Advanced BioEnergy, LLC (Form: 8-K, Received: 04/08/2010 16:15:19)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

April 7, 2010

Date of report (Date of earliest event reported)

ADVANCED BIOENERGY, LLC

(Exact Name of Registrant as Specified in its Charter)


Delaware	000-52421	20-2281511

(State of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)


10201 Wayzata Boulevard, Suite 250
Minneapolis, Minnesota		55305

(Address of principal executive offices)		(Zip Code)

Telephone Number: (763) 226-2701

(Registrant’s Telephone Number, Including Area Code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into Material Definitive Agreement

Heartland Grain Fuels, L.P. Restructuring Transaction

As previously reported on a Form 8-K dated as of October 9, 2007, Heartland Grain Fuels, L.P. (“HGF”), a subsidiary of Advanced BioEnergy, LLC (the “Company”), is a borrower under (a) that certain Senior Credit Agreement dated as of October 1, 2007, among HGF, as Borrower, the Lenders referred to therein and WestLB AG, New York Branch, as Administrative Agent for the Lenders (the “Administrative Agent”) (as amended prior to the date hereof, the “Senior Credit Agreement”), and (b) those certain Subordinate Solid Waste Facilities Revenue Bonds (Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A issued by Brown County, South Dakota under that certain Bond Trust Indenture, dated as of October 1, 2007 (the “Bonds” and together with the Senior Credit Agreement, the “HGF Debt”).

As previously reported, HGF has not made its scheduled principal and interest payments on its $88.0 million senior credit facility under the Senior Credit Agreement or interest payments on its outstanding $7.1 million working capital line under the Senior Credit Agreement since October 2008 during which time it has been operating under a bank suspension. In February 2009, HGF entered into a forbearance agreement with the Administrative Agent that expired on March 31, 2009, after which the Administrative Agent, disclosed its intent to foreclose on 100% of the Company’s equity interest in HGF. In September 2009, HGF’s senior lenders commenced discussions with the Company to explore alternatives to foreclosing on the Company’s equity interest in HGF, including a restructuring (the “Restructuring”) of the terms of the HGF Debt.

A. Lock-Up and Voting Agreement

Effective April 7, 2010 the Company entered into a Lock-Up and Voting Agreement (the “Lock-Up Agreement”) dated March 31, 2010, with HGF and certain lenders holding senior secured notes issued pursuant to the Senior Credit Agreement (the “Senior Secured Lenders”) and Oppenheimer Rochester National Municipals, as the sole holder of the Bonds (the “Bondholder”). The Lock-Up Agreement provides that the Restructuring would be effected either by (a) approval of the Restructuring by all the Senior Secured Lenders pursuant to a restructuring agreement among HGF and the Senior Secured Lenders (the “Contractual Restructuring”) or (b) if such contractual approval is not obtained, a voluntary petition commencing a prepackaged or prenegotiated case under Chapter 11 of the United States Bankruptcy Code (a “Chapter 11 Restructuring”).

The Lock-Up Agreement requires the parties to use commercially reasonable efforts to consummate the Restructuring, including entering into a restructuring agreement (which may be in the form of a plan of reorganization in the event of a Chapter 11 Restructuring), consistent with the terms and conditions attached to the Lock-Up Agreement filed herewith as Exhibit 10.1. The terms of the Restructuring require, among other things, (1) that the Company contribute $10 million plus $2.25 million in cash to HGF, (2) HGF to apply the $10 million, plus $5 million of its cash reserves, to pay toward the obligations under the Senior Credit Agreement and HGF to pay the Senior Secured Lenders a fee of $10,000 per day until the closing, beginning on April 1, 2010, which shall accrue and be payable in full at the closing, (3) HGF to apply the $2.25 million contributed by the Company to the Bondholder in full satisfaction of the debt owed under the Bonds and a release and discharge of the Bonds and all related agreements, (4) payment of a $3 million restructuring fee from HGF to the Senior Secured Lenders due at the earlier of the final maturity date and the date on which the loans are repaid in full, (5) that HGF and the Senior Secured Lenders enter into certain amendments to the Senior Credit Agreement, including, among other things, an extension of the final maturity date, revisions to the interest rates applicable to the loans and the repayment schedule and a reduction of interest accrued through the closing on outstanding term and working capital loans to zero, and (6) HGF to convert to a Delaware limited liability company at or prior to the closing. The terms of the Restructuring also require that the revenue of HGF be applied in a particular order after the Restructuring, including to fund a debt service reserve account and a working capital reserve account, with equity distributions (other than certain tax distributions) being permitted only upon HGF meeting certain financial conditions and if there is no more than $25 million of principal outstanding on the HGF Debt. The terms and conditions of the Restructuring also provide for a management agreement between the Company and HGF, pursuant to which the Company will provide management services to HGF for $80,000 per month for the first twelve months after the Restructuring, and for each month thereafter, at two cents per gallon of ethanol produced by HGF.

The obligations of the Bondholder and the Senior Secured Lenders under the Lock-Up Agreement terminate if there is a Contractual Restructuring, the Restructuring does not occur within 55 days after the effective date of the Lock-Up Agreement, if there is a Chapter 11 Restructuring, the Restructuring does not occur on or before July 9, 2010, if HGF does not file for Chapter 11 by April 26, 2010, or if the Restructuring is consummated.

B. Backstop Commitment Agreement

On April 7, 2010, in connection with the Restructuring, the Company also entered into a Backstop Commitment Agreement (the “Backstop Commitment Agreement”) with Hawkeye Energy Holdings, LLC (“Hawkeye”), pursuant to which Hawkeye has committed to purchase in a private placement its pro rata share of up to $10 million in units at $1.50 per unit, as well as any additional offered units which are not purchased in the private placement. The Backstop Commitment Agreement requires that the Company, as promptly as practicable, commence an offering of newly issued units pursuant to a private placement under Regulation D of the Securities Act.

As a condition to the obligation of Hawkeye to purchase the units, the Company must, among other things, (1) enter into a registration rights agreement with respect to any units purchased by Hawkeye with substantially the same terms as the registration rights granted to Hawkeye pursuant to that certain Registration Rights Agreement, dated August 28, 2009, between the Company and Hawkeye, (2) grant Hawkeye enforceable pro-rata participation rights and anti-dilution rights with respect to any units purchased by Hawkeye substantially similar to those granted to Hawkeye in that certain Side Letter dated as of August 21, 2009 executed by Advanced BioEnergy, LLC in favor of Hawkeye, (3) agree that the ethanol marketing agreements and distillers grain marketing agreement further described below shall become effective no later than six months following the date of the Backstop Commitment Agreement, (4) complete the Restructuring before or simultaneous to the Hawkeye investment and (5) secure the approval of the Company’s unitholders to an amendment to the Company’s operating agreement to permit the issuance of additional units in the private offering.

The references herein to a possible private offering are made pursuant to Rule 135c under the Securities Act and are neither an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any state.

C. Exclusive Ethanol Marketing Agreements and Distillers Grains Marketing Agreement

Simultaneous with the execution of the Backstop Commitment Agreement, HGF entered into Exclusive Ethanol Marketing Agreements (the “Ethanol Agreements”) and a Distillers Grains Marketing Agreement with Hawkeye Gold, LLC (“Gold”). Gold is an affiliate of Hawkeye. It is anticipated that these agreements will become effective no later than six months following the date of the Backstop Commitment Agreement.

The Ethanol Agreements provide that HGF agrees to sell and Gold agrees to purchase substantially all of the denatured fuel grade ethanol produced at the South Dakota plants. The Ethanol Agreements require, among other things, (1) that the purchase and sale of ethanol under the Ethanol Agreements must be in the form of either a direct fixed price purchase order, a direct index price purchase order, a terminal storage purchase order, or a transportation swap or similar transaction that is mutually acceptable to the parties, (2) that HGF will pay any replacement or other costs incurred by Gold as a result of any failure to deliver by HGF, and (3) that, with certain exceptions, HGF will sell ethanol it produces exclusively to Gold. The initial term of the agreement is for three years, and provides for automatic renewal for successive one year terms unless either party provides written notice of nonrenewal at least 180 days prior to the end of any term.

The Distillers Grains Marketing Agreement provides that HGF agrees to sell and Gold agrees to purchase substantially all of the dried distillers grains and the wet distillers grains produced at the Aberdeen, South Dakota plant. The Distillers Grains Marketing Agreement requires, among other things, (1) that Gold shall submit purchase orders or purchase contracts to HGF for the purchase and sale of distillers grains at the Aberdeen plant, (2) that Gold may reject any delivery that fails to conform with quality standards required for resale as animal feed or is otherwise unsaleable and that HGF will reimburse Gold for all costs for storing, transporting, disposing of or otherwise handling rejected grains and (3) that, with certain exceptions, HGF will sell distillers grains it produces at its Aberdeen plant exclusively to Gold.

The initial term of the agreement is for three years, and provides for automatic renewal for successive one year terms unless either party provides written notice of nonrenewal at least 180 days prior to the end of any term.

C. Amendment No. 1 to the Voting Agreement

As previously reported, the Company entered into an Amended and Restated Voting Agreement (the “Voting Agreement”) with Hawkeye, Ethanol Investment Partners, LLC, South Dakota Wheat Growers and certain of the Company’s directors on August 28, 2009. In connection with the Restructuring and the execution of the Backstop Commitment Agreement, the parties to the Voting Agreement, along with certain other investors, amended the Voting Agreement to require that the parties thereto also agree to vote all units of the Company they beneficially own, hold of record or otherwise control at any time in favor of an amendment to the Company’s operating agreement which will, among other things, eliminate restrictions on the number of authorized units of the Company. As of the date hereof, the parties to the Voting Agreement, including those investors added in the amendment, hold in the aggregate approximately 49.9% of the outstanding units of the Company.

The descriptions of the Lock-Up Agreement, Backstop Commitment Agreement, the Distillers Grains Marketing Agreement, the Ethanol Agreements and Amendment No. 1 to the Voting Agreement do not purport to be complete and are qualified in their entirety by reference to these agreements, which are filed as Exhibits 10.1 — 10.6 to this report and incorporated by reference herein.

Item 9.01 Financial Statements and Exhibits.


Exhibit No.		Description
10.1		Lock-Up and Voting Agreement dated as of March 31, 2010 (effective April 7, 2010) among Marshall Financial Group, LLC, Banco Santander, S.A., New York Branch, Farm Credit Bank of Texas, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch, KEB NY Financial Corp., Nordkap Bank AG, WestLB AG, New York Branch, Heartland Grain Fuels, L.P., the Company and Oppenheimer Rochester National Municipals

10.2		Backstop Commitment Agreement dated as of April 7, 2010 between the Company and Hawkeye Company Holdings, LLC

10.3		Exclusive Ethanol Marketing Agreement (Aberdeen, South Dakota plant) dated as of April 7, 2010 between Hawkeye Gold, LLC and Heartland Grain Fuels, L.P.

10.4		Exclusive Ethanol Marketing Agreement (Huron, South Dakota plant) dated as of April 7, 2010 between Hawkeye Gold, LLC and Heartland Grain Fuels, L.P.

10.5		Distillers Grains Marketing Agreement (Aberdeen, South Dakota plant) dated as of April 7, 2010 between Hawkeye Gold, LLC and Heartland Grain Fuels, L.P.

10.6		Amendment No. 1 to Voting Agreement dated as of April 7, 2010 among the Company, Hawkeye Energy Holdings, LLC, Ethanol Investment Partners, LLC, Ethanol Capital Partners, Series R, LP, Ethanol Capital Partners, Series T, LP, Tennessee Ethanol Partners, LP, South Dakota Wheat Growers Association and the directors of the Company party thereto

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


Date: April 8, 2010	ADVANCED BIOENERGY, LLC
	By:	/s/ Richard R. Peterson
		Richard R. Peterson
		Chief Executive Officer, President and Chief Financial Officer

EXHIBIT INDEX


Exhibit
No.		Description	Manner of Filing
	10.1	Lock-Up and Voting Agreement dated as of March 31, 2010 (effective as of April 7, 2010) among Marshall Financial Group, LLC, Banco Santander, S.A., New York Branch, Farm Credit Bank of Texas, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch, KEB NY Financial Corp., Nordkap Bank AG, WestLB AG, New York Branch, Heartland Grain Fuels, L.P., the Company and Oppenheimer Rochester National Municipals	Filed Electronically

	10.2	Backstop Commitment Agreement dated as of April 7, 2010 between the Company and Hawkeye Company Holdings, LLC	Filed Electronically

	10.3	Exclusive Ethanol Marketing Agreement (Aberdeen, South Dakota plant) dated as of April 7, 2010 between Hawkeye Gold, LLC and Heartland Grain Fuels, L.P.	Filed Electronically

	10.4	Exclusive Ethanol Marketing Agreement (Huron, South Dakota plant) dated as of April 7, 2010 between Hawkeye Gold, LLC and Heartland Grain Fuels, L.P.	Filed Electronically

	10.5	Distillers Grains Marketing Agreement (Aberdeen, South Dakota plant) dated as of April 7, 2010 between Hawkeye Gold, LLC and Heartland Grain Fuels, L.P.	Filed Electronically

	10.6	Amendment No. 1 to Voting Agreement dated as of April 7, 2010 among the Company, Hawkeye Energy Holdings, LLC, Ethanol Investment Partners, LLC, Ethanol Capital Partners, Series R, LP, Ethanol Capital Partners, Series T, LP, Tennessee Ethanol Partners, LP, South Dakota Wheat Growers Association and the directors of the Company party thereto	Filed Electronically

Exhibit 10.1

LOCK-UP AND VOTING AGREEMENT

This Lock-Up and Voting Agreement (this “ Agreement ”) is made and entered into as of March 31, 2010, by and among Marshall Financial Group, LLC, Banco Santander, S.A., New York Branch, Farm Credit Bank of Texas, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch, KEB NY Financial Corp., Nordkap Bank AG, WestLB AG, New York Branch (“ WestLB ”) (collectively, the “ Senior Secured Creditors ” and each a “ Senior Secured Creditor ”), Heartland Grain Fuels, L.P. (“ HGF ”), Advanced BioEnergy, LLC (“ ABE ”) and Oppenheimer Rochester National Municipals (the “ Bondholder ” and collectively, together with ABE, HGF and the Senior Secured Creditors that have executed this Agreement, the “ Parties ”).

RECITALS

A. The Senior Secured Creditors are the holders of senior secured notes issued by HGF and other secured obligations of HGF pursuant to that certain Senior Credit Agreement, dated as of October 1, 2007 (as amended and supplemented, the “ Senior Credit Agreement ”), among HGF, as Borrower, the Lenders referred to therein and WestLB, as Administrative Agent (the “ Administrative Agent ”), Collateral Agent, Issuing Bank, Lead Arranger, Sole Bookrunner and Syndication Agent.

B. The Bondholder is the sole holder of the Subordinate Solid Waste Facilities Revenue Bonds (Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A (the “ Bonds ”), issued by Brown County, South Dakota (the “ Issuer ”) under that certain Bond Trust Indenture, dated as of October 1, 2007, between the Issuer and Wells Fargo Bank, National Association, in its capacity as trustee of the Bonds (the “ Trustee ”).

C. ABE, directly and indirectly, owns all of the partnership interests in HGF.

D. The Parties have engaged in good faith negotiations with the objective of reaching an agreement with regard to restructuring and recapitalizing HGF.

E. The Parties now desire to implement a restructuring (the “ Restructuring ”) of HGF consistent with the terms set forth in this Agreement and the Term Sheet attached hereto as Exhibit A (the “ Term Sheet ”). In the event that HGF, ABE, the Bondholder and Senior Secured Creditors that collectively hold at least two-thirds in amount and are more than fifty percent of the number of the holders of claims based on amounts owed by HGF under the Senior Credit Agreement (the “ Senior Secured Claims ”) agree to the terms of this Agreement, HGF intends, subject to the terms and conditions of this Agreement, to prepare and file a plan of reorganization (the “ Plan ”), consistent with the terms set forth in this Agreement and the Term Sheet, implementing the Restructuring in a case (the “ Chapter 11 Case ”) to be filed under chapter 11 of title 11 of the United States Code (the “ Bankruptcy Code ”). Alternatively, in the event that HGF, ABE, the Bondholder and all of the Senior Secured Creditors agree to the terms of this Agreement by March 25, 2010, the Parties will implement the Restructuring through a restructuring agreement consistent with the Term Sheet and that contains such other terms as are acceptable to the Parties.

F. HGF may seek acceptance of the Plan before the commencement of the Chapter 11 Case as permitted by section 1126(b) of the Bankruptcy Code based on “adequate information” HGF will provide to holders of claims entitled to vote on the Plan (“ Prepetition Disclosure ”). In the alternative, HGF may file the Plan with a disclosure statement (“ Disclosure Statement ”) as provided in section 1125 of the Bankruptcy Code shortly after the filing of the Chapter 11 Case. HGF intends to use its commercially reasonable efforts to have the Plan confirmed by the United States Bankruptcy Court for the District of Minnesota (the “ Bankruptcy Court ”) as expeditiously as possible under the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure (the “ Bankruptcy Rules ”). In the course of the Chapter 11 Case, HGF intends to use its commercially reasonable efforts to have the Prepetition Disclosure approved as meeting the requirements of section 1126(b) or the Disclosure Statement approved under section 1125(b) of the Bankruptcy Code.

G. In order to expedite the implementation of the Restructuring, the Senior Secured Creditors that have executed this Agreement (the “ Executing Senior Secured Creditors ”) and the Bondholder are prepared to commit, on the terms and subject to the conditions of this Agreement, to consummate the Restructuring and the transactions contemplated by the Term Sheet and, if necessary, when properly solicited to do so, to vote their claims (as such term is defined in the Bankruptcy Code) to accept the Plan.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Voting . The Executing Senior Secured Creditors represent and warrant that, as of the date hereof, they collectively hold at least two-thirds in amount and are more than fifty percent of the number of the holders of Senior Secured Claims (the “ Controlling Senior Secured Claims ”), with the power to vote and dispose of such claims. The Bondholder represents and warrants that, as of the date hereof, it is the holder of 100% of the claims based on Bonds (together with the Controlling Senior Secured Claims, the “ Relevant Claims ”) with the power to vote and dispose or the power to direct the Trustee to vote and dispose of such claims. The Executing Senior Secured Creditors and the Bondholder agree that, so long as this Agreement shall remain in effect, when properly solicited to do so, they will (a) support, and otherwise use their commercially reasonable efforts to take, all actions required or otherwise necessary to consummate the Restructuring and the transactions contemplated by the Term Sheet and execute such instruments, documents and agreements, including the Definitive Documents (as defined in the Term Sheet), necessary to consummate the Restructuring, or (b) timely vote their Relevant Claims (and not revoke or withdraw such vote) to accept the Plan and shall restructure the obligations of HGF consistent with the terms and conditions of the Term Sheet and this Agreement, provided , however , that the terms of the Plan and the Prepetition Disclosure or the Disclosure Statement are substantially the terms set forth in the Term Sheet and include such other terms as are acceptable to the Parties.

2. Consummation of the Restructuring . The Parties agree that, so long as this Agreement remains in effect, they will support, and otherwise use their commercially reasonable efforts to take, all actions required or otherwise necessary to consummate the Restructuring and the transactions contemplated by the Term Sheet. The foregoing obligation includes, but is not

limited to, (a) executing the Definitive Documents, (b) assisting, as necessary, in the preparation and negotiation of the Definitive Documents, (b) voting in favor of the Plan, and (c) otherwise taking such actions as are necessary to be able to consummate the Restructuring and the transactions contemplated by the Term Sheet as expeditiously as possible, provided , however , that the Plan is consistent with the Term Sheet and contains such other terms as are acceptable to the Parties.

3. Restriction on Transfer . The Bondholder and each Executing Senior Secured Creditor hereby agrees that, so long as this Agreement shall remain in effect, it shall not sell, transfer or assign any of its Relevant Claims or any option thereon or any right or interest therein, unless the transferee thereof agrees in writing to be bound by all the terms of this Agreement by executing a counterpart signature page of this Agreement and the transferor promptly provides HGF and ABE with a copy thereof.

4. HGF and ABE Agreements . In the event that the Restructuring is being implemented through the Plan, HGF and ABE hereby agree to use commercially reasonable efforts to have the Prepetition Disclosure or Disclosure Statement approved by the Bankruptcy Court, and thereafter to use commercially reasonable efforts to obtain an order of the Bankruptcy Court confirming the Plan, in each case, as expeditiously as possible under the Bankruptcy Code and the Bankruptcy Rules, and consistent with the terms and conditions set forth in the Term Sheet and this Agreement. Upon confirmation of the Plan, ABE agrees to make the cash contributions to HGF required by paragraph 4 of the Term Sheet and on the terms contained therein.

5. Support of the Restructuring . As long as this Agreement remains in effect, (x) the Parties will, on the terms and subject to the conditions of the Term Sheet and this Agreement, support the Restructuring, and (y) the Bondholder and each Executing Senior Secured Creditor will, when properly solicited to do so, (i) support, and otherwise use their commercially reasonable efforts to take, all actions required or otherwise necessary to consummate the Restructuring and the transactions contemplated by the Term Sheet and execute such instruments, documents and agreements, including the Definitive Documents, necessary to consummate the Restructuring, or (ii) vote for the Plan, provided , however , that the Plan implements a restructuring consistent with the Term Sheet and containing such other terms as are acceptable to the Bondholder and Executing Senior Secured Parties. As long as this Agreement remains in effect, none of the Parties will (a) object to confirmation of the Plan or otherwise commence any proceeding to oppose or alter the Plan or any other reorganization related documents or agreements (the “ Plan Documents ”), (b) vote for, consent to, support or participate in the formulation of any other plan of reorganization or liquidation proposed or filed or to be proposed or filed in any chapter 11 or chapter 7 case commenced in respect of HGF, (c) directly or indirectly seek, solicit, support or encourage any other plan, sale, proposal or offer of dissolution, winding up, liquidation, reorganization, merger or restructuring of HGF that could reasonably be expected to prevent, delay or impede the successful restructuring of HGF as contemplated by the Term Sheet, the Plan or the Plan Documents, (d) object to approval of the Prepetition Disclosure or the Disclosure Statement or the solicitation of consents to the Plan, except to the extent that it believes, in good faith, that the Prepetition Disclosure or the Disclosure Statement contains a material misstatement or omission of a material fact, or (e) take

any other action with respect to HGF that is inconsistent with, or that would delay confirmation of, the Plan.

6. Acknowledgement . This Agreement is not a solicitation for consents to the Plan. HGF will not solicit acceptance of the Plan by the Bondholder or the Senior Secured Creditors until the Bondholder and each Senior Secured Creditor has received the Prepetition Disclosure or the Disclosure Statement.

7. Termination of Agreement . The Bondholder and each Executing Senior Secured Creditor may terminate its obligations hereunder and, if applicable, rescind its vote on the Plan (which vote shall be null and void and have no further force and effect), but only if (a) in the event that HGF, ABE, the Bondholder and all of the Senior Secured Creditors execute this Agreement, the Restructuring does not occur within 55 days after the effective date of this Agreement, or (b) the effective date of the Plan does not occur on or before July 9, 2010, or (c) HGF does not file the Chapter 11 Case by April 26, 2010 or (d) the Restructuring is consummated. Upon such termination, ABE and HGF will be estopped from opposing any efforts by the Bondholder or an Executing Senior Secured Creditor to withdraw its vote pursuant to Bankruptcy Rule 3018 or under other applicable law, including, without limitation, applicable securities law.

8. Effectiveness . This Agreement will not become effective and binding on the parties hereto unless and until the ABE, HGF, the Bondholder and Senior Secured Creditors holding Controlling Senior Secured Claims have executed and delivered counterpart signature pages hereto.

9. Representations and Warranties . Each of the Parties represents and warrants to each other that the following statements are true, correct and complete as of the date hereof:

	(a)		Corporate Power and Authority . It has all requisite corporate, partnership or LLC power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its respective obligations under, this Agreement.

	(b)		Authorization . The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate, partnership or LLC action on its part.

	(c)		Binding Obligation . Subject to the provisions of sections 1125 and 1126 of the Bankruptcy Code, if applicable, this Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except to the extent that enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to the rights of a creditor against a debtor, or by equitable principles relating to enforceability.

10. Further Acquisition of Claims . This Agreement shall in no way be construed to preclude any Executing Senior Secured Creditor from acquiring additional claims based on obligations owed under the Senior Credit Agreement. However, any such additional claims so

acquired will automatically be deemed to be Relevant Claims and to be subject to the terms of this Agreement.

11. Amendments . This Agreement may not be modified, amended or supplemented without the prior written consent of HGF, ABE, the Bondholder and the Executing Senior Secured Creditors.

12. Impact of Appointment to Creditors Committee . If any official creditors committee is appointed by the United States Trustee in the Chapter 11 Case and the United States Trustee appoints the Bondholder or any Executing Senior Secured Creditor to be a member of such official committee pursuant to section 1102 of the Bankruptcy Code, then the fact of such service on such committee shall not otherwise affect the continuing obligations of the Bondholder or such Executing Senior Secured Creditor under this Agreement or the validity or enforceability of this Agreement; provided , however , that nothing contained herein shall prevent the Bondholder or such Executing Senior Secured Creditor, in its capacity as a member of such official committee, from acting in a manner consistent with its fiduciary duties as a member of such official committee.

13. Governing Law; Jurisdiction . This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to any conflicts of law provision that would require the application of the law of any other jurisdiction. By its execution and delivery of this Agreement, each of the Parties hereby irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding against it with respect to any matter under or arising out of or in connection with this Agreement or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, may be brought in the United States District Court for the Southern District of New York. By execution and delivery of this Agreement, each of the Parties hereby irrevocably accepts and submits itself to the nonexclusive jurisdiction of such court, generally and unconditionally, with respect to any such action, suit or proceeding. Notwithstanding the foregoing consent to New York jurisdiction, upon the commencement of the Chapter 11 Case, each of the Parties hereby agrees that the Bankruptcy Court shall have exclusive jurisdiction over all matters arising out of or in connection with this Agreement.

14. Headings . The headings of the sections, paragraphs and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof.

15. Successors and Assigns . This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, assigns, heirs, executors, administrators and representatives.

16. Prior Negotiations . This Agreement and the Term Sheet supersede all prior negotiations with respect to the subject matter hereof.

17. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement. This Agreement may be executed by facsimile, pdf or other electronic transmission of signatures.

18. No Third-Party Beneficiaries . Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties and no other person or entity shall be a third-party beneficiary hereof.

19. Consideration . It is hereby acknowledged by the parties hereto that no consideration shall be due or paid to the Bondholder or the Executing Senior Secured Creditors for their agreement to vote to accept the Plan in accordance with the terms and conditions of this Agreement other than ABE’s and HGF’s agreement to use commercially reasonable efforts to obtain approval of the Prepetition Disclosure or the Disclosure Statement and commercially reasonable efforts to confirm the Plan in accordance with the terms and conditions of this Agreement and the Term Sheet.

