exv4w1






Exhibit 4.1




Execution Version




AMENDED AND RESTATED SECURED TERM LOAN NOTE




			
	 	 	 
	$9,758,113.91
	 	August 28, 2009

Minneapolis, Minnesota






     FOR VALUE RECEIVED, the undersigned, ADVANCED BIOENERGY, LLC, a Delaware limited liability
company (as more fully defined below, “Borrower”), hereby unconditionally promises to pay
to the order of PJC CAPITAL LLC, a Delaware limited liability company (including its successors,
assigns, pledgees, transferees and participants, collectively, “Lender”), on or before the
Maturity Date on the dates, in the manner and otherwise in accordance with the terms and conditions
of this Restated Note the principal sum of NINE MILLION SEVEN HUNDRED FIFTY-EIGHT THOUSAND ONE
HUNDRED THIRTEEN DOLLARS AND NINETY-ONE CENTS ($9,758,113.91), on the terms and conditions set
forth in this Amended and Restated Secured Term Loan Note (this “Restated Note”), together
with all accrued but unpaid interest thereon computed as set forth below and all unpaid fees,
expenses, indemnities and other advances connected herewith. Capitalized terms used but not
otherwise defined herein shall have the meaning given to them in Section 13.



     This Restated Note amends and restates, and is being delivered in exchange for, that certain
Secured Term Loan Note dated as of October 17, 2007, in the original principal amount of
$10,000,000, made by Borrower in favor of Lender, as and to the extent modified by that Forbearance
Agreement dated June 1, 2009 (the “Forbearance Agreement”) between Lender and Borrower (as
so modified, the “Prior Note”). The original stated principal amount of this Restated Note
is equal to the sum of the original principal amount of the Prior Note plus all accrued and
capitalized interest on the Prior Note as of the date hereof, less the amount of principal
reductions made pursuant to the Forbearance Agreement. All amounts obligated to be paid by
Borrower pursuant to the Prior Note shall not be deemed extinguished by reason hereof but shall be
carried over from the Prior Note.



     1. Accrual and Imposition of Interest.



          (a) All amounts outstanding hereunder shall bear interest (computed daily until paid, both
prior to and after the Maturity Date and prior to and after any bankruptcy or insolvency of
Borrower) at a per annum rate equal to 10.0%. Upon the occurrence and during the continuation of
any Event of Default hereunder, to the maximum extent not prohibited by applicable law, Lender (at
Lender’s election) may increase the interest rate hereunder by 3.0% per annum in excess of the rate
then otherwise applicable hereunder (provided that, if the relevant default relates to the
insolvency or bankruptcy of Borrower, then such rate increase (to the maximum extent not prohibited
by applicable law) will occur automatically without any action by Lender). Interest hereunder will
be calculated, accrued, imposed and payable on the basis of a 360-day year for the actual number of
days elapsed.




          (b) Unless prohibited by applicable law, (i) cash interest of $50,000 (or such lesser amount
as shall have accrued during the applicable calendar month), pro rata for any partial month, shall
be paid monthly in arrears on the first Business Day of the next succeeding calendar month; and
(ii) the entire remaining amount of interest, if any, in excess of the cash interest paid pursuant
to clause (i) above accrued during any calendar month shall be paid-in-kind rather than in cash,
with all such paid-in-kind interest to accrue and compound monthly (by being added to the principal
amount of the Obligations) on the first Business Day of the next succeeding month.




          (c) The failure by Borrower to pay the full amount of the accrued cash interest as and when
the same becomes due and payable each month pursuant to this Section 1 within three (3)




 









 




Business Days of the due date therefor shall constitute an immediate Event of Default, and
upon the occurrence of such Event of Default such unpaid accrued cash interest shall be immediately
deemed paid-in-kind and shall be added to the principal amount of the Obligations retroactive to
the first Business Day of such month (in which such cash interest first became due) and the amount
of interest that shall have been deemed paid-in-kind in accordance with this paragraph shall accrue
and compound at the per annum rate of interest of eighteen percent (18.0%).




     2. Payments at Maturity. Borrower shall pay Lender the entire outstanding balance
hereunder together with all accrued but unpaid interest hereunder and all fees, expenses,
indemnities and other advances in connection herewith or any other Loan Document on the date of the
earlier to occur of the following (the “Maturity Date”): (a) October 1, 2012, and
(b) the occurrence of a Change of Control and (c) the date of acceleration of the maturity
of the Obligations pursuant to Section 14 (whether automatically or at Lender’s election
after notice to Borrower) following the occurrence of an Event of Default.



     3. Voluntary Prepayments. At any time, upon advance written notice to Lender of at
least 3 Business Days, Borrower may prepay outstanding balances hereunder in whole or in part
without penalty or premium. Any voluntary partial prepayment must be in an amount of not less than
$100,000 (or such lesser amount equal to the then outstanding principal balance of this Restated
Note) or in multiples of $25,000 in excess thereof. Amounts prepaid pursuant to this Section
3 shall be applied to the Obligations in accordance with Section 7.



     4. Mandatory Prepayments.



          (a) Net Cash Proceeds. If Borrower or ABE Fairmont (i) sells, leases, licenses
pursuant to an exclusive license, transfers or otherwise disposes of any assets (other than (A)
inventory sold in the ordinary course of business and (B) other dispositions of assets not
exceeding an aggregate fair market value of $1,000,000 during any 12 consecutive calendar month
period), (ii) issues any Equity Interests (other than “Excluded Units”, as such term is defined in
the Warrant as in effect on the date hereof) or (iii) issues any debt securities or notes (other
than Indebtedness permitted hereunder), Borrower shall (except for Net Cash Proceeds of
dispositions of assets of ABE Fairmont that are required to be applied pursuant to the applicable
mandatory prepayment provisions relating to dispositions of assets of ABE Fairmont either under the
CoBank Loan Documents or the Wells Fargo Loan Documents, in each case as in effect on the date
funds are first advanced under this Restated Note) immediately prepay the outstanding Obligations
under this Restated Note without penalty or premium in an amount equal to 100% of the resulting Net
Cash Proceeds from such sale or other disposition of assets or such issuance of equity or debt
securities, as the case may be. Net Cash Proceeds prepaid pursuant to this Section 4 shall
be applied to the Obligations in accordance with Section 7.




          (b) GSB Letter of Credit Cash Collateral. There is outstanding as of the date hereof
an irrevocable standby letter of credit dated March 31, 2008 in the stated face amount of
$2,500,000 issued by Geneva State Bank (“GSB”) for the account of Borrower and for the
benefit of WestLB AG, New York Branch, which expires on March 31, 2010 (the “GSB Letter of
Credit”). Borrower’s reimbursement obligation under the GSB Letter of Credit is secured by
cash collateral deposited by Borrower with GSB in a deposit account (the “GSB Deposit
Account”) in the amount of $2,500,000 plus accrued interest (the “GSB Letter of Credit Cash
Collateral”). Immediately upon release by GSB of all or any portion of the GSB Letter of
Credit Cash Collateral as collateral for the GSB Letter of Credit at any time or from time to time,
whether such release is upon expiration of the GSB Letter of Credit or otherwise, Borrower shall
immediately pay or cause to be paid to Lender the full amount of GSB Letter of Credit Cash
Collateral released by GSB until Lender has received an aggregate of $1,700,000 (the




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“Lender Portion”). To effect the foregoing, Borrower has opened a deposit account
with U.S. Bank, National Association (the “Blocked Account”) which shall be subject to a
control agreement in favor of Lender in the form attached to the Forbearance Agreement as Annex D
thereto (the “Control Agreement”) for the purpose of depositing, among other things, the
GSB Letter of Credit Cash Collateral when released by GSB. Borrower shall, effective on the date
hereof, instruct GSB in writing in the form attached hereto as Exhibit A (the “GSB
Instruction Letter”) that the GSB Letter of Credit Cash Collateral shall be disbursed by GSB to
Borrower at the Blocked Account, which instructions shall contain the acknowledgment of GSB that it
shall not send the GSB Letter of Credit Cash Collateral to Borrower or to any other account or
Person other than to Borrower at the Blocked Account without the prior written consent of Lender.
Borrower shall not give any instructions to GSB inconsistent with the GSB Instruction Letter.
After the Lender Portion has been paid into the Blocked Account and such Lender Portion has been
received by Lender from the Blocked Account, Lender shall (i) deliver written instructions to GSB
authorizing Borrower to direct the payment of all further releases of GSB Letter of Credit Cash
Collateral without need for written consent from Lender and (ii) promptly authorize the withdrawal
by Borrower of all GSB Letter of Credit Cash Collateral paid into the Blocked Account in excess of
the Lender Portion pursuant to instructions confirmed by Lender (as to such excess amount).
Borrower shall execute and deliver such other agreements and documents and take such other actions
as Lender shall reasonably request in order to effect the distribution of the GSB Letter of Credit
Cash Collateral as set forth in this Section 4(b).




          (c) Nebraska Advantage Act Payments. Borrower currently participates in a program
under the State of Nebraska Advantage Act pursuant to that Nebraska Advantage Act Project Agreement
dated as of August 13, 2007 between Borrower and the State of Nebraska, by and through its Tax
Commissioner (the “NAA Agreement”). Pursuant to the NAA Agreement, Borrower expects to
receive certain payments and credits for various tax and other related investment and employment
credits and incentives (the “NAA Payments”) from the State of Nebraska Department of
Revenue (the “Nebraska DOR”). Immediately upon receipt by Borrower of any NAA Payment from
time to time from the Nebraska DOR with respect to the NAA Agreement, Borrower shall immediately
pay or cause to be paid to Lender the full amount of such NAA Payment, to be applied to the
Obligations in accordance with Section 7. To effect the foregoing, Borrower shall,
effective on the date hereof, instruct the Nebraska DOR in writing in the form attached hereto as
Exhibit B (the “Nebraska Instruction Letter”) that all NAA Payments from time to
time shall be disbursed by the Nebraska DOR to Borrower at the Blocked Account. Borrower shall not
give any instructions to the Nebraska DOR inconsistent with the Nebraska Instruction Letter. If
any payment by the Nebraska DOR is not paid to the Blocked Account pursuant to the Nebraska
Instruction Letter, Borrower shall, immediately upon the making of such payment by the Nebraska
DOR, cause such payment to be deposited into the Blocked Account. Borrower shall give written
notice to Lender within two (2) Business Days of (i) the making of any request for NAA Payments by
Borrower, and (ii) the acknowledgment of, or payment by, the State of Nebraska of any NAA Payments,
in each case in reasonable detail. Borrower shall execute and deliver such other agreements and
documents and take such other actions as Lender shall reasonably request in order to effect the
distribution of the NAA Payments as set forth in this Section 4(c).




