ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

PORTIONS OF THIS EXHIBIT MARKED BY *** HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

Exhibit 10.1

FOIA CONFIDENTIAL TREATMENT REQUESTED

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

by and between

DUKE ENERGY CAROLINAS, LLC, as Owner

and

STONE & WEBSTER NATIONAL ENGINEERING P.C., as Contractor

for the

CONSTRUCTION OF A SUPERCRITICAL COAL-FIRED

GENERATION FACILITY IN CLIFFSIDE, NORTH CAROLINA

Dated July 11, 2007

Table of Contents

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EXHIBITS

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ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

This ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (the “ Agreement ” ) is entered into as of the 11th day of July, 2007 (the “ Effective Date ” ), by and between DUKE ENERGY CAROLINAS, LLC, a North Carolina limited liability company having a place of business in Charlotte, North Carolina ( “ Owner ” ), and STONE & WEBSTER NATIONAL ENGINEERING P.C., a Shaw Group Company, a Massachusetts professional corporation having a place of business in Charlotte, North Carolina ( “ Contractor ” ). Owner and Contractor may be referred to individually as a “ Party ” and collectively as the “ Parties ” .

RECITALS

WHEREAS, the Owner has been exploring the option to have constructed the following systems:

(collectively, Cliffside Unit 6 and the Unit 5 Scrubber shall hereinafter be referred to as the “ Project ”);

WHEREAS , Contractor is engaged in the business of designing, engineering, constructing and commissioning industrial and power generating facilities and flue gas desulfurization systems;

WHEREAS , pursuant to the * * * Agreement entered into between Owner and Contractor dated * * * (as amended and supplemented, the “ * * * ” ), the Parties have worked together on an open book basis to perform certain engineering activities and to develop a design and a basis for determining a corresponding price acceptable to Owner for the engineering, procurement, construction and commissioning (“ EPCC ”) of the Project; and

WHEREAS , the design and cost basis developed pursuant to the * * * for the EPCC of the Project are acceptable to the Owner, and the Owner now desires to have the Parties enter into this Agreement for the EPCC of the Project;

NOW, THEREFORE , in consideration of the recitals, the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties, intending to be legally bound, stipulate and agree as follows:

The following capitalized words and phrases used in this Agreement shall have the following meanings unless otherwise noted:

“ AAA ” shall have the meaning set forth in Section 28.2 .

“ Affiliate ” shall mean, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such first Person at such time.

“ Agreement ” shall have the meaning set forth in the first paragraph above and shall include all Exhibits, and all amendments hereto (including, to the extent applicable, Change Orders).

* * *

“ Alstom LNTP ” shall mean the Limited Notice to Proceed, dated as of December 20, 2006, issued by Owner to Alstom Power Inc. for the purchase of the Air Quality Control System for the Unit 5 Scrubber and the option to purchase the Air Quality Control System for Unit 6.

“ Auxiliary Energy ” shall mean the energy produced by Unit 6 that is used to serve the auxiliary equipment and facilities necessary or used for the production, control, delivery, or monitoring of electricity produced at the Site.

“ Business Day ” shall mean every Day other than Saturday, Sunday or a legal holiday recognized by the State.

“ Cash Flow Plan ” shall have the meaning set forth in Section 7.1 .

“ Change ” shall have the meaning set forth in Section 8.1 .

“ Change in Law ” shall mean (a) any binding change after the Effective Date in the judicial or administrative interpretation of, or adoption after the Effective Date of, any Laws (excluding any Laws relating to net income Taxes and excluding any Laws relating to the organization, existence, good standing, qualification, or licensing of Contractor or their Affiliates or Subcontractors in any jurisdiction), which is inconsistent or at variance with any Laws in effect on the Effective Date or (b) the imposition after the Effective Date of any condition or requirement (except for any conditions or requirements which result from the acts or omissions of Contractor or any Subcontractor) not required as of the Effective Date affecting the issuance, renewal or extension of any Government Approval (excluding any Government Approval relating to the organization, existence, good standing, qualification, or licensing of Contractor or its Subcontractors in any jurisdiction).

“ Change Order ” shall have the meaning set forth in Section 8.1 .

“ Collateral ” shall have the meaning set forth in Section 22.1 .

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“ Commissioning ” shall mean the activities required to be conducted by Contractor pursuant to the terms of this Agreement in order to bring Unit 6 or the Unit 5 Scrubber from an inactive condition, when construction is essentially complete, to a state where Unit 6 or Unit 5 Scrubber is ready for the commencement of operation, including pre-commissioning, start-up, individual system and integrated, functional verification and synchronization of Unit 6 or Unit 5 Scrubber with other tie-in Facility equipment.

“ Confidential Information ” shall mean, with respect to any Party, all written, verbal, electronic and other information and documents such Party provides or makes available to the other Party relating in any way to this Agreement which are marked as being “Proprietary” to such Party at the time of disclosure, or for verbal information reduced to a writing and marked or designated as being “Proprietary” to a such Party within seven (7) Days after such verbal disclosure. “Confidential Information” shall not include any Documentation or any other information that: (a) was already known to the other Party at the time it was disclosed by such Party; (b) was available to the public at the time it was disclosed by such Party; (c) becomes available to the public after being disclosed by such Party through no wrongful act of, or breach of this Agreement by, the other Party; (d) is received by the other Party without restriction as to use or disclosure from a third party; or (e) is independently developed by the other Party without benefit of any disclosure of information by such Party.

“ Construction Services Payments ” shall mean, with respect to each of Unit 6 and the Unit 5 Scrubber, those payments which have been made or are due and payable by Owner to Contractor prior to the Effective Date for those on-site services, including erosion control, fire protection modifications and other miscellaneous site preparation services, as are more fully described in Owner purchase order FHP01564.

