AMENDED AND RESTATED ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

Construction Agreement

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ADA-ES INC | BE&K CONSTRUCTION COMPANY, LLC | RED RIVER ENVIRONMENTAL PRODUCTS, LLC

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Title: AMENDED AND RESTATED ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
Governing Law: Louisiana Date: 11/7/2008
Industry: Chemical Manufacturing Law Firm: White Williams Sector: Basic Materials

Exhibit 10.51

AMENDED AND RESTATED

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

between

R ED R IVER E NVIRONMENTAL P RODUCTS , LLC

Owner

and

BE&K C ONSTRUCTION C OMPANY , LLC

Contractor

*	indicates portions of the exhibit that have been omitted pursuant to a request for confidential information. The non-public information has been filed with the Commission.

TABLE OF CONTENTS


				Page
ARTICLE 1 DEFINITIONS; INTERPRETATION				13

	1.1	Definitions		13

	1.2	Certain Interpretative Matters		30

	1.3	Order of Precedence		32

		1.3.1	Notice	32
		1.3.2	Conflict	32

	ARTICLE 2 CONTRACTOR’S WORK AND OTHER OBLIGATIONS			33

	2.1	Commencement of the Work		33

		2.1.1	Effective Date	33
		2.1.2	Full Notice to Proceed	33
		2.1.3	Notice to Proceed Requirements	33
		2.1.4	Additional Security	34

	2.2	Work to be Performed		35

		2.2.1	Engineering/Design, and Procurement Services	35
		2.2.2	Supervision and Superintendence	36
		2.2.3	Project Superintendent	37
		2.2.4	Certain Project Site Related Work	37
		2.2.5	Reference Points	38
		2.2.6	Procurement of Materials, Equipment	38
		2.2.7	Inspection, Factory Tests and Expediting	39
		2.2.8	Labor and Personnel	40
		2.2.9	Certain Taxes	41
		2.2.10	Permitting	43
		2.2.11	Personnel Training	43
		2.2.12	Safety Precautions	44
		2.2.13	Hazardous Substances	45
		2.2.14	Royalties, Import Duties and License Fees	47
		2.2.15	Interconnection Agreement	48
		2.2.16	[RESERVED]	48
		2.2.17	Storage and Related Matters	48
		2.2.18	Functional Tests	48
		2.2.19	Clean Site and Waste Removal	48
		2.2.20	Owner Contracts	49

	2.3	Project Schedule, Progress Reports and Progress Meetings		50

		2.3.1	Project Schedule	50
		2.3.2	Recovery Plan	51


2.4	Methods of Performance		52

2.5	Transfer of Title/Risk of Loss for Certain Items		52

	2.5.1	Title to Work	52
	2.5.2	Risk of Loss to Contractor Property	52
	2.5.3	Title to Drawings, Reports, Documents and Information	52
	2.5.4	Title to Natural Resources	54
	2.5.5	Title to Fossils and Artifacts	54
	2.5.6	Title Warranty	54

2.6	Subsurface Conditions		54

2.7	Local Conditions		55

2.8	Subcontractors and Owner Suppliers		55

	2.8.1	Subcontractors	55
	2.8.2	No Privity with Owner	55
	2.8.3	Certain Subcontracts	55
	2.8.4	Purchase Orders and Subcontracts	56
	2.8.5	Subcontractor Warranties	56
	2.8.6	Subcontractor Insurance	57

