EXHIBIT 10.1


 


AMENDMENT NO. 5 TO


FIFTH SUPPLEMENT


TO THE MASTER LOAN AGREEMENT


(REVOLVING LINE OF CREDIT LOAN)


 


This
Amendment No. 5 to the Master Loan Agreement (Revolving Line of Credit
Loan) (this “Amendment”) is effective as of March 25,
2010, by and between HERON LAKE BIOENERGY, LLC,
a Minnesota limited liability company (“Borrower”) and AGSTAR FINANCIAL SERVICES, PCA (“Lender”).


 


RECITALS


 


A.            Lender has extended various
credit facilities to Borrower for the purposes of acquiring, constructing,
equipping, furnishing and operating an ethanol production facility in Jackson
County, Minnesota, pursuant to that certain Fourth Amended and Restated Master
Loan Agreement dated as of October 1, 2007, as the same may be amended,
supplemented, modified, extended or restated from time to time (the “MLA”); that certain Third Supplement to the Master Loan
Agreement (Term Loan) dated as of October 1, 2007, as the same may be
amended, supplemented, modified, extended or restated from time to time (the “Third Supplement”); that certain Fourth Supplement to the
Master Loan Agreement (Term Revolving Loan) dated as of October 1, 2007,
as the same may be amended, supplemented, modified, extended or restated from
time to time (the “Fourth Supplement”);
and that certain Fifth Supplement to the Master Loan Agreement (Revolving Line
of Credit Loan) dated as of November 19, 2007, as amended by that certain
Amendment No. 1 to Fifth Supplement to the Master Loan Agreement dated November 17,
2008, as further amended by that certain Amendment No. 2 to Fifth
Supplement to the Master Loan Agreement dated February 1, 2009, and as
further amended by that certain Amendment No. 3 to Fifth Supplement to the
Master Loan Agreement dated May 29, 2009, as further amended by that
certain Amendment No. 4 to Fifth Supplement to the Master Loan Agreement
dated December 8, 2009 as the same may be amended, supplemented, modified,
extended or restated from time to time (collectively, the “Fifth
Supplement”).  The MLA, Third
Supplement, Fourth Supplement and Fifth Supplement are referred to collectively
hereinafter as the “Loan Agreement”).


 


B.            Borrower has requested that
Lender extend the maturity date of the Revolving Line of Credit Loan, and
Lender has agreed to such extension upon the terms and conditions set forth
herein.


 


C.            Unless otherwise expressly
defined herein, capitalized terms used herein shall have the same meaning
ascribed to them in the MLA or the Fifth Supplement, as applicable.


 


AGREEMENT


 


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


 


1.             Amendment to Fifth Supplement.  Section 1:  The following defined term in the Fifth
Supplement is hereby amended and restated to read as follows:


 


“Revolving
Line of Credit Loan Maturity Date” shall mean April 30, 2010.


 

















 


2.             Representations and Warranties.  Borrower hereby
represents to Lender that, after giving effect to this Amendment:


 


(a)           All of the representations
and warranties of Borrower contained in the MLA and in each other Loan Document
are true and correct in all material respects as though made on and as of the
date hereof.


 


(b)           As the date hereof, the
Borrower has failed to maintain the financial covenants of Section 5.01(d),
(e) and (g) of the MLA. Except as otherwise specifically stated
herein, no other Event of Default has occurred and is continuing.


 


3.             Miscellaneous.


 


(a)           Effect; Ratification.  The amendments set forth herein are effective
solely for the purposes set forth herein and shall be limited precisely as
written, and shall not be deemed to (i) be a consent to, or an
acknowledgment of, any amendment, waiver or modification of any other term or
condition of the Loan Agreement, including, without limitation, a waiver of any
rights or remedies available to the Lender on account of any default or Event
of Default, which may have occurred prior to the date of this Amendment, or (ii) prejudice
any right or remedy which Lender may now have or may have in the future under
or in connection with the Loan Agreement, as amended hereby, or any other
instrument or agreement referred to therein. It is further understood and
agreed by and between the Borrower and the Lender that all other terms and
provisions of the Loan Agreement shall remain in full force and effect,
enforceable by the Lender against the Borrower as fully as though no amendments
had been made hereby, and this Amendment shall not be deemed to hinder,
compromise or lessen the enforceability of the Loan Agreement, the Notes, or
any mortgage, security interest, or guaranty securing repayment of the Loans,
in any way.  Each reference in the Loan
Agreement and in any other Loan Document to the “Fifth Supplement” shall mean
the Fifth Supplement, as amended hereby.


 


(b)           Loan Documents.  This Amendment is a Loan Document executed
pursuant to the MLA and shall be construed, administered and applied in
accordance with the terms and provisions thereof.


 


(c)           Defined Terms.  All terms used and
not otherwise defined herein shall have the meanings assigned to them in the
MLA or the Fifth Supplement, as applicable.


 


(d)           Counterparts.  This Amendment may be executed in any number
of counterparts, each such counterpart constituting an original and all of
which when taken together shall constitute one and the same instrument.


 


(e)           Severability.  Any provision contained in this Amendment
which is held to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable or invalid
without affecting the remaining provisions of this Amendment in that
jurisdiction or the operation, enforceability or validity of such provision in
any other jurisdiction.


 


(f)            GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA.


 


(g)           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 DOCUMENT TO WHICH IT IS A
PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.


 


{SIGNATURE PAGE FOLLOWS}


 

















 


SIGNATURE PAGE TO


AMENDMENT NO. 5 TO


FIFTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT


(REVOLVING LINE OF CREDIT LOAN)


BY AND BETWEEN


HERON LAKE BIOENERGY, LLC


AND


AGSTAR FINANCIAL SERVICES, PCA


DATED AS OF:  March 25, 2010


 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their respective duly authorized officers as of the date first
written above.


 


BORROWER:


 


HERON
LAKE BIOENERGY, LLC,


a
Minnesota limited liability company


 


 


	
  By:

  	
  /s/
  Robert J. Ferguson

  	
   

  
	
   

  	
  Robert J. Ferguson

  	
   

  
	
   

  	
  Its: President

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
   

  
	
   

  	
   

  
	
  AGSTAR
  FINANCIAL SERVICES, PCA,

  	
   

  
	
  a
  United States corporation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Mark Schmidt

  	
   

  
	
   

  	
  Mark Schmidt

  	
   

  
	
   

  	
  Its:  Vice President