“ Contract Price ” * * *

“ Contractor ” shall have the meaning set forth in the first paragraph above and shall include respective successors and permitted assigns.

“ Contractor Indemnitees ” shall have the meaning set forth in Section 14.2 .

“ Contractor Permits ” shall have the meaning set forth in Section 3.20 .

“ Contractor’s Project Manager ” shall mean the Person who Contractor designates in Exhibit G to issue and receive communications on Contractor’s behalf under this Agreement.

“ Contractor’s Site Representative ” shall mean the Person who Contractor designates in Exhibit G to represent Contractor at the Site.

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“ Control ” shall mean (i) the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of a Person, whether through the ownership of voting securities, as a trustee or executor, by contract or credit arrangement, or otherwise, or (ii) the ownership, directly or indirectly, of fifty percent (50%) or more of the equity interest in a Person.

“ Craft Labor Cost Comparison ” shall mean, as the context requires, either:

(a) a comparison of the total Craft Labor Costs incurred on the Project at such date against the Craft Labor Cost plan set forth in Exhibit F-2 ; or

(b) a comparison of the total Craft Labor Costs incurred on the Project at such date against the Craft Labor Cost Target.

“ Craft Labor Costs ” shall mean those amounts for each of Unit 6 and the Unit 5 Scrubber, respectively, equal to the product of (a) the total direct and indirect craft labor hours (and any mutually agreed upon Subcontractor labor) expended by Contractor hereunder in performing the Work for Unit 6 or the Unit 5 Scrubber, as applicable, and (b) the applicable craft labor rates (including wages, per diems, incentives and other expenses) payable with respect to each such craft labor hour as set forth in Exhibit I .

“ * * *” shall have the meaning set forth in Section 7.2(a)(iii) .

“ * * * ” shall mean * * *.

“ * * * ” shall mean * * *.

“ Craft Labor Cost Underrun ” shall have the meaning set forth in Section 7.2(a)(iii).

“ Day ” shall mean a calendar day, including Saturdays, Sundays, and holidays.

“ Default ” shall have the meaning set forth in Section 23.1 .

“ Defects ” shall have the meaning set forth in Section 13.4 .

“ Delay Liquidated Damages ” shall mean:

(a) With respect to Unit 6:

(i) * * * per Day (or any portion of a Day) for the first * * * Days that Contractor fails to achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6;

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(ii) * * * per Day (or any portion of a Day) for each Day in excess of the first * * * Days but less than or equal to * * * Days that Contractor fails to achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6; and

(iii) * * * per Day (or any portion of a Day) for each Day in excess of * * * Days that Contractor fails to achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6.

(b) With respect to the Unit 5 Scrubber:

(i) With respect to Unit 5 Scrubber Tie-In:

(A) * * * per Day (or any portion of a Day) for each Day on or after the Guaranteed Tie-In Commencement Date until the * * * Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In has not commenced;

(B) * * * per Day (or any portion of a Day) for each Day after the * * * Day but prior to the * * * Day on or after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In has not commenced; and

(C) * * * per Day (or any portion of a Day) for each Day after the * * * Day on or after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In has not commenced;

(ii) After commencement of Unit 5 Scrubber Tie-In, * * * per Day (or any portion of a Day) for each Day after the Guaranteed Tie-in Completion Date that the successful tie-in of the Unit 5 Scrubber has not been achieved; and

(iii) After the successful tie-in of the Unit 5 Scrubber has been achieved, * * * per Day (or any portion of a Day) for each Day after the Guaranteed Substantial Completion Date of the Unit 5 Scrubber that Contractor fails to achieve Substantial Completion of the Unit 5 Scrubber.

“ Delay Liquidated Damages Cap ” for Unit 6 or for the Unit 5 Scrubber shall mean * * * of the respective Contract Price for Unit 6 or the Unit 5 Scrubber, as may be amended by Change Order.

“ Design Documents ” shall have the meaning set forth in Section 3.6 .

“ Dispute ” shall have the meaning set forth in Section 28.1 .

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“ Documentation ” shall mean such materials in printed or electronic format that are agreed, or are required hereunder, to be delivered by Contractor to Owner, including, without limitation, Design Documents, specifications (including the Specifications), schedules (including the Schedule), schematics, drawings (including Final Completion agreed “as built” drawings as specified in Exhibit A ), blueprints, memoranda, letters, notes, isometrics, computer programs and software, flow charts, logic diagrams, graphs, studies, system descriptions, lists, charts, diagrams, standards, criteria, assumptions, measurements, procedures (including the Testing Procedure), instructions, reports, test data and results, analyses, calculations, formulas, computations, plans, empirical and other correlations, models, manuals (including software manuals and Project Manuals) and training materials, that are necessary for the design, Commissioning, operation, maintenance, modification or decommissioning of the Project.

“ Duke Coal Facility ” or the “ Facility ” shall mean the Owner’s entire physical coal facility known as the Cliffside Steam Station, including the Project and all other generating units and ancillary structures thereto.

“ Early Completion Bonus ” shall mean, with respect to Unit 6:

(a) *** per Day for each Day earlier than *** Days but less than or equal to *** Days that Contractor achieves Substantial Completion of Unit 6 prior to the Guaranteed Substantial Completion Date for Unit 6; and

(b) *** per Day for each Day earlier than *** Days that Contractor achieves Substantial Completion of Unit 6 prior to the Guaranteed Substantial Completion Date for Unit 6.

“ Effective Date ” shall mean the date set forth in the first paragraph of this Agreement.

“ Electrical Output ” shall mean the net electrical power, as measured at the high side of the main step-up transformer, that is produced by Unit 6 in kilowatts (kW) during the Performance Testing, at the test specified operating conditions, and corrected to the base performance conditions set forth in Exhibit L-2 .

