Consulting Agreement

Exhibit 10.9


CONSULTING AGREEMENT


This Consulting Agreement (the "Agreement") is made this 22nd day of March, 2005 (the "Effective Date"), by and between BioEnergy Capital Consultants, LLC, a South Dakota limited liability company, with an address of 44095 212th Street, Lake Preston, South Dakota 57249 ("BioEnergy"), and Advanced BioEnergy, LLC, a Delaware limited liability company, with an address of 4424 South 177th Street, Omaha, Nebraska 68135 ("Client"). 179th /s/jp


RECITALS


A. Client intends to develop, finance and construct an ethanol plant in or near Fairmont, Nebraska, with a capacity to produce 100 million gallons of ethanol per year (the "Project").


B. BioEnergy has a background in the development of value-added agriculture projects and is willing to provide services to Client based on this background.


NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, Client engages BioEnergy, and BioEnergy accepts engagement, upon the terms and conditions hereinafter set forth.


1. TERM. BioEnergy's engagement with Client shall commence as of the Effective Date and shall continue at least through the first day after the Loan Closing Date (as defined in section 3), unless properly terminated as provided herein. BioEnergy may terminate its services upon fourteen (14) days prior written notice to Client. Client may only terminate BioEnergy's services for "Cause". For purposes of this Agreement, "Cause" means BioEnergy's gross negligence or intentional misconduct in the performance of its duties under this Agreement, a known violation of the law, or a material broach of this Agreement by BioEnergy.


2. SERVICES. BioEnergy shall serve as Client's Project consultant. BioEnergy's service providers (described in section 8 of this Agreement) shall perform the following duties incident to that service subject to Client's approval:


a. Assist negotiations of contracts with various service and product
providers;


b. Assist the planning of the Client's equity marketing effort,
including, without limitation, preparation of written and visual equity
marketing materials (including, but not limited to, a power point
presentation), and training Client's officers and directors to conduct
Client's equity marketing effort;


c. Assist the securing of debt financing for and commencement of
construction of the Project;


d. Assist the education of local lenders including, without
limitation, the preparation of a "banker's book" tailored to the Project;
and


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e. Perform such other reasonably necessary duties as Client may
request for the timely and successful securing of debt financing and
commencement of construction or the Project, including without limitation,
cooperating with the Client's personnel similarly engaged. Notwithstanding
the forgoing, neither BioEnergy, its members, managers, officers,
employees, nor agents shall itself or themselves be asked to, or actually,
solicit an offer to buy, or accept an offer to sell, any equity security to
be issued by Client.


Subject to Client's approval, BioEnergy shall determine the manner in which
the services are to be performed and the specific hours to be worked by
BioEnergy. Client shall rely on BioEnergy to work as many hours as may be
reasonably necessary to fulfill BioEnergy's commitments under this
Agreement.


3. SUBSEQUENT EQUITY OFFERINGS. If Client successfully reaches financial close of the equity and debt financing necessary to build the Project and this Agreement has not been terminated by Client pursuant to Section 1, Client agrees that BioEnergy shall then have the right to perform for Client the services set forth in Section 2 in the event that Client decides within the next FIVE (5) years from the date of this Agreement to raise a substantial amount of additional equity from individual investors living in or around the geographical area surrounding the Project. In that event, BioEnergy's fees for these additional services shall be negotiated by the parties but shall be commensurate with the fees set forth in this Agreement.


4. PAYMENT.


a. Client shall transfer to BioEnergy without payment therefore,
Twenty-five Hundred (2,500) unrestricted membership units in Advanced
BioEnergy, LLC (the "Unrestricted Units"), no later than ten (10) days
following the Effective Date. Subsequent to the transfer of the
Unrestricted Units, Client expects to perform a membership unit dividend
wherein additional membership units shall be distributed for every one (1)
membership unit issued and outstanding (the "Unit Dividend"). The terms of
the Unit Dividend ore expected to be two (2) Units for every one (1) Unit
issued and outstanding. However, BioEnergy acknowledges that the terms of
the Unit Dividend are subject to change and shall not be finally determined
by the Client's Board of Directors until alter the close of the seed
capital offering. The Unrestricted Units shall be eligible to participate
in the Unit Dividend on the same terms and conditions as all other
memberships units issued and outstanding on the date of the Unit Dividend.
No later than ten (10) days following the date of the Unit Dividend, Client
shall transfer an additional Forty Two Thousand Five Hundred (42,500)
membership units (the "Restricted Units") in Advanced BioEnergy, LLC to
BioEnergy without payment therefore. If Client does not begin construction
of the Project on or before December 31, 2007, and Client is no longer
actively pursuing the Project, or if the Client files Articles of
Dissolution before beginning construction of the Project, then BioEnergy
shall return to Client the Restricted Units, without payment of
consideration by Client. In this event, BioEnergy shall be entitled to
receive any and all distributions made by the Client to all members with


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respect to the remaining membership units, including the Unrestricted Units
and any additional membership units received as a result of the Unit
Dividend, in proportion to all outstanding membership units. This
restriction shall be noted on the certificates or other instruments
evidencing ownership of the Restricted Units. Notwithstanding anything in
this Agreement to the contrary, the Restricted Units shall not be
transferred until after the d ...