          (d) ABE Fairmont Distributions. Beginning with the fiscal year of Borrower and ABE
Fairmont ended September 30, 2009, Borrower shall calculate “net profit” (as defined in the Section
10(K) of the 11/20/06 MLA) of ABE Fairmont for such fiscal year, and shall provide evidence to
Lender in reasonable detail of such calculation no later than 10 Business Days after the end of
such fiscal year. If such net profit is a positive number, and so long as such distribution is
permitted by the CoBank Loan Documents, Borrower shall cause ABE Fairmont to distribute forty
percent (40.0%) of such net profit (or if less than sixty percent (60.0%) of the net profit is
required by the CoBank Loan Documents to be retained by ABE Fairmont, than such greater percentage
as is not required to be retained) (each such



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payment, an “ABE Fairmont Distribution”) no later than the date that the audited
financial statements of ABE Fairmont for such fiscal year are delivered to CoBank, to Lender by
causing ABE Fairmont to pay the full amount of such ABE Fairmont Distribution directly to Lender,
to be applied to the Obligations in accordance with Section 7. To effect the foregoing,
Borrower shall, effective on the date hereof, instruct ABE Fairmont in writing in the form attached
hereto as Exhibit C (the “ABE Fairmont Instruction Letter”) that all ABE Fairmont
Distributions from time to time shall be distributed by ABE Fairmont directly to Lender at an
account set forth in such ABE Fairmont Instruction Letter, which instructions shall contain the
acknowledgment of ABE Fairmont that it shall not send any ABE Fairmont Distributions to Borrower or
to any other account or Person other than to Lender at the account specified in the ABE Fairmont
Instruction Letter without the prior written consent of Lender. Borrower shall not give any
instructions to ABE Fairmont inconsistent with the ABE Fairmont Instruction Letter. Borrower shall
execute and deliver such other agreements and documents and take such other actions as Lender shall
reasonably request in order to effect the distribution of the ABE Fairmont Distributions as set
forth in this Section 4(d).




          (e) Additional Principal Payments. If at any time the interest on this Restated Note
accrued during any month is less than $50,000 (pro rata for any partial month), Borrower shall pay
to Lender the difference between $50,000 (or such pro rata portion thereof) and the interest
accruing on this Restated Note during such month, to be applied to the Obligations in accordance
with Section 7.




     5. Funding Advances. At the written request and expense of Borrower, Lender will wire
transfer all or any portion of the advances hereunder in accordance with written instructions
therefor. By executing this Restated Note, Borrower hereby requests Lender to make and fund the
initial advances in accordance with the funding instructions that have been provided to Lender in
writing.



     6. Mechanics of Payment. All payments and other amounts due hereunder must be
received by Lender by wire transfer in immediately available funds in Dollars (and without any
deduction, offset, netting, counterclaim or reservation of rights) on or before 2:00 p.m. Central
Time on the due date therefor at the principal office of Lender located at 800 Nicollet Mall,
Minneapolis, MN 55402, Attention Tim Carter or Greg Meyer, or at such other location as Lender at
any time or from time to time may designate to Borrower in writing. Any funds received by Lender
after 2:00 p.m. Central Time on any day will be deemed to be received on the next succeeding
Business Day. Whenever any payment to be made hereunder is due on a day that is not a Business
Day, then such payment may be made on the next succeeding Business Day, and such extension of time
will be included in the computation of interest due hereunder.



     7. Application of Payments. All payments and other funds received by Lender hereunder
will be applied in the following order: (a) to the payment of any fees and charges due under the
Loan Documents, then (b) to any obligations for the payment of expenses, costs and
indemnities due under the Loan Documents, then (c) to the payment of all other interest due
and owing under Section 1(b) other than interest under Section 1(b)(ii), then (d)
to payments of all paid-in-kind interest under Section 1(b)(ii) accrued and not yet paid,
to the extent such paid-in-kind has been added to principal, then (e) to the principal
indebtedness due hereunder, then (f) to any other interest accrued hereunder other than as
set forth in clauses (c) and (d) above, then (g) to any other indebtedness
of Borrower to Lender under the Loan Documents.



     8. Capital Adequacy, Taxes and Other Adjustments. If Lender determines that (a) the
adoption, implementation or interpretation after the date hereof of any law, treaty, governmental
(or quasi-governmental) rule, regulation, guideline, directive, policy or order regarding capital
adequacy, reserve requirements, taxes or similar requirements, or (b) the compliance by Lender or
any entity



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controlling or funding the operations of Lender with any request or directive regarding
capital adequacy, reserve requirements, taxes or similar requirements (whether or not having the
force of law and whether or not failure to comply therewith would be unlawful) from any central
bank, governmental agency, controlling entity, funding source or body, in either instance, would
have the effect of increasing the amount of capital, reserves, taxes, funding costs or other funds
required to be maintained or paid by Lender and thereby have the effect of reducing the rate of
return on Lender’s capital as a consequence of its obligations hereunder, then Borrower must pay to
Lender additional amounts sufficient to compensate Lender for such reduction. Lender will notify
Borrower of any such determination and payment amount within a reasonable period of time
thereafter, and (upon written request) Lender will furnish a statement setting forth the basis and
the method for determining the amount of such payment. Any such determination or calculation by
Lender will be conclusive absent manifest error.



     9. Miscellaneous Additional Payment Terms, Including Ability to Re-Borrow. Principal
amounts repaid or prepaid hereunder will not be available for re-borrowing under the terms hereof.
To the extent Lender notes the date or amount of any payment hereunder on a schedule annexed
hereto, then such notations shall constitute prima facie evidence of the information noted on such
schedule, but the failure of Lender to make any such notation will not limit or otherwise affect
the obligations or liabilities of Borrower hereunder.



     10. Usury Savings Provision. Notwithstanding any provision of any Loan Document,
Borrower shall not be required to pay interest at a rate or any fee or charge in an amount
prohibited by applicable law. If interest or any fee or charge payable on any date would be in a
prohibited amount, then such interest, fee or charge will be automatically reduced to the maximum
amount that is not prohibited, and any interest, fee or charge for subsequent periods (to the
extent not prohibited by applicable law) will be increased accordingly until Lender receives
payment of the full amount of each such reduction. To the extent that any prohibited amount is
actually received by Lender, then such amount will be automatically deemed to constitute a
repayment of principal indebtedness hereunder.



     11. Affirmative and Negative Covenants. Borrower hereby covenants and agrees that,
until this Restated Note has been Paid in Full, Borrower will comply with the following covenants:



          (a) Delivery of Periodic Financial Information. Within 30 calendar days after the end
of each month (including the last month of each fiscal quarter and of each fiscal year), Borrower
shall deliver to Lender a set of consolidated financial statements for such immediately preceding
month (in form and substance reasonably acceptable to Lender) including a balance sheet, income
statement and statement of cash flows for Borrower and its Subsidiaries (with appropriate exhibits
and schedules). Together with the monthly financial statements, Lender must also receive a
certificate executed by the chief financial officer of Borrower as is acceptable to Lender
(1) stating that the financial statements have been prepared in accordance with GAAP (except for
the absence of footnotes and for customary, nonmaterial year-end adjustments) and fairly present
the consolidated financial condition of Borrower and its Subsidiaries as of the date thereof and
for the periods covered thereby and (2) certifying that as of the date of such certificate there is
not any existing Default or Event of Default. In addition, Borrower shall deliver to Lender a copy
of each compliance package, including financial statements, compliance certificates and other
deliverables, as applicable, delivered by ABE Fairmont to CoBank as the administrative agent under
the CoBank Loan Documents, concurrently, but in no event later than five (5) days after the
delivery thereof to CoBank.




          (b) Delivery of Financial Statements. Within 90 calendar days after each fiscal year,
Borrower shall deliver to Lender a complete set of annual consolidated and consolidating financial
statements for Borrower and its Subsidiaries (with accompanying notes), in reasonable detail and in



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comparative form. Such financial statements (1) must be prepared in accordance with GAAP
consistently applied, and (2) must be audited by McGladrey & Pullen, LLP or another
independent certified public accounting firm satisfactory to Lender. Together with the annual
financial statements, Lender must also receive all related management letters, if any, prepared by
such accountants, and such financial statements shall be accompanied by a report of such
accountants, which report shall be without limitation as to the scope of the audit and shall state
that such financial statements present fairly, in all material respects, the financial position of
Borrower and its Subsidiaries in conformity with GAAP as of the date thereof and for the periods
covered thereby.




          (c) Other Information; Access. At Borrower’s expense, upon request by Lender,
Borrower will, and will cause ABE Fairmont to, during normal business hours, permit Lender and its
representatives to visit and inspect any of their respective properties, to examine and make
abstracts or copies from any of their respective books and records (whether in the possession of
Borrower or a third party) and to discuss their respective operations, affairs, finances and
accounts with their respective management personnel, officers, employees and independent public
accountants. In addition to the foregoing, from time to time, Borrower shall provide Lender with
any other information (financial or otherwise) about Borrower or any of its Subsidiaries reasonably
requested by Lender.




          (d) Compliance with Laws; Existence and Good Standing. Borrower shall, and shall
cause each of its Subsidiaries to, comply in all material respects with all laws, rules,
regulations and orders (federal, state, local and otherwise) that are applicable to Borrower, or
any Subsidiary of Borrower, including all applicable Environmental Control Statutes and ERISA.
Borrower shall, and shall cause each of Subsidiaries to, preserve and maintain (1) such Person’s
existence as an organization in good standing under the applicable laws of such Person’s
jurisdiction of organization, and (2) such Person’s qualification in good standing to
conduct business in all jurisdictions where it conducts business and as to which the failure to be
in good standing could reasonably be expected to have a Material Adverse Effect, and (3)
the validity of all such Person’s authorizations and licenses required or otherwise appropriate in
the conduct of such Person’s businesses and as to which the failure to have such valid
authorization or license could reasonably be expected to have a Material Adverse Effect;
provided that, and notwithstanding the foregoing, Borrower shall be permitted to wind up
and dissolve ABE Northfield, LLC and Indiana Renewal Fuels, LLC which, as of the date of this
Restated Note, are wholly owned shell Subsidiaries of Borrower.