20. No Waiver of Participation and Reservation of Rights . Except as expressly provided in this Agreement, nothing contained herein is intended to, or does, in any manner waive, limit, impair or restrict the ability of the Bondholder or the Executing Senior Secured Creditors to protect or preserve their rights, remedies and interests, including, without limitation, their claims against HGF or their full participation in any case filed by or against HGF or any of its affiliates under the Bankruptcy Code. If the Restructuring and the transactions contemplated by this Agreement, including, without limitation, the Plan, are not consummated, or if this Agreement is terminated for any reason, then the Bondholder and the Executing Senior Secured Creditors, as well as the other Parties, fully reserve any and all of their rights, remedies, interests and claims against the other Parties.

[Remainder of this page is blank]

IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first above written.


HEARTLAND GRAIN FUELS, L.P.
By:	Dakota Fuels, Inc.
	Its general partner

By:	/s/ Richard R. Peterson
	Name:	Richard R. Peterson
	Title:	CEO/President

ADVANCED BIOENERGY, LLC
By:	/s/ Richard R. Peterson
	Name:	Richard R. Peterson
	Title:	CEO/President

BANCO SANTANDER, S.A., NEW YORK BRANCH, as Senior Secured Creditor

By:	/s/ Jorge Saavedra
	Name:	Jorge Saavedra
	Title:	Executive Director


By:	/s/ Jesus Lopez
	Name:	Jesus Lopez
	Title:	Senior Vice President


COÖPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, as Senior Secured Creditor
By:	/s/ Andrew Sherman
	Name:	Andrew Sherman
	Title:	Executive Director


By:	/s/ John McMahon
	Name:	John McMahon
	Title:	Managing Director

FARM CREDIT BANK OF TEXAS, as Senior Secured Creditor
By:	/s/ Alan Robinson
	Name:	Alan Robinson
	Title:	Vice President

KEB NY FINANCIAL CORP., as Senior Secured Creditor
By:	/s/ Yeon Hak Jeong
	Name:	Yeon Hak Jeong
	Title:	President


By:	/s/ Seung Bum Woo
	Name:	Seung Bum Woo
	Title:	Senior Vice President


MARSHALL FINANCIAL GROUP, LLC, a Delaware limited liability company, as Senior Secured Creditor
By:	OUTSOURCE SERVICES MANAGEMENT, LLC, a Nevada limited liability company, as Attorney-In-Fact for Marshall Financial Group, LLC

By:
	Name:
	Title:

NORDKAP BANK AG, as Senior Secured Creditor
By:	/s/ Gerig
	Name:	Gerig
	Title:	CIO


By:	/s/ Alig
	Name:	Alig
	Title:	CFO

WESTLB AG, NEW YORK BRANCH, as Senior Secured Creditor
By:	/s/ E. Keith Min
	Name:	E. Keith Min
	Title:	Managing Director


By:	/s/ Dominick D’Ascoli
	Name:	Dominick D’Ascoli
	Title:	Director


OPPENHEIMER ROCHESTER NATIONAL MUNICIPALS, as Bondholder
By:	/s/ Richard Stein
	Name:	Richard Stein
	Title:	Vice President

Exhibit A

Term Sheet

Terms of Restructuring of HGF Senior Credit Agreement with Senior Secured
Creditors and HGF Subordinate Solid Waste Facilities Revenue Bonds

The following sets forth the terms of a restructuring of the obligations of Heartland Grain Fuels, L.P. under (a) the Senior Credit Agreement, dated as of October 1, 2007, among Heartland Grain Fuels, L.P. as Borrower, the Lenders referred to therein and WestLB AG, New York Branch, as Administrative Agent for the Lenders (the “ Administrative Agent ”), Collateral Agent for the Senior Secured Parties (the “ Collateral Agent ”), Issuing Bank with respect to the Letters of Credit, and Lead Arranger, Sole Bookrunner and Syndication Agent (as amended and supplemented, the “ Senior Credit Agreement ”), and (b) the Subordinate Solid Waste Facilities Revenue Bonds (Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A (the “ Bonds ”) issued by Brown County, South Dakota (the “ Issuer ”) under that certain Bond Trust Indenture, dated as of October 1, 2007 (the “ Indenture ”), between the Issuer and Wells Fargo Bank, National Association, in its capacity as trustee of the Bonds (the “ Trustee ”). Capitalized terms used herein but not otherwise defined have the meanings given to them in the Senior Credit Agreement.

Definitions

“ ABE ” means Advanced BioEnergy, LLC, a Delaware limited liability company.

“ Bondholder ” means the sole holder of the Bonds.

“ Closing ” means the closing of the restructuring contemplated by this Term Sheet.

“ Definitive Documents ” has the meaning given in paragraph 15 below.

“ HGF ” means Heartland Grain Fuels, L.P., a Delaware limited partnership, which prior to the Closing will be converted to a Delaware limited liability company.

“ Monthly Date ” means the last business day of each month.

“ Quarterly Payment Date ” means each of March 31, June 30, September 30 and December 31.

“ Restructuring Agreement ” has the meaning given in paragraph 1 below.

“ Senior Secured Creditors ” means WestLB and the other lenders and agents referred to in the Senior Credit Agreement (for themselves and, in certain cases, on behalf of the interest rate protection providers referred to in the Senior Credit Agreement).

“ WestLB ” means WestLB AG, New York Branch.

Terms and Conditions

1.		Restructuring Agreement . The Senior Secured Creditors, the Issuer, the Trustee, the Bondholder, ABE and HGF would enter into a restructuring agreement (which may be in the form of a plan of reorganization in the event that HGF files a chapter 11 petition) consistent with the terms and conditions described herein and such other terms and conditions as may be agreed to by the parties (the “ Restructuring Agreement ”). The Restructuring Agreement would contemplate a release and discharge of the Indenture, Bonds and all related agreements and an amendment of the Senior Credit Agreement on terms consistent with those set forth below. If the parties are unable to obtain the requisite approval of the Senior Secured Creditors and the Bondholder to the Restructuring Agreement, then, on or before April 26, 2010, and provided that a lock-up agreement has been entered into in accordance with paragraph 14 below, HGF will file a voluntary petition commencing a prepackaged or prenegotiated case under Chapter 11 of Title 11 of the U.S. Code (the “ Bankruptcy Code ”).

2.		Conversion to LLC . HGF will be converted into a Delaware limited liability company at or prior to the Closing. ABE, either directly or through one or more of its subsidiaries, will be the sole member of HGF.

3.		Payments by HGF . As a condition to the Closing, HGF would be required (a) to apply an amount equal to the sum of $10.0 million in cash (to be contributed by ABE to HGF in accordance with paragraph 4 below) plus $5 million from its existing cash reserves to pay Outstanding Principal Obligations in accordance with paragraph 7(a) below, and (b) if the Closing has not occurred before April 1, 2010, to pay to the Lenders a fee of $10,000 per day, which will accrue starting on April 1, 2010 until the Closing and will be payable at the Closing (such amount and fee collectively, the “ Closing Payments ”).

4.		Payments by ABE . As a condition to the Closing, ABE will contribute to HGF an amount equal to the sum of (a) $10.0 million in cash, which HGF will apply in accordance with paragraph 3 above, plus (b) $2.25 million, which HGF will apply in accordance with paragraph 5 below.

5.		Payment on Bonds and Satisfaction . At the Closing, (a) the Bondholder would receive a payment from HGF of $2.25 million in full satisfaction of the debt owed under the Bonds and all related financing documents, as well as payment of certain other funds held by Trustee, (b) the Trustee would transfer to the Administrative Agent for the account of the Lenders an amount equal to $172,948.56, representing 50% of certain disputed interest payments that HGF previously transferred to the Trustee and such amount shall be applied towards interest accrued and unpaid under the Senior Credit Agreement prior to the Closing, and (c) the Bonds and all related financing documents, and all obligations of HGF, ABE, Dakota Fuels, Inc. and ABE Heartland, LLC thereunder, shall be terminated and cancelled.

6.		Restructuring Fee . On the earlier of the Final Maturity Date and the date on which the Loans are repaid in full, HGF would be required to pay a $3 million restructuring fee to the Lenders (the “ Restructuring Fee ”).

7.		Adjustments to Indebtedness under Senior Credit Agreement . The outstanding obligations under the Senior Credit Agreement immediately before the Closing Payments are made consist of Term Loans in an aggregate principal amount of $87,979,000, Working Capital Loans in an aggregate principal amount of $7,100,000 and Swap Termination Value under outstanding Interest Rate Protection Agreements in an aggregate amount of $4,212,550 (such amounts collectively, the “ Outstanding Principal Obligations ”). In consideration for the Closing Payments and the Restructuring Fee:

	a.		at the Closing, the Closing Payments would be applied to repay the Outstanding Principal Obligations on a pro rata basis;

	b.		the remaining amount of Outstanding Principal Obligations following such repayments, i.e., $84,291,550, would be deemed Term Loans and would be allocated to each of the Lenders on a pro rata basis based on the amount of such remaining Outstanding Principal Obligations held by that Lender or its Affiliate that is an Interest Rate Protection Provider as set forth on Annex I hereto;

	c.		interest accrued through the Closing on outstanding Term Loans and Working Capital Loans, and any Net Swap Payments owing to any Interest Rate Protection Provider, would be reduced to zero;

	d.		interest rates applicable to the Loans would be amended as follows:

	i.		for the period from the Closing through the second anniversary of the Closing, interest would be payable at a rate of 150 basis points per annum plus LIBOR;

	ii.		for the period from the second anniversary of the Closing through the third anniversary of the Closing, interest would be payable at a rate of 300 basis points per annum plus LIBOR; and

	iii.		after the third anniversary of the Closing, interest would be payable at a rate of 400 basis points per annum plus LIBOR;

	e.		the Borrower would be permitted to enter into a prepaid interest rate cap for the Term Loans on terms acceptable to the Required Lenders;

	f.		the Final Maturity Date would be extended to March 31, 2016; and

commencing on the first Quarterly Payment Date after the Closing, outstanding principal on the Loans would be repaid pursuant to quarterly scheduled payments of $750,000, quarterly cash sweeps as provided in the Revenue Account Waterfall described below and a payment on the final maturity date of all remaining amounts.

8.		Debt Service Reserve Account . The Debt Service Reserve Account will be funded and replenished in accordance with the Revenue Account Waterfall described below. If, on any date, amounts are withdrawn from the Debt Service Reserve Account to cover any shortfall in the amounts available at sub-paragraphs (c), (d) or (e) of the Revenue Account Waterfall to pay the obligations described therein, then, no later than the second Quarterly Payment Date following such date, the Borrower shall ensure that the Debt Service Reserve Account is fully funded to the Debt Service Reserve Required Amount (which will not be less than $3 million).

9.		Working Capital Reserve Account . The Working Capital Reserve Account will be funded with up to $4 million (the “ WCR Required Amount ”) and replenished in accordance with the Revenue Account Waterfall described below. In addition, at the Closing the Working Capital Reserve Account will also be funded, in accordance with the Revenue Account Waterfall described below, with up to an additional $2 million to pay costs of the Huron rail project that is currently anticipated to be completed in the spring of 2010.

10.		Revenue Account Waterfall . All revenues shall be applied in the following order (the “ Revenue Account Waterfall ”):

	a.		At the Closing and on each Monthly Date (or, with respect to the cost of corn and natural gas, on any date), an amount equal to the budgeted operation and maintenance expenses that are then due and payable or (except with respect to the cost of corn and natural gas) will become due and payable during the immediately succeeding calendar month (or, in the case of the Closing, during the remainder of the then-current calendar month, if any), subject in each case (other than with respect to the cost of corn and natural gas) to an agreed budget variance, will be transferred to a dedicated project account to pay such expenses;

	b.		On each Monthly Date, an amount equal to the maintenance capital expenses that are or will become due and payable during the immediately succeeding calendar month (subject to Independent Engineer approval for expenses that would exceed $500,000 during the then current Fiscal Year) will be transferred to a dedicated project account to pay such expenses;

	c.		On any date, to pay fees, costs and expenses that are then due and payable in accordance with the Senior Credit Agreement;

	d.		On any date, to pay interest on the Loans that is then due and payable in accordance with the Senior Credit Agreement and on the Closing Date to pay the cost of any interest rate cap;

	e.		On each Quarterly Payment Date, to make scheduled principal payments on the Loans in accordance with the Senior Credit Agreement;

	f.		On the Closing Date and each Quarterly Payment Date, to fund the Debt Service Reserve Account up to the Debt Service Reserve Required Amount;

	g.		On the Closing Date and each Quarterly Payment Date, to fund the Working Capital Reserve Account to the WCR Required Amount and, on the Closing Date only, to fund the Working Capital Reserve Account in an additional amount up to $2 million to pay costs of the Huron rail project;

	h.		On each Quarterly Payment Date, provided no Default or Event of Default has occurred and is continuing, to release a tax distribution to equity holders;

	i.		On each Quarterly Payment Date, to prepay the Loans in an amount equal to (x) 100% of the cash remaining after item (h) or (y) after the outstanding principal on the Loans is paid down to $25 million, 75% of the cash remaining after item (h); and

	j.		On or within 30 days following each Quarterly Payment Date, immediately upon the satisfaction of the Release of Equity Distributions conditions described below, all cash available may be used to make equity distributions.

11.		Release of Equity Distributions . On a quarterly basis, equity distributions (excluding the tax distribution permitted in item (h) of the Revenue Account Waterfall) may be made subject to, without limitation, (i) no Default or Event of Default existing or resulting from the equity distribution, (ii) the Debt Service Reserve Account being fully funded, (iii) the Working Capital Reserve Account being funded to the WCR Required Amount, (iv) each of the Historical Debt Service Coverage Ratio and the Prospective Debt Service Coverage Ratio (as each such term is defined in the Senior Credit Agreement) being greater than or equal to 1.5:1.0 and (v) no more than $25 million of principal being outstanding on the Loans.

12.		Management Agreement . At the Closing, HGF would enter into a management agreement with ABE to provide management services to HGF for $80,000 per month during the first full twelve months after Closing, and for each month thereafter, two cents per gallon multiplied by the actual number of gallons of denatured ethanol produced for the calendar month most recently ended, in each

		case payable in arrears, and containing such other terms as may be agreed to by ABE, HGF and the Senior Secured Creditors.

13.		Claims of Other Creditors . All undisputed, liquidated and matured claims of HGF’s creditors other than the claims of the Bondholder and the Senior Secured Creditors will be paid in full in the ordinary course of business or pursuant to the Restructuring Agreement in the event of a bankruptcy filing by HGF.

14.		Lock-Up Agreement . As soon as practicable after the acceptance of this term sheet by ABE, HGF, the Bondholder and a simple majority of the Lenders holding at least two-thirds of the amounts outstanding under the Senior Credit Agreement, the parties will work in good faith to enter into a binding agreement (the “ Lock-Up Agreement ”) which will obligate ABE, HGF, the Bondholder and such Lenders, subject to appropriate exceptions, to work in good faith to effectuate the transactions contemplated by this term sheet and to vote for a plan of reorganization that contains the terms set forth in this term sheet.

15.		Definitive Documents . The transactions contemplated by the above terms would be effected by mutually agreed agreements, instruments and other documents as may be deemed reasonably necessary by ABE, HGF, the Administrative Agent, the Senior Secured Creditors, the Trustee, the Issuer and the Bondholder to consummate the foregoing transactions (such agreements, instruments and other documents collectively, the “ Definitive Documents ”).

16.		Approvals . The Definitive Documents are subject to the internal credit approvals of each of the Senior Secured Creditors and board approval by each of the other parties.

This Term Sheet is subject to negotiation and execution of the Definitive Documents described above. Unless and until such Definitive Documents are executed by and delivered to the parties thereto, none of the parties shall have any obligations with respect to the above-referenced terms or the transactions contemplated herein except as set forth in the Lock-Up Agreement.

ANNEX I


	PRINCIPAL		% OF TOTAL
LENDER	AMOUNT		FACILITIES
WESTLB AG, NEW YORK BRANCH.		21,440,570		25.4362	%
BANCO SANTANDER, S.A.		14,682,240		17.4184	%
FARM CREDIT BANK.OF TEXAS		8,234,619		9.7692	%
KEB NY FINANCIAL CORP.		1,646,924		1.9538	%
MARSHALL FINANCIAL GROUP, LLC		7,164,118		8.4992	%
NORDKAP BANK AG		8,234,619		9.7692	%
RABOBANK NEDERLAND,NEW YORK BRANCH		22,888,461		27.1539	%

Total		84,291,550		100.0000	%

Exhibit 10.2

BACKSTOP COMMITMENT AGREEMENT

BACKSTOP COMMITMENT AGREEMENT (this “ Agreement ”) dated as of April 7, 2010, by and between Advanced BioEnergy, LLC, a Delaware limited liability company (“ ABE ”) and Hawkeye Energy Holdings, LLC, a Delaware limited liability company (“ Hawkeye ”).

WHEREAS, Hawkeye owns 3,333,333 membership units of ABE (“ ABE Units ”), which is equal to approximately 18.7% of the ABE Units outstanding as of the date hereof (the percentage of the ABE Units owned by Hawkeye as of the date hereof, “ Existing Hawkeye Percentage ”);

WHEREAS, Heartland Grain Fuels, L.P., a Delaware limited partnership (“ HGF ”) is a subsidiary of ABE;

WHEREAS, HGF is the borrower under (a) the Senior Credit Agreement, dated as of October 1, 2007, among HGF, as Borrower, the Lenders referred to therein and WestLB AG, New York Branch, as Administrative Agent for the Lenders (the “ Administrative Agent ”), Collateral Agent for the Senior Secured Parties (together with the Lenders, the Administrative Agent and the other lender parties thereto, the “ Senior Credit Agreement Lender Parties ”), (as amended and supplemented, the “ Senior Credit Agreement ”), and (b) the Subordinate Solid Waste Facilities Revenue Bonds (Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A (the “ Bonds ” and together with the Senior Credit Agreement the “ HGF Debt ”) issued by Brown County, South Dakota;

WHEREAS, HGF is in default under the HGF Debt;

WHEREAS, ABE and HGF propose to restructure the HGF Debt (the “ Restructuring ”) in accordance with the terms set forth on the Proposed Terms attached hereto as Exhibit A (the “ Restructuring Term Sheet ”);

WHEREAS, the Restructuring would be effected pursuant to a lock-up agreement (the “ Lock-Up Agreement ”) that contemplates either (a) approval of the Restructuring by the requisite Senior Credit Agreement Lender Parties (a “ Contractual Restructuring ”) or (b) if such requisite approval is not obtained, a voluntary petition commencing a prepackaged or prenegotiated case under Chapter 11 of Title 11 of the U.S. Code (the “ Bankruptcy Code ”) in a United States Bankruptcy Court (the “ Bankruptcy Court ”) (a “ Chapter 11 Restructuring ” and the plan of reorganization implementing the terms set forth on the Restructuring Term Sheet, the “ Plan ”);

WHEREAS, the Restructuring would require ABE to invest $10.0 million in cash in HGF;

WHEREAS, ABE proposes to raise net proceeds of up to $10.0 million to invest in HGF by offering for sale in a private placement newly-issued ABE Units with a purchase price of $1.50 per unit (the “ Purchase Price ”) and an aggregate purchase price of up to $10.0 million (as further described in this Agreement, the “ Private Offering ”);

WHEREAS, the Private Offering would offer ABE Units to each of the members of ABE who has established to ABE’s satisfaction that it is an accredited investor on a pro-rata basis and may offer ABE Units to other accredited investors at the discretion of ABE’s Board;

WHEREAS, the Senior Credit Agreement Lender Parties require as a condition to the Lock-Up Agreement that ABE have evidence of its ability to invest $10.0 million in cash in HGF;

WHEREAS, in order to facilitate the Restructuring and the Private Offering, pursuant to this Agreement and subject to the terms, conditions and limitations set forth herein, Hawkeye agrees to purchase, and ABE agrees to issue and sell, for the Purchase Price per ABE Unit, (a) its pro-rata portion of the ABE Units offered in the Private Offering (“ Hawkeye Pro-Rata Units” ) and (b) all ABE Units offered in the Private Offering that are not purchased by others pursuant to the Private Offering and this Agreement (the “ Unsubscribed Units ” and, together with the Hawkeye Pro-Rata Units, the “ Hawkeye Additional Units ”);

WHEREAS, the $10 million Private Offering would require amendment of ABE’s Limited Liability Company Agreement to increase the number of ABE Units authorized thereby (the “ LLC Agreement Amendment ”);

WHEREAS, members of ABE with 49.9% of the ABE Units entitled to vote have entered into Amendment No. 1 to the Voting Agreement dated as of August 28, 2009, pursuant to which such members agree to vote in favor of the LLC Agreement Amendment;

WHEREAS, simultaneous with the execution of this Agreement, HGF and all of HGF’s subsidiaries, as applicable, are entering into with Hawkeye Gold, LLC Exclusive Ethanol Marketing Agreements (the “ Ethanol Agreements ”) in the form attached hereto as Exhibit B , which such Ethanol Agreements shall apply to substantially all ethanol produced by HGF and its subsidiaries and shall become effective, subject to the transition period terms set forth therein, simultaneous with the closing of the Restructuring (the “ Restructuring Closing ,” which such term, with respect to the Ethanol Agreements and Distillers Grain Agreement (as defined below), shall include the closing of any material restructuring of the HGF Debt, regardless of whether such restructuring is on the terms set forth on the Restructuring Term Sheet); and

WHEREAS, simultaneous with the execution of this Agreement, HGF and all of HGF’s subsidiaries, as applicable, are entering into with Hawkeye Gold, LLC Exclusive Distiller Grains Marketing Agreement (the “ Distillers Grain Agreements ”) substantially in the form attached hereto as Exhibit C , which such Distillers Grain Agreement shall apply to all distiller grains produced by HGF and its subsidiaries at its Aberdeen, South Dakota plant and shall become effective simultaneous with the Restructuring Closing.

NOW, THEREFORE, in consideration of the foregoing, and the representations, warranties and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ABE and Hawkeye agree as follows:

1. The Private Offering . The Private Offering will be conducted as follows:

(a) Subject to the terms and conditions of this Agreement, ABE hereby undertakes to offer ABE Units for subscription by the members of ABE as set forth in this Agreement.

(b) Each member of ABE who has established to ABE’s satisfaction that it is an accredited investor (a “ Qualified Investor”) shall be offered the opportunity to

purchase ABE Units in the Private Offering for $1.50 per ABE Unit. ABE intends to endeavor to make such units available to Qualified Investors on a pro rata basis, however, subject to Hawkeye’s rights hereunder, the Board of ABE will have discretion as to the actual number of ABE Units issued to any Qualified Investor. The exact number of ABE Units offered will be determined by the Board of ABE based on its determination of the amount of equity needed by ABE to invest $10.0 million in HGF, net of expenses.

(c) The Hawkeye Pro-Rata Units will be determined by dividing the number of ABE Units owned by Hawkeye as of the date hereof by the total number of ABE Units determined by the Board of ABE to be owned by all Qualified Investors as of the date hereof.

(d) In the event that in connection with the Restructuring any Qualified Investor other than Hawkeye desires to acquire a number of ABE Units (or other equity interests, or rights to receive equity interests, of ABE) in excess of the Qualified Investor’s pro-rata share (determined in the same manner as the Hawkeye Pro-Rata Units) or ABE elects to offer ABE Units to any accredited investor who is not a member of ABE, ABE will consult with Hawkeye prior to the acceptance of subscription agreements for amounts in excess of the Qualified Investor’s pro-rata share or from any accredited investor who is not a member of ABE. Notwithstanding anything to the contrary in this Agreement or elsewhere, without Hawkeye’s prior written consent, such consent not to be unreasonably withheld, no participant in the Private Offering shall be given the right to purchase a number of ABE Units that is greater than 666,000 ABE Units more than its pro-rata share of the Private Offering (or in the case of a purchaser that is not a member of ABE as of the date hereof, the right to purchase more than 666,000 ABE Units).

(e) ABE will distribute subscription forms for the ABE Units as promptly as reasonably practicable. The date of such distribution is herein referred to as the “ Distribution Date ”. ABE will be responsible for effecting the distribution of any materials related to the Private Offering to each Qualified Investor or other offeree.

(f) The offering period (the “ Offer Period ”) will commence on the Distribution Date and will end not later than May 14, 2010, (the “ Subscription Expiration Date ”), subject to ABE’s right to alter such date with the prior consent of Hawkeye (which consent shall not be unreasonably withheld).

(g) Hawkeye will furnish to ABE the funds necessary to purchase the Hawkeye Additional Units required to be purchased hereunder simultaneous with the Restructuring Closing (the date of the Restructuring Closing, the “ Closing Date ”).

(h) ABE will issue the Hawkeye Additional Units to Hawkeye simultaneous with the Restructuring Closing, and in any event in compliance with the terms of the Private Offering.

(i) ABE hereby agrees and undertakes to give Hawkeye written notice by electronic facsimile transmission of a certification by an executive officer of ABE of either (i) the number of Unsubscribed Units and the aggregate Purchase Price therefor (a “ Purchase Notice ”) or (ii) in the absence of any Unsubscribed Units, of the fact that there are no Unsubscribed Units and that the Backstop Commitment (as defined below) is

terminated (a “ Satisfaction Notice ”) as soon as practicable after the Subscription Expiration Date and, in any event, not later than 12:00 p.m. New York City time on the seventh Business Day following the Subscription Expiration Date (the date of transmission confirmation of a Purchase Notice or a Satisfaction Notice, the “ Determination Date ”). For the purposes of this Agreement, “ Business Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.

2. The Backstop Commitment .

(a) On the basis of the representations and warranties herein contained, but subject to the conditions set forth in Section 7, on the Closing Date (i) Hawkeye agrees to subscribe for and purchase, and ABE agrees to issue and sell, at the aggregate Purchase Price, all of the Hawkeye Pro-Rata Units and (ii) Hawkeye agrees to subscribe for and purchase, and ABE agrees to issue and sell, at the aggregate Purchase Price therefor, all Unsubscribed Units as of the Subscription Expiration Date (the commitments set forth in clauses (i) and (ii) above, collectively, the “ Backstop Commitment ”).

(b) In exchange for the Backstop Commitment, on or as soon as practicable after the Closing Date, ABE will reimburse Hawkeye for all reasonable costs and expenses, including professional fees and expenses, incurred in connection with the Private Offering. These obligations are in addition to, and do not limit, ABE’s obligations under Section 8.