“ Equipment ” shall mean any and all material, structure, buildings, apparatus, equipment, spare parts, hardware, Documentation, goods, tools, supplies, and other personal property, all as intended to become a permanent part of the Project, that Contractor furnishes, or is required to furnish, hereunder in accordance with the Specifications or otherwise for the Project. “Equipment” includes (a) all of the foregoing items that Contractor furnishes through a Subcontractor and (b) all of the foregoing items that Contractor has purchased or provided or has committed to purchase or provide, directly or indirectly through a Subcontractor, pursuant to the JPDA. For the purposes of this Agreement, “Equipment” shall not include any Owner Equipment.

“ Equipment Warranty Period ” shall have the meaning set forth in Section 13.2 .

“ Estimated Prices ” shall mean those portions of the Contract Price for each of Unit 6 and the Unit 5 Scrubber, respectively, that are referred to as the “ Estimated Prices ” in Exhibit I ,

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which prices are, as of the Effective Date, indicative estimates based upon historical data, requests for information, bids or other data sources as have been mutually agreed upon by the Parties, and which prices will be revised, updated and finalized pursuant to Section 6.3 and Exhibit I prior to the Price Finalization Deadline.

“ Existing LNTPs ” shall mean, collectively, the Alstom LNTP, the Hitachi LNTP and the Toshiba LNTP.

“ Final Completion ” shall mean, with respect to each of Unit 6 or the Unit 5 Scrubber, the achievement by Contractor of all the conditions set forth in Section 11.3 .

“ Final Completion Date ” shall mean, with respect to each of Unit 6 or the Unit 5 Scrubber, the date on which Final Completion of Unit 6 or the Unit 5 Scrubber occurs.

“ Final Payment Invoice ” shall have the meaning set forth in Section 7.5 .

“ Financial Institutions ” shall mean any party entering into a loan agreement, guarantee, note, indenture or security agreement with Owner or its Affiliates in relation to the Duke Coal Facility, including arrangements relating to interest rate or currency hedging and arrangements relating to the construction or permanent financing or refinancing of the Project or the Facility.

“ Fixed Prices ” shall mean for each of Unit 6 and the Unit 5 Scrubber, respectively, those portions of the Contract Price that are referred to as the “ Fixed Prices ” in Exhibit I to be paid by Owner to Contractor in accordance herewith for the Work, which amounts shall be revised, updated and finalized pursuant to Section 6.3 and Exhibit I, and as may be adjusted by Change Orders issued hereunder.

“ Force Majeure ” shall mean an unforeseeable event or cause that is beyond the reasonable control of a Party, including by way of example, but not limited to:

(a) acts of God, war, riots, insurrection, terrorism, rebellion, floods, hurricanes, tornadoes, earthquakes, lightning, pandemic, epidemics, and other natural calamities;

(b) acts or inaction of any Government Authority;

(c) explosions or fires;

(d) strikes, lockouts, or other labor disputes, but excluding legal strikes, lockouts or work stoppages involving only employees of Contractor and that are directed solely at a Contractor facility;

(e) delay in the performance of the Services or delivery of Equipment or Owner Equipment to the extent any such delay is not attributable to an act or omission of Contractor, or its employees, officers, agents, Subcontractors or other Persons under Contractor’s control and supervision, unless such acts or omissions are themselves a result of Force Majeure;

(f) a Change in Law, but only to the extent such Change in Law delays a Party or increases its cost, as demonstrated by credible evidence, in its performance of its obligations under this Agreement (excluding payment obligations); and

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(g) delays in obtaining goods or services from any Subcontractor caused by the occurrence of any of Force Majeure events;

provided , however , that an event or cause shall not be an event of Force Majeure unless it: (i) negatively impacts the Work under this Agreement, (ii) is not the result of the willful misconduct or negligent act or omission of, or breach of this Agreement by, such Party (or any Person over whom that Party has control), and (iii) cannot be cured, remedied, avoided, offset, or otherwise overcome by the prompt exercise of reasonable diligence by the Party (or any Person over whom that Party has control). For the avoidance of doubt, except as otherwise expressly provided in Exhibit I attached hereto, the definition of “Force Majeure” shall not include, and Contractor shall not be entitled to equitable relief for, changes such as inflation and interest rates.

“ Full Notice to Proceed ” with respect to Unit 6 or the Unit 5 Scrubber shall mean the written notice that Owner gives to Contractor fully authorizing Contractor to proceed with the respective Work for Unit 6 or the Unit 5 Scrubber.

“ Government Authority ” shall mean any federal, state, county, city, local, municipal, foreign or other government or quasi-governmental authority or any department, agency, subdivision, court or other tribunal of any of the foregoing.

“ Government Approvals ” means all permits, licenses, authorizations, consents, decrees, waivers, privileges and approvals from and filings with any Government Authority required for or material to the development, financing, ownership, construction, operation or maintenance of the Project in accordance with this Agreement, including the CPCN and other work permits, environmental permits, licenses and construction permits.

“ Guaranteed Emission Limits ” shall mean, with respect to Unit 6 and the Unit 5 Scrubber, those specific emission limits and requirements identified as such and set forth in Exhibit M which must be met in order to achieve Final Completion of Unit 6 or the Unit 5 Scrubber.

“ Guaranteed Final Completion Date ” shall mean:

(a) With respect to the Unit 5 Scrubber, ***; and

(b) With respect to Unit 6, ***;

as such dates may be adjusted in accordance with Exhibit I and by Change Order.

“ Guaranteed Substantial Completion Date ” shall mean:

(a) With respect to the Unit 5 Scrubber, ***; and

(b) With respect to Unit 6, ***;

as such dates may be adjusted in accordance with Exhibit I and by Change Order.