          (e) Books and Records; Maintenance of Properties. Borrower shall, and shall cause
each of Subsidiaries to, keep and maintain accurate books and records of account in accordance with
GAAP. Borrower shall, and shall cause each of Subsidiaries to, keep, maintain and preserve all of
its material assets in good order and repair (ordinary wear and tear excepted) and fully insured by
reputable and financially sound insurance companies with coverages that are customary for
Borrower’s or such Subsidiary’s industry (and reasonably acceptable to Lender).




          (f) Transactions with Affiliates. Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in any transaction (including employment, management and/or other
compensation arrangements) with any Person who is an Affiliate of Borrower or any of its
Subsidiaries other than (a) reasonable and customary compensation arrangements in the ordinary
course of business with its officers and directors, to the extent permitted hereunder and
(b) transactions on a basis no more favorable to such Affiliate then would be obtained in a
comparable arm’s length transaction with a Person not an Affiliate of Borrower or any of its
Subsidiaries and disclosed to Lender in writing prior to entering into any such transaction.




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          (g) Indebtedness and Guaranties. Borrower shall not, and shall not permit ABE
Fairmont to, (1) create, incur, assume or permit to exist any additional Indebtedness or
liabilities or (2) guarantee, assume or otherwise be or agree to become directly or
indirectly liable in any way for any additional indebtedness or liability of any other Person,
except (i) Indebtedness and guarantees in favor of Lender; (ii) trade debt and customary operating
expenses incurred and paid by such Person in the normal and ordinary course of business;
(iii) Indebtedness incurred to purchase fixed or capital assets and Capital Leases, consistent with
the restrictions and conditions in Section 11(h)(2), provided that the aggregate
amount of such Indebtedness outstanding under this clause (iii) at any time may not exceed
$3,000,000; (iv) Indebtedness under the CoBank Loan Documents in an amount not to exceed
$93,650,000 in the aggregate outstanding at any time; (v) the Indebtedness listed on
Schedule 11(g) attached to this Restated Note; (vi) Indebtedness under the Wells Fargo
Documents in an amount not to exceed $7,000,000 in the aggregate outstanding at any time; and (vii)
extensions, refinancings and renewals of any of the Indebtedness permitted by the foregoing
clauses, provided that the principal amount of such Indebtedness shall not be increased or
the terms of such Indebtedness modified to impose more burdensome terms upon Borrower or any of its
Subsidiaries.




          (h) Liens. Borrower shall not, and shall not permit ABE Fairmont to, create, permit
or suffer the creation or existence of any Liens on any of its property or assets (real or
personal, tangible or intangible), except (1) Liens in favor of Lender; (2) Liens arising
in favor of sellers, lessors or other financial institutions for indebtedness and obligations
incurred to purchase or lease fixed or capital assets as permitted under Section
11(g)(iii), provided that such Liens secure only the indebtedness and obligations
created thereunder (but not any related monetary obligations under non-compete and consulting
arrangements) and are limited to the assets purchased or leased pursuant thereto and the proceeds
thereof; (3) Liens for taxes, assessments or other governmental charges (federal, state or local)
that are not yet delinquent or that are then being currently contested in good faith by appropriate
proceedings diligently prosecuted, provided that (i) adequate reserves therefor in
accordance with GAAP have been established, and (ii) such Liens could not reasonably be
expected to have or cause a Material Adverse Effect, (4) deposits or pledges made in the ordinary
course of business to secure obligations which are not overdue in respect of under workmen’s
compensation, unemployment insurance or social security laws or similar legislation; (5) deposits
to secure performance or payment bonds, bids, tenders, contracts, leases, franchises or public and
statutory obligations required in the ordinary course of business; (6) statutory or common law
liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen, and landlords
incurred in the ordinary course of business and in existence less than 120 days from the date of
creation thereof in respect of obligations not past due or sums being currently contested in good
faith by appropriate proceedings diligently prosecuted, provided that (A) adequate reserves
therefor in accordance with GAAP must have been established, and (B) such Liens could not
reasonably be expected to have or cause a Material Adverse Effect; (7) easements, rights-of-way,
restrictions and other similar encumbrances on real property owned or leased by Borrower and
encumbrances evidencing the ownership interest or title of any owner or lessor with respect to real
property leased by Borrower, provided that such Liens do not in the aggregate materially
interfere with the occupation, use or enjoyment by Borrower of the property or assets encumbered
thereby in the normal course of business or materially impair the value of the property subject
thereto; (8) Liens securing Indebtedness permitted by Section 11(g)(iv) or Section
11(g)(vi); (9) the Liens listed on Schedule 11(h) attached to this Restated Note; (10)
Liens arising from judgments, decrees or attachments that do not constitute an Event of Default;
(11) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment
of customs duties in connection with the importation of goods; (12) Liens arising solely by virtue
of any statutory or common law provision relating to banker’s liens, rights of setoff or similar
rights and remedies as to deposit accounts or other funds maintained with a creditor depository
institution; (13) Liens in favor of a depository bank or a securities intermediary pursuant to such
depository bank’s or securities intermediary’s customary customer account agreement; provided that



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any such Liens shall at no time secure any indebtedness or obligations other than customary
fees and charges payable to such depository bank or securities intermediary; and (14) Liens
incurred in connection with the extension, renewal or refinancing of indebtedness secured by Liens
permitted under the preceding clauses, provided that any extension, renewal or replacement Lien
shall be limited to the property encumbered by the existing Lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not increase. Lender also understands that
the State of Nebraska has certain rights under Section 22 of the NAA Agreement.




          (i) Investments, Acquisitions and Loans. Borrower shall not, and shall not permit ABE
Fairmont to, purchase or otherwise acquire (including by way of share exchange) any part or share
of the Equity Interests or equity ownership of, or acquire all or substantially all of the assets
or any division or similar operating unit of, guaranty any Indebtedness of, or make any loan,
advance or extension of credit to, or contribute to the capital of, or make or permit to exist any
contribution, investment in or other interest in, any other Person (collectively,
“Investments”), except for: (1) government and agency securities backed by the full
faith and credit of the U.S. federal government; (2) commercial paper of a U.S. domestic issuer
rated at least A-1+ or A-1 by Standard & Poor’s Ratings Group or at least P-1 by Moody’s Investor
Services, Inc. and maturing not more than 90 calendar days from the date of acquisition thereof;
(3) certificates of deposit (maturing within 12 calendar months after the date of issuance), time
deposits, other deposits and bankers’ acceptances issued by or established with U.S. federally
insured commercial banks rated as “well capitalized” by their primary federal regulators, and
having unimpaired capital and unimpaired surplus (collectively) of at least $250,000,000, and whose
commercial paper (or commercial paper that is supported by such bank’s letter of credit or
commitment to lend) is rated at least A-1+ or A-1 by Standard & Poor’s Ratings Group or at least
P-1 by Moody’s Investor Services, Inc.; (4) loans and advances to employees of Borrower or any of
its Subsidiaries in the ordinary course of business not to exceed an aggregate principal amount of
$100,000 at any time outstanding; (5) Investments set forth on Schedule 11(i) attached to
this Restated Note; (6) Investments in Subsidiaries and in the Heartland Entities existing as of
the date of this Restated Note; and (7) repurchases of Equity Interests from former employees or
managers of Borrower under the terms of applicable repurchase agreements, including repurchases
effected by the cancellation of indebtedness owed to such former employees of Borrower, in an
aggregate amount not to exceed $100,000 during the term of this Restated Note, provided
that no Event of Default has occurred, is continuing or would exist after giving effect to such
repurchases or cancellation of indebtedness.




          (j) Transfer of Assets. Borrower shall not, and shall not permit ABE Fairmont to,
sell, lease, license pursuant to an exclusive license (whether or not fully paid up front),
transfer or otherwise dispose of all or a substantial part of its assets or any asset the loss of
which could reasonably be expected to have or cause a Material Adverse Effect. In addition,
Borrower shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, transfer
or otherwise dispose of any asset other than (1) pursuant to a transaction with an unrelated third
party in the normal and ordinary course of business for value received and otherwise in accordance
with the terms hereof that (together with all other transactions during the immediately preceding
12 consecutive calendar months) has a fair market value aggregating less than $1,000,000,
provided that no Default or Event of Default is then occurring or would otherwise be caused
thereby; (2) with respect to obsolete or replaced equipment no longer useful in the operation of
Borrower’s or any Subsidiary’s business, pursuant to a reasonable and customary transaction with an
unrelated third party and otherwise in accordance with the terms hereof; or (3) dispositions of
inventory, or used, worn-out or surplus property, all in the ordinary course of business. Borrower
shall not, and shall not permit any of its Subsidiaries to, enter into any sale-lease back
transaction with respect to any of their respective assets.




8









 








          (k) Dividends, Distributions and Redemptions. Except as permitted by
Section 11(i)(9), Borrower shall not declare or make (directly or indirectly) any payment
or distribution with respect to, or incur any liability for the purchase, acquisition, redemption
or retirement of, any of its equity interests (including warrants therefor) or as a dividend,
return of capital or other payment or distribution of any kind to any holder of any such equity
interest. Notwithstanding the foregoing, so long as no Default or Event of Default then exists
under the Loan Documents or would otherwise be caused by the payment of such dividend, Borrower may
declare and distribute reasonable and lawful dividends to the holders of its equity securities for
the sole purpose of making Tax Distributions to such holders of its Equity Interests.




          (l) New Ventures; Mergers. Borrower shall not, and shall not permit ABE Fairmont to,
(1) enter into any new business activities or ventures not directly related to its current
business; (2) merge or consolidate with or into any other corporation, partnership, limited
liability company or other organization; or (3) create or acquire (or cause or permit the creation
or acquisition of) any Subsidiary.




          (m) Modifications to Organizational Documents. Borrower shall not, and shall not
permit ABE Fairmont to, (1) amend or otherwise modify any of its Organizational Documents, or (2)
change its legal or official name, its operating names or the names under which it executes
contracts and conducts business, in each instance, if such amendment or change could reasonably be
expected to have or cause an adverse effect (including any adverse affect on the attachment or
perfection of any pledge or security interest in favor of Lender).




          (n) General Insurance Provisions. Borrower shall, and shall cause ABE Fairmont to,
keep all of their respective property and assets fully covered by insurance with reputable and
financially sound insurance companies (reasonably acceptable to Lender), and also maintain such
protection against such hazards and liability in such amounts and with such deductibles as is
customary in the industry of Borrower or ABE Fairmont and appropriate under the relevant
circumstances and, on the date that is 5 Business Days from the date hereof, and at all times
thereafter, shall name (with appropriate endorsements) Lender as an additional insured with respect
to policies of liability insurance. Upon Lender’s request, Borrower from time to time will furnish
Lender with proof of such insurance, in form and substance acceptable to Lender, and a copy of the
related policy or policies.