(c) ABE will provide a Purchase Notice or a Satisfaction Notice to Hawkeye as provided above, setting forth a true and accurate determination of the aggregate number of Unsubscribed Units, if any, provided , that on the Closing Date Hawkeye will purchase, and ABE will sell, only such number of Unsubscribed Units as are listed in the Purchase Notice, without prejudice to the rights of Hawkeye to seek later an upward or downward adjustment if the number of Unsubscribed Units in such Purchase Notice is inaccurate.

(d) All Hawkeye Additional Units will be delivered with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by ABE.

(e) Notwithstanding anything to the contrary in this Agreement, Hawkeye, in its sole discretion, may designate that some or all of Hawkeye Additional Units be issued in the name of, and delivered to, one or more of its Affiliates (as defined herein) as long as any such Affiliate is an “accredited investor” within the meaning of rule 501 under the Securities Act.

3. Representations and Warranties of ABE . Each capitalized term used but not otherwise defined in this Section 3 shall have the meaning of such term set forth in the letter agreement, dated August 21, 2009, by and between ABE and Hawkeye (the “ Letter Agreement”) . Except as disclosed in writing to Hawkeye on the date hereof (such writing, the “ Disclosure Letter ”), ABE represents and warrants to Hawkeye as of the date hereof and as of the Closing Date:

(a) Authorization . ABE has the requisite limited liability company power to execute and deliver the Offering Documents (as defined in Section 7 below) to which ABE is a party and to perform its obligations under the Offering Documents. The execution and delivery by ABE of the Offering Documents to which ABE is a party and the performance by it of its obligations under the Offering Documents, including, without limitation, the investment of the Private Offering proceeds in HGF and the issuance of the Hawkeye Additional Units to Hawkeye, have been duly authorized, or as applicable, will have been duly authorized when executed, by all necessary limited liability company action on the part of ABE. The Offering Documents to which ABE is a party have been duly executed and delivered, or as applicable, will be duly executed and delivered, by duly authorized officers of ABE, and, assuming the due execution and delivery of the Offering Documents by the other party or parties thereto, constitute valid and binding obligations of ABE enforceable against ABE in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(b) No Conflicts . The execution and delivery of each of the Offering Documents does not, and neither the performance by ABE of its obligations under the Offering Documents, nor the consummation of the transactions contemplated by the Offering Documents, including, without limitation, the investment of the Private Offering proceeds in HGF and the issuance of the Hawkeye Additional Units to Hawkeye, will, (i) conflict with the certificate of formation or limited liability company agreement of ABE, (ii) conflict with, result in any violation of, constitute a default under, or give rise to a right of termination, cancellation, or acceleration of, or any obligation or to loss of a benefit under, any material contract of ABE, (iii) violate, constitute a default under, or cause the forfeiture, impairment, non-renewal, revocation, or suspension of any permit of ABE, (iv) violate any citation, order, judgment, decree, writ, or injunction, or require the consent or approval, of any governmental entity applicable to ABE, (v) to the knowledge of ABE, violate any law applicable to ABE, or (vi) result in the creation of any encumbrance upon any of the assets or properties of ABE.

(i) ABE has previously made available to Hawkeye an accurate and complete copy of each (i) registration statement, prospectus, report, schedule and definitive proxy statement filed by ABE with the SEC since January 1, 2007 pursuant to the Securities Act or the Exchange Act (the “ SEC Reports ”), and prior to the date hereof and (ii) communication mailed by ABE to its unitholders since January 1, 2007 and prior to the date hereof (including the Memorandum), and no such SEC Report or communication, as of the date thereof, contained any untrue statement of a material fact or omitted any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, except that information as of a later date (but before the date hereof) shall be deemed to modify information as of an earlier date. The SEC Reports complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act as in effect on the dates such SEC Reports were filed. The statements in the Memorandum accurately apply to the Hawkeye Additional

Units in the same manner and respect they apply to the ABE Units previously purchased by Hawkeye.

(ii) The consolidated financial statements of ABE included in the SEC Reports or the Memorandum complied as to form in all material aspects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto and fairly present, in accordance with U.S. generally accepted accounting principles consistently applied (“ GAAP ”), the consolidated financial position of ABE as of the dates thereof and its consolidated results of operations and changes in financial position for the periods then ended (subject, in the case of the unaudited interim financial statements, to the absence of notes and normal year-end adjustments that are not expected to be material).

(d) Absence of Undisclosed Liabilities, Indebtedness . ABE and its subsidiaries have no Liabilities that are required to be reflected in, reserved against, or otherwise described in a consolidated balance sheet of ABE and its subsidiaries (or the notes thereto) prepared in accordance with GAAP except (i) those Liabilities provided for or reserved against in the financial statements included in the most recent SEC Report or (ii) Liabilities arising in the ordinary course of business consistent with past practice since March 31, 2009, which are not individually or in the aggregate material. Schedule 1 attached hereto sets forth a true and complete description of all Indebtedness of ABE and its subsidiaries as of the date hereof and as of the time immediately following the effectiveness of the Restructuring.

(e) HGF Liabilities . Neither ABE nor any of its subsidiaries other than HGF and its subsidiaries has or will have any liability or other responsibility with respect to the Liabilities of HGF and its subsidiaries or arising from ABE’s ownership or management of HGF and its subsidiaries, other than liabilities of ABE arising in the ordinary course of business out of the management services provided by ABE to HGF and its subsidiaries.

(f) Litigation . There is no claim or judicial or administrative action, suit, proceeding, or investigation pending or, to the knowledge of ABE, threatened (i) that questions the validity of this Agreement or the Private Offering, the performance by ABE of the obligations to be performed by it hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or (ii) relating to the business of ABE or any of its subsidiaries (as now conducted or as proposed to be conducted) or materially affecting ABE or any of its subsidiaries or any of their respective assets or properties.

(g) Exclusive Representations and Warranties . The representations and warranties set forth in this Agreement and the other Offering Documents are the sole and exclusive representations and warranties made by ABE with respect to the subject matter hereof. Nothing in this Agreement or the other Offering Documents shall exclude or otherwise limit in any manner any available claims Hawkeye or its Affiliates may have against ABE, including without limitation, pursuant to SEC Rule 10b-5.

4. Representations and Warranties of Hawkeye . Hawkeye represents and warrants to, and agrees with, ABE as set forth below. Each representation, warranty and agreement is made as of the date hereof and as of the Closing Date:

(a) Authorization . Hawkeye has the requisite limited liability company power to execute and deliver the Offering Documents to which Hawkeye is a party and to perform its obligations under such Offering Documents. The execution and delivery by Hawkeye of the Offering Documents to which Hawkeye is a party and the performance by it of its obligations under such Offering Documents have been duly authorized, or as applicable, will have been duly authorized when executed, by all necessary limited liability company action on the part of Hawkeye. The Offering Documents to which Hawkeye is a party have been duly executed and delivered, or as applicable, will be duly executed and delivered, by duly authorized officers of Hawkeye, and, assuming the due execution and delivery of such Offering Documents by the other party or parties thereto, constitute valid and binding obligations of Hawkeye enforceable against Hawkeye in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(b) No Conflicts . The execution and delivery of each of the Offering Documents to which Hawkeye is a party does not, and neither the performance by Hawkeye of its obligations under such Offering Documents, nor the consummation of the transactions contemplated by such Offering Documents, will, (i) conflict with the certificate of formation or limited liability company agreement of Hawkeye, (ii) conflict with, result in any violation of, constitute a default under, or give rise to a right of termination, cancellation, or acceleration of, or any obligation or to loss of a benefit under, any material contract of Hawkeye, (iii) violate, constitute a default under, or cause the forfeiture, impairment, non-renewal, revocation, or suspension of any permit of Hawkeye, (iv) violate any citation, order, judgment, decree, writ, or injunction, or require the consent or approval, of any governmental entity applicable to Hawkeye, (v) to the knowledge of Hawkeye, violate any law applicable to Hawkeye, or (vi) result in the creation of any encumbrance upon any of the assets or properties of Hawkeye.

(c) Litigation . There is no claim or judicial or administrative action, suit, proceeding, or investigation pending or, to the knowledge of Hawkeye, threatened that questions the validity of this Agreement, the performance by Hawkeye of the obligations to be performed by it hereunder or the consummation of the transactions contemplated hereby.

(d) Available Funds . Hawkeye has and will have on the Closing Date the funds necessary to satisfy its obligations under this Agreement.

5. Additional Covenants of ABE .

(a) ABE agrees that the Contractual Restructuring or the Chapter 11 Restructuring (including the Plan), as applicable, (i) will be consistent with the Restructuring Term Sheet and (ii) will contain only such other terms and conditions that are reasonably acceptable to Hawkeye. ABE will provide to Hawkeye and its counsel a copy of the proposed Confirmation Order or Contractual Restructuring documentation, as applicable, and a reasonable opportunity to review and comment on such order prior to such Confirmation Order being filed with the Bankruptcy Court or such Contractual Restructuring documentation becoming effective.

(b) ABE agrees with Hawkeye to use reasonable best efforts to effectuate the Private Offering as provided herein and to use best efforts to obtain each of the approvals set forth on the Disclosure Letter (and any other approvals that should have been set forth on the Disclosure Letter). All proceeds from the Private Offering will be invested in HGF and used by HGF to pay-down HGF debt in accordance with the Restructuring Term Sheet.

(c) ABE agrees to notify Hawkeye as and when requested by Hawkeye of the aggregate number of ABE Units known by ABE to have been subscribed for pursuant to the Private Offering.

(d) ABE agrees with Hawkeye to determine the number of Unsubscribed Units, if any, in good faith, to provide a Purchase Notice or a Satisfaction Notice that accurately reflects the number of Unsubscribed Units as so determined and to provide to Hawkeye a certification by the Subscription Agent of the Unsubscribed Units or, if such certification is not available, such backup to the determination of the Unsubscribed Units as Hawkeye may reasonably request.

6. Additional Covenants of Hawkeye . Hawkeye agrees with ABE:

(a) To provide ABE with such information as ABE reasonably requests regarding Hawkeye for inclusion in the Disclosure Statement or in any Offering Document.

(b) Not to file any pleading or take any other action in the Bankruptcy Court with respect to this Agreement, the Plan, the Disclosure Statement or the Confirmation Order or the consummation of the transactions contemplated hereby or thereby that is inconsistent with this Agreement or ABE’s efforts to obtain the entry of the Court Orders consistent with this Agreement.

7. Conditions to the Obligations of Hawkeye . The obligation of Hawkeye to purchase Hawkeye Additional Units pursuant to the Backstop Commitment on the Closing Date are subject to the following conditions:

(a) ABE shall have entered into a Registration Rights Agreement (the “ Registration Rights Agreement ”) with respect to the Hawkeye Additional Units that gives Hawkeye registration rights with respect to the Hawkeye Additional Units that are substantially the same as the registration rights granted to Hawkeye pursuant to that Registration Rights Agreement, dated August 28, 2009, as amended or supplemented from time to time, by and between ABE and Hawkeye or such other terms as ABE and Hawkeye may mutually agree;

(b) Hawkeye shall have received enforceable pro-rata participation rights and anti-dilution rights with respect to the Hawkeye Additional Units that are substantially the same as the pro-rata participation rights and anti-dilution rights set forth in Sections 2 and 3, respectively, of the Letter Agreement or such other terms as ABE and Hawkeye may mutually agree;

(c) following the Restructuring Closing, each of the Ethanol Agreements and the Distillers Grain Agreements shall be in full force and effect;

(d) the Registration Rights Agreement, the Ethanol Agreements, the Distillers Grain Agreements and all other agreements or arrangements referenced in this

Section 7 (collectively, including this Agreement, the “ Offering Documents ”) shall have been approved by all, if any, third parties from whom consent to such respective agreements or arrangements is necessary;

(e) ABE shall have commenced the Private Offering, the Private Offering shall have been conducted in all respects in accordance with this Agreement and the Subscription Expiration Date shall have occurred;

(f) Hawkeye shall have received a Purchase Notice in accordance with Section 1(i) from ABE, dated as of the Determination Date, certifying as to the number of Unsubscribed Units to be purchased pursuant to the Backstop Commitment;

(g) the Hawkeye Additional Units shall be, upon payment of the aggregate Purchase Price as provided herein, validly issued, fully paid, non-assessable and free and clear of all taxes, liens, pre-emptive rights, rights of first refusal, subscription and similar rights;

(h) no judgment, injunction, decree or other legal restraint shall prohibit, or have the effect of rendering unachievable, the consummation of the Restructuring, the Private Offering or the transactions contemplated by this Agreement;

(i) this Agreement shall be valid and enforceable against ABE and ABE shall not be in breach of this Agreement;

(j) the representations and warranties of ABE in Section 3 shall be true and correct in all material respects as if made on the Closing Date (except for representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such specified date);

(k) ABE and each of its subsidiaries (other than HGF and its subsidiaries) shall be in full compliance with, and following the closing of the transactions contemplated by the Offering Documents will be in full compliance with, all credit agreements and similar documents to which they are parties, including, without limitation, all financial covenants therein, and HGF and each of its subsidiaries will be in full compliance with all credit agreements and similar documents to which they are parties, including, without limitation, all financial covenants therein, following the effectiveness of the Restructuring on the Closing Date;

(l) all proceeds (net of offering expenses) from the Private Offering will be invested in HGF and used by HGF to pay-down HGF debt in accordance with the Restructuring Term Sheet, and Hawkeye shall have received documentation reasonably satisfactory to Hawkeye that such use of proceeds is in compliance with the credit agreements and similar documents of ABE and each of its subsidiaries.

(m) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any Material Adverse Effect. For purposes of this Agreement, a “ Material Adverse Effect ” shall mean any change, effect, event, occurrence, development, circumstance, or state of facts which, either alone or in combination, has had, or would reasonably be expected to have, a materially adverse effect

on the business, properties, operations, financial condition or results of operations of ABE and its subsidiaries taken as a whole, or which would reasonably be expected to materially impair its or their ability to perform its or their obligations under this Agreement or the Plan, or have a materially adverse effect on or prevent or materially delay the consummation of the transactions contemplated by this Agreement or the Plan (it being acknowledged by Hawkeye that a Restructuring on the terms contemplated by this Agreement does not in itself constitute a Material Adverse Effect);

(n) the Restructuring shall have been successfully completed, or will be successfully completed on the Closing Date, in accordance with the terms of the Restructuring Term Sheet, which terms shall result in ABE owning in excess of 99% of the equity interests of HGF and its subsidiaries; and if the Restructuring is not a Contractual Restructuring, then:

(i) if approval of this Agreement by the Bankruptcy Court is necessary, an entry of orders of the Bankruptcy Court approving this Agreement (the “ Agreement Order ”) shall have been entered by the Bankruptcy Court and shall not have been reversed, stayed, modified, or amended;

(ii) The Confirmation Order shall have been entered by the Bankruptcy Court and such order shall be nonappealable, shall not have been appealed within ten calendar days of entry or, if such order is appealed, shall not have been stayed pending appeal, and there shall not have been entered by any court of competent jurisdiction any reversal, modification or vacatur, in whole or in part, of the Confirmation Order;

(iii) The Plan, as approved, and the Confirmation Order as entered, by the Bankruptcy Court, shall (A) be consistent in all material respects with the Restructuring Term Sheet and (B) contain only such other terms and conditions that are reasonably acceptable to Hawkeye;

(iv) The conditions to confirmation and the conditions to the effective date of the Plan have been satisfied or waived by HGF in accordance with the Plan, and the effective date of the Plan shall have occurred or will occur on the Closing Date; and

(v) the Chapter 11 Case of HGF shall not have been converted to one or more cases under chapter 7 of the Bankruptcy Code or to one or more liquidating chapter 11 cases thereunder or have been dismissed; and

(p) the LLC Agreement Amendment shall have become effective to permit the issuance of additional Units contemplated by the Private Offering.

8. Indemnification .

(a) Whether or not the Private Offering is consummated or this Agreement or the Backstop Commitment is terminated, ABE will indemnify Hawkeye, its Affiliates and their respective officers, directors, employees, advisors, shareholders, members, managers, partners, attorneys, agents and representatives (the “ Indemnitees ”), from and against all losses, claims, damages, liabilities, costs (including, without limitation,

the costs of investigation and attorneys’ fees) and expenses (collectively, “ Losses ”) to which any of the Indemnitees becomes subject arising out of or in connection with any third-party claim, challenge, litigation, investigation or proceedings with respect to the Private Offering, the Backstop Commitment, this Agreement, the Restructuring, any Plan, any Agreement Order, any Confirmation Order or the transactions contemplated by the foregoing, including, without limitation, reimbursement of Hawkeye fees and expenses, offer of the ABE Units, purchase and sale of ABE Units in the Private Offering and purchase and sale of ABE Units pursuant to the Backstop Commitment, or any breach by ABE of this Agreement, or to reimburse each of the Indemnitees for any legal or other costs and expenses incurred in connection with investigating or defending, participating or testifying in any of the foregoing, provided , however , that the foregoing indemnity will not apply to Losses to the extent that they are found by a final, nonappealable judgment of a court of competent jurisdiction to have resulted from (A) a breach by Hawkeye of the Restructuring Documents or (B) bad faith, the willful misconduct or gross negligence of such Indemnitees. Such legal or other expenses shall be promptly reimbursed as and when they are incurred.

(b) In case any proceeding shall be instituted in respect of which indemnity may be sought pursuant to the paragraph above, the Indemnitee shall promptly notify ABE. In any event, failure to notify ABE will not relieve ABE from any liability which it may have on account of this indemnity or otherwise, except to the extent ABE is materially prejudiced by such failure. Upon ABE’s prompt written notice to Hawkeye, ABE may retain counsel reasonably satisfactory to Hawkeye to represent Hawkeye and any Indemnitee and will pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnitee will have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnitee unless (i) ABE and Hawkeye have mutually agreed to the retention of such counsel or (ii) the Indemnitee has been advised by counsel that there are actual or potential conflicting interests between ABE and the Indemnitee, including situations in which there are one or more legal defenses available to the Indemnitee that are different from or additional to those available to ABE. It is understood that ABE shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnitees in any matter or series of related matters.

9. Survival of Representations and Warranties, Etc . Notwithstanding any investigation at any time made by or on behalf of any party hereto, all representations and warranties made in this Agreement will survive the execution and delivery of this Agreement and the issuance of the Hawkeye Additional Units.

10. Termination .

(a) Either ABE or Hawkeye may terminate this Agreement in the event the Lock-Up Agreement is not entered into within two Business Days after the date of this Agreement or in the event the Lock-Up Agreement is terminated. In the event the total number of ABE Units included in the Private Offering or the allocation of such ABE Units among purchasers has not been fully and finally determined on or prior to May 17, 2010, Hawkeye may terminate this Agreement on or after May 18, 2010. In the event the Restructuring is structured as a Contractual Restructuring and the Hawkeye Additional Units are not issued on or prior to May 28, 2010, Hawkeye may terminate this

Agreement on or after May 29, 2010. In the event the Restructuring is structured as a Chapter 11 Restructuring but one or more of the approvals set forth on the Disclosure Letter (and any other approvals that should have been set forth on the Disclosure Letter) has not been obtained on or prior to May 28, 2010, it being acknowledged that such approvals may be conditioned, in a manner reasonably acceptable to Hawkeye, on the effectiveness of a restructuring of the HGF debt substantially on the terms set forth in the Restructuring Term Sheet, Hawkeye may terminate this Agreement on or after May 29, 2010. In the event the Restructuring is structured to be effected as a Chapter 11 Restructuring, the Hawkeye Additional Units are not issued on or prior to July 31, 2010 and this Agreement has not previously been terminated, Hawkeye may terminate this Agreement on or after August 1, 2010.

(b) Notwithstanding the termination of this Agreement pursuant to Section 10(a), each party shall remain liable for the breach of this Agreement.

11. Notices . All notices and other communications in connection with this Agreement will be in writing and will be deemed given (and will be deemed to have been duly given upon receipt) if delivered personally, sent via electronic facsimile (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) to the parties at the following addresses (or at such other address for a party as will be specified by like notice):


If to Hawkeye:		with a copy to:

	Hawkeye Energy Holdings, LLC		Weil, Gotshal & Manges LLP
	224 S. Bell Ave.		100 Federal Street, 34th Floor
	Ames, Iowa 50010		Boston, Massachusetts 02110
	Attention: Timothy B. Callahan		Attention: Steven M. Peck
	Fax: (515) 233-5577		Fax: (617) 772-8333

If to ABE:		with a copy to:

	Advanced BioEnergy, LLC		Faegre & Benson LLP
	10201 Wayzata Boulevard, Suite 250		2200 Wells Fargo Center
	Minneapolis, Minnesota 55305		90 South Seventh Street
	Attention: Richard Peterson		Minneapolis, Minnesota 55402
	Fax: (763) 226-2725		Attention: Peter J. Ekberg
			Fax: (612) 766-1600

12. Assignment; Third Party Beneficiaries . Neither this Agreement nor any of the rights, interests or obligations under this Agreement will be assigned by any of the parties (whether by operation of law or otherwise) without the prior written consent of the other party. Notwithstanding the previous sentence, this Agreement, or Hawkeye’s obligations hereunder, may be assigned, delegated or transferred, in whole or in part, by Hawkeye to any Affiliate (as defined in Rule 12b-2 under the Exchange Act) of Hawkeye which is an “accredited investor” within the meaning of rule 501 under the Securities Act, provided , that any such assignee assumes the obligations of Hawkeye hereunder and agrees in writing to be bound by the terms of this Agreement in the same manner as Hawkeye. Notwithstanding the foregoing or any other provisions herein, no such assignment will relieve Hawkeye of its obligations hereunder if such assignee fails to perform such obligations. This Agreement will be binding upon, inure to the benefit of and be enforceable by each of the parties and their respective successors and assigns.

This Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies under this Agreement; provided , however , that each of the Indemnitees shall be considered an explicit third-party beneficiary of the provisions set forth in Section 8.

13. Prior Negotiations; Entire Agreement . This Agreement (including the agreements attached as exhibits to and the documents and instruments referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all prior agreements and understandings, whether written or oral, between the parties with respect to the subject matter of this Agreement, except that the parties hereto acknowledge that any confidentiality agreements heretofore executed among the parties will continue in full force and effect.

14. Governing Law, Jurisdiction . This Agreement and all actions arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to any conflicts of law provision that would require the application of the law of any other jurisdiction. Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement or the transactions contained in or contemplated by this Agreement, whether in tort or contract or at law or in equity, exclusively in a court in the State of Delaware or, as applicable, the Bankruptcy Court.

15. Counterparts . This Agreement may be executed in any number of counterparts, all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the parties and delivered to the other party (including via facsimile or other electronic transmission), it being understood that each party need not sign the same counterpart.

16. Waivers and Amendments . This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege pursuant to this Agreement will operate as a waiver thereof, nor will any waiver on the part of any party of any right, power or privilege pursuant to this Agreement, nor will any single or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies which any party otherwise may have at law or in equity.

17. Headings . The headings in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement.

18. Specific Performance . The parties acknowledge and agree that any breach of the terms of this Agreement would give rise to irreparable harm for which money damages would not be an adequate remedy, and, accordingly, the parties agree that, in addition to any other remedies, each will be entitled to enforce the terms of this Agreement by a decree of specific performance without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting bond.

19. No Solicitation, Etc. This Agreement is not and shall not be deemed to be a solicitation for votes in favor of the Plan in any Chapter 11 Case. Each party hereto acknowledges

that it has been represented by counsel in connection with this Agreement and the transactions contemplated hereby. The provisions of this Agreement shall be interpreted in a reasonable manner to effectuate the intent of the parties hereto.

20. Further Assurances . Each of the parties hereto agrees to execute and deliver, or to cause to be executed and delivered, all such instruments, and to take all such action as the other parties hereto may reasonably request, in order to effectuate the intent and purposes of, and to carry out the terms of, this Agreement.

[Signature Page Follows]

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


Advanced BioEnergy, LLC
By:	/s/ Richard R. Peterson
	Name:	Richard R. Peterson
	Its:	Chief Executive Officer, President and Chief Financial Officer


Hawkeye Energy Holdings, LLC
By:	/s/ Timothy B. Callahan
	Name:	Timothy B. Callahan
	Its:	Chief Financial Officer

(SIGNATURE PAGE TO BACKSTOP COMMITMENT AGREEMENT)

Exhibit 10.3

EXCLUSIVE ETHANOL MARKETING AGREEMENT

April 7, 2010

This EXCLUSIVE ETHANOL MARKETING AGREEMENT (this “ Agreement ”) is made as of the date first written above, and entered into and effective as of the Effective Date (as hereinafter defined), by and between Hawkeye Gold, LLC, a Delaware limited liability company (“ Gold ”), and Heartland Grain Fuels, L.P., a South Dakota limited partnership (“ Producer ”).