2.9	Insurance		57

2.10	Compliance with Applicable Legal Requirements		57

2.11	Real Estate		57

2.12	Use of Project Site		57

	2.12.1	Use and Restoration	58
	2.12.2	Site Authority	58

2.13	Record Documents		58

2.14	Submittals		58

	2.14.1	Review	59
	2.14.2	Variations	59
	2.14.3	Due Consideration	59
	2.14.4	Applicable Electronic Format	59

2.15	Separate Contractors and Activities By Owner		59

	2.15.1	Separate Work	59
	2.15.2	Integration	59
	2.15.3	Coordination	60
	2.15.4	Owner Contractor Storage and Laydown	60

2.16	Transportation Costs		60

2.17	Labor Matters		60


2.18	Discipline and Protection		61

2.19	Security		61

2.20	Project Site Fire Protection		61

2.21	Coordination and Transition		61

	2.21.1	Phase I Portion of the Project	61
	2.21.2	Balance of the Project	62

2.22	Surplus Equipment and Materials		62

ARTICLE 3 OWNER’S OBLIGATIONS			63

3.1	Project Site		63

3.2	Permits		63

3.3	Owner Insurance		63

3.4	Owner Taxes		63

	3.4.1	Payment of Taxes	63
	3.4.2	Sales Taxes	64

3.5	Start-up Personnel		64

3.6	Owner Site Manager and Owner Engineer		64

3.7	Interconnection		65

	3.7.1	Out of Scope Interconnection Facilities and Utility Connections	65
	3.7.2	Transmission Facilities	65

3.8	Startup Period		66

	3.8.1	Startup Period; Pre-Commercial Energy	66
	3.8.2	Waste	66
	3.8.3	Initial Fills	66

3.9	Hazardous Substances		66

3.10	Compliance with Contractor’s Rules		67

3.11	Performance of Owner Obligations		67

3.12	Compliance with Applicable Legal Requirements		67

3.13	Owner Suppliers		67

	3.13.1	Contract Execution	67

3.14	Discipline and Protection		68

ARTICLE 4 OWNER’S RIGHT TO INSPECT, STOP AND RE-PERFORM WORK			69

4.1	Inspection		69

4.2	Right to Reject and Re-Performance		69


4.3	Defects in Owner Suppliers’ Scope		69

4.4	Right to Suspend Work for Convenience.		70

4.5	Uncovering Work		70

4.6	Right to Stop Work for Cause		71

ARTICLE 5 CONSTRUCTION PRICE AND PAYMENT			72

5.1	Construction Price		72

	5.1.1	Fixed Component	72
	5.1.2	Reimbursable Component	72
	5.1.3	Payment of Fixed Component	73
	5.1.4	Payment of the Reimbursable Component	73
	5.1.5	Price and Other Agreement Adjustments due to Change Orders	73
	5.1.6	Reconciliation of Actual Craft Labor Hours to Craft Labor Hour Target	76
	5.1.7	[RESERVED]	77
	5.1.8	Applications for Payment	77
	5.1.9	Progress Reports	78
	5.1.10	Lien Waivers	78
	5.1.11	Other Documentation	79
	5.1.12	Failure to Comply	79
	5.1.13	Retainage	79
	5.1.14	Construction Price Inclusive	80
	5.1.15	Contingency Sharing Payment	80

5.2	Owner Supplier Payments		81

5.3	Owner Review		81

5.4	Payment Due Dates		81

5.5	Final Payment		82

5.6	Withholding to Protect Owner from Loss		82

	5.6.1	Withholding	82
	5.6.2	Lien Title Indemnity	82

5.7	Delinquent Payments		82

5.8	Contractor Liens		83

5.9	Forecasts		83

5.10	Total Work Cost Bonus Amount		83

ARTICLE 6 COMPLETION AND ACCEPTANCE OF THE WORK			84

6.1	Phase I Mechanical Completion		84

	6.1.1	Criteria for Phase I Mechanical Completion	84


	6.1.2	Notice and Report of Phase I Mechanical Completion	85
	6.1.3	Achievement of Phase I Mechanical Completion	86

6.2	Mechanical Completion		86

	6.2.1	Criteria for Mechanical Completion	86
	6.2.2	Notice and Report of Mechanical Completion	88
	6.2.3	Achievement of Mechanical Completion	88

6.3	Initial Synchronization		89

6.4	Phase I Substantial Completion		89

	6.4.1	Criteria for Phase I Substantial Completion	89
	6.4.2	Notice and Report of Phase I Substantial Completion	90
	6.4.3	Achievement of Phase I Substantial Completion	91
	6.4.4	Care, Custody and Control During Dispute Resolution Regarding Phase I Substantial Completion	91

6.5	Creation of Phase I Punch List		92

6.6	Transfer of Possession and Control of the Phase I Portion of the Project to Owner		93

6.7	Substantial Completion		93

	6.7.1	Preliminary Repairs, Replacements and Refurbishments	93
	6.7.2	Substantial Completion	94
	6.7.3	Notice and Report of Substantial Completion	95
	6.7.4	Achievement of Substantial Completion	96
	6.7.5	Care, Custody and Control During Dispute Resolution Regarding Substantial Completion	96
	6.7.6	Project Punch List	97
	6.7.7	Possession and Control	98
	6.7.8	Reliability Test.	98

6.8	Final Completion		100

	6.8.1	Criteria for Final Completion of the Project	100
	6.8.2	Notice and Report of Final Completion	100
	6.8.3	Achievement of Final Completion	101
	6.8.4	Target Final Completion Date	101

ARTICLE 7 PERFORMANCE TESTING			102

7.1	Performance Tests		102

7.2	Notice to Owner		102

	7.2.1	Phase I Notice	102
	7.2.2	Notice	102

7.3	Completed Performance Tests		102


	7.3.1	Phase I Performance Tests	102
	7.3.2	Other Performance Tests	103
	7.3.3	Individual Test Reports	104

7.4	Repetition of Tests		104

7.5	Re-Setting of Project		104

7.6	Operation of the Project		104

ARTICLE 8 PERFORMANCE AND COMPLETION REQUIREMENTS, LIQUIDATED DAMAGES AND BONUS			106

8.1	Phase I Substantial Completion Requirements		106

	8.1.1	Phase I Performance Requirements	106
	8.1.2	Phase I Substantial Completion Date	106

8.2	Substantial Completion Performance Test Requirements		106

	8.2.1	Performance Requirements	107
	8.2.2	Target Substantial Completion Date	108
	8.2.3	Target Final Completion Date	108

8.3	Late Substantial Completion Damages		108

	8.3.1	Late Phase I Substantial Completion Liquidated Damages	108
	8.3.2	Late Substantial Completion Liquidation Damages	109
	8.3.3	Overlap of Delay Liquidated Damage Periods.	110
	8.3.4	Payment of Delay Liquidated Damages	110