          (o) Taxes. Borrower shall, and shall cause ABE Fairmont to, pay and discharge all
material taxes, assessments or other governmental charges or levies imposed on it or any of its
property or assets prior to the date upon which any penalty for non-payment or late payment is
incurred, unless the same are then being contested in good faith by appropriate proceedings
diligently prosecuted, adequate reserves therefor have been established in accordance with GAAP,
and the consequences of such non-payment could not reasonably be expected to have a Material
Adverse Effect.




          (p) Management Changes. Borrower shall notify Lender in writing within 20 days after
any change (including any dismissal or change in title or status) in the senior management
personnel of Borrower or ABE Fairmont.




          (q) Litigation and Administrative Proceedings. Borrower shall notify Lender in
writing promptly upon the institution or commencement of any litigation, legal or administrative
proceeding, any arbitration proceeding, or any labor controversy against or involving Borrower or
any of its Subsidiaries (1) with a purported amount in controversy in excess of $250,000 (in excess
of the amount of any insurance coverage as to which the applicable insurer has accepted tender) or
(2) that could otherwise, if adversely determined, reasonably be expected to have or cause a
Material Adverse Effect.




9









 








          (r) Monitoring Compliance. Borrower shall notify Lender in writing promptly, but in
any event within 5 calendar days, after obtaining knowledge of the occurrence or existence of any
Default or Event of Default hereunder.




          (s) Margin Stock Restrictions; Other Federal Statutes. Borrower shall not, and shall
not permit ABE Fairmont to, use any of the proceeds hereunder, directly or indirectly, to purchase
or carry, or to reduce or retire any indebtedness that was originally incurred to purchase or
carry, any “Margin Stock” or for any other purpose that might constitute the transactions
contemplated hereby as a “Purpose Credit” within the meaning of the Board of Governors of the
Federal Reserve Systems’ Margin Regulations. Borrower shall not, and shall not permit ABE Fairmont
to, engage as its principal business in the extension of credit for purchasing or carrying Margin
Stock. Borrower shall not, and shall not permit ABE Fairmont to, cause or permit any Loan Document
to violate any other regulation of the Board of Governors of the Federal Reserve System or the
Securities and Exchange Commission or any provision of the Securities Act of 1933, the Securities
Exchange Act of 1934, the Investment Company Act of 1940 or the Small Business Investment Act of
1958, each as amended, or any rules or regulations promulgated under any of such statutes.




          (t) Further Assurances. From time to time, Borrower shall, and shall cause ABE
Fairmont to, execute and deliver (or will cause to be executed and delivered) such supplements,
amendments, modifications to and/or replacements of the Loan Documents and such further instruments
as may be reasonably required or reasonably requested by Lender to effectuate the intention of the
parties to (or to otherwise facilitate the performance of) the Loan Documents.




          (u) Costs and Expenses. Borrower shall pay or reimburse Lender for all fees and costs
(including all reasonable attorneys’ fees and disbursements) that Lender may pay or incur in
connection with (1) the preparation, negotiation and review of the Loan Documents, any waivers,
consents and amendments in connection herewith or therewith and all other documentation related
hereto or thereto, (2) the initial and continuing perfection or protection of Lender’s interest in
any of the Collateral, (3) the collection or enforcement of any of the Loan Documents, (4) the
periodic examination of the books, records and operations of Borrower and its Subsidiaries
(including with respect to the Collateral), and (5) Lender’s release of its interests in the
Collateral in accordance with the terms of the Loan Documents. Borrower shall pay any and all
recordation taxes or other fees due upon the filing of the financing statements or documents of
similar effect required to be filed under the Loan Documents, and shall provide Lender with a copy
of any receipt or other evidence reflecting such payments. All obligations provided for in this
Section 11(u) shall survive the termination of this Restated Note and the repayment of the
Obligations hereunder.




          (v) Negative Pledge. Borrower shall not, and shall not permit any of its Subsidiaries
to create, incur, permit, assume or suffer to exist, or agree or consent to cause or permit in the
future (upon the happening of a contingency or otherwise) any Lien upon the GSB Letter of Credit
Cash Collateral, the GSB Deposit Account, the Blocked Account, the NAA Payments or the ABE Fairmont
Distributions, or any income, revenue or profits from any such property or assets, whether now
owned or hereafter acquired, other than as set forth in this Restated Note or in the other Loan
Documents. Lender also understands that the State of Nebraska has certain rights under Section 22
of the NAA Agreement.




          (w) Closing Conditions. The effectiveness of this Restated Note is subject to the
satisfaction or waiver, on or before the date hereof, of the following conditions:




               (i) Note. Borrower shall have duly executed and delivered this Restated Note to
Lender.



10









 





               (ii) Other Documents. Borrower and ABE Fairmont shall have duly executed and
delivered the other Loan Documents together with such other certificates, documents and agreements
as Lender may reasonably request, and Borrower shall have delivered to Lender the Control
Agreement, the GSB Instruction Letter and the Nebraska Instruction Letter, in each case duly
executed by all parties thereto.



               (iii) Representations and Warranties; No Default. The representations and warranties
contained in Section 12 and in the other Loan Documents shall be true on and as of the date
hereof, both immediately before and immediately after giving effect to the consummation of the
transactions contemplated hereby and there shall exist on such day no Default or Event of Default,
both immediately before and immediately after giving effect to the consummation of the transactions
contemplated hereby.



               (iv) Opinion. Lender shall have received from Faegre & Benson, counsel to Borrower
and ABE Fairmont, an opinion letter regarding the Loan Documents and the financing transaction
contemplated thereby, in form and substance satisfactory to Lender.



               (v) Compliance with Laws. The advance of the funds as contemplated by this Restated
Note on the terms and conditions herein provided (including the use of the proceeds thereof by
Borrower) and the issuance of the Warrant and the Prior Warrant shall not violate any applicable
law or governmental regulation and shall not subject Lender or the holder of the Warrant and the
Prior Warrant to any tax, penalty or liability under or pursuant to any applicable law or
governmental regulation.



               (vi) Consents. Lender shall be satisfied that any and all material government,
contractual and other third-party licenses, approvals and consents necessary to the funding of the
advance contemplated by this Restated Note, the issuance of the Warrant and the Prior Warrant and
the granting of the security interest to Lender pursuant to the Collateral Security Documents have
been obtained.



               (vii) Warrant. Borrower shall have issued the Warrant to Lender in form and substance
satisfactory to Lender.



               (viii) Other Fees and Expenses. Borrower shall have paid all fees required by
Section 11(u) then due and owing.



               (ix) Secretary’s Certificate with Attachments. Borrower shall have, and shall have
caused ABE Fairmont to have, delivered to Lender certificates of the Secretary or an Assistant
Secretary and one other officer of each of Borrower and ABE Fairmont (with incumbency), certifying
the names and true signatures of the officers of such Person authorized to sign the Loan Documents
(and the Warrant, with respect to Borrower) to which such Person is a party and the other documents
to be delivered hereunder to which such Person is a party, in form and substance satisfactory to
Lender, attaching (A) copies of the resolutions of the board of directors or the sole member, as
applicable, of each of Borrower and ABE Fairmont, authorizing its execution and delivery of, and
the performance of, its respective obligations under the Loan Documents to which such Person is a
party (and the Warrant, with respect to Borrower), (B) certified copies of the certificates of
formation and operating agreements of each of Borrower and ABE Fairmont; and (C) a good standing
certificate for each of Borrower and ABE Fairmont from the Secretary of State of the state of
formation of each such Person, each dated as of a recent date.



11









 





               (x) Officer’s Certificate. Borrower shall have delivered a certificate of an officer
of Borrower having primary responsibility for financial matters, in form and substance satisfactory
to Lender, certifying as to the amount of outstanding Indebtedness of each of Borrower and ABE
Fairmont on an unconsolidated basis as of the date hereof.



               (xi) Perfection of Security Interest. All actions necessary to perfect (and to
maintain perfection of) the Lien of Lender in the Collateral shall have been taken in accordance
with the terms and provisions of the Collateral Security Documents. The Lien of Lender in the
Collateral shall be valid and enforceable and the Collateral shall be subject to no other Liens.
Lender also understands that the State of Nebraska has certain rights under Section 22 of the NAA
Agreement.



               (xii) Material Adverse Effect. No Material Adverse Effect shall have occurred.



          (x) Independence of Covenants. All covenants and defaults contained in this Restated
Note and the other Loan Documents shall be given independent effect. If a particular action or
condition is not permitted by any covenant in this Restated Note, then the fact that such action or
condition would be permitted by an exception to (or would otherwise be within the limitations of)
another covenant in this Restated Note shall not avoid the occurrence or existence of a Default or
Event of Default if such action is taken or if such condition exists.




     12. Representations and Warranties. Borrower hereby represents and warrants to and
for the benefit of Lender as follows:



          (a) Organization and Good Standing. Each of Borrower and each of its Subsidiaries (1)
is duly organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and (2) has all requisite limited liability company power to own its
properties and to conduct its business as now conducted and as currently proposed to be conducted,
and (3) is duly qualified to conduct business as a foreign limited liability company and is
currently in good standing in each state and jurisdiction in which it conducts business,
except where failure to be duly qualified and in good standing could not reasonably be
expected to have a Material Adverse Effect.




          (b) Power and Authority. Borrower has all requisite limited liability company power
and authority under applicable law and under its Organizational Documents to execute, deliver and
perform its obligations under the Loan Documents.




          (c) Validity and Legal Effect. This Restated Note constitutes, and the other Loan
Documents to which Borrower is a party constitute (or will constitute when executed and delivered),
the legal, valid and binding obligations of Borrower enforceable against it in accordance with the
terms thereof, except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws and except as limited by general principles of equity.




          (d) No Violation of Laws or Agreements. The execution, delivery and performance by
Borrower of the Loan Documents (1) will not violate or contravene any material provision of any
material law, rule, regulation, administrative order or judicial decree (federal, state or local),
(2) will not violate or contravene any provision of the Organizational Documents of Borrower or any
of its Subsidiaries, (3) will not result in any material breach or violation of (or constitute a
material default under) any material agreement or instrument by which Borrower or any of its
Subsidiaries or any of their respective assets or property may be bound, and (4) will not result in
or require the creation of any Lien




12









 







(other than pursuant to the Loan Documents) upon or with respect to any assets or properties
of Borrower or any of its Subsidiaries, whether such assets or properties are now owned or
hereafter acquired.




