’ fees), costs, claims, demands, that Seller or its officers, directors, employees or agents may suffer, sustain or become subject to, or as a result of (i) any misrepresentation or breach of warranty, covenant or agreement of Buyer contained herein or (ii) the Buyer’s negligence or willful misconduct.

 

C.                                      Where such personal injury, death or loss of or damage to property is the result of negligence on the part of both Seller and Buyer, each party’s duty of indemnification shall be in proportion to the percentage of that party’s negligence or faults.

 

D.                                     Seller acknowledges that in order to maximize the total revenue to be generated through the sale of the Products, Buyer may take positions by selling Product in anticipation of Seller providing the Products. Notwithstanding the fact that Seller’s obligation is to provide Buyer with the output of the Plant the parties acknowledge that Buyer may suffer losses as a result of positions taken by Buyer if Seller discontinues operations for any reason whatsoever including Force Majeure. Therefore, Seller shall indemnify, defend and hold Buyer and its officers, directors, employees and agents harmless from any and all losses, liabilities, damages, expenses (including reasonable attorney’s fees), costs, claims, demands that Buyer or its officers, directors, employees, or agents may suffer, sustain or become subject to as a result of any sale or purchase of product taken by Buyer in anticipation of Seller delivering the Products hereunder, provided Buyer has taken commercially reasonable steps to avoid the loss. Seller shall not be liable for any loss resulting from Seller discontinuing operations related to a

 

7



 

position taken by Buyer for delivery more than 90 days from the date of entering into a sale without the consent of Seller.

 

16.                                  GOVERNMENTAL ACTION . The parties recognize that the value of the Products could change as a result of various governmental programs, be they foreign or domestic. In the event that a significant value change of the Products as a result of any such governmental program, Buyer may request re-negotiation of the contract price for the Products by providing written notice to Seller. Buyer shall be required to demonstrate that the value of the Products has significantly changed in the market. Should such a change take place, the parties agree to negotiate, in good faith, a revised sale price for the Products. If, after a good faith effort, the parties are unable to agree on a new price within the 90 day period immediately following notice to the other party, then in such event and notwithstanding the other provisions hereof, Buyer may terminate this Agreement upon 90 days prior written notice.

 

17.                                  RELATIONSHIP OF PARTIES . This Agreement creates no relationship other than that of buyer and seller between the parties hereto. Specifically, there is no agency, partnership, joint venture or other joint or mutual enterprise or undertaking created hereby. Nothing contained in this Agreement authorizes one party to act for or on behalf of the other and neither party is entitled to commissions from the other.

 

18.                                  MISCELLANEOUS .

 

A.                                    This writing is intended by the parties as a final expression of their agreement and a complete and exclusive statement of the terms thereof.

 

B.                                      No course of prior dealings between the parties and no usage of trade, except where expressly incorporated by reference, shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement.

 

C.                                      Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature or the performance and an opportunity to make objection.

 

D.                                     No representations, understandings or agreements have been made or relied upon in the making of this Agreement other than as specifically set forth herein.

 

E.                                       This Agreement can only be modified by a writing signed by all of the parties or their duly authorized agents.

 

F.                                       The paragraph headings herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

 

G.                                      This Agreement shall be construed and performed in accordance with the laws of the State of Minnesota.

 

8



 

H.                                     The respective rights, obligations and liabilities of the parties under this Agreement are not assignable or delegable without the prior written consent of the other party.

 

I.

Notice shall be deemed to have been given to the party to whom it is addressed ninety-six (96) hours after it is deposited in certified U.S. mail, postage prepaid, return receipt requested, addressed as follows:

 

 

 

Buyer:

Commodity Specialists Company
310 Grain Exchange Bldg.
400 South Fourth Street
Minneapolis, Minnesota 55415
ATTN: Steve 1. Markham

 

 

 

 

Seller:

Heron Lake Bio-energy, LLC

 

IN WITNESS THEREOF, the parties have caused this Agreement to be executed the day and year first above written.

 

 

COMMODITY SPECIALISTS COMPANY

 

 

 

 

By

/s/ Philip Lindau

 

Title

Co-President

 

 

 

 

Heron Lake Bio-energy, LLC

 

 

 

 

By

/s/ Robert J. Ferguson

 

Title

President HLBE

 

9


EXHIBIT 10.14

 

RPMG

Renewable Products Marketing Group

 

ETHANOL FUEL

MARKETING AGREEMENT

 



 

ETHANOL FUEL MARKETING AGREEMENT

 

THIS AGREEMENT, entered into this 7th day of August, 2006, by and between RENEWABLE PRODUCTS MARKETING GROUP, L.L.C., hereinafter referred to as “RENEWABLE PRODUCTS”; and HERON LAKE BIOENERGY, LLC, a Minnesota Limited Liability Company, hereinafter referred to as “HERON LAKE BIOENERGY.”

 

WITNESSETH:

 

WHEREAS, Renewable Products is a limited liability company formed for the purpose of marketing ethanol for its members and others, and,

 

WHEREAS, HERON LAKE BIOENERGY is an L.L.C., intending to construct a plant in Heron Lake, Minnesota for the production of fuel grade ethanol, and,

 

WHEREAS, the parties have agreed that, for the duration of this marketing agreement, the sale and marketing of all of the ethanol produced by HERON LAKE BIOENERGY should be undertaken by Renewable Products.

 

NOW, THEREFORE, In consideration of the mutual covenants and promises herein contained, the parties hereto agree as follows:

 

1.                                       Exclusive Marketing Representative .  That if HERON LAKE BIOENERGY constructs a facility for the production of fuel grade ethanol, Renewable Products shall be the sole marketing representative for the entire production of said facility subject to all the terms and conditions of this agreement.

 

2.                                       Plant Construction/Ethanol Specifications .  That HERON LAKE BIOENERGY promises and agrees to proceed, with due diligence, toward the planning, financing and construction of a facility for the production of fuel grade ethanol with a capacity of approximately 50 million gallons per year, which fuel grade ethanol will be at least 199.50 proof (undenatured anhydrous), and conform to the specifications described in A.S.T.M. 4806 and such other specifications that may be, from time-to-time, promulgated by the industry for E-Grade denatured fuel ethanol.  HERON LAKE BIOENERGY contemplates that said facility is

 

2



 

anticipated to be in production by May 2007, and will make every good faith effort to begin production by that time.

 

3.                                       Rail and Truck Loading Facilities .  That the facility to be constructed and operated by HERON LAKE BIOENERGY, as aforesaid, shall include reasonable and convenient railcar and tank truck access at the facility of a size and design appropriate to handle production of approximately 50 million gallons of ethanol per year.  All such railcar and tank truck loading facilities shall meet all industry and governmental safety standards and shall be capable of delivering a minimum of 800 gallons of product per minute to railcars and/or tank trucks.  HERON LAKE BIOENERGY will be solely responsible for all demurrage charges for railcars in service for its use.  HERON LAKE BIOENERGY shall provide personnel reasonably needed to load trucks or rail cars at its facility in a timely manner.

 

4.                                       Storage Capacity .  That the facility to be constructed and operated by HERON LAKE BIOENERGY as aforesaid shall have sufficient storage capacity for not less than 10 days ethanol production.

 

5.                                       Best Efforts to Market .  That since Renewable Products shall have the exclusive right to market all the fuel grade ethanol produced by HERON LAKE BIOENERGY during the term of this agreement, Renewable Products promises and agrees to use its best good faith efforts to market all such fuel grade ethanol; provided, however, that Renewable Products’ obligation hereunder shall be excused in case of fire, flood, other natural calamity, labor dispute or any adverse governmental statute, regulations or decree (including any court order or decree).

 

6.                                       Risk of Loss .  That Renewable Products will be responsible for the marketing (subject to the terms of this agreement) of all such fuel grade ethanol produced by HERON LAKE BIOENERGY, from the time the common carrier accepts responsibility for the product at HERON LAKE BIOENERGY’s facility in either a railcar and/or tank truck.  In addition, Renewable Products shall bear the risk of loss for all such product that has been accepted for shipment by the common carrier and, in the event of a loss, shall pay HERON LAKE BIOENERGY for all such product in accordance with the terms of this agreement as if the product had been received and accepted by the buyer.

 

7.                                       Specific Marketing Tasks .  Renewable Products shall be solely responsible for the marketing, sale and delivery of all the production from HERON

 

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LAKE BIOENERGY’s facility during the term of this agreement, including, but not limited to:

 

·                   Scheduling all shipments of ethanol produced at the Heron Lake facility;

·                   Related freight and transportation services, as may be needed for shipment of said production on a timely basis;

·                   Obtaining sufficient railcar, tank trucks and other transport as may be needed to handle said production;

·                   Negotiating the rates and tariffs to be charged for delivery of such production to the customer;

·                   Promoting and advertising the sale of fuel grade ethanol as appropriate;

·                   Ascertaining that such production is delivered where contracted and intended;

·                   Handling all purchase agreements with consumers and any complaints in connection therewith; and

·                   Collecting all accounts and undertaking any legal collection procedures as may be necessary.

·                   Invoicing all ethanol marketed, receiving payments from customers, paying all transportation charges when necessary;

·                   Implementing and monitoring on-going program to conduct carrier audits and handling carrier selection and dispatching, freight rate bundling and distribution optimization, and all insurance matters relating to product that is shipped from the Heron Lake facility to the customer; and

·                   All transaction processing including all ethanol licensing, monitoring and state compliance reporting, state surety bonding, tax collection, remittance and reporting, purchase and sales acknowledgements, late payment collections, and electronic funds transfer services.

 

8.                                       Negotiation of Ethanol Price .  That Renewable Products will use reasonable efforts to obtain the best price for all fuel grade ethanol sold by it pursuant to the terms of this agreement.

 

9.                                       Compensation/Pooling . HERON LAKE BIOENERGY will pay Renewable Products $.01 (one cent) per gallon for each gallon of ethanol sold by Renewable Products for the account

 

4



 

of HERON LAKE BIOENERGY.  Renewable Products shall have the right to deduct this fee from payments due HERON LAKE BIOENERGY as described in paragraph 10.  The members of Renewable Products market their ethanol as a pool.  It is the intent of Renewable Products to treat the production of HERON LAKE BIOENERGY in a similar manner in the future.  The parties hereto agree that, upon request in writing, either party may require the other to make available its books and records, at reasonable intervals, in order to audit those books and records and to account for all dealings, transactions and sums relevant to this Agreement.

 

10.                                Accounts Receivable/Rail Car Leases/Termination of Contract .  It will be the responsibility of Renewable Products to do all billing in regard to the sale of ethanol, to collect all receivables and to be responsible for any bad accounts.  RENEWABLE PRODUCTS shall make payment to HERON LAKE BIOENERGY within 10 days after taking delivery of product into common carrier truck or into railcar.  All risks associated with accounts receivables shall be borne by Renewable Products.  Renewable Products will lease approximately 125 railcars to be used by HERON LAKE BIOENERGY.  A separate payment for leased railcars is not applicable as HERON LAKE BIOENERGY’s production of fuel grade is part of the RENEWABLE PRODUCTS marketing pool.  If this contract is terminated, by non-renewal or otherwise, the lease for the rail cars leased by Renewable Products for the transport of HERON LAKE BIOENERGY’s ethanol will be assigned to HERON LAKE BIOENERGY, who will be obligated to the terms and conditions of said lease.  Renewable Products shall provide HERON LAKE BIOENERGY the opportunity to review and approve of the terms and conditions of any such rail car lease before Renewable Products first executes the same.  The parties understand that the assignment of the lease is subject to the approval of the lessor of the rail cars.

 

11.                                No “Take or Pay .”  The parties agree that this is not a “take or pay contract” and that Renewable Products’ liability is limited to ethanol passing custody at HERON LAKE BIOENERGY’s facility.

 

12.                                Term .  The term of this agreement shall commence on the first day of the month that HERON LAKE BIOENERGY initially ships ethanol and shall continue for a period of at least 24 months, but will terminate at the end of the first traditional ethanol marketing contract period; end of March or end of September which ever occurs first after the 24 month period.  This Agreement shall be automatically extended for an additional one (1) year term following the end of the

 

5



 

initial term unless either party gives written notice of non-extension not less than ninety (90) days before the end of the current expiration date .

 

13.                                Licenses and Permits .  At all times from the commencement of this contract, HERON LAKE BIOENERGY will have all of the licenses and permits necessary to operate its production facilities.

 

14.                                Expected Volume .  During the term of this agreement, or any renewals thereof, HERON LAKE BIOENERGY agrees to have Renewable Products market all of the ethanol produced by HERON LAKE BIOENERGY it at its production facility.  The average monthly volume of ethanol produced by HERON LAKE BIOENERGY is estimated to be approximately 4,166,666 gallons.

 

15.                                Estimated 12-Month Volume .  As of the effective date of this agreement, HERON LAKE BIOENERGY will provide Renewable Products with HERON LAKE BIOENERGY’s best estimate of its anticipated monthly ethanol production for the next twelve (12) months, to assist Renewable Products in developing appropriate marketing strategies for the ethanol to be produced by HERON LAKE BIOENERGY.

 

16.                                Updated Monthly Volume Estimates .  On or before the first day of each month, HERON LAKE BIOENERGY will provide Renewable Products with its updated best estimate of HERON LAKE BIOENERGY’s anticipated monthly ethanol production for the next twelve (12) months, so that Renewable Products will have ethanol production estimates from HERON LAKE BIOENERGY twelve (12) months into the future during the entire time that this agreement is in effect.

 

17.                                Good and Marketable Title .  HERON LAKE BIOENERGY represents that it will have good and marketable title to all of the ethanol marketed for it by Renewable Products and that said ethanol will be free and clear of all liens and encumbrances.

 

18.                                Establishment of Price and Other Sale Terms .  When Renewable Products sells the ethanol marketed pursuant to the terms of this agreement to its customers, the parties understand and agree that the ethanol sales prices and all other terms and conditions of ethanol sales to customers under this agreement will be established by Renewable Products.  Renewable Products may make these decisions, without the need of obtaining consent from HERON LAKE BIOENERGY.  Notwithstanding the foregoing, Renewable Products agrees to use

 

6



 

its best efforts to communicate with HERON LAKE BIOENERGY the terms and conditions of ethanol sales.

 

19.                                Independent Contractor .  Nothing contained in this agreement will make Renewable Products the agent of HERON LAKE BIOENERGY for any purpose whatsoever.  Renewable Products and its employees shall be deemed to be independent contractors, with full control over the manner and method of performance of the services they will be providing on behalf of HERON LAKE BIOENERGY under this agreement.

 

20.                                Separate Entities .  The parties hereto are separate entities and nothing in this agreement or otherwise shall be construed to create any rights or liabilities of either party to this agreement with regard to any rights, privileges, duties or liabilities of any other party to this agreement.

 

21.                                Working Relationship .  Because the parties hereto have not done business together in the past in the manner described in this agreement, they have not yet attempted to develop efficient and effective procedures related to ordering, delivering ethanol and shipping ethanol and, therefore, agree to work together promptly and in good faith to develop effective and efficient policies and procedures to cover these matters.

 

22.                                Ethanol Shortage/Open Market Purchase .  Notwithstanding any force majeure provision herein to the contrary, if HERON LAKE BIOENERGY is unable to deliver its estimated monthly ethanol production and if as a consequence of the non-delivery and in order to meet its sale obligation to third parties, Renewable Products may purchase ethanol in the market place to meet its delivery obligations.  If it does so, and as a result thereof incurs a financial loss, HERON LAKE BIOENERGY will reimburse Renewable Products for any such loss.  Under such circumstances, if Renewable Products realizes a financial gain, it will pay such gain to HERON LAKE BIOENERGY.

 

23.                                Testing of Samples .  At the request of Renewable Products, HERON LAKE BIOENERGY agrees to provide Renewable Products with samples of its ethanol produced at its production facility so that it may be tested for product quality on a regular basis.

 

24.                                Insurance .  During the entire term of this agreement, HERON LAKE BIOENERGY will maintain insurance coverage that is standard, in the reasonable

 

7



 

opinion of Renewable Products, for a company of its type and size that is engaged in the production and selling of ethanol.  At a minimum, HERON LAKE BIOENERGY’s insurance coverage must include:

 

a.                                        Comprehensive general product and public liability insurance, naming Renewable Products as an additional named insured, with liability limits of at least $5 million in the aggregate.

 

b.                                        Property and casualty insurance adequately insuring its production facilities and its other assets against theft, damage and destruction on a replacement cost basis.

 

c.                                        Renewable Products as a named insured under the comprehensive general product and public liability insurance policy and the property and casualty insurance policy.

 

d.                                        Workers’ compensation insurance to the extent required by law.

 

HERON LAKE BIOENERGY will not change its insurance coverage during the term of this agreement, except to increase it or enhance it, without the prior written consent of Renewable Products.

 

25.                                Indemnifications and Hold Harmless— HERON LAKE BIOENERGY.  If a third party makes a claim against Renewable Products or any person or organization related to it as the result of the actions or omissions of HERON LAKE BIOENERGY or any person or organization related to HERON LAKE BIOENERGY including, but not limited to, claims relating to the quality of ethanol produced by HERON LAKE BIOENERGY, then HERON LAKE BIOENERGY agrees to indemnify Renewable Products and its related persons and organizations and to hold them harmless from any liabilities, damages, costs and/or expenses, including costs of litigation and reasonable attorneys fees which they incur as a result of any claims, arising solely from the marketing of HERON LAKE BIOENERGY’s ethanol under this Agreement, made against them by third parties.

 

26.                                Indemnifications and Hold Harmless—Renewable Products .  The indemnification obligations of the parties under this agreement will be mutual and Renewable Products, therefore, makes the same commitment to indemnify HERON LAKE BIOENERGY and its related persons or organizations that

 

8



 

HERON LAKE BIOENERGY has made to Renewable Products in the preceding paragraph.

 

27.                                Survival of Terms/Dispute Resolution .  All representations, warranties and agreements made in connection with this agreement will survive the termination of this agreement.  The parties will, therefore, be able to pursue claims related to those representations, warranties and agreements after the termination of this agreement, unless those claims are barred by the applicable statute of limitations.  Similarly, any claims that the parties have against each other that arise out of actions or omissions that take place while this agreement is in effect will survive the termination of this agreement.  This means that the parties may pursue those claims even after the termination of this agreement, unless applicable statutes of limitation bar those claims.  The parties agree that, should a dispute between them arise in connection with this agreement, the parties will complete, in good faith, a mediation session prior to the filing of any action in any court.  Such mediation session shall occur at a place that is mutually agreeable, and shall be conducted by a mediator to be selected by mutual agreement of the parties.

 

28.                                Choice of Law .  The parties agree that this agreement will be governed by, interpreted under and enforced in accordance with Minnesota law.

 

29.                                Assignment .  Neither party may assign its rights or obligations under this agreement without the written consent of the other party, which consent will not be unreasonably withheld.

 

30 .                                Entire Agreement .  This Agreement constitutes the entire agreement between the parties covering everything agreed upon or understood in the transaction.  There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind as conditions or inducements to the execution hereof or in effect between Buyer and Seller, except as expressed in this Agreement.  No change or addition shall be made to this Agreement except by a written document signed by all parties hereto.

 

31 .                                Execution of Counterparts .  This Agreement may be executed by the parties on any number of separate counterparts, and by each party on separate counterparts, each of such counterparts being deemed by the parties to be an original instrument; and all of such counterparts, taken together, shall be deemed to constitute one and the same instrument.

 

9



 

32 .                                Duplicate Counterpart Includes Facsimile .  The parties specifically agree and acknowledge that a duplicate hereof shall include, but not be limited to, a counterpart produced by virtue of a facsimile (“fax”) machine.

 

33.                                Binding Effect .  This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and there respective heirs, personal representatives, successors and assigns.

 

34.                                Termination .  The agreement may be terminated if either party engages in an uncured breach.  After receiving written notice, the breaching party will have 30 days to cure the breach.  If the breaching party does not cure the breach in the required time, the agreement will terminate 30 days later.

 

35.        Confidential Information .  The parties acknowledge that they will be exchanging information about their businesses under this Agreement which is confidential and proprietary, and the parties agree to handle that confidential and proprietary information in the manner described in this Section 35.

 

(a)                                   Definition of Confidential Information .  For purposes of this Agreement, the term “Confidential Information” means information related to the business operations of HERON LAKE BIOENERGY or RENEWABLE PRODUCTS that meets all of the following criteria:

 

(i)     The information must not be generally known to the public, and must not be a part of the public domain.

 

(ii)    The information must belong to the party claiming it is confidential, and must be in that party’s possession.

 

 (iii)   The information must have been protected and safeguarded by the party claiming it is confidential by measures that were reasonable under the circumstances before the information was disclosed to the other party.

 

(iv)    Written information must be clearly designated in writing as “Confidential Information” by the party claiming it is confidential before it is disclosed to the other party, except that all information about costs and

 

10



 

prices will always be considered Confidential Information under this Agreement, without the need for specifically designating it as such.

 

(v)     Verbal Confidential Information which is disclosed to the other party must be summarized in writing, designated in writing as “Confidential Information,” and transmitted to the other party within ten (10) days of the verbal disclosure.

 

(b)     Limitations on the Use of Confidential Information .  Each party agrees that it will not use any Confidential Information that it obtains about the other party for any purpose, other than to perform its obligations under this Agreement.

 

(c)     The Duty not to Disclose Confidential Information .  The parties agree that they will not disclose any Confidential information about each other to any person or organization, other than their respective legal counsel and accountants, without first getting written consent to do so from the other party.  Notwithstanding the foregoing, if a party or anyone to whom such party transmits Confidential Information in accordance with this Agreement is requested or required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, civil investigative demand or similar process, SEC filings or administrative proceedings) in connection with any proceeding, to disclose any Confidential Information, such party will give the disclosing party prompt written notice of such request or requirement so that the disclosing party may seek an appropriate protective order or other remedy and/or waive compliance with the provisions of this Agreement, and the receiving party will cooperate with the disclosing party to obtain such protective order.  The fees and costs of obtaining such protective order, including payment of reasonable attorney’s fees, shall be paid for by the disclosing party.  If such protective order or other remedy is not obtained or the disclosing party waives compliance with the relevant provisions of this Agreement, the receiving party (or such other persons to whom such request is directed) will furnish only that portion of the Confidential Information which, in the opinion of legal counsel, is legally required to be disclosed, and upon the disclosing party’s request, use commercially reasonable efforts to obtain

 

11



 

assurances that the confidential treatment will be accorded to such information.  This will be the case both while this Agreement is in effect and for a period of five (5) years after it has been terminated.

 

(d)     The Duty to Notify the Other Party in Cases of Improper Use or Disclosure .  Each party agrees to immediately notify the other party if either party becomes aware of any improper use of or any improper disclosure of the Confidential Information of the other party at any time while this Agreement is in effect, and for a period of five (5) years after it has been terminated.

 

(e)     Protection of the Confidential Information .  Each party agrees to develop effective procedures for protecting the Confidential Information that it obtains from the other party, and to implement those procedures with the same degree of care that it uses in protecting its own Confidential Information.

 

(f)     Return of the Confidential Information .  Immediately upon the termination of this Agreement, each party agrees to return to the other party all of the other party’s Confidential Information that is in its possession or under its control.”

 

(g)                          Disclosure in SEC Filings . Notwithstanding any other provision contained in this agreement, RENEWABLE PRODUCTS acknowledges and agrees that the disclosure of this agreement and the transactions contemplated hereby by HERON LAKE BIOENERGY (i) on a Form 8-K or other report filed with the Securities and Exchange Commission at any time after the date hereof, or (ii) in a customary press release or on a customary analyst call, will not be violation of this Section 35. HERON LAKE BIOENERGY will cooperate with any reasonable requests of RENEWABLE PRODUCTS to request confidential treatment concerning sensitive/confidential items.

 

36.                                Force Majeure .  Neither party shall be liable for any failure or delay by such party in performing its obligations under this agreement if such failure or delay is due to causes beyond its reasonable control including, without limitation, fires, floods, storms and other acts of God, governmental acts, acts of terrorism, labor strikes, lockouts or other

 

12



 

disturbances, war, riot, failure of processing equipment, or difficulties in procuring labor or materials.

 

37.                                Notices .  Any notice or other communication required or permitted hereunder shall be in writing and shall be considered delivered in all respects when it has been delivered by hand or mailed by first class mail postage prepaid, addressed as follows:

 

 

TO:

Renewable Products Marketing Group, L.L.C.

 

 

 

809 East Main Street

 

 

 

Suite 2

 

 

 

Belle Plaine, MN 56011

 

 

 

 

 

 

 

 

 

 

TO:

HERON LAKE BIOENERGY, LLC

 

 

 

91246 390 th Ave.

 

 

 

Heron Lake, MN 56137

 

 

IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first written above.

 

 

RENEWABLE PRODUCTS
MARKETING GROUP, LLC

 

 

 

 

 

By

/s/ C. Stephen Bleyl

 

 

 

Its CEO

 

 

 

 

 

 

 

 

 

 

HERON LAKE BIOENERGY, LLC

 

 

 

 

 

By

/s/ Robert J. Ferguson

 

 

 

Its President

 

 

13


EXHIBIT 10.15

 

[FAGEN ENGINEERING LETTERHEAD]

 

 

 

March 12, 2007

 

 

Mr. Robert Ferguson
President
Heron Lake Bio Energy, LLC
P.O. Box 198
Heron Lake, Minnesota 56137-0198

 

RE:

Environmental Compliance Support

 

Heron Lake, Minnesota

 

Dear Bob:

 

As per our agreement at Friday’s board meeting, Fagen Engineering, LLC will proceed with the following tasks as outlined in our proposal dated February 19, 2007. Fagen will perform the listed tasks on a time and material basis. Our estimated cost to complete each task is listed below, but actual costs will be tracked and can be reported on a monthly or task by task basis. Fagen agrees not to exceed the budget without prior approval from the Heron Lake Bio Energy.

 

APPROVED TASKS

 

New Source Performance Standard (NSPS) Notifications

$1,000 to $1,500

 

 

Fagen will prepare all required NSPS notifications and submit to the MPCA on behalf of HLBE. The required reporting timeframe for commencement of construction of the tanks and piping in light liquid service and the BFB Coal Combustor expired prior to execution of this agreement, but after-the-fact notifications have been submitted.

 

Industrial Storm Water Pollution Prevention Plan

$2,500 to $5,000

 

 

Fagen will develop a site specific Industrial Storm Water Pollution Prevention Plan for HLBE and deliver a final copy prior to facility start-up. Fagen can also provide the initial training associated with SWPPP implementation, if requested. SWPPP implementation and performance of the required onsite inspections and filing of incidence reports are considered outside of this scope.