8.4	Buy Down		110

	8.4.1	Cure Period	110
	8.4.2	Buy Down Amount	110
	8.4.3	Reasonableness	112
	8.4.4	Payment of Buy Down Amount	112
	8.4.5	Limitation on Right to Minimum Performance Requirements and/or Minimum Reliability Requirement	112

8.5	Early Phase I Substantial Completion Bonus		113

8.6	Early Substantial Completion Bonus		113

ARTICLE 9 THE WARRANTY PERIODS			114

9.1	General Warranty of Work, Materials and Equipment		114

9.2	Owner Supplier Work		114

9.3	Nonconforming Work		114

9.4	Contractor’s Warranty Work		115

9.5	Warranty Periods		115

	9.5.1	Duration	115


	9.5.2	Transfer	116

9.6	Subcontractor Warranties		116

9.7	Root Cause Repairs		116

9.8	Cure Rights of Owner for Breach of Warranty		116

9.9	Title to Warranty Work		117

9.10	Exclusions		117

9.11	Primary Liability		117

9.12	General Limitations on Warranties and Remedies		118

ARTICLE 10 CHANGES			119

10.1	Changes		119

10.2	Procedure for Changes		119

	10.2.1	Changes Initiated by Contractor	119
	10.2.2	Changes Initiated by Owner	120

10.3	Change Events		121

10.4	Changes Involving Schedule Extensions		122

10.5	Changes to the Fixed Component		122

10.6	Continued Performance Pending Resolution of Disputes		122

10.7	Options for Implementing Changes		122

10.8	Documentation		123

ARTICLE 11 FORCE MAJEURE			124

11.1	Force Majeure Event		124

11.2	Burden of Proof		125

	11.2.1	Excused Performance	125
	11.2.2	Scope of Excused Performance	125
	11.2.3	Prior Obligations and Liabilities	125
	11.2.4	Continued Performance	125
	11.2.5	No Affect on Payment Obligations	125

ARTICLE 12 INDEMNIFICATION			126

12.1	Indemnity		126

12.2	Obligations with Respect to Liens		126

12.3	Obligations with Respect to Intellectual Property		127

12.4	Owner Indemnity		127

12.5	Notice and Legal Defense		128



12.6	Failure to Defend Action		129

12.7	No Limitation to Workers’ Benefits		129

12.8	Limitation on Indemnification		129

ARTICLE 13 REMEDIES AND TERMINATION			130

13.1	Termination for Convenience		130

	13.1.1	Termination Payment	130
	13.1.2	Termination Obligations	130
	13.1.3	Termination Due to Force Majeure	131

13.2	Termination Upon Contractor Event of Default		131

13.3	Termination for Agreed Circumstances		132

13.4	Consequences of Termination; Actions upon Termination		133

	13.4.1	Assumption and Succession	133
	13.4.2	Completion of the Work	133
	13.4.3	Actions Upon Termination	134

13.5	Owner Monetary and Non-Monetary Defaults; Contractor Draw Conditions on Pre-Financial Closing Letter of Credit		134

	13.5.1	Non-Payment	134
	13.5.2	Non-Monetary Default	135
	13.5.3	Draw Conditions for Pre-Financial Closing Letter of Credit and Letter Agreement	136

13.6	Duty to Mitigate Damages		136

ARTICLE 14 SECURITY			137

14.1	Guarantees		137

ARTICLE 15 REPRESENTATIONS AND WARRANTIES			138

15.1	Representations and Warranties of Contractor		138

15.2	Representation and Warranties of Owner		139

ARTICLE 16 LIMITATIONS OF LIABILITY			140

16.1	Limitation of Contractor’s Liability for Liquidated Damages		140

	16.1.1	Aggregate Limitation for Liquidated Damages.	140
	16.1.2	Aggregate Limitation for Delay Liquidated Damages.	140
	16.1.3	Aggregate Limitation for Performance Liquidated Damages.	140
	16.1.4	Individual Limitations for Performance Liquidated Damages.	140

16.2	Consequential Damages		141

16.3	Overall Limitation of Liability		141

16.4.	Application		142



ARTICLE 17 DISPUTE RESOLUTION			143

17.1	Dispute Resolution Between the Parties		143

	17.1.1	Cooperation	143
	17.1.2	Management Discussions	143
	17.1.3	Voluntary Mediation	143

17.2	Arbitration		143

	17.2.1	Rules and Arbitrators	143
	17.2.2	Impartiality, Independence and Qualifications of Arbitrators	144
	17.2.3	Costs and Discovery	144
	17.2.4	Limitations	145
	17.2.5	Additional Relief	145
	17.2.6	Venue and Timing	145
	17.2.7	Continued Performance	145
	17.2.8	Consolidation	145
	17.2.9	When Inapplicable	146
	17.2.10	Cross Examination	146
	17.2.11	Survival	146