RECITALS

WHEREAS, Producer operates an ethanol plant located in or around Aberdeen, South Dakota (as the same may be expanded from time to time, including any conversion involving the use of new technology, the “ Plant ”);

WHEREAS, Producer desires to sell to Gold, and Gold desires to purchase from Producer, all of the denatured fuel grade ethanol produced at the Plant (the “ Ethanol ”), all upon and subject to the terms and conditions set forth in this Agreement;

WHEREAS, this Agreement is being entered into in connection with the execution and delivery of that certain Backstop Commitment Agreement, dated as of the date hereof, by and between Advanced BioEnergy, LLC, a Delaware limited liability company and Hawkeye Energy Holdings, LLC, a Delaware limited liability company (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Backstop Agreement ”); and

WHEREAS, capitalized terms used in this Agreement are used herein as defined in Section 45 hereof.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Gold and Producer hereby agree as follows:

Section 1. Purchase Orders .

a. Purchase Orders Generally . Gold shall use its commercially reasonable efforts to from time to time submit purchase orders or purchase contracts (each a “ Purchase Order ”) to Producer for purchases constituting, in the aggregate, the entire output of Ethanol from the Plant, each such Purchase order to be upon and subject to the terms and conditions of this Agreement. Gold’s analysis of the commercial reasonableness of a Purchase Order may include, among other factors, the performance and credit risk of the proposed end customer for the Ethanol in question.

b. Form of Purchase Orders . Gold may place a Purchase Order with Producer orally, by email or by a written purchase order or contract in a form mutually acceptable to Producer and Gold. The terms of any Purchase Order may include a request for the sale and delivery of Ethanol on a one-time basis or on a daily, weekly, monthly, quarterly or other periodic basis. Each Purchase Order shall be irrevocable by Gold during the Acceptance Period (as defined below), unless and until it becomes a Rejected Purchase Order. A Purchase Order may take the form of (A) a Direct Fixed Price Purchase Order (as defined below), (B) a Direct Index Price Purchase Order (as defined below), (C) a Terminal Storage Purchase Order (as defined below), or (D) a transportation swap or similar transaction that is mutually acceptable to Producer and Gold. Each Purchase Order shall be subject to the terms and conditions of this Agreement except, with respect to any Purchase Order, to the extent expressly set forth in writing in such Purchase Order.

i. Direct Fixed Price Purchase Orders . Gold may place a Purchase Order with Producer for a fixed quantity of Ethanol to be sold for a fixed price-per-gallon to an end customer of Gold (each a “ Direct Fixed Price Purchase Order ”). Delivery Payments for Direct Fixed Price Purchase Orders will be paid by check of Gold or by wire transfer (according to Producer’s preference) on or before the earliest to occur of the date that is two Business Days after Gold receives payment for the relevant Ethanol from Gold’s customer and the first Business Day that is at least 20 days after the date on which the relevant Ethanol was loaded at the Plant (as evidenced by the date on which all Payment Documents for such shipment have been delivered).

ii. Direct Index Price Purchase Orders . Gold may place a Purchase Order with Producer for a fixed quantity of Ethanol to be sold for based on a formula agreed upon between Gold and an end customer which formula takes into account standard benchmark daily prices for a given period (for example: the average Platt’s New York ethanol price-per-gallon for a given month), as specified in such Purchase Order (each a “ Direct Index Price Purchase Order ”). Gold and Gold’s end customer will agree on a pro forma initial purchase price-per-gallon for Ethanol delivered pursuant to a Direct Index Price Purchase Order (with respect to such Purchase Order, the “ Pro Forma Price ”). Delivery Payments of the applicable Pro Forma Price for Direct Index Price Purchase Orders will be paid by check of Gold or by wire transfer (according to Producer’s preference) on or before the earliest to occur of the date that is two Business Days after Gold receives payment for the relevant Ethanol from Gold’s customer and the first Business Day that is at least 20 days after the date on which the relevant Ethanol was loaded at the Plant (as evidenced by the date on which all Payment Documents for such shipment have been delivered); provided , however , that Delivery Payments for the sale of Terminal Storage Ethanol (as defined below) shall be paid in accordance

with Section 1(b)(iii) . For each delivery of Ethanol made pursuant to a Direct Index Price Purchase Order, Gold shall, no later than seven days after the end of the applicable calendar month during which a Delivery Payment was paid for such Ethanol, inform Producer of the Final Purchase Price. If the Final Purchase Price is lower than the Pro Forma Price of such Ethanol, Producer shall be liable for such difference (each, a “ Producer True-Up Amount ”) and Gold may, at its option, either (i) invoice Producer for such Producer True-Up Amount, in which event Producer shall pay such Producer True-Up Amount to Gold within five days of the date on which such invoice is delivered to Producer; or (ii) include such Producer True-Up Amount in the Set-Off Amount deductible from a future Delivery Payment or set off against and withhold such Producer True-Up Amount from any Gold True-Up Amounts then due and payable. If, however, the Final Purchase Price is greater than the Pro Forma Price, then Gold shall, at its option, (i) pay such difference (each, a “ Gold True-Up Amount ”) to Producer within five days of Gold’s determination thereof, or (ii) set off such Gold True-Up Amount against any Set-Off Amount then due and owing to Gold.

iii. Terminal Storage Purchase Orders . Gold may place a Purchase Order with Producer for a fixed quantity of Ethanol to be shipped to a terminal location (with respect to such shipment, the “ Terminal Storage Ethanol ”) unsold to an end customer with the intention of selling such Terminal Storage Ethanol en route or after delivery to the terminal (“ Terminal Storage Purchase Orders ”). Gold will determine and specify a Pro Forma Price for the Terminal Storage Ethanol in any Terminal Storage Purchase Order, to be used for Producer’s and Gold’s respective accounting purposes, but such Pro Forma Price will not represent the final Delivery Payment for such Terminal Storage Purchase Order. Gold will submit one or more Direct Fixed Price Purchase Orders or Direct Index Price Purchase Order for the Terminal Storage Ethanol when the applicable shipment is en route or after delivery to the terminal (each such Purchase Order, with respect to the Terminal Storage Ethanol, a “ Supplemental Purchase Order ”). Notwithstanding anything in this Agreement to the contrary, any Delivery Payment for Terminal Storage Ethanol will be paid by check of Gold or by wire transfer (according to Producer’s preference) on or before the earliest to occur of the date that is two Business Days after Gold receives payment for the relevant Terminal Storage Ethanol from Gold’s customer; and the first Business Day that is at least 20 days after the date on which the relevant Terminal Storage Ethanol was actually shipped or transferred to Gold’s end customer. Subject to Gold’s duties pursuant to Section 15(a)(i) , in the event that any Terminal Storage Ethanol remains unsold for more than 30 days after delivery to the applicable storage terminal, Gold shall have the right and authority to sell such Terminal

Storage Ethanol to such customer or customers as are determined by Gold, and without any notice to or further approval of Producer; provided , that upon consummation of any such sale, Gold shall make a Delivery Payment for such Terminal Storage Ethanol as though such sale were an Accepted Supplemental Purchase Order.

Section 2. Acceptance or Rejection of Purchase Orders . Producer shall, in its sole discretion (based on Producer’s commercially reasonable judgment), accept or reject each Purchase Order, in whole, but not in part. Producer shall notify Gold of whether Producer accepts or rejects each particular Purchase Order within the time period specified in the Purchase Order, or if no time period is specified in the Purchase Order, by 5:00 p.m. (Ames, Iowa local time) on the date on which such Purchase Order is submitted (in either case, the “ Acceptance Period ”), and if Producer fails to notify Gold within the Acceptance Period, Producer shall be deemed to have rejected the Purchase Order. Gold reserves the right to require Producer to accept or reject any particular Purchase Order in writing. Producer hereby acknowledges that Gold will rely on Accepted Purchase Orders in its decisions to enter into third-party agreements for the sale of Ethanol to Gold’s end customers. In the event that Producer is unable to deliver Ethanol (due to unforeseen production shortfalls or otherwise) pursuant to the terms of a given Accepted Purchase Order, Gold will use its commercially reasonable efforts to restructure the corresponding third-party agreement or otherwise procure replacement ethanol for delivery to its end customer. If, as a result of Producer’s failure to deliver, Gold incurs costs in replacing such Ethanol or terminating such third-party agreement, Producer shall pay to Gold all such replacement or other costs incurred by Gold in fulfilling or terminating its obligations to the respective end customer (collectively “ Replacement Costs ”).

Section 3. Payment Documents . As a precondition to Gold’s obligation to make the Delivery Payment for a given shipment of Ethanol, Gold shall have received from Producer all meter certificates, bills of lading and certificates of analysis (each in proper form) for such shipment (collectively, the “ Payment Documents ”). Notwithstanding anything in this Agreement to the contrary, if Gold has not received all Payment Documents for a given Ethanol shipment by the applicable payment date for such shipment, the Delivery Payment for such shipment shall instead be made on the second Business Day following the receipt of all Payment Documents for such shipment.

Section 4. Optional Accelerated Delivery Payments . Producer may elect to receive Delivery Payments on a consistent weekly basis for a given calendar quarter (or quarters) by giving advance written notice of such election to Gold at least 14 days prior to the start of the first calendar quarter to which such notice applies, and specifying the quarter(s) to which such notice applies (each such notice, a “ Payment Acceleration Notice ”). Gold shall accept or reject each Payment Acceleration Notice within 10 days of Gold’s receipt thereof, and if Gold fails to notify Producer within such 10 day period, Gold shall be deemed to have accepted such Payment Acceleration Notice. Notwithstanding anything in this Agreement to the contrary, during any calendar quarter

for which a Payment Acceleration Notice has been properly delivered to and accepted by Gold:

a. Gold shall make Delivery Payments each Thursday for all Direct Shipments that were previously delivered to Gold and all Terminal Storage Shipments that were previously shipped to Gold’s customers, in each case for which a Delivery Payment has not previously been made and with respect to which the Payment Documents were received by Gold on or before 11:59 p.m. on the preceding Sunday (each such date of payment, a “ Payment Acceleration Date ”);

b. the Set-Off Amount that may be deducted from any Delivery Payment shall include an amount equal to 0.41% (such percentage, or such other percentage of which Gold may later notify Producer upon 10 days’ advance written notice, the “ Surcharge Percentage ”) multiplied by the amount of such Delivery Payment (such amount the “ Acceleration Surcharge Amount ”); and

c. upon written notice to Producer of an increase in the Surcharge Percentage, Producer may, at its option, terminate any then-effective Payment Acceleration Notice at any time prior to the effective date of such increased Surcharge Percentage.

Notwithstanding anything in this Agreement to the contrary, Gold may, (i) upon 10 days’ advance written notice, terminate Producer’s right to submit and receive the benefits of future Payment Acceleration Notices, in which case, upon the expiration of any then-effective Payment Acceleration Notice(s), all Delivery Payments will be made pursuant to Section 1 , and (ii) upon 10 days’ advance written notice terminate any then-effective Payment Acceleration Notice, in which case all remaining Delivery Payments will be made during such calendar quarter pursuant to Section 1 .

Section 5. Production and Loading Schedules .

a. Production Schedules . From time to time as commercially reasonable and necessary, Producer shall provide to Gold production schedules that will to the best of Producer’s knowledge, accurately specify the Ethanol production schedule at the Plant for upcoming period of production broken down by week and by calendar month. Producer shall also provide to Gold, on a daily basis by 8:30 a.m. (Ames, Iowa local time), a status report regarding that day’s Ethanol inventory and production schedule for the Plant. Producer shall utilize its best efforts to produce the amount of Ethanol set out in its previously submitted production schedules and shall in all events fulfill each Accepted Purchase Order.

b. Loading Schedules . Gold shall schedule the loading and shipping of Ethanol which becomes the subject of an Accepted Purchase Order, and shall provide Producer with daily or other periodic loading schedules (each a “ Loading Schedule ” and, collectively, the “ Loading Schedules ”) specifying the quantities of Ethanol to be removed from the Plant each day, and specifying the method of removal (i.e., by truck or

rail), with sufficient advance notice so as to allow Producer, acting in a commercially reasonable manner, to timely perform Producer’s loading and related obligations under this Agreement. Gold shall determine whether each shipment of Ethanol shall be shipped by truck or rail.

c. Cooperation . To ensure that Gold can satisfy its contractual commitments with Gold’s customers, Producer and Gold shall cooperate in coordinating production schedules and loading schedules, including by promptly notifying the other of any changes in, respectively, any production schedules or loading schedules delivered under this Section 5 ; provided, however, that Gold shall be entitled to act and rely upon each Accepted Purchase Order, each Eight Week Schedule provided by Producer and each loading schedule provided by Gold.

Section 6. Delivery, Storage, Loading, Title .

a. Delivery . The place of delivery for all Ethanol shall be the Plant. Producer shall grant and allow Gold and the Carriers access to the Plant in a manner and at all times reasonably necessary and appropriate for Gold to take delivery of Ethanol in accordance with the Loading Schedules.

b. Producer to Provide Trucks and Railcars . Producer shall utilize Producer’s best efforts to obtain access to and the use of the number of trucks and railcars, through ownership, lease or other arrangement, as Gold, pursuant to Section 7 , advises Producer may be necessary from time to time for the shipment of the Ethanol (collectively, the “ Carriers ”). All Carriers must be approved by Gold (such approval not to be unreasonably withheld). Producer shall make the Carriers available to Gold for the loading, shipment and transportation of Ethanol, and Gold shall have the right to direct the Carriers for and on behalf of Producer. Producer shall also be responsible for negotiating the rates and other terms of all rail and freight contracts (the “ Rail Contracts ”).

c. Payment of Freight Costs by Producer . Producer shall be responsible for, and shall timely pay, all fees, costs, expenses and other amounts incurred or payable in connection with the pick-up, shipment, delivery or other transportation of Ethanol to Gold’s customers, or, in the event of an Accepted Terminal Storage Purchase Order, to the storage facility or terminal in question, including all amounts payable under the Rail Contracts and to the Carriers and all freight, express bills, terminal fees, insurance, taxes and all other related or similar costs, expenses, charges, fees and other amounts (collectively, the “ Freight Costs ”). Producer shall provide Gold with satisfactory evidence of the Freight Costs for each shipment of Ethanol from the Plant (each, a “ Freight Cost Report ”). If Gold pays any Freight Costs (“ Gold Freight Costs ”), Gold may, at its option, either (i) invoice Producer for such Gold Freight Costs, in which event Producer shall reimburse Gold for all such Gold Freight Costs within 5 days of Producer’s receipt of an invoice therefor from Gold; or (ii) include such Gold Freight Costs in the Set-Off Amount deductible from future Delivery Payments, pursuant to the

definition of “Delivery Payment,” and/or set off against and withhold such Gold Freight Costs from any Gold True-Up Amounts payable hereunder.

d. Storage . Gold may store the Ethanol that is the subject of an Accepted Storage Purchase Order on such storage terms as are determined by Gold. Producer acknowledges that all Ethanol that is in storage will likely be in commingled storage with ethanol of various third parties, including ethanol that Gold has purchased from Other Clients. Gold shall have the right and authority to treat all ethanol that Gold has in storage, including Ethanol in storage pursuant to an Accepted Storage Purchase Order and whether or not in commingled storage, as fungible, and to exchange or otherwise allocate any such ethanol between or among Producer, Other Clients and third parties as Gold determines to be necessary or appropriate to effectuate sales of the ethanol, to meet any inventory residence time restrictions or requirements, or otherwise.

e. Payment of Allocated Storage Costs by Producer . On a monthly basis, Gold shall either (i) invoice Producer for any or all of its Allocated Storage Costs, in which event Producer shall pay such Allocated Storage Costs to Gold within five days of Producer’s receipt of an invoice therefor from Gold; or (ii) include such Allocated Storage Costs in the Set-Off Amount deductible from future Delivery Payments, pursuant to the definition of “Delivery Payment,” and/or set off against and withhold such Allocated Storage Costs from any Gold True-Up Amounts payable hereunder.

f. Delivery of Payment and Other Documents and Information .

i. Producer shall provide Gold with a certificate of analysis in form and content consistent with industry standards, legal requirements, the reasonable requirements of Gold’s customers and otherwise reasonably acceptable to Gold for each truck and rail car of Ethanol which is sold to Gold pursuant to this Agreement. Producer shall also provide Gold each day, weekends and holidays excluded, with meter certificates and bills of lading for the previous day’s deliveries of Ethanol to Gold. The meter certificates and bills of lading with respect to any deliveries that are made on a weekend or a holiday will be provided to Gold on the next succeeding Business Day. All meter certificates and bills of lading provided by Producer must meet and comply with industry standards, the reasonable requirements of Gold’s customers and the requirements of all applicable laws, rules and regulations. Producer shall provide Gold with a Freight Cost Report for each shipment of Ethanol as soon as it is available, but in all events prior to the Delivery Payment for the Ethanol in question.

ii. Producer is responsible for complying with, and generating all reports, documents and information required under, all federal, state or other laws, rules or regulations in any way related to volume accounting or the tracking, labeling or other identification of ethanol, including the renewable identification number requirements of the U.S. Environmental Protection Agency.

iii. Producer shall also provide Gold, within such time period as is reasonably specified by Gold, with all such other documentation and information as may from time to time become necessary or appropriate under industry standards or applicable laws, rules or regulations.

g. Producer Storage Space . Producer shall provide storage space at the Plant for a minimum of 7 days of Ethanol production at the Plant (the “ Maximum Storage ”), with the number of gallons of storage of Ethanol available at the Plant based on the current production capacity of the Plant being set forth below Producer’s signature to this Agreement, and such storage space shall be continuously available for Gold’s use for storage of Ethanol, without charge to Gold.

h. Loading .

i. Subject to Section 6(b) and Section 6(c) , Gold shall arrange for trucks or railcars of the Carriers to be at the Plant for pick-up of Ethanol in accordance with the Loading Schedules.

ii. Producer shall timely provide and supply, without charge to Gold, all facilities, equipment and labor necessary to load the Ethanol into a given Carrier’s trucks or railcars at the Plant in accordance with the Loading Schedules. Producer shall be liable and responsible for all demurrage and other costs and expenses arising from Producer’s failure to timely satisfy and meet Gold’s loading schedules. Producer agrees that all railcars shall be loaded to full visible capacity at the Plant and shall be sealed prior to leaving the Plant. Producer shall maintain all loading facilities and equipment at the Plant in accordance with industry standards and in good and safe operating condition and repair, subject to ordinary wear and tear and depreciation.

i. Handling of Ethanol . Producer shall handle the Ethanol during the loading process in a good and workmanlike manner and in accordance with industry practices and Gold’s reasonable requirements, including with respect to shrinkage in quantity. Producer shall visually inspect all trucks and railcars for cleanliness in order to avoid contamination of the Ethanol and shall assure that the trucks and railcars are not overfilled at the Plant.

j. Title and Risk of Loss . The title to, and all risk of loss of, all Ethanol which is purchased by Gold (including pursuant to an Accepted Terminal Storage Purchase Order) shall automatically pass from Producer to Gold at the time after both (i) the Ethanol has crossed the loading flange between the Plant and the truck or railcar, as the case may be, of the Carrier and (ii) the Payment Documents for the applicable shipment have been delivered to Gold.

Section 7. Gold Consulting Regarding Trucks and Railcars .

a. Gold shall consult with Producer regarding the number of trucks and railcars that may be needed from time to time to ship the Ethanol. Gold shall not have any liability or responsibility with respect to or for the lease or other arrangements of Producer regarding any trucks or railcars or otherwise for or with respect to the Carriers, including for any acts or omissions of the Carriers.

b. Gold shall utilize commercially reasonable efforts to coordinate the scheduling of Producer’s railcars for Producer in a cost effective manner, but Producer acknowledges that the efficient use of Producer’s railcars depends on various factors, many of which are outside of Gold’s control, including general market conditions for ethanol, general railroad and freight conditions, the frequency of Accepted Purchase Orders, the delivery times under Accepted Purchase Orders and the locations and related transportation periods which apply to Gold’s customers for Ethanol.

Section 8. Quantity of Ethanol .

a. The quantity of Ethanol delivered to Gold under this Agreement shall be definitively established by outbound meter certificates obtained from meters of Producer that are properly certified as of the time of loading in accordance with any requirements imposed by any governmental or regulatory authorities and that otherwise comply with all applicable laws, rules and regulations. The quantity of Ethanol shall be determined and expressed in net temperature-corrected gallons in accordance with customary industry weights, measures and standards, which as of the date of this Agreement require Ethanol to be delivered in gallons which have been temperature corrected to 60 degrees Fahrenheit. Producer shall bear and be responsible for any errors created or caused by Producer’s meters.

b. The current monthly nameplate production capacity of Ethanol at the Plant is set forth below Producer’s signature to this Agreement (the “ Monthly Production ”). Producer may, however, expand the capacity of the Plant. If Producer determines to expand the capacity of the Plant, Producer shall give Gold reasonable notice of such increased capacity so that Gold can effectively market any additional Ethanol produced. Such notice will include written notice of: (i) such expansion at least six months before the estimated substantial completion date of the construction activities related to such expansion, and (ii) the new Monthly Production amount by no later than the substantial completion date of the expansion.

Section 9. Quality of Ethanol .

a. Producer acknowledges that Gold intends to sell the Ethanol as motor fuel quality ethanol, and that the Ethanol is subject to industry standards and governmental standards. Producer represents and warrants to Gold that all Ethanol, in the form loaded onto the truck or railcar of the Carrier: (i) shall meet or exceed the standards, specifications and other requirements set forth in Exhibit A (attached hereto), as

Exhibit A may be amended, restated, amended and restated, supplemented or otherwise modified from time to time by Gold (as provided below); (ii) shall comply with all applicable governmental laws, rules, regulations, standards and specifications, including with respect to quality, composition, naming and labeling; and (iii) may lawfully be introduced into interstate commerce.

b. Gold may amend, restate, supplement or otherwise modify Exhibit A at any time and from time to time as Gold deems necessary or appropriate to comply with any changes in industry standards or applicable federal or state laws, rules or regulations, with each such amended, restated, supplemented or otherwise modified Exhibit A to be effective with respect to all Accepted Purchase Orders which become such after the date of Producer’s receipt of such updated Exhibit A from Gold.

Section 10. Rejection of Ethanol by Gold .

a. Gold may reject, before or after delivery, any Ethanol that fails to conform to Section 9 or is otherwise unsaleable because of a failure to meet industry standards or the requirements of any applicable law, rule or regulation; provided, however, that Producer must receive written notice of rejection of a load of Ethanol on such basis from Gold within two days of the delivery of such Ethanol to the end customer of Gold or such Ethanol shall be deemed to be accepted by Gold, but such deemed acceptance shall not constitute a waiver of or otherwise affect any other rights or remedies of Gold under this Agreement, at law, in equity or otherwise.

b. If any Ethanol is seized or condemned by any governmental authority for any reason other than the failure of Gold to comply with any term of this Agreement (any such seizure or condemnation, a “ Governmental Seizure ”), the Governmental Seizure shall automatically constitute a rejection by Gold of the Ethanol which is the subject of the Governmental Seizure, and Gold shall have no obligation to offer any defense in connection with the Governmental Seizure. Gold shall, however, notify Producer of the Governmental Seizure within two days of Gold receiving notice of the Governmental Seizure. Gold shall also reasonably cooperate with Producer, but at Producer’s cost and expense, in defending against or otherwise contesting the Governmental Seizure.

c. If any Ethanol is rejected by Gold (any such Ethanol, “ Rejected Ethanol ”), Gold will, in the following order:

i. Use reasonable efforts to assist Producer in identifying a use or market for the Rejected Ethanol, which may include sale of the Rejected Ethanol in industrial markets or reprocessing such rejected Ethanol; or

ii. Offer Producer a reasonable opportunity, but in no event to exceed 24 hours following rejection, to examine and take possession of the Rejected Ethanol, at Producer’s cost and expense, but only if Gold

reasonably determines that the condition of the Rejected Ethanol and the other circumstances permit such examination and delivery prior to disposal of the Rejected Ethanol; or

iii. Dispose of the Rejected Ethanol in the manner as directed by Producer, and at Producer’s cost and expense, but subject to the requirements of applicable laws, rules and regulations and to any customer or other third party rights; or

iv. If Producer fails to direct Gold to dispose of the Rejected Ethanol or directs Gold to dispose of the Rejected Ethanol in a manner inconsistent with applicable laws, rules or regulations or with any customer or other third party rights, then Gold may dispose of the Rejected Ethanol as determined by Gold or return the Rejected Ethanol to Producer, in either event at Producer’s cost and expense.

d. Gold’s obligation with respect to any Rejected Ethanol shall be fulfilled upon Producer taking possession of the Rejected Ethanol, the disposal of the Rejected Ethanol or the return of the Rejected Ethanol to Producer, as the case may be, in accordance with subsection 10(c)(i) , (ii) or (iii) above.

e. Producer shall reimburse Gold for all costs and expenses incurred by Gold for storing, transporting, returning, disposing of, or otherwise handling Rejected Ethanol, and Gold shall provide Producer with reasonable substantiating documentation for all such costs and expenses. Producer shall also refund any amounts paid by Gold to Producer for Rejected Ethanol within 5 days of the date of Producer’s receipt of Gold’s written notice of the rejection. Gold has no obligation to pay Producer for Rejected Ethanol, and Gold may deduct from payments otherwise due from Gold to Producer under this Agreement the amount of any reimbursable costs or any required refund by Producer as described above. Gold’s rights and remedies under this Section 10 are not exclusive, and Gold shall also have all other rights or remedies available to Gold under this Agreement, at law, in equity or otherwise for Producer’s failure to deliver Ethanol that complies with this Agreement and to otherwise meet and fulfill the Accepted Purchase Order in question.

f. If any Ethanol is rejected by Gold following the transfer of title and risk of loss to Gold under Section 6(j) , title and risk of loss shall automatically and fully revert to Producer effective upon the rejection of the Ethanol.

Section 11. Testing and Samples .

a. If Producer knows or has reason to believe that any Ethanol does not comply with Section 9 or may be subject to rejection under Section 10 , Producer shall promptly notify Gold so that such Ethanol can be tested by Gold or by an independent laboratory selected by Gold. If Gold knows or has reason to believe that any Ethanol does not comply with Section 9 or may be subject to rejection under Section 10 , then

Gold may test, or may obtain independent laboratory tests of, such Ethanol. If the test was initiated by Gold pursuant to the preceding sentence and if the Ethanol is tested and found to comply with Section 9 and to not be subject to rejection under Section 10 , then Gold shall be responsible for the costs of testing such Ethanol. Producer shall be responsible for all testing costs in all other circumstances.

b. Producer will take an origin sample of Ethanol from every truck and railcar loaded with Ethanol at the Plant, using sampling methodology that is consistent with then prevailing industry standards. Producer will label and number the samples to indicate the date of loading and the truck or railcar number, and will retain the samples for a period consistent with industry standards and applicable laws, rules and regulations, but in no event for less than six months. Producer shall make such samples available to Gold upon any request by Gold. Gold has the right to witness the taking of such samples at any time and from time to time.

Section 12. Gold Marks .

a. Gold may market and sell the Ethanol under such names, marks, brands and logos as are determined by Gold from time to time, in its sole discretion (collectively, the “ Marks ”). The Marks shall at all times be the sole and exclusive property of Gold, and Gold reserves to itself all rights, entitlements and benefits of ownership and property of every kind and nature whatsoever in, to or in any way arising from or related to the Marks, including all goodwill.

b. Producer shall not utilize any of the Marks without the prior written consent of Gold, which consent may be withheld in Gold’s sole discretion. Any permitted use of any Mark by Producer shall not grant Producer any rights in the Mark, other than as a nonexclusive licensee, and shall in each event be (i) limited in scope, area, use and otherwise in accordance with the express consent as granted by Gold; (ii) in strict accordance with Gold’s policies and requirements as established by Gold from time to time, in its sole discretion, regarding the use of the Marks; (iii) nonassignable and nontransferable, whether voluntarily or involuntarily; and (iv) terminable at any time upon the giving of written notice by Gold, with or without cause, and in the absence of any such written notice, terminated automatically and immediately upon the effective time of the termination of this Agreement.

Section 13. Taxes, Fees and Expenses . Producer shall be responsible for all taxes, fees and charges assessed or imposed on the Ethanol by any governmental authority or industry organization with respect to the sale and delivery of the Ethanol to Gold as contemplated by this Agreement, including for branding, packaging, inspection, or otherwise. If any such taxes, fees or charges are paid by Gold, Producer shall reimburse Gold for such taxes, fees and charges within 5 days of the date of Gold’s invoice therefor to Producer, which invoice shall be accompanied by reasonable supporting documentation. Gold shall consult with Producer regarding any taxes, fees or charges payable by Producer under this Section 13 and the related governmental or industry requirements and standards.