 

Risk Management Plan

$1,500 to $2,500

 

 

Section 112 ( r ) of the Clean Air Act requires that facilities storing regulated toxic or flammable materials above a certain threshold quantities prepare and submit a Risk Management Plan (RMP) to the Federal Government and State and local emergency responders. Fagen will prepare a Risk Management Plan for the HLBE facility and assist with submittal to the appropriate agencies prior to plant start-up. Fagen will also work with plant management to facilitate coordination with local emergency response officials.

 



 

Spill Prevention. Control. and Countermeasure Plan

$6,000 to $10,000

 

 

Fagen will prepare the HLBE Spill Prevention Control and Countermeasure (SPCC) Plan in accordance with EP A 40 CFR Part 11 0 and evaluate the need for a Facility Response Plan (FRP). If it is determined that an FRP is required, Fagen will develop the Plan and incorporate it into the SPCC Plan accordingly. The SPCC Plan and FRP will be prepared under the direction of a licensed professional engineer (PE), as per Federal regulations. Fagen will also provide assistance to HLBE with SPCC/FRP Plan implementation.

 

Alcohol and Tobacco Tax and Trade Bureau Permit

$750 to $1,000

 

 

The Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (TTB), requires that ethanol plants obtain an Alcohol Fuel Producer permit prior to commencing operations. Fagen will assist HLBE in preparing this application and submitting to the TTB in order to secure the permit in advance of anticipated facility start-up.

 

Where appropriate, Fagen is willing to assist with additional activities or provide any services not specifically included in this scope of work and will gladly provide an amendment to this proposal and a revised cost estimate.

 

Please sign below and return an executed copy to my attention. Thank you again for this opportunity to assist you.

 

Sincerely,
FAGEN ENGINEERING, LLC

 

 

/s/ M Rutledge

 

Michael Rutledge

Department Head

Environmental Services

 

AUTHORIZATION TO PROCEED:

 

By:

Robert J. Ferguson

 

 

/s/ Robert J. Ferguson

 

 

 

 

 

Signature of authorized representative

 

 

 

 

 

President Board of Governors

 

 

 

 

 

3/14/07

 

 

2


EXHIBIT 10.16

 

COAL LOADING, TRANSPORT, AND DELIVERY AGREEMENT

 

This “Agreement” between Tersteeg Transport Inc. (“Tersteeg”) located at 110 1 st St. North Olivia, MN 56277 and Heron Lake BioEnergy, LLC (“HLBE”) located at 91246 390 th Avenue, Heron Lake, MN is valid as of April 1, 2007.  The term of this Agreement shall be contingent upon the execution of, and coincide with, HLBE’s other five-year coal Agreements which will terminate no sooner than December 31, 2011 and no later than April 1, 2012, provided that Tersteeg performs in accordance with this Agreement.

 

HLBE is constructing a coal-fired ethanol facility (“Facility”) in Heron Lake, MN that is expected to become operational in mid-May 2007 and that is expected to require approximately 100,000 tons of coal per year at full output.  HLBE has contracted for coal deliveries to Southern Minnesota Beet Sugar Cooperative’s (“SMBSC”) facilities near Renville, MN and shall expect Tersteeg to load, transport, and deliver HLBE’s coal from such location to HLBE’s Facility at Heron Lake, MN in accordance with its requirements, which shall be regularly communicated to Tersteeg.

 

Tersteeg operates a trucking and heavy machinery business in Minnesota as an independent contractor and regularly has loading equipment and personnel on-site at SMBSC’s Renville facilities.  Tersteeg has familiarized itself with SMBSC’s facilities and HLBE’s Facility, their respective operational requirements, potential haul routes, weather, truck laws and weight limit regulations in Minnesota, and on the basis of such information and other information, has agreed to load, transport, and deliver HLBE’s coal for a base rate of $9.00 per ton at an assumed diesel fuel price of between $2.406-$2.470 per gallon.  Such rate shall be subject to (1) one annual 3% increase on the anniversary date of this Agreement and (2) adjustments for changes in the price of diesel fuel posted by EIA for each billing period in accordance with Attachment A, which shall also be subject to an annual 3% increase.

 

By this Agreement, HBLE commits to having Tersteeg load, transport, and deliver all of HLBE’s coal requirements to its Facility, but is making no representation or warranty as to its actual annual coal requirements.  HLBE agrees to make required payments to invoices submitted by Tersteeg in two week intervals on a 15 day net basis. If HLBE fails to make a payment on scheduled due date, interest on payment shall accrue at 1% per month billed twice per month.

 

Tersteeg shall load and haul coal in compliance with all applicable federal, state, and local laws and regulations. Tersteeg is responsible for having “clean trucks” free from any foreign material. Tersteeg agrees to maintain an adequate supply of coal at HLBE’s Facility sufficient for HLBE’s operational requirements.  Tersteeg shall be responsible for HLBE’s coal in transit and any losses incurred during the time it is in Tersteeg’s possession, including any clean-up costs. Tersteeg shall maintain sufficient cargo liability coverage to protect Heron Lake BioEnergy from losses incurred in transportation of coal to the HLBE facility.  Tersteeg shall maintain a minimum of 50% supply in the storage tank at all times. The only exception to this requirement would be adverse weather lasting more than three (3) consecutive days allowing no travel.

 



 

HLBE agrees to compensate Tersteeg for detention time in the event that mechanical defects at HLBE’s Facility won’t allow Tersteeg to unload coal within forty-five (45) minutes at arrival at such Facility.  Detention time for such occurrences shall be charged at a “Detention Rate” of $25.00 per hour for the time documented by Tersteeg for each truck at HLBE’s Facility waiting to dump coal.  Such Detention Rate shall be subject to an annual 3% increase at the anniversary date of this Agreement.  In the event that Tersteeg is directed by HLBE to return loads to SMBSC’s facilities due to mechanical defects at HLBE’s Facility, there shall be no extra charge to return. The total cost of this trip will stay @ the regular delivery charges.

 

In the event that Tersteeg is directed by HLBE to deliver loads of coal to alternate sites, the rates for such deliveries will be mutually agreed upon between the parties prior to making those deliveries.

 

Tersteeg agrees to defend, indemnify, and hold harmless HLBE and its employees and officials from any claims, demands, actions or causes of action, including reasonable attorney’s fees and expenses rising out of any act or omission on the part of Tersteeg, or its subcontractors, partners or independent contractors or any of their agents or employees in the performance of or with relation to any of the work or services to be performed or furnished by Tersteeg or subcontractors, partners, or independent contractors or any of their agents or employees under the agreement.

 

As evidence of required coverage, Tersteeg shall furnish an original Certificate of Insurance to HLBE before work commences.  The Certificate should include a minimum 90-day written notice of intent to cancel, suspend or reduce coverage.  The Certificate should identify HLBE as an Additional Insured for relevant coverages, except Workers Compensation.  Insurance should be placed with a current A.M. Best rating of no less than A: Class Size VII.  Tersteeg Transport Inc. shall maintain a minimum of $1,000,000 of commercial general liability and automobile coverage for the duration of this contract.

 

In the event that HLBE is dissatisfied with service provided by Tersteeg, it shall have the right to terminate this Agreement with five (5) days notice, provided that Tersteeg has been notified of HLBE’s concerns and has had sufficient reasonable time to implement measures to correct such deficiencies to HLBE’s satisfaction.

 

 

/s/ Alan M. Tersteeg

 

/s/ Robert J. Ferguson

 

 

 

Tersteeg Transport, Inc.

 

Heron Lake BioEnergy, LLC

 

 

 

Alan M. Tersteeg, President

 

Robert J. Ferguson, President

 

 

 

 

 

Board of Governors

 

 

 

Date:

4/3/07

 

Date:

4/6/07

 

 

 

Witnessed by:

 

 

 

 

 

/s/ Peggy Tersteeg

 

/s/ Jean M. Ferguson

 

 

 

Date:

4/3/07

 

Date:

4/6/07

 



 

Attachment A:  Rate Schedule for Changes in Diesel Fuel Prices

 

 

 

RATE CHARGED TO HLBE ($ /TON)

 

EIA AVG COST
PER GALLON

 

YEAR 1

 

YEAR 2

 

YEAR 3

 

YEAR 4

 

YEAR 5

 

1.431 -1.495

 

$

8.10

 

$

8.34

 

$

8.59

 

$

8.85

 

$

9.12

 

1.496 - 1.560

 

$

8.16

 

$

8.40

 

$

8.66

 

$

8.92

 

$

9.18

 

1.561- 1.625

 

$

8.22

 

$

8.47

 

$

8.72

 

$

8.98

 

$

9.25

 

1.626 - 1.690

 

$

8.28

 

$

8.53

 

$

8.78

 

$

9.05

 

$

9.32

 

1.691 - 1.755

 

$

8.34

 

$

8.59

 

$

8.85

 

$

9.11

 

$

9.39

 

1.76 - 1.820

 

$

8.40

 

$

8.65

 

$

8.91

 

$

9.18

 

$

9.45

 

1.821 - 1.885

 

$

8.46

 

$

8.71

 

$

8.98

 

$

9.24

 

$

9.52

 

1.886 - 1.950

 

$

8.52

 

$

8.78

 

$

9.04

 

$

9.31

 

$

9.59

 

1.951 - 2.015

 

$

8.58

 

$

8.84

 

$

9.10

 

$

9.38

 

$

9.66

 

2.016 - 2.080

 

$

8.64

 

$

8.90

 

$

9.17

 

$

9.44

 

$

9.72

 

2.081 - 2.145

 

$

8.70

 

$

8.96

 

$

9.23

 

$

9.51

 

$

9.79

 

2.146 - 2.210

 

$

8.76

 

$

9.02

 

$

9.29

 

$

9.57

 

$

9.86

 

2.211 - 2.275

 

$

8.82

 

$

9.08

 

$

9.36

 

$

9.64

 

$

9.93

 

2.276 - 2.340

 

$

8.88

 

$

9.15

 

$

9.42

 

$

9.70

 

$

9.99

 

2.341 - 2.405

 

$

8.94

 

$

9.21

 

$

9.48

 

$

9.77

 

$

10.06

 

2.406 - 2.470

 

$

9.00

 

$

9.27

 

$

9.55

 

$

9.83

 

$

10.13

 

2.471 - 2.535

 

$

9.06

 

$

9.33

 

$

9.61

 

$

9.90

 

$

10.20

 

2.536 - 2.600

 

$

9.12

 

$

9.39

 

$

9.68

 

$

9.97

 

$

10.26

 

2.601 - 2.665

 

$

9.18

 

$

9.46

 

$

9.74

 

$

10.03

 

$

10.33

 

2.666 - 2.730

 

$

9.24

 

$

9.52

 

$

9.80

 

$

10.10

 

$

10.40

 

2.731 - 2.795

 

$

9.30

 

$

9.58

 

$

9.87

 

$

10.16

 

$

10.47

 

2.796 - 2.860

 

$

9.36

 

$

9.64

 

$

9.93

 

$

10.23

 

$

10.53

 

2.861 - 2.925

 

$

9.42

 

$

9.70

 

$

9.99

 

$

10.29

 

$

10.60

 

2.926 - 2.990

 

$

9.48

 

$

9.76

 

$

10.06

 

$

10.36

 

$

10.67

 

2.991 - 3.055

 

$

9.54

 

$

9.83

 

$

10.12

 

$

10.42

 

$

10.74

 

3.056 - 3.120

 

$

9.60

 

$

9.89

 

$

10.18

 

$

10.49

 

$

10.80

 

3.121 - 3.185

 

$

9.66

 

$

9.95

 

$

10.25

 

$

10.56

 

$

10.87

 

3.186 - 3.250

 

$

9.72

 

$

10.01

 

$

10.31

 

$

10.62

 

$

10.94

 

3.251 - 3.315

 

$

9.78

 

$

10.07

 

$

10.38

 

$

10.69

 

$

11.01

 

 


EXHIBIT 10.17

 

CERTAIN INFORMATION INDICATED BY [***] HAS BEEN DELETED FROM THIS EXHIBIT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2. 

 

COAL TRANSLOADING AGREEMENT

 

THIS COAL TRANSLOADING AGREEMENT (this “Agreement”) is entered into and made effective as of the 1 st day of June, 2007 (the “Effective Date”), by and between SOUTHERN MINNESOTA BEET SUGAR COOPERATIVE , a Minnesota cooperative association (“SMBSC”), and HERON LAKE BIOENERGY, LLC a Minnesota limited liability company (“HLBE”)(SMBSC and HLBE are also referred to herein individually as a “Party” and collectively as the “Parties”).

 

RECITALS

 

A.                                    SMBSC has an existing sugar beet processing plant located in Renville County, Minnesota which currently utilizes coal as the primary source of energy for the operation of the plant (the “SMBSC Plant”).

 

B.                                      HLBE is currently constructing a 50 million gallon per year ethanol product plant in Jackson County, Minnesota which will utilize approximately 100,000 tons per year of coal as the primary source of energy for the operation of the Plant (the “HLBE Plant”).

 

C.                                      The Parties both intend to purchase their coal from a mine operated by Rio Tinto Energy America (“RTEA”) in the State of Montana (the “Mine”), pursuant to separate coal purchase agreements which will be the separate contract and liability of each Party.

 

D.                                     The Parties both intend to separately contract for and pay the cost of transporting their coal from the Mine to Renville County, Minnesota pursuant to separate coal transportation agreements which will be the separate contract and liability of each Party.

 

E.                                       The Parties believe that certain cost savings can be realized by delivering their separately purchased and transported coal to a single transloading facility in Renville County, Minnesota to be owned and operated by SMBSC (the “Facility”) until the coal can be further transferred to the SMBSC Plant and the HLBE Plant.

 

AGREEMENT

 

NOW THEREFORE , for and in consideration of the premises, the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Parties, and in reliance upon the recitals, representations, warranties, covenants, terms and conditions set forth herein, the Parties agree as follows:

 



 

ARTICLE 1. — TERM

 

1.1                                  Term . The term of this Agreement (the “Term”) shall commence on the Effective Date and end on May 31, 2012 (the “Expiration Date”).

 

1.2                                  Commencement of Deliveries . Deliveries of coal to the Facility by HLBE shall commence not earlier than June 15, 2007.

 

ARTICLE 2. - COAL QUANTITY; SOURCE

 

2.1                                  Source of Coal . During the Term of this Agreement, the Parties shall both source their coal from the Mine operated by RTEA. Because the coal will be intermingled, the quality of the coal shall meet the specifications set forth in Exhibit A and the source of the coal may only be changed by the mutual written agreement of the Parties.

 

2.2                                  Ratable Delivery and Use . HLBE agrees that the quantity of coal that it will require to be delivered to the Facility is not expected to exceed 12,500 tons per month, unless otherwise mutually agreed to by SMBSC and HLBE in order to optimize the use of the dedicated train set and railroad delivery schedules. HLBE further agrees that its re- loading and removal of coal from the Facility will be reasonably consistent with HLBE’s average monthly consumption of coal at the HLBE Plant and that HLBE will not stockpile coal in quantities that exceed the reasonable storage capacity of the Facility, as determined by SMBSC, which is expected to be sufficient to accommodate HLBE’s requirements.

 

ARTICLE 3. - SMBSC OBLIGATIONS

 

3.1                                  General Duties . During the Term of this Agreement, SMBSC will:

 

3.1.1                         Provide sufficient personnel and equipment to properly man and operate the Facility in accordance herewith;

 

3.1.2                         Unload railcars and store the coal in accordance with sound and customary practice in the industry;

 

3.1.3                         Operate the Facility so that each unit train is unloaded during the allowable free time, unless exempted by Force Majeure;

 

3.1.4                         Operate the Facility so that HLBE may pick up its coal at the Facility within reasonable business hours established by SMBSC;

 

3.1.5                         SMBSC shall exclusively coordinate, schedule, and direct movement of all railcars to the Facility; and

 

3.1.6                         Maintain insurance on the Facility and on coal owned by SMBSC.

 

3.2                                  Limits of Liability . Notwithstanding any other provisions hereof, SMBSC shall not be liable or deemed in default hereunder with respect to any of the following matters:

 

2



 

3.2.1                         Any operating or other problems, delays, costs or expenses incurred by HLBE due to Force Majeure;

 

3.2.2                         Any deliveries of coal by HLBE to the Facility that are not in compliance with Section 3.1.5;

 

3.2.3                         Any loss, cost, expense or damage arising out of or attributable to operational requests or directives of HLBE or of any railroad serving the Facility other than as contemplated hereby;

 

3.2.4                         Any loss, cost, expense or damage to any property of HLBE except (i) to the extent such loss, cost, expense or damage is covered by insurance obtained by SMBSC, and (ii) those matters as to which SMBSC has indemnified HLBE pursuant to Section 9.3 hereof;

 

3.2.5                         Any incidental, punitive, exemplary, business interruption, special or consequential damages, including lost profits, of any nature whatsoever, whether in tort or in contract, incurred by HLBE or any other person or entity;

 

3.2.6                         Inventory losses due to acts of God;

 

3.2.7                         Any damage to any railcar owned or leased by HLBE while at the Facility unless such damage is the result of the gross negligence of SMBSC or its employees; and

 

3.2.8                         Demurrage, delay charges, or any consequential costs associated with transportation delays.

 

ARTICLE 4. — HLBE OBLIGATIONS

 

4.1                                  General Duties . During the Term of this Agreement, HLBE will cooperate with SMBSC in the performance of its duties under this Agreement, and in any event shall:

 

4.1.1                         On a monthly basis, provide SMBSC with a rolling estimate of HLBE’s anticipated use of coal for the ensuing 90 days;

 

4.1.2                         Make the payments in the manner required by Article 6.2 hereof;

 

4.1.3                         Re-load and remove coal from the Facility as provided for in Section 2.2;

 

4.1.4                         Not store any vehicles, trucks, or equipment at the Facility that pose a safety hazard or which interfere with the reasonable operation of the Facility;

 

4.1.5                         Maintain insurance on any coal owned by HLBE that is stored at the Facility; and

 

4.1.6                         Provide certified weights of each train of coal delivered to the Facility.

 

3



 

ARTICLE 5. - QUANTITIES AND SHRINK

 

5.1                                  Quantities . The volume of product sold to HLBE by RTEA shall be determined by an official copy of the bill of lading and/or the mine manifest (“Shipping Documents”) for each unit train or partial unit train shipped by RTEA for the account of HLBE. HLBE agrees to instruct RTEA to supply SMBSC with a copy of all Shipping Documents necessary to verify the quantity of coal shipped to the Facility on behalf of HLBE, subject to the redaction of pricing information as deemed necessary by HLBE.

 

5.2                                  Shrink . In order to account for shrinkage, the amount of coal that HLBE shall be entitled to remove from the Facility shall be reduced by a quantity equal to one percent (1%) of the total quantity of HLBE’s coal listed on the Shipping Documents for each unit train.

 

ARTICLE 6. — PAYMENT; FEES

 

6.1                                  Fees . HLBE shall pay SMBSC a handling fee of [***] for each net ton (2,000 pounds) of coal that is re-loaded by HLBE at the Facility. For the purpose of calculating the handling fee, all weights shall be as determined by the scale at the Facility.

 

6.2                                  Invoices; Payments . Not later than the 10 th Day of each Month commencing in July 2007, SMBSC shall deliver to HLBE an invoice for coal picked up by HLBE the previous month. HLBE shall remit payment to SMBSC not later than 10 calendar days after the date of each Invoice. Payment of any invoice without providing a written notice of dispute as provided for in this Section shall be deemed final payment and a waiver of any dispute regarding the services provided pursuant to the invoice. In the event of a dispute regarding any amounts shown on any Invoice that the Parties have been unable to resolve by the date payment is due, the Party challenging any such amounts shall pay all undisputed amounts when due. Such payment of all undisputed amounts shall be accompanied by a statement setting forth in reasonable detail all amounts disputed, the reason for the dispute, and a request for any additional documentation believed to be necessary to support the disputed amounts or to resolve the dispute. If the Parties are thereafter unable to resolve the dispute either through the exchange of additional documentation or good faith business negotiations prior to the due date for payment of the next Invoice, either Party may submit the matter to arbitration in accordance with Section 10.1

 

6.3                                  Interest on Late Payments . Late payments shall bear interest from the date past due until paid at the rate of 18% per annum.

 

ARTICLE 7. -DEFAULT; REMEDIES

 

7.1                                  Event of Default . An “Event of Default” shall mean any of the actions set forth below in this Section:

 

7.1.1                         The failure by SMBSC to perform any covenant set forth in this Agreement (other than the events that are otherwise specifically covered in this Section as a separate Event of Default), and such failure is not excused by SMBSC’s failure to perform its obligations under this Agreement or by Force Majeure or cured within 30 Days after written notice thereof from HLBE;

 

4



 

7.1.2                         Any material adverse change in the ability of HLBE to perform its obligations under this Agreement;

 

7.1.3                         Failure of the HLBE Plant to transload [***] tons of coal per year through the facility (each year will begin on June 1st), or

 

7.1.4                         HBLE shall fail to pay any undisputed invoice within 15 Days after notice of such failure by SMBSC.

 

7.2                                  SMBSC’s Right of Offset Upon an Event of Default; Liquidated Damages . If, during the Term, HLBE fails to make any undisputed payment within 15 calendar days of written notice of such failure by SMBSC, or any disputed payment within 3 business days of any final determination under Section 10.1 hereof: (i) SMBSC shall have the right to offset the value of HLBE’s unsatisfied obligation against SMBSC’s then remaining obligation to deliver coal under this Agreement by an amount of tonnage having an equivalent value to HLBE’s unsatisfied obligation calculated at the rate of $45 per ton of coal; and (ii) if the amount of HLBE’s unsatisfied obligation cannot be fully offset in the manner provided in the immediately preceding clause or HLBE cannot provide reasonable assurances that it can pay for invoices when due, SMBSC shall have the additional right to terminate this Agreement for cause by providing written notice to HLBE of such termination (“Early Termination”). In the event that SMBSC invokes Early Termination, HLBE shall pay to SMBSC, as liquidated damages and not as a penalty, the sum of $10,000 per month for each remaining month of the Term. The total amount of such liquidated damages shall be paid by HLBE to SMBSC within five Business Days of Notice of such amount by SMBSC.

 

ARTICLE 8. — FORCE MAJEURE

 

8.1                                  Force Majeure . “Force Majeure” shall mean an event not anticipated as of the Effective Date which is not within the reasonable control of the Party claiming suspension (the “Claiming Party”), and which by the exercise of due diligence the Claiming Party is unable to overcome or to obtain, or cause to be obtained, a commercially reasonable substitute therefor, and may include, but is not restricted to acts of God; act of public enemy; war; lightning; fire; violent storm; explosion; civil disturbance; public riot; labor dispute; environmental catastrophe; inability to obtain government permits or utility services or similar events or occurrences; labor or material shortage; sabotage; and action or restraint by public or governmental authority, and other events which wholly or partially prevent the mining or transportation of coal purchased by either Party, or the receiving, unloading, storing, or loading coal purchased by either Party. Force Majeure shall not include economic hardship or any curtailment in operations of the SMBSC Plant or the HLBE Plant so as to reduce or eliminate the need for coal.

 

8.2                                  Notice . Any Party affected by Force Majeure shall give prompt written Notice to the other Party of such condition. If either Party is prevented, in whole or in part, from performing any of its obligations due to Force Majeure, such obligations (other than the obligation to make monetary payments as required under this Agreement) shall be suspended during the pendency of such Force Majeure. The Claiming Party shall initiate and continue economically reasonable good faith efforts to remedy any Force Majeure (except that labor issue resolutions shall be totally within the discretion of the Claiming Party).

 

5



 

ARTICLE 9. - RISK OF LOSS; INDEMNITY

 

9.1                                  TITLE . TITLE TO THE COAL PURCHASED BY EACH PARTY AND RISK OF LOSS THEREOF SHALL REMAIN WITH EACH PARTY AT ALL TIMES, WHETHER OR NOT THE COAL IS LOCATED AT THE FACILTY. EACH PARTY AGREES TO SEPARATELY INSURE THE RISK OF LOSS TO ITS COAL. HLBE EXPRESSLY ACKNOWLEDGES AND AGREES THAT SMSBC SHALL ONLY BE LIABLE FOR ANY LOSS TO HLBE’S COAL THAT RESULTS FROM SMBSC’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

 

9.2                                  HLBE’s Indemnification of SMBSC . SMBSC shall not be liable for and HLBE shall indemnify and hold harmless SMBSC, and its directors, officers, employees, subcontractors, and agents, from and against any and all claims, damages, fines, penalties or causes of action and defense thereof arising from or related to the performance of this Agreement, caused or arising from the act or omission, whether or not due to fault, of HLBE or resulting from any breach of this Agreement by HLBE, including as a result of:

 

9.2.1                         Any injury, damages, or loss of life to any employee or agent of HLBE present at the Facility, including but not limited to any injury, damages, or loss of life that arise out of the loading of coal by HLBE at the Facility, unless such injury, damages, or loss of life is the result of the gross negligence or intentional misconduct of SMBSC or one of its employees.

 

9.2.2                         All disputes with HLBE’s rail carrier that do not arise out of the negligence or intentional misconduct of SMBSC or its employees;

 

9.2.3                         Any delay in the delivery of HLBE’s coal to the Facility; or

 

9.2.4                         The failure of HLBE’s coal to meet the Specifications attached hereto as Exhibit A.

 

9.3                                  SMBSC’s Indemnification of HLBE . SMBSC shall indemnify and hold harmless HLBE and its respective directors, officers, employees, subcontractors, and agents, from and against any and all Claims, damages, fines, penalties or causes of action and defense thereof arising from or related to any breach of this Agreement by SMBSC.

 

ARTICLE 10. — DISPUTE RESOLUTION; ARBITRATION; GOVNERNING LAW

 

10.1                            Arbitration . ANY DISPUTE ARISING OUT OF THIS AGREEMENT SHALL BE SUBMITTED TO BINDING ARBITRATION PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) WITH THE ARBITRATION HEARING TO BE HELD IN MINNEAPOLIS, MINNESOTA.

 

10.2                            Governing Law . This Agreement and the rights and duties of the parties hereunder shall be governed by and construed, enforced and performed in accordance with the laws of the state of Minnesota, without giving effect to principles of conflicts of laws.

