Lump Sum Design-build Agreement

LUMP SUM DESIGN-BUILD AGREEMENT

BETWEEN

ABE NORTHFIELD, LLC (" OWNER ")

AND

FAGEN, INC. (" DESIGN-BUILDER ")

February 7, 2007




* Portions omitted pursuant to a request for confidential treatment and filed separately with the SEC.






TABLE OF CONTENTS

Page
Article 1 Definitions; Rules of Interpretation 1

1.1 Rules of Construction 1
1.2 Defined Terms 2

Article 2 The Project 6

2.1 Services to be Performed 6
2.2 Extent of Agreement 6
2.3 Conflicting Provisions 7

Article 3 Design-Builder Responsibilities 7

3.1 Design-Builder92s Services in General 7
3.2 Design Development and Services 8
3.3 Standard of Care 9
3.4 Government Approvals and Permits 9
3.5 Subcontractors 9
3.6 Maintenance of Site 10
3.7 Project Safety 10
3.8 Submission of Reports 11
3.9 Training 11

Article 4 Owner92s Responsibilities 11

4.1 Duty to Cooperate 11
4.2 Furnishing of Services and Information 11
4.3 Financial Information; Cooperation with Lenders; Failure to Obtain Financial Closing 12
4.4 Owner92s Representative 13
4.5 Government Approvals and Permits 13
4.6 Owner92s Separate Contractors 13
4.7 Security 13

Article 5 Ownership of Work Product; Risk of Loss 13

5.1 Work Product 13
5.2 Owner92s Limited License Upon Payment in Full 14
5.3 Owner92s Limited License Upon Owner92s Termination for Convenience or Design-Builder92s Election to Terminate 14
5.4 Owner92s Limited License Upon Design-Builder92s Default 15
5.5 Owner92s Indemnification for Use of Work Product 15
5.6 Risk of Loss 15

Article 6 Commencement and Completion of the Project 15

6.1 Phase I and Phase II Engineering 15




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6.2 Notice to Proceed; Commencement 16
6.3 Project Start-Up and Testing 16
6.4 Substantial Completion 17
6.5 Final Completion 18
6.6 Post Completion Support 19

Article 7 Performance Testing and Liquidated Damages 20

7.1 Performance Guarantee 20
7.2 Performance Testing 20
7.3 Liquidated Damages 21
7.4 Bonds and Other Performance Security 22

Article 8 Warranties 23

8.1 Design-Builder Warranty 23
8.2 Correction of Defective Work 23
8.3 Warranty Period Not Limitation to Owner92s Rights 24

Article 9 Contract Price 24

9.1 Contract Price 24
9.2 Effect of Construction Cost Index Increase on Contract Price 25

Article 10 Payment Procedures 25

10.1 Payment at Financial Closing Prior to Notice to Proceed 25
10.2 Progress Payments 26
10.3 Final Payment 27
10.4 Failure to Pay Amounts Due 27
10.5 Design-Builder92s Payment Obligations 27
10.6 Record Keeping and Finance Controls 28

Article 11 Hazardous Conditions and Differing Site Conditions 28

11.1 Hazardous Conditions 28
11.2 Differing Site Conditions; Inspection 29

Article 12 Force Majeure; Change in Legal Requirements 29

12.1 Force Majeure Event 29
12.2 Effect of Force Majeure Event 30
12.3 Change in Legal Requirements 31
12.4 Time Impact And Availability 31
12.5 Effect of Industry-Wide Disruption on Contract Price 31

Article 13 Changes to the Contract Price and Scheduled Completion Dates 32

13.1 Change Orders 32
13.2 Contract Price Adjustments 32
13.3 Emergencies 33
13.4 Failure to Complete Owner92s Milestones 33




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Page
Article 14 Indemnity 33

14.1 Tax Claim Indemnification 33
14.2 Payment Claim Indemnification 33
14.3 Design-Builder92s General Indemnification 34
14.4 Owner92s General Indemnification 35
14.5 Patent and Copyright Infringement 35