“ Guaranteed Tie-In Commencement Date ” shall mean ***, as such date may be adjusted in accordance with Exhibit I and by Change Order.

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“ Guaranteed Tie-In Completion Date ” shall mean ***, as such date may be adjusted in accordance with Exhibit I and by Change Order.

“ Guarantor ” shall mean ***.

“ Hazardous Materials ” shall mean substances defined as “hazardous substances” pursuant to Section 101(14) Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. Sections 9601 et seq .); those substances defined as “hazardous waste” pursuant to Section 1004(5) of the Resource, Conservation and Recovery Act (42 U.S.C. Section 6901 et seq .); those substances designated as a “hazardous substance” pursuant to Section 311 (b )(2)(A) or as a “toxic pollutant” pursuant to Section 307(a)(1) of the Clean Water Act (33 U.S.C. Sections 1251 et seq.); those substances defined as “hazardous materials” pursuant to Section 103 of the Hazardous Materials Transportation Act (49) U.S.C. Sections 1801 et seq .); those substances regulated as a “chemical substance or mixture” or as an “imminently hazardous chemical substance or mixture” pursuant to Section 6 or 7 of the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq .); those substances defined as “contaminants” pursuant to Section 1401 of the Safe Drinking Water Act (42 U.S.C. Sections 300f et seq.), if present in excess of permissible levels; those substances regulated pursuant to the Oil Pollution Act of 1990 (33 U.S.C. Sections 2701 et seq .); those substances defined as a “pesticide” pursuant to Section 2(u) of the Federal Insecticide, Fungicide, and Rodenticide Act as amended by the Federal Environmental Pesticide Control Act of 1972 and by the Federal Pesticide Act of 1978 (7 U.S.C. Sections 136 et seq .); those substances defined as a “source”, “ or “by-product” material pursuant to Section 11 of the Atomic Energy Act of 1954 (42 U.S.C. Section 2014 et seq .); those substances defined as “residual radioactive material” in Section 101 of the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Sections 7901 et seq .); those substances defined as “toxic materials” or “harmful physical agents” pursuant to Section 6 of the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq .); those substances defined as “hazardous air pollutants” pursuant to Section 112(a)(6), or “regulated substance” pursuant to Section 112(a)(2)(B) of the Clean Air Act (42 U.S.C. Sections 7401 et seq .); those substances defined as “extremely hazardous substances” pursuant to Section 302(a)(2) of the Emergency Planning & Community Right-to-Know Act of 1986 (42 U.S.C. Sections 11001 et seq .); and those other hazardous substances, hazardous wastes, toxic pollutants, hazardous materials, chemical substances or mixtures, imminently hazardous chemical substances or mixtures, contaminants, pesticides, source materials, by-product materials, residual radioactive materials, toxic materials, harmful physical agents, air pollutants, regulated substances, or extremely hazardous substances defined in any regulations promulgated pursuant to any of the foregoing environmental Laws, and all other contaminants, toxins, pollutants, hazardous substances, substances, materials and contaminants, polluted, toxic and hazardous materials, the use, disposition, possession or control of which is regulated by one or more Laws.

“ Heat Rate ” shall mean the test calculated net heat rate in BTU/kW-hr in HHV for Unit 6 during the Performance Testing at the test specified operating conditions and corrected to the base performance conditions set forth in Exhibit L-2 .

“ Hitachi LNTP ” shall mean the Limited Notice to Proceed, dated as of ***, issued by Owner to Hitachi Power Systems America, Ltd. for the purchase of one new single-reheat boiler.

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“ Indemnified Party ” shall mean the Owner Indemnitees or Contractor Indemnitees, as applicable.

“ Invoice ” shall have the meaning set forth in Section 7.3(a) .

“ *** ” shall have the meaning set forth in the Recitals.

“ *** Payments ” shall mean those amounts paid by Owner to Contractor under the *** for Unit 6 or the Unit 5 Scrubber, as applicable, but excluding the Construction Services Payments.

“ Key Schedule Milestone ” shall mean each Key Schedule Milestone identified on Exhibit C.

“ Laws ” shall mean, at any date of determination, all statutes, laws, codes, ordinances, orders, judgments, decrees, injunctions, licenses, rules, permits, approvals, agreements, and regulations, including all applicable codes, standards, rules and regulations of the State, in effect on such date, including all Government Approvals.

“ Lien ” shall mean any lien, mortgage, pledge, encumbrance, charge, security interest, defect in title, or other claim filed or asserted in connection with the Project by or through Contractor, a Subcontractor or any other third party under the control of Contractor or any Subcontractor against the Facility, the Site, the Equipment or the Owner Equipment.

“ Liquidated Damages ” shall mean the Delay Liquidated Damages and the Performance Liquidated Damages.

“ Limited Notice to Proceed ” or “ LNTP ” with respect to Unit 6 or the Unit 5 Scrubber shall mean a written notice that Owner gives to Contractor authorizing Contractor to proceed with the respective Work for Unit 6 or the Unit 5 Scrubber in a limited manner.

“ Make Right Performance Guarantees ” shall mean those Performance Guarantees designated as such in Exhibit L for which the payment of a Performance Liquidated Damage as a remedy shall not be an option for Contractor, which shall include the Guaranteed Emission Limits but only to the extent that the failure to meet any such limits are attributable to Contractor’s scope of Work set forth in Section  3.1(a)(ii)(B) .

“ Major Subcontractor ” shall have the meaning set forth in Section 2.3(c) .

“ Maximum Liability Amount ” shall have the meaning set forth in Section 17.2.

“ Mechanical Completion ” for Unit 6 or the Unit 5 Scrubber shall mean that Unit 6 or the Unit 5 Scrubber shall have achieved all the conditions set forth in Section 11.1 .

“ Milestone ” shall have the meaning set forth in Section 7.2 .