Section 14. Duties of Producer . In addition to Producer’s other duties and obligations under this Agreement, Producer agrees as follows:

a. Exclusivity . Producer shall not sell or otherwise dispose of any Ethanol to any person other than Gold during the term of this Agreement; provided , however , that if Producer’s on-hand supply of Ethanol is reasonably expected to exceed Producer’s Maximum Storage because no Purchase Orders have been received from Gold to sell Ethanol or because all Purchase Orders have been properly rejected by Producer and, but for this paragraph, Producer would have to cease production of Ethanol (due to its inability to continue storing such Ethanol), then to the extent no Accepted Purchase Orders remain outstanding and no additional Purchase Orders are Accepted, Producer may sell Ethanol to third parties as necessary in order to maintain an on-hand supply of Ethanol that is equal to five days’ storage, and thereby facilitate the production of additional Ethanol (each such sale a “ Storage Limit Sale ”); provided , further , that in connection with each Storage Limit Sale, Producer shall pay to Gold, within 5 days of receipt by Purchaser of payment for such Storage Limit Sale, an amount equal to the Marketing Fee that Gold would have received if such sale were made pursuant to this Agreement.

b. Producer shall cooperate with Gold in the performance of Gold’s services under this Agreement, including by (i) providing Gold in a timely manner with any records or information that Gold may reasonably request from time to time as part of Gold’s marketing of the Ethanol; and (ii) furnishing any representative of Gold who may be working at the Plant from time to time with reasonable administrative support, office space and other facilities and supplies.

c. Producer shall maintain the Plant in good and safe operating repair and condition, subject to ordinary wear and tear and depreciation.

d. Producer shall at all times have designated to Gold one or more employees of Producer who shall have authority to act for and on behalf of Producer under this Agreement, including for purposes of accepting Purchase Orders (each, a “ Producer Representative ”). Producer may change the identity of any Producer Representative at any time, but no change shall be effective with respect to Gold unless and until Gold has received written notice of such change. Any action taken by a Producer Representative shall bind Producer and may be relied and acted upon by Gold without inquiry to, or confirmation from, Producer or any other Producer Representative. Producer’s initial Producer Representative is identified below Producer’s signature to this Agreement.

e. Producer shall provide Gold with not less than three months prior written notice of any material change in any of the technology that is from time to time utilized at the Plant.

f. Producer shall utilize meters at the Plant that measure both gross and net 60 degrees Fahrenheit temperature-corrected gallons of Ethanol.

g. Producer shall perform its duties and obligations under this Agreement and operate the Plant in a commercially reasonable manner and in compliance in all material respects with all governmental laws, rules and regulations.

h. Producer shall promptly, but in any event within 24 hours, advise Gold of any material problems with respect to any Ethanol or the Plant, including any unscheduled shutdowns or downtime at the Plant.

i. Producer shall promptly, but in any event within 24 hours, advise Gold of any matter regarding any Ethanol that raises an issue of the compliance of the Ethanol with this Agreement or any governmental laws, rules or regulations or industry standards.

j. Producer shall obtain and continuously maintain in effect any and all governmental or other consents, approvals, authorizations, registrations, licenses or permits that are necessary or appropriate for Producer to fully and timely perform all of its duties and obligations under this Agreement.

Section 15. Duties of Gold . In addition to Gold’s other duties and obligations under this Agreement, Gold agrees as follows:

a. Gold shall use commercially reasonable efforts to (i) attempt to achieve the highest per gallon customer sales price available for Ethanol under the prevailing market conditions at the time of sale by Gold; and (ii) submit Purchase Orders to Producer on such a periodic basis as is necessary to permit Producer to produce Ethanol at the Plant in accordance with the expected rate of production as reflected in Producer’s production schedules delivered to Gold.

b. Gold shall perform its duties and obligations under this Agreement in a commercially reasonable manner and in compliance in all material respects with all governmental laws, rules and regulations.

c. In relation to sales between Producer and the other producers for which Gold markets ethanol for sale, including Affiliates of Gold (each such other ethanol plant, an “ Other Client ” and, collectively, the “ Other Clients ”), Gold shall submit purchase orders for ethanol in a commercially reasonable manner taking into account appropriate commercial factors including (without limitation) geographical considerations, a given producer’s risk management preferences, shipping and storage costs, customer relationships and customer requests, and pre-existing contractual obligations.

d. Gold will deliver to Producer (i) a bi-weekly report (each, a “ Bi-Weekly Transparency Report ”) within 5 days of the end of each two week period showing all of Gold’s sales of, or trades in, ethanol during the prior two week period and (ii) a monthly report (each, a “ Monthly Summary Report ”) within 14 days of the end of each calendar month showing all of Gold’s sales of, or trades in, Producer’s Ethanol

during the calendar month, and all contractual commitments that Gold had in place for Producer regarding any Ethanol as of the close of the calendar month.

e. Gold shall be responsible and liable for Gold’s relationship and dealings with all third party purchasers of Ethanol from Gold, including with respect to and for billing, collections and account servicing and management, and Gold shall bear all credit and collection risk with respect to Gold’s sales of Ethanol to third parties.

f. Gold shall promptly, but in any event within 24 hours, advise Producer of any material problems or questions raised by any customer of Gold with respect to any Ethanol.

g. Gold shall promptly, but in any event within 24 hours, advise Producer of any matter regarding any Ethanol which comes to the attention of Gold which raises an issue of compliance of the Ethanol with this Agreement or any governmental laws, rules or regulations or industry standards.

h. Gold shall obtain and continuously maintain in effect any and all governmental or other consents, approvals, authorizations, registrations, licenses or permits which are necessary or appropriate for Gold to fully and timely perform all of its duties and obligations under this Agreement.

i. Gold shall reasonably consult with Producer regarding freight rates and prices and trends in the ethanol markets.

Section 16. Representations and Warranties of Gold . Gold represents and warrants to Producer, both as of the date of this Agreement and again with each Accepted Purchase Order, as follows:

a. Gold is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and has and shall maintain all requisite power and authority to own or otherwise hold and use its property and carry on its business, except, in each case, where the failure to be or do so could not reasonably be expected to have a material and adverse effect upon the transactions contemplated by this Agreement.

b. This Agreement has been duly authorized, executed and delivered by Gold, and constitutes the legal, valid and binding obligation of Gold, enforceable against Gold in accordance with its terms. Gold has and shall maintain all requisite power and authority to enter into and perform this Agreement, and all necessary actions and proceedings of Gold have been taken to authorize the execution, delivery and performance of this Agreement.

or instrument to which Gold is a party or by which Gold or any of its assets or properties are bound.

d. There is no civil, criminal or other litigation, action, suit, investigation, claim or demand pending or, to the knowledge of Gold, threatened, against Gold, which could reasonably be expected to have a material adverse effect upon the transactions contemplated by this Agreement or Gold’s ability to perform its duties and obligations under, or to otherwise comply with, this Agreement.

Section 17. Representations and Warranties of Producer . Producer represents and warrants to Gold, as of the date of this Agreement and again with each Accepted Purchase Order, as follows:

a. Producer is duly organized, validly existing and in good standing under the laws of the state under which Producer was organized, and has and shall maintain all requisite power and authority to own or otherwise hold and use its property and carry on its business except, in each case, where the failure to be or do so could not reasonably be expected to have a material and adverse effect upon the transactions contemplated by this Agreement.

b. This Agreement has been duly authorized, executed and delivered by Producer, and constitutes the legal, valid and binding obligation of Producer, enforceable against Producer in accordance with its terms. Producer has and shall maintain all requisite power and authority to enter into and perform this Agreement, and all necessary actions and proceedings of Producer have been taken to authorize the execution, delivery and performance of this Agreement.

c. The execution and performance of this Agreement do not and will not conflict with, breach or otherwise violate any of the terms or provisions of the organizational or governing documents of Producer or of any material agreement, document or instrument to which Producer is a party or by which Producer or any of its assets or properties are bound.

d. There is no civil, criminal or other litigation, action, suit, investigation, claim or demand pending or, to the knowledge of Producer, threatened, against Producer, which could reasonably be expected to have a material adverse effect upon the transactions contemplated by this Agreement or Producer’s ability to perform its duties and obligations under, or to otherwise comply with, this Agreement.

e. All Ethanol shall be delivered and sold to Gold by Producer free and clear of all liens, restrictions on transferability, reservations, security interests, financing statements, licenses, mortgages, tax liens, charges, contracts of sale, mechanics’ and statutory liens and all other liens, claims, demands, restrictions or encumbrances whatsoever.

Section 18. No Other Warranties . Except for the express warranties set forth in Sections 9 , 16 and 17 , neither Gold nor Producer make any express warranties whatsoever regarding any Ethanol or any other thing or matter whatsoever, and Gold and Producer hereby exclude and disclaim in entirety all implied warranties whatsoever, including the implied warranties of merchantability, noninfringement and fitness for a particular purpose, with respect to all Ethanol and all other things and matters whatsoever. For example, Gold makes no representation or warranty that Gold will be able to sell any Ethanol at profitable prices or at all.

Section 19. No Indirect Damages; Statute of Limitations .

a. Except as provided in the following paragraph, under no circumstances or theories shall Gold or Producer be liable to the other for any lost profits, business or goodwill, or for any exemplary, special, incidental, consequential, punitive or indirect damages whatsoever, that in any way relate to, are connected with or arise out of this Agreement (even if Gold or Producer, as the case may be, knew or should have known of the possibility of any such damages), including any such damages related to, connected with or arising out of any (y) performance or nonperformance by Gold or Producer, or (z) use, sale or liability regarding any Ethanol.

b. Notwithstanding the foregoing or any other term of this Agreement that may appear to be the contrary, Gold and Producer acknowledge and agree that the preceding paragraph is not applicable to, and accordingly does not limit the scope or extent of Producer’s liability under or with respect to Section 9 or Gold’s or Producer’s liability under or with respect to (i) Sections 20 or 21 ; or (ii) any act or omission of Gold or Producer, as the case may be, or of their respective employees or agents, that is, in whole or in part, grossly negligent or reckless or that constitutes willful or wanton misconduct, fraud or an intentional tort.

c. Any claim, suit, action or other proceeding for any breach or nonfulfillment of, or default under, any term or condition of this Agreement must be commenced within two years of the date on which the breach, non-fulfillment or default occurred, or such claim, suit, action or proceeding shall be lost and forever barred.

Section 20. CONFIDENTIALITY .

a. Gold and Producer acknowledge that they may have access to Confidential Information of the other, and that it is necessary for the other to prevent the unauthorized use or disclosure of the other’s Confidential Information. Accordingly, and in further consideration for this Agreement, Gold and Producer covenant and agree that they shall not, during the term of this Agreement or at any time within two years following the effective date of the termination of this Agreement (whether this Agreement is terminated by Gold, by Producer or by mutual consent, and for whatever reason or for no reason), directly or indirectly, engage in or take or refrain from taking any action or inaction that may lead to the use or disclosure of any Confidential

Information of the other by or to any person, or use or disclose any Confidential Information of the other for their own benefit; provided , however , that Gold and Producer may (i) make disclosures of and regarding this Agreement to their respective legal counsel and accountants, and (ii) use and disclose the other’s Confidential Information during the term of this Agreement as necessary or reasonably appropriate to Gold’s or Producer’s, as the case may be, performance of their duties and obligations under this Agreement, including, with respect to Gold, its marketing and sale of the Ethanol to third parties. Gold may also use and disclose Producer’s Confidential Information for purposes of Gold’s compliance with any terms similar to Sections 15(a) or 15(c) that are included in any agreements of Gold with Other Clients.

b. In addition, and notwithstanding any of the foregoing, Gold and Producer may disclose Confidential Information of the other as may be required from time to time by any court order, governmental action, legal process or by applicable law, rule or regulation; provided , however , that in such event they shall, if permitted under the terms of such order, action, process, law, rule or regulation, first give written notice to the other and shall reasonably cooperate, but at the other’s sole cost and expense, in the other’s attempt to obtain a protective order or other waiver or exclusion from the court or other applicable governmental or other authority. Notwithstanding the preceding sentence, however, Gold and Producer may, without the consent of the other, make such disclosures and filings of this Agreement and the transactions contemplated hereby as Gold or Producer, as the case may be, from time to time is advised by counsel to be necessary or appropriate under, or as may be required in connection with, (i) the federal and applicable state securities laws, rules or regulations, including the Securities Exchange Act of 1934 and the various rules and regulations promulgated pursuant thereto; provided , however , that Gold or Producer, as the case may be, shall cooperate with the other in requesting confidential treatment in all filings under the Securities Exchange Act of 1934 for all pricing and payment information and all such other information as may be reasonably requested by the other; and (ii) any debt or equity financing or insurance coverage as may from time to time be pursued or obtained by Gold or Producer or any Affiliate of Gold or Producer, as the case may be, including to any prospective or actual lenders or investors and to actual or potential participants, assignees or transferees of any such lender or in connection with a foreclosure, assignment in lieu of foreclosure or the exercise of any rights or remedies by any such lender. Gold or Producer shall, where reasonably practicable, give the other prior written notice of the fact that they intend to make a disclosure pursuant to the preceding sentence.

c. As provided above, Gold’s and Producer’s respective obligations under this Section 20 shall in all events end and terminate on the date that is two years following the effective date of the termination of this Agreement.

d. Nothing in this Section 20 is intended or shall be construed as requiring Gold or Producer to furnish any Confidential Information to the other, except to the extent necessary or reasonably appropriate for the other to perform and provide the services and duties required of such party under this Agreement.

Section 21. Nonsolicitation Covenants .

a. Gold and Producer shall not, respectively, during the term of this Agreement or at any time within two years of the effective date of the termination of this Agreement (whether this Agreement is terminated by Gold, by Producer or by mutual consent, and for whatever reason or for no reason), directly or indirectly, solicit or contact any employee of the other for purposes of employing or otherwise retaining such employee without the express prior written consent of the other, which consent may be withheld in Gold’s or Producer’s, as the case may be, sole discretion. This Section 21 shall not, however, prohibit general, nontargeted solicitation such as general advertisements.

Section 22. Reasonableness of Covenants .

a. Gold and Producer acknowledge and agree that the covenants set forth in Section 20 and Section 21 are reasonable and are necessary and appropriate to protect the justifiable business interests of, respectively, Gold and Producer, and are not to be limited or restricted in any way or found to be or held by any court or other applicable authority to be unenforceable or invalid because of the scope of the area, actions subject thereto or restricted thereby, the time period over which the covenants are applicable, or otherwise. Without limiting Section 34 , and in addition thereto, in the event any of the covenants set forth in Section 20 or Section 21 are deemed by a court or other applicable authority, notwithstanding the foregoing, to be too broad in terms of the scope of the area, actions subject thereto or restricted thereby, the time period over which the covenants are applicable, or otherwise, Gold and Producer expressly authorize and direct the court and/or such other applicable authority to enforce each and all of the covenants contained in Section 20 and Section 21 to the full and maximum extent the court or such other applicable authority, as the case may be, deems permissible.

b. Gold and Producer also agree that a breach or imminent breach by them of Section 20 or Section 21 shall constitute a material breach of this Agreement for which the other will not have an adequate remedy at law, and that the other’s remedies upon a breach or imminent breach by them of Section 20 or Section 21 therefore include the right to preliminary, temporary and permanent injunctive relief restraining them and their employees and agents from any further violation of Section 20 or Section 21 , as the case may be, and without any requirement that the party pursuing such injunctive relief prove any monetary loss or post any bond or other form of collateral or security in order to be able to pursue, obtain or maintain any such injunctive relief.

Section 23. Effective Date / Term . This Agreement shall be effective as of the earlier of (a) the date that is six months after the date first set forth above, and (b) such earlier date as Producer and Gold, through their mutual exercise of commercially reasonable efforts, are able to implement the terms hereof (the “ Effective Date ”). The initial term of this Agreement shall be for a period of three years following the Effective Date (the “ Initial Term ”), unless terminated earlier under Section 24 . This Agreement shall automatically renew for successive one year terms (each, a “ Renewal Term ”)

following the expiration of the Initial Term or the Renewal Term then in effect, as the case may be, unless Gold or Producer gives the other written notice of their election not to renew, for whatever reason or for no reason, at least 180 days prior to the end of the Initial Term or the Renewal Term then in effect, as the case may be, or this Agreement is terminated earlier under Section 24 .

Section 24. Termination . Producer and Gold shall have the right to terminate this Agreement as follows:

a. Producer may terminate this Agreement at its option in any of the following events: (i) the failure by Gold to make any payment to Producer when due, if such nonpayment has not been fully cured within 8 days of Gold’s receipt of written notice thereof from Producer; (ii) any breach or nonfulfillment of or any default under any term or condition of this Agreement by Gold (other than a payment obligation), if such breach, nonfulfillment or default is not fully cured by Gold within 10 days of Gold’s receipt of written notice thereof from Producer; (iii) upon the giving of written notice by Producer to Gold, without any opportunity for cure by Gold, in the event of the dissolution or liquidation of, appointment of a trustee or receiver of or for any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding (whether voluntary or involuntary) under any bankruptcy, insolvency, debtor/creditor, receivership or similar or related law by or against Gold.

b. Gold may terminate this Agreement at its option in any of the following events: (i) the failure by Producer to make any payment to Gold when due, if such nonpayment has not been fully cured within 8 days of Producer’s receipt of written notice thereof from Gold; (ii) any breach or nonfulfillment of or any default under any term or condition of this Agreement by Producer (other than a payment obligation), if such breach, nonfulfillment or default is not fully cured by Producer within 10 days of Producer’s receipt of written notice thereof from Gold; or (iii) upon the giving of written notice by Gold to Producer, without any opportunity for cure by Producer, in the event of the dissolution or liquidation of, appointment of a trustee or receiver of or for any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding (whether voluntary or involuntary) under any bankruptcy, insolvency, debtor/creditor, receivership or similar or related law by or against, Producer.

c. This Agreement may be terminated by Producer or by Gold if such termination is required by any governmental or regulatory authority, and any such termination shall be effective on the earlier of: (i) the date required by such governmental or regulatory authority, or (ii) the thirtieth day following the giving of written notice of termination pursuant to this subparagraph (c) by Producer or Gold, as the case may be, to the other.

d. This Agreement may also be terminated (i) as provided in Section 27 or (ii) by mutual consent of both Gold and Producer.

e. Gold and Producer shall continue to comply with and otherwise perform under this Agreement during any notice or cure periods provided for above in this Section 24 , including with respect to the acceptance or rejection of Purchase Orders in accordance with Sections 1 and 2 .

Section 25. Effect of Termination .

a. The termination of this Agreement, by Gold or Producer, and for whatever reason or for no reason, shall not affect any liability or obligation of Gold or Producer under this Agreement which shall have accrued prior to or as a result of such termination, including any liability for loss or damage on account of breach, nor shall the termination of this Agreement (by Gold or Producer, and for whatever reason or for no reason) affect the terms or provisions of this Agreement that contemplate performance or continuing obligations beyond the termination of this Agreement, including the obligations of, as applicable, Gold and/or Producer under Sections 12 , 20 , 21 , 35 and 36 .

b. Upon the termination of this Agreement by Gold or Producer, and for whatever reason or for no reason, Producer and Gold shall be and remain responsible for selling and purchasing, in accordance with the terms and conditions of this Agreement, all Ethanol that is the subject of Accepted Purchase Orders (including Accepted Storage Purchase Orders) on the effective date of the termination of this Agreement but that have not yet been performed on the effective date of the termination of this Agreement (including with respect to Accepted Terminal Storage Purchase Orders), and this Agreement (including Sections 1 through 4 ) shall also continue for that limited purpose.

Section 26. Audit Rights .

a. Gold and Producer shall each maintain complete, accurate and up-to-date records of their activities with respect to, as applicable, the production, delivery, shipment and sale of Ethanol pursuant to this Agreement (collectively, and in general, the “ Records ”). Gold and Producer shall maintain each of their respective Records for a period of not less than two years from the date of the creation of the particular Record in question.

b. Gold and Producer shall each have the right, upon reasonable notice to the other, to review or to have a mutually acceptable third party (the “ Reviewer ”) review, the Records of the other during normal business hours for the sole purpose of determining the accuracy of any payment, invoice, statement, report or other document provided by the other under this Agreement; provided, however, that (i) neither Gold nor Producer shall have the right to cause a review of the Records of the other more than once during any calendar quarter; and (ii) once the Records of Gold or Producer, as the case may be, for any given period of time have been reviewed pursuant to this Section 26 , such Records shall not be subject to review again except with the consent of Gold or Producer, as the case may be, which consent may be withheld in Gold’s or Producer’s, as the case may be, sole discretion. If Gold requests a review of Producer’s Records pursuant to this Section 26 , Gold shall pay all of the fees, costs and expenses of the Reviewer, and if

Producer requests a review of Gold’s Records pursuant to this Section 26 , Producer shall pay all of the fees, costs and expenses of the Reviewer.

c. Notwithstanding anything in this Agreement to the contrary, if Gold’s or Producer’s review of the Records of the other reveals any shortages or deficiencies in excess of $10,000 in the amount of any payments required to be made by Gold to Producer, or by Producer to Gold, as the case may be, pursuant to this Agreement, Gold or Producer, as the case may be, shall pay the amount that exceeds $10,000 (the “ Unpaid Amount ”) to the other within 15 days of Gold’s or Producer’s, as the case may be, written notice to the other of the Unpaid Amount. The written notice of the Unpaid Amount must include the basis for the calculation of the Unpaid Amount.

Section 27. Force Majeure . If any term or condition of this Agreement to be performed or observed by Gold or Producer is rendered impossible of performance or observance due to any force majeure or any other material act, omission, matter, circumstance, event or occurrence beyond the commercially reasonable control of Gold or Producer, as the case may be (any such event, an “ Impossibility Event ”), the affected party shall, for so long as such Impossibility Event exists, be excused from such performance or observance, provided the affected party (i) promptly notifies the other party of the occurrence of the Impossibility Event; (ii) takes all such steps as are reasonably necessary or appropriate to terminate, remedy or otherwise discontinue the effects of the Impossibility Event; and (iii) recommences performance after the termination or discontinuance of the Impossibility Event; provided , however , that if after 30 days from the occurrence of the Impossibility Event the affected party is still unable to perform its obligations under this Agreement, the other party may, in such party’s sole discretion, terminate this Agreement effective upon the giving of written notice to the affected party. The term “Impossibility Event” includes an actual or threatened act or acts of war or terrorism, fire, storm, flood, earthquake, acts of God, civil disturbances or disorders, riots, sabotage, strikes, lockouts and labor disputes. Nothing in this Section 27 is intended to or shall be interpreted so as to require the resolution of labor disputes by acceding to the demands of labor when such course is inadvisable in the discretion of the party subject to such dispute. Notwithstanding anything in this Agreement to the contrary, this Section 27 shall not apply to, and no term of this Agreement shall be deemed to in any event excuse any performance or observance of, any Accepted Purchase Order, Section 9 , Section 20 , Section 21 , or any payment or indemnification duty or obligation under this Agreement.

Section 28. Arbitration .

a. Except as provided below, all controversies, disputes or claims between Gold and Producer in any way related to, arising out of or connected with this Agreement shall be resolved solely and exclusively through binding arbitration in accordance with the then current commercial arbitration rules of the American Arbitration Association. The arbitration proceeding shall be conducted in Des Moines, Iowa and shall be heard by one arbitrator mutually agreed to by Gold and Producer; provided, however, that if Gold and Producer are unable to agree on an arbitrator within

15 days of the date of a written demand for arbitration given by either Gold or Producer, then Gold and Producer shall each select one arbitrator, and those two arbitrators shall in turn select a third arbitrator, and the arbitration proceedings shall be heard and determined before those three arbitrators, with the decision of a majority of the arbitrators to govern.

b. The arbitrator or arbitrators shall have the right to award or include in the award any relief deemed appropriate under the circumstances, including money damages, specific performance, injunctive relief and attorneys’ fees and costs in accordance with this Agreement, but subject to Section 19 .

c. Gold and Producer agree that, in connection with any arbitration proceeding, they shall file any compulsory counterclaim (as defined under the Federal Rules of Civil Procedure) within 30 days after the date of the filing of the claim to which it relates.

d. The award and decision of the arbitrator or arbitrators shall be conclusive and binding upon Gold and Producer and judgment upon the award may be entered in any court of competent jurisdiction.

e. Gold and Producer shall share the fees of the arbitrator or arbitrators and the other costs of the arbitration equally, but shall pay their own attorneys’ fees and other costs and expenses, except that the arbitrator or arbitrators may award costs and fees to the prevailing party as the arbitrator or arbitrators deem appropriate.

f. Notwithstanding the foregoing, no controversy, dispute or claim in any way related to, arising out of or connected with Sections 20 or 21 or any action by Gold or Producer seeking specific performance or injunctive relief shall be subject to arbitration under this Section 28 unless Gold and Producer, in their respective sole discretion, consent in writing to the arbitration of any such particular controversy, dispute or claim.

Section 29. Insurance . Gold and Producer shall each maintain during the term of this Agreement commercial general liability insurance with combined single limits of not less than $2,000,000. The respective commercial general liability insurance policies issued to Gold and to Producer must be reasonably acceptable to the other, and must (i) name the other as an additional insured; (ii) provide for a minimum of 30 days’ written notice to the other prior to any cancellation, termination, nonrenewal, amendment or other change of such insurance policy; and (iii) provide that in the event of payment of any loss or damage the respective insurers will have no rights of recovery against the other. Gold and Producer shall, respectively, provide reasonable proof of such insurance to the other upon the reasonable request of the other from time to time.

Section 30. Assignment . This Agreement shall be assignable by Gold or Producer, as the case may be, only with the prior written consent of the other, which consent shall not be unreasonably delayed, conditioned or withheld; provided ,

however , that Gold and Producer may, respectively, without the consent of the other (i) assign this Agreement or any or all of its rights and obligations under this Agreement to any Affiliate of Gold or Producer, as the case may be; and (ii) assign this Agreement as collateral, security or otherwise to any financing source of Gold or Producer, as the case may be, and any such financing source may in turn assign this Agreement upon any foreclosure or other exercise of any rights or remedies against Gold or Producer, as the case may be. Gold or Producer, as the case may be, shall give prompt written notice to the other of any assignment by them pursuant to either of subclauses (i) or (ii) in the preceding sentence .

Section 31. Governing Law . This Agreement is entered into and is performable in material part in Iowa, and shall be governed by and construed in accordance with the laws of the State of Iowa, but without regard to or application of the choice of law or conflicts of law provisions thereof.