Article 15 Stop Work; Termination for Cause 36

15.1 Owner92s Right to Stop Work 36
15.2 Owner92s Right to Perform and Terminate for Cause 36
15.3 Owner92s Right to Terminate for Convenience 37
15.4 Design-Builder92s Right to Stop Work 38
15.5 Design-Builder92s Right to Terminate for Cause 38
15.6 Bankruptcy of Owner or Design-Builder 39
15.7 Lenders92 Right to Cure 40

Article 16 Representatives of the Parties 40

16.1 Designation of Owner92s Representatives 40
16.2 Designation of Design-Builder92s Representatives 40

Article 17 Insurance 41

17.1 Insurance 41
17.2 Design-Builder92s Insurance Requirements 42
17.3 Owner92s Liability Insurance 43
17.4 Owner92s Property Insurance 43
17.5 Coordination with Loan Documents 45

Article 18 Representations and Warranties 45

18.1 Design-Builder and Owner Representations and Warranties 45
18.2 Design-Builder Representations and Warranties 46

Article 19 Dispute Resolution 46

19.1 Dispute Avoidance and Mediation 46
19.2 Arbitration 46
19.3 Duty to Continue Performance 47
19.4 No Consequential Damages 47
19.5 Limitation of Liability 47

Article 20 Confidentiality of Shared Information 48

20.1 Non-Disclosure Obligation 48
20.2 Publicity and Advertising 49
20.3 Term of Obligation 49

Article 21 Miscellaneous 49

21.1 Assignment 49
21.2 Successors 50
21.3 Governing Law 50




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Page
21.4 Severability 50
21.5 No Waiver 50
21.6 Headings 50
21.7 Notice 50
21.8 No Privity with Design Consultant/Subcontractors 51
21.9 Amendments 51
21.10 Entire Agreement 52
21.11 Third-Party Beneficiaries 52
21.12 Counterparts 52
21.13 Survival 52

EXHIBIT A Performance Guarantee Criteria A-1

EXHIBIT B General Project Scope B-1

EXHIBIT C Owner92s Responsibilities C-1

EXHIBIT D ICM License Agreement D-1

EXHIBIT E Schedule of Values E-1

EXHIBIT F Form of Informational Report F-1

EXHIBIT G Required Permits G-1

EXHIBIT H Form of Performance Bond H-1

EXHIBIT I Form of Payment Bond I-1

EXHIBIT J Draw (Payment) Schedule J-1

EXHIBIT K Air Emissions Application or Permit K-1

EXHIBIT L Phase I and Phase II Engineering Services Agreement L-1

EXHIBIT M Form of Application for Payment M-1

EXHIBIT N Form of Lien Waiver N-1

EXHIBIT O Form of Consent to Assignment O-1




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LUMP SUM DESIGN-BUILD CONTRACT

This LUMP SUM DESIGN-BUILD CONTRACT (the " Agreement ") is made as of February 7, 2007, (the " Effective Date ") by and between ABE Northfield, LLC, a Delaware limited liability company (the " Owner ") and Fagen, Inc., a Minnesota corporation (the " Design-Builder ") (each a " Party " and collectively, the " Parties ").

RECITALS

A. The Owner desires to develop, construct, own and operate a one hundred (100) million gallons per year (" MGY ") dry grind denatured ethanol production facility located near Northfield, Minnesota (the " Plant "); and

B. Design-Builder desires to provide design, engineering, procurement and construction services for the Plant.

NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein and for other good and valuable consideration, Owner and Design-Builder agree as follows.

AGREEMENT

Article 1

Definitions; Rules of Interpretation

1.1 Rules of Construction. The capitalized terms listed in this Article shall have the meanings set forth herein whenever the terms appear in this Agreement, whether in the singular or the plural or in the present or past tense. Other terms used in this Agreement but not listed in this Article shall have meanings as commonly used in the English language and, where applicable, in generally accepted construction and design-build standards of the fuel ethanol industry in the Midwest United States. Words not otherwise defined herein that have well known and generally accepted technical or trade meanings are used herein in accordance with such recognized meanings. In addition, the following rules of interpretation shall apply:

(a) The masculine shall include the feminine and neuter.