“ Milestone Payment ” shall have the meaning set forth in Section 7.2 .

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“ Minimum Performance Guarantees ” shall mean, to the extent that the failure to meet any such limit is attributable to Contractor’s scope of Work set forth in Section 3.1(a)(ii)(B):

(a) With respect to the operation of the Unit 5 Scrubber, those minimum performance guarantees which must be met in accordance with Exhibit L-1 in order for Contractor to achieve Substantial Completion of the Unit 5 Scrubber and which allows the Unit 5 Scrubber to operate in compliance with applicable Laws; and

(b) With respect to the operation of Unit 6 in accordance with the performance conditions set forth in Exhibit L-2 , the achievement by Unit 6 of net Heat Rate for Unit 6 not exceeding *** of the Performance Guarantees (or *** BTU/kW-hr HHV) and a net Electrical Output for Unit 6 not less than *** of the Performance Guarantees (or *** kW), both of which are achieved while meeting the Permitted Emission Limits of Unit 6;

as such performance guarantees may be adjusted in accordance with Exhibit I and by Change Order.

“ Monthly Progress Report ” shall mean the written report Contractor delivers to Owner each month describing the total amount of progress in the Work achieved during the prior month, as provided in Section 3.21(a) .

“ Open Book Price and Schedule Finalization Process ” shall mean the procedures for determining the Contract Price and Schedule as set forth in Exhibit I .

“ OSHA ” shall have the meaning set forth in Section 24.2 .

“ OSHA Standards ” shall have the meaning set forth in Section 24.2 .

“ Owner ” shall have the meaning set forth in the first paragraph above and shall include their respective successors and permitted assigns.

“ Owner Equipment ” shall mean the equipment that Owner agrees to purchase and supply pursuant to the Owner Equipment Contracts, including specifically the following items:

(a) one wet flue gas desulfurization (FGD) system for the Unit 5 Scrubber and one air quality control system (AQCS) for Unit 6 from Alstom Power, Inc.;

(b) one 904,500 kW TCAF-40” Super-Critical Steam Turbine and associated 1070MVA generator from Toshiba International Corporation; and

(c) one new single-reheat boiler from Hitachi Power Systems America, Ltd.

“ Owner Equipment Contracts ” shall have the meaning set forth in Section 3.1(a)(ii) .

“ Owner Indemnitees ” shall have the meaning set forth in Section 14.1 .

“ Owner Permits ” shall mean the permits and approvals that Owner is required to obtain as set forth in Section 4.3 and Exhibit E .

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“ Owner’s Project Director ” shall mean the Person that Owner designates in writing to issue and receive communications on Owner’s behalf under this Agreement.

“ Party ” shall have the meaning set forth in the first paragraph.

“ Performance Guarantees ” shall mean, to the extent that the failure to meet any such limit is attributable to Contractor’s scope of Work set forth in Section 3.1(a)(ii)(B):

(a) With respect to the operation of the Unit 5 Scrubber, those specific guarantees set forth in Exhibit L-1 under the performance conditions set forth in Exhibit L-1 , which must be met in order for Contractor to achieve Final Completion of the Unit 5 Scrubber; and

(b) With respect to the operation of Unit 6 in accordance with the performance conditions set forth in Exhibit L-2 , the achievement by Unit 6 of a Heat Rate for Unit 6 not exceeding * * * BTU/kW-hr HHV, an Electrical Output for Unit 6 not less than * * * kW and Unit 6 Main Steam Flow Capacity of not less than * * * lb/hr (all of which are achieved while meeting the Guaranteed Emission Limits of Unit 6).

as such may be adjusted in accordance with Exhibit I and by Change Order.

“ Performance Liquidated Damages ” shall mean, to the extent that the failure to meet any such limit is attributable to Contractor’s scope of Work set forth in Section 3.1(a)(ii)(B):

(a) With respect to Unit 6, * * * per each BTU/kWhr measured as HHV over the Performance Guarantee for Unit 6 Heat Rate, * * * per each kW under the Performance Guarantee for Unit 6 Electrical Output and * * * for each lbm/hr under the Performance Guarantee for Unit 6 Main Steam Flow Capacity in accordance with Exhibit L-2 ; and

(b) With respect to Unit 6, * * * per lb per hr for ammonia consumption. In addition, as of the Effective Date, the Owner has yet to finalize the contractual performance guarantees with Alstom Power Inc. for the Unit 5 Scrubber and Unit 6. The items that are subject to performance guarantee are noted in Exhibit L-1 and Exhibit L-2 , but the liquidated damage values are estimates as of the Effective Date and are yet to be finalized with Alstom Power, Inc. Contractor has agreed that, to the extent that the failure to meet any of the guarantees agreed upon with Alstom Power, Inc. are attributable to Contractor’s scope of Work set forth in Section 3.1(a)(ii)(B) , Contractor shall be responsible for such performance guarantees and liquidated damages in a value equal to those final performance guarantees and liquidated damages as agreed upon between Owner and Alstom Power, Inc., with such values not to exceed the liquidated damage value estimates currently set forth in Exhibit L-1 and Exhibit L-2 . A Change Order will be issued to include such performance guarantees and the final liquidated damages in this Agreement no later than the Price Finalization Deadline.

“ Performance Liquidated Damages Cap ” for Unit 6 or the Unit 5 Scrubber shall mean * * * of the respective Contract Price for Unit 6 or the Unit 5 Scrubber, as may be amended by Change Order.

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“ Performance Testing ” shall mean the tests, conducted in accordance with the Testing Procedures, by which Contractor demonstrates that Unit 6 and the Unit 5 Scrubber meets, for Substantial Completion, the Minimum Performance Guarantees, or for Final Completion, the Performance Guarantees.