ARTICLE 18 CONFIDENTIALITY			147

18.1	Confidential Information		147

18.2	Publicity		148

18.3	Prior Confidentiality Agreements		149

18.4	Injunctive Relief		149

ARTICLE 19 COST RECORDS			150

19.1	Records		150

19.2	Inspection of Books, Records and Audit Rights		150

ARTICLE 20 MISCELLANEOUS			151

20.1	Authorized Representatives		151

20.2	Assignment/Delegation		151

	20.2.1	Assignment/Delegation by Contractor	151
	20.2.2	Assignment/Delegation by Owner	151
	20.2.3	Successors and Assigns	152

20.3	Reviews, Inspections, Approvals by Owner		152

20.4	Governing Law; Choice of Forum		153

20.5	Surviving Obligations		153

20.6	Severability		153

20.7	Notices		153



20.8	Article and Section Headings	154

20.9	Duties and Remedies	155

20.10	No Waiver of Rights	155

20.11	Entire Agreement	155

20.12	Amendments	155

20.13	No Third Party Rights	155

20.14	Obligations Non-recourse	155

20.15	Relationship of the Parties	155

20.16	Counterparts	156

20.17	Cooperation with Financing Efforts	156

20.18	Financing Engineer	157

20.19	Owner Engineer	157

20.20	Review Committee	158

List of Appendices


Appendix A:	Scope of Work

Appendix B:	Project Schedule

Appendix C:	Performance Test Requirements and Special Repairs, Replacements and Refurbishments

Appendix D:	Owner Permits

Appendix E:	Owner Contracts

Appendix F:	Key Personnel

Appendix G:	Milestone Payment Schedule

Appendix H:	Cost Breakdown

Appendix I:	Forms

	I -1	Form of Full Notice to Proceed
	I -2A	Form of Application for Payment
	I -2B	[RESERVED]
	I -3	Form of Certificate
	I -4	Form of Notice of Phase I Mechanical Completion, Mechanical Completion, Phase I Substantial Completion, Substantial Completion and Final Completion
	I -5	Form of Change Order
	I -6	Form of Letter of Credit
	I -7	Form of Owner Guaranty


	I -8	Form of Contractor Guaranty
	I -9	Form of Retainage Letter of Credit
	I -10	Form of Opinion
	I -11	Lien Waiver Forms

Appendix J:	Project Site

Appendix K:	Craft Wage Rates and Craft Labor Cost Estimate; Craft Labor Hour Target;

Appendix L:	Sales Tax Materials

Appendix M:	Owner Contract Administration

Appendix N:	Reimbursable Component

Appendix O:	Contractor’s Consumables List

Appendix P:	Target Total Work Cost

Appendix Q:	Insurance Requirements

Appendix R:	Engineering, Procurement, Construction (home office) Engineering Time and Material Cost

AMENDED AND RESTATED

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

AMENDED AND RESTATED ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (this “ Agreement ”), is entered into as of the 8th day of September, 2008 (the “ Effective Date ”), by and between Red River Environmental Products, LLC, a Delaware limited liability company (“ Owner ”), and BE&K Construction Company, LLC, a Delaware limited liability company (“ Contractor ”). Owner and Contractor are sometimes individually referred to herein as a “ Party ” and, collectively, as the “ Parties. ”

W I T N E S S E T H :

WHEREAS, Owner is developing, constructing and intends to operate and maintain the Project located at the Project Site in order to produce activated carbon and electricity from the processing of lignite coal;

WHEREAS, Owner and Contractor are parties to an Engineering, Procurement and Construction Agreement dated as of January 29, 2008 (the “ Preliminary EPC Agreement ”) pursuant to which the Parties agreed upon the terms and conditions for providing certain preliminary engineering, design and long lead procurement activities and certain terms and conditions to be included in this Agreement;

WHEREAS, the Parties intend to enter into an agreement (the “ Site Work Agreement ”) providing for the performance of certain procurement and site work described in the Preliminary EPC Agreement;

WHEREAS, Owner has entered into certain Owner Contracts providing for, among other things, the delivery and erection of the Multi Hearth Furnaces, the supply of lignite to be used as fuel at the Project, the purchase of activated carbon and electricity produced at the Project and the interconnection of the Project to the utility transmission system; and

WHEREAS, Contractor desires to provide for the engineering, design, procurement, construction, construction management, testing, commissioning and related services for the Project, all of which shall be provided upon the terms and subject to the conditions set forth in this Agreement.

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

ARTICLE 1

DEFINITIONS; INTERPRETATION

1.1 Definitions. As used in this Agreement and in Notices delivered in accordance with this Agreement, capitalized terms have the following meanings (such meanings as necessary to be equally applicable to both the singular and plural forms of the terms defined) unless the context otherwise requires:

“Activated Carbon Production Requirement” has the meaning set forth in Section 8.2.1.1 .