(b) References to "Articles," "Sections," "Schedules," or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits of this Agreement.

(c) This Agreement was negotiated and prepared by each of the Parties with the advice and participation of counsel. The Parties have agreed to the wording of this Agreement and none of the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof.










1.2 Defined Terms. In addition to definitions appearing elsewhere in this Agreement, the following terms have the following meanings:

AAA is defined in Section 19.1.

Agreement is defined in the Preamble.

Air Emissions Tester means a third party entity engaged by Owner meeting all required state and federal requirements for such testing entities, to conduct air emissions testing of the Plant in accordance with Exhibit A.

Applicable Law means

(a) any and all laws, legislation, statutes, codes, acts, rules, regulations, ordinances, treaties or other similar legal requirements enacted, issued or promulgated by a Governmental Authority;

(b) any and all orders, judgments, writs, decrees, injunctions, Governmental Approvals or other decisions of a Governmental Authority; and

(c) any and all legally binding announcements, directives or published practices or interpretations, regarding any of the foregoing in (a) or (b) of this definition, enacted, issued or promulgated by a Governmental Authority;

to the extent, for each of the foregoing in (a), (b) and (c) of this definition, applicable to or binding upon (i) a Party, its affiliates, its shareholders, its members, its partners or their respective representatives, to the extent any such person is engaged in activities related to the Project; or (ii) the property of a Party, its affiliates, its shareholders, its members, its partners or their respective representatives, to the extent such property is used in connection with the Project or an activity related to the Project.

Application for Payment is defined in Section 10.2.1.

As Built Plans is defined in Section 5.2.

Bankrupt Party is defined in Section 15.6.1.

Baseline Index is defined in Section 9.2.1.

Change Order is defined in Section 13.1.1.

CCI is defined in Section 9.2.

Certificate of Substantial Completion is defined in Section 6.4.3.

Commitment Fee is defined in Section 10.1.1.

Confidential Information is defined in Section 20.1.

Construction Documents is defined in Section 3.2.1.

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Contract Documents is defined in Section 2.2.

Contract Price is defined in Section 9.1.

Contract Time(s) means scheduled dates provided for in the Contract Documents including Scheduled Substantial Completion Date and Final Completion Date.

Damages is defined in Section 14.3.1.

Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents.

Design-Builder is defined in the Preamble.

Design-Builder92s Representative is defined in Section 16.2.

Design-Builder92s Senior Representative is defined in Section 16.2.

Design Consultant is a qualified, licensed design professional that is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder or Subcontractor, to furnish design services required under the Contract Documents.

Differing Site Conditions is defined in Section 11.2.1.

Early Completion Bonus is defined in Section 6.4.4.

Effective Date is defined in the Preamble.

Fagen Engineering is defined in Section 6.1.

Final Application for Payment is defined in Section 10.3.

Final Completion is defined in Section 6.5.2.

Final Completion Date is defined in Section 6.5.1.

Final Payment is defined in Section 10.3.

Financial Closing means the execution of the Financing Documents by all the parties thereto, and the fulfillment of all conditions precedent thereunder necessary to permit the advance of funds to pay amounts due under this Agreement.

Financing Documents means the final loan documents with the Lender or Lenders providing financing for the construction or term financing of the Plant and any and all agreements

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necessary to demonstrate a binding commitment of Owner or Lenders to fund the construction of the Plant.

Force Majeure Event is defined in Section 12.1.

Governmental Approvals are any material authorizations or permissions issued or granted by any Governmental Authority to the Project, its Owner, the Design-Builder, Subcontractors and their affiliates in connection with any activity related to the Project.

Governmental Authority means any federal, state, local or municipal governmental body; any governmental, quasi-governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power; or any court or governmental tribunal; in each case having jurisdiction over the Owner, the Design-Builder, the Project, or the Site.

Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements.

ICM means ICM, Inc., a Kansas corporation.

ICM License Agreement means the license agreement to be executed between Owner and ICM, Inc., substantially in the form attached hereto as Exhibit D.