 

6



 

ARTICLE 11. — NOTICES

 

11.1                            All notices, requests, Invoices or statements required under this Agreement to be in writing (each a “Notice”) shall be delivered by letter, facsimile or other documentary form. Notice by facsimile or hand delivery shall be deemed to have been received by the close of the Business Day on which it was transmitted or hand delivered (unless transmitted or hand delivered after close in which case it shall be deemed received at the close of the next Business Day). Notice by overnight mail or courier shall be deemed to have been received two Business Days after it was sent. A Party may change its address by providing Notice of same in accordance with this Article 10. The initial addresses for the Parties to which Notice may be given are:

 

11.2

HLBE:

 

Attn: Board President

 

 

 

Heron Lake BioEnergy, LLC

 

 

 

91246 390 th Avenue

 

 

 

Heron Lake, MN 56137-0198

 

 

 

 

11.3

SMBSC:

 

Attn: Director of Transportation

 

 

 

Southern Minnesota Beet Sugar Cooperative

 

 

 

83550 County Road 21

 

 

 

Renville, MN 56284-0500

 

ARTICLE 12. — MISCELLANEOUS

 

12.1                            Entire Agreement . This Agreement, including the Exhibits hereto, constitutes the entire agreement between the Parties. There are no prior or contemporaneous agreements or representations affecting the same subject matter other than those expressly stated in this Agreement. Except for any matters which, in accordance with the express provisions of this Agreement, may be resolved by verbal agreement between the Parties, no amendment, modification or change herein shall be enforceable unless reduced to writing and executed by both Parties.

 

12.2                            Assignment . Neither party shall sell, assign or grant a security interest in any of its rights or obligations under this Agreement without the prior written consent of the other Party, which may be withheld or granted at the sole discretion of the Party whose consent is required, provided however, that such consent will not be unreasonably withheld.

 

12.3                            Severability . Except as otherwise stated herein, any provision or article declared or rendered unlawful by any applicable court of law or regulatory agency, or deemed unlawful because of a statutory change, will not otherwise affect the lawful obligations that arise under this Agreement.

 

12.4                            Captions and Exhibits . The headings used for the sections and articles herein are for convenience and reference purposes only and shall in no way affect the meaning or interpretation of the provisions of this Agreement. Any and all Exhibits referred to in this Agreement are, by such reference, incorporated herein.

 

7



 

12.5                            Confidentiality . Each Party agrees that the terms of this Agreement, are intended to be confidential and are not to be discussed with or disclosed to any third party, except: (i) with the express prior written consent of the other Party hereto; (ii) as may be required or appropriate in response to any summons, subpoena, or discovery order or to comply with any applicable law, order, regulation, or ruling; or (iii) to the Parties’ affiliates and the directors, employees, advisors, lenders, and representatives of the Parties and their affiliates solely for the purpose of evaluating, negotiating, and consummating the transactions contemplated by the Parties under this Agreement and who agree to maintain the confidentiality hereof.

 

12.6                            Counterparts . This Agreement may be executed in separate counterparts, each of which shall constitute one Agreement binding on the Parties, notwithstanding that both Parties are not signatory to the same counterpart. This Agreement shall be deemed executed when each Party has received a copy of the signature page, including any electronically transmitted facsimile, bearing the signature of the other Party.

 

12.7                            Interpretation . The provisions of this Agreement have been mutually negotiated by the Parties and should not be interpreted for or against any Party by reason of the fact that such Party may have drafted any provision in this Agreement.

 

IN WITNESS WHEREOF , the Parties have entered into this Agreement as of the Effective Date first set forth above.

 

 

SOUTHERN MINNESOTA BEET SUGAR
COOPERATIVE

 

 

 

 

By:

 /s/ J. L Plathe

 

Title:

 CFO

 

Date:

 May 11, 2007

 

 

 

 

HERON LAKE BIOENERGY, LLC

 

 

 

 

By:

 /s/ Robert Ferguson

 

Title:

 President HLBE

 

Date:

 6/1/07

 

8



 

Exhibit A

 

SPRING CREEK COAL MINE

2006 QUALITY SPECIFICATIONS

 

 

 

 

 

 

 

 

 

 

 

 

 

TYPICAL

 

 

 

TYPICAL

 

STANDARD

 

TYPICAL 95% RANGE

 

TYPICAL

 

MOISTURE-ASH FREE

 

QUALITY PARAMETER

 

(MEAN VALUE)

 

DEVIATION

 

-2 STD DEV

 

+2 STD DEV

 

DRY VALUE

 

VALUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROXIMATE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

% Moisture

 

25.40

 

0.56

 

24.28

 

26.52

 

 

 

 

 

% Ash

 

4.12

 

0.33

 

3.46

 

4.78

 

5.52

 

 

 

% Volatile

 

31.26

 

0.81

 

29.64

 

32.88

 

41.90

 

44.35

 

% Fixed Corbon

 

39.23

 

0.80

 

37.63

 

40.83

 

52.59

 

55.66

 

BTU/lb

 

9338

 

103

 

9132

 

9544

 

12517

 

13249

 

MAFBTU

 

13249

 

80.08

 

13089

 

13409

 

 

 

 

 

Dry BTU

 

12517

 

93.71

 

12330

 

12705

 

 

 

 

 

% Sulfur

 

0.34

 

0.07

 

0.20

 

0.48

 

0.46

 

0.48

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ULTIMATE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

% Moisture

 

25.40

 

0.56

 

24.28

 

26.52

 

 

 

 

 

%. Carbon

 

54.14

 

3.28

 

47.58

 

60.70

 

72.57

 

70.82

 

% Hydrogen

 

3.80

 

0.23

 

3.34

 

4.26

 

5.09

 

5.39

 

% Nitrogen

 

0.71

 

0.09

 

0.53

 

0.89

 

0.95

 

1.01

 

% Chlorine

 

0.00

 

0.01

 

0.00

 

0.01

 

0.00

 

0.00

 

% Sulfur

 

0.34

 

0.07

 

0.20

 

0.48

 

0.46

 

0.48

 

% Ash

 

4.12

 

0.33

 

3.46

 

4.78

 

 

 

 

 

% Oxygen

 

11.50

 

0.70

 

10.10

 

12.90

 

15.42

 

16.32

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SULFUR FORMS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pyritic Sulfur (%)

 

0.05

 

0.03

 

0.00

 

0.11

 

0.07

 

0.07

 

Sulfale Sulfur (%)

 

0.01

 

0.015

 

0.00

 

0 04

 

0.01

 

0.01

 

Organic Sulfur (%)

 

0.28

 

0.06

 

0.16

 

0.40

 

0.38

 

0.40

 

Total Sulfur (%)

 

0.34

 

0.07

 

0.20

 

0.48

 

0.46

 

0.48

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MINERAL ANALYSIS OF ASH

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

% Silicon Dioxide (Silica, SiO2)

 

32.52

 

2.78

 

26.98

 

38.08

 

43.59

 

46.14

 

% Aluminium Oxide (Alumina, Al2O3)

 

17.69

 

1.09

 

15.51

 

19.87

 

23.71

 

25.10

 

% Titanium Dioxide (Titania, TiO2)

 

1.13

 

0.10

 

0.93

 

1.33

 

1.51

 

1.60

 

% Iron oxide (Ferric Oxide. Fe2O3)

 

4.76

 

0.47

 

3.82

 

5.70

 

6.38

 

6.75

 

% Calcium Oxide (Lime, CaO)

 

15.36

 

1.41

 

12.54

 

18.18

 

20.59

 

21.79

 

% Magnesium Oxide (Magnesia, MgO)

 

3.69

 

0.85

 

1.99

 

5.39

 

4.95

 

5.24

 

% Potassium Oxide (K2O)

 

0.63

 

0.14

 

0.35

 

0.91

 

0.84

 

0.89

 

% Sodium Oxide (Na2O)

 

8.24

 

1.00

 

6.24

 

10.24

 

11.05

 

11.69

 

%  Sulfur Trioxide (SO3)

 

14.07

 

2.50

 

9.07

 

19.07

 

18.86

 

19.96

 

% Phosphorous Pentoxide (P2O5)

 

0.35

 

0.06

 

0.23

 

0.47

 

0.47

 

0.50

 

% Strontium Oxide (SrO)

 

0.37

 

0.22

 

0.00

 

0.81

 

0.50

 

0.52

 

% Barium Oxide (BaO)

 

1.19

 

0.31

 

0.57

 

1.81

 

1.60

 

1.69

 

% Undetermined

 

0.00

 

1.00

 

0.00

 

2.00

 

0.00

 

0.00

 

Base/Acid Ratio

 

0.64

 

0.08

 

0.48

 

0.80

 

 

 

 

 

Base Value

 

32.68

 

2.20

 

28.28

 

37.08

 

 

 

 

 

Acid Varue

 

51.34

 

3.00

 

45.34

 

57.34

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ASH FUSION TEMPERATURES

 

 

 

 

 

 

 

 

 

 

 

 

 

Reducing (°F)

 

 

 

 

 

 

 

 

 

 

 

 

 

Initial

 

2106

 

37

 

2031

 

2181

 

 

 

 

 

Softening (H=W)

 

2129

 

36

 

2056

 

2202

 

 

 

 

 

Hemispherical (H=1/2W)

 

2141

 

39

 

2062

 

2220

 

 

 

 

 

Fluid

 

2164

 

51

 

2062

 

2266

 

 

 

 

 

Fluid-Initial Temp. Difference

 

58

 

40

 

0

 

138

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Oxidizing (°F)

 

 

 

 

 

 

 

 

 

 

 

 

 

Initial

 

2351

 

98

 

2156

 

2546

 

 

 

 

 

Softening (H=W)

 

2366

 

81

 

2204

 

2528

 

 

 

 

 

Hemispherical (H=1/2W)

 

2391

 

73

 

2245

 

2537

 

 

 

 

 

Fluid

 

2423

 

77

 

2268

 

2578

 

 

 

 

 

Fluid-Initial Temp. Difference

 

72

 

60

 

0

 

192

 

 

 

 

 

 

9



 

 

 

 

TYPICAL

 

STANDARD

 

TYPICAL 95% RANGE

 

QUALITY PARAMETER

 

(MEAN VALUE)

 

DEVIATION

 

-2 STD DEV

 

+2 STD DEV

 

ADDITIONAL ANALYSES AND CALCULATED

 

 

 

 

 

 

 

VALUES

 

 

 

 

 

 

 

 

 

T250 Temperature (°F)

 

2153

 

91.88

 

1969

 

2337

 

HGI (at as-received moisture)

 

60.6

 

5.6

 

49

 

72

 

HGI % Moisture

 

24.13

 

3.88

 

16

 

32

 

Critical Viscosity Temperature (°F)

 

0

 

0

 

0

 

0

 

Critical Viscosity (Poises)

 

0

 

0

 

0

 

0

 

% Equilibrium Moisture

 

23.93

 

0.56

 

22.81

 

25.05

 

Specific Gravity

 

1.10

 

0.015

 

1.07

 

1.13

 

%Alkalies NA2O Dry (Total Alkali Content on Coal)

 

0.478

 

0.070

 

0.34

 

0.62

 

%Water Soluble Alk - Na2O

 

0.000

 

0.000

 

0.00

 

0.00

 

%Water Soluble Alk - K2O

 

0.000

 

0.000

 

0.00

 

0.00

 

%Na2O Dry Coal

 

0.46

 

0.03

 

0.40

 

0.52

 

%Na2O As-received Coal

 

0.34

 

0.02

 

0.30

 

0.38

 

Silica Value (Silica Ratio)

 

57.73

 

 

 

 

 

 

 

Slag Factor

 

0.28

 

0.14

 

0.00

 

0.56

 

Slag factor per Fusion Temperature

 

2163

 

85

 

1993

 

2333

 

Dolomite Ratio

 

58.29

 

3.25

 

51.79

 

64.79

 

Ash Precipitation Index

 

3.97

 

10.1

 

0.00

 

24.17

 

Silica to Alumina Ratio

 

1.84

 

0.14

 

1.56

 

2.12

 

Calcium to Silica Ratio

 

0.47

 

0.34

 

0.00

 

1.15

 

Iron to Calcium Ratio

 

0.31

 

0.07

 

0.17

 

0.45

 

Fouling Factor (Fouling Index)

 

5.25

 

1.41

 

2.43

 

8.07

 

SO2/MMBTU

 

0.73

 

0.075

 

0.58

 

0.88

 

Ibs S/MMBTU

 

0.36

 

0.075

 

0.21

 

0.51

 

Ibs Sodium/MMBTU

 

0.364

 

0.023

 

0.32

 

0.41

 

Ibs Ash/MMBTU

 

4.41

 

0.5

 

3.41

 

5.41

 

 

TYPICAL COAL SIZE                           2 inch

 

 

 

 

 

 

 

Cumulative

 

Wt. Percent

 

Size Fraction

 

Wt. Percent

 

 

 

Wt. Percent

 

Passing Top

 

+3” RD.

 

0

%

 

 

0

%

100

%

3” RD. x 2” RD.

 

4

%

 

 

4

%

100

%

2” RD. x 1” RD.

 

20

%

 

 

24

%

96

%

1” RD. x 1/2” RD.

 

28

%

 

 

52

%

76

%

1/2” RD. x 4 M

 

20

%

 

 

71

%

48

%

4 M x 60 M

 

13

%

 

 

84

%

29

%

60 M x 0

 

16

%

 

 

100

%

16

%

 

TRACE ELEMENT SUMMARY

 

Parts Per Million

 

TYPICAL

 

STANDARD

 

TYPICAL 95% RANGE

 

Whole Coal, Dry Basis

 

(MEAN VALUE)

 

DEVIATION

 

-2 STD DEV

 

+2 STD DEV

 

 

 

 

 

 

 

 

 

 

 

ANTIMONY (Sb)

 

0.00

 

0.00

 

0.00

 

0.00

 

ARSENIC (As)

 

1.50

 

1.00

 

0.00

 

3.50

 

BARIUM (Ba)

 

0.00

 

0.00

 

0.00

 

0.00

 

BERYLLIUM (Be)

 

0.21

 

0.08

 

0.06

 

0.36

 

BORON (B)

 

0.00

 

0.00

 

0.00

 

0.00

 

BROMIDE (Br)

 

0.00

 

0.00

 

0.00

 

0.00

 

CADMIUM (Cd)

 

0.18

 

0.02

 

0.14

 

0.22

 

CHLORINE (Cl)

 

0.00

 

0.00

 

0.00

 

0.00

 

CHROMIUM (Cr)

 

2.40

 

0.75

 

0.90

 

3.90

 

COBALT (Co)

 

0.00

 

0.00

 

0.00

 

0.00

 

COPPER (Cu)

 

0.00

 

0.00

 

0.00

 

0.00

 

FLUORINE (F)

 

41.90

 

11.00

 

19.90

 

63.90

 

LITHIUM (Li)

 

0.00

 

0.00

 

0.00

 

0.00

 

MANGANESE Mn)

 

16.20

 

7.90

 

0.40

 

32.00

 

MERCURY (Hg)

 

0.07

 

0.03

 

0.01

 

0.13

 

MOLYBDNEUM (Mo)

 

0.00

 

0.00

 

0.00

 

0.00

 

NICKEL (Ni)

 

1.53

 

1.00

 

0.00

 

3.53

 

LEAD (Pb)

 

2.60

 

1.00

 

0.60

 

4.60

 

SELENUIM (Se)

 

1.20

 

0.90

 

0.00

 

3.00

 

SILVER (Ag)

 

0.00

 

0.00

 

0.00

 

0.00

 

STRONTIUM (Sr)

 

0.00

 

0.00

 

0.00

 

0.00

 

THALLIUM (Tl)

 

0.00

 

0.00

 

0.00

 

0.00

 

THORIUM (Th)

 

0.00

 

0.00

 

0.00

 

0.00

 

TIN (Sn)

 

0.00

 

0.00

 

0.00

 

0.00

 

URANIUM (U)

 

0.00

 

0.00

 

0.00

 

0.00

 

VANADIUM (V)

 

0.00

 

0.00

 

0.00

 

0.00

 

ZIRCONIUM (Zr)

 

0.00

 

0.00

 

0.00

 

0.00

 

ZINC (Zn)

 

0.00

 

0.00

 

0.00

 

0.00

 

 


* All negative numbers were converted to 0.00

 

10


EXHIBIT 10.18

 

CERTAIN INFORMATION INDICATED BY [***] HAS BEEN DELETED FROM THIS EXHIBIT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2.

 

 

Master Coal Purchase and Sale Agreement

 

between
Northern Coal Transportation Company
and
Heron Lake BioEnergy, LLC

 



 

 

Master Coal Purchase and Sale Agreement Index

 

 

Article 1 .

General Terms and Definitions

 

 

Article 2 .

Term

 

 

Article 3 .

Quantity

 

 

Article 4 .

Delivery and Transportation

 

 

Article 5 .

Coal Quality Specifications

 

 

Article 6 .

Sampling and Analysis

 

 

Article 7 .

Weighing

 

 

Article 8 .

Price and Price Adjustments

 

 

Article 9 .

Invoices, Payments, Netting, Set off, and Credit Ratings

 

 

Article 10 .

Force Majeure

 

 

Article 11 .

Records, Audits, Access

 

 

Article 12 .

Default, Remedies, and Termination

 

 

Article 13 .

Notices

 

 

Article 14 .

Cooperation

 

 

Article 15 .

Warranty, Limitation on Liability, Duty to Mitigate & Indemnification

 

 

Article 16 .

Limitation on Waiver

 

 

Article 17 .

Confidentiality

 

 

Article 18 .

Entirety, Amendments

 

 

Article 19 .

Successors and Assigns

 

 

Article 20 .

Governing Laws

 

 

Article 21 .

Interpretation

 

 

Article 22 .

Survival

 

2



 

MASTER COAL PURCHASE AND SALE AGREEMENT

 

This MASTER COAL PURCHASE AND SALE AGREEMENT (“Agreement”) is entered into and is effective as of the 1” day of June, 2007, between Northern Coal Transportation Company, (“NCTC”), Seller and Heron Lake BioEnergy, LLC, (“Heron Lake”), Buyer. Both NCTC and Heron Lake may be individually referred to herein as a “Party” or collectively as “Parties”.

 

RECITALS

 

WHEREAS, each Party is engaged in the sale and/or purchase of Powder River Basin (“PRB”) Coal or other Coal. The Parties believe it will be mutually beneficial to set the terms and conditions under which such Coal sales and purchases may be made between them.

 

IN CONSIDERATION of the mutual covenants and promises set forth hereafter, the Parties to this Agreement, intending to legally bind themselves, agree now as follows:

 

ARTICLE I.
GENERAL TERMS AND DEFINITIONS

 

1.01                         The terms of this Agreement shall govern all purchases and sales of Coal between the Parties (hereinafter “Transactions”) or options thereon during the term of this Agreement unless the Parties expressly indicate otherwise. All amendments, modifications, revisions and changes to this Agreement or any related Transaction or option must be in writing and signed by both Parties. If the Parties enter into an option concerning the purchase and/or sale of Coal, the terms and conditions of this Agreement and the Confirmation Letter shall govern the Transaction once the option has been exercised.

 

1.02                         For individual Transactions, the Parties shall enter into a written Confirmation Letter (hereinafter “Confirmation”) that sets forth and defines the following: the Buyer, the Seller, the price, price adjustments, quantity, term, quality specifications, mine(s), and any other Transaction-specific provisions mutually agreed upon by the Parties. All Confirmations shall be in writing, signed by both Parties. The Parties intend the provisions of each individual Confirmation and the provisions of this Agreement be construed as one single integrated agreement and that without a written Confirmation the Parties would not otherwise enter into a Transaction. Any inconsistency or conflict between provisions of the individual Confirmation and provisions of this Agreement shall be resolved in favor of any provisions of the Confirmation.

 

1.03                         Each of the following terms when used in this Agreement will have the meaning given to it in this section:

 

a)                                       “Actual Btu” means the monthly ton-weighted average as-received calorific value (stated in Btu/lb.).

 

b)                                       “Buyer” means the Party to a Transaction who is obligated to purchase and receive Coal, or causes Coal to be received.

 

3



 

c)                                       “Claim” means all claims or actions threatened or filed that directly or indirectly relate to the subject matter of this Agreement, including but not limited to indemnity, the resulting losses, damages, expenses, reasonable attorneys’ fees and costs.

 

d)                                       “Coal” means any and all Coal to be sold by Seller and purchased by Buyer pursuant to the terms and conditions of this Agreement.

 

e)                                       “Electronic” means faxes, telegraphs, emails, and all other forms of electronic data transfer.

 

f)                                         “Standard Btu” means the standard calorific value as set forth in a Confirmation (stated in Btu/lb.) and is the basis for a price adjustment as described in Section 9.03.

 

g)                                      “Seller” means the Party to a Transaction who is obligated to sell and deliver Coal or causes Coal to be delivered.

 

h)                                      “Ton” means 2,000 pounds avoirdupois.

 

i)                                         “Loading Provisions” means the terms and conditions of Buyer’s transportation contracts or excerpts thereof that Seller has reviewed and approved. The Loading Provisions are further described in Section 4.04 and attached as Exhibit A.

 

ARTICLE II.
TERM

 

2.01                         This Agreement shall begin on the date first set forth above and shall continue in effect until terminated by either Party upon sixty (60) days written notice to the other Party, which right of termination shall be each Party’s absolute right to exercise. Termination of this Agreement under this Article shall not affect either Party’s rights and obligations with respect to any Transactions that have been agreed to in writing in a Confirmation prior to termination.

 

ARTICLE III.
QUANTITY

 

3.01                         Buyer shall be obligated to purchase and pay for, and Seller shall be obligated to sell and tender for delivery, the amount of Coal agreed to in a Confirmation, except as may be limited by Article 10 of this Agreement.

 

ARTICLE IV.
DELIVERY AND TRANSPORTATION

 

4.01                         For each Transaction, Seller agrees to tender to Buyer and Buyer agrees to accept from Seller the quantity of Coal as provided in the relevant Confirmation. Seller shall tender the Coal to Buyer in accordance with reasonable monthly delivery schedules to be submitted by Buyer in accordance with the Agreement and the Confirmation. Schedules

 

4



 

shall be based on a ratable monthly basis unless otherwise agreed to by both Parties. In addition, Buyer shall provide Seller with annual schedules. If the Seller objects to a schedule submitted by Buyer, Seller shall notify Buyer of its objections within fifteen (15) days of Seller’s receipt of such schedule and the Parties shall work together in good faith to agree on a reasonable and mutually acceptable schedule. The mine(s) used to source the Coal supplied under this Agreement shall be any mine set forth in the Confirmation.

 

ARTICLE V.
COAL QUALITY SPECIFICATIONS; TITLE & RISK OF LOSS

 

If the Parties set forth coal quality specifications in a Confirmation, the following Sections shall apply with respect to those specifications.

 

5.01                         At the Delivery Point, all tendered Coal shall be raw, substantially free of magnetic material and other foreign material impurities, and crushed to a maximum size as set forth in the Confirmation as determined in accordance with applicable American Society of Testing and Materials (ASTM) standards.

 

5.02                         If any Shipment of Coal triggers any of the Rejection Limits specified in the Confirmation for a Transaction (a “Non-Conforming Shipment”), Buyer shall have the option, within twenty-four (24) hours of Buyer’s receipt of the quality analysis of the Coal, of either (i) rejecting such Non-Conforming Shipment prior to unloading the Coal, or, (ii) accepting the Non-Conforming Shipment and in addition to any quality adjustments outlined in the Confirmation, reducing the price of Coal for such trainload by $0.50 per ton. If Buyer fails to timely exercise its rejection rights under this Section as to a Shipment, Buyer shall be deemed to have waived such rights to reject with respect to that Shipment only. Buyer’s failure to timely exercise such notice does not constitute a waiver of its right to any penalty adjustment provided for herein or in the relevant Confirmation. If Buyer timely rejects the Non-Conforming Shipment, Seller shall be responsible for promptly transporting the rejected Coal to an alternative destination determined by Seller and, if applicable, promptly unloading such Coal. Seller shall reimburse Buyer for all reasonable costs and expenses associated with the transportation, storage, handling and removal of the Non-Conforming Shipment. Buyer shall cooperate with Seller in minimizing Seller’s cost of redirecting the rejected Coal. Seller shall replace the rejected coal within a reasonable period of time

 

5.03                         The Parties recognize during the performance of a Transaction, legislative, regulatory bodies or the courts may adopt environmental laws, rules, and regulations that will make it impossible or commercially impracticable for Buyer to utilize Coal purchased under this Agreement. If, as a result of the adoption of such laws, rules, and regulations or changes in the interpretation or enforcement thereof, Buyer, in good faith, decides it will be impossible or commercially impracticable for Buyer to utilize such Coal, Buyer shall promptly notify Seller in writing. After receiving such notification, Buyer and Seller shall promptly consider whether corrective actions can be taken in the mining and preparation of the Coal, in the operation of Buyer’s generating station, or in Seller’s substituting different source Coal. If in the Parties’ reasonable judgment such actions will make it

 

5



 

impossible and commercially impracticable for Buyer to utilize tendered Coal without violating any applicable law, regulation, policy, or order, Buyer shall have the right, upon sixty (60) days notice to Seller, to terminate the Transaction without further obligation on the part of either Party. Termination shall be the sole remedy of Buyer and Seller under this section.

 

5.04                         If during the term of this Agreement, Buyer is unable to handle or burn the coal supplied by Seller satisfactorily, even though the coal complies with all quality specifications set forth in this Agreement and applicable Confirmation, and provided that Buyer’s inability to handle or burn the coal supplied satisfactorily is not caused by any act, omission or fault attributable to Buyer, then Buyer shall have the following rights if Buyer provides written notice to Seller promptly upon discovering the unsatisfactory combustion or handling condition.

 

a)                                       Upon receipt of Buyer’s notice, Buyer and Seller shall meet as soon as possible in order to determine if Seller’s coal can continue to be utilized by Buyer. Buyer and Seller shall consult with each other in a good faith attempt to determine a mutually acceptable solution to the problem, which solution may include, without limitation, Seller providing alternate sourced coal or modifications to Buyer’s facilities and/or the operating procedures required in order to burn Seller’s coal satisfactorily, provided such modifications and/or operating procedures are physically and economically reasonable for Buyer to undertake, in Buyer’s sole judgment.

 

b)                                       In the event Buyer and Seller do not reach a mutually acceptable solution to the problem within sixty (60) days after receipt of Buyer’s notice, Buyer shall have the right to terminate this Agreement upon written notice to Seller. Upon termination of this Agreement pursuant to this Section 5.03, neither Buyer nor Seller shall have any further obligation or liability to each other under this Agreement, except for Buyer’s obligation to pay for prior shipments of coal.

 

5.05                         Title to the Coal and all risk of loss shall pass to Buyer upon unloading all railcars in each unit train at the Delivery Point

 

ARTICLE VI.
SAMPLING AND ANALYSIS

 

6.01                         Seller shall cause, at its expense, the Coal in each unit train to be sampled and analyzed at the individual mine in accordance with applicable ASTM standards. Buyer shall have the right, at its own risk and expense, to have a representative present at any and all times to observe sampling and analysis procedures. All samples shall be divided into three (3) parts and put in suitable airtight containers. One part shall be furnished to Buyer or its designee upon request for its analysis, one part shall be retained for analysis by Seller or its designee (which analysis shall be the basis for payment), and the third part shall be retained by Seller or its designee in one of the aforesaid containers properly sealed and labeled for a period thirty (30) days after the date of sample collection.