“ Permitted Emission Limits ” shall mean:

(a) With respect to Unit 6, those specific emission limits for each regulated pollutant set forth in the Prevention of Significant Deterioration (PSD) construction permit issued by the North Carolina Department of Environment and Natural Resources (NCDENR) Division of Air Quality authorizing the construction and operation of Unit 6 and which specifies the methods of measurement, recordation, and compliance and which are designated as such and set forth in Exhibit M .

(b) With respect to the Unit 5 Scrubber, those emission limits designated as such and set forth in Exhibit M .

“ Person ” shall mean any individual, company, corporation, partnership, joint venture, association, joint stock company, limited liability company, trust, estate, unincorporated organization, Government Authority or other entity having legal capacity.

“ Preliminary Schedule ” shall have the meaning set forth in Section 6.2 .

“ Price Finalization Date ” shall mean the date on which the Parties have agreed on the final Contract Price and the Schedule pursuant to Article 6 .

“ Price Finalization Deadline ” shall mean * * *, or such other date that is mutually agreed to in writing by the Parties as the deadline for establishing the final Contract Price and the Schedule.

“ Prime Interest Rate ” shall mean, as of a particular date, the prime rate of interest as published on that date in The Wall Street Journal , and generally defined therein as “the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks.” If The Wall Street Journal is not published on a date for which the interest rate must be determined, the prime interest rate shall be the prime rate published in The Wall Street Journal on the nearest-preceding date on which The Wall Street Journal was published. If The Wall Street Journal discontinues publishing a prime rate, the prime interest rate shall be the prime rate announced publicly from time to time by Bank of America, N.A. or its successor.

“ Project ” shall mean collectively Unit 6 and the Unit 5 Scrubber as set forth in the Recitals.

“ Project Manuals ” shall mean those manuals prepared by Contractor for use by Owner or its designated operator in connection with the operation, maintenance of and training on the Project that conform to the requirements of Exhibit A .

“ Progress Meeting ” shall have the meaning set forth in Section 3.21(b) .

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“ Prudent Industry Practice ” shall mean those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used, or are generally accepted, in construction or operations of electric power generation facilities similar to the Project, which in the exercise of reasonable judgment and in light of the facts known at the time the decision was made, after due and diligent inquiry, are considered good, safe and prudent practices in connection with the operation and maintenance of facilities similar to the Project with commensurate standards of safety, performance, dependability, efficiency, and economy, and as are in accordance with generally accepted standards of professional care, skill, diligence, and competence applicable to operation, maintenance and construction practices in United States.

“ Quality Assurance Plan ” shall have the meaning as set forth in Section 3.7 .

“ Real Property ” shall mean all structures, buildings, improvements and permanent fixtures annexed or attached to Unit 6 and Unit 5 Scrubber and constructed for Owner, buildings of all kinds and descriptions including structural and other improvements to buildings, foundations, walls, floors, roofs, insulation, stairways, partitions, loading and unloading platforms and canopies, areaways, systems for heating and air conditioning, ventilating, sanitation, fixed fire protection, lighting, plumbing, and drinking water, building elevators and escalators, retaining walls, piling and mats for general improvements of Site, private roads, walks, paved areas, culverts, bridges, viaducts, fencing, reservoirs, dykes, dams, ditches, canals, drainage, storm and sanitary sewers, water lines for drinking, sanitary and fire protection and all building materials which become an integral part of Unit 6 or the Unit 5 Scrubber.

“ Reliability Testing ” shall have the meaning as set forth in Exhibit L-3 attached hereto.

“ Sales Tax ” shall mean any current or future sales, use or similar tax imposed on Contractor, any Subcontractor or Owner with respect to the Work by the State or any other Government Authority.

“ Schedule ” shall mean the critical schedule of key dates and milestones, including the Milestones, for completion of the Work, as set forth in Exhibit C , as modified or updated from time to time in accordance with the terms of this Agreement.

“ SDS ” shall have the meaning set forth in Section 25.4 .

“ Services ” shall mean all labor, transportation, packaging, storage, designing, drawing, engineering, demolition, Site preparation, manufacturing, construction, commissioning, installation, testing, equipping, verification, training, procurement (whether procurement of Equipment or otherwise) and other work, services and actions (including pursuant to any warranty obligations) to be performed by Contractor hereunder (whether at the Site or otherwise) in connection with, or relating to, the Project (or any component thereof, including any Equipment and any Owner Equipment). “Services” includes (a) all of the foregoing items that Contractor provides through a Subcontractor, (b) all of the foregoing items that Contractor has provided or has committed to provide directly, or indirectly through a Subcontractor, pursuant to the JPDA and the Construction Services agreement and (c) the services that Contractor provides with respect to Owner Equipment pursuant to Section 3.1(a)(ii) .

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“ Services Warranty Period ” shall have the meaning set forth in Section 13.1 .

“ Scope of Work ” shall mean the scope of work as set forth in Exhibit A .

“ Site ” shall mean the physical location at the Cliffside Steam Station under the care, custody and control of Contractor upon which Contractor shall perform the construction portion of the Work as described in Exhibit B.

“ Specifications ” shall mean the Project specifications in Exhibit A .

“ Standby Letter of Credit ” shall have the meaning set forth in Section 16.2 .

“ State ” shall mean the State of North Carolina and its Government Authorities.

“ Subcontractor ” shall mean a Person, including any vendor, materialman or supplier, who has a contract (whether written or oral, a purchase order or otherwise) with Contractor or a contract with any Person hired by Contractor or with a Person of any lower tier (e.g., a second- or third-tier subcontractor) to perform any of the Services or to furnish any Equipment, at the Site or elsewhere.

“ Substantial Completion ” shall mean that Unit 6 or the Unit 5 Scrubber shall have achieved all the conditions set forth in Section 11.2 .