          (e) Accuracy of Financial Information. All financial statements previously furnished
to Lender concerning the financial condition and operations of Borrower and it Subsidiaries: (1)
fairly present in all material respects the financial condition of the organization covered thereby
as of the dates and for the periods covered thereby, (2) disclose all material liabilities
(contingent and otherwise) of Borrower and its Subsidiaries, and (3) with respect to financial
statements prepared by or on behalf of Borrower and its Subsidiaries, have been prepared in
accordance with GAAP consistently applied.




          (f) No Liens. Other than the Lien of GSB in the GSB Deposit Account and the GSB
Letter of Credit Cash Collateral, Borrower owns the GSB Deposit Account, the GSB Letter of Credit
Cash Collateral and the rights to the NAA Payments and the ABE Fairmont Distributions free and
clear of any Lien. Lender also understands that the State of Nebraska has certain rights under
Section 22 of the NAA Agreement.




     13. Definitions. For purposes of this Restated Note, the following terms have the
following corresponding meanings:



          (a) “ABE Fairmont” means ABE Fairmont, LLC, a Delaware limited liability company and
wholly-owned Subsidiary of Borrower.




          (b) “Affiliate” of any Person means any other Person that directly or indirectly
controls, is controlled by or is under direct or indirect common control with such Person. A
Person shall be deemed to “control” another Person if such first Person directly or indirectly
possesses the power to direct (or to cause the direction of or to materially influence) the
management and policies of the second Person, whether through the ownership of voting securities,
by contract or otherwise. Without limiting the generality of the foregoing, each Person who owns
or controls 5% or more of any class or series of any equity interest of such Person will be deemed
to be an Affiliate of a Person. Notwithstanding the foregoing, in no event shall Lender or any of
its Affiliates be deemed to be an Affiliate of Borrower or any of its Subsidiaries.




          (c) “Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978, as codified
under Title 11 of the United States Code, and the Bankruptcy Rules promulgated thereunder, as
amended.




          (d) “Borrower” means Advanced BioEnergy, LLC, a Delaware limited liability company,
having its principal and chief executive office at the address specified in Section 25, and
any successor or authorized assignee of any thereof.




          (e) “Business Day” means any day that is not a Saturday, a Sunday or a day on which
banks under the laws of the States of Minnesota or New York are authorized or required to be
closed.




          (f) “Capital Leases” means all leases that have been or should be recorded as
capitalized leases in accordance with GAAP.




          (g) “Change of Control” means shall mean the occurrence of an event, or series of
events, which shall lead, or has led to (a) any “person” or any syndicate or group deemed a
“person”
within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the




13









 




“Exchange Act”), has become, directly or indirectly, the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed
to have “beneficial ownership” of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time), of 30% or more of the
voting power of the voting stock of Borrower on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options and other securities of Borrower
(whether or not such securities are then currently convertible or exercisable), provided
that with respect to ECM, a Change of Control under this clause (a) shall occur only if ECM has
become, directly or indirectly, the beneficial owner (as defined above) of more than 50% of the
voting power of the voting stock of Borrower on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options and other securities of Borrower
(whether or not such securities are then currently convertible or exercisable), by aggregating the
voting power of Borrower held by ECM as in effect on the date of the Forbearance Agreement plus all
voting power obtained by ECM subsequent to the date of the Forbearance Agreement, or (b) during any
period of 2 consecutive calendar years, individuals who at the beginning of such period constituted
the board of directors (or similar governing body) of Borrower cease for any reason (other than
death, disability or expiration of term) to constitute a majority of the board of directors (or
similar governing body) of Borrower then in office unless such new directors (or similar) were
elected by the directors (or similar) of Borrower who constituted the board of directors (or
similar governing body) of Borrower at the beginning of such period, or (c) the failure of Borrower
to own 100% of the equity interests of each of its Subsidiaries on a fully-diluted basis.




          (h) “CoBank Loan Documents” means, collectively, (i) that Master Loan Agreement dated
as of November 20, 2006 between Farm Credit Services of America, FLCA (“Farm Credit”) and
ABE Fairmont as amended by an Amendment dated on or about October 5, 2007 and an amendment dated as
of December 24, 2008 (the “11/20/06 MLA”), as further amended and supplemented by that (1)
Construction and Term Loan Supplement to the MLA dated as of November 20, 2006 between Farm Credit
and ABE Fairmont with respect to a construction and term loan in an amount not to exceed
$6,500,000, as amended by the Amendment to such Supplement dated on or about October 5, 2007
between Farm Credit and ABE Fairmont, (2) Construction and Revolving Term Loan Supplement to the
11/20/06 MLA dated as of November 20, 2006 and effective as of June 1, 2007 between Farm Credit and
ABE Fairmont with respect to a construction and revolving term loan commitment in an amount not to
exceed $4,000,000, as amended by the Amendment to such Supplement entered into on or about October
5, 2007 between Farm Credit and ABE Fairmont, (3) Disbursing Agreement dated as of November 1, 2006
among ABE Fairmont, Farm Credit, CoBank, ACB (“CoBank”) and Homestead Escrow and Exchange
Co., (4) Administrative Agency Agreement dated as of November 20, 2006 among Farm Credit, CoBank
and ABE Fairmont, and (5) Statused Revolving Credit Supplement dated as of December 24, 2008 which
amended and restated the Statused Revolving Credit Supplement dated on or about October 5, 2007
between ABE Fairmont and Farm Credit; and (ii) that Master Loan Agreement dated as of February 17,
2006 between Farm Credit and Borrower (the “2/17/06 MLA”), as amended and supplemented by
that (1) Construction and Term Loan Supplement dated as of December 24, 2008 between Farm Credit
and ABE Fairmont, with respect to a construction and term loan in an amount not to exceed
$58,250,000, which amended and restated the Construction and Term Loan Supplement dated as of
February 17, 2006 between Farm Credit and ABE Fairmont, (2) Construction and Revolving Loan
Supplement dated as of December 24, 2008 between Farm Credit and ABE Fairmont, with respect to a
construction and revolving term loan in an amount not to exceed at any one time outstanding
$25,000,000 less the amounts scheduled to be repaid therein, which amended and restated the
Construction and Revolving Term Loan Supplement dated as of February 17, 2006 between Farm Credit
and ABE Fairmont, (3) Statused Revolving Credit Supplement dated as of February 17, 2006 between
Farm Credit and ABE Fairmont with respect to a revolving credit facility in an available amount not
to
exceed at any one time outstanding $5,000,000 as amended by the Amendment dated on or about
October 5, 2007 and




14









 




as further amended by the Revolving Credit Supplement — Letters of Credit dated
as of October 24, 2008 (4) Administrative Agency Agreement dated as of February 17, 2006 among Farm
Credit, CoBank and Borrower, ABE Fairmont, (5) Amendment to Master Loan Agreement dated as of April
11, 2006 between Farm Credit and Borrower, (6) that Security Agreement dated February 17, 2006
between Borrower and Farm Credit, and (7) that Deed of Trust and Assignment of Rents dated February
17, 2006 by Borrower in favor of Farm Credit, all of Borrower’s obligations and liabilities under
the 2/17/06 MLA, as amended, having been assumed by ABE Fairmont pursuant to Section 25 of the
11/20/06 MLA and Borrower having been discharged from its obligations under the 2/17/06 MLA, as
amended, pursuant to that letter agreement dated November 10, 2006 between Farm Credit and
Borrower, as the 2/17/06 MLA has been further amended by that (x) Amendments to the Construction
and Term Loan Supplement dated as of November 20, 2006 and on or about October 5, 2007 between Farm
Credit and ABE Fairmont and (y) Amendments to the Construction and Revolving Term Loan Supplement
dated as of November 20, 2006 and on or about October 5, 2007 between Farm Credit and ABE Fairmont,
together with all amendments, supplements, agreements, documents, exhibits, schedules and
certificates contemplated thereby or entered into in connection with any of the foregoing.




          (i) “Collateral” means the collateral security committed to Lender under the
Collateral Security Documents executed by Borrower in favor of Lender pursuant to this Restated
Note from time to time and/or pursuant to all similar or related documents and agreements from time
to time, all as amended, modified, supplemented or restated and in effect from time to time.




          (j) “Collateral Security Documents” means, individually and collectively, (1) the
Membership Interest Pledge Agreement, all financing statements filed pursuant thereto, and all
other instruments (including membership interest certificates) and documents otherwise executed
and/or delivered pursuant thereto and (2) any additional documents, including any deposit account
control agreements, granting security to Lender pursuant to this Restated Note or required or
delivered in connection with any other Loan Document, all as amended modified, supplemented or
restated and in effect from time to time.




          (k) “Default” means any event or circumstance that with the giving of notice or the
passage of time (or both) would constitute an Event of Default.




          (l) “Dollar” or “$” means U.S. dollars.




          (m) “ECM” means, collectively, Tennessee Ethanol Partners, L.P., Ethanol Capital
Management, LLC and Ethanol Investment Partners, LLC and their respective Affiliates.




          (n) “Environmental Control Statutes” means all federal, state and local laws,
statutes, rules, ordinances, regulations (as implemented and as interpreted), judgments, decrees,
orders, licenses, permits and rules governing the control, removal, storage, transportation, spill,
release or discharge of hazardous or toxic wastes, substances and petroleum products or otherwise
pertaining to the protection of human health, safety or the environment or natural resources.




          (o) “Equity Interests” means shares of capital stock, partnership interests,
membership interests or units in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or other rights entitling
the holder thereof to purchase or acquire any such equity interest.




          (p) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.