 

6



 

6.02                         In the event a dispute arises between Buyer and Seller within thirty (30) days of Seller’s analysis due to a difference between Buyer and Seller’s short proximate analyses of a sample that exceeds the ASTM interlab repeatability limits, an independent testing laboratory, mutually agreeable to Buyer and Seller, will be retained to analyze the third part of such sample. The Party whose calorific value analysis and/or sulfur analysis is closest to the independent analysis shall prevail and such Party’s calorific value analysis and/or sulfur analysis shall govern for the trainload in question. In such case, the cost of the analysis made by such independent testing laboratory will be borne by the Party whose calorific value analysis and/or sulfur analysis is furthest from the independent analysis and therefore, not used. In the event both Parties’ calorific value analyses and/or sulfur analyses differ from the independent testing laboratory’s result by the same amount, the independent testing laboratory’s result shall govern for the trainload in question and the Parties shall share equally the cost of the independent testing.

 

ARTICLE VII.
WEIGHING

 

7.01                         Certified commercial scales at Seller’s train loading facility at each individual mine will determine weights. Scales shall be calibrated and tested as customary in industry practice with copies of calibration and testing reports provided to Buyer upon request. If Seller’s scales are not available to determine the valid net weight of all of the railcars in a unit train but valid weights are obtained for thirty (30) or more railcars in such train, the arithmetic average of all of the valid net weights of the thirty or more railcars in such train shall be used as the net weight for each railcar in such train for which a valid net weight was not determined by Seller’s scales. If Seller’s scales are inoperative or fail to determine the valid net weight of at least thirty (30) railcars in a unit train, the weighted arithmetic average of the net railcar weights of the previous ten (10) unit trainloads of Coal shipped to Buyer shall be used as the net weight for each of the unweighed railcars in such train. The calculation of the weighted arithmetic average net weight for the previous ten (10) unit trainloads shall exclude all bad-order railcars, which were not loaded, and any trainload of Coal for which the net weights were estimated on thirty (30) or more railcars. The Buyer shall be notified electronically immediately after the above instance occurs.

 

ARTICLE VIII.
PRICE AND PRICE ADJUSTMENTS

 

8.01                         For all Coal delivered under this Agreement, Buyer shall pay Seller the base price as set forth in the Confirmation.

 

8.02                         Seller shall be solely responsible for all assessments, fees, costs, expenses, and taxes relating to the mining, production, sale, use, loading and tender of Coal to Buyer or in any way accruing or levied prior to transfer of title to the Coal to Buyer and including, without limitation, severance taxes, royalties, ad valorem, black lung fees; reclamation fees and other costs, charges and liabilities. The base price Includes reimbursement to Seller of all environmental, land restoration and regulatory costs, including without limitation any reclamation costs required under applicable federal, state or local law as of

 

7



 

the date of the Transaction. Buyer shall be responsible for any sales and/or use tax unless Buyer provides Seller an appropriate exemption certificate or similar document. The base price shall be subject to adjustments for changes in existing laws and regulations (including changes in levies and rates), or new laws or regulations, or changes in interpretations thereof enacted and in force during the term of sale set forth in the Confirmation that change Seller’s costs of producing Coal for delivery pursuant to any Confirmation. Notwithstanding the above, no price adjustment will occur under this Section until the cumulative effect of all such changes equals or exceeds $0.05 per ton for any calendar year under a Transaction. Seller shall use commercially reasonable best efforts to inform Buyer of any such change as soon as Seller becomes aware of such change and its effect on the base price of Coal hereunder.

 

8.03                         The base price may also include an adjustment based upon the calorific value, sulfur content or other qualities of the Coal as the Parties may mutually agree upon and as set forth in the Confirmation.

 

8.04                         In the event either the railroads or Buyer requires Seller to put additives in coal, including, without limitation, any dust control additives, treatments or processes, Seller may invoice Buyer at the reasonable costs of providing such services, which shall include but not be limited to, chemical costs, water costs, chemical application, application equipment maintenance and any royalties payable on the additive application. Any additives used shall be selected by Seller and will be industry qualified for use in the respective application.

 

ARTICLE IX.
INVOICES, PAYMENTS, NETTING, SET OFF, AND CREDIT RATINGS

 

9.01                         Based on Seller’s weights, Seller will invoice Buyer twice a month for all Coal delivered. Invoices for quality adjustment, as provided in a Transaction, shall be issued monthly, based on Seller’s analyses. Seller shall clearly indicate Buyer’s applicable purchase order number on all invoices. Each invoice shall state for each trainload of Coal: the quantity of Coal delivered, the Actual Btu and SO 2 , % Na 2 O in ash (if set forth in the Confirmation) and the invoice price and any other required quality adjustment. Invoices shall be mailed or electronically transmitted, as applicable, to:

 

Invoices to Heron Lake :

 

Heron Lake BioEnergy, LLC

Attn:Bob Ferguson

201 10th Street

Heron Lake, MN 56137

 

8



 

Invoices to NCTC :

 

Northern Coal Transportation Company

Attn: Revenue Accounting

505 S. Gillette Avenue

Gillette, WY 82716

 

ACH/Wires to NCTC :

 

Northern Coal Transportation Company/Rio Tinto Energy America Inc.

Account # 060-00298-13

Wells Fargo Bank

41 East 100 South

Salt Lake City, UT 84111

ACH ABA # 124000012

Wire ABA # 121000248

 

Payment Detail :

 

To ensure proper allocation of payments to appropriate invoice, e-mail invoice numbers and amounts to: Doreen.Heuck@riotinto.com or information may be faxed to (307) 685-6010.

 

9.02                         For all invoices, payment will be made within 10 business days of receipt of that invoice. Amounts shall be paid via electronic means (i.e., ACH or Federal Reserve wire transfer of funds). The wire transfer of funds shall be sent to Seller’s bank as indicated on the invoice.

 

9.03                         In the event Buyer in good faith disputes part or all of an invoice, notice of the disputed portion, with reasons for dispute, must be given prior to the due date of the invoice and the undisputed portion shall be paid by the due date. If the disputed portion is determined to have been properly due and payable, interest on that portion in dispute and which has not been paid shall accrue from the date that portion was due and payable. If a disputed portion is paid and is later determined not to have been properly due and payable, interest will similarly be refunded from the date payment had been received. Interest shall be paid at one (1) percentage point over the then current U.S. prime rate as listed in the Money Rates section of The Wall Street Journal . All invoices will be final and not subject to further adjustments or correction unless objection to the accuracy thereof is made prior to the lapse of one (1) year after the termination of the applicable Transaction.

 

9.04                         If each Party or Party’s affiliate is required to pay an amount to the other Party in the same invoice period, then such amounts with respect to each Party may be aggregated and the Parties may discharge their obligations to pay through netting; in which case, the Party owing the greater aggregate amount shall pay to the other Party the difference between the amounts owed.

 

9.05                         Each Party reserves to itself all rights, setoffs, counterclaims, and other remedies and defenses to the extent not expressly denied or waived herein which such Party has or may

 

9



 

be entitled to arising from or out of this Agreement. All outstanding Transactions and the obligations to make payment in connection under this Agreement may be offset against each other, set off, or recouped therefrom.

 

9.06                         If a Party fails to pay amounts under this Agreement within 10 business days after receipt of invoice, unless such amount is the subject of a dispute as provided above, or is excused by Article 10, in addition to the rights and remedies otherwise provided in this Agreement, the aggrieved Party shall have the right to suspend performance under any or all Transactions under this Agreement. If such failure to pay continues for an additional 5 business days, the aggrieved Party shall have the right to terminate this Agreement and all Transactions and shall be entitled to all other rights under this Agreement.

 

9.07                         Should the creditworthiness or either Party’s ability to perform become unsatisfactory to the other Party, or if situations develop where either Party could reasonably conclude that a credit downgrade or protection under bankruptcy code is imminent, then the failing Party will provide satisfactory security or assurances.

 

9.08                         If a Party’s or any of its affiliates’ credit falls below investment grade (BBB- as defined by Standard & Poor’s, Moody’s, or the equivalent), the failing Party shall provide the non-failing Party with a mutually agreed upon credit enhancement in the form of, but not limited to, letters of credit, compressed payment terms or cash on delivery. If the failing Party does not provide an acceptable credit enhancement within 48 hours of notice, the non-failing Party shall have the right to suspend shipments and seek remedies as set forth in this Master Agreement.

 

ARTICLE X.
FORCE MAJEURE

 

10.01                  The term “Force Majeure” as used herein shall mean an act or event that is not reasonably within the control and is without the fault of the Party claiming Force Majeure including without limitation, acts of God; acts of the public enemy; insurrections; terrorism; riots; labor disputes; boycotts; fires; explosions; floods; breakdowns of or damage to major components or equipment of Buyer’s generating station, Seller’s mine, or transmission systems or Buyer’s transportation; embargoes; acts of judicial or military authorities; acts of governmental authorities; inability to obtain necessary permits, licenses, and governmental approvals after applying for same with reasonable diligence; or other causes which prevent the producing, processing, and/or loading of Coal by Seller, or the receiving, accepting, unloading and/or utilizing of Coal by Buyer. Force Majeure includes the failure of a Party’s contractor(s) to furnish labor, services, Coal, materials or equipment in accordance with its contractual obligations (but solely to the extent such failure is itself due to Force Majeure).

 

10.02                  If, because of Force Majeure, either Party fails to perform any of its obligations under this Agreement (other than the obligation of a Party to pay money), and if such Party shall promptly give to the other Party written notice of such Force Majeure, then the obligation of the Party giving such notice shall be suspended to the extent made necessary by such Force Majeure and during its continuance; provided, the Party giving

 

10



 

such notice shall use good faith efforts to eliminate such Force Majeure, insofar as reasonably possible, with a minimum of delay. Should the situation of Force Majeure exceed sixty (60) consecutive days, the Party not affected by the Force Majeure event may, at its option, terminate the Transaction in whole or in part and neither Party shall have any further obligation to the other Party; however, each Party shall be obligated to make any payments which had become due and payable prior to such termination. Any deficiencies in deliveries of Coal caused by an event of Force Majeure shall not be made up, except by mutual consent. The affected Party shall provide suitable proof to the other Party to substantiate any claim made under this Article 10.

 

10.03                  Both Parties agree significant capital expenditures and settlement of strikes and lockouts shall be entirely within the discretion of the Party having the difficulty. The above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require significant capital expenditure or settlement of strikes and lockouts by acceding to the demands of the opposing Party when such course is inadvisable in the discretion of the Party having difficulty.

 

10.04                  The loss of Buyer’s markets or Buyer’s inability to economically use or resell Coal purchased hereunder, the loss of Seller’s supply or Seller’s ability to sell Coal to a market at a more advantageous price, the change in the market price of Coal or price of power, or regulatory or contractual disallowance of the pass-through of the costs of Coal or other related costs shall not constitute events of Force Majeure.

 

ARTICLE XI.
RECORDS, AUDITS, ACCESS

 

11.01                  Seller shall maintain books and records relating to the supply of Coal under this Agreement and the applicable Transaction for a period of not less than two (2) years after the end of each calendar year for all Coal tendered during such calendar year.

 

11.02                  Upon reasonable notice and during normal business hours, Buyer and/or Buyer’s independent auditors shall have the right to inspect Seller’s books and records relating to all provisions of this Agreement which include Coal quality, quantity shipped, and price adjustments or as may be necessary to satisfy inquiries from governmental or regulatory agencies, but only to the extent necessary to verify the accuracy of any statement, charges or computations made pursuant to this Agreement and/or a Transaction. Seller shall make a reasonable effort to facilitate Buyer’s inspection of such records in Seller’s possession. Buyer and its auditors, to the extent permitted by law or regulation, shall treat all such information as confidential.

 

ARTICLE XII.
DEFAULT, REMEDIES, AND TERMINATION

 

12.01                  The remedies set forth in this Section 12.01 shall cover the non-defaulting Party’s remedies for the defaulting Party’s failure to perform prior to any termination for default that may occur.

 

11



 

a)              As an alternative to the damages provision below, if the Parties mutually agree in writing, the non-performing Party may schedule deliveries or receipts, as the case may be, pursuant to such terms as the Parties agree in order to discharge some or all of the obligation to pay damages. In the absence of such agreement, the damages provision of this Article shall apply.

 

b)              Unless excused by Force Majeure, if Seller fails to deliver the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Seller shall pay to Buyer an amount for each ton of Coal of such deficiency equal to the differential In cost between a reasonably priced supply of replacement Coal delivered to Buyer’s facilities and the adjusted base price of the Coal, on an equivalent per mmBtu SO 2  adjusted basis; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other.

 

c)              Unless excused by Force Majeure, if Buyer fails to accept delivery of the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Buyer shall pay to Seller an amount for each ton of Coal of such deficiency equal to (i) the base price agreed to for the specific Transaction minus the highest reasonable market price on an equivalent per mmBtu S0 2  adjusted basis at which Seller is able, or (ii) would be able, to sell or otherwise dispose of the Coal at the time of Buyer’s breach; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other.

 

d)              Buyer and Seller shall be subject to commercially reasonable good faith obligation to mitigate any damages hereunder.

 

12.02                  The occurrence of any of the following shall constitute an “Event of Default”;

 

a)              Failure by either Party to pay any amounts due.

 

b)              Either Party materially breaches any contractual obligation under this Agreement.

 

c)              Either Party (i) makes any general assignment or any general arrangement for the benefit of creditors, (ii) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors or has such a petition involuntarily filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing, (iii) otherwise becomes bankrupt or insolvent (however evidenced), or (iv) is unable to pay its debts as they fall due.

 

12.03                  In addition to the non-defaulting Party’s remedies under this Article, in the Event of Default with respect to a specific Transaction, the non-defaulting Party shall have the same rights with respect to such specific Transaction as it has under this Agreement in addition to the right to exercise all other rights and remedies available under applicable law.

 

12



 

ARTICLE XIII.
NOTICES

 

13.01                  Except as expressly provided otherwise, any notice, election or other correspondence required or permitted hereunder shall become effective upon receipt and, except invoices and payments, shall be deemed to have been properly given or delivered when made in writing and delivered personally to the Party to whom directed, or when sent by United States certified mail with all necessary postage prepaid and a return receipt requested, or by a nationally recognized overnight delivery service with charges fully prepaid and addressed to the Party at the below-specified address:

 

Notices to NCTC :

Northern Coal Transportation Company

c/o Rio Tinto Energy America Inc.

Attn: Contract Administration

8051 E. Maplewood Ave., Bldg. 4

Greenwood Village, CO 80111

Phone: (303) 713-5627

Fax: (303) 713-5772

 

With a copy to :

Rio Tinto Energy America Inc.

Attn: Legal Department

505 So. Gillette Ave.

Gillette, WY 82716

 

Scheduling to NCTC :

Northern Coal Transportation Company

Attn: Michael Stevermer

8051 E. Maplewood Ave., Bldg. 4

Phone: (303) 713-5608

Fax: (303) 713-5772

 

Notices to Heron Lake :

Heron Lake BioEnergy, LLC

201 10 th Street

Heron Lake, MN 56137

Attn: Bob Ferguson

Phone: (507) 793-0077

Fax: (507) 793-0078

 

The addresses may be changed upon written notice in the manner provided above, and no amendment hereof shall be required for a change of address under this Article 13.

 

13



 

ARTICLE XIV.
COOPERATION

 

14.01                  Each Party agrees to take all further action that may be reasonably necessary to perform and to effectuate the purposes and intent of the Agreement, the Confirmation, and any particular Transaction.

 

ARTICLE XV.
WARRANTY, LIMITATION ON LIABILITY, DUTY TO MITIGATE & INDEMNIFICATION

 

15.01                  In no event shall either Party be liable to the other Party for incidental, consequential or punitive damages however and wherever arising out of, or in connection with, this Agreement or any Transaction.

 

15.02                  EXCEPT AS EXPRESSLY WARRANTED HEREIN, IT IS EXPRESSLY AGREED THAT SELLER MAKES NO WARRANTY EXPRESSED OR IMPLIED AS TO THE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE COAL TO BE DELIVERED UNDER THIS AGREEMENT OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF SUCH COAL. SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR OVERHEAD, BY VIRTUE OF ITS BREACH OF ANY OF ITS OBLIGATIONS UNDER THE AGREEMENT. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED AS LIMITING EITHER PARTY’S RIGHT, SUBJECT TO THE TERMS OF THIS AGREEMENT, TO SEEK DIRECT DAMAGES FOR THE OTHER PARTY’S BREACH OF ANY OF ITS OBLIGATIONS HEREUNDER.

 

15.03                  Each Party agrees it has a duty to mitigate damages and covenants. Each Party will use commercially reasonable efforts to minimize any damages it may incur as a result of the other Party’s performance or non-performance of the Agreement (except that neither Party shall be required to enter into a replacement transaction as provided under this Agreement).

 

15.04                  Each Party shall indemnify, defend, and hold the other Party harmless from and against any and all Claims arising out of or resulting from the willful acts or negligence of such Party, its agents, and employees.

 

ARTICLE XVI.
LIMITATION ON WAIVER

 

16.01                  No waiver by either Party of any one or more defaults of the other Party in the performance of this Agreement or any Transaction shall operate or be construed as a waiver of any future default, or defaults, whether of a like or different character.

 

14



 

ARTICLE XVII.
CONFIDENTIALITY

 

17.01                  This Agreement and any Confirmation are deemed confidential. The Parties shall protect the confidentiality of the terms of this Agreement and neither this Agreement or any of its terms shall be disclosed to any other person unless such disclosure is: (i) agreed to in writing by the Parties prior to release, (ii) required by law, (iii) required by jurisdictional regulation pursuant to the request of any regulatory authorities (including, without limitation, state utility commissions or boards, the Federal Energy Regulatory Commission, the U.S. Securities and Exchange Commission and tax authorities); to attorneys, auditors, consultants or other outside experts of the Parties if said individuals are advised of the confidential nature of the information and said individuals agree to maintain the confidentiality of the information; or to generating unit co-owner(s). Where the law requires such disclosure, notice shall be given to the other Party, and to the extent possible, such notice shall be given in advance of disclosure.

 

ARTICLE XVIII.
ENTIRETY, AMENDMENTS

 

18.01                  This Agreement constitutes the entire agreement between the Parties. This Agreement may not be amended except in a written instrument making reference hereto signed by the Parties.

 

ARTICLE XIX.
SUCCESSORS AND ASSIGNS

 

19.01                  This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns; provided, however, this Agreement may not be assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.

 

ARTICLE XX.
GOVERNING LAWS

 

20.01                  This Agreement shall be governed by and construed in accordance with the laws in the State of Wyoming.

 

ARTICLE XXI.
INTERPRETATION

 

21.01                  The Parties acknowledge that each Party and its counsel have reviewed this Agreement and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement.

 

15



 

ARTICLE XXII.
SURVIVAL

 

22.01                  The provisions of Articles 12 through 21 and Article 22 shall survive the termination of this Agreement.

 

IN WITNESS WHEREOF , the Parties have executed this Agreement by their respective, duly authorized representatives effective as of the date first written above.

 

 

 

 

Northern Coal Transportation Company

Heron Lake BioEnergy, LLC

 

 

By:

/s/ [AUTHORIZED SIGNATORY]

 

By:

/s/ Robert J. Ferguson

 

Jeffrey D. Price

Title:

President Board of Governors

 

Vice President - Marketing, Government
Affairs & Communications

 

 

 

 

 

 

Date:

3 July 2007

 

Date:

13 July 2007

 

16



 

CONFIRMATION LETTER

 

NCTC: N0005-1283

 

Seller:

Northern Coal Transportation Company

 

Buyer:

Heron Lake BioEnergy, LLC

 

8051 E. Maplewood Avenue

 

 

201 10th Street

 

Building 4

 

 

Heron Lake, MN 56137

 

Greenwood Village, Co 80111

 

 

 

 

Attn:

Bob Ferguson

Attn:

Michael Stevermer

 

Phone:

(507) 793-0077

Phone:

(303) 713-5608

 

Fax: (507) 793-0078

Fax:

(303) 713-5772

 

 

 

This Confirmation Letter (“Confirmation”) shall confirm the transaction arranged December 20, 2006, between Northern Coal Transportation Company (“NCTC”) and Heron Lake BioEnergy, LLC (“Heron Lake”) pursuant to the Master Coal Purchase and Sale Agreement effective June 1, 2007. The terms and conditions of this transaction are as follows:

 

NCTC to sell and deliver and Heron Lake to purchase and receive coal from the Spring Creek Mine located in Big Horn County, Montana. Coal purchased under this Confirmation Letter is to be used by the Heron Lake Facility only.

 

Transaction Type :

 

Physical Coal

 

 

 

 

 

Product :

 

Sub-Bituminous coal; 9350 Btu/Lb. and 0.8 Lbs. SO 2 /mmBtu

 

Base Price:

 

Calendar Year

 

Base Price (per ton of coal)

 

 

 

 

 

 

 

June 1, 2007 thru May 31, 2008

 

[***]

 

 

 

 

 

 

 

June 1, 2008 thru May 31, 2009

 

[***]

 

 

 

 

 

 

 

June 1, 2009 thru May 31, 2010

 

[***]

 

 

 

 

 

 

 

June 1, 2010 thru May 31, 2011

 

[***]

 

 

 

 

 

 

 

June 1, 2011 thru May 31, 2012

 

[***]

 


*All rail surcharges, escalations or any additional charges imposed by the railroads will be passed through to Buyer; fuel surcharges will be consistent with prevailing STB guidance.

 

*NCTC will use best efforts in negotiating any additional charges Imposed by the railroads.

 

Shipment Period:                 June 1, 2007 through May 31, 2012

 

Quantity :                                A minimum of [***] tons per Calendar Year.

 



 

 

The first Calendar Year of this agreement shall be considered a “Test Year”, in which no minimum annual tonnage volume will be applicable. For the remaining Calendar Years of the Agreement, Heron Lake shall purchase a minimum of [***] tons per Calendar Year, with such minimum subject to adjustment based upon the actual amount of coal required by Heron Lake’s facility after the “Test Year.”

 

 

 

· Additional tonnage to be mutually agreed upon during the nomination process.

 

 

Delivery Point :

FOB at Ruebel, Minnesota

 

 

Topsize :

2” x 0” ASTM or 3” x 0” ASTM

 

 

Quality :

Coal Quality Specifications

 

 

 

Typical

 

Reject

 

 

 

 

 

Btu/Lb

 

9,350

 

 

 

 

 

 

 

Lbs. SO 2 /mmBtu

 

0.8

 

> 1.00

 

 

 

 

 

Sodium

 

6.5 to 8.5%

 

> 8.5%

 

Other Provisions:

Nominations for actual tons are due from Heron lake by September 1 of each calendar year for the following calendar years tons.

 

 

 

 

Rates are based on a maximum 4 day shipment unloading limit after constructive placement; if exceeded, $0.50 per ton will be added to the rate for the affected tonnage involved in such shipment.

 

 

 

 

Any costs incurred after constructive placement will be the responsibility of Buyer.

 

 

 

 

Coal price for shipments shall be adjusted for deviations in Btu/lb from the “typical” specifications noted herein on the basis equivalent dollars per million Btu; for instance, the shipment of 9,250 Btu/lb coal in the first contract year shall result in a coal price of [***].

 

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR, AND EACH OF THE PARTIES WAIVES THE RIGHT TO SEEK INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES UNDER THIS AGREEMENT.

 

Please confirm that the terms and conditions stated herein accurately reflect your understanding of our agreement by signing and returning to Stephanie Houston at Seller’s address.

 

By:

/s/ Robert J. Ferguson

 

Date:

13 July 2007

 

 

Heron Lake BioEnergy, LLC

 

 

 

By:

/s/ [AUTHORIZED SIGNATORY]

 

Date:

13 July 2007

 

 

Northern Coal Transportation Company

 

 

2


EXHIBIT 10.19

 

LOAN AGREEMENT

 

This LOAN AGREEMENT between Federated Rural Electric Ass’n, a Minnesota cooperative corporation (Lender), and Heron Lake BioEnergy, LLC, a Minnesota limited liability company (Borrower) is made and executed as of the day of December 28, 2007.

 

COVENANTS

 

1.                                        The Borrower covenants that the loan proceeds shall be used solely to (a) finance equipment for an ethanol facility as set forth in the Borrower’s application to the Lender or (b) to reimburse short-term financing and expenditures for the Approved Purpose.  The Borrower further covenants that the proceeds of this loan shall not be used to finance any costs or retire any indebtedness incurred for the Approved Purpose prior to Rural Business-Cooperative Service (RBS) receipt on June 17, 2005 of the Application Materials.

 

2.                                        The Borrower shall provide record of binding commitments for supplemental financing in the approximate amount of $105,793,844 that is necessary, in addition to the Loan proceeds, to ensure completion of the project.

 

3.                                        The Borrower shall provide a final draft version of an approving legal opinion, in the form of a typical opinion given to a lender in the State of Minnesota in commercial loan transactions, opining as to the legal authority of the Borrower to execute the promissory note and perform its obligations under this LOAN AGREEMENT.

 

4.                                        The Lender shall provide to RBS a copy of the executed Loan Agreement, including the lower tier debarment certification, the Promissory Note, and any Security Agreement, together with the legal opinion rendered by the Borrower.

 

5.                                        The Borrower shall provide to the Lender an itemized list, with attached invoices, receipts, bills of sale, and other evidence that shows the expenditures made on the project for the Approved Purpose using the proceeds of the Loan from the Lender upon completion of the project, or by the first anniversary of the date of the advance of the funds to the Borrower, whichever occurs first.

 

6.                                        This LOAN AGREEMENT executed by an authorized official of the Borrower certifies that the proceeds of the rural economic development loan from Federated Rural Electric Ass’n were expended on the approved purposes shown on the list and the attached invoices, receipts, bills of sale, and other evidence representing the items shown on the list.

 

7.                                        The Lender shall maintain a copy of this certified list and attachments at its premises for review by RBS representatives, auditors, or others conducting a review or audit of the Lender and the expenditure of the proceeds of the Loan.  The Lender is also required to submit a duplicate certified listing of the expenditures and attachments to RBS for its files.

 



 

8.                                        The Borrower shall also expend the loan funds, which were provided from the proceeds of the Loan on the Approved Purposes by the second anniversary of the date of the advance of funds to the Borrower, or such later date as RBS may approve in writing.  Funds that have not been expended by the second anniversary date of the advance of funds to the Borrower, or such later date.  as RBS has approved, must be returned to the Lender.  The Lender shall return as a prepayment on the RBS note all unexpended funds that the Borrower returns to the Lender under the terms of the Lender’s Agreement.