Section 32. Notices .

a. All notices and demands desired or required to be given under this Agreement (“ Notices ”) shall be given in writing and shall be given by (i) hand delivery to the address for Notices; (ii) delivery by overnight courier service to the address for Notices; or (iii) sending the Notice by United States mail, postage prepaid, certified mail, addressed to the address for Notices.

b. All Notices shall be deemed given and effective upon the earliest to occur of (i) the hand delivery of the Notice to the address for Notices; (ii) delivery by overnight courier service to the address for Notices; or (iii) three Business Days after the depositing of the Notice in the United States mail as provided in the foregoing paragraph.

c. All Notices shall be addressed to the addresses set forth below the signatures to this Agreement or to such other person or at such other address as Gold or Producer may from time to time by Notice designate to the other as a place for service of Notice.

d. Notwithstanding the foregoing, Purchase Orders, Accepted Purchase Orders, Monthly Summary Reports, Freight Cost Reports, Bi-Weekly Transparency Reports, production schedules, loading schedules, delivery reports, certificates of analysis, bills of lading, meter certificates or tickets, rejection notices and invoices to be provided under this Agreement may be given and delivered by facsimile or email to the facsimile numbers or email addresses set forth below the signatures to this Agreement or to such other facsimile number or email address as Gold or Producer may from time to time by Notice designate to the other, and shall be deemed given and effective upon receipt. In addition, Purchase Orders may be submitted orally and shall be deemed received by Producer at the time a given Purchase Order is orally transmitted by a representative of Gold to a Producer Representative. Gold may, in its discretion (but shall have no duty to), record any or all telephone conversations between Gold and any

Producer Representative or employee of Producer, and Producer hereby consents to all such recordings.

Section 33. Binding Effect on Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of Gold and Producer and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gold and Producer (and their respective successors and permitted assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement, except that (i) Producer acknowledges that Gold shall sell the Ethanol to third parties based upon and in reliance on Producer’s representations and warranties set forth in Section 9 and Section 17(e) ; and (ii) Gold’s and Producer’s respective Affiliates, employees and agents shall have the rights provided in, respectively, Sections 35 and 36 .

Section 34. Severability . In the event any provision of this Agreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid and enforceable. In the event any provision of this Agreement is held to be invalid, illegal or unenforceable as written, but valid, legal and enforceable if modified, then such provision shall be deemed to be amended to such extent as shall be necessary for such provision to be valid, legal and enforceable and it shall be enforced to that extent. Any finding of invalidity, illegality or unenforceability in any jurisdiction shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction. Without limiting the generality of the foregoing, each term of this Agreement which provides for a limitation of remedies or liability, disclaimer or exclusion of warranties, or exclusion or limitation of damages is subject to this Section 34 .

Section 35. Indemnification by Producer; Interest . Subject to Section 19 , Producer shall indemnify, defend and hold Gold and Gold’s Affiliates, employees and agents harmless from and against any and all suits, actions, proceedings, claims, counterclaims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) in any way relating to, arising out of or in connection with or resulting from this Agreement or Gold’s performance of the terms of this Agreement (collectively, “ Gold Indemnity Events ”); provided , however , that Producer shall have no obligation to indemnify Gold to the extent such Gold Indemnity Events result from the gross negligence or willful misconduct of Gold, its Affiliates, or the employees or agents of any such entity. Any payment owed by Producer to Gold under this Agreement that is not made within two days of the date on which the payment was due shall bear interest until paid, such interest to accrue at the Prime Rate as published in The Wall Street Journal from time to time, plus 4.00% per annum.

Section 36. Indemnification by Gold; Interest . Subject to Section 19 , Gold shall indemnify, defend and hold Producer and Producer’s Affiliates, employees and agents harmless from and against any and all suits, actions, proceedings, claims, counterclaims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) in any way arising in connection with or resulting from (i) any breach or nonfulfillment

of or default under any term or condition of this Agreement by Gold; or (ii) any act or omission of Gold that is, in whole or in part, grossly negligent or reckless or that constitutes willful or wanton misconduct, fraud or an intentional tort. Any payment owed by Gold to Producer under this Agreement that is not made within two days of the date on which the payment was due shall bear interest until paid, such interest to accrue at the Prime Rate as published in The Wall Street Journal from time to time, plus 4.00% per annum.

Section 37. Right of Offset . Gold has and hereby reserves the right to set off against and withhold from any amounts due or owing to Producer by Gold under this Agreement any and all amounts of whatever kind or nature (including interest as provided in Section 35 ) as may from time to time be due or owing to Gold from Producer and that are past due or that arise out of or under Section 35 . Producer has and hereby reserves the right to set off against and withhold from any amounts due or owing to Gold by Producer under this Agreement any and all amounts of whatever kind or nature (including interest as provided in Section 36 ) as may from time to time be due or owing to Producer from Gold and that are past due or that arise out of or under Section 36 .

Section 38. No Waiver; Modifications in Writing . No failure or delay on the part of Gold or Producer in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Except as provided in Section 19 , the remedies provided for in this Agreement are cumulative and are not exclusive of any remedies that may be available to Gold or Producer at law, in equity or otherwise. No amendment, modification, supplement, termination or waiver of or to any provision of this Agreement, or consent to any departure therefrom, shall be effective unless the same shall be in writing and signed by Gold and Producer, except that Gold may unilaterally amend, restate, amend and restate, supplement or otherwise modify the Surcharge Percentage and Exhibit A at any time and from time to time as provided in, respectively, Section 3 and Section 9 . Producer and Gold may amend this Agreement pursuant to an Accepted Purchase Order which is signed by both Producer and Gold and which provides that specified terms of such Accepted Purchase Order constitute an amendment of specified terms of this Agreement (each such amendment, a “ PO Amendment ”). A PO Amendment and any other amendment, modification or supplement of or to any provision of this Agreement, any waiver of any provision of this Agreement, and any consent to any departure from the terms of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given. A PO Amendment shall also be effective only with respect to the particular Accepted Purchase Order in question.

Section 39. Counterparts; Delivery by Facsimile or Email Transmission . This Agreement and Accepted Purchase Orders may be executed in counterparts (including by facsimile or email), each of which shall be deemed an original and all of which together shall constitute one and the same Agreement or Accepted Purchase Order, as the case may be.

Section 40. Entire Agreement . This Agreement, any exhibits and schedules to this Agreement and each Accepted Purchase Order constitute the entire agreement between Gold and Producer relating to the subject matters of this Agreement, and supersede all negotiations, preliminary agreements and all prior or contemporaneous discussions and understandings of Gold and Producer in connection with the subject matters of this Agreement. No course of dealing or usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement, except only where this Agreement expressly refers to industry standards or industry practices, in which event industry standards or industry practices shall only be considered or applied with respect to the particular action, item, matter or issue in question, but the terms of this Agreement shall govern and control in the event of any conflict or inconsistency with any such industry standard or industry practice. Any reference to industry standards or industry practices in this Agreement is to the then current generally recognized industry standards or industry practices for the ethanol industry in the United States.

Section 41. Construction; Certain Definitions; Gender and Number .

a. This Agreement shall not be construed more strongly against Gold or Producer, regardless of who is more responsible for its preparation.

b. The use of the words “ herein ,” “ hereof ,” “ hereunder ” and other similar compounds of the word “ here ” in this Agreement mean and refer to this entire Agreement, and not to any particular section, paragraph or provision. The words “ include ,” “ includes ” and “ including ” are used in this Agreement in a nonexclusive manner and fashion, that is so as to include, but without limitation, the facts, items or matters in question. Any references in this Agreement to a “ Section ,” “ Exhibit ” or “ Schedule ” shall, unless otherwise expressly indicated, be a reference to the section in this Agreement or to such exhibit or schedule to this Agreement. Words and phrases in this Agreement shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the context. The titles or captions of sections and paragraphs in this Agreement are provided for convenience of reference only, and shall not be considered a part of this Agreement for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the scope or extent of this Agreement or any of its terms or conditions. The word “ person ” as used in this Agreement includes natural persons and all forms and types of entities.

Section 42. Nature of Relationship .

a. No Partnership, Association or Joint Venture . Nothing contained in this Agreement and no action taken or omitted to be taken by Gold or Producer pursuant to this Agreement shall be deemed to constitute a partnership, an association, a joint venture or other entity whatsoever. Gold shall at all times be acting as an independent contractor under this Agreement. Neither Gold nor Producer has the authority to enter into any contract or agreement on behalf of the other, except that Gold may bind and obligate Producer for and with respect to Freight Costs, Storage Costs and the Carriers for the loading, shipment and transportation of Ethanol.

b. Conduct of Gold . Gold may purchase and otherwise deal in ethanol, ethanol by-products or co-products and other products for Gold’s own use or account, and Gold may also market and sell ethanol, ethanol by-products or co-products and other products of other persons (including Affiliates or related parties of Gold), and provide services to other persons, all on such terms and conditions as are determined by Gold from time to time, in Gold’s sole discretion, subject only to Gold’s compliance with Section 15(c) .

Section 43. Time Is of the Essence . Gold and Producer each acknowledge and agree that time is of the essence in the performance by them of their respective duties and obligations under this Agreement.

Section 44. Waiver of Jury Trial; Jurisdiction . Without limiting Section 28 , Producer and Gold waive any right to a jury trial in and with respect to any suit, action, proceeding, claim, counterclaim, demand or other matter whatsoever arising out of this Agreement. Producer and Gold submit to the nonexclusive jurisdiction of any United States or Iowa court sitting in Des Moines, Iowa in any action or proceeding arising out of or relating to this Agreement which is not subject to Section 28 and with respect to the enforcement of any arbitration award under Section 28 .

Section 45. Definitions .

For the purposes of this Agreement, the following terms have the meanings set forth therefor in this Section 45 .

“Acceleration Surcharge Amount” has the meaning given to such term in Section 4(b) .

“Acceptance Period” has the meaning given to such term in Section 2 .

“Accepted” means, with respect to any Purchase Order, that such Purchase Order was accepted by Producer in accordance with Section 2 of this Agreement.

“Affiliate” means, with respect to either Gold or Producer, any person controlling, controlled by or under common control with Gold or Producer, as applicable.

“Agreement” has the meaning given to such term in the preamble.

“Allocated Storage Costs” means an amount equal to 99% of the Producer Storage Amount.

“Backstop Agreement” has the meaning given to such term in the recitals.

“Bi-Weekly Transparency Report” has the meaning given to such term in Section 15(d) .

“Business Day” means any day of the year on which national banking institutions in Ames, Iowa are open to the public for conducting business and are not required or authorized to close.

“Carriers” has the meaning given to such term in Section 6(b) .

“Confidential Information” means all information in any form (whether written, oral, or otherwise) that is proprietary or confidential to, respectively, Gold or Producer, as the case may be, whether regarding their services, products, business or otherwise, and whether or not designated as such when received, obtained, compiled or observed by Gold or Producer, as the case may be, including the following information or types of information: (i) the terms of this Agreement; (ii) financial and accounting information and projections; (iii) marketing information, including price and discount lists, payment terms, prospects or market research data, and sales plans, strategies or methods; (iv) customers, suppliers and vendors and related information; and (v) any and all notes, reports, memoranda, analyses, studies or other documents making any use of any Confidential Information. Notwithstanding the foregoing, the term “Confidential Information” shall in no event include any information that: (i) is already lawfully known to, or in the possession of, Gold or Producer, as the case may be, at the time of disclosure by the other; (ii) is or subsequently becomes publicly available or publicly known through no wrongful act of Gold or Producer, as the case may be; (iii) is disclosed or provided to Gold or Producer, as the case may be, by a person having the right to make an unrestricted disclosure of the information; or (iv) is developed independently by Gold or Producer, as the case may be, without the use of the other’s Confidential Information.

“Customer Price” means the final purchase price and other amounts, if any, set forth in a given Gold customer invoice for a given Ethanol sale to such customer, less all Reimbursement Amounts.

“Delivery Payment” means a payment for Ethanol due on and in accordance with the terms specified in a given Accepted Purchase Order, less any portion of the current Set-Off Amount that Gold, in its sole discretion, chooses to set off against such Delivery Payment, as specified at the time of such Delivery Payment.

“Direct Fixed Price Purchase Order” has the meaning given to such term in Section 1(b)(i) .

“Direct Index Price Purchase Order” has the meaning given to such term in Section 1(b)(ii) .

“Direct Shipment” means a shipment of Ethanol pursuant to an Accepted Direct Fixed Price Purchase Order or an Accepted Direct Index Price Purchase Order.

“Effective Date” has the meaning given to such term in Section 23 .

“Ethanol” has the meaning given to such term in the recitals.

“Final Purchase Price” means a price per gallon of ethanol based on the final purchase price formula mutually agreed by Gold and an end customer, as specified in a given Direct Index Price Purchase Order, which final purchase price may be based on a monthly average from a specified day of trading of a specified reputable ethanol index (which indices include, but are not limited to, OPIS or Platt’s New York Harbor), and/or such other factors and Gold and such end customer may choose to include in the final purchase price formula.

“Freight Costs” has the meaning given to such term in Section 6(c) .

“Freight Cost Report” has the meaning given to such term in Section 6(c) .

“Gold” has the meaning given to such term in the preamble.

“Gold Freight Costs” has the meaning given to such term in Section 6(c) .

“Gold Indemnity Events” has the meaning given to such term in Section 35 .

“Gold True-Up Amount” has the meaning given to such term in Section 1(b)(ii) .

“Governmental Seizure” has the meaning given to such term in Section 10(b) .

“Impossibility Event” has the meaning given to such term in Section 27 .

“Loading Schedule” has the meaning given to such term in Section 5(b) .

“Marketing Fee” means a fee payable to Gold by Producer in an amount equal to one percent of the Net Purchase Price of a given shipment of Ethanol, which fee shall become due and payable to Gold on the date that is the later of (i) the date on which the corresponding Delivery Payment for such Ethanol is made and (ii) the date on which the Customer Price and Freight Costs for such Ethanol have been determined by Gold.

“Marks” has the meaning given to such term in Section 12(a) .

“Maximum Storage” has the meaning given to such term in Section 6(g) .

“Monthly Production” has the meaning given to such term in Section 8(b) .

“Monthly Summary Report” has the meaning given to such term in Section 15(d) .

“Net Purchase Price” means the amount derived by subtracting the Freight Costs for the Ethanol in question from the Customer Price for such Ethanol.

“Notices” has the meaning given to such term in Section 32(a) .

“Other Clients” has the meaning given to such term in Section 15(c)

“Payment Acceleration Notice” has the meaning given to such term in Section 4 .

“Payment Acceleration Date” has the meaning given to such term in Section 4(a) .

“Payment Documents” has the meaning given to such term in Section 3 .

“Plant” has the meaning given to such term in the recitals.

“PO Amendment” has the meaning given to such term in Section 38 .

“Producer” has the meaning given to such term in the preamble.

“Producer Percentage” means the amount determined by dividing the then-current Monthly Production by the aggregate estimated monthly production of ethanol for all plants for which Gold markets ethanol.

“Producer Representative” has the meaning given to such term in Section14(d) .

“Producer Storage Amount” means the amount determined by multiplying the Producer Percentage for a given calendar month by the Storage Costs for such calendar month.

“Producer True-Up Amount” has the meaning given to such term in Section 1(b)(ii) .

“Pro Forma Price” has the meaning given to such term in Section 1(b)(ii) .

“Purchase Order” has the meaning given to such term in Section 1(a) .

“Rail Contracts” has the meaning given to such term in Section 6(b) .

“Records” has the meaning given to such term in Section 26(a) .

“Reimbursement Amounts” means the sum of all amounts billed to a given Gold customer for terminal costs, excise taxes, transportation costs or other similar charges that are for reimbursement of out-of-pocket costs and expenses of Gold.

“Rejected Ethanol” has the meaning given to such term in Section 10(c) .

“Replacement Costs” has the meaning given to such term in Section 2 .

“Reviewer” has the meaning given to such term in Section 26(b) .

“Set-Off Amount” means the sum, without duplication, of all outstanding and unpaid Marketing Fees, Acceleration Surcharge Amounts, Producer True-Up Amounts,

Gold Freight Costs, Allocated Storage Costs, Replacement Costs and amounts owed pursuant to Sections 10(e) , 13 , or 37 arising under this Agreement from time to time.

“Storage Costs” means, with respect to a given calendar month, the sum of all fees, costs, expenses and other amounts paid or incurred by Gold that in any way arise from or are related to or connected with Gold’s storage of ethanol and the pick-up, shipment, delivery or other transportation of ethanol from any storage facility or terminal to Gold’s customers, including rental, transfer fees and other charges or amounts payable to the lessor or owner of the storage facility or terminal, freight, express bills, terminal fees, insurance, taxes and all other related or similar costs, expenses, charges, fees and other amounts.

“Storage Limit Sale” has the meaning given to such term in Section 14(a) .

“Supplemental Purchase Order” has the meaning given to such term in Section 1(b)(iii) .

“Surcharge Percentage” has the meaning given to such term in Section 4(b) .

“Terminal Storage Ethanol” has the meaning given to such term in Section 1(b)(iii) .

“Terminal Storage Purchase Order” has the meaning given to such term in Section 1(b)(iii) .

“Terminal Storage Shipment” means a shipment of Ethanol pursuant to an Accepted Supplemental Purchase Order or any sale of Terminal Storage Ethanol as though such sale were an Accepted Supplemental Purchase Order.

“Unpaid Amount” has the meaning given to such term in Section 26(c) .

[Remainder of Page Intentionally Left Blank — Signature Page Follows]

IN WITNESS WHEREOF, Gold and Producer have executed this Agreement as of the date first written above, to be effective as of the Effective Date.


PRODUCER:		GOLD:

HEARTLAND GRAIN FUELS, L.P.		HAWKEYE GOLD, LLC


By:	/s/ Richard R. Peterson Name: Richard R. Peterson	By:	/s/ Timothy B. Callahan Name: Timothy B. Callahan
	Title: CFO		Title: CFO


Address:		Address:
Heartland Grain Fuels, L.P.		Hawkeye Gold, LLC
		224 S. Bell Ave.
		Ames, IA 50010
Attn:		Attn:
(“ Producer Representative ”)

Facsimile:		Facsimile:

Email:		Email:

Maximum Storage:

Monthly Production:

[Signature Page to Hawkeye Gold Exclusive Ethanol Marketing Agreement]

Exhibit A

ETHANOL SPECIFICATIONS ^*

Hawkeye Gold Fuel Ethanol product quality will meet the most recent version of ASTM D 4806:

ASTM D 4806 — 07
Standard Specification for Denatured Fuel Ethanol for
Blending with Gasoline’s for use as Automotive Spark-Ignition Engine Fuel


Quality Parameter	Limits			ASTM Test Methods
Ethanol, vol.%, min		92.1		D 5501

Methanol, vol.%, max		0.5		D 5501

Solvent washed gum, mg/100mL, max		5.0		D 381

Water content, vol.%, max		1.0		E 1064, E 203

Denaturant content, vol.%, min — vol.% max	1.96 — 5.0			Estimated calculation

Inorganic Chloride, mass ppm (mg/L), max		40.	(32)	D 7319, D7328

Copper, mg/kg, max		0.1		D 1688

Acidity, as acetic acid, mass% (mg/L), max		0.007	(56)	D 1613

pHe	6.5 — 9.0			D 6423

Sulfur, mass ppm, max		10.		D 5453

Sulfate, mass ppm, max		4		D 7318, D 7319, D 7328

Appearance	Clear and Bright Free of suspended or precipitated contaminants			Visual at room temperature

Benzene, vol.%, max		0.06		D 5580

Aromatics, vol.%, max		1.7		D 5580

Olefins, vol.%, max		0.5		D 6550

Workmanship : The specification defines only a basic purity of the product. The product shall be free of any adulterant or contaminant that may render the material unacceptable for its application.

Denaturant : Natural Gasoline, Unleaded Gasoline, Straight Run Gasoline or Raffinate. Corrosion Protection : Hawkeye Gold Denatured Fuel Ethanol will contain a corrosion inhibitor designed for use in ethanol fuels.

Filtration : The final Denatured Fuel Ethanol product will be filtered using 10 micron nominal filters to control any suspended particles or precipitants while being transferred out of the storage tanks and being loaded on to railcars or trucks .


^*		Gold may amend, restate, amend and restate, supplement or otherwise modify the attached Exhibit A at any time and from time to time as provided in Section 9 of the Exclusive Ethanol Marketing Agreement to which this Exhibit A is attached.

Exhibit 10.4

DISTILLER’S GRAINS MARKETING AGREEMENT

April 7, 2010

THIS DISTILLER’S GRAINS MARKETING AGREEMENT (“Agreement”) is made as of the date first written above and entered into and effective as of the Effective Date (as hereinafter defined) by and between Hawkeye Gold, LLC, a Delaware limited liability company (“Gold”), and Heartland Grain Fuels, L.P., a South Dakota limited partnership (“Producer”).

RECITALS:

A.		Producer operates an ethanol plant located in or around Aberdeen, South Dakota (as it may be expanded from time to time, the “Plant”).

B.		This Agreement is being entered into in connection with the execution and delivery of that certain Backstop Commitment Agreement, dated as of the date hereof, by and between Advanced BioEnergy, LLC, a Delaware limited liability company and Hawkeye Energy Holdings, LLC, a Delaware limited liability company (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Backstop Agreement”).

C.		Producer desires to sell to Gold, and Gold desires to purchase from Producer, all the dried distiller’s grains (“DDG”), wet distiller’s grains (including modified wet distiller’s grains, “WDG”) and corn syrup produced at the Plant (collectively, the “Distiller’s Grains”), all upon and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing Recitals and the agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Gold and Producer agree as follows:

1. PURCHASE AND SALE OF DISTILLER’S GRAINS . Gold shall use commercially reasonable efforts to from time to time submit purchase orders or purchase contracts (each, a “Purchase Order”) to Producer for purchases of the Distiller’s Grains, all upon and subject to the terms and conditions of this Agreement. Gold may place a Purchase Order with Producer orally, by email or by a written purchase order or contract in a form mutually acceptable to Producer and Gold. The terms of any Purchase Order may include a request for the sale and delivery of Distiller’s Grains on a one-time basis or on a daily, weekly, monthly or other periodic basis. Each Purchase Order shall be irrevocable by Gold, unless and until the time at which the particular Purchase Order becomes a Rejected Purchase Order (as that term is defined below).

Producer may accept or reject each Purchase Order, in whole, but not in part, but Producer may only reject a Purchase Order for and on a commercially reasonable basis. Producer shall notify Gold of whether Producer accepts or rejects each particular Purchase Order within the time period specified in the Purchase Order in question, or if no time period is specified in the Purchase Order, within 24 hours of Producer’s receipt of the Purchase Order (in

either case, the “Acceptance Period”), and if Producer fails to notify Gold within the Acceptance Period, Producer shall be deemed to have rejected the Purchase Order in question. Gold reserves the right to require Producer to accept or reject any particular Purchase Order or Purchase Orders only in writing.

Any Purchase Order which is accepted by Producer is referred to in this Agreement as an “Accepted Purchase Order”, and any Purchase Order which is rejected by Producer is referred to in this Agreement as a “Rejected Purchase Order”.

Producer shall not sell or otherwise dispose of any Distiller’s Grains to any person other than Gold during the term of this Agreement, except only that if Gold fails to take delivery of Distiller’s Grains from the Plant and such failure will result in the Storage Limit (as that term is defined in Section 5(c)) being exceeded, then Producer may sell or otherwise dispose of only the amount of Distiller’s Grains as are necessary to cause the Storage Limit to not be exceeded provided Producer gives Gold at least 24 hours prior written notice of Producer’s intent to sell or dispose of any Distiller’s Grains pursuant to this paragraph.

Gold may purchase and otherwise deal in dried distiller’s grains, wet distiller’s grains, corn syrup and other products for Gold’s own use or account, and Gold may also market and sell dried distiller’s grains, wet distiller’s grains, corn syrup and other products of other persons (including affiliates or related parties of Gold), and provide services to other persons, on such terms and conditions as are determined by Gold from time to time, but subject to Gold’s compliance with Sections 14(c) and 14(e).

2. PURCHASE PRICE; PAYMENT OF PURCHASE PRICE . The purchase price payable by Gold to Producer for the Distiller’s Grains which are purchased by Gold pursuant to this Agreement is as follows:

(a) The purchase price for DDG shall be the F.O.B. Plant Price (as that term is defined below) for the DDG in question, less a marketing fee equal to the greater of (i) two percent (2%) of the F.O.B. Plant Price for the DDG, or (ii) the amount determined by multiplying the number of tons of DDG (rounded to the nearest one hundredth decimal point) by $1.30.

(b) The purchase price for WDG shall be the F.O.B. Plant Price for the WDG in question, less a marketing fee equal to the greater of (i) three percent (3%) of the F.O.B. Plant Price for the WDG, or (ii) the amount determined by multiplying the number of tons of WDG (rounded to the nearest one hundredth decimal point) by $1.00.

(c) The purchase price for corn syrup shall be the F.O.B. Plant Price for the corn syrup in question, less a marketing fee equal to the amount determined by multiplying the number of tons of corn syrup (rounded to the nearest one hundredth decimal point) by $2.00.

The marketing fee which is retained by Gold pursuant to subparagraphs (a), (b), and (c) above is at times referred to in this Agreement as the “Marketing Fee”.

The term “F.O.B. Plant Price” means the sale price and other amounts billed or invoiced to the Gold customer in question for the DDG, WDG or corn syrup in question, less both all Reimbursement Amounts and all Freight Costs (as those terms are defined below).

The term “Reimbursement Amounts” means the sum of all amounts which were billed to the Gold customer in question which are for reimbursement of out-of-pocket costs and expenses of Gold. The term “Freight Costs” means all direct and indirect costs, expenses and other amounts paid or incurred by Gold in connection with the pick-up, shipment, delivery or other transportation of Distiller’s Grains to the Gold customer in question, including freight, insurance, express bills and terminal fees.

If the Reimbursement Amounts and the Freight Costs equal or exceed the sale price for any particular Distiller’s Grains, it will be commercially reasonable for Gold to fail to submit a Purchase Order to Producer for those Distiller’s Grains.

Subject to Sections 3, 9 and 38, and to possible extension as provided in Section 5(b), Gold shall pay Producer for Distiller’s Grains which have been delivered to Gold during a given week (i.e. Sunday through Saturday) so that the payment is received by Producer on or before the second (2 ^nd ) following Friday which follows the close of the week in question. Each payment shall be accompanied by a summary which identifies the Distiller’s Grains which are the subject of the payment and which includes the gross sales prices, the F.O.B. Plant Prices, the Reimbursement Amounts and the Freight Costs for each shipment of such Distiller’s Grains.