15









 








          (q) “Event of Default” means the occurrence of any one or more of the following
events: (1) if any payment of principal, interest, fees, expenses, indemnities or other sums
payable to Lender under any Loan Document is not received by Lender in immediately available funds
on the date such payment is due and payable and, except with respect to principal payments,
such failure to receive such payment in immediately available funds continues for 3 Business Days
after the due date therefor; (2) if any representation, warranty or other statement made in any
Loan Document or in any financial statement or written report provided to Lender by or on behalf of
Borrower or ABE Fairmont (or otherwise furnished in connection herewith) when made was misleading
or incorrect in any material respect; (3) if Borrower or ABE Fairmont defaults in the full and
timely performance when due of any other covenant or agreement contained in any Loan Document, and
such default remains uncured for 15 Business Days after the earlier of the date that Lender
notifies Borrower thereof or the date that Borrower or ABE Fairmont otherwise acquires knowledge or
should have acquired knowledge thereof; (4) if Borrower or ABE Fairmont fails or refuses to make
any required payment (whether as principal, interest or otherwise) with respect to any indebtedness
for borrowed money in excess of $1,000,000 (or with respect to any guaranty or reimbursement
obligation of any such indebtedness) prior to the expiration of any applicable grace period with
respect to such payment, or if any such indebtedness for borrowed money is accelerated prior to its
express maturity as a result of any default thereunder; (5) if Borrower or any of its Subsidiaries
(i) becomes insolvent, bankrupt or generally fails to pay its debts as such debts become due; or
(ii) is adjudicated insolvent or bankrupt in any Insolvency Proceeding; or (iii) admits in
writing an inability to pay its debts; or (iv) comes under the authority of a custodian, receiver
or trustee (or one is appointed for substantially all of its property); or (v) makes an assignment
for the benefit of creditors; or (vi) has commenced against it any proceeding (including any
Insolvency Proceeding) under any law related to bankruptcy, insolvency, liquidation, dissolution or
the reorganization, readjustment or release of debtors that is either not contested or if contested
is not dismissed or stayed within 60 calendar days after the commencement thereof; or (vii)
commences or institutes any proceeding (including any Insolvency Proceeding) under any law related
to bankruptcy, insolvency, liquidation, dissolution or the reorganization, readjustment or release
of debtors; or (viii) calls a meeting of creditors with a view to arranging a composition or
adjustment of debt; or (ix) by any act or failure to act that indicates consent to, approval of or
acquiescence in any of the foregoing; (6) if (i) any judgment, writ, warrant, attachment or
execution or similar process that calls for payment or presents liability in excess of $250,000 is
rendered, issued or levied against Borrower or ABE Fairmont or any of their respective properties
or assets or (ii) any final, non-appealable arbitration award that calls for payment or presents
liability in excess of $250,000 is rendered, issued or levied against Borrower or ABE Fairmont or
any of their respective properties or assets, and in either case such liability is not paid,
waived, stayed, vacated, discharged, settled, satisfied or fully bonded within 60 calendar days
after it is rendered, issued or levied; (7) (i) if the security interest or lien in any of the
Collateral with a fair market value exceeding collectively $250,000 at any time does not constitute
a legal, valid and enforceable security interest or lien in favor
of Lender or shall cease to have
the priority contemplated by the Collateral Security Documents otherwise than in accordance with
the terms thereof or with the express prior written agreement, consent or approval of Lender,
or (ii) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded
otherwise than in accordance with the terms thereof or with the express prior written agreement,
consent or approval of Lender, or any action at law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of Borrower
or any of its Subsidiaries or any of their respective equity holders, or any Governmental Authority
shall make a determination that, or issue a judgment, order, decree or ruling to the effect that,
any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the
terms thereof; (8) Borrower or any of its Subsidiaries fails to observe or perform any agreement
or condition under the CoBank Loan Documents beyond the expiration of any applicable grace
period, or any default or other event occurs (unless such default or event is waived in writing in
accordance with the terms thereof), the effect of which default or other event is to cause, or to
permit the holder or holders of the Indebtedness under the




16









 




CoBank Loan Documents to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; (9) Borrower
or any of its Subsidiaries fails to observe or perform any agreement or condition under the Wells
Fargo Documents beyond the expiration of any applicable grace period, or any other default or other
event occurs (unless such default or event is waived in writing in accordance with the terms
thereof), the effect of which default or other event is to cause, or to permit the holder or
holders of the Indebtedness under the Wells Fargo Documents to cause, with the giving of notice if
required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased
or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity; (10) so long as the Warrant is held by
Lender or any of its Affiliates, (i) any representation, warranty or other statement made in the
Warrant when made shall be misleading or incorrect in any material respect; or (ii) Borrower
defaults in the full and timely performance when due of any covenant or agreement contained in the
Warrant, and such default remains uncured for 15 Business Days after the earlier of the date that
Lender notifies Borrower thereof or the date that Borrower otherwise acquires knowledge or should
have acquired knowledge thereof; and/or (11) if a Material Adverse Effect has occurred.




          (r) “GAAP” means generally accepted accounting principles from time to time in effect,
including the statements and interpretations of the United States Financial Accounting Standards
Board, applied on a consistent basis.




          (s) “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          (t) “Hazardous Materials” includes (a) any “hazardous waste” as defined by the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.), as
amended from time to time, and regulations promulgated thereunder; or (b) any “hazardous
substance” as defined by the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. § 9601 et seq.), as amended from time to time, and regulations
promulgated thereunder; or (c) any pollutant or contaminant as defined by 42 U.S.C.
§9601(33); or (d) any toxic substance, oil or hazardous material or other chemical or
substance (including, without limitation, asbestos in any form, urea formaldehyde or
polychlorinated biphenyls) the use or presence of which is similarly regulated or prohibited by any
Environmental Control Statute.




          (u) “Heartland Entities” means, collectively, ABE Heartland, LLC, a Delaware limited
liability company, Dakota Fuels, Inc., a Delaware corporation and Heartland Grain Fuels, L.P., a
Delaware limited partnership.




          (v) “Indebtedness” of any Person means, without duplication, (1) all indebtedness of
such Person for borrowed money, and (2) all obligations of such Person for the deferred
purchase price of property or services (other than trade indebtedness, if and to the extent such
indebtedness is incurred in the ordinary course of business for value received which would be shown
as a liability on a balance sheet or are required to be set forth in the footnotes to a year-end
balance sheet, each prepared in
accordance with GAAP, and (3) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, and (4) all obligations of such Person
created or arising under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and




17









 




remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of such property),
and (5) all obligations of such Person as lessee under Capital Leases to the extent
classified as a liability on a balance sheet in accordance with GAAP, and (6) all
obligations, contingent or otherwise, of such Person under acceptance, letter of credit or similar
facilities, and (7) all obligations of such Person in respect of any interest rate or
currency swap, cap or other agreement or arrangement designed to provide protection against
fluctuations in interest or currency exchange rates, and (8) all Indebtedness of others
referred to in clauses (1) through (7) above or clause (9) below guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or indirectly by such Person to
assure a creditor against loss, and (9) all Indebtedness referred to in clauses (1) through
(8) above of another Person secured by (or for which the holder of such debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including, without limitation,
accounts, contract rights or inventory) owned by such Person, even though such Person has not
assumed or become liable for the payment of such debt; provided that Indebtedness of any
Subsidiary of Borrower other than ABE Fairmont shall not be deemed to be Indebtedness of Borrower
solely as a result of a non-recourse pledge by Borrower of its Equity Interest in such Subsidiary
and/or its intercompany receivables from such Subsidiary in order to secure such Indebtedness,
and (10) the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing product to which
such Person is a party, where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP, and (11) all
payment obligations of such Person to former owners of businesses which were acquired by such
Person which are in the nature of deferred purchase price or earn-out. For the purposes of the
Agreement, the term “Indebtedness” shall exclude any effects of the application of FASB 150.




          (w) “Insolvency Proceeding” means (1) any case, action or proceeding before any court
or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (2) any general assignment
for the benefit of creditors, composition, marshalling of assets for creditors or other, similar
arrangement in respect of its creditors generally or any substantial portion of its creditors, in
each of case (1) and (2) undertaken under federal, state or foreign law, including the Bankruptcy
Code.




          (x) “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), reversionary or reclamation
interest, charge against or interest in property to secure payment of a debt or performance of an
obligation or other priority or preferential arrangement of any kind or nature whatsoever.




          (y) “Loan Documents” means this Restated Note, the Control Agreement, the GSB
Instruction Letter, the Nebraska Instruction Letter, the Collateral Security Documents and all
other documents, agreements and certificates (inclusive of all schedules and exhibits thereto) from
time to time entered into or delivered in connection herewith or therewith or pursuant hereto or
thereto, all as may be amended, modified and supplemented from time to time.




          (z) “Material Adverse Effect” means, relative to any occurrence of whatever nature, a
change that has, causes or could reasonably be expect to have or cause a material adverse change to
or a materially adverse effect on: (1) the business, assets, revenues, financial condition,
operations or prospects of Borrower, or of Borrower and its Subsidiaries, taken as a whole, (2) the
ability of Borrower or any of its Subsidiaries to perform any of its payment obligations when due
or to perform any other
material obligations under any Loan Document or (3) any right, remedy, benefit or collateral
in favor of Lender under any Loan Document.




          (aa) “Maturity Date” has the meaning set forth in Section 2.




18









 








          (bb) “Net Cash Proceeds” means the cash proceeds or, with respect to non-cash
transactions, the cash equivalent of the fair market value of any equity or debt issuance, asset
disposition or asset condemned or subject to insurance proceeds in each case net of (as applicable)
(1) reasonable commissions and expenses actually paid to unrelated third parties in connection with
such transaction, (2) taxes actually due from Borrower as a direct result of such transaction and
(3) in the case of asset dispositions, commercially reasonable reserves established in respect of
post-closing purchase price adjustments and indemnification and other contingent liabilities
arising in connection with such asset dispositions.




          (cc) “Note” means this Secured Term Loan Note as amended, modified, renewed, extended
and/or restated from time to time in accordance with the terms hereof.




          (dd) “Obligations” means all loans, advances, debts, liabilities and obligations
(including reimbursement obligations), for monetary amounts owing by Borrower to Lender, whether
due or to become due, matured or unmatured, liquidated or unliquidated, contingent or
non-contingent, of any kind or nature, present or future, arising under or in respect of this
Restated Note or any of the other Loan Documents. This term includes all principal, interest
(including all interest that accrues after the commencement against Borrower of any Insolvency
Proceeding under the Bankruptcy Code), reasonable fees, including any and all arrangement fees,
delivery fees, loan fees, commitment fees, agent fees and any and all other reasonable fees,
expenses, costs or other sums (including reasonable attorneys fees) chargeable to Borrower under
any of the Loan Documents.




          (ee) “Organizational Documents” means, relative to any entity, its certificate or
articles of incorporation or organization or formation, its by-laws or operating agreements, and
all equityholder agreements, voting agreements and similar arrangements applicable to any of its
authorized shares of capital stock, its partnership interests or its member interests, and any
other arrangements relating to the control or management of any such entity.