 

9.                                        The Borrower shall provide to the Lender a Management Representation Letter certifying to the statements required in the Letter of Agreement from RBS to Federated Rural Electric Ass’n.  (See Exhibit A)

 

IN WITNESS WHEREOF, Debtor has executed and delivered to Lender this Loan Agreement as of the date and year first above written.

 

 

Heron Lake BioEnergy, LLC

 

(Borrower)

 

 

 

By:

    /s/ Robert J. Ferguson

 

Mr. Robert Ferguson

 

President

 

 

 

and;

 

 

 

Federated Rural Electric Ass’n

 

(Lender)

 

 

 

By:

    /s/ Richard G. Burud

 

Richard G. Burud

 

General Manager

 



 

HERON LAKE BIO ENERGY

 

SUPPLEMENTAL FINANCING:

 

 

 

Source of Funds:

 

Amount:

 

 

 

 

 

 

 

1.

 

Member Equity

 

$

49,427,000

 

 

 

 

 

 

 

2.

 

AgStar Financial Services

 

$

64,583,000

 

 

 

 

 

 

 

3.

 

Grants

 

$

350,000

 

 

 

 

 

 

 

4.

 

Interest

 

$

1,300,000

 

 

 

 

 

 

 

 

 

TOTAL

 

$

115,660,000

 

 

I certify that the funding listed above has been obtained or has been committed to the project described in the Rural Economic Development Loan and Grant Program application materials submitted to FEDERATED RURAL ELECTRIC and the Rural Business-Cooperative Service.

 

/s/ Robert J. Ferguson

 

 

Signature of Authorized Official

 

Date

of Ultimate Recipient

 

 

 

 

 

 

 

 

President HLBE

 

 

Title

 

 

 

[Attach evidence of availability of financing or binding commitments]

 



 

U.S. DEPARTMENT OF AGRICULTURE

 

Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion - Lower Tier Covered Transactions

 

This certification is required by the regulations implementing Executive Order 12549, Debarment and Suspension, 7 CFR Part 3017, Section 3017.510, Participants’ responsibilities.  The regulations were published as Part IV of the January 30, 1989, Federal Register (pages 4722-4733).  Copies of the regulations may be obtained by contacting the Department of Agriculture agency with which this transaction originated.

 

(BEFORE COMPLETING CERTIFICATION, READ INSTRlUCI10NS ON REVERSE)

 

(1)            The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.

 

(2)            Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

 

 

Heron Lake BioEnergy, LLC

 

Organization Name

PR/Award Number or Project Name

 

 

Robert Ferguson, President

 

Name(s) and Title(s) of Authorized Representative(s)

 

 

 

/s/ Robert J. Ferguson

 

Signature(s)

Date

 



 

USDA

 

Position 3

 

FORM APPROVED

Form RD 400-4

 

 

 

OMB No. 0575-0018

(Rev. 3-97)

 

 

 

 

 

ASSURANCE AGREEMENT

(Under Title VI, Civil Rights Act of 1964)

 

The Heron Lake BioEnergy, LLC

(name of recipient)

 

91246 390th Avenue, Heron Lake, MN 56137

(address)

 

(“Recipient” herein) hereby assures the U.S. Department of Agriculture that Recipient is in compliance with and will continue to.  comply with Title V1 of tile Civil Rights Act of 1964 (42 USC 2000d et. seq.), 7 CPR Part 15, and Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, or the Farm Service Agency, (hereafter known as the” Agency”) regulations promulgated thereunder, 7 C.P.R. § 190 1.202.  In accordance with that Act and the regulations referred to above, Recipient agrees that in connection with any program or activity for which Recipient receives Federal financial assistance (as such term is defined -in 7 C.P.R. § 14.2) no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination.

 

1.                                        Recipient agrees that any transfer of any aided facility, other than personal property, by sale, lease or other conveyance of contract, shall be, and shall be made expressly, subject to the obligations of this agreement and transferee’s assumption thereof.

 

2.                                        Recipient shall:

 

(a)                                   Keep such records and submit to the Government such timely, complete, and accurate information as the Government may determine to be necessary to ascertain our/my compliance with this agreement and the regulations.

 

(b)                                  Permit access by authorized employees of the Agency or the U.S.  Department of Agriculture during normal business hours to such books, records, accounts and other sources of information and its facilities as may be pertinent to ascertaining such compliance.

 

(c)                                   Make available to users, participants, beneficiaries and other interested persons such information regarding the provisions of this agreement and the regulations, and in such manner as the Agency or the U.S. Department of Agriculture finds necessary to inform such persons of the protection assured them against discrimination.

 

3.                                        The obligations of this agreement shall continue:

 



 

(a)                                   As to any real property, including any structure, acquired or improved with the aid of the Federal financial assistance, so long as such real property is used for the purpose for which tile Federal financial assistance is made or for another purpose which affords similar-services or benefits, or for-as long as the Recipient retains ownership or possession of the property, whichever is longer.

 

(b)                                  As to any personal property acquired or improved with the aid of the Federal financial assistance, so long as Recipient retains ownership or possession of the property.

 

(c)                                   As to any other aided facility or activity, until the last advance of funds under the loan or grant has been made.

 

4.                                        Upon any breach or violation this agreement the Government may, at its option:

 

(a)                                   Terminate or refuse to render or continue financial assistance for the aid of the · property, facility, project, service or activity.

 

(b)                                  Enforce this agreement by suit for specific performance or by any other available remedy under the laws of the United States or the State in which the breach or violation occurs.

 

Rights and remedies provided for under this agreement shall be cumulative.

 

In witness whereof,

Heron Lake BioEnergy, LLC

on this

 

 

 

(name of recipient)

 

 

 

 

date has caused this agreement to be executed by its duly authorized officers and its seal affixed hereto, or if a natural person, has hereunto executed this agreement.

 

 

 

 

Heron Lake Bioenergy

 

 

 

Recipient

 

 

 

 

 

 

 

/s/ Robert J. Ferguson

 

 

 

Date

 

 

 

 

Attest:

 

 

President

 

Title

 

Title

 



 

Form RD 400-1

FORM APPROVED

(Rev 5-00)

OMB No. 0575-0018

 

UNITED STATES DEPARTMENT OF AGRICULTURE

 

EQUAL OPPORTUNITY AGREEMENT

 

This agreement, dated                                                                                                       between Heron Lake BioEnergy, LLC (herein called “Recipient” whether one or more) and United States Department of Agriculture (USDA), pursuant to the rules and regulations of the Secretary of Labor (herein called the ‘Secretary’) issued under the authority of Executive Order 11246 as amended, witnesseth:

 

In consideration of financial assistance (whether by a loan, grant, loan guaranty, or other form of financial assistance) made or to be made by the USDA to Recipient, Recipient hereby agrees, if the cash cost of construction work performed by Recipient or a construction contract financed with such financial assistance exceeds $10,000 — unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965.

 

1.                                        To incorporate or cause to be incorporated into any contract for construction work, or modification thereof, subject to the relevant rules, regulations, and orders of the Secretary or of any prior authority that remain in effect, which is paid for in whole or in part with the aid of such financial assistance, the following “Equal Opportunity Clause”:

 

During the performance of this contract, the contractor agrees as follows:

 

(a)                                   The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin.  The contractor will take affirmative action.  To ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.  Such action shall include, but not be limited, to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selee1ion for training, including apprenticeship.  The contractor agrees to post in conspicuous places, available to employees and applicants for employment notices to be provided by the USDA setting forth the provisions of this nondiscrimination clause.

 

(b)                                  The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin.

 

(c)                                   The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the USDA, advising the said labor union or workers’ representative of the contractor’s commitments under this

 



 

agreement and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

 

(d)                                  The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of all rules, regulations and relevant orders of the Secretary of Labor.

 

(e)                                   The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, rules, regulations, and orders, or pursuant thereto, and will permit access to his books, records, and accounts by the USDA Civil Rights Office, and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

 

(f)                                     In the event of the contractor’s noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation or order of the Secretary of Labor, or as otherwise provided by Law.

 

(g)                                  The contractor will include the provisions of paragraph 1 and paragraph (a) through (g) in every subcontract or purchase order, unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor.  The contractor will take such action with respect to any subcontract or purchase order as the USDA may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however , that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the USDA, the contractor may request the United States to enter into such litigation to protect the interest of the United States.

 

According to the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.  The valid OMB control number for this information collections is 0575-0018.  The time required to complete this information collection is estimated to average 10 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

 

RD 400-1 (Rev. 5-00)

 

Position 6

 



 

2.                                        To be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the organization so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

 

3.                                        To notify all prospective contractors to file the required ‘Compliance Statement,’ Form RD 400-6, with their bids.

 

4.                                        Form AD-425, Instructions to Contractors, will accompany the notice of award of the contract.  Bid conditions for all nonexempt federal and federally assisted construction contracts require inclusion of the appropriate “Hometown” or “Imposed” plan affirmative action and equal employment opportunity requirements.  All bidders must comply with the bid conditions contained in the invitation to be considered responsible bidders and hence eligible for the award.

 

5.                                        To assist and cooperate actively with USDA and the Secretary in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary, that it will furnish USDA and the Secretary such information such as, but not litigated to, Form AD 560, Certification of Non-segregated Facilities, to submit the Monthly Employment Uti1ization Report, Form CC-257, as they may require for the supervision of such compliance, and that it will otherwise assist USDA in the discharge of USDA’s primary responsibility for securing compliance.

 

6.                                        To refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by USDA or the Secretary of Labor pursuant to Part IT, Subpart D, of the Executive Order.

 

7.                                        That if the recipient fails or refuses to comply with these undertakings, the USDA may take any or all of the following actions:  Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the organization under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such organization; and refer the case to the Department of Justice for appropriate legal proceedings.

 

Signed by the Recipient on the date first written above.

 

 

 

/s/ Robert J. Ferguson

Recipient

 

Recipient

 



 

 

Heron Lake BioEnergy, LLC

(CORPORATE SEAL)

Name of Corporate Recipient

 

 

Attest:

By Robert J. Ferguson

 

President

 

 

 

Secretary

 

 

 



 

HERON LAKE BIOENERGY, LLC

 

Exhibit B to Letter of Agreement:

MANAGEMENT REPRESENTION LETTER

 

1.                                        Loan funds were not used to assist projects of which any director, officer, general manager, or significant stockholder of FEDERATED RURAL ELECTRIC, or close relative thereof, is an owner, or which would create a conflict of interest or the appearance of a conflict of interest.

 

2.                                        Loan funds were not expended for site development, the destruction or alteration of buildings, or other activities that would adversely affect the environment or limit the choice of reasonable alternatives prior to satisfying the requirements of 7 CFR Section 1703.32, Environmental Requirements.

 

3.                                        Loan funds were not expended to purchase or lease any real property, materials, equipment, or services from FEDERATED RURAL ELECTRIC, its subsidiary, an affiliate of FEDERATED RURAL ELECTRIC, or significant stockholders, officers, managers or directors of FEDERATED RURAL ELECTRIC, or close relatives thereof, where the purchase or lease has not been fully disclosed to the Small Business-Cooperative Service (RBS) and received RBS’s prior written approval.

 

4.                                        Loan funds were not expended to payoff existing indebtedness incurred prior to receipt of the FEDERATED RURAL ELECTRIC’s completed application by the RBS or for refinancing or repaying a loan made under the Rural Electrification Act of 1936, as amended, or a program administered by the Rural Utilities Service.

 

5.                                        Loan funds were not expended for any electric or telephone purpose, as determined by the RBS.

 

6.                                        Loan funds were not expended for any community antenna television systems or facilities.

 

7.                                        Loan funds were not expended for projects located in areas covered by the Coastal Barrier Resources Act (16 U.S.C. 3501 et seq. ).

 

8.                                        The Project did not result primarily in the transfer of any existing employment or business activity from one area to another.

 

9.                                        Loan funds were not expended for anything other than an approved purpose.

 

 

/s/ Robert J. Ferguson

 

11/14/07

Name and Signature of Authorized

Date

Loan Recipient Official

 

 


EXHIBIT 10.20

 

SECURED PROMISSORY NOTE

 

$600,000

 

FOR VALUE RECEIVED, Heron Lake BioEnergy, LLC, a Minnesota limited liability company, (Borrower) promises to pay Federated Rural Electric Association, a Minnesota cooperative corporation (Lender), [1] the principal sum of Six Hundred Thousand and no/100 ($600,000) Dollars, with interest on the unpaid principal balance from the date of this Note, until paid, at the rate of zero percent (0.0 %) per annum; and [2] an annual handling fee of 1 percent of the unpaid balance from time to time, payable on the anniversary date of the note.  All payments under and pursuant to this Note shall be payable at the offices of Federated Rural Electric Association., 77100 US Highway 71, PO Box 69, Jackson, MN 56143 or such other place as Lender may designate; and principal is payable in consecutive monthly installments of Six Thousand two Hundred fifty ($6,250.00) Dollars, on the 10th day of each month, beginning on October, 2009.  Such monthly installments of principal shall continue until the entire indebtedness evidenced by this Note is fully paid, except any remaining indebtedness, if not sooner paid, shall be due and payable not later than

 

This Note is issued pursuant to the terms of the resolution of the Lender’s Board of Directors dated December 28, 2007, and is secured by assets identified on the Security Agreement dated December 28, 2007 between Federated Rural Electric Association, and Heron Lake BioEnergy, LLC.  (This Secured Promissory Note, Loan Agreement, Legal Opinion, the Security Agreement, Certified Resolution and the Loan Amortization Schedule collectively may be referred to as the “Borrower Documents.”)

 

This Note shall be construed in accordance with the laws of the State of Minnesota and the Uniform Commercial Code (“UCC”) as adopted in Minnesota.  Borrower hereby irrevocably [1] submits to the jurisdiction of any Minnesota court over any action or proceeding brought by the Borrower, the Lender, or any holder of the Note arising out of or relating to the Borrower Documents, and [2] agrees that all claims with respect to such action or proceeding may be heard and determined in such Minnesota state court.

 

If any monthly installment under this Note is not paid when due and remains unpaid, the entire principal amount shall at once become due and payable at the option of the Note holder.  The Note holder may exercise this option to accelerate during any default by Borrower regardless of any prior forbearance, and any such prior forbearance shall not constitute a waiver.  If suit is brought to collect this Note, the Note holder shall be entitled to collect all reasonable costs and expenses of suit, including, but not limited to, reasonable attorney fees.

 

Borrower may prepay the principal amount outstanding in whole or in part without penalty or premium.  The Note holder may require that any partial prepayments be made on the date monthly installments are due and be in the amount of that part of one or more monthly installments which would be applicable to principal.  Any partial prepayment shall be applied against the principal amount outstanding and shall not change the amount of such installments, unless the Note holder shall otherwise agree in writing.

 



 

All makers, sureties, guarantors and endorsers hereby waive presentment, notice of dishonor, and protest hereof.  This Note shall be the joint and several obligations of all makers, sureties, guarantors, and endorsers, and shall be binding upon them and their successors and assigns.

 

Any notice to Borrower provided for in this Note shall be given by mailing such notice by first class mail addressed to Borrower at the property address stated below, or to such other address as Borrower may designate by notice to the Note holder, and shall constitute notice to Borrower and all guarantors as if individual notices have been affected.  Any notice to the Note holder shall be given by mailing such notice by certified mail, return receipt requested, to the Note holder at the address stated in the first paragraph of this Note, or at such other address as may have been designated by notice to Borrower.

 

Address:

 

 

 

 

 

 

Borrower:

 

 

Heron Lake BioEnergy, LLC

 

 

 

 

91246 390th Avenue, PO Box 198

 

Heron Lake BioEnergy, LLC

 

 

Heron Lake, MN 56137

 

 

 

 

 

 

 

 

 

 

 

/s/ Robert J. Ferguson

Dated

 12/28/2007

 

By: Mr. Robert Ferguson

 

 

 

Its: President

 

 

 


EXHIBIT 10.21

 

SECURITY AGREEMENT

 

This Security Agreement is made this 28th day of December 2007, by Heron Lake BioEnergy, LLC, a Minnesota limited liability company (the “Debtor” or “Borrower”), in favor of Federated Rural Electric Association, a Minnesota cooperative corporation (the “Secured Party”).

 

In order to secure the payment of a Secured Promissory Note and loan of even date herewith executed by the Debtor and payable to the order of the Security Party (the “Note”), and each and every other debt, liability and obligation of every type and description which Debtor may now or at any time hereafter owe to the Secured Party under, pursuant to or arising out of the Note and any other document, agreement or instrument relating to the acquisition of electric equipment for the Heron Lake BioEnergy, LLC ethanol facility (the “Project”) in Heron Lake, Minnesota (collectively referred to as the “Borrower Documents”) (whether such debt, liability or obligation exists or is hereafter created or incurred, whether it arises by operation of law or otherwise, or whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sold, joint, several or other joint and several)(said Note and all such other debts, liabilities and obligations of the Debtor to the Secured Party herein are collectively referred to as the “Secured Obligations”), Debtor hereby agrees to as follows:

 

1.                                        SECURITY INTEREST AND COLLATERAL.  In order to secure the payment and performance of the Secured Obligations, Debtor hereby grants to Secured Party a first priority and senior lien security position on such collateral as defined in the original State of Minnesota Uniform Commercial Code Financing Statement (“Collateral”).  Said Collateral shall include the substation land, substation, all associated substation equipment, and the distribution transformers within the facility as listed.  (See attached Exhibit A)

 

2.                                        REPRESENTATIONS WARRANTIES AND AGREEMENTS.  Debtor hereby represents and warrants to and covenants with and agrees with Secured Party as follows:

 

A.                                    Debtor’s principal place of business will continue to be located at 91246 390th Avenue (PO Box 198), Heron Lake, MN 56137.  Debtor’s executive offices are located at 91246 390th Avenue (PO Box 198), Heron Lake, MN 56137.  Debtor’s records concerning its accounts are kept at such address.  During the proceeding one year Debtor has not changed its name or operated or conducted business under any trade name or “d/b/a” which is different from its corporate name or other than Heron Lake BioEnergy, LLC.  Debtor shall promptly notify Secured Party of any change in such name or if it operates or conducts business under any trade name or “d/b/a” which is different from such name.

 

B.                                      Debtor will:

 

(i)             promptly pay all taxes or other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection, or continuance of the security interest;

 



 

(ii)            keep all Collateral free and clear of all security interests, liens and encumbrances, except any Permitted encumbrances Interests (agreed to in writing by Secured Party);

 

(iii)           at all reasonable times as provided by the Borrower Documents, permit Secured Party or its representatives to examine or inspect any Collateral, wherever located, and subject to the Borrower Documents, to reasonably examine, inspect and copy (at Secured Party’s cost) Debtor’s books and records pertaining to the Collateral and its business and financial condition; provided, however, that the Secured Party shall be entitled to provide any and all information received hereunder to any regulatory authority requesting such information and/or to any prospective purchasers of or participants in loans made hereunder (so long as Secured Party uses its best efforts to ensure that such participant also treats such information as confidential);

 

(iv)           from time to time execute such financing statements as Secured Party may reasonably deem required to be filed in order to perfect its security interest;

 

(v)            pay when due or reimburse Secured Party on demand for all reasonable costs of collection of any of the Secured Obligations and all other reasonable out-of-pocket expenses (including in each such case reasonable attorney’s fees) incurred by Secured Party in connection with the creation, perfection, satisfaction or enforcement of the security interest or the continuance or enforcement of this Agreement or any or all of the Secured Obligations;

 

(vi)           execute, deliver, and endorse any and all instruments, documents, assignments, security agreements, or other agreements in writing which Secured Party may at any time reasonably request in order to secure, perfect, protect, or enforce Its security interest and Secured Party’s rights under this agreement;

 

(vii)          not use or keep Collateral, or permit it to be used or kept for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance; and

 

(viii)         not permit any tangible Collateral to become part of or to be affixed to any real property without first assuring to the reasonable satisfaction of Secured Party that its security interest will be prior and senior to any lien then held or thereafter acquired by any mortgagee of such real property or its assigns if (i) an “Event of Default” occurs under the Borrower Documents of even date, or (Ii) the Debtor at any time fails to perform or observe any agreement contained in this section “2.B.(viii)” and such failure continues for a period of thirty (30) calendar days after Secured Party gives Debtor written notice thereof (or, in the case of agreements

 

2



 

contained in clauses (ii) (viii) (ix) of this Section “2.B.”, immediately upon occurrence of such failure, without notice or lapse of time), then Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of Debtor (or, at Secured Party’s option, in Secured Party’s own name) and may (but need not) take any and all other actions which Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interest, liens and encumbrances (other than Permitted Interest), the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement or maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and except to the extent that the effect of such payment would be to render any loan or forbearance of any money, usurious, or otherwise illegal under any applicable law, Debtor shall thereupon pay Secured Party on demand the amount of all reasonable monies expended and all reasonable costs and expenses (including reasonable attorney’s fees) incurred by Secured Party in the connection with or as a result of Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by Secured Party at the rate provided for in the Secured Promissory Note.  Unless prohibited by applicable law and to facilitate the performance or observance by Secured Party of such agreements of the Debtor, Debtor hereby irrevocably appoints (which appointment is coupled with an interest) Secured Party, or its delegate, as an attorney-In-fact of Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of Debtor, any and all instruments, documents, financing statements, applications for insurance, and other agreements and writings required to be obtained, executed, delivered, or endorsed by Debtor under this agreement.

 

3.                                        REMEDIES.  Upon the occurrence of any event of default, the Secured Party may exercise anyone or more of the following remedies:

 

A.                                    Exercise and enforce any and all rights and remedies available after default to Secured Party under the Uniform Commercial Code (“UCC”), or common law; and

 

B.                                      Exercise or enforce any and all other rights or remedies available to the Secured Party by law or agreement against the Collateral, against the Debtor, or against any other person or property.

 

If notice to Debtor of intended disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given at least ten (10) calendar days prior to the date of the intended disposition or other action.

 

3



 

4.                                        MISCELLANEOUS.

 

4.1.           This Agreement does not contemplate a sale of accounts or chattel paper; and, as provided by law, Debtor is entitled to any surplus and shall remain liable for any deficiency.

 

4.2.           This Agreement can be waived, modified, amended, terminated or discharged, and the security interest can be released, only explicitly in writing to be signed by a party or parties to be bound thereby; and a waiver by the Secured Party shall be effective only in the specific instance and only for purposes given.

 

4.3.           Mere delay in the failure to act shall not preclude the exercise or enforcement in any of the Secured Party’s rights or remedies.

 

4.4.           All rights and remedies of the Secured Party shall be accumulative and may be exercised singularly or concurrently, at Secured Party’s option, and the exercise or enforcement of any such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other.

 

4.5.           All notices to be given to the Debtor shall be deemed sufficiently given (i) on the day of delivery if hand delivered, (Ii) on the day after mailing it if sent overnight mail or (iii) three (3) days after the postmarked day if mailed postage prepaid, certified or registered, addressed to the Debtor at its last known address.

 

4.6.           Secured Party’s duty of care with respect to the Collateral in its possession (as imposed by law) shall be deemed fulfilled if Secured Party exercises reasonable care in physically safekeeping such Collateral or, in the case Collateral in the custody or possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person; and Secured Party need not otherwise preserve, protect, insure or care for any Collateral.

 

4.7.           Secured Party shall not be Obligated to preserve any rights Debtor may have against any other party, to realize in the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application.

 

4.8.           This Agreement shall be binding upon and inure to the benefit of the Debtor and the Secured Party and their successors and assigns, and shall take effect when signed by Debtor and delivered to Secured Party; and Debtor waives notice of Secured Party’s acceptance hereof.

 

4.9.           Secured Party may execute this Agreement if appropriate for purposes of filing, but the failure of Secured Party to execute the Agreement shall not affect or impair the validity or effectiveness of this Agreement.

 

4.10.         Except to the extent otherwise required by law, this Agreement shall be governed by the laws of the State of Minnesota; and, unless the context otherwise requires, all terms used herein which are defined in Articles 1 and 9 of the Uniform

 

4



 

Commercial Code and common law shall be construed according to such definitions.

 

4.11.         If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect; and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein and prescribed hereby.

 

4.12.         All representations and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Secured Obligations.

 

4.13.         This Security Agreement shall be construed in accordance with the laws of the State of Minnesota.

 

IN WITNESS WHEREOF, Debtor has executed and delivered to Secured Party this Security Agreement as of the date and year first above written.

 

 

Heron Lake BioEnergy, LLC

 

(Debtor)

 

 

 

 

 

By:

/s/ Robert J. Ferguson

 

Mr. Robert Ferguson

 

President

 

 

 

Federated Rural Electric Association

 

(Secured Party)

 

 

 

 

 

By:

/s/ Richard G. Burud

 

Richard G. Burud

 

General Manager

 

5



 

Federated Rural Electric Association

 

Exhibit A to Security Agreement

Exhibit A Attachments

 

1.                                        Description

2.                                        Zieske Land Survey

3.                                        Federated Transformers

 



 

DESCRIPTION

 

PART OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 16, TOWNSHIP 104 NORTH, RANGE 37 WEST IN WEIMER TOWNSHIP, JACKSON COUNTY, MINNESOTA, DESCRIBED AS FOLLOWS:

 

COMMENCING AT AN EXISTING IRON MONUMENT AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF SAID SECTION 16; THENCE SOUTH 89 DEGREES 57 MINUTES 49 SECQNDS WEST, BEARING BASED ON JACKSON COUNTY COORDINATE SYSTBM, ALONG THE SOUTH LINE OF SAID SOUTHWEST QUARTER AND ALONG THE CENTERLINE OF COUNTY STATE AID HIGHWAY NUMBER 24, AS EXISTS, A DISTANCE OF 857.15 FEET, TO THE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89 DEGREES 57 MINUTES 49 SECONDS WEST, ALONG SAID SOUTH LINE AND SAID CBNTERLINE, A DISTANCE OF100.00 FEET; THENCE NORTH 00 DEGREES 02 MINUTES 11 SECONDS WEST A DISTANCE OF 271.02 FEET; THENCE NORTH 89 DEGREES 57 MINUTES 49 SECONDS EAST, PARALLEL WITH THE SOUTH LINE OF SAID SOUTHWEST QUARTER, A DISTANCE OF 100.00 FEET; THENCE SOUTH 00 DBGREES 02 MINUTES 11 SECONDS EAST A DISTANCE OF 271.02 FEET, TO THE POINT OF BEGINNING.

 

THE TRACT CONTAINS 0.62 ACRES AND IS SUBJECT TO EXISTING COUNTY HIGHWAY EASEMENT AND OTHER EASEMENTS OF RECORD, IF ANY.