“Activated Carbon Specification Requirement” has the meaning set forth in Section 8.2.1.2 . These specifications relate to sizing and spraying activities to be conducted after carbon product is removed from the Multi Hearth Furnaces and is not intended to make Contractor responsible for any activities or processes occurring inside the Multi Hearth Furnaces.

“Affected Party” has the meaning set forth in Section 11.1 .

“Affiliate” means, with respect to any Person, any other Person which (a) such first Person directly or indirectly, in whole or in part, owns, is owned by or is in common ownership with, or (b) such first Person directly or indirectly controls, is controlled by or is under common control with. The term “ control ” shall mean, with respect to a Person, the possession, directly or indirectly, of the ability to influence management decisions regarding the business of such a Person, including the ability to block or otherwise limit major decisions of such Person (e.g., increased debt, sale or transfer of share capital (initial or transfer of existing), operation and maintenance decisions, mergers or other restructuring, determination of business plans or budgets, entering into significant contracts or transactions, etc.).

“Agreement” means this Amended and Restated Engineering, Procurement and Construction Agreement, including the body of this Agreement (the “Body of this Agreement” ), all Appendices hereto, Change Orders, and all written amendments and supplements hereto.

“Applicable Electronic Format” means the electronic formats set forth in Appendix A .

“Applicable Legal Requirements” means all laws (including common law), statutes, regulations, codes, rules, treaties, ordinances, judgments, directives, Permits, decrees, decisions, approvals, interpretations, injunctions, writs, orders or other similar legal requirements in effect of any Governmental Authority.

“Application for Payment” means an application for payment under this Agreement, in the form attached as Appendix I-2A , which is to be used by Contractor during the course of Work in requesting monthly payments pursuant to Section 5.1.8 , and which is to be accompanied by such supporting documentation as is required by this Agreement.

“Authorized Representative” means, with respect to each Party, the individual appointed by such Party under Section 20.1 to act on such Party’s behalf with respect to that Party’s duties and responsibilities under this Agreement.

“Award” has the meaning set forth in Section 17.2.6 .

“Balance of the Project” means all of the Project other than the Phase I Portion of the Project as more particularly described in Appendix A .

“Business Day” means any day, except Saturdays, Sundays, federal holidays, and holidays under the laws of the State of Louisiana.

“Buy Down Amount” has the meaning set forth in Section 8.4.2 .

“Certificate of Final Completion” has the meaning set forth in Section 6.8.3 .

“Certificate of Mechanical Completion” has the meaning set forth in Section 6.2.3.

“Certificate of Phase I Mechanical Completion” has the meaning set forth in Section 6.1.3 .

“Certificate of Phase I Substantial Completion” has the meaning set forth in Section 6.4.3 .

“Certificate of Substantial Completion” has the meaning set forth in Section 6.7.4 .

“Change” or “Changes” has the meaning set forth in Section 10.1 .

“Change Event” has the meaning set forth in Section 10.3 .

“Change of Law” means the adoption, imposition, promulgation, re-interpretation, cancellation or modification of any Applicable Legal Requirements by a Governmental Authority effective on or after the Commencement Date.

“Change Order” has the meaning set forth in Section 10.1 .

“Change Order Notice” has the meaning set forth in Section 10.2.2 .

“Change Order Request” has the meaning set forth in Section 10.2.1 .

“Claims” has the meaning set forth in Section 12.1 .

“Commencement Date” has the meaning set forth in Section 2.1.2 .

“Completed Performance Test” has the meaning set forth in Section 7.3 . 2 .

“Completed Phase I Performance Test” has the meaning set forth in Section 7.3.1 .

“Completed Reliability Test” has the meaning set forth in Section 6.7.8.1 .

“Confidential Information” has the meaning set forth in Section 18.1 .

“Construction Aids” means all tangible equipment (including construction equipment and machinery), apparatus, tools, supplies, utilities, support services, field office equipment and supplies, structures, form lumber, protective fencing, and other goods and items that are required to construct, commission or test the Project, but which are not incorporated into the Project.

“Construction Price” means the amount of compensation applicable to the Work consisting of (a) the Fixed Component, and (b) the Reimbursable Component, as such amount may thereafter be adjusted pursuant to this Agreement.

“Consumables” means the items listed in Contractor’s Consumables List set forth in Appendix O .

“Contractor” means BE&K Construction Company, LLC, a Delaware Limited Liability Company and its successors and assigns permitted under this Agreement.