Indemnified Parties is defined in Section 5.2.

Independent Engineer means Owner92s and Lenders92 independent engineer.

Industry-Wide Disruption is defined in Section 12.4.

Informational Report is defined in Section 3.8.

Legal Requirements or Laws are all applicable federal, state and local statutes, laws, codes, ordinances, rules, regulations, judicial decisions, orders, decrees, plans, injunctions, permits, tariffs, governmental agreements and governmental restrictions, whether now or hereafter in effect, of any Governmental Authority, the practices involved in the Project or Site, or any Work, including any consensus standards for materials, products, systems, and services established by ASTM International, any successor organization thereto, or any Governmental Authority.

Lenders means the lenders that are party to the Financing Documents.

Lenders92 Agent means an agent or agents acting on behalf of the Lenders.

Manufacturer92s Warranty shall mean a warranty provided by the original manufacturer or vendor of equipment used by Design-Builder in the Plant.

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MGY is defined in the Recitals.

Notice to Proceed is defined in Section 6.2.

Operating Procedures means, without limitation, the process equipment and specifications manuals, standards of quality, service protocols, data collection methods, construction specifications, training methods, engineering standards and any other information prescribed by Design-Builder and ICM from time to time concerning the ownership, operation, maintenance and repair of the Plant, subject to the limitations provided in the Agreement and in the ICM License Agreement.

Owner is defined in the Preamble.

Owner Indemnified Parties is defined in Section 14.3.1.

Owner92s Milestones is defined in Section 13.4.

Owner92s Operator means the entity that Owner identifies, upon written notice to Design-Builder, as operator of the Project or any other entity that Owner chooses, upon notice to Design-Builder, to replace such entity as operator of the Project.

Owner92s Representative is defined in Section 16.1.

Owner92s Senior Representative is defined in Section 16.1.

Party or Parties is defined in the Preamble.

Pass Through Warranties mean any warranties provided to Design-Builder by a Subcontractor which are assigned to Owner.

Pay Period means, with respect to a given Application for Payment, the one (1) month period following the last day of the previous Pay Period to which the immediately prior Application for Payment is applied; provided that the initial Pay Period shall commence on the date of delivery of the Notice to Proceed and end on the twenty-fourth (24 th ) day of the calendar month during which the Notice to Proceed is issued.

Payment Bond is defined in Section 7.4.2.

Performance Bond is defined in Section 7.4.1.

Performance Guarantee Criteria means the criteria listed in Exhibit A.

Performance Tests is defined in Section 7.2.1.

Phase I is defined in Exhibit L.

Phase I and Phase II Engineering Services Agreement is defined in Section 6.1.

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Phase II is defined in Exhibit L.

Plant is defined in the Recitals.

Project is defined in Section 2.1.

Project Scope is defined in Exhibit B.

Punch List is defined in Section 6.4.3.

Qualified Independent Expert means an expert retained by Owner and approved by Design-Builder pursuant to Section 11.1.2.

Safety Representative is defined in Section 3.7.1.

Schedule of Values is defined in Section 10.2.5.

Scheduled Substantial Completion Date is defined in Section 6.4.1.

Site is the land or premises on which the Project is located.

Subcontractor is any person or entity retained by Design-Builder, or by any person or entity retained directly or indirectly by Design-Builder, in each case as an independent contractor to perform a portion of the Work, and shall include materialmen and suppliers.

Substantial Completion is defined in Section 6.4.2.

Work is defined in Section 3.1.

Work Product is defined in Section 5.1.

Article 2

The Project

2.1 Services to be Performed.

Pursuant to this Agreement, Design-Builder shall perform all work and services in connection with the engineering, design, procurement, construction startup, testing and training for the operation and maintenance of the Plant, and provide all material, equipment, tools and labor necessary to complete the Plant in accordance with the terms of this Agreement. The Plant, together with all equipment, labor, services and materials furnished hereunder is defined as the " Project ."