“ Substantial Completion Date ” shall mean the date on which Substantial Completion of Unit 6 or the Unit 5 Scrubber actually occurs.

“ Substantial Completion Punch List ” shall mean the written list of items of Work with respect to Unit 6 or the Unit 5 Scrubber (which Contractor prepares and with which Owner agrees prior to Substantial Completion) that remain to be completed by Contractor after Substantial Completion of Unit 6 or the Unit 5 Scrubber but prior to Final Completion of Unit 6 or the Unit 5 Scrubber and which shall not affect the safety, reliability or operability of the Facility.

“ Tangible Personal Property ” shall mean all property, other than Real Property, that has physical substance and monetary value; all property not permanently attached to or in the form of Real Property when purchased; such as power plant machinery, air, water and noise pollution abatement equipment to be incorporated into the Project (Tangible Personal Property shall be interpreted consistently with the Laws of the State).

“ Taxes ” shall mean all present and future license, documentation, recording and registration fees, all taxes (including income, gross receipts, unincorporated business income, payroll, sales, use, privilege, personal property (tangible and intangible), real estate, excise and stamp taxes), levies, imports, duties, assessments, fees (customs or otherwise), charges and withholdings of any nature whatsoever, and all penalties, fines, additions to tax, and interest imposed by any Government Authority.

“ Testing Procedures ” shall mean those procedures prepared for the Performance Testing by Contractor in accordance with Exhibit L and reasonably acceptable to Owner.

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“ Third Party Claim ” shall mean any claim, demand or cause of action of every kind and character by any Person other than Owner or Contractor. For the avoidance of doubt, a claim, demand or cause of action by an employee of Owner or Contractor (unless made on behalf of Owner or Contractor) shall be considered a Third Party Claim hereunder.

“ Toshiba LNTP ” shall mean the Limited Notice to Proceed, dated as of * * *, issued by Owner to Toshiba International Corporation for the purchase of the steam turbine generator for Unit 6.

“ Unit 6 ” shall mean the Cliffside Unit 6 described in the Recitals, and shall include the boiler, turbine and generator set and all associated auxiliary and environmental components (including the flue gas desulfurization system for Unit 6) necessary to generate and place power therefrom on the transmission grid in compliance with all applicable Laws.

“ Unit 5 Scrubber ” shall mean the new flue gas desulfurization system for Owner’s existing Unit 5 at the Owner’s coal-fired steam station in Cliffside, North Carolina.

“ Unit 5 Scrubber Tie-In ” shall mean the process required to connect the Unit 5 Scrubber to the interface points of Owner’s existing Unit 5 at Owner’s coal-fired steam station in Cliffside, North Carolina in order that operation of Unit 5, through the Unit 5 Scrubber, shall meet the Permitted Emissions Limits.

“ Unit 6 Main Steam Flow Capacity ” shall mean the test calculated turbine throttle steam flow rate in lbm/hr for Unit 6 during the Performance Testing at the test specified operating conditions and corrected to the base performance conditions set forth in Exhibit L-2 .

“ Warranty Period ” shall mean, as the context may require, the Services Warranty Period or the Equipment Warranty Period, as each may be extended from time to time with respect to any Service or Equipment as provided in Section 13.3 .

“ Work ” with respect to Unit 6 or the Unit 5 Scrubber shall mean, as the context may require, either (a) the Equipment and the Services or (b) the Equipment or the Services, for Unit 6 or the Unit 5 Scrubber.

2.1 Intent of Contract Documents . It is the intent of the Parties that Contractor provide the Equipment and perform the Services and all of its other obligations under this Agreement for the Contract Price, which shall not be increased, except in accordance with Article 8 or as otherwise expressly set forth herein.

2.2 Independent Contractor . Contractor shall perform and execute the provisions of this Agreement as an independent contractor to Owner and shall not in any respect be deemed or act, or hold itself out, as an agent of Owner for any purpose or reason whatsoever except as contemplated in Section 3.1(a)(ii) .

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2.3 Subcontracting; Approved Subcontractors .

(a) The Parties have agreed upon the list of approved Subcontractors set forth in Exhibit H for the Services and Equipment listed in Exhibit H . Contractor shall have the right to have that portion of the Services identified in Exhibit H performed by the approved Subcontractor for such Service, and the right to purchase Equipment identified in Exhibit H from the approved Subcontractor for such Equipment without additional notice to or review by Owner.

(b) If, prior to execution of a Subcontract, Owner desires that Contractor engage an alternative approved Subcontractor in lieu of the Subcontractor that is preferred by Contractor, Owner shall consult in good faith with Contractor on the difference in value, if any, between the bid price of the Subcontractor desired by Owner and the Subcontractor preferred by Contractor, plus any additional impacts to Schedule or warranties attributable to selecting the alternative Subcontractor in lieu of the preferred Subcontractor. If desired by Owner, Contractor shall engage such alternative approved Subcontractor but shall be entitled to a Change Order for the schedule, cost, warranty or other impacts in selecting the alternative Subcontractor.

(c) If Contractor desires to engage a Subcontractor that is not identified in Exhibit H as an approved Subcontractor: (i) to perform any off-Site Services or provide any Equipment that exceeds or is expected to exceed, in the aggregate with all prior provision of Equipment, ***; or (ii) that will be providing Services at the Site (other than the delivery of material or Equipment) that exceeds or is expected to exceed, in the aggregate with all prior performance of Services or provision of Equipment, *** (hereinafter a “ Major Subcontractor ”), then, before Contractor enters into any contract with, or otherwise engages, such Major Subcontractor to perform such Services or provide such Equipment, Contractor shall deliver to Owner for Owner’s review and approval (such approval not to be unreasonably withheld or delayed) (x) the name of the Major Subcontractor that Contractor proposes to use in the performance of such Services or purchase of such Equipment, (y) a statement in reasonable detail of the reasons why the proposed Major Subcontractor is preferred over any approved Subcontractor and (z) the information (and any additional information as Owner may reasonably request) on which Contractor is basing its desire to engage such Subcontractor. Owner shall have the right to reject any such Major Subcontractor; provided that (i) Owner’s rejection shall be reasonable and shall occur within ten (10) Business Days after Contractor submits to Owner all of the information described in clauses (x), (y) and (z) above and (ii) Contractor shall have an alternative Major Subcontractor available to perform such Services or provide such Equipment.