“Contractor Act of Bankruptcy” means (a) if, by order of a court of competent jurisdiction, a receiver or liquidator or custodian or trustee of Contractor, or of all or substantially all of the property of Contractor, is appointed and is not discharged within 60 days, or if, by decree of such a court, Contractor is adjudicated insolvent, or all or substantially all of the property of Contractor is sequestered, and such decree has continued undischarged and unstayed for 60 days after the entry of such decree, or (b) if a petition to reorganize Contractor pursuant to the Federal Bankruptcy Code or any other similar statute applicable to Contractor, as now or hereinafter in effect, is filed against Contractor and is not dismissed within 60 days after such filing, or (c) if Contractor is adjudicated bankrupt or files a petition in voluntary bankruptcy under any provision of any bankruptcy law or consents to the filing of any bankruptcy or reorganization petition against Contractor under any such law, or (without limitation of the generality of the foregoing) files a petition to reorganize Contractor pursuant to the Federal Bankruptcy Code or any other similar statute applicable to Contractor, as now or hereafter in effect, or (d) if Contractor makes an assignment for the benefit of creditors, or admits in writing an inability to pay debts generally as they become due, or consents to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of Contractor, or of all or substantially all of the property of Contractor.

“Contractor Event of Default” has the meaning set forth in Section 13.2 .

“Contractor Guaranty” means a guaranty in the form set forth in Appendix I-8 executed by the Person obligated thereunder.

“Contractor Hazardous Substance” has the meaning set forth in Section 2.2.13.2 .

“Contractor Indemnitees” has the meaning set forth in Section 12.4 .

“Contractor Lien” means a Lien upon the Project, the Work, the Project Site, or any Equipment or Materials, or any other property of Owner or any of its Affiliates filed by or through Contractor or its Affiliates or Subcontractors or their respective Personnel in connection with the Work.

“Contractor Lien Bond” means a bond (a) issued by a surety company reasonably acceptable to Owner, (b) in form and substance reasonably acceptable to Owner, (c) in the amount necessary under Applicable Legal Requirements to secure such Lien, and (d) sufficient (i) to permit Owner to obtain title insurance with no exceptions for such Contractor Lien, and (ii) to prevent the Lien holder from causing a sale, foreclosure or other title divestiture with respect to the Project or the Project Site or improvements thereon or any Equipment or Materials or other property of Owner.

“Contractor Permits” has the meaning set forth in Section 2.2.10 .

“Contractor Subcontract” means an agreement between Contractor and a Subcontractor.

“Contractor Taxes” has the meaning set forth in Section 2.2.9.2 .

“Craft Labor” means all of Contractor’s and its Affiliates’ direct hourly craft labor for site supervision and direct hourly labor of all trades inclusive of general foremen, foremen, journeymen, apprentices, and others who perform construction and associated construction activities in connection with the Work. Craft Labor excludes all of Contractor’s and Contractor’s Affiliates’ non-manual labor and all Subcontractor labor.

“Craft Labor Category” means a specific trade or category of Craft Labor such as ironworkers, pipefitters, journeymen and operators, or especially skilled sub-categories within a craft.

“Craft Labor Cost Component” means a component of the cost of craft labor, such as wage rates, fringes, per diems and incentive payments.

“Craft Labor Cost Estimate” has the meaning set forth in Section 5.1.2 and is the product of the Craft Labor Hour Target (for each classification of each Craft Labor Category) multiplied by the appropriate Craft Wage Rates.

“Craft Labor Hours” means hours of Craft Labor expended to perform the Work.

“Craft Labor Hour Target” has the meaning set forth in Section 5.1.2 and is the estimated total Craft Labor Hours for completion of the Work.

“Craft Wage Rates” means the total compensation for each and every Craft Labor Category by classification, inclusive of wage rates, fringes, per diems, and incentive payments as set forth in Appendix K .

“Defect,” “Defects” or “Defective” has the meaning set forth in Section 4.2 .

“Defective Work” has the meaning set forth in Section 4.2 .

“Disclosing Party” has the meaning set forth in Section 18.1 .

“Disputes” has the meaning set forth in Section 17.1.1 .

“Dollars” or “$” or “dollars” means the lawful currency of the United States of America.

“Early Phase I Substantial Completion Bonus Amount” has the meaning set forth in Section 8.5.

“Early Substantial Completion Bonus Amount” has the meaning set forth in Section 8.6 .

“Effective Date” has the meaning set forth in the first sentence of this Agreement.

“Engineers” means the Owner Engineer and the Financing Engineer.

“Environmental Compliance Requirement” has the meaning set forth in Section 8.2.1.5 .

“Equipment” means any product that (a) is to be incorporated into the Project, (b) is an assembly of operational and/or non-operational parts, whether motorized or manually operated, and (c) requires service connections such as, but not limited to, wiring or piping.

“Excluded Change of Law” means any Change of Law that is primarily applicable to Contractor Taxes of any kind or nature, other than import duties on Contractor-provided Equipment and Materials.

“Final Completion” means that Contractor has satisfied the requirements set forth in Section 6.8 with respect to the Project.

“Final Completion Date” has the meaning set forth in Section 6.8.3 .

“Financial Closing” means (a) the execution of binding arrangements for the provision of Financing, and (b) the initial release of proceeds from such Financing for payment to Contractor.

“Financing” means construction, interim and/or long-term financing on terms acceptable to Owner, the proceeds of which, including debt and equity, are intended to be used for all or part of the costs of the Project, including lease financing.