 

7



 

Zieske Land Survey

 

 

8



 

Federated Transformers

 

Heron Lake BioEnergy, LLC

Transformers

Prepared by: Jag 08.27.07

Updated: Jag 11.05.07

 

Trans # Ins

 

KVA

 

Serial #

 

Manufacturer

 

Location

1

 

300

 

06J144034

 

Pauwels

 

West of Maintenance

2

 

2000

 

06J144042

 

Pauwels

 

North of Coal Power Shed

3

 

2000

 

06J144046

 

Pauwels

 

North of Coal Power Shed

4

 

2000

 

06J144045

 

Pauwels

 

North of Coal Power Shed

5

 

1500

 

06J144044

 

Pauwels

 

East of Brewing Vats

6

 

2000

 

06J144041

 

Pauwels

 

East of Process Building

7

 

2000

 

06J144040

 

Pauwels

 

East of Process Building

8

 

1500

 

06J144036

 

Pauwels

 

West of Grain Silos

9

 

1500

 

06J144035

 

Pauwels

 

West of Grain Silos

10

 

1500

 

06J144037

 

Pauwels

 

South of Wet Cake Pad

11

 

1500

 

06J144038

 

Pauwels

 

South of Wet Cake Pad

12

 

2000

 

06J144039

 

Pauwels

 

North of Pump House

13

 

7.5Mw

 

20060000783

 

 

 

Substation

14

 

7.5Mw

 

20060000784

 

 

 

Substation

 

Page 1 of 1

 

9


EXHIBIT 10.22

 

ELECTRIC SERVICE AGREEMENT
INTERSTATE POWER AND LIGHT
COMPANY

 

Account No.

 

This agreement made this 17th day of October, 2007 by and between Interstate Power and Light Company (a wholly owned subsidiary of Alliant Energy Corporation), an Iowa corporation headquartered at 200 First Street SE, Cedar Rapids, Iowa, (hereinafter referred to as “the Company”) and Heron Lake BioEnergy LLC, a corporation / partnership / proprietorship with principal offices at 91246 390th Ave., Heron Lake, MN 56137, (hereinafter referred to as “the Customer”):

 

That for and in consideration of the mutual covenants of the parties set forth, and the performance thereof, it is agreed by and between the said parties as follows:

 

THE PRODUCER HEREBY AGREES THAT:

 

1.                                       It will furnish to the customer at the customer’s premises located at 91246 390th Ave. in Heron Lake, Minnesota, through one point of delivery, alternating current electricity (hereinafter called “electric service”) for all electrical energy requirements of the customer.

 

2.                                       The electric service furnished hereunder will be approximately 69,000 volts, and Three phase, 60 Hertz, and 0 volts, single phase, 60 Hertz, and metered at 69,000 volts.

 

THE CUSTOMER HEREBY AGREES THAT:

 

3.                                       It will take from the Company, through one point of delivery, electric service for all electrical energy requirements at the premises Identified in Paragraph 1 hereof, and it will observe the rules and regulations of the Company pertaining to electric service.

 

4.                                       It will not create a demand for electric service in excess of 6,300 KVA without first notifying the company in writing of such increase in demand and giving the company sufficient time in which to provide additional line capacity and other electrical equipment if required.

 

5.                                       It chooses / does not choose (circle one) interruptible service and it will curtail its demand for electrical service to N/A KW upon notice by the company.

 

IT IS MUTUALLY UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS THAT:

 

6.                                       The company shall furnish electric service and the customer shall use and pay for such service in accordance with the terms and condition of this Agreement and the rates set out in Rate Schedule 437/438 Bulk Supply Rate attached hereto and made a part hereof, or such other applicable rate schedule as hereafter at any time may be established for this class of service within the authority of the Minnesota Public Utilities Commission or such other regulatory authority having jurisdiction.  Notwithstanding any other provision of this Agreement, all rates and charges contained in this Agreement may be modified at any time by a subsequent filing made pursuant to the provisions of Chapter 216B of the Minnesota Statutes. At the time of signing of this Agreement, the excess facilities is $0.00; in the event the demand of the customer set forth in Paragraph 5 above shall be increased, the monthly excess facilities shall be increased appropriately.

 

1



 

7.                                       It is understood by the customer that, if at any future time it should elect to accept service under some other available electric service rate that might prove more advantageous, any expense brought about by necessary wiring changes on its premises shall be borne by the customer.

 

8.                                       The electric service furnished under this Agreement includes only that which is incidental to the customer and no part of the said electric service shall be sold by the customer to any other parties.

 

9.                                       The company will use due diligence in the operation and maintenance of its plants and system pertinent to this Agreement so as to render efficient economic service, but the company shall not be liable to the customer for any loss or damages suffered by the customer through the inability of the company to furnish said electric service in accordance with this Agreement.

 

10.                                 The customer shall hold the producer harmless for any damage to persons or property arising out of the use upon the customer’s premises of the electric service furnished to it by the company.  Nothing herein contained shall be construed as relieving the company from any liability to its own employees while upon the property of the customer in the performance of their duty and by the direction of the company, or as relieving the company from any liability to the customer due to the producer’s act of negligence.

 

11.                                 This Agreement shall continue for a period of one (1) year commencing October 1, 2007, and ending October 1, 2008, and thereafter, and may be terminated by either party giving to the other written notice at least ninety (90) days prior to the date upon which it desires to terminate the same; whereupon this Agreement shall terminate on said date.  All contracts, agreements and understandings between the parties hereto, whether oral or written, pertaining to the subject matter hereof, heretofore made and entered into, shall hereby become null and void and of no further force and effect whatsoever.

 

12.                                 This Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and assigns; but the assignment of this Agreement by either party shall not relieve such party, without the written consent of the other, from any of the obligations hereof.

 

IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed as of the day and year first above written.

 

Heron Lake Bio Energy LLC

 

Interstate Power and Light Company

(Customer)

 

(Company)

 

 

 

By:

 /s/ Robert J. Ferguson

 

By:

 /s/ Matt Dalney

 

 

 

Title: President

 

Title: Manager, Sales

(Officer-Partner-Owner)

 

 

 

 

 

Attest:

/s/ Jean M. Ferguson

 

Attest:

/s/ Carole Burgin

 

2



 

GENERAL CONDITIONS

 

1.                                        Equal Opportunity Clause

 

a.                                        The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or nation origin.  The contractor will take affirmation action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.  Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.  The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.

 

b.                                       The full text of the Equal Opportunity Clause is found at 41 CFR 60-1.4 and the provisions thereof are herein incorporated by reference.

 

c.                                        Contractor further agrees to insert the foregoing provision in all subcontracts hereunder.

 

2.                                        Affirmative Action for Handicapped Workers; Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era.

 

a.                                        The contractor will not discriminate against any employee or applicant for employment because of physical or mental handicap, or because he or she is a disabled veteran or veteran of the Vietnam Era in regard to any position for which the employee or applicant for employment is qualified.  The contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified handicapped individuals and qualified disabled veterans and veterans of the Vietnam Era without discrimination based upon their physical or mental handicap or their disability or veteran status in all employment practices such as the following: employment upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.

 

b.                                       The full text of these Affirmative Action Clauses is found at 41 CFR 60-741.5 and 41 CFR 60-250.4 and the provisions thereof are herein incorporated by reference.

 

c.                                        Contractor further agrees to insert the foregoing provisions in all subcontracts hereunder.

 

3



 

INTERSTATE POWER and LIGHT COMPANY

 

 

ELECTRIC TARIFF

 

 

FILED WITH M.P.U.C.

 

ORIGINAL VOLUME NO. 8

 

 

SUBSTITUTE ELEVENTH REVISED SHEET NO. 23

 

 

Cancelling SUBSTITUTE TENTH REVISED SHEET NO. 23

RATE DESIGNATION:

 

 

 

ON-PEAK 437

CLASS OF SERVICE:

 

LARGE POWER AND LIGHTING - BULK SUPPLY

 

OFF-PEAK 438

SERVICE AREA:

 

ALL MINNESOTA SERVICE AREA

 

 

 

Availability :  Available only for new loads in excess of 4,999 KW served at transmission voltages.  Existing loads taken with added new loads such that the total load is in excess of 4,999 KW may also be served at this rate provided the customer assumes all costs incurred in revising Company’s system in order to serve the total load at transmission voltages.  A service agreement shall be required.

 

Net Rate :

 

Basic Service :    $4.22400 per day*

 

 

 

Usage from June 1 through Sept. 30

 

Usage from October 4 through May 31

 

Demand Charge :

 

 

 

 

 

On-Peak KW

 

$10.38 per KW

 

$6.09 per KW

 

Off-Peak KW In excess of On-Peak KW

 

$3.98 per KW

 

$3.98 per KW

 

 

 

 

 

 

 

kWh Charge:

 

 

 

 

 

On-Peak kWh

 

All kWh/day @ 3.644¢ per kWh

 

All kWh/day @ 3.616¢ per kWh

 

Off-Peak kWh

 

All kWh/day @ 3.185¢ per kWh

 

All kWh/day @ 3.185¢ per kWh

 

 


*For Comparison Only:  Basic Service $128.48/month

 

Definition of Peak Periods :

 

On-Peak: 7 AM – 10 PM all non-holiday weekdays.

 

 

Off-Peak: All other hours (including the holidays of New Year’s, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day).

 

Determination of Demands :  The metered demands shall be measured by a 15 minute interval demand meter and shall include any loss adjustments provided for in a contract for metering at other than transmission levels.

 

Billing Demand :  The Monthly Billing Demand shall be the largest On-Peak metered demand in the 12 months ending with the current billing month but not less than 5,000 kW.

 

Minimum Energy Purchases :  The minimum number of kWh to be billed in any billing month shall be that quantity equal to the Billing Demand multiplied by 400.  The minimum kWh billed shall be in the same ratio as actual metered On-Peak kWh and Off-Peak kWh for the month.

 

Energy Supply Cost Adjustment :  Rider 1M applicable hereto.

 

Excess Facilities Charge :  Any facilities required to provide service in excess of that permitted under this Schedule or the Company’s Electric Service Standards shall be provided at a monthly amount equal to 1.8% of the Company’s investment in such facilities.

 

Tax Adjustment :  Rider MTX applicable hereto.

 

4



 

Reactive Demand Charge .  A reactive demand charge of 51¢ per kVAr for that portion of the maximum kVAr registered during the month in excess of 50% of the maximum KW registered during the month.

 

Minimum Monthly Bill :  The minimum bill to be rendered for any billing period will be the demand charges for the Billing Demand for that month plus the energy charges for 400 kWh per kW of that Billing Demand.

 

Late Payment :  A late payment charge of one and one-half percent per month shall be assessed on delinquent amounts in excess of $10.00.  The minimum late payment charge assessed shall be $1.00.  A bill becomes delinquent if not paid within 15 days after being rendered.

 

Rules and Regulations :  Service hereunder is subject to the provisions of the Company’s Electric Service Standards.

 

 

Date Filed: May 16, 2005

Effective Date: May 15, 2006

 

 

By:

/s/ James P. Maher

 

 

 James P. Maher, Manager – Regulatory Pricing, Iowa & Minnesota

 

 

Docket No. E001/GR-05-748

Order Date: May 19, 2006

 

5



 

INTERSTATE POWER and LIGHT COMPANY

 

 

ELECTRIC TARIFF

 

 

FILED WITH M.P.U.C.

 

ORIGINAL VOLUME NO. 8

 

 

SUBSTITUTE SIXTEENTH REVISED SHEET NO. 29

 

 

Cancelling SUBSTITUTE FIFTEENTH REVISED SHEET NO. 29

RATE DESIGNATION:

 

ENERGY SUPPLY COST ADJUSTMENT

 

Rider 1M

CLASS OF SERVICE:

 

ALL SCHEDULES SO DESIGNATED

 

(Page 1 of 2)

SERVICE AREA:

 

ALL MINNESOTA SERVICE AREA

 

 

 

There shall be added to or deducted from the net monthly bill $0.00001 per Kilowatt-hour for each $0.00001 increase above or decrease below $0.01692 in the energy supply cost per Kilowatt-hour sales.

 

The energy supply cost adjustment for each billing month shall be derived from the following formula:

 

Monthly Adjustment = Fm/Sm – 0.01692

 

Where:

Fm is total fuel and purchased economic power cost and Sm is total kWh sales (retail sales plus firm municipal sales) for the first two months of the three month period immediately preceding the billing month, all as defined below.

 

a.                                        Fuel and Purchased Economic Power Cost shall be the sum of the following:

 

1.                                        The fossil and nuclear fuel consumed in the Company’s generating stations, including the Company’s share of fuel consumed in jointly owned or leased generating stations, as recorded in Accounts 151 and 518,

 

2.                                        The total cost of the purchase of economic power as defined below, if the reserve capacity of the Company is adequate independent of all other purchases where non-fuel charges are included in either base period or current period fuel and purchased economic power cost,

 

3.                                        The energy cost associated with any energy purchased for reasons other than identified in (2) above, when such energy is purchased on an economic dispatch basis,

 

4.                                        The actual identifiable fossil and nuclear fuel costs associated with energy purchased for reasons other than identified in (2) above, less,

 

5.                                        The energy-related revenue applicable to inter-system sales.

 

b.                                       kWh Sales shall be all kWhs sold excluding inter-system sales for the same period.

 

c.                                        Economic Power is power or energy purchased over a period of twelve months or less where the total cost of the purchase is less than the Company’s total avoided variable costs.

 

Date Filed: May 16, 2005

Effective Date: May 15, 2006

 

 

By:

/s/ James P. Maher

 

 

 James P. Maher, Manager – Regulatory Pricing, Iowa & Minnesota

 

 

Docket No. E001/GR-05-748

Order Date: May 19, 2006

 

6



 

INTERSTATE POWER and LIGHT COMPANY

 

 

ELECTRIC TARIFF

 

 

FILED WITH M.P.U.C.

 

ORIGINAL VOLUME NO. 8

 

 

SUBSTITUTE FIFTH REVISED SHEET NO. 29.1

 

 

Cancelling SUBSTITUTE FOURTH RIVISED SHEET NO. 29.1

RATE DESIGNATION:

 

ENERGY SUPPLY COST ADJUSTMENT

 

Rider 1M

CLASS OF SERVICE:

 

ALL SCHEDULES SO DESIGNATED

 

 

SERVICE AREA:

 

ALL MINNESOTA SERVICE AREA

 

 

 

d.                                       Total Cost of the Purchase is all charges incurred in buying economic power and having such power delivered to the Company’s system.  The total cost includes, but is not limited to capacity or reservation charges, energy charges, adders, and any transmission or wheeling charges associated with the purchase.

 

e.                                        Total Avoided Variable Cost is all identified and documented variable costs that would have been incurred by the Company had a particular purchase not been made.  Such costs include, but are not limited to, those associated with fuel, start-up, shut-down or any purchases that would have been made in lieu of the purchase made.

 

f.                                          Under the Mid-Continent Area Power Pool (MAPP) Agreement, Company is required to own, or have available to it under contract, sufficient generating capability to supply its monthly adjusted net system demand while maintaining a reserve capacity obligation equal to 15% of the annual adjusted net system demand.  If Company does not own sufficient generating capacity to meet this obligation, Company will obtain seasonal capacity commitments from other utilities which are party to the Agreement.  If such capacity is not available, Company will obtain needed capacity from an outside party.  The MAPP Agreement also requires Company to meet a daily operating reserve obligation equal to a prorated share of the Pool Total Operating Reserve which is an amount equal to 150% of the capability of the largest generating unit in operation on the interconnected systems of the Pool participants.  Additionally, the MAPP operating reserve requirements states that the spinning reserve portion of the operating reserve shall not be less than 75% of the capability of the largest generating unit in service.  Company’s percentage of Total Operating Reserve is calculated by giving one-third weight to the capability of the Company’s largest unit divided by the sum of capability of each participant’s largest unit and a two-thirds weight to the Company’s Annual System Demand divided by the sum of the Annual System Demands of all participants.  If it is determined that Company cannot, in any hour of the day, meet its load and operating reserve requirements with Company generating resources, owned or under contract, then arrangements will be made to purchase energy from within MAPP to meet such needs.  If sufficient resources are not available from within MAPP, Company will arrange a purchase from a party outside of the Pool.  Purchase will be considered a reliability purchase if required to meet the conditions outlined above.

 

Date Filed: May 16, 2005

Effective Date: May 15, 2006

 

 

By:

/s/ James P. Maher

 

 

 James P. Maher, Manager – Regulatory Pricing, Iowa & Minnesota

 

 

Docket No. E001/GR-05-748

Order Date: May 19, 2006

 

7


EXHIBIT 10.23

 

 

Shared Savings Contract
Minnesota

 

THIS ENERGY SERVICES AGREEMENT (hereinafter, “Agreement”) is made and entered into as of the 16th day of November, 2007, by and between, Interstate Power and Light Company (IPL), an Alliant Energy company, a Iowa corporation having its principal offices at 200 First St., Cedar Rapids, Iowa 52401 (hereinafter, “Utility”), and Heron Lake BioEnergy LLC, a Minnesota corporation having its principal offices at Heron Lake, MN (hereinafter, “Client”), relating to property owned by Client at 91246 390th Ave, Heron Lake, MN 56137 (hereinafter, “Premises”, which are more particularly described in Part I of Schedule A attached hereto),

 

IT IS AGREED AS FOLLOWS:

 

Section 1. Purposes of Agreement

 

The purposes of this Agreement and the actions of the parties in pursuit thereof are:

 

A.            To accurately identify and agree upon certain baseline information concerning the energy consumption characteristics of the Premises (hereinafter, “Baseline Energy Consumption”);

 

B.              To designate certain equipment (hereinafter, “Equipment”) which, when installed on the Premises in lieu of Equipment presently used by Client, is estimated by Utility to reduce Client’s annual energy consumption below Baseline Energy Consumption (“Energy Savings”) thereby providing an estimated level of savings to Client; and

 

C.              To set forth the obligation of the Utility to fund the acquisition and installation of the Equipment in exchange for the promise by Client to share a portion of the value of the Energy Savings (“Shared Savings”) with Utility by paying such amount to Utility along with payment of Client’s regular bill for utility service.

 

Section 2. Baseline Energy Consumption

 

Client and Utility have to their mutual satisfaction analyzed the historic and present operating practices of Client (hereinafter, “Baseline Operating Practices”) and the corresponding energy consumption characteristics of the Premises and agree that the Baseline Energy Consumption on all (or a specified portion, as the case may be) of the Premises for the purposes of this Agreement shall be as set forth in Part II of Schedule A. The parties intend that such Baseline Energy Consumption shall be conclusive and, except for material error or misrepresentation with respect to the Baseline Operating Practices, each hereby waives any objections to same, whether now existing or hereafter arising.

 

Section 3. Equipment Purchase, Installation, Operation and Maintenance

 

Within a reasonable period of time after the execution of this Agreement:

 

A.            Client shall purchase the Equipment specified in Part I of Schedule B hereof and shall arrange for installation of the Equipment at the Premises.

 

B.              Client will invoice Utility for the cost of purchasing and installing the Equipment. The invoice will be substantiated with copies of the applicable vendor/contractor invoices. Utility will reimburse Client after inspection and approval of the Equipment by Utility. Client shall indemnify and hold harmless Utility from and against any and all claims, costs, damages, or expenses incurred as a result of any personal injury or property damage arising out of the acts or omissions of Client or Client’s contractors, subcontractors, employees, agents or representatives in the installation and operation of the Equipment.

 



 

C.              Client shall be responsible for obtaining all governmental permits, consents, and authorizations necessary for installation of the Equipment, and Utility shall use its best efforts to assist Client in obtaining such permits, consents and authorizations.

 

As part of the initial installation and continuing thereafter, Client shall provide Utility with mutually satisfactory access to the Premises for the inspection of the Equipment, and with free and reasonable access to lights, heat, power, water, and the like necessary for such inspection and any associated submetering.

 

Client shall have exclusive responsibility for the operation and maintenance of the Equipment in accordance with all manufacturer specifications and recommendations and with such additional standards and procedures as may be set forth in Part II of Schedule B. All costs and expenses incurred in connection with the operation and maintenance of the Equipment shall be the sole responsibility of Client. Client shall be solely responsible for enforcing any manufacturer’s warranties which accompany the Equipment and shall enforce such warranties on its own or upon Utility’s request.

 

Section 4. Risk of Loss

 

Client hereby assumes all risks of loss or damage to the Equipment while such Equipment is in their care, custody or control. Client shall notify Utility within 10 days of any loss or damage to the Equipment and shall keep Utility informed of all developments regarding insurance rights and recoveries. Should the Equipment be deemed a total loss or Client decides not to complete repairs, Client shall pay to Utility the Termination Value specified in Schedule C hereto.

 

Section 5. Insurance

 

The Client shall provide, maintain, and pay for commercial general liability insurance with limits of at least $1,000,000 per occurrence so as to comply with Section 14. Indemnification. Client shall also provide, maintain, and pay for all risk property insurance with a minimum limit of the Termination Value of this Agreement as specified in Schedule C hereto. In the event of any loss or damage to the Equipment, the proceeds of insurance covering the Equipment shall be applied toward the replacement, restoration, or repair of the Equipment in accordance with Section 4. Risk of Loss. This insurance must be in effect from the time that the first item of Equipment is delivered to the Client until the end of the term. Each policy must contain the insurer’s agreement to give thirty (30) days written notice to Utility before cancellation or non-renewal of the required insurance. The Client agrees to provide certificates of insurance as evidence of the required coverage to Utility. Failure of Utility to enforce the minimum insurance requirements listed above shall not relieve Client of responsibility for maintaining these coverages.

 

Section 6. Disclaimer of Warranties

 

UTILITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLlED, CONCERNING THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, AND SPECIFICALLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

Section 7. Commencement Date and Term

 

The “Commencement Date” shall be the first day of the first Billing Period beginning after the Utility reimburses the Client as provided in Section 3. The “Term” of this Agreement shall begin on the date set forth on page one hereof and shall run continuously from such date (unless this Agreement shall have been terminated by the parties at an earlier date pursuant to the terms hereof) until the 5 year anniversary of the Commencement Date. “Billing Period” shall mean any period of approximately one month’s duration coincident with the normal billing cycle between Utility and Client, and “Annual Billing Period” shall mean a series of twelve (12) consecutive Billing Periods, the first of which shall begin with the Billing Period which first begins on or after the Commencement Date.

 

Section 8. Compensation and Billing

 

Client agrees to pay Utility an amount equal to: (i) $29,774.91 in each Billing Period from period 1 to period 13, (ii) $29,599.91 in each period after period 14, all occurring during the Term of this Agreement following the Commencement Date, for a total of 60 billing periods and (iii) the amount of $140,000 at the end of the 13th Billing Period. The foregoing amounts (the “Shared Savings”) reflect a sharing by Client of the value of the Energy Savings

 



 

estimated to be realized from the operation and use of the Equipment at the Premises as outlined In Schedule D with the present energy charge In effect under Utility’s applicable Rate Schedule. The foregoing amounts (the “Bright Ideas” labeled on bill) shall appear as a separate line item on Client’s bill from Utility during each Billing Period, and shall be payable by Client upon the same terms and conditions as are applicable to the normal utility bill. The foregoing amounts shall not vary due to change in Utility’s rates, returns, or charges authorized by the Public Service Commission of Minnesota. The foregoing amounts are based upon an estimated cost for purchase and installation of the Equipment and will be modified by amendment to this Agreement to reflect the actual cost of such purchase and installation upon completion thereof.

 

Section 9. Conditions Beyond Control of Utility

 

If Utility shall be unable to carry out any of its obligations under this Agreement due to events beyond its control, including, without limitation, acts of God, governmental or judicial authority, insurrections, riots, labor disputes, labor or material shortages, fires, explosions, or floods, this Agreement shall remain in effect but Utility’s obligations shall be suspended until the uncontrollable event terminates.

 

Section 10. Remedies Upon Default by Client

 

A.            Utility’s Remedies. In the event Client fails to pay Utility its compensation when due, or any other Event of Default by Client occurs (defined as a failure by Client to timely perform any of its obligations under the Agreement), Utility may, without an election of remedies:

 

1.                disconnect all electric service to the Premises in accordance with the rules and regulations of the Utility as approved by the Public Service Commission of Minnesota and in effect at the time of breach; and
 
2.                declare the Termination Value specified in Schedule C immediately due and payable from Client and exercise all remedies available at law or at equity or other appropriate proceedings Including bringing an action or actions from time to time for recovery of amounts due and unpaid by Client, and/or for damages which shall include all costs and expenses reasonably incurred in exercise of its remedy (including reasonable attorney’s fees), and/or for specific performance; or
 
3.                without recourse to legal process, terminate this Agreement by delivery of a notice declaring termination, whereupon Utility may enter the Premises and dismantle and/or remove the Equipment from the Premises, without liability in any suit, action or other proceeding to Client or Lessor of Premises, if any, on account of such actions.
 

B.              Liquidated Damages. In the event Utility terminates this Agreement due to an Event of Default, at Utility’s request Client shall pay to Utility, as liquidated damages, the Termination Value set forth in Schedule C, plus all costs and expenses reasonably incurred in exercise of its remedy, including reasonable attorney’s fees.

 

C.              Termination. Utility may terminate this Agreement and declare the Termination Value specified in Schedule C immediately due and payable should:

 

1.                Client cease use of the Equipment or the conduct of commercial operations at the premises; or
 
2.                Any creditor of Client commence legal proceedings against Client involving any debt or obligation of Client for which the Equipment is pledged as collateral; or
 
3.                Client commence or have commenced against it any proceedings in bankruptcy, receivership, or insolvency, or make any assignment for the benefit of its creditors; or
 
4.                Client cease to take or receive electric and/or natural gas service from Utility.

 



 

Section 11. Remedies Upon Default by Utility

 

In the event of material default by Utility, Client shall have the following remedy:

 

A.            Terminate this Agreement by delivery of a Notice declaring termination, and paying the Termination Value indicated in Schedule C (less the cost of any future maintenance and energy related services included therein, as agreed to by the parties), whereupon Utility shall have no further rights, obligations or claims under this Agreement.

 

Client may terminate this Agreement by paying the Termination Value indicated in Schedule C.

 

Section 12. Arbitration

 

Except as otherwise provided herein, any dispute, controversy or claim arising out of or in connection with or relating to this Agreement, upon the request of either Client or Utility, shall be submitted to and settled by arbitration at the locality where the Premises are situated in conformance with rules of the American Arbitration Association then in effect. Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in a court of any forum, state or federal, having jurisdiction. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the cost of its own experts, evidence and counsel. This Section 12 does not apply and shall not limit Utility’s rights to seek redress in any forum in the event Utility seeks to invoke any of the provisions of Section 10 herein.