2.2 Extent of Agreement. This Agreement consists of the following documents, and all exhibits, schedules, appendices and attachments hereto and thereto (collectively, the " Contract Documents "):

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2.2.1 All written modifications, amendments and change orders to this Agreement.

2.2.2 This Agreement, including all exhibits and attachments, executed by Owner and Design-Builder, including those below:

List of Exhibits

Exhibit A Performance Guarantee Criteria
Exhibit B General Project Scope
Exhibit C Owner92s Responsibilities
Exhibit D ICM License Agreement
Exhibit E Schedule of Values
Exhibit F Form of Informational Report
Exhibit G Required Permits
Exhibit H Form of Performance Bond
Exhibit I Form of Payment Bond
Exhibit J Draw (Payment) Schedule
Exhibit K Air Emissions Application or Permit
Exhibit L Phase I and Phase II Engineering Services Agreement
Exhibit M Form of Application for Payment
Exhibit N Form of Lien Waiver
Exhibit O Form of Consent to Assignment




2.2.3 Construction Documents to be prepared by Design-Builder pursuant to Section 3.2.1 shall be incorporated in this Agreement.

2.3 Conflicting Provisions. In the event of any conflict or inconsistency between the body of this Agreement and any Exhibit or Schedule hereto, the terms and provisions of this Agreement, as amended from time to time, shall prevail and be given priority. Subject to the foregoing, the several documents and instruments forming part of this Agreement are to be taken as mutually explanatory of one another and in the case of ambiguities or discrepancies within or between such parts the same shall be explained and interpreted, if possible, in a manner which gives effect to each part and which avoids or minimizes conflicts among such parts. No oral representations or other agreements have been made by the Parties except as specifically stated in the Contract Documents.

Article 3

Design-Builder Responsibilities

3.1 Design-Builder92s Services in General. Except for services and information to be provided by Owner and specifically set forth in Article 4 and Exhibit C, Design-Builder shall perform or cause to be performed all design, engineering, procurement, construction services, supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to complete construction of the Project consistent with the Contract Documents (the " Work "). All design and engineering and construction services and

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other Work of the Design-Builder shall be performed in accordance with (i) the Project Scope set forth in Exhibit B, (ii) the Construction Documents, (iii) all Legal Requirements, and (iv) generally accepted construction and design-build standards of the fuel ethanol industry in the United States during the relevant time period. Any design and engineering or other professional service to be performed pursuant to this Agreement, which under Applicable Law must be performed by licensed personnel, shall be performed by licensed personnel as required by Law. The enumeration of specific duties and obligations to be performed by the Design-Builder under the Contract Documents shall not be construed to limit in any way the general undertakings of the Design-Builder as set forth herein. Design-Builder92s Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design-Builder92s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder.

3.2 Design Development and Services.

3.2.1 Where required by Law, Design-Builder shall provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals required to permit construction of the Work in accordance with this Agreement (such drawings, specifications and design submittals collectively, the " Construction Documents "). To the extent not prohibited by Legal Requirements, Design-Builder may prepare Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work.

3.2.2 Construction of the Plant shall be consistent with the Construction Documents.

3.2.3 Design-Builder shall maintain a current, complete set of drawings and specifications at the Site. Owner shall have the right to review such drawings and specifications. Owner and Independent Engineer may not make copies of the available drawings and specifications without Design-Builder92s written permission, and, granted such permission, may only do so to the extent such drawings and specifications directly pertain to the Plant; provided however that, pursuant to Section 5.1 of this Agreement, Design-Builder retains ownership of and property interests in any drawing or specifications made available and/or copied.

3.2.4 Except as provided elsewhere in this Agreement, it is understood and agreed that review, comment and/or approval by Owner (or its designees) or Independent Engineer of any documents or submittals that Design-Builder is required to submit to Owner (or its designees) or Independent Engineer hereunder for their review, comment and/or approval (including without limitation the Construction Documents pursuant to Sections 3.2.1 and 3.2.3 hereof) shall not relieve or release Design-Builder from any of its duties, obligations or liabilities

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provided for under the terms of this Agreement or transfer any design liability ...