“Financing Engineer” means one or more individuals from an independent engineering firm used by the Financing Parties as independent engineer for the Project and the successors and permitted assigns of such independent engineer.

“Financing Parties” means any and all lenders, underwriters, financing institutions, including hedge funds, private equity groups, credit enhancers and institutional investors, providing or facilitating Financing and their assigns and any trustee(s) or agent(s) acting on any of their behalf.

“Fitch” means Fitch, Inc., Fitch Ratings Ltd., its subsidiaries, and their successors.

“Force Majeure” has the meaning set forth in Section 11.1 .

“Full Notice to Proceed” means the Notice described in Section 2.1.2 , the form of which is set forth in Appendix I-1.

“Functional Tests” means the functional tests to be conducted by Contractor as described in the Scope of Work.

“Governmental Authority” means any federal, state, county, regional, city, parish or local government body, agency, authority, branch, department, arbitrator, court or any subdivision, instrumentality or agency thereof, having or claiming, a regulatory interest in, or jurisdiction over, the Work (or any portion thereof), the Project, the Project Site, this Agreement or one or more of the Parties as it relates to this Agreement.

“Hazardous Substance” means any element, compound, mixture, solution, particle or substance (a) which is included within the definitions of (i) “hazardous substances, ” “ hazardous wastes, ” “ toxic substances, ” “ hazardous pollutants ” or “ toxic

pollutants ” in any Applicable Legal Requirement of any Governmental Authority of the United States or the State

of Louisiana and any applicable judicial, administrative and regulatory decrees, judgments and orders relating to the protection of human health or the environment, including, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sections 6901 et seq. ( “ RCRA ” ), the Toxic Substances Control Act, 15 U.S.C. Sections 2601 to 2671, the Clean Air Act, 42 U.S.C. Sections 7401 et seq., and/or the Federal Water Pollution Control Act, 33 U.S.C. Sections 1251 to 1387, (ii) any “ PCBs ” or “ PCB items ” as defined in 40 CFR Section 761.3, and (iii) any “ asbestos ” , as defined in 40 CFR Section 763.63, (b) the presence of which requires investigation or Remediation under any Applicable Legal Requirements, or (c) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous, and is or becomes, prior to Substantial Completion, regulated as a “ Hazardous Waste ” or “ Hazardous Material ” by any Governmental Authority of the United States or the State of Louisiana. “ Hazardous Substances ” shall also include underground storage tanks as defined in Section 9001 of RCRA, 42 U.S.C. § 6991.

“Increased Throughput Bonus” has the meaning set forth in Section 6.7.8.3.

“Indemnitee” has the meaning set forth in Section 12.5 .

“Initial Synchronization” means synchronization of the Project with the Transmission Facilities and transmission of electric power from the Project to the Transmission Facilities for a minimum of one hour.

“Intellectual Property” has the meaning set forth in Section 2.5.3.2 .

“Interconnection Agreement” means that certain Interconnection Agreement entered into between Owner and CLECO Power, LLC relating to the Project.

“Investment Grade” means a rating in one of the four highest rating categories (without regard to subcategories within such rating categories) by a Rating Agency.

“Key Benchmark Project” means a construction project involving use of 125 or more workers at peak or use of 50 or more workers of one single Craft Labor Category at peak, which is located within a radius of 150 miles from the Project Site, excluding any project which primarily involves outage work and lasts for a cumulative duration of less than 60 days and excluding any project to which Contractor is providing engineering, procurement or construction services.

“Key Personnel” has the meaning set forth in Section 2.2.8.1 .

“Labor Plan” has the meaning set forth in Section 2.2.8.2 .

“Late Payment Rate” means the lesser of (a) the prime rate of interest (sometimes referred to as the base rate) for corporate loans as published in The Wall Street Journal under “ Money Rates ” as such rate may be in effect from time to time during the period the delinquent amount remains outstanding, plus two percent (2%) per annum, or (b) the highest per annum interest rate allowed by Applicable Legal Requirements.

“Late Phase I Substantial Completion Damages” has the meaning set forth in Section 8.3.1 .

“Late Substantial Completion Damages” has the meaning set forth in Section 8.3.2 .

“Letter Agreement” means that letter agreement, dated August 15, 2008, by and between the Parties, as amended by the supplemental letter agreement dated August 25, 2008, as the same may be further amended or supplemented.

“Letter of Credit” means a documentary or standby letter of credit meeting the requirements of Appendix I-6 .

“Liens” means any lien, encumbrance or security interest and includes mechanic’s liens, materialmen’s liens and supplier’s liens.

“Lime Consumption Requirement” has the meaning set forth in Section 8.2.1.3 .

“Materials” means any products or supplies or materials that are to be incorporated into the Project, whether or not substantially shaped, cut, worked, mixed, finished, refined or otherwise fabricated or processed. The term “ Materials ” is intended to include any item that is to be incorporated into the Project that is not Equipment or Consumables.