3. ON-SITE MERCHANDISER . If Gold and Producer have both placed their in-itials or signature in the margin next to this Section, then Gold shall provide and maintain a full-time Distiller’s Grains merchandiser at the Plant (the “Merchandiser”), and Producer shall, at Producer’s cost and expense, provide the Merchandiser with reasonable administrative support, office space and other facilities and supplies at the Plant and shall otherwise reasonably cooperate with and assist the Merchandiser. Producer shall also pay Gold a fee with respect to the Merchandiser of one-half percent (.50%) of the F.O.B. Plant Price for all Distiller’s Grains purchased by Gold pursuant to this Agreement (the “Merchandiser Fee”). The Merchandiser Fee may be retained and withheld by Gold from the payments which are to be made by Gold to Producer pursuant to Section 2, or Gold may invoice Producer for the Merchandiser Fee on a monthly basis. In the latter event, the Merchandiser Fee shall be due and payable by Producer within ten days of the date of Gold’s invoice. The Merchandiser shall be and remain an employee of Gold, and Gold may designate and replace the Merchandiser at any time, in Gold’s discretion.

4. PRODUCTION AND LOADING SCHEDULES . Producer shall provide to Gold, by the second business day of each week, production schedules that will (i) accurately specify the Distiller’s Grains production schedule at the Plant for the following six calendar weeks (the “Six Week Schedule”), and (ii) estimate the Distiller’s Grains production schedule at the Plant for the six calendar weeks which follow the Six Week Schedule. Producer shall also provide to Gold, on a daily basis by 8:30 a.m. Central Standard Time, a status report regarding that day’s Distiller’s Grain inventory and production schedule for the Plant.

Gold shall schedule the loading and shipping of all Distiller’s Grains at the Plant, and shall provide Producer with daily or other periodic loading schedules specifying the quantities of Distiller’s Grains to be removed from the Plant each day, and specifying the method of removal (i.e., by truck or rail), with sufficient advance notice so as to allow Producer, acting in a commercially reasonable manner, to timely perform Producer’s drying, loading and related obligations under this Agreement.

Producer and Gold shall cooperate in coordinating production and loading schedules, including by promptly notifying the other of any changes in any production or loading schedules delivered hereunder; provided, however, that Gold shall be entitled to act and rely upon each Six Week Schedule provided by Producer and each loading schedule provided by Gold.

5. DELIVERY, STORAGE, LOADING, TITLE .

(a) Delivery . The place of delivery for all Distiller’s Grains purchased by Gold under this Agreement shall be F.O.B. the Plant. Producer shall grant and allow Gold and its agents (including all truck and rail carriers) access to the Plant in a manner and at all times reasonably necessary and appropriate for Gold to take delivery of Distiller’s Grains in accordance with the loading schedules provided by Gold pursuant to Section 4.

(b) Producer Delivery Reports . Producer shall provide Gold each day, weekends and holidays excluded, with meter or weight certificates and, with respect to truck deliveries, bills of lading, for the previous day’s deliveries of Distiller’s Grains to Gold. The meter or weight certificates and bills of lading with respect to any deliveries which are made on a weekend or a holiday will be provided to Gold on the next succeeding business day. Gold shall in no event be obligated to pay for a shipment of Distiller’s Grains (whether by rail or by truck) until Gold has received the meter or weight certificates and also the bills of lading for such Distiller’s Grains, and Gold’s obligation to pay for Distiller’s Grains shall be extended one week for each four days late that such meter or weight certificates and/or bills of lading are provided to Gold.

(c) Producer Storage . Producer shall provide storage space at the Plant for not less than 7 full days of combined Distiller’s Grains production at the Plant (the “Storage Limit”), based on the Plant’s then normal operating capacity, and such storage space shall be continuously available for Gold’s use for storage of Distiller’s Grains, without charge to Gold.

(d) Loading . Subject to Section 6, Gold shall arrange for trucks or railcars to be at the Plant for pick-up of Distiller’s Grains in accordance with the loading schedules provided by Gold pursuant to Section 4.

Producer shall provide and supply, without charge to Gold, all facilities, equipment and labor necessary to load the Distiller’s Grains into the trucks or railcars at the Plant in accordance with the loading schedules provided by Gold pursuant to Section

4. Producer agrees that all railcars shall be loaded to full visible capacity at the Plant. Producer shall maintain all loading facilities and equipment at the Plant in accordance with industry standards and in good and safe operating condition and repair, subject to ordinary wear and tear and depreciation.

(e) Handling of Distiller’s Grains . Gold and Producer shall each handle the Distiller’s Grains during the loading process in a good and workmanlike manner in accordance with the other’s reasonable requirements and customary industry practices.

(f) Title and Risk of Loss . Subject to Section 9, title, risk of loss, and shipping responsibility for Distiller’s Grains which are loaded into trucks at the Plant shall pass from Producer to Gold upon the loading of such Distiller’s Grains into the trucks at the Plant and Producer’s delivery to the truck carrier of a bill of lading for the Distiller’s Grains in question. Subject to Section 9, title, risk of loss, and shipping responsibility for Distiller’s Grains which are loaded into railcars at the Plant shall pass from Producer to Gold upon the loading of such Distiller’s Grains into the railcars at the Plant and Gold’s receipt of written notice (the “Railcar Loading Notice”) from Producer that such Distiller’s Grains have been loaded and are available for billing. Producer shall give each Railcar Loading Notice to Gold within 12 hours of the loading of the railcars in question, weekends and holidays excluded. A Railcar Loading Notice with respect to any deliveries which are made on a weekend or a holiday shall be provided to Gold within 12 hours of the start of the next succeeding business day.

6. PRODUCER MUST PROVIDE RAILCARS . Gold shall consult with Producer regarding the number of railcars that may be needed from time to time to ship the Distiller’s Grains. Producer agrees to use Producer’s best efforts to obtain access to and the use of the number of railcars, through a railcar lease or other arrangement, as are necessary from time to time for the timely and efficient shipment and transportation of the Distiller’s Grains and to make the railcars available to Gold for the loading, shipment and transportation of Distiller’s Grains. Gold shall not have any liability or responsibility with respect to or for the lease or other arrangements of Producer regarding the railcars. Gold shall utilize commercially reasonable efforts to coordinate the use of Producer’s railcars in a cost effective manner, but Producer acknowledges that the efficient use of Producer’s railcars depends on various factors, many of which are outside of Gold’s control, including general market conditions for distiller’s grains, general railroad and freight conditions, the frequency of Accepted Purchase Orders, the delivery times under Accepted Purchase Orders and the locations and related transportation periods which apply to Gold’s customers for Distiller’s Grains.

7. QUANTITY OF DISTILLER’S GRAINS . The quantity of Distiller’s Grains delivered to Gold under this Agreement by truck shall be definitively established by outbound meter and weight certificates obtained from meters and scales of Producer or another person that are properly certified as of the time of loading in accordance with any requirements imposed by any governmental or regulatory authorities and that otherwise comply in all material respects with all applicable laws, rules and regulations. Producer agrees to maintain at the Plant, in good and safe operating condition and repair and in accordance in all material respects with all applicable laws, rules and regulations, truck weights suitable for weighing Distiller’s Grains. All

costs and expenses incurred in connection with obtaining such certificates, and maintaining such truck weights, shall be borne by Producer.

In the case of rail shipments, the first official railroad weights will govern and definitively establish the quantity of Distiller’s Grains delivered to Gold under this Agreement.

Gold acknowledges that the current estimated monthly production of Distiller’s Grains at the Plant at full operation is set forth below Producer’s signature to this Agreement, but that Producer may, but is not required to, expand the capacity of Plant. If Producer determines to expand the capacity of the Plant, Producer shall give Gold written notice of such expansion, and of the estimated monthly production of Distiller’s Grains at the Plant after such expansion, at least six months before the estimated completion date of the construction activities related to such expansion.

8. QUALITY OF DISTILLER’S GRAINS . Producer acknowledges that (i) Gold intends to sell the Distiller’s Grains as a primary animal feed ingredient, (ii) the Distiller’s Grains are subject to certain industry and governmental standards, and (iii) consistent quality is important to achieving an optimal sales price for the Distiller’s Grains. Producer agrees that Producer shall use commercially reasonable efforts to produce and deliver Distiller’s Grains of consistent quality and composition, and, in addition, but without limiting the generality of the foregoing, Producer represents and warrants to Gold that all Distiller’s Grains: (i) shall be suitable and safe for use as an animal feed ingredient, (ii) shall meet the minimum quality standards set forth in Exhibit “A”, (iii) shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, as amended from time to time (the “Act”), and (iv) may lawfully be introduced into interstate commerce under the Act.

9. REJECTION OF DISTILLER’S GRAINS BY GOLD . Gold may reject, before or after delivery, any Distiller’s Grains that fail to conform to Section 8 or are otherwise unsaleable because of a failure to meet industry standards or the requirements of any applicable law, rule or regulation; provided, however, that Producer must receive written notice of rejection of a load of Distiller’s Grains on such basis from Gold within 48 hours of the delivery of such Distiller’s Grains to the ultimate customer or such Distiller’s Grains shall be deemed to be accepted by Gold.

If any Distiller’s Grains are seized or condemned by any governmental authority for any reason other than the failure of Gold to comply with any term of this Agreement (a “Governmental Seizure”), the Governmental Seizure shall automatically constitute a rejection by Gold of the Distiller’s Grains which are the subject of the Governmental Seizure, and Gold shall have no obligation to offer any defense in connection with the Governmental Seizure. Gold shall, however, notify Producer of the Governmental Seizure within 48 hours of Gold receiving notice of the Governmental Seizure. Gold shall also reasonably cooperate with Producer, but at Producer’s cost and expense, in defending against or otherwise contesting the Governmental Seizure.

If any Distiller’s Grains are rejected by Gold (the “Rejected Grains”), Gold will, in the following order:

(a) Offer Producer a reasonable opportunity, but in no event to exceed 48 hours following rejection, to examine and take possession of the Rejected Grains, at Producer’s cost and expense, if Gold reasonably determines that the condition of the Rejected Grains and the other circumstances permit such examination and delivery prior to disposal of the Rejected Grains; or

(b) Dispose of the Rejected Grains in the manner as directed by Producer, and at Producer’s cost and expense, subject to the requirements of applicable laws, rules and regulations and to any customer or other third party rights; or

(c) If Gold has no reasonably available means of disposing of the Rejected Grains, and if Producer fails to direct Gold to dispose of the Rejected Grains or directs Gold to dispose of the Rejected Grains in a manner inconsistent with applicable laws, rules or regulations or with any customer or other third party rights, then Gold may return the Rejected Grains to Producer, at Producer’s cost and expense.

Gold’s obligation with respect to any Rejected Grains shall be fulfilled upon Producer taking possession of the Rejected Grains, the disposal of the Rejected Grains or the return of the Rejected Grains to Producer, as the case may be, in accordance with subparagraphs (a), (b) or (c) above.

Producer shall reimburse Gold for all costs and expenses incurred by Gold for storing, transporting, returning, disposing of, or otherwise handling Rejected Grains, and Gold shall provide Producer with reasonable substantiating documentation for all such costs and expenses. Producer shall also refund any amounts paid by Gold to Producer for Rejected Grains within 10 days of the date of Producer’s receipt of Gold’s written notice of the rejection. Gold has no obligation to pay Producer for Rejected Grains, and Gold may deduct from payments otherwise due from Gold to Producer under this Agreement the amount of any reimbursable costs or any required refund by Producer as described above.

If any Distiller’s Grains are rejected by Gold following the transfer of title and risk of loss to Gold under Section 5(f), title and risk of loss shall automatically revert to Producer effective upon the rejection of the Distiller’s Grains.

10. TESTING AND SAMPLES . If Producer knows or has reason to believe that any Distiller’s Grains do not comply with Section 8 or may be subject to rejection under Section 9, Producer shall promptly notify Gold so that such Distiller’s Grains can be tested before entering interstate commerce. If Gold knows or has reason to believe that any Distiller’s Grains do not comply with Section 8 or may be subject to rejection under Section 9, then Gold may obtain independent laboratory tests of such Distiller’s Grains. If the test was initiated by Gold pursuant to the preceding sentence and if the Distiller’s Grains are tested and found to comply with Section 8 and to not be subject to rejection, then Gold shall be responsible for the costs of testing such Distiller’s Grains. Producer shall be responsible for all testing costs in all other circumstances.

Producer will take an origin sample of Distiller’s Grains from every truck and railcar loaded with Distiller’s Grains at the Plant, using sampling methodology that is consistent with then prevailing industry standards. Producer will label the samples to indicate the date of loading, and will retain the samples for not less than six months.

Producer shall, within 3 days of the close of each calendar week, deliver to Gold a composite analysis of all Distiller’s Grains produced at the Plant during such week, and also at such other times and for such production periods as are requested by Gold from time to time. The composite analysis shall address, without limitation, the matters set forth in Exhibit “B” and shall be in a format reasonably acceptable to Gold and Producer.

11. GOLD MARKS . Gold may market and sell the Distiller’s Grains under such names, marks, brands and logos as are determined by Gold from time to time, in its sole discretion (collectively, the “Marks”). The Marks shall at all times be the sole and exclusive property of Gold, and Gold reserves to itself all rights, entitlements and benefits of ownership and property of every kind and nature whatsoever in, to or in any way arising from or related to the Marks, including all goodwill.

Producer shall not utilize any of the Marks without the prior written consent of Gold, which consent may be withheld in Gold’s sole discretion. Any permitted use of any Mark by Producer shall not grant Producer any rights in the Mark, other than as a nonexclusive licensee, and shall in each event be (i) limited in scope, area, use and otherwise in accordance with the express consent as granted by Gold, (ii) in strict accordance with Gold’s policies and requirements as established by Gold from time to time, in its sole discretion, regarding the use of the Marks, (ii) nonassignable and nontransferable, whether voluntarily or involuntarily, and (iv) terminable at any time upon the giving of written notice by Gold, with or without cause, and in the absence of any such written notice, terminated automatically and immediately upon the effective time of the termination of this Agreement.

12. FEES AND EXPENSES . Producer shall be responsible for all fees and charges assessed or imposed on the Distiller’s Grains by any governmental authority or industry organization with respect to the sale and delivery of the Distiller’s Grains to Gold as contemplated by this Agreement, including for branding, packaging, inspection, or otherwise. If any such fees or charges are paid by Gold, Producer shall reimburse Gold for such fees and charges within 10 days of the date of Gold’s invoice therefor to Producer, which invoice shall be accompanied by reasonable supporting documentation. Gold shall consult with Producer regarding any fees or charges payable by Producer under this Section and the related governmental or industry requirements and standards.

13. DUTIES OF PRODUCER . In addition to Producer’s other duties and obligations under this Agreement, Producer agrees as follows:

(a) Producer shall cooperate with Gold in the performance of Gold’s services under this Agreement, including by (i) providing Gold in a timely manner with any records or information that Gold may reasonably request from time to time as part of Gold’s marketing of the Distiller’s Grains, and (ii) furnishing any representative of Gold

who may be working at the Plant from time to time with reasonable administrative support, office space and other facilities and supplies.

(b) Producer shall maintain the Plant, including the Distiller’s Grains drying equipment, in good and safe operating repair and condition, subject to ordinary wear and tear and depreciation.

(c) Producer shall at all times have designated to Gold one or more employees of Producer who shall have authority to act for and on behalf of Producer under this Agreement, including for purposes of accepting Purchase Orders (each, a “Producer Representative”). Producer may change the identity of any Producer Representative at any time, but no change shall be effective with respect to Gold unless and until Gold has received written notice of such change. Any action taken by a Producer Representative shall bind Producer and may be relied upon, and acted on, by Gold without inquiry to, or confirmation from, Producer or any other Producer Representative. Producer’s initial Producer Representative is identified below Producer’s signature to this Agreement.

(d) Producer shall provide Gold with not less than six months prior written notice of any material change in any of the technology which is from time to time utilized at the Plant.

(e) Producer shall allocate Producer’s production of distiller’s grains among dried distiller’s grains, wet distiller’s grains and modified wet distiller’s grains as necessary to comply with Accepted Purchase Orders and Gold’s related loading schedules.

(f) Producer shall perform its duties and obligations under this Agreement in a commercially reasonable manner and in compliance in all material respects with all governmental laws, rules and regulations which are applicable to Producer’s duties and obligations under this Agreement.

(g) Producer shall promptly advise Gold of any material problems with respect to any Distiller’s Grains.

(h) Producer shall promptly advise Gold of any matter regarding any Distiller’s Grains which raises an issue of compliance of the Distiller’s Grains with applicable governmental laws, rules or regulations or industry standards.

(i) Producer shall obtain and continuously maintain in effect any and all governmental or other consents, approvals, authorizations, registrations, licenses or permits which are necessary or appropriate for Producer to fully and timely perform all of its duties and obligations under this Agreement, including any state feed inspection tax and all other state licenses, permits or other approvals which are necessary or appropriate to market and sell the Distiller’s Grains.

14. DUTIES OF GOLD . In addition to Gold’s other duties and obligations under this

Agreement, Gold agrees as follows:

(a) Gold shall use commercially reasonable efforts to achieve the highest F.O.B. Plant Price available for Distiller’s Grains under the prevailing market conditions at the time of sale by Gold.

(b) Gold shall perform its duties and obligations under this Agreement in a commercially reasonable manner and in compliance in all material respects with all governmental laws, rules and regulations which are applicable to its services under this Agreement.

(c) In the event of a conflict of interest between the interests of Producer and one or more other ethanol plants from which Gold purchases dried distiller’s grains or wet distiller’s grains and/or markets them for sale (each, an “Other Client”), including with respect to allocations of sales during times of excess supply of distiller’s grains and with respect to sales price or other sales terms, Gold shall purchase and market the Distiller’s Grains for sale in a consistent and commercially reasonable manner in relation to the dried distiller’s grains and/or wet distiller’s grains, as the case may be, of the Other Clients.

(d) Gold will deliver to Producer (i) a weekly report showing all of Gold’s sales of, or trades in, distiller’s grains during the prior week, and (ii) a monthly report showing all then outstanding contractual commitments that Gold has in place regarding any Distiller’s Grains. Any proprietary positions held by Gold which are disclosed in such reports will be identified or listed separately in such reports. The reports contemplated by this subparagraph need not disclose the names or identities of any Other Clients or other third parties to Gold’s transactions in any distiller’s grains, but Gold does not make any assurances that Other Clients will not be able to determine the identity of Producer or other Producer specific information from the reports.

(e) Gold shall not accept for its own behalf or account any offer of a third party for the purchase of any dried distiller’s grains or wet distiller’s grains unless a corresponding purchase order from Gold has been rejected by Producer and the Other Clients.

(f) Gold shall be responsible and liable for Gold’s relationship and dealings with all third party purchasers of the Distiller’s Grains from Gold, including with respect to and for billing, collections and account servicing and management, and Gold shall bear all credit and collection risk with respect to Gold’s sales of Distiller’s Grains to third parties.

(g) Gold shall promptly advise Producer of any material problems or questions raised by any customer with respect to any Distiller’s Grains.

(h) Gold shall promptly advise Producer of any matter regarding the Distiller’s Grains which comes to the attention of Gold which raises an issue of compliance of the

Distiller’s Grains with applicable governmental laws, rules or regulations or industry standards.

(i) Gold shall obtain and continuously maintain in effect any and all governmental or other consents, approvals, authorizations, registrations, licenses or permits which are necessary or appropriate for Gold to fully and timely perform all of its services, duties and obligations under this Agreement.

(j) Gold shall reasonably consult with Producer regarding freight rates and prices and trends in the distiller’s grains markets.

15. REPRESENTATIONS AND WARRANTIES OF GOLD . Gold represents and warrants to Producer as follows:

(a) Gold is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and has and shall maintain all requisite power and authority to own or otherwise hold and use its property and carry on its business as now conducted and as to be conducted pursuant to this Agreement.

(b) This Agreement has been duly authorized, executed and delivered by Gold, and constitutes the legal, valid and binding obligation of Gold, enforceable against Gold in accordance with its terms. Gold has and shall maintain all requisite power and authority to enter into and perform this Agreement, and all necessary actions and proceedings of Gold have been taken to authorize the execution, delivery and performance of this Agreement.

(c) The execution and performance of this Agreement do not and will not conflict with, breach or otherwise violate any of the terms or provisions of the organizational or governing documents of Gold or of any agreement, document or instrument to which Gold is a party or by which Gold or any of its assets or properties are bound.

(d) There is no civil, criminal or other litigation, action, suit, investigation, claim or demand pending or, to the knowledge of Gold, threatened, against Gold, which may have a material adverse effect upon the transactions contemplated by this Agreement or Gold’s ability to perform its duties and obligations under, or to otherwise comply with, this Agreement.

16. REPRESENTATIONS AND WARRANTIES OF PRODUCER . Producer represents and warrants to Gold as follows:

(a) Producer is duly organized, validly existing and in good standing under the laws of the state under which Producer was organized, and has and shall maintain all requisite power and authority to own or otherwise hold and use its property and carry on its business as now conducted and as to be conducted pursuant to this Agreement.

(b) This Agreement has been duly authorized, executed and delivered by Producer, and constitutes the legal, valid and binding obligation of Producer, enforceable against Producer in accordance with its terms. Producer has and shall maintain all requisite power and authority to enter into and perform this Agreement, and all necessary actions and proceedings of Producer have been taken to authorize the execution, delivery and performance of this Agreement.

(c) The execution and performance of this Agreement do not and will not conflict with, breach or otherwise violate any of the terms or provisions of the organizational or governing documents of Producer or of any agreement, document or instrument to which Producer is a party or by which Producer or any of its assets or properties are bound.

(d) There is no civil, criminal or other litigation, action, suit, investigation, claim or demand pending or, to the knowledge of Producer, threatened, against Producer, which may have a material adverse effect upon the transactions contemplated by this Agreement or Producer’s ability to perform its duties and obligations under, or to otherwise comply with, this Agreement.

(e) All Distiller’s Grains shall be delivered and sold to Gold by Producer free and clear of all liens, restrictions on transferability, reservations, security interests, financing statements, licenses, mortgages, tax liens, charges, contracts of sale, mechanics’ and statutory liens and all other liens, claims, demands, restrictions or encumbrances whatsoever.

17. NO OTHER WARRANTIES . Except for the express warranties set forth in Sections 8, 15 and 16 of this Agreement, neither Gold nor Producer make any express warranties whatsoever regarding the Distiller’s Grains or any other matter whatsoever, and Gold and Producer hereby exclude and disclaim in entirety all implied warranties whatsoever, including the implied warranties of merchantability, noninfringement and fitness for a particular purpose, with respect to all Distiller’s Grains and all other matters whatsoever. For example, Gold makes no representation or warranty that Gold will be able to sell the Distiller’s Grains at profitable prices or at all.

18. NO INDIRECT DAMAGES . Except as otherwise provided below in this Section, under no circumstances or theories (including breach of this Agreement) will Gold or Producer be liable to the other for any lost profits, business or goodwill, or for any exemplary, special, incidental, consequential or indirect damages whatsoever, which are in any way related to or connected with or arise out of this Agreement (and even if Gold and/or Producer, as the case may be, knew or should have known of the possibility of any of those damages) including to, with or out of any performance or nonperformance by Gold, Producer or any Distiller’s Grains.

Notwithstanding the foregoing or any other term of this Agreement which may appear to be the contrary, however, Gold and Producer acknowledge and agree that the preceding paragraph is not applicable to, and accordingly does not limit the scope or extent of Gold’s or

Producer’s liability with respect to (i) Sections 19 or 20; or (ii) any act or omission of Gold or Producer, as the case may be, or of their respective employees or agents, which is, in whole or in part, grossly negligent or reckless or which constitutes willful or wanton misconduct, fraud or an intentional tort.

19. CONFIDENTIALITY . Gold and Producer acknowledge that they may have access to confidential information (as that term is defined below) of the other, and that it is necessary for the other to prevent the unauthorized use or disclosure of confidential information. Accordingly, and in further consideration for this Agreement, Gold and Producer covenant and agree that they shall not, during the term of this Agreement or at any time within one year following the termination of this Agreement (whether this Agreement is terminated by Gold, by Producer or by mutual consent, and for whatever reason or for no reason), directly or indirectly, engage in or take or refrain from taking any action or inaction which may lead to the use or disclosure of any confidential information of the other by or to any person, or use or disclose any confidential information of the other for their own benefit; provided, however, that Gold and Producer may use and disclose the other’s confidential information during the term of this Agreement as necessary or appropriate to Gold’s or Producer’s, as the case may be, performance of their duties and obligations under this Agreement, including, with respect to Gold, its marketing and sale of the Distiller’s Grains to third parties.

The term “confidential information” means all information in any form which is proprietary or confidential to, respectively, Gold or Producer, as the case may be, whether regarding their services, products, business or otherwise, and whether or not designated as such when received, obtained, compiled or observed by Gold or Producer, as the case may be.

Notwithstanding the foregoing, however, the term “confidential information” shall in no event include any information which: (i) is already lawfully known to, or in the possession of, Gold or Producer, as the case may be, at the time of disclosure by the other; (ii) is or subsequently becomes publicly available or publicly known through no wrongful act of Gold or Producer, as the case may be; (iii) is disclosed or provided to Gold or Producer, as the case may be, by a person having the right to make an unrestricted disclosure of the information; or (iv) is developed independently by Gold or Producer, as the case may be, without the use of the other’s confidential information.

In addition, and notwithstanding any of the foregoing, Gold and Producer may disclose confidential information of the other as may be required from time to time by any court order, governmental action, legal process or by applicable law, rule or regulation; provided, however, that in such event they shall, if permitted under the terms of such order, action, process, law, rule or regulation, first give written notice to the other and shall reasonably cooperate, but at the other’s sole cost and expense, in the other’s attempt to obtain a protective order or other waiver or exclusion from the court or other applicable governmental or other authority. Notwithstanding the preceding sentence, however, Gold and Producer may, without the consent of the other, make such disclosures and filings of this Agreement and the transactions contemplated hereby as Gold or Producer, as the case may be, from time to time determines to be necessary or appropriate under, or as may be required in connection with, (i) the federal and applicable state securities laws, rules or regulations, including the Securities Exchange Act of 1934 and the various rules

and regulations promulgated pursuant thereto; and (ii) any debt or equity financing as may from time to time be pursued or obtained by Gold or Producer or any affiliate of Gold or Producer, as the case may be, including to any prospective or actual lenders or investors and to actual or potential participants, assignees or transferees of any such lender or in connection with a foreclosure, assignment in lieu of foreclosure or the exercise of any rights or remedies by any such lender. Gold or Producer shall, where reasonably practicable, give the other prior written notice of the fact that they intend to make a disclosure pursuant to the preceding sentence.

As provided above, Gold’s and Producer’s respective obligations under this Section shall in all events end and terminate on the date which is one year following the effective date of the termination of this Agreement.

Nothing in this Section is intended or shall be construed as requiring Gold or Producer to furnish any confidential information to the other, except to the extent necessary or appropriate for the other to perform and provide the services and duties required of such party under this Agreement.