          (ff) “Paid in Full” and “Payment in Full” mean, with respect to the
Obligations, all amounts owing with respect thereto (including any interest accruing thereon after
the commencement of any Insolvency Proceeding against Borrower, whether or not allowed as a claim
against Borrower in such Insolvency Proceeding, but excluding as yet unasserted contingent
obligations), have been fully, finally and completely paid in cash.




          (gg) “Person” means any natural person, corporation, limited liability company,
partnership, firm, association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.




          (hh) “Prior Warrant” means the Warrant to Purchase Units of Borrower, dated October
17, 2007 and numbered No. 1 issued by Borrower to Lender.




          (ii) “Subsidiary” of any Person or entity means any Person as to which such other
Person or entity (1) directly or indirectly owns, controls or holds 50% or more of the outstanding
beneficial interest or (2) is otherwise required in accordance with GAAP to be considered as part
of a
consolidated organization. Notwithstanding the foregoing, the Heartland Entities shall not be
“Subsidiaries” for purposes of this Restated Note or any of the other Loan Documents.




          (jj) “Tax Distributions” means any dividend or distribution paid in accordance with
Section 11(k) to any holder of membership interests of Borrower to the extent that such
funds are distributed to provide cash or other assets to such holder in order to pay such holder’s
federal, state and




19









 




local income tax liabilities for such year (determined based upon a combined
marginal rate of 40%) that is directly attributable to such holder as a direct result of the amount
of income and gain (net of allowable deductions, losses and credits) of Borrower.




          (kk) “Warrant” means the Warrant to Purchase Units of Borrower, dated as of the date
hereof and numbered No. 2 issued by Borrower to Lender.




          (ll) “Wells Fargo Loan Documents” means, collectively, (i) that Loan and Trust
Agreement dated as of April 1, 2006 (the “4/1/06 Loan Agreement”) among Borrower, County of
Fillmore, State of Nebraska, as issuer (“Issuer”), and Wells Fargo Bank, N.A., as trustee
(“Trustee”), as Borrowers obligations and liabilities under the 4/1/06 Loan Agreement have
been assigned to and assumed by ABE Fairmont pursuant to that Assignment and Assumption Agreement
dated as of November 14, 2006 among Borrower, ABE Fairmont, Issuer and Trustee, (ii) that
Promissory Note dated April 27, 2007 among Borrower, issuer and Trustee, (iii) that Subordinate
Deed of Trust and Construction Security Agreement by Borrower in favor of Trustee, (iv) that Tax
Regulatory Agreement dated as of April 27, 2006 from Borrower and Issuer to Trustee and (v) that
Continuing Disclosure Agreement as of dated April 1, 2006 between Borrower and Trustee, together
with all amendments, supplements, agreements, documents, exhibits, schedules and certificates
contemplated thereby or entered into in connection with any of the foregoing.




     14. Selected Rights and Remedies Upon Event of Default. Upon the occurrence and
during the continuation of any Event of Default, with notice thereof to Borrower (unless an
Event of Default described in clause (5) of the definition of “Event of Default” has occurred, in
which case acceleration will occur automatically with respect to the entire indebtedness and
without any notice), Lender may declare all or any portion of the indebtedness under any Loan
Document to be immediately due and payable. Upon the occurrence and during the continuation of any
Event of Default, Lender shall have the immediate right to enforce and realize upon any collateral
security (including all or any portion of the Collateral) for the Obligations hereunder in any
manner or order that Lender deems expedient without regard to any equitable principles of
marshalling or otherwise. Lender shall have and be entitled to all of the rights, remedies,
benefits and powers of enforcement with respect hereto that are available to a holder of a
negotiable instrument under Article 3 of the Uniform Commercial Code, and any subsequent transferee
of Lender shall have and be entitled to all of the rights, remedies, benefits and powers of
enforcement with respect hereto that are available to a holder in due course of a negotiable
instrument under Article 3 of the Uniform Commercial Code (provided that such transferee
acquired this Restated Note in good faith, for value and without actual notice of a claim or
defense hereunder by Borrower). In addition to any rights granted hereunder or in any other Loan
Document, Lender shall also have all other rights and remedies permissible under any applicable law
(including creditor rights and the rights of a secured party under the Uniform Commercial Code),
and all such rights and remedies shall be cumulative in nature.



     15. Indemnification, Reliance and Assumption of Risk. Without limiting any other
indemnification in any Loan Document, Borrower hereby agrees to defend Lender (and its directors,
officers, employees, agents, representatives, counsels and Affiliates) (each an
“Indemnitee”) from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages, interests, judgments,
or costs (including reasonable fees and disbursements of counsel) incurred by any of them
arising out of or in any way connected with any Loan Document, except for losses resulting directly
from such Person’s own gross negligence or willful misconduct. Expenses (including, without
limitation, reasonable attorneys’ fees and expenses) incurred by an Indemnitee shall be paid in
advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking
from such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee
is not entitled to indemnification.



20









 







Borrower’s obligations provided for in this Section 15
will survive any termination of this Agreement, and the repayment of the outstanding balances
hereunder. Without limiting the generality of the foregoing, Borrower hereby agrees to indemnify,
defend and hold harmless each Indemnitee from and against, any and all losses, liabilities, claims,
damages (including, without limitation, natural resource damages), interests, judgments, fines,
penalties, liens or costs (including reasonable fees and disbursements of counsel and consultants)
resulting from or relating to any of the following: (1) the storage, holding, existence,
migration, release (as defined by CERCLA), threat of release, disposal, treatment, generation,
processing, abatement, handling or transportation of any Hazardous Materials (collectively
“Environmental Activity”) at, on, under, from or in the vicinity of any property presently
or formerly owned, leased or operated by Borrower; and (2) any violation or alleged
violation of Environmental Control Statutes by Borrower at any property presently or formerly
owned, leased or operated by Borrower; and (3) any investigation, inquiry, notice, order
(including consent orders, agreements and decrees), hearing, action, proceeding, demand, directive,
fine, penalty, lien or claim instituted, asserted or threatened by any Person in connection with
any Environmental Activity or Environmental Control Statute relating to Borrower or any portion of
any property presently or formerly owned, leased or operated by Borrower; and (4) any
off-site transportation, treatment, storage or disposal or Hazardous Materials generated at or
transported from any property presently or formerly owned, leased or operated by Borrower.



     16. Selected Waivers and Consents by Borrower. Borrower hereby waives diligence,
presentment, protest, demand for payment, notice of protest and non-payment, notice of dishonor,
and any and all other notices or demands in connection with the delivery, acceptance, payment,
performance, default, acceleration or enforcement of this Restated Note. Borrower, in addition,
hereby consents (without the necessity of prior notice) to any extensions of time, renewals,
releases of any party hereto or guarantor hereof, waivers and/or modifications in connection
herewith that may be granted or consented to by Lender from time to time. Borrower also waives any
defenses (other than the defense of full unconditional payment) and rights of discharge to its
obligations hereunder that it may have or may hereafter acquire based upon suretyship or impairment
of collateral (including lack of attachment or perfection with respect thereto).



     17. Waivers by Lender and Severability. To be effective, any waiver by Lender must be
expressed in a writing executed by Lender. If Lender waives any term, right or remedy arising
hereunder or under any applicable law, then such waiver will not be deemed to be a waiver (1) upon
any later occurrence or recurrence of any events giving rise to the earlier waiver or (2) as to any
other Person. No failure or delay by Lender to insist upon the strict performance of any Loan
Document, or to exercise any right or remedy, will constitute a waiver of compliance with any term,
condition, covenant or agreement, or preclude Lender from exercising any right, power, or remedy at
any later time or times. By accepting payment after the due date of any amount payable under any
Loan Document, Lender will not be deemed to waive the right either to require prompt payment when
due of all other amounts payable under any Loan Document or to declare an Event of Default for
failure to effect such prompt payment of any such other amount. If fulfillment of any provision
hereof at the time performance is due involves transcending the limit of validity prescribed by
applicable law, then (ipso facto) the obligation to be fulfilled shall be reduced to the limit of
such validity. If any clause or provision hereof operates or would prospectively operate to
invalidate this Restated Note in whole or in part, then such clause or provision only shall be
void (as though not contained herein), and the remainder of this Restated Note shall remain
operative and in full force and effect; provided, however, if any such clause or
provision pertains to the repayment of any indebtedness hereunder, then the occurrence of any such
invalidity shall constitute an immediate Event of Default hereunder.



21









 





     18. Reinstatement. To the maximum extent not prohibited by applicable law, this
Restated Note (and the Obligations hereunder and Collateral therefor) will be automatically
reinstated and the indebtedness correspondingly increased (as though such payments had not been
made) if at any time any amount received by Lender in respect hereof is rescinded or must otherwise
be restored, refunded or returned by Lender to Borrower or other Person for any reason, including
(a) as a result of the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Person, or (b) as a result of the appointment of any receiver, intervenor, conservator, trustee or
similar official for any Person or for any part of the assets of any Person.



     19. Assignability. Borrower shall not assign or delegate any of its obligations,
duties, rights or benefits hereunder or under any other Loan Document without the prior written
consent of Lender. Lender (and its successors or assigns), at any time and from time to time, may
assign, transfer, participate, syndicate, delegate and/or pledge all or any part of its
obligations, duties, rights and benefits under this Restated Note and the other Loan Documents
without the consent of Borrower.



     20. Conflicts Among Loan Documents. In the event of any irreconcilable conflict
between the terms and conditions of this Restated Note and the terms and conditions of any other
Loan Document, then the terms and conditions of this Restated Note shall govern.



     21. Relationship with Prior Agreements. This Restated Note, together with the other
Loan Documents and the Warrant and that side letter agreement dated August 20, 2009 between
Borrower and Lender, completely and fully supersedes all oral agreements and all other and prior
written agreements by and among Borrower and Lender concerning the terms and conditions of this
credit arrangement.



     22. Severability. If fulfillment of any provision of or any transaction related to
any Loan Document at the time performance is due involves transcending the limit of validity
prescribed by applicable law, then ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity. If any clause or provision of this Agreement operates or would
prospectively operate to invalidate this Agreement or any other Loan Document in whole or in part,
then such clause or provision only shall be void (as though not contained herein or therein), and
the remainder of this Agreement or such other Loan Document shall remain operative and in full
force and effect; provided, however, if any such clause or provision pertains to
the repayment of any indebtedness hereunder, then the occurrence of any such invalidity shall
constitute an immediate Event of Default hereunder.