 

Section 13. Assignment

 

Utility may (a) transfer or assign all or any part of its rights and obligations herein to any party, (b) pledge its rights hereunder to its creditors, or (c) utilize contractors and subcontractors, provided that any assignee or transferee agrees to honor the terms of this Agreement. Unless otherwise approved in writing Client may not transfer or assign this Agreement and its rights and obligations herein. If such assignment is permitted, Client shall condition assignment on assignee assuming in writing all of Client’s rights and Obligations under this Agreement.

 

Section 14. Indemnification

 

Client agrees to indemnify, defend and hold Utility harmless from any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorney’s fees, and claims of third parties arising out of, connected with or resulting from Client’s operation, installation, use, maintenance or repair of the Equipment, or from the negligence or misconduct of its employees or other agents in connection with their activities within the scope of this Agreement. However, Client shall not be obligated to indemnify Utility against claims, damages, expenses or liabilities solely to the extent such claims, damages, expenses or liabilities directly result from the negligence or willful misconduct of Utility or its employees or agents. The duty to indemnify will continue in full force and effect notwithstanding the expiration or early termination of this Agreement with respect to any claims based on facts or conditions which occurred prior to termination.

 

Section 15. Security Agreement

 

To secure payment of: (i) 140,000 U.S. dollars of Shared Savings due from Client to Utility, Client pledges to Utility and grants to Utility a security interest in the Equipment. Client shall timely execute a Uniform Commercial Code financing statement relating to said Equipment to be filed by Utility in such manner and in such places as Utility may elect, and (ii) 1,710,000 U.S. dollars of Shared Savings due from Client to Utility, Client agrees to deposit the sum of 1,710,000 U.S. dollars Into an Escrow Account with Farmers State Bank of Hartland (or any other Bank acceptable to Utility) acting as Escrow Agent, and to sign an Escrow Agreement supporting such Escrow Account. Utility shall release such security interest and the balance of funds in the Escrow Account following payment in full of the Shared Savings.

 

Section 16. Miscellaneous

 

A.            This Agreement shall be governed by and interpreted pursuant to the laws of the state of Minnesota, without regard to its conflict of laws’ provisions.

 



 

B.              The attached escrow agreement is incorporated into this contract. No waiver, alteration, consent or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of all parties hereto bound.

 

IN WITNESS WHEREOF and intending to be legally bound, the parties hereto subscribe their names to this instrument on the date first above written.

 

ATTEST:

 

Interstate Power and Light Company

 

 

 

 

 

By:

 

 

 

/s/ David Wentzel

 

/s/ Ken Gebhart

 

 

 

 

 

 

ATTEST:

 

Heron Lake BioEnergy, LLC

 

 

 

 

 

By:

 

 

 

/s/ Jean M. Ferguson

 

/s/ Robert J. Ferguson

 



 

SCHEDULE A

 

Heron Lake BioEnergy

 

DESCRIPTION OF PREMISES

 

PART I
DESCRIPTION

 

PART II
ENERGY CONSUMPTION CHARACTERISTICS

 

Floor area of facility: 100,000 s.f.

 

 

 

 

Period #1

 

Period #2

 

 

* to *

 

* to *

Electric

 

 

 

 

Average Demand (kW)

 

6,000

 

0

Interrupt Demand (kW)

 

0

 

0

On-Peak Energy (kWh)

 

20,000,000

 

0

Off-Peak Energy (kWh)

 

25,000,000

 

0

Natural Gas

 

 

 

 

Energy (Therms)

 

0

 

0

Other Fuels

 

 

 

 

Other Fuel 1

 

0

 

0

Other Fuel 2

 

0

 

0

Facility Operation

 

 

 

 

Hours of Operation

 

8,760

 

0

Heating Degree Days

 

0

 

0

% Occupancy

 

100

 

0

Production (Units/Year)

 

50,000,000

 

0

Production (Units/Year)

 

0

 

0

Production (Units/Year)

 

0

 

0

Comments:

 



 

SCHEDULE B

 

PART I
EQUIPMENT

 

 

Item Description

 

Manufacturer

 

Model Number

 

Quantity

 

 

 

 

 

 

 

1      Distribution Transformer

 

 

 

 

 

1

 

PART II
ADDITIONAL STANDARDS AND PROCEDURES

 



 

SCHEDULE C

 

Amortization Schedule Based on:

i. Periodic payments of $29,774.91 for period 1-13, plus extra payment of $140,000 for period 13 and; ii. Periodic payments of $29,599.91 for periods 14-60.

 

Payment

 

Billing

 

Termination

 

Payment

 

Billing

 

Termination

 

Payment

 

Billing

 

Termination

 

Dates

 

Period

 

Value

 

Dates

 

Period

 

Value

 

Dates

 

Period

 

Value

 

Beg-

 

0

 

$

1,850,000.00

 

 

 

 

 

 

 

 

 

 

 

 

 

12/30/2007

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1/31/2007

 

1

 

$

1,822,537.59

 

9/30/2009

 

21

 

$

1,126,023.14

 

5/31/2011

 

41

 

$

555,429.38

 

2/30/2007

 

2

 

$

1,795,040.85

 

10/31/2009

 

22

 

$

1,097,830.77

 

6/28/2011

 

42

 

$

526,523.75

 

3/31/2007

 

3

 

$

1,767,509.75

 

11/31/2009

 

23

 

$

1,069,603.15

 

7/31/2011

 

43

 

$

497,582.00

 

4/31/2008

 

4

 

$

1,739,944.23

 

12/30/2009

 

24

 

$

1,041,340.24

 

8/30/2011

 

44

 

$

468,604.07

 

5/29/2008

 

5

 

$

1,712,344.25

 

1/31/2009

 

25

 

$

1,013,042.01

 

9/31/2011

 

45

 

$

439,589.92

 

6/31/2008

 

6

 

$

1,684,709.77

 

2/30/2009

 

26

 

$

984,708.40

 

10/30/2011

 

46

 

$

410,539.49

 

7/30/2008

 

7

 

$

1,657,040.75

 

3/31/2009

 

27

 

$

956,339.38

 

11/31/2011

 

47

 

$

381,452.76

 

8/31/2008

 

8

 

$

1,629,337,14

 

4/31/2010

 

28

 

$

927,934.89

 

12/31/2011

 

48

 

$

352,329.67

 

9/30/2008

 

9

 

$

1,601,598.90

 

5/28/2010

 

29

 

$

899,494.90

 

1/30/2011

 

49

 

$

323,170.17

 

10/31/2008

 

10

 

$

1,573,825.99

 

6/31/2010

 

30

 

$

871,019.36

 

2/31/2011

 

50

 

$

293,974.23

 

11/31/2008

 

11

 

$

1,546,018.37

 

7/30/2010

 

31

 

$

842,508.23

 

3/30/2011

 

51

 

$

264,741.79

 

12/30/2008

 

12

 

$

1,518,175.98

 

8/31/2010

 

32

 

$

813,961.46

 

4/31/2011

 

52

 

$

236,472.80

 

1/31/2008

 

13

 

$

1,350,298.79

 

9/30/2010

 

33

 

$

785,379.00

 

5/31/2012

 

53

 

$

206,167.24

 

2/30/2008

 

14

 

$

1,322,386.76

 

10/31/2010

 

34

 

$

756,760.81

 

6/29/2012

 

54

 

$

176,826.04

 

3/31/2008

 

15

 

$

1,294,439.83

 

11/31/2010

 

35

 

$

728,106.86

 

7/31/2012

 

55

 

$

147,446.16

 

4/31/2009

 

16

 

$

1,266,457.97

 

12/30/2010

 

36

 

$

699,417.08

 

8/30/2012

 

66

 

$

118,030.56

 

5/28/2009

 

17

 

$

1,238,441.14

 

1/31/2010

 

37

 

$

670,691.44

 

9/31/2012

 

57

 

$

88,578.19

 

6/31/2009

 

18

 

$

1,210,389.28

 

2/30/2010

 

38

 

$

641,929.90

 

10/30/2012

 

68

 

$

59,089.00

 

7/30/2009

 

19

 

$

1,182,302.36

 

3/31/2010

 

39

 

$

613,132.40

 

11/31/2012

 

59

 

$

29,562.95

 

8/31/2009

 

20

 

$

1,154,180.33

 

4/31/2011

 

40

 

$

584,298.91

 

12/31/2012

 

60

 

$

0.00

 

 



 

SCHEDULE D

 

Heron Lake BioEnergy

 

Termination Values

 

This project includes the following projects:

 

 

 

Bill kW

 

KWh

 

Therms

 

Dollars (Energy)

 

 

 

Project

 

Annual Savings

 

Annual Savings

 

Annual Savings

 

Annual Savings

 

Project Cost ($)

 

New Plant Construction

 

800

 

4,500,000

 

 

 

$ 321,181.00

 

$ 1,850,000.00

 

TOTAL

 

800

 

4,500,000

 

0

 

$

321,181.00

 

$

1,850,000.00

 

 


EXHIBIT 10.24

 

ESCROW AGREEMENT

 

This Escrow Agreement (the “Agreement”) is made and entered into effective as of November 16th, 2007, by and between Heron Lake Bio Energy, a Minnesota corporation (the “Company”) and Farmers State Bank of Hartland (the “Escrow Agent”) for the benefit of Interstate Power and Light Company (IPL) (the “Beneficiary”).

 

RECITALS

 

WHEREAS, the Company is a party to a certain Agreement called Shared Savings Contract dated November 16th, 2007 with IPL, which Agreement requires the Beneficiary to pay to the Company an amount equal to $1,850,000 as project cost for the purchase and the installation of equipment specified in the Shared Savings Contract.

 

WHEREAS, as additional security for IPL the Company desires to place an amount of $1,710,000 (“Placement”) in an escrow account with the Escrow Agent until such time as there shall be payment requests (Escrow Disbursement Authorization) from the Company to pay IPL, as provided by Section 8 of the Shared Savings Contract.

 

WHEREAS, the Escrow Agent is willing to accept appointment as escrow agent to complete the duties, terms and conditions expressly set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing recitals, and of such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Escrow Agent agree RS follows:

 

1.)            Acceptance Of Appointment . Escrow Agent agrees to act as escrow agent for the Placement under this Agreement. The Escrow Agent shall provide security in the form of a Surety from Kansas Bankers Surety Company or any other Surety Company acceptable to IPL which is rated at least A- by Standard and Poor’s (S&P) or A3 by Moody’s Investors Service (Moody’s). IPL shall be named as the sole beneficiary in the Surety.

 

2.)            Establishment Of Escrow Account . An escrow account (the “Escrow Account”) is hereby established with the Escrow Agent for the sole benefit of Beneficiary in the Placement. Except as specifically provided in this Agreement, the Escrow Account shall be created and maintained subject to the customary rules and regulations of the Escrow Agent pertaining to such accounts.

 

3.)            Ownership Of Escrow Account . Until such time as IPL shall provide a Statement of Satisfaction and Release in the form shown herein as Exhibit B the funds deposited in the Escrow Account including interests received or credited therein (the “Escrow Funds”) shall not become the property of the Company or be subject to the debts of the Company or any other person but shall be held by the Escrow Agent solely for the benefit of IPL. Escrow account shall be titled in the name of Company and interest income accrued shall be reported under Company tax ID.

 

4.)            Security Of Escrow Funds . The funds deposited in the Escrow Account shall be secured by a Bond provided by Kansas Bankers Surety Company (KBSC). If KBSC ceases to be rated by S&P or Moody’s, or if the credit ratings assigned to its senior, unsecured debt shall fall below A- by S&P or A3 by Moody’s, then the Escrow Agent shall within 5 Business Days provide

 



 

a substitute Guarantor or Surety Company acceptable to IPL whose credit rating shall be at least A- by S&P or A3 by Moody’s to secure the Escrow Account. IPL and Company agree to cooperate with Bank in executing a surrender and reissue request to KBSC for reduction of surety coverage (to match declining principal balance); such requests shall be made no more often than annually. Not withstanding anything stated in this section 4, the surety provided by KBSC or any substitute Guarantor shall not be less than the Termination Values shown opposite each billing period on the amortization table attached as Exhibit B to this Agreement less $140,000.

 

5.)            Escrow Fees . The Company hereby agrees to pay the Escrow Agent a fee equal to $100.00. Notwithstanding the foregoing, all fees under this Agreement shall be paid or payable from interest only and not from principal, and shall not exceed the amount of interest realized on the Escrow Account.

 

6.)            Investment of Escrow Funds . The Escrow Funds shall be credited by Escrow Agent and recorded in the Escrow Account. The Escrow Agent shall be permitted, and is hereby authorized to deposit, transfer, hold and invest all funds received under this Agreement, including principal and interest. Any interest received by Escrow Agent with respect to the Escrow Funds shall be considered earned by the Escrow Agent, the Escrow Agent shall in turn pay the Company a rate of 4.20% per annum on the Escrow Funds. Interest shall be credited to the Escrow Funds at the end of each month.

 

7.)            Terms of Escrow . This Agreement shall terminate on the earliest of (a) December 31, 2012, as provided in (he Shared Savings Contract; (b) the date the Escrow Agent receives written notice from IPL that it is terminating the Placement; (c) the date specified on the Statement of Satisfaction and Release signed by IPL. Upon termination of the Placement, whether after extension or otherwise, the Escrow Agent shall disburse the funds in the Escrow Account in the manner and upon the terms directed in Section 8 of this Agreement. IPL may terminate the Placement at any time or if the Shared Savings Contract is terminated. Upon the receipt of a certified notice from an authorized officer of IPL stating that IPL has terminated the Placement, the Escrow Agent shall disburse the monies on deposit in the Escrow Account together with any accrued interests as provided in Section 8.

 

8.)            Disbursement of Escrow Funds . The escrow created by this Agreement shall be disbursed in accordance with the following:

 

(a)           Upon receipt of Escrow Disbursement Authorization signed by an officer of the Company in the form attached herein as Exhibit B (Amortization schedule provided by IPL). Escrow Disbursement Authorizations shall specify the amounts being paid and the billing period or periods to which they relate.

 

(b)           Upon full payments of all amounts stated for the 60 billing periods as specified in the Shared Savings Contract, IPL shall submit to the Escrow Agents the Statement of Satisfaction and Release, whereupon any funds remaining on the Escrow Account shall be transferred and paid to the Company.

 

(c)           Upon receipt of notice of Termination or notice from IPL that it is terminating the Placement pursuant to Section 7 of this Agreement, any funds remaining on the Escrow Account shall be disbursed to IPL or as directed by IPL at its sale option.

 

2



 

Notwithstanding the above provisions, if there shall be any dispute regarding the disbursement of funds from the Escrow funds, IPL shall have the option to provide direction.

 

9.)            Liability of Escrow Agent . The escrow Agent shall perform all duties as specified for it under this Agreement and shall be liable to IPL for damages, losses or expenses attributable to the enforcement of this Agreement. However, the Escrow Agent is not responsible for determining and verifying the authority of any person acting or purporting to act on behalf of any patty to this Agreement. The Escrow Agents shall send Statements of the Escrow Account activities and balances within 30 days following the end of June and December in each calendar year to Company and IPL.

 

10.)          Fees and Expenses . For all Escrow Amounts disbursed pursuant to 7(b), above, the Escrow Agent shall be entitled to assess the Company a fee of $10.00 for each check, ACH or Wire transfer made in connection with Disbursements (other than transfers made for investments) from the Escrow Account, which fees shall be paid from the interest on the Escrow Account only and not from principal. In the event the Escrow Agent renders any service not provided for in this Agreement, or if the Company requests a substantial modification of its terms, or if any controversy arises; or if the Escrow Agent is made a party to, or intervenes in, any litigation pertaining to this escrow or its subject matter, the Escrow Agent shall be reasonably compensated for such extraordinary services and reimbursed for all costs and reasonably attorney’s fees, including a reasonable allocation of costs for in-house counsel, and expenses occasioned by such default, delay, controversy or litigation. In such an event, the Escrow Agent shall have the right to retain all documents and/or other things of value at any time held by the Escrow Agent in this escrow until such compensation, fees, costs and expenses are paid. The Company promises to pay these sums upon demand. Unless otherwise provided, the Company will pay all of the Escrow Agent’s usual charges and the Escrow Agent may deduct such sums from the interest on the Escrow Account only and not from principal deposited to the Escrow Account.

 

11.)          Controversies . If any controversy arises between the Parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and funds and may wait for settlement of any such controversy by final appropriate legal proceedings or other means as, in the Escrow Agent’s discretion, the Escrow Agent may require, despite what may be set forth elsewhere in this Agreement. In such event, the Escrow Agent will not be liable for interest or damage. Furthermore, the Escrow Agent may at its option file all action of interpleader requiring the Parties to answer and litigate any claims and rights among themselves. The Escrow Agent is authorized to deposit with the clerk of the court all documents and funds held in escrow, except all costs, expenses, charges and reasonable attorney fees incurred by the Escrow Agent due to the interpleader action and which the Company agrees to pay. Upon initiating such action, the Escrow Agent shall be fully released and discharged of and from all obligations and liability imposed by the terms of this Agreement.

 

12.)          Indemnification of Escrow Agent . The Company and its successors and assigns  agree jointly and severally to indemnify and hold the Escrow Agent harmless against any and all losses, claims, damages, liabilities, and expenses, including reasonable costs of investigation, counsel fees, including allocated costs of in-house counsel and disbursements that may be imposed on the Escrow Agent or incurred by the Escrow Agent in connection with the performance of its

 

3



 

duties under this Agreement, including but not limited to any litigation arising from this Agreement or involving its subject matter. The Escrow Agent shall have a first lien on the property and papers held under this Agreement for such compensation and expenses.

 

13.)          Resignation of Escrow Agent . The Escrow Agent may resign at any time upon giving at least thirty (30) days written notice to the Company provided, however, that no such resignation shall become effective until the appointment of a successor escrow agent which shall be accomplished as follows: The Company shall use its best efforts to obtain a successor escrow agent within thirty (30) days after receiving such notice provided that such successor escrow agent is acceptable to IPL. If the Company fails to agree upon a successor escrow agent within such time, the Escrow Agent shall have the right to appoint a successor escrow agent authorized to do business in the state of Minnesota and acceptable to IPL. The successor escrow agent shall execute and deliver an instrument accepting such appointment and it shall without further acts, be vested with all the estates, properties, rights, powers, and duties of the predecessor escrow agent as if originally named as escrow agent. The Escrow Agent shall thereupon be discharged from any further duties and liability under this Agreement. If no successor escrow agent is appointed, IPL shall at its option give notice stating that it is terminating the Placement.

 

14.)          Automatic Succession . Any company into which the Escrow Agent may be merged or with which it may be consolidated, or any company to whom the Escrow Agent may transfer a substantial amount of its global escrow business, shall be the Successor to the Agent without the execution or filing of any paper or any further act on the part of any of the Parties, anything herein to the contrary notwithstanding.

 

15.)          Additional Provisions .

 

(a)           Governing Laws . This Agreement is to be construed and interpreted according to Iowa law.

 

(b)           Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes.

 

(c)           Enforcement . Notwithstanding anything to the contrary, the Escrow Agent and the Company hereby agree that this Agreement may be enforced by IPL against the Escrow Agent or the Company or both.

 

(d)           Notices . All instructions, notices and demands herein provided for shall be in writing and shall be deemed to have been duly given (a) on the date of service if served personally on the party to whom notice is to be given; (b) on the day of transmission if sent by facsimile transmission to the facsimile number given below and telephonic confirmation of receipt is promptly obtained after completion of transmission; (c) on the next day on which such deliveries are made in Hampton, Iowa, when delivery is by nationally recognized overnight courier; or (d) on the fifth day after mailing if mailed to the party to whom notice

 

4



 

is to be given, by first class mail, registered or certified, postage prepaid and properly addressed, return receipt requested, to the party as follows:

 

 

If to the Company:

 

Heron Lake BioEnergy, LLC
91246 390 th Ave PO Box 198
Heron Lake, MN 56137-0198

 

 

 

With a copy to:

 

OPEN

 

 

 

If to the IPL:

 

Interstate Power and Light Company
c/o Alliant Energy
4902 N. Biltmore Lane
Madison, WI 53718-2148

 

 

 

With a copy to:

 

Interstate Power and Light Company
Legal Services - Internal Ops
200 First Street, SE
Cedar Rapids, IA 52401-1409

 

 

 

If to the Escrow Agent:

 

Farmers State Bank of Hartland
c/o Daniel Otten,

SVP

1452 West Main Street, Albert Lea,
MN 56007
Phone: 507-373-1945
dotten@farmersstatebankmn.com

 

 

 

With a copy to:

 

Farmers State Bank of Hartland
c/o David Courey,

CFO

1452 West Main Street
Albert Lea, MN 56007
Ph: 507-373-1945

 

(e)           Amendments . This Agreement may be amended or modified and any of the terms, covenants, representations, warranties or conditions hereof may be waived, only be a written instrument executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. Any waiver by any party of any condition or of the breach of any provision, term, covenant, representation or warranty contained in the Agreement, in any one or more instances, shall not be deemed to be nor construed as further or continuing waiver of any

 

5



 

such conditions or of the breach of any other provision, term, covenant, representation or warranty of this Agreement.

 

(f)            Entire Agreement . This Agreement contains the entire understanding among the parties hereto with respect to the escrow contemplated hereby and supersedes and replaces all prior and contemporaneous agreements and understandings, oral or written, with regard to such escrow.

 

(g)           Non-Endorsement . The Company represents and agrees that it has not made nor will it in the future make any representation that states or implies that the Escrow Agent has endorsed, recommended or guaranteed the Energy Shared Savings arrangements entered into by the Company.

 

IN WITNESS WHEREOF, the parties hereto have hereunto affixed their signatures as of the day and year first above written.

 

Heron Lake BioEnergy LLC

 

Escrow Agent: Farmers State Bank of Hartland

 

 

 

 

 

 

By:

    /s/ Robert J. Ferguson

 

By: Daniel Otten

/s/ Daniel Otten

 

 

 

Its:

    President

 

Its: Senior Vice President

 

 

 

 

 

 

Interstate Power and Light

 

 

 

 

 

By:        /s/ Ken Gebhart

 

 

 

 

 

Its:

 

 

 

6



 

Exhibit B
Escrow Disbursement Authorization

 

 

Billing Period

 

Date:

 

From: Heron Lake BioEnergy, LLC
91246 390 th Ave,
Heron Lake, MN 56137

 

To: Farmers State Bank of Hartland (Escrow Agent)
1452 West Main Street
Albert Lea, MN 56007

 

On receipt of this Disbursement Authorization, please pay the sum of $29,774.91 by Wire Transfer/ACH to the account of:

 

Interstate Power and Light Company (IPL)
Bank Name: Wells Fargo Bank, N.A. San Francisco, CA
Account Number: 4121487128
ABA Number: 121000248

 

Yours truly,

 

Heron Lake BioEnergy, LLC

 

Amortization Schedule Based on:

i. Periodic payments of $29,774.91 for period 1-13, plus extra payment of$140,000 for period 13  and; ii. Periodic payments of $29,599.91 for periods 14-60.

 

Payment
Dates

 

Billing
Period

 

Termination
Value

 

Payment
Dates

 

Billing
Period

 

Termination
Value

 

Payment
Dates

 

Billing
Period

 

Termination
Value

 

Beg-

12/30/2007

 

0

 

$

1,850,000.00

 

 

 

 

 

 

 

 

 

 

 

 

 

1/31/2007

 

1

 

$

1,822,537.59

 

9/30/2009

 

21

 

$

1,126,023.14

 

5/31/2011

 

41

 

$

555,429.38

 

2/30/2007

 

2

 

$

1,795,040.85

 

10/31/2009

 

22

 

$

1,097,830.77

 

6/28/2011

 

42

 

$

526,523.75

 

3/31/2007

 

3

 

$

1,767,509.75

 

11/31/2009

 

23

 

$

1,069,603.15

 

7/31/2011

 

43

 

$

497,582.00

 

4/31/2008

 

4

 

$

1,739,944.23

 

12/30/2009

 

24

 

$

1,041,340.24

 

8/30/2011

 

44

 

$

468,604.07

 

5/29/2008

 

5

 

$

1,712,344.25

 

1/31/2009

 

25

 

$

1,013,042.01

 

9/31/2011

 

45

 

$

439,589.92

 

6/31/2008

 

6

 

$

1,684,709.77

 

2/30/2009

 

26

 

$

984,708.40

 

10/30/2011

 

46

 

$

410,539.49

 

7/30/2008

 

7

 

$

1,657,040.75

 

3/31/2009

 

27

 

$

956,339.38

 

11/31/2011

 

47

 

$

381,452.76

 

8/31/2008

 

8

 

$

1,629,337.14

 

4/31/2010

 

28

 

$

927,934.89

 

12/31/2011

 

48

 

$

352,329.67

 

9/30/2008

 

9

 

$

1,601,598.90

 

5/28/2010

 

29

 

$

899,494.90

 

1/30/2011

 

49

 

$

323,170.17

 

10/31/2008

 

10

 

$

1,573,825.99

 

6/31/2010

 

30

 

$

871,019.36

 

2/31/2011

 

50

 

$

293,974.23

 

11/31/2008

 

11

 

$

1,546,018.37

 

7/30/2010

 

31

 

$

842,508.23

 

3/30/2011

 

51

 

$

264,741.79

 

12/30/2008

 

12

 

$

1,518,175.98

 

8/31/2010

 

32

 

$

813,961.46

 

4/31/2011

 

52

 

$

235,472.80

 

1/31/2008

 

13

 

$

1,350,298.79

 

9/30/2010

 

33

 

$

785,379.00

 

5/31/2012

 

53

 

$

206,167.24

 

2/30/2008

 

14

 

$

1,322,386.76

 

10/31/2010

 

34

 

$

756,760.81

 

6/29/2012

 

54

 

$

176,825.04

 

3/31/2008

 

15

 

$

1,294,439.83

 

11/31/2010

 

35

 

$

728,106.86

 

7/31/2012

 

55

 

$

147,446.16

 

4/31/2009

 

16

 

$

1,266,457.97

 

12/30/2010

 

36

 

$

699,417.08

 

8/30/2012

 

56

 

$

118,030.56

 

5/28/2009

 

17

 

$

1,238,441.14

 

1/31/2010

 

37

 

$

670,691.44

 

9/31/2012

 

57

 

$

88,578.19

 

6/31/2009

 

18

 

$

1,210,389.28

 

2/30/2010

 

38

 

$

641,929.90

 

10/30/2012

 

58

 

$

59,089.00

 

7/30/2009

 

19

 

$

1,182,302.36

 

3/31/2010

 

39

 

$

613,132.40

 

11/31/2012

 

59

 

$

29,562.95

 

8/31/2009

 

20

 

$

1,154,180.33

 

4/31/2011

 

40

 

$

584,298.91

 

12/31/2012

 

60

 

$

0.00

 

 

7


EXHIBIT 10.25

 

EMPLOYMENT AGREEMENT

 

This Agreement is made between Robert J. Ferguson (“FERGUSON”) and Heron Lake BioEnergy, LLC (“HLBE”) a Minnesota Company organized under the laws of Minnesota, whose principal place of business is Heron Lake, Minnesota. The headings contained in this Agreement are for convenience only, have no legal significance and are not intended to change or limit this agreement in any matter whatsoever.