“Mechanical Completion” means that Contractor has satisfied the requirements set forth in Section 6.2 with respect to the Project.

“Mechanical Completion Date” has the meaning set forth in Section 6.2.3 .

“Milestone(s)” means the milestones identified in Appendix G .

“Milestone Payment Schedule” has the meaning set forth in Section 5.1.8 and Appendix G .

“Minimum Carbon Capacity Generation” has the meaning set forth in Section 8.2.1.6 .

“Maximum Lime Consumption Requirements” has the meaning set forth in Section 8.2.1.7 .

“Minimum Net Electrical Output Requirement” has the meaning set forth in Section 8.2.1.8 .

“Minimum Performance Requirements” has the meaning set forth in Section 8.2.1 .

“Minimum Reliability Requirement” has the meaning set forth in Section 6.7.8.2 .

“Moody’s” means Moody’s Investor Service, Inc. and its successors.

“MSDSs” has the meaning set forth in Section 2.2.13.4 .

“Multi Hearth Furnace” or “MHF” means the multi hearth furnace(s) that will generate activated carbon from coal at the Project.

“Multi Hearth Furnace Agreements” means the agreements between the Multi Hearth Furnace Supplier and Owner for the supply and erection of the Multi Hearth Furnaces for the Project, as the same may be amended or supplemented in accordance with their respective terms.

“Multi Hearth Furnace Supplier” means the Person or Persons supplying the Multi Hearth Furnaces pursuant to the Multi Hearth Furnace Agreements.

“Net Electrical Output” has the meaning set forth in Appendix C .

“Net Electrical Output Requirement” has the meaning set forth in Section 8.2.1.4 .

“Notice” means a written notice, order or other communication given under this Agreement to a Party in accordance with Section 20.7 .

“Notice of Final Completion” has the meaning set forth in Section 6.8.2 .

“Notice of Mechanical Completion” has the meaning set forth in Section 6.2.2 .

“Notice of Phase I Mechanical Completion” has the meaning set forth in Section 6.1.2 .

“Notice of Phase I Substantial Completion” has the meaning set forth in Section 6.4.2 .

“Notice of Substantial Completion” has the meaning set forth in Section 6.7.3 .

“O&M Manual” means the Project operations and maintenance manual to be provided by Contractor to Owner in accordance with this Agreement.

“OEM” means, with respect to any item of Equipment, the original manufacturer thereof.

“Other Benchmark Project” means a construction project involving use of 125 or more workers at peak or use of 50 or more workers of one single Craft Labor Category at peak, which is located within a radius of 300 miles from the Project Site, excluding any project which primarily involves outage work and lasts for a cumulative duration of less than 60 days.

“Owner” means Red River Environmental Products, LLC, and includes its successors and assigns permitted under this Agreement.

“Owner Act of Bankruptcy” means (a) if, by order of a court of competent jurisdiction, a receiver or liquidator or custodian or trustee of Owner, or of all or substantially all of the property of Owner is appointed and is not discharged within sixty (60) days, or if, by decree of such a court, Owner is adjudicated insolvent, or all or substantially all of the property of Owner is sequestered, and such decree has continued undischarged and unstayed for sixty (60) days after the entry of such decree, or (b) if a petition to reorganize Owner, pursuant to the Federal Bankruptcy Code or any other similar statute applicable to Owner, as now or hereinafter in effect, is filed against Owner, and is not dismissed within sixty (60) days after such filing, or (c) if Owner is adjudicated bankrupt or files a petition in voluntary bankruptcy under any provision of any bankruptcy law or consents to the filing of any bankruptcy or reorganization petition against Owner, under any such law, or (without limitation of the generality of the foregoing) files a petition to reorganize Owner, pursuant to the Federal Bankruptcy Code or any other similar statute applicable to Owner, as now or hereafter in effect, or (d) if Owner makes an assignment for the benefit of creditors, or admits in writing an inability to pay debts generally as they become due, or consents to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of Owner, or of all or substantially all of the property of Owner.

“Owner Agents” means those third party contractors designated by Owner as having the same authority as Owner to review Contractor Project documents, whether confidential or otherwise, and to have access to the Project Site.

“Owner Authorized Parties” has the meaning set forth in Section 9.3 .

“Owner Contract” means those contracts or purchase orders executed or to be executed by Owner for any Owner Suppliers’ Scope, if any, as set forth in Appendix E .

“Owner Engineer” means the engineering firm designated by Owner, for the benefit of Owner, from time to time in a Notice to Contractor as Owner’s engineer for the Project.

“Owner Events of Default” has the meaning set forth in Section 13.5.2 .

“Owner Guaranty” means a guaranty in the form set forth in Appendix I-7 executed by the Person obligated thereunder.

“Owner Hazardous Substances” has the meaning set forth in Section 3.9 .

“Owner Indemnitees” has the meaning set forth in Section 12.1 .

“Owner Insurance” has the meaning set forth in Section 3.3 .