     23. No Fiduciary Relationship. No provision in the Loan Documents and no course of
dealing between the parties shall be deemed to create any fiduciary duty owing to Borrower or any
of its Affiliates by Lender and Lender shall not be deemed to be a partner, joint venturer or
co-venturer with Borrower by reason of this Agreement or the transaction contemplated hereunder.



     24. Secured Note. The full amount of this Restated Note is secured by the Collateral
identified and described as security therefor in the Collateral Security Documents and the other
Loan Documents.



     25. Notices. Any notice or other communication required or permitted in connection
with the Loan Documents will be deemed satisfactorily given if it is in writing and is delivered
either
personally to the addressee thereof, or by prepaid registered or certified U.S. mail (return
receipt requested), or by a nationally recognized commercial courier service with next-day delivery
charges prepaid, or by facsimile (voice confirmed), or by any other reasonable means of personal
delivery to the party entitled thereto at its respective address set forth below:



22









 





	 	 	 	 	 
	 

	 	If to Borrower:
	 	Advanced BioEnergy, LLC
	 

	 	 	 	10201 Wayzata Blvd., Suite 250
	 

	 	 	 	Minneapolis, MN 55305
	 

	 	 	 	Attn: Richard Peterson
	 

	 	 	 	Facsimile No.: (763) 226-2728
	 
	 	 	 	 
	 

	 	If to Lender:
	 	PJC Capital LLC
	 

	 	 	 	c/o Piper, Jaffray & Co.
	 

	 	 	 	800 Nicollet Mall
	 

	 	 	 	Minneapolis, MN 55402-7020
	 

	 	 	 	Attention: Robert P. Rinek
	 

	 	 	 	Facsimile: (612) 303-1068





Any party to a Loan Document may change its address or other contact information for notice
purposes by giving notice thereof to the other parties to such Loan Document in accordance with
this Section 25, provided that such change shall not be effective until 2 calendar days
after notice of such change. All such notices and other communications will be deemed given and
effective (a) if by mail, then upon actual receipt or 5 calendar days after mailing as
provided above (whichever is earlier), or (b) if by facsimile, then upon successful
transmittal to such party’s designated number, or (c) if by nationally recognized
commercial courier service, then upon actual receipt or 2 Business Days after delivery to
the courier service (whichever is earlier), or (d) if otherwise delivered, then
upon actual receipt.




     26. Jurisdictional and Related Consents. Any litigation in any way related to this
Restated Note, or any course of conduct, course of dealing, statements (whether verbal or written),
actions or inactions of Lender or Borrower may be brought and maintained, on a non-exclusive basis,
in the courts of the State of New York or in the United States District Court for the Southern
District of New York; provided, however, that any suit seeking enforcement hereof
against Borrower or any property may also be brought (at Lender’s option) in the courts of any
other jurisdiction where such property may be found or where Borrower may be subject to personal
jurisdiction. Borrower hereby expressly and irrevocably submits to the jurisdiction of the courts
of the State of New York and of the United States District Court for the Southern District of New
York for the purpose of any such litigation as set forth above and irrevocably agrees to be bound
by any final and non-appealable judgment rendered thereby in connection with such litigation.
Borrower further irrevocably consents to the service of process by registered or certified mail,
postage prepaid, or by personal service within or outside the State of New York. Borrower hereby
expressly and irrevocably waives (to the fullest extent permitted by law) any objection that it at
any time may have to the laying of venue of any such litigation brought in any such court referred
to above and any claim that any such litigation has been brought in an inconvenient forum.



     27. Jury Trial Waiver. Lender and Borrower each hereby knowingly, voluntarily and
intentionally waives any rights it may have to a trial by jury in respect of any litigation
(whether as claim, counter-claim, affirmative defense or otherwise) in any way related to this
Restated Note or any of the Loan Documents or any course of conduct, course of dealing, statements
(whether verbal or written), actions or inactions of Lender or Borrower.



23









 





     28. Governing Law and Binding Effect. This Restated Note and the other Loan Documents
are binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns. This Restated Note and the other Loan Documents are governed as to their validity,
interpretation, construction and effect by the laws of the State of New York (without giving effect
to the conflicts of law rules of such state).



[Balance of Page Intentionally Blank     Signatures on Next Page]




24









 





     IN WITNESS WHEREOF, Borrower has executed this Amended and Restated Secured Term Loan Note on
the day and year first written above.



	 	 	 	 	 
	 	BORROWER:



ADVANCED BIOENERGY, LLC

 	 
	 	By:  	/s/ Richard Peterson	 
	 	 	Name:  	Richard Peterson	 
	 	 	Title:  	President, Chief  Executive Officer, 

Chief Financial Officer and 

Vice President of Accounting and Finance 	 
	 



	 	 	 	 
	ACCEPTED:



PJC CAPITAL LLC

 	 
	By:  	/s/ Robert P. Rinek	 
	 	Robert P. Rinek 	 
	 	Co-President and Co-Chief  Operating

Officer 	 
	 



AMENDED AND RESTATED SECURED TERM LOAN NOTE SIGNATURE PAGE





 









 





Exhibit A




GSB Instruction Letter




2









 





[ABE LETTERHEAD]




[                    ], 2009




     Reference is made to the Irrevocable Standby Letter of Credit dated March 31, 2008 in the
stated face amount of $2,500,000 issued by Geneva State Bank (“GSB”) for the account of Advanced
BioEnergy, LLC (“ABE”) and for the benefit of WestLB AG, New York Branch, which expires of March
31, 2010 (the “GSB Letter of Credit”).



     ABE’s reimbursement obligation under the GSB Letter of Credit is secured by cash collateral in
the amount of $2,500,000 plus accrued interest (the “GSB Letter of Credit Cash Collateral”) in a
deposit account with GSB (the “GSB Deposit Account”).



     ABE hereby requests and directs GSB, and by signing below hereto GSB acknowledges and agrees,
GSB shall remit any and all GSB Letter of Credit Cash Collateral from time to time released by GSB
from the GSB Deposit Account, whether upon expiration of the GSB Letter of Credit or otherwise, to
ABE by wire transfer to ABE’s blocked account (account number 1-523-0777-2839) maintained at U.S.
Bank, N.A. according to the following wire instructions:



	 	 	 
	Bank:

	 	U.S. Bank, N.A.
	ABA No.:

	 	 081000210
	Account No.:

	 	 1-523-0777-2839
	Account Name:

	 	Advanced BioEnergy/PJC Blocked Account
	Contact:

	 	Shawn F. Christian, (314) 418-2191






     GSB shall not disburse the GSB Letter of Credit Cash Collateral to any account or person or
entity other than to ABE at the Blocked Account in accordance with the above instructions without
the prior written consent of PJC Capital LLC, as the holder of secured debt obligations of ABE and
a beneficiary of these payment instructions.



	 	 	 	 	 
	 	Sincerely,
 

ADVANCED BIOENERGY, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Agreed and Acknowledged:




GENEVA STATE BANK




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 




















 





Exhibit B




Nebraska Instruction Letter




3









 





[ABE LETTERHEAD]




[                    ], 2009




     Reference is made to the Nebraska Advantage Act Project Agreement dated as of August 13, 2007
between Advanced BioEnergy, LLC (“ABE”) and the State of Nebraska, by and through its Tax
Commissioner (the “NAA Agreement”).



     Pursuant to the NAA Agreement, ABE expects to receive certain payments and credits for various
tax and other related investment and employment credits and incentives (the “NAA Payments”) from
the State of Nebraska Department of Revenue (the “Nebraska DOR”).



     ABE hereby requests and directs the Nebraska DOR to remit any and all NAA Payments made from
time to time to ABE by wire transfer to ABE’s account (account number 1-523-0777-2839) maintained
at U.S. Bank, N.A. according to the following wire instructions:



	 	 	 
	Bank:
	 	U.S. Bank, N.A.
	ABA No.:
	 	 081000210
	Account No.:
	 	 1-523-0777-2839
	Account Name:
	 	Advanced BioEnergy/PJC Account
	Contact:
	 	Shawn F. Christian, (314) 418-2191






	 	 	 	 	 
	 	Sincerely,



ADVANCED BIOENERGY, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 

















 





Exhibit C




ABE Fairmont Instruction Letter





4











 





[ABE LETTERHEAD]




[                    ], 2009




     Reference is made to the Master Loan Agreement dated as of November 20, 2006 between Farm
Credit Services of America, FLCA and ABE Fairmont, LLC (“ABE Fairmont”) as amended by an Amendment
dated on or about October 5, 2007 and an amendment dated as of December 24, 2008, and as further
supplemented (the “11/20/06 MLA”) and to the Amended and Restated Secured Term Loan Note dated as
of [                    ], 2009 in the original principal amount of $[                    ] (the “Restated Note”), made
by Advanced BioEnergy, LLC (“ABE”) in favor of PJC Capital LLC (“PJC”).



     If “net profit” (as defined in Section 10(K) of the 11/20/06 MLA) is a positive number, and so
long as such distribution is permitted by the CoBank Loan Documents (as defined in the Restated
Note), the Restated Note provides that ABE shall cause ABE Fairmont to pay forty percent (40.0%) of
such net profit (or if less than sixty percent (60.0%) of the net profit is required by the CoBank
Loan Documents to be retained by ABE Fairmont, than such greater percentage as is not required to
be retained) (each such payment, an “ABE Fairmont Distribution”) no later than the date that the
audited financial statements of ABE Fairmont for such fiscal year are delivered to CoBank (as
defined in the Restated Note) directly to PJC, as the holder of the Restated Note and a beneficiary
of these payment instructions.



     ABE hereby requests and directs ABE Fairmont, and by signing below hereto ABE Fairmont
acknowledges and agrees, ABE Fairmont shall remit any and all ABE Fairmont Distributions from time
to time to PJC by wire transfer to PJC’s account (account number 1-523-0777-2839) maintained at
U.S. Bank, N.A. (the “PJC Account”) according to the following wire instructions:



	 	 	 
	Bank: 


ABA No.:

	 	U.S. Bank, N.A. 

081000210
	Account No.:

	 	1-523-0777-2839
	Account Name:

	 	Advanced BioEnergy/PJC Capital LLC
	Contact:

	 	Shawn F. Christian, (314) 418-2191






     ABE Fairmont shall not disburse any ABE Fairmont Distribution to any account or person or
entity other than to PJC at the PJC Account in accordance with the above instructions without the
prior written consent of PJC.



	 	 	 	 	 
	 	Sincerely,



ADVANCED BIOENERGY, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Agreed and Acknowledged:




ABE FAIRMONT, LLC




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title: