EXHIBIT 10.5


 


Amendment No RI0340T01B


 


AMENDMENT


TO THE


CONSTRUCTION
AND TERM LOAN SUPPLEMENT


 


                THIS AMENDMENT is entered into as of October 5, 2007,
between FARM CREDIT SERVICES OF AMERICA, FLCA (“Farm Credit”) and ABE FAIRMONT, LLC, Fairmont, Nebraska (the “Company”).


 


BACKGROUND


 


                Farm
Credit and ADVANCED BIOENERGY, LLC, Fairmont, Nebraska (“Advanced”)
are parties to a Construction and Term
Loan Supplement dated February 17, 2006 (such agreement, as previously amended, is hereinafter referred to as the “Supplement”). Further, the
Company has formally assumed all obligations
under the Supplement from Advanced. Farm Credit and the Company now desire to
amend certain sections of the Supplement. For that
reason, and for valuable consideration (the receipt and sufficiency of which are hereby acknowledged), Farm Credit and the
Company agree that the following sections
of the Supplement are hereby amended to read as follows:


 


1.                                       Section 5 of the Supplement is hereby amended to add Subsection (C) as
follows:


 


                SECTION
5.  Interest and Fees.


 


                                (C)  Amendment Fee.  In consideration of the amendment, the
Company agrees to pay to Agent on the execution
hereof a fee in the amount of $30,000.00.


 


2.                                       Section 6 of the Supplement is hereby amended and restated to read as follows:


 


                SECTION 6. Promissory Note. 
The Company promises to repay the loans as follows: (i) in 24 equal, consecutive quarterly installments of $2,250,000.00 with the
first such installment due on May 20,
2008, and the last such installment due on February 20, 2014; and (ii) followed
by a final installment in an amount equal to the remaining unpaid principal
balance of the loans on May 20, 2014. If any installment due date is not a day
on which Agent is open for business, then such installment shall be due and payable on the next day on which Agent
is open for business. In addition to the above, the Company promises to pay
interest on the unpaid principal balance hereof at the times and in accordance with the provisions set forth in Section 5 hereof.


 


In addition, for each fiscal year end, beginning with
the fiscal year ending in 2008, and ending with the fiscal year ending in 2010,
the Company shall also, within ninety (90) days after the end of such fiscal year, make a special payment of an amount equal to
75% of the “Free Cash Flow” (as defined below) of the Company, however, such
payment shall not to exceed $8,000,000.00 in any fiscal year; provided,
however, that: (i) if such payment would result in a covenant default under
this Supplement or the MLA, the amount of the payment shall be reduced
to an amount which would not result in a covenant default; (ii) if such payment
would result in a breakage of a fixed interest rate, the applicable broken
funding surcharges would still apply; and
(iii) the aggregate of such payments shall not exceed $16,000,000.00. The term “Free Cash Flow” is defined as the
Company’s annual profit net of taxes, plus the respective fiscal year’s
depreciation and amortization expense, minus allowable capitalized
expenditures for fixed  assets,
allowed distributions to members/owners, and scheduled term loan payments to
Agent.   This special payment shall be applied to the principal
installments in the inverse order of their maturity.


 

















Amendment RI0340T01B to
Supplement RI0340T01


ABE Fairmont, LLC


Fairmont, Nebraska


 


3.                                       Section 13(A) of the Supplement is hereby amended and restated to read
as follows:


 


                SECTION 13. Casualties.


 


                                (A) Right to Elect to Apply Proceeds. In case of material
loss or damage to the Property or to
the Improvements by fire, by a taking by condemnation for public use or the
action of any governmental authority or
agency, or the transfer by private sale in lieu thereof, either temporarily or permanently, or
otherwise, if in the sole judgment of Agent there is reasonable doubt as to
Company’s ability to complete construction of the Improvements on or before
October 31, 2007, by reason of such loss or damage or because of delays in
making settlements with governmental agencies or authorities or with insurers, Agent may terminate its obligations
to make advances hereunder and elect to collect, retain and apply to the Commitment all proceeds of the
taking or insurance after deduction of all expense of collection and
settlement, including attorneys’ and adjusters’ fees and charges. In the event
such proceeds are insufficient to pay
the Commitment in full, Agent may declare the balance remaining unpaid on the Commitment
to be due and payable forthwith and avail itself on any of the remedies
afforded thereby as in any case of default.


 


4.              Except as set forth in this amendment, the
Supplement, including all amendments thereto, shall continue in full force and effect as written.


 


 


                IN WITNESS WHEREOF, the parties have caused this amendment
to be executed by their duly authorized officers as
of the date shown above.


 


	
  FARM CREDIT SERVICES

  	
   

  	
  ABE FAIRMONT, LLC

  
	
  OF AMERICA, FLCA

  	
   

  	
  By
  ADVANCED BIOENERGY, LLC,

  
	
   

  	
   

  	
  its sole
  member

  



 




	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  






 


2

















 


Amendment No. RI0475T01A


 


AMENDMENT


TO THE


CONSTRUCTION
AND TERM LOAN SUPPLEMENT


 


                THIS
AMENDMENT is entered into as of October 5, 2007, between FARM CREDIT SERVICES OF AMERICA, FLCA (“Farm Credit”) and ABE FAIRMONT, LLC, Fairmont, Nebraska (the “Company”).


 


 


                Farm
Credit and the Company are parties to a Construction and Term Loan Supplement
dated November 20, 2006 (such agreement, as previously
amended, is hereinafter referred to as the “Supplement”). Farm Credit
and the Company now desire to amend certain sections of the Supplement. For that reason, and for valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), Farm Credit and the Company agree that the following
sections of the Supplement are hereby
amended to read as follows:


 


1.                                       Section 13(A) of the Supplement is hereby amended and restated to read
as follows:


 


                SECTION 13. Casualties.


 


                                (A) Right to Elect to Apply Proceeds. In case of material
loss or damage to the Property or to
the Improvements by fire, by a taking by condemnation for public use or the
action of any governmental authority or
agency, or the transfer by private sale in lieu thereof, either temporarily or permanently, or
otherwise, if in the sole judgment of Agent there is reasonable doubt as to
Company’s ability to complete construction of the Improvements on or before
October 31, 2007, by reason of such loss or damage or because of delays in
making settlements with governmental agencies or authorities or with insurers, Agent may terminate its obligations
to make advances hereunder and elect to collect, retain and apply to the
Commitment all proceeds of the taking or insurance after deduction of all
expense of collection and settlement,
including attorneys’ and adjusters’ fees and charges. In the event such
proceeds are insufficient to pay the
Commitment in full, Agent may declare the balance remaining unpaid on the Commitment
to be due and payable forthwith and avail itself on any of the remedies
afforded thereby as in any case of default.


 


2.             Except
as set forth in this amendment, the Supplement, including all amendments
thereto, shall continue in full
force and effect as written.


 


 


[SIGNATURE PAGE FOLLOWS]


 

















Amendment RI0475T01A to Supplement RI0475T01


ABE Fairmont, LLC


Fairmont, Nebraska


 


                IN WITNESS WHEREOF,
the parties have caused this amendment to be
executed by their duly authorized officers as of the date shown above.


 


	
  FARM CREDIT SERVICES

  	
   

  	
  ABE FAIRMONT, LLC

  
	
  OF AMERICA, FLCA

  	
   

  	
  By
  ADVANCED BIOENERGY, LLC,

  
	
   

  	
   

  	
  its sole
  member

  



 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


2

















 


Amendment No. RI0340T02B


 


AMENDMENT


TO THE


CONSTRUCTION AND TERM LOAN SUPPLEMENT


 


                THIS AMENDMENT
is entered into as of October 5, 2007, between FARM CREDIT SERVICES OF AMERICA, FLCA  (“Farm Credit”) and ABE FAIRMONT, LLC, Fairmont, Nebraska (the “Company”).


 


BACKGROUND


 


                Farm
Credit and ADVANCED BIOENERGY, LLC, Fairmont, Nebraska (“Advanced”)
are parties to a Construction and Revolving Term Loan Supplement
dated February 17, 2006 (such agreement, as previously
amended, is hereinafter referred to
as the “Supplement”). Further, the Company has formally assumed
all obligations under the Supplement from Advanced. Farm Credit and the Company
now desire to amend certain sections of the Supplement. For that reason, and
for valuable consideration (the receipt and sufficiency of which are hereby acknowledged), Farm Credit and the
Company agree that the following
sections of the Supplement are hereby amended to read as follows:


 


1.                                       Section 13(A) of the Supplement is hereby amended and restated to read
as follows:


 


                SECTION
13. Casualties.


 


                                (A) Right to Elect to Apply Proceeds.  In case of
material loss or damage to the Property or to
the Improvements by fire, by a taking by condemnation for public use or the
action of any governmental authority or
agency, or the transfer by private sale in lieu thereof, either temporarily or permanently, or otherwise, if
in the sole judgment of Agent there is reasonable doubt as to Company’s ability to
complete construction of the Improvements on or before October 31, 2007, by
reason of such loss or damage or because of
delays in making settlements with governmental agencies or authorities or with insurers, Agent may terminate its obligations
to make advances hereunder and elect to collect, retain and apply to the Commitment all proceeds of the
taking or insurance after deduction of all expense of collection
and settlement, including attorneys’ and adjusters’ fees and charges. In the event such proceeds are
insufficient to pay the Commitment
in full, Agent may declare the balance remaining unpaid on the Commitment
to be due and payable forthwith and avail itself on any of the remedies
afforded thereby as in any case of default.


 


2.             Except
as set forth in this amendment, the Supplement, including all amendments
thereto, shall continue in full force and effect as written.


 


 


[SIGNATURE PAGE FOLLOWS]


 

















Amendment RI0340T02B to Supplement RI0340T02


ABE Fairmont, LLC


Fairmont, Nebraska


 


                IN WITNESS
WHEREOF, the parties have caused this amendment to be executed by
their duly authorized officers as of the
date shown above.


 


	
  FARM CREDIT SERVICES

  	
   

  	
  ABE FAIRMONT, LLC

  
	
  OF AMERICA, FLCA

  	
   

  	
  By
  ADVANCED BIOENERGY, LLC,

  
	
   

  	
   

  	
  its sole
  member

  



 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


 


2

















 


Amendment No. RI0475T02A


 


AMENDMENT


TO THE


CONSTRUCTION AND TERM LOAN SUPPLEMENT


 


                THIS AMENDMENT
is entered into as of October 5, 2007, between FARM CREDIT SERVICES OF AMERICA, FLCA  (“Farm Credit”) and ABE FAIRMONT, LLC, Fairmont, Nebraska (the “Company”).


 


BACKGROUND


 


                Farm
Credit and the Company are parties to a Construction and Revolving Term Loan
Supplement dated November 20, 2006 (such agreement, as
previously amended, is hereinafter referred to as the “Supplement”). Farm Credit
and the Company now desire to amend certain sections of the Supplement. For that reason, and for valuable consideration (the receipt and
sufficiency of which are hereby acknowledged),
Farm Credit and the Company agree that the following sections of the Supplement
are hereby amended to read as follows:


 


1.                                       Section 13(A) of the Supplement is
hereby amended and restated to read
as follows:


 


                SECTION
13. Casualties.


 


                                (A) Right to Elect to Apply Proceeds.  In case of
material loss or damage to the Property or to
the Improvements by fire, by a
taking by condemnation for public use or the action of any governmental authority or agency, or the transfer by private sale in lieu thereof, either temporarily or permanently, or otherwise,
if in the sole judgment of Agent
there is reasonable doubt as to Company’s ability to complete
construction of the Improvements on or before October 31, 2007, by reason of
such loss or damage or because of delays in making settlements with
governmental agencies or authorities or with
insurers, Agent may terminate
its obligations to make advances hereunder and elect to collect, retain and apply to the Commitment all proceeds of the taking or insurance
after deduction of all expense of collection and settlement, including
attorneys’ and adjusters’ fees and charges. In the event such proceeds are insufficient to pay the Commitment in full,
Agent may declare the balance
remaining unpaid on the Commitment
to be due and payable forthwith and avail itself on any of the remedies
afforded thereby as in any case of default.


 


2.             Except
as set forth in this amendment, the Supplement, including all amendments
thereto, shall continue in full force and effect as written.


 


 


[SIGNATURE PAGE FOLLOWS]


 

















Amendment RI0475T02A to Supplement RI0475T02


ABE Fairmont, LLC


Fairmont, Nebraska


 


                IN WITNESS WHEREOF,
the parties have caused this amendment to be
executed by their duly authorized officers as of the
date shown above.


 


	
  FARM CREDIT SERVICES

  	
   

  	
  ABE FAIRMONT, LLC

  
	
  OF AMERICA, FLCA

  	
   

  	
  By ADVANCED BIOENERGY, LLC,

  
	
   

  	
   

  	
  its sole member

  



 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


 


2