 

a.                                       HLBE is engaged in the business of production of ethanol and distills grain from corn and is in the need for a Chief Executive Officer.

 

b.                                      FERGUSON desires employment as the Chief Executive Officer and has the skills, knowledge and experience necessary to perform this job.

 

1.                                       EMPLOYMENT

 

HLBE hereby agrees to employ FERGUSON as its Chief Executive Officer, and FERGUSON hereby accepts and agrees to such employment subject to the general supervision and pursuant to the orders, advice and direction of the HLBE Board of Governors . FERGUSON shall perform such duties as are customarily performed by one holding this position and shall devote his time and effort to HLBE business.

 

2.                                       BEST EFFORTS OF EMPLOYEE

 

FERGUSON agrees that he will at all times faithfully, industriously, and to the best of ability, experience and talents, perform all of the duties that may be required from him pursuant to the terms hereof, to the reasonable satisfaction of HLBE. Such duties shall be rendered at the office/plant of HLBE Heron Lake, MN and it various business locations as required, as well as at such other place or places as HLBE shall in good faith require or as the interests, needs, business, or opportunities of the HLBE shall require.

 

3.                                       TERM & TERMINATION

 

FERGUSON agrees to serve as Chief Executive Officer to HLBE for a period of one year commencing on September 1, 2007 to September 1, 2008, OR earlier of the date on which FERGUSON ceases to provide services to HLBE under this Agreement. Either party may terminate this Agreement at any time upon (30) days written notice unless termination is related to unsatisfactory performance or for cause for which no notice is required.

 

4.                                       COMPENSATION

 

FERGUSON shall be compensated at the rate of $120,000 per year for the term of this employment agreement and compensated a proportionate share of his annual salary on a bi-weekly basis as agreed upon by FERGUSON and HLBE. In the event the Board of Governors of HLBE declares a bonus for the employees of HLBE, FERGUSON shall share in the bonus at the discretion of the HLBE Board of Governors .

 



 

5.                                       OTHER BENEFITS

 

In addition to the compensation stated in paragraph four (4) above, HLBE shall provide FERGUSON with all benefits provided to its employees. FERGUSON shall immediately have available one-hundred sixty (160) hours of paid time off to be used at his discretion and upon approval by the Board of Governors. In addition, FERGUSON’s annual accrual rate using his hire date of September 1, 2007 will be equivalent to one-hundred sixty (160) hours.

 

6.                                       CONFIDENTIAL/TV AGREEMENT

 

FERGUSON understands that, in the course of his employment, HLBE will make Confidential Information of HLBE available to him and provide access to such information, and instruct him in the use thereof, and will place him in personal contact with customers and potential customers of HLBE. FERGUSON understands that he is entering into a confidential relationship with HLBE under which he assumes a common law duty not to use or disclose HLBE’s confidential information to the determent of HLBE.

 

FERGUSON agrees that during his employment, he will not remove any HLBE documents and materials from the business premises of HLBE or deliver any HLBE documents and materials to any person or entity outside HLBE, except as he is required to do in connection with performing the duties of his employment. FERGUSON further agrees that, upon the termination of employment by either FERGUSON or by HLBE for any reason, that FERGUSON will immediately return to HLBE all lists, notes, records, forms and documents relating to the business of HLBE, and all property belonging to or provided to him by HLBE that may be in his possession. FERGUSON shall sign, HLBE’s “Mutual Confidentiality Agreement” with HLBE on or prior to October 15, 2007. See Exhibit “A”

 

All HLBE documents and materials are and shall be the sole property of HLBE.

 

7.                                       NON COMPETE AGREEMENT

 

(a)                                   During the term of FERGUSON’S employment and for one (1) year thereafter, FERGUSON will not encourage or solicit any employee of HLBE to leave HLBE for any reason or to accept employment with any other company. As part of this restriction, FERGUSON will not interview or provide any input to any third party regarding any such person during the period in question.

 

(b)                                  During the term of his employment hereunder and for a period of twelve (12) months following termination, FERGUSON shall not, directly or indirectly:

 

1.                                        Call upon or solicit, including electronic or on-line any customer of HLBE upon which FERGUSON called on behalf of the HLBE or which was serviced during the term of his employment within a twelve (12) month period immediately preceding his termination of employment.

 

2.                                        Call upon or solicit, any prospective customer of HLBE to which sales development activity was devoted by the office of HLBE in which

 



 

FERGUSON was employed within a twelve (12) month period immediately preceding his termination of employment.

 

8.                                       TRADE SECRETS

 

FERGUSON agrees not to disclose any trade secrets belonging to HLBE, except as is required in his capacity as Chief Executive Officer and when FERGUSON reasonably believes it is in the best interest of HLBE to do so. FERGUSON hereby acknowledges that any information about the business of the HLBE is confidential and to be kept secret, unless it is published or made publically known outside the HLBE in an authorized manner.

 

As used herein, “trade secrets” shall include, but not be limited to, any documents, drawings or any other materials involving, recording or consisting of formulas, compounds, compositions, business plans, business methods, financial information, computer programs, machines, inventions, discoveries, customer lists or other information of any nature whatsoever which the HLBE has directly or indirectly created, discovered, or otherwise acquired.

 

9.                                       SEVERABILITY

 

/s/ Robert J. Ferguson

 

Robert J. Ferguson

 

 

If one or more provisions of this Agreement are held to be unenforceable under applicable law, the remaining provisions will not in any way be affected or impaired by such holding and the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. All agreements and covenants contained herein are severable, and in the event any of them, shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such invalid agreements or covenants were not contained herein.

 

10.                                EFFECTIVE DATE

 

This Agreement shall be effective as of the first day of FERGUSON’S employment with the HLBE and shall be binding upon me, my heirs, executor, assigns and administrators and shall defer to the benefit of HLBE, its subsidiaries, successors and assigns.

 

11.                                CHOICE OF LAW

 

The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Minnesota.

 

12.                                BINDING EFFECT

 

The terms of this agreement shall be binding upon the parties to this agreement, their heirs, successors, assigns and legal representatives. Each party acknowledges that, in executing this agreement, such party has had the opportunity to seek the advice of independent legal counsel,

 



 

and has read and understood all of the terms and provisions of this agreement. This agreement shall not be construed against any party by reason of the drafting or preparation hereof.

 

The parties have executed this Agreement on the respective dates set forth below and in doing so have read this agreement carefully and understand and accept the obligation which is imposes upon them without reservation. No promises or representations have been made to induce signature to sign this agreement. This agreement is signed voluntarily and freely.

 

/s/ Robert J. Ferguson

 

2/1/2008

 

 

 

 

 

Robert J. Ferguson

 

Date

 

 

 

 

 

 

 

 

 

 

 

 

 

HLBE Board of Governors

 

Date

 

 


EXHIBIT 10.26

 

 

SERVICES CONTRACT

 

THIS AGREEMENT is made effective on March 1st, 2007, for a period of one year, by and between Heron Lake BioEnergy, LLC (hereinafter “HLBE”), and Gerber & Haugen, P.L.L.P.  (hereinafter “Contractor”).

 

NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises and agreements contained herein, HLBE hires Contractor, and Contractor agrees to work for HLBE under the terms and conditions hereby agreed upon by the parties:

 

SECTION 1 – WORK TO BE PERFORMED

 

1.1                                Scope of Work .   Contractor shall provide HLBE with the services of a Chief Financial Officer and related Certified Public Accountant and consulting services for HLBE as outlined in Gerber & Haugen, P.L.L.P.’s letter proposal to Mr. Robert J. Ferguson dated January 26, 2007, a copy of which is attached hereto as Exhibit A and incorporated herein by reference.  As of the effective date of this Agreement, and subject to the terms and conditions of this Agreement, James A. Gerber shall be and hereby is, and shall serve as, the Chief Financial Officer of HLBE, and shall perform such duties as are customary for the Chief Financial Officer of a public company similar to HLBE, and such other duties as may be assigned by the Board of Governors of Employee.  Collectively, the foregoing scope of work and services referred to herein as the “Services.”

 

1.2                                Responsibility of Contractor .   Contractor shall perform the Services as an independent contractor in accordance with its own methods, subject to the terms of this Agreement and applicable laws and regulations, including Federal and State Securities laws applicable to the Chief Financial Officer position of HLBE being assumed by Contractor.  Contractor acknowledges that HLBE will be registering under Section 12(g) of the 1934 Exchange Act within ninety (90) days and will be a public reporting company under such 34’ Act upon the effectiveness of such registration.  Contractor’s liability arising out of or in connection with the Services shall be limited to claims, causes of actions, or damages caused by or relating to (1) Contractor’s failure to perform said Services in accordance with normal professional standards for performing services of a similar nature, and (2) replied in writing to Contractor within a reasonable time of when HLBE becomes aware of the failure.  Where HLBE’s project requires public agency approval or review related to the Services, Contractor will assist HLBE in facilitating approval or review in accordance with normal professional standards for the Services being provided hereunder.  However, Contractor does not assume responsibility for securing approval by such agency.

 

HLBE shall not be obligated hereunder to indemnify, save and hold harmless Contractor, its officers, employees or agents against any damage, liability, loss, cost or claim which arises out of or in connection with the intentional wrongful acts of, or the active negligence of, Contractor, or its officers, employees or agents.

 

1



 

1.3                                Duties .   Contractor agrees to perform the Services for HLBE on the terms and conditions set forth in this Agreement, and in accordance with Exhibit A .

 

SECTION 2 – COMPENSATION

 

2.1                                Compensation .   HLBE will pay Contractor for the Services in accordance with Exhibit A.  Invoicing of and payment for the Services will be made on a monthly basis.  Invoices shall be due and payable within ten (10) days of receipt.

 

See Exhibit A

 

2.2                                Withholding .   Contractor is an Independent Contractor and shall be responsible for his own income taxes and other employment taxes.

 

SECTION 3 – INDEPENDENT CONTRACTOR STATUS

 

Contractor acknowledges that he is an independent contractor and is not an agent, partner, joint venturer nor employee of HLBE.  Contractor shall have no authority to bind or otherwise obligate HLBE in any manner nor shall Contractor represent to anyone that it has a right to do so, provided that James A. Gerber shall have authority to act as HLBE’s Chief Financial Officer in accordance with this Agreement and Board authorization granted pursuant thereto.

 

SECTION 4 – BOARD POLICY PROVISION

 

Notwithstanding the Services provided hereunder, the property, funds, affairs, and business of HLBE shall continue to be managed by and under the direction of the Board of Governors of HLBE.  With respect to all matters of administrative, corporate governance and fiscal policy of HLBE, as distinguished from the day-to-day activities associated with the Services provided hereunder, Contractor shall be guided by and adhere to any and all policies and directives established by the Board of Governors of HLBE in performing the Services outlined herein.

 

SECTION 5 – ASSIGNMENT AND SUBCONTRACTING

 

This Agreement shall not be assigned by either party without the prior written approval of the other.  Except for Services provided by James A. Gerber as Chief Financial Officer of HLBE, Contractor may subcontract portions of the services to a qualified subcontractor with prior approval of HLBE.  Contractor agrees that HLBE will incur no duplication of costs as a result of any such subcontract.

 

SECTION 6 – REPRESENTATIONS OF WARRANTIES OF CONTRACTOR

 

Contractor, and James A. Gerber as Chief Financial Officer, shall discharge the duties and perform the Services hereunder in good faith, in a manner Contractor and Gerber reasonably believes to be in the best interests of HLBE, and in accordance with normal and customary professional standards for such Services and CFO position with the care

 

2



 

an ordinarily prudent person in a like position would exercise under similar circumstances.

 

SECTION 7 – INSURANCE

 

Contractor will maintain at its own cost and expense professional errors and omissions insurance and such public liability and other insurance as may protect and indemnify HLBE and its governors, officers, agents, and employees from claims, causes of action, damages, or liabilities, which may arise from 01’ relate to the terms and conditions of this Agreement and the performance of the Services hereunder, up to the limits specified below.

 

1.                                        Comprehensive General Liability on an occurrence basis:

a)                                       General aggregate - $1,000,000.00

b)                                      Products completed, operations aggregate -0-

c)                                       Personal and advertising injury - $1,000,000.00

d)                                      Each occurrence - $1,000,000.00

e)                                       Fire damage - $52,200.00

f)                                         Medical expense (anyone person) - $5,000 per person / $10,000 per occurrence.

 

The foregoing aggregate limits shall apply on a per project basis.

 

2.                                        Automobile Liability:

a)                                       Any auto coverage - $500,000.00

b)                                      Hired autos - $1,000,000.00

c)                                       Non-owned auto coverage - $1,000,000.00

 

3.                                        Workers’ Compensation Insurance and Employer Liability

a)                                       Each accident - $100,000.00

b)                                      Disease - policy limit - $500,000.00

c)                                       Disease - each employee - $100,000.00

 

4.                                        Disability Benefits - Liability (Statutory requirements)

 

5.                                        Professional Errors and Omissions Insurance coverage of not less than $1,000,000.00 per claim and $1,000,000.00 annual aggregate or design liability coverage of not less than $1,000,000.00

 

Contractor’s insurance may not cover the actions of its subcontractors and those subcontractors not covered should be required to meet stipulated insurance requirements of HLBE.

 

SECTION 8 – COMPLETION AND ACCEPTANCE

 

Upon completion of the term of this Agreement, HLBE shall promptly provide Contractor with a written listing of any Services not completed.  Any Services not listed

 

3



 

by HLBE as incomplete in a listing delivered to Contractor within thirty (30) days of the end of the term or this Agreement shall be deemed complete.  With respect to Services listed by HLBE as incomplete, Contractor and HLBE shall agree on a schedule and payment to complete such Services and the above completed procedure shall be repeated.

 

SECTION 9 – CONFIDENTIAL INFORMATION

 

The parties agree that the information being reviewed and available to Contractor to perform the Services is the confidential and proprietary information of HLBE.

 

HLBE and Contractor agree to the terms and conditions set forth in Exhibit B, attached hereto, with respect to said Confidential Information, which terms and conditions are incorporated herein by reference.

 

SECTION 10 – AMENDMENTS

 

Any amendment to this Agreement shall be in writing and signed by Contractor and HLBE.  In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the parties shall negotiate an equitable adjustment to the provisions with a view toward affecting the purpose of this Agreement.  In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the parties shall negotiate an Agreement.  In such a case, the validity and enforceability of the remaining provisions, or portions or applications thereof, shall not be affected thereby.

 

SECTION 11 – TESTIMONY

 

Should Contractor, its directors, officers or employees be required to testify or to submit information to any judicial or administrative hearing concerning matters, this will be performed in accordance with the Cost Schedule then in effect.  Should Contractor be required by a third party to testify at such a hearing, Contractor shall notify HLBE as to the date and time of such hearing.  HLBE agrees to save and hold harmless Contractor from and against all costs incurred as a result of a judicial or administrative hearing concerning the services provided for herein.

 

SECTION 12 – ENTIRE AGREEMENT

 

In the event any services provided for herein are authorized by HLBE to be performed or caused to be performed by Contractor prior to the effective date of this Agreement, such Services shall be deemed to have been performed under this Agreement.  This Agreement, including all attachments incorporated herein by reference, constitutes the entire Agreement between the parties.  Any oral agreements, understandings, proposals, purchase orders or negotiations are intended to be integrated herein and to be superseded by the terms and conditions of this Agreement.

 

4



 

SECTION 13 – TERM AND TERMINATION

 

The term of this Agreement is one (1) year, commencing of the effective date of this Agreement and ending on March 1st, 2008.  HLBE may terminate, with or without cause, upon thirty (30) days written notice to Contractor.  Absent Contractor’s breach of this Agreement, Contractor shall be paid for Services rendered to the date of termination.  Contractor may suspend or terminate this Agreement upon thirty (30) days written notice to HLBE in the event of substantial failure by HLBE to perform in accordance with the terms of this Agreement including, but not limited to, nonpayment of amounts owing to Contractor through no fault of Contractor or an unreasonable delay caused by HLBE or its agents.

 

SECTION 14 – MISCELLANEOUS PROVISIONS

 

14.1                         The provisions of this Agreement shall be binding upon and inured to the benefit of the heirs, personal representatives, successors and assigns of the parties.

 

14.2                         In the event of a default under this Agreement, the defaulted party shall reimburse the non-defaulting party or parties for all costs and expenses reasonably incurred by the non-defaulting party or parties in connection with the default, including without limitation, attorney’s fees.  Additionally, in the event a suit or action is filed to enforce this Agreement or with respect to this Agreement, the prevailing party or parties shall be reimbursed by the other party for all costs and expenses incurred in connection with the suit or action, including without limitation, reasonable attorney’s fees at the trial level and on appeal.

 

14.3                         No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.  No waiver shall be binding unless executed in writing by the party making the waiver.

 

14.4                         This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Minnesota.

 

14.5                         This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and it supersedes all prior contemporaneous agreements, representations and understandings of the parties.  No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all parties.

 

14.6                         Renewal of contract by oral or written notice thirty (30) days prior to maturity date of existing contract.

 

5



 

AUTHORIZATION TO PROCEED:

 

HERON LAKE BIOENERGY, LL

 

JIM GERBER

 

 

 

 

 

By:

  Robert J. Ferguson

 

By:

  Gerber & Haugen PLLP

 

 

 

 

  /s/ James A. Gerber

 

  Signature /s/ Robert J. Ferguson

 

 

  Signature

 

 

 

Title:

CEO

 

Title:

Partner

 

 

 

 

 

Date:

3/01/07

 

Date:

3.01.07

 

6



 

EXHIBIT A

 

7



 

GERBER & HAUGEN, P.L.L.P.

 

Certified Public Accountants

 

James A. Gerber, CPA

 

2330 26th Street

 

Steven G. Haugen, CPA

 

 

Slayton, Minnesota  56172

 

 

 

 

(507) 836-8564, Fax (507) 836-8566

 

 

 

January 26,2007

 

Heron Lake BioEnergy

Heron Lake, Minnesota

 

Attention:  Board of Directors

 

In re:  Chief Financial Officer Duties

 

To The Board:

 

This proposal is to provide Heron Lake BioEnergy with the services of a Chief Financial Officer.  It is Gerber & Haugen’s desire to provide these services under the following management:

 

1.                                        Gerber & Haugen would provide the services within HLBE’s facilities as an independent contractor;

 

2.                                        A Gerber & Haugen staff person with a four year college accounting degree would be provided full time starting approximately on April 1, 2007.  Full time at Gerber & Haugen for salaried personnel is considered to be 2,200 hours in a calendar year.

 

Cost for these services would be:

 

 

 

Salary of Employee

 

$

40,000.00

 

Gerber & Haugen employer share of health insurance cost

 

$

3,600.00

 

Gerber & Haugen three percent matching of retirement

 

$

1,200.00

 

Employer share of Fica and Medicare

 

$

3,060.00

 

Other taxes, workers compensation and overhead

 

$

2,140.00

 

 

 

$

50,000.00

 

 

 

 

 

Cost converted to hourly rate

 

$

22.73

 

Hourly rate if requirements exceed 2,200 hours

 

$

34.10

 

 

The purpose of this position is to provide a person who is interested in being a chief financial officer in the future.  It is also my conviction that I can prepare this person for the long term for your company.

 

8



 

3.                                        Jim Gerber, Partner in Gerber & Haugen, would be responsible for:

A.                                    Supervising the Gerber & Haugen staff person and any HLBE accounting employees (two people estimated);

B.                                      Making sure all duties as specified in HLBE’s chief financial officer job description are completed;

C.                                      Reporting directly to the General Manager and Board of Directors.

 

Cost for these services would be:

                Fifty dollars per hour with the following constraints:

                                Minimum for year - $50,000;

                                Maximum per year $85,000

 

For the Firm,

 

/s/ James A. Gerber

 

James A. Gerber

 

 

9



 

EXHIBIT B

 

10



 

MUTUAL CONFIDENTIALITY AGREEMENT

 

THIS AGREEMENT made this 1st day of March, 2007 by and between Heron Lake BioEnergy and Gerber & Haugen PLLP may hereinafter jointly be referred to as the “parties”.

 

Now, therefore, in consideration of the mutual covenants and agreements set forth herein, the parties agree as follows:

 

1.                                        Definition of Confidential Information :  For purposes of this Agreement, the parties agree that the term “Confidential Information” shall be defined as all information provided orally, in writing, electronically or as observed on visits to facilities and which relate to new or existing products, machinery, systems, processes and / or business operations, including, without limitation, data, know-how, expertise, formulae, designs, sketches, photographs, plans, drawings, samples, reports, customer lists, pricing information, specifications, research and development studies, findings, reports, memoranda, manufacturing processes and engineering, new product concepts and capabilities, inventions, marketing and business plans/strategies, and the like provided to one party by the other party.

 

2.                                        Exclusions :  For purposes of this Agreement, information shall not be deemed to be Confidential Information is such information:

 

(a)                                   was proven by the recipient to be known by the recipient prior to the disclosure by the other party as evidenced by written documents, or

 

(b)                                  was available to the general public at the time of the disclosure to recipient by virtue of a printed publication; or

 

(c)                                   at a later date becomes available to the general public by virtue of a printed publication through no fault of the recipient; or

 

(d)                                  was rightfully acquired by the recipient from a third party who is not in breach of a confidential relationship with any party to this Agreement with regards to such information; or

 

(e)                                   was independently developed by the obligated party prior or subsequent to disclosure by the other party as evidence by written documents.

 

3.                                        Obligations of Confidentiality :  The parties agree to limit internal dissemination of Confidential Information within its own organization to individuals whose duties justify the need to know such information, and then only provided that there is a clear understanding by such individuals of their obligation to maintain the confidentiality and trade secret status of such information and to restrict its use solely for the purpose specified

 

11



 

herein.  Each party shall be responsible for the actions of its employees, agents, officers and subcontractors.

 

Should the party stated above want to discuss any confidential information with his or her customers, the party stated above agrees to have Heron Lake BioEnergy obtain a signed Confidentiality Agreement from each customer before confidential information is disclosed.

 

4.                                        Use of Confidential Information :  The party stated above agrees not to use the Confidential Information for the purposes of manufacture or development of a similar process for its own use or to assist another individual or company to design, manufacture or develop the process in the use or for any other company’s use.  The party stated above also agrees not to use the Confidential Information to develop or to take business, which is similar to that of the services, and products similar to that offered by Heron Lake BioEnergy.

 

5.                                        Survival :  The restrictions and obligations of this Agreement shall Survive any Expiration, termination or discontinuance of the use of Heron Lake BioEnergy by the party stated above, and or its clients and shall continue to bind the parties, their successors and assigns.

 

6.                                        Disclaimer of Other Relationships :  This Agreement does not create a relationship of agency, partnership, joint venture or license between the parties.

 

7.                                        Equitable Remedies :  It is recognized and agreed to by the parties hereto that irreparable damage would result from any breach of this Agreement.  Each party agrees that a party injured by a breach or a threatened breach of this Agreement shall have the remedy of a restraining order, injunction or other appropriate equitable relief to enforce this Agreement in addition to all other remedies under the law.

 

8.                                        Restriction of Rights :  Nothing contained in this Agreement shall be construed as granting to the Party stated above hereunder any rights, by license or otherwise, to use any Confidential Information disclosed pursuant to this Agreement without written approval of Heron Lake BioEnergy.

 

9.                                        Waiver :  The waiver by either party of a breach of any provision of this Agreement shall not constitute or be construed as a waiver of any future breach of any provision(s) in the Agreement.

 

10.                                  Governing Law :  This Agreement shall be governed by a construed in the Accordance with the laws of the State of Minnesota, USA and jurisdiction and venue with respect to any suit in connection with this Agreement shall reside in the courts of State of Minnesota USA.

 

12



 

11.                                  Complete Agreement: Written Modification Only :  This Agreement, together with any attachments, constitute the entire agreement between Heron Lake BioEnergy and the Party stated above concerning this subject matter, and supersedes all previous prior communications, statements, representations and understandings, whether oral or written.  Modifications or amendments of any kind in conjunction with this Agreement must be in writing, and signed by both parties.

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

 

 

Printed Name:

   Gerber & Haugen PLLP

 

 

 

         James A. Gerber

/s/ Robert J. Ferguson

 

Signature:

  /s/ James A. Gerber

 

 

 

 

Dated: 3/1/07

 

Dated:

  3.01.07

 

 

 

President – Board of Governors

 

Title:

Partner

 

 

 

Heron Lake BioEnergy, LLC

 

Mailing Address:

  2330 26 th St

 

 

 

  Slayton, MN 561272

91246 390th Avenue P.O. Box 198

 

 

 

 

 

Heron Lake, MN 56137

 

 

 

13


EXHIBIT 10.27

 

HERON LAKE BIOENERGY LETTERHEAD

 

Heron Lake BioEnergy, LLC

91246 390 th Avenue

Heron Lake, MN 56137-3175

 

February 28, 2008

 

Mr. James Gerber

CFO Heron Lake BioEnergy LLC

91246 390 th Avenue

Heron Lake, MN 56137

 

RE:  Extension of CFO Contract For Renewal

 

Jim,

 

In conversation with you pertaining to the renewal of your contract with Heron Lake BioEnergy as the Contract Chief Financial Officer, and in consideration of the constraints pursuant to completion of the year end audit, the Board of Governors has authorized me the authority to negotiate a minimum of a thirty day extension to allow you and Heron Lake BioEnergy LLC the appropriate time to renegotiate your present contract, and to allow you the time necessary to complete the auditing and pertinent documents to complete the audit and securities filing for the company.

 

Signature by both parties signifies acceptance of the above terms of the extension of the contract for a minimum of thirty days.

 

 

/s/ Robert J. Ferguson

 

/s/ James A. Gerber

Chief Executive Officer for HLBE

 

Chief Financial Officer for HLBE

 

888.E85FUEL (385.3835)

507.793.0077 PHONE

507-793-0078 FAX

info@heronlakebioenergy.com EMAIL

www.heronlakebioenergy.com

 


EXHIBIT 21.1

 

Subsidiaries of Heron Lake BioEnergy, LLC

 

Name

 

State of Organization

Lakefield Farmers Elevator, LLC

 

Minnesota