20. NONSOLICITATION COVENANTS . Gold and Producer shall not, respectively, during the term of this Agreement or at any time within one year of the effective date of the termination of this Agreement (whether this Agreement is terminated by Gold, by Producer or by mutual consent, and for whatever reason or for no reason), directly or indirectly, solicit or contact any employee of the other for purposes of employing or otherwise retaining such employee without the express prior written consent of the other, which consent may be withheld in Gold’s or Producer’s, as the case may be, sole discretion. This paragraph shall not, however, prohibit general, nontargeted solicitation such as general advertisements.

Without limiting the preceding paragraph or any other rights or remedies as may be available to Gold or Producer, as the case may be, if Gold or Producer, as the case may be, employs or otherwise engages any individual who was at any time during the term of this Agreement an employee of the other, Gold or Producer, as the case may be, shall, on the effective date of such employment or other engagement, pay the other an amount equal to the total salary and other compensation that was paid by the other to the individual during the individual’s last twelve months of employment or other service to the other.

21. REASONABLENESS OF COVENANTS . Gold and Producer acknowledge and agree that the covenants set forth in Section 19 and Section 20 are reasonable and are necessary and appropriate to protect the justifiable business interests of, respectively, Gold and Producer, and are not to be limited or restricted in any way or found to be or held by any court or other applicable authority to be unenforceable or invalid because of the scope of the area, actions subject thereto or restricted thereby, the time period over which the covenants are applicable, or otherwise. Without limiting Section 35, and in addition thereto, in the event any of the covenants set forth in Section 19 or Section 20 are deemed by a court or other applicable authority, notwithstanding the foregoing, to be too broad in terms of the scope of the area, actions subject thereto or restricted thereby, the time period over which the covenants are applicable, or otherwise, Gold and Producer expressly authorize and direct the court and/or such other applicable authority to enforce each and all of the covenants contained in Section 19 and

Section 20 to the full and maximum extent the court or such other applicable authority, as the case may be, deems permissible.

Gold and Producer also agree that a breach or imminent breach of Section 19 or Section 20 by them shall constitute a material breach of this Agreement for which the other will not have an adequate remedy at law, and that the other’s remedies upon a breach or imminent breach of Section 19 or Section 20 by them therefore include the right to preliminary, temporary and permanent injunctive relief restraining them and their employees and agents from any further violation of Section 19 or Section 20, as the case may be, and without any requirement that the party pursuing such injunctive relief post any bond or other form of collateral or security in order to be able to pursue, obtain or maintain any such injunctive relief.

22. EFFECTIVE DATE . This Agreement shall be effective as of the earlier of (a) the date that is six months after the date first set forth above, and (b) such earlier date as Producer and Gold, through their mutual exercise of commercially reasonable efforts, are able to implement the terms hereof (the “Effective Date”).

23. TERM . The initial term of this Agreement shall be for a period of three years following the Effective Date (the “Initial Term”), unless terminated earlier under Section 24. This Agreement shall automatically renew for successive additional one year terms (each, a “Renewal Term”) following the expiration of the Initial Term or the Renewal Term then in effect, as the case may be, unless Gold or Producer gives the other written notice of their election not to renew, for whatever reason or for no reason, no later than 90 days prior to the end of the Initial Term or the Renewal Term then in effect, as the case may be.

24. TERMINATION . Producer and Gold shall also have the right to terminate this Agreement as follows:

(a) Producer may terminate this Agreement in any of the following events: (i) the failure by Gold to make any payment to Producer when due, if such nonpayment has not been fully cured within 5 days of Gold’s receipt of written notice thereof from Producer; (ii) any breach or nonfulfillment of or any default under any term or condition of this Agreement by Gold (other than a payment obligation), if such breach, nonfulfillment or default is not fully cured by Gold within 10 days of Gold’s receipt of written notice thereof from Producer; or (iii) upon the giving of written notice by Producer to Gold, without any opportunity for cure by Gold, in the event of the insolvency of, business failure of, appointment of a receiver of or for any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding (whether voluntary or involuntary) under any bankruptcy, insolvency, debtor/creditor, receivership or similar or related law by or against, Gold.

(b) Gold may terminate this Agreement in any of the following events: (i) the failure by Producer to make any payment to Gold when due, if such nonpayment has not been fully cured within 5 days of Producer’s receipt of written notice thereof from Gold; (ii) any breach or nonfulfillment of or any default under any term or condition of this Agreement by Producer (other than a payment obligation), if such breach, nonfulfillment

or default is not fully cured by Producer within 10 days of Producer’s receipt of written notice thereof from Gold; or (iii) upon the giving of written notice by Gold to Producer, without any opportunity for cure by Producer, in the event of the insolvency of, business failure of, appointment of a receiver of or for any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding (whether voluntary or involuntary) under any bankruptcy, insolvency, debtor/creditor, receivership or similar or related law by or against, Producer.

This Agreement may also be terminated as provided in Section 27.

25. EFFECT OF TERMINATION . The termination of this Agreement, by Gold or Producer, and for whatever reason or for no reason, shall not affect any liability or obligation of Gold or Producer under this Agreement which shall have accrued prior to or as a result of such termination, including any liability for loss or damage on account of breach, nor shall the termination of this Agreement (by Gold or Producer, and for whatever reason or for no reason) affect the terms or provisions of this Agreement which contemplate performance or continuing obligations beyond the termination of this Agreement, including the obligations of, as applicable, Gold and/or Producer under Sections 11, 19, 20, 36 and 37.

Upon the termination of this Agreement by Gold or Producer, and for whatever reason or for no reason, Producer and Gold shall be and remain responsible for selling and purchasing, in accordance with the terms and conditions of this Agreement, any Distiller’s Grains which are the subject of an Accepted Purchase Order which has not yet been performed on the effective date of the termination of this Agreement, and this Agreement shall also continue for that limited purpose.

26. AUDIT RIGHTS . Gold and Producer shall each maintain complete, accurate and up-to-date records of their activities with respect to, as applicable, the production, delivery, shipment and sale of Distiller’s Grains pursuant to this Agreement (collectively, and in general, the “Records”). Gold and Producer shall each have the right, upon reasonable notice to the other, to examine the Records of the other during normal business hours for the purpose of determining the accuracy of any payment, statement or other document provided by the other under this Agreement. Gold and Producer shall maintain each of their respective Records for a period of two years from the date of the creation of the particular Record in question.

If Gold’s or Producer’s review of the Records of the other reveals any shortages or deficiencies in the amount of any payments required to be made by Gold to Producer, or by Producer to Gold, as the case may be, pursuant to this Agreement (an “Unpaid Amount”), Gold or Producer, as the case may be, shall pay the Unpaid Amount to the other within 15 days of Gold’s or Producer’s, as the case may be, written notice to the other of the Unpaid Amount. The party which owes the Unpaid Amount is referred to as the “UA Payer,” and the party to which the Unpaid Amount is owed is referred to as the “UA Recipient.” The UA Recipient’s written notice must include the basis for the calculation of the Unpaid Amount. The UA Payer shall also pay, or reimburse the UA Recipient for, the out-of-pocket costs and expenses incurred by the UA Recipient in connection with the review of the Records in question if such review revealed a shortage or deficiency of two percent (2%) or more in the aggregate amount of payments that

were required to be made to the UA Recipient by the UA Payer with respect to the period of time which was the subject of the review in question. In addition, if Gold or Producer, as the case may be, review the Records of the other more than once during any six month period, and the costs and expenses of such review are not allocated to Gold or Producer pursuant to the preceding sentence, the party conducting the review shall reimburse the costs and expenses incurred by the other (including employee time) in connection with such review or reviews within 10 days of the receipt of an invoice therefor from the other.

27. FORCE MAJEURE . If any term or condition of this Agreement to be performed or observed by Gold or Producer (other than a payment or indemnification obligation) is rendered impossible of performance or observance due to any force majeure or any other act, omission, matter, circumstance, event or occurrence beyond the commercially reasonable control of Gold or Producer, as the case may be (each, an “Impossibility Event”), the affected party shall, for so long as such Impossibility Event exists, be excused from such performance or observance, provided the affected party (i) promptly notifies the other party of the occurrence of the Impossibility Event, (ii) takes all such steps as are reasonably necessary or appropriate to terminate, remedy or otherwise discontinue the effects of the Impossibility Event, and (iii) recommences performance after the termination or discontinuance of the Impossibility Event; provided, however, that if after 30 days from the occurrence of the Impossibility Event the affected party is still unable to perform its obligations under this Agreement, the other party may, in such party’s sole discretion, terminate this Agreement effective upon the giving of written notice to the affected party. The term “Impossibility Event” includes an actual or threatened act or acts of war or terrorism, fire, storm, flood, earthquake, acts of God, civil disturbances or disorders, riots, sabotage, strikes, lockouts and labor disputes; provided, however, that nothing in this Section is intended to or shall be interpreted as to require the resolution of labor disputes by acceding to the demands of labor when such course is inadvisable in the discretion of the party subject to such dispute.

28. ARBITRATION . Except as provided below, all controversies, disputes or claims between Gold and Producer in any way related to, arising out of or connected with this Agreement shall be resolved solely and exclusively through binding arbitration in accordance with the then current commercial arbitration rules of the American Arbitration Association. The arbitration proceeding shall be conducted in Des Moines, Iowa and shall be heard by one arbitrator mutually agreed to by Gold and Producer; provided, however, that if Gold and Producer are unable to agree on an arbitrator within 15 days of the date of a written demand for arbitration given by either Gold or Producer, then Gold and Producer shall each select one arbitrator, and those two arbitrators shall in turn select a third arbitrator, and the arbitration proceedings shall be heard and determined before those three arbitrators, with the decision of a majority of the arbitrators to govern.

The arbitrator or arbitrators shall have the right to award or include in the award any relief deemed appropriate under the circumstances, including money damages, specific performance, injunctive relief and attorneys’ fees and costs in accordance with this Agreement, but subject to Section 18.

Gold and Producer agree that, in connection with any arbitration proceeding, they shall

file any compulsory counterclaim (as defined under the federal rules of civil procedure) within 30 days after the date of the filing of the claim to which it relates.

The award and decision of the arbitrator or arbitrators shall be conclusive and binding upon Gold and Producer and judgment upon the award may be entered in any court of competent jurisdiction.

Gold and Producer shall share the costs of the arbitration equally, and shall pay their own attorneys’ fees and other costs and expenses, except that the arbitrator or arbitrators may award costs and fees to the prevailing party as the arbitrator or arbitrators deem appropriate.

Notwithstanding the foregoing, no controversy, dispute or claim in any way related to, arising out of or connected with Sections 19 or 20 or any action by Gold or Producer seeking specific performance or injunctive relief shall be subject to arbitration under this Section unless Gold and Producer, in their respective sole discretion, consent in writing to the arbitration of any such particular controversy, dispute or claim.

29. INSURANCE . Gold and Producer shall each maintain during the term of this Agreement commercial general liability insurance with combined single limits of not less than $2,000,000. The respective commercial general liability insurance policies issued to Gold and to Producer must be reasonably acceptable to the other, and must (i) name the other as an additional insured, (ii) provide for a minimum of 30 days written notice to the other prior to any cancellation, termination, nonrenewal, amendment or other change of such insurance policy, and (iii) provide that in the event of payment of any loss or damage the respective insurers will have no rights of recovery against the other. Gold and Producer shall, respectively, provide reasonable proof of such insurance to the other upon the reasonable request of the other from time to time.

30. ASSIGNMENT . This Agreement shall be assignable by Gold or Producer, as the case may be, only with the prior written consent of the other, which consent shall not be unreasonably delayed, conditioned or withheld; provided , however , that Gold and Producer may, respectively, without the consent of the other (i) assign this Agreement or any or all of its rights and obligations under this Agreement to any Affiliate of Gold or Producer, as the case may be; and (ii) assign this Agreement as collateral, security or otherwise to any financing source of Gold or Producer, as the case may be, and any such financing source may in turn assign this Agreement upon any foreclosure or other exercise of any rights or remedies against Gold or Producer, as the case may be. Gold or Producer, as the case may be, shall give prompt written notice to the other of any assignment by them pursuant to either of subclauses (i) or (ii) in the preceding sentence. “Affiliate” shall mean, with respect to Gold or Producer, any person controlling, controlled by or under common control with Gold or Producer, as applicable.

31. GOVERNING LAW . This Agreement is entered into and is performable in material part in Iowa, and shall be governed by and construed in accordance with the laws of the State of Iowa, but with regard to or application of the choice of law or conflicts of law provisions thereof.

32. TRADE RULES . All purchases and sales of Distiller’s Grains under this Agreement shall be governed by the Feed Trade Rules of the National Grain and Feed Association (as amended from time to time, the “Trade Rules”) if and only to the extent that the Trade Rules are expressly applicable to such purchases and sales; provided, however, that in the event of any conflict or inconsistency between any term or provision of the Trade Rules and any term or condition of this Agreement, this Agreement shall govern and control to the full extent of such conflict or inconsistency. Notwithstanding the foregoing, the Arbitration Rules of the National Grain and Feed Association shall not apply to this Agreement.

33. NOTICES . Subject to the last paragraph in this Section, all notices and demands desired or required to be given under this Agreement (“Notices”) shall be given in writing and shall be given by (i) hand delivery to the address for Notices; (ii) delivery by overnight courier service to the address for Notices; or (iii) sending the Notice by United States mail, postage prepaid, certified mail, addressed to the address for Notices.

All Notices shall be deemed given and effective upon the earliest to occur of (i) the hand delivery of the Notice to the address for Notices, (ii) delivery by overnight courier service to the address for Notices, or (iii) three business days after the depositing of the Notice in the United States mail as provided in the foregoing paragraph.

All Notices shall be addressed to the addresses set forth below the signatures to this Agreement or to such other person or at such other address as Gold or Producer may from time to time by Notice designate to the other as a place for service of Notice.

Notwithstanding the foregoing, production schedules, loading schedules, delivery reports, bills of lading, Railcar Loading Notices, rejection notices and invoices to be provided under this Agreement may be delivered by facsimile or email to the facsimile numbers or email addresses set forth below the signatures to this Agreement or to such other number or email address as Gold or Producer may from time to time by Notice designate to the other.

34. BINDING EFFECT ON SUCCESSORS AND ASSIGNS . This Agreement shall be binding upon and shall inure to the benefit of Gold and Producer and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person other than Gold and Producer (and their respective successors and permitted assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement, except that (i) Producer acknowledges that Gold shall sell the Distiller’s Grains to third parties based upon and in reliance on Producer’s representations and warranties set forth in Section 8 and Section 16(e), and (ii) Gold’s and Producer’s respective affiliates, employees and agents shall have the rights provided in, respectively, Sections 36 and 37.

35. SEVERABILITY . In the event any provision of this Agreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid and enforceable. In the event any provision of this Agreement is held to be invalid, illegal or unenforceable as written, but valid, legal and enforceable if modified, then such provision shall be deemed to be amended to such extent as

shall be necessary for such provision to be valid, legal and enforceable and it shall be enforced to that extent. Any finding of invalidity, illegality or unenforceability in any jurisdiction shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction.

36. INDEMNIFICATION BY PRODUCER . Subject to Section 18, Producer shall indemnify, defend and hold Gold and Gold’s affiliates, employees and agents harmless from and against any and all suits, actions, proceedings, claims, counterclaims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) in any way arising in connection with or resulting from (i) any breach or nonfulfillment of or default under any term or condition of this Agreement by Producer, or (ii) any act or omission of Producer which is, in whole or in part, grossly negligent or reckless or which constitutes willful or wanton misconduct, fraud or an intentional tort. Any payment owed by Producer to Gold under this Agreement which is not made within two days of the date on which the payment was due shall bear interest from the date such payment was due until it is paid at the Prime Rate as published in The Wall Street Journal from time to time, plus four percent (4%).

37. INDEMNIFICATION BY GOLD . Subject to Section 18, Gold shall indemnify, defend and hold Producer and Producer’s affiliates, employees and agents harmless from and against any and all suits, actions, proceedings, claims, counterclaims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) in any way arising in connection with or resulting from (i) any breach or nonfulfillment of or default under any term or condition of this Agreement by Gold, or (ii) any act or omission of Gold which is, in whole or in part, grossly negligent or reckless or which constitutes willful or wanton misconduct, fraud or an intentional tort. Any payment owed by Gold to Producer under this Agreement which is not made within two days of the date on which the payment was due shall bear interest from the date such payment was due until it is paid at the Prime Rate as published in The Wall Street Journal from time to time, plus four percent (4%).

38. RIGHT OF OFFSET . Gold has and hereby reserves the right to setoff against and withhold from any amounts due or owing to Producer by Gold under this Agreement any and all amounts of whatever kind or nature as may from time to time be due or owing to Gold from Producer and which are past due or which arise out of or under Section 36. Producer has and hereby reserves the right to setoff against and withhold from any amounts due or owing to Gold by Producer under this Agreement any and all amounts of whatever kind or nature as may from time to time be due or owing to Producer from Gold and which are past due or which arise out of or under Section 37.

39. NO WAIVER; MODIFICATIONS IN WRITING . No failure or delay on the part of Gold or Producer in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Except as provided in Section 18, the remedies provided for in this Agreement are cumulative and are not exclusive of any remedies that may be available to Gold or Producer at law, in equity or otherwise. No amendment, modification, supplement, termination or waiver of or to any provision of this Agreement, or consent to any departure therefrom, shall be effective unless the same shall be in writing and signed by Gold and Producer. Producer and Gold may amend this

Agreement pursuant to an Accepted Purchase Order which is signed by both Producer and Gold and which specifically provides that specified terms of such Accepted Purchase Order constitute an amendment of specified terms of this Agreement (a “PO Amendment”). A PO Amendment and any other amendment, modification or supplement of or to any provision of this Agreement, any waiver of any provision of this Agreement, and any consent to any departure from the terms of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given. A PO Amendment shall also be effective only with respect to the particular Accepted Purchase Order in question.

40. COUNTERPARTS; DELIVERY BY FACSIMILE TRANSMISSION. This Agreement may be executed in counterparts (including by facsimile or email), each of which shall be deemed an original and shall constitute one and the same Agreement.

41. ENTIRE AGREEMENT . This Agreement and any exhibits and schedules to this Agreement constitute the entire agreement between Gold and Producer relating to the subject matters of this Agreement, and supersede all negotiations, preliminary agreements and all prior or contemporaneous discussions and understandings of Gold and Producer in connection with the subject matters of this Agreement. No course of dealing or usage of trade, except only as expressly provided in Section 32, shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement. Gold hereby objects to any additional, different or inconsistent terms which may be set forth in any purchase order or any other document that Producer may at any time and from time to time submit to Gold, and no such additional, different or inconsistent terms shall be a part of this Agreement or shall have any force or effect whatsoever. In the event of any conflict or inconsistency between any terms and conditions of this Agreement and any purchase order or any other document as may be submitted by Producer hereunder, the terms and conditions of this Agreement shall govern and control to the full extent of such conflict or inconsistency.

42. RECORDING OF TELEPHONE CONVERSATIONS . Producer consents to the recording by Gold of all telephone conversations between Gold and Producer. Gold also consents to the recording by Producer of all telephone conversations between Producer and Gold.

43. CONSTRUCTION; CERTAIN DEFINITIONS; GENDER AND NUMBER . This Agreement shall not be construed more strongly against Gold or Producer, regardless of who is more responsible for its preparation.

The use of the words “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” in this Agreement mean and refer to this entire Agreement, and not to any particular section, paragraph or provision. The words “include,” “includes” and “including” are used in this Agreement in a nonexclusive manner and fashion, that is so as to include, but without limitation, the facts, items or matters in question. Any references in this Agreement to a “Section,” “Exhibit” or “Schedule” shall, unless otherwise expressly indicated, be a reference to the section in this Agreement or to such exhibit or schedule to this Agreement. Words and phrases in this Agreement shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the context. The titles or captions of sections and paragraphs in this Agreement are provided for convenience of reference only, and shall not be considered a part of

this Agreement for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the scope or extent of this Agreement or any of its terms or conditions. The word “person” as used in this Agreement includes natural persons and all forms and types of entities.

44. NATURE OF RELATIONSHIP . Nothing contained in this Agreement and no action taken or omitted to be taken by Gold or Producer pursuant to this Agreement shall be deemed to constitute Gold and Producer a partnership, an association, a joint venture or other entity whatsoever. Gold shall at all times be acting as an independent contractor under this Agreement, and Gold does not have the authority to enter into any contract or agreement on behalf of Producer.

45. TIME IS OF THE ESSENCE . Gold and Producer each acknowledge and agree that time is of the essence in the performance by them of their respective duties and obligations under this Agreement.

46. WAIVER OF JURY TRIAL; JURISDICTION . Without limiting Section 28, Producer and Gold waive any right to a jury trial in and with respect to any suit, action, proceeding, claim, counterclaim, demand or other matter whatsoever arising out of this Agreement. Producer and Gold submit to the nonexclusive jurisdiction of any United States or Iowa court sitting in Des Moines, Iowa in any action or proceeding arising out of or relating to this Agreement which is not subject to Section 28 and with respect to the enforcement of any arbitration award under Section 28.

[Remainder of Page Intentionally Left Blank – Signature Page Follows]

IN WITNESS WHEREOF, Gold and Producer have executed this Agreement as of the date first written above, to be effective as of the Effective Date.



HEARTLAND GRAIN FUELS, L.P.		HAWKEYE GOLD, LLC

By:	/s/ Richard R. Peterson	By:	/s/ Timothy B. Callahan

	Name: Richard R. Peterson		Name: Timothy B. Callahan
	Title: CFO		Title: CFO

Address:			Address:

			224 S. Bell Ave.
			Ames, Iowa 50010
Attn:			Attn: Timothy B. Callahan

Fax Number:			Fax Number: 515-233-5902
Email:			Email: tcallahan@hawkeye-energy.com

Location of Plant: Aberdeen, SD [Recital A]
Monthly Production: Tons [Section 7]
Producer Representative:

[Section 13(c)]

Exhibit A: Minimum Quality Standards [Section 8]
Exhibit B: Composite Analysis Matters [Section 10]

[Signature Page to Hawkeye Gold Distillers Grains Agreement]

EXHIBIT A

MINIMUM QUALITY STANDARDS
FOR
WET AND DRY DISTILLER’S GRAINS AND CORN SYRUP


	Component	Minimum			Maximum
DDG	Protein		26	%		N/A
	Fat		7.5	%		N/A
	Fiber		N/A			15	%
	Ash		N/A			5	%
	Moisture		10	%		13	%


	Component	Minimum			Maximum
WDG	Protein		10.5	%		N/A
	Fat		3	%		N/A
	Fiber		N/A			5	%
	Ash		N/A			2.5	%
	Moisture		60	%		N/A


	Component	Minimum			Maximum
Modified WDG	Protein		15.0	%		N/A
	Fat		4.5	%		N/A
	Fiber		N/A			9.0	%
	Ash		N/A			4.0	%
	Moisture		50	%		55	%

The Distiller’s Grains shall have Aflatoxin levels of less than 20 ppb. The Distiller’s Grains shall be no warmer than the higher of (i) the daily high of the ambient outside temperature or (ii) 60 degrees Fahrenheit. The Distiller’s Grains shall not have a musty, moldy or sour smell or other commercially objectionable odor. The Distiller’s Grains shall be cool and sweet and must be able to pour freely into the shipping container.

All Corn Syrup shall meet industry standards.

[Exhibit to Hawkeye Gold Distillers Grains Agreement]

EXHIBIT B

COMPOSITE ANALYSIS MATTERS

MOISTURE, %
DRY MATTER, %
CRUDE PROTEIN, %
A.D. FIBER, %
N.D. FIBER, %
CRUDE FIBER, %
ASH, %
TOTAL DIGEST NUTRS., %
NET ENERGY, MAIN.
NET ENERGY, GAIN
NET ENERGY, LACT.
DIG. ENERGY, SWINE
MET. ENERGY, SWINE
CALCIUM, %
PHOSPHORUS, %
ACID FAT, %
SULFUR, %
COLOR SCORE
COMPLETE MYCOTOXINS
COMPLETE AMINO ACIDS
PARTICLE SIZE

[Exhibit to Hawkeye Gold Distillers Grains Agreement]

Exhibit 10.5

EXCLUSIVE ETHANOL MARKETING AGREEMENT

April 7, 2010

RECITALS

WHEREAS, Producer operates an ethanol plant located in or around Huron, South Dakota (as the same may be expanded from time to time, including any conversion involving the use of new technology, the “ Plant ”);

WHEREAS, capitalized terms used in this Agreement are used herein as defined in Section 45 hereof.

Section 1. Purchase Orders .

iii. Terminal Storage Purchase Orders . Gold may place a Purchase Order with Producer for a fixed quantity of Ethanol to be shipped to a terminal location (with respect to such shipment, the “ Terminal Storage Ethanol ”) unsold to an end customer with the intention of selling such Terminal Storage Ethanol en route or after delivery to the terminal (“ Terminal Storage Purchase Orders ”). Gold will determine and specify a Pro Forma Price for the Terminal Storage Ethanol in any Terminal Storage Purchase Order, to be used for Producer’s and Gold’s respective accounting purposes, but such Pro Forma Price will not represent the final Delivery Payment for such Terminal Storage Purchase Order. Gold will submit one or more Direct Fixed Price Purchase Orders or Direct Index Price Purchase Orders for the Terminal Storage Ethanol when the applicable shipment is en route or after delivery to the terminal (each such Purchase Order, with respect to the Terminal Storage Ethanol, a “ Supplemental Purchase Order ”). Notwithstanding anything in this Agreement to the contrary, any Delivery Payment for Terminal Storage Ethanol will be paid by check of Gold or by wire transfer (according to Producer’s preference) on or before the earliest to occur of the date that is two Business Days after Gold receives payment for the relevant Terminal Storage Ethanol from Gold’s customer; and the first Business Day that is at least 20 days after the date on which the relevant Terminal Storage Ethanol was actually shipped or transferred to Gold’s end customer. Subject to Gold’s duties pursuant to Section 15(a)(i) , in the event that any Terminal Storage Ethanol remains unsold for more than 30 days after delivery to the applicable storage terminal, Gold shall have the right and authority to sell such Terminal

for which a Payment Acceleration Notice has been properly delivered to and accepted by Gold:

Section 5. Production and Loading Schedules .

Section 6. Delivery, Storage, Loading, Title .

definition of “Delivery Payment,” and/or set off against and withhold such Gold Freight Costs from any Gold True-Up Amounts payable hereunder.

f. Delivery of Payment and Other Documents and Information .

g. Producer Storage Space . Producer shall provide storage space at the Plant for a minimum of 3 days of Ethanol production at the Plant (the “ Maximum Storage ”), with the number of gallons of storage of Ethanol available at the Plant based on the current production capacity of the Plant being set forth below Producer’s signature to this Agreement, and such storage space shall be continuously available for Gold’s use for storage of Ethanol, without charge to Gold.