(d) Contractor shall not allow any Subcontractor that Owner rejects to perform any portion of the Services or provide any of the Equipment. Unless otherwise mutually agreed in writing, no contractual relationship shall exist between Owner and any Subcontractor with respect to any of the Services or the Equipment. Contractor shall be fully responsible for all acts, omissions, failures and faults of all Subcontractors as fully as if they were the acts, omissions, failures and faults of Contractor. The exercise of this right by Contractor to subcontract shall not in any way increase the costs, expenses or liabilities of Owner.

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2.4 Assignment of Subcontracts . All subcontracts between Contractor and its Major Subcontractors shall be in writing and shall, to the extent commercially reasonable, contain provisions, which Contractor shall not waive, release, modify or impair (a) obligating each Subcontractor that may receive access to any Owner Confidential Information, to protect such Owner Confidential Information in accordance with the provisions of this Agreement; (b) as applicable, sufficient to ensure that Contractor has the right to grant the intellectual property licenses and assignments that are granted to Owner herein; (c) giving Contractor an unrestricted right to assign the subcontract and all benefits, interests, rights and causes of action arising under it to Owner, an Affiliate of Owner, a Financial Institution, or an operator of the Facility, as designated by Owner and (d) providing that, following a Default by Contractor and a termination of this Agreement by Owner, upon receipt by Contractor and Subcontractor of written notice from Owner electing same, such subcontract, together with all benefits, interests, obligations, rights and causes of action arising thereunder, shall be deemed to have been assigned from Contractor to Owner effective immediately upon receipt of such notice from Owner without any further action required by any party. At the request of Owner, Contractor shall provide Owner with copies of all warranties of each Major Subcontractor relating to any of the Work, and Contractor shall comply with any request by Owner upon the termination of this Agreement pursuant to Article 23 or prior to the expiration of the Warranty Period to assign the benefit of any Subcontractor warranty to Owner, an Affiliate of Owner, a Financial Institution, or an operator of the Facility, as designated by Owner; provided that , unless otherwise agreed, Contractor shall not be required to assign any rights to claims that Contractor may have against such Subcontractor at the time of the assignment of such benefit.

2.5 Interpretation .

(a) Headings . The titles and headings in this Agreement are inserted for convenience only and shall not be used for the purposes of construing or interpreting this Agreement.

(b) Plural/Singular . Words importing the singular also include the plural and vice versa.

(c) References . References to natural persons include Persons. References to “Articles” and “Sections” are references to Articles and Sections of this Agreement. References to “Exhibits” are references to the Exhibits attached to this Agreement, including all attachments to and documents and information incorporated therein, and all Exhibits are incorporated into this Agreement by reference.

(d) Gender . Words importing one gender include the other gender.

(e) Without Limitation . The words “include” and “including” are not words of limitation and shall be deemed to be followed by the words “without limitation.”

(f) Amendments . All references in this Agreement to contracts, agreements or other documents shall be deemed to mean those contracts, agreements or documents as the same may be modified, supplemented or amended from time to time; provided , however , that, unless Contractor was a party to such modification, supplement or amendment, Contractor shall not be bound by such modification, supplement or amendment in its performance of the Services or provision of the Equipment until Contractor is notified of and agrees to it.

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(g) Industry Meanings . Words and abbreviations not otherwise defined in this Agreement which have well-known technical or design, engineering or construction industry meanings in United States are used in this Agreement in accordance with those recognized meanings.

(h) Agreement . Provisions including the word “agree”, “agreed” or “agreement” require the agreement to be recorded in writing.

(i) Written . Provisions including the word “written” or “in writing” mean hand-written, type-written, printed or electronically made and resulting in a permanent record.

(j) Drafting . Neither Contractor nor Owner shall assert or claim a presumption disfavoring the other by virtue of the fact that this Agreement was drafted primarily by legal counsel for the other, and this Agreement shall be construed as if drafted jointly by Owner and Contractor and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

2.6 Inclusion; Order of Precedence . This Agreement (excluding the Exhibits) and the Exhibits shall be considered complementary, and what is required by one shall be binding as if required by all. The Parties shall attempt to give effect to all provisions. The failure to list a requirement specifically in one document, once that requirement is specifically listed in another, shall not imply the inapplicability of that requirement, and Contractor shall provide as part of its obligations hereunder all items required to conform the Work to the Specifications and the other standards in this Agreement. In the event of a conflict between this Agreement (excluding the Exhibits) and the Exhibits, this Agreement (excluding the Exhibits) shall control and the conflicting provisions shall be interpreted so as to accord with the provisions of this Agreement (excluding the Exhibits). Notwithstanding the foregoing, conflicts regarding scope of work matters shall be governed by Exhibit A . Later dated amendments, Exhibits or Change Orders shall take precedence over earlier dated amendments, Exhibits or Change Orders.

2.7 Days . If a payment obligation falls due on a Day other than a Business Day, the obligation shall be deemed to be due on the next Business Day.

3.1 Performance of the Services; Commencement of Work .

(a) Performance of the Services .

(i) Scope of Services for Work . With respect to all Work other than Owner Equipment, Contractor shall procure, provide and pay for all items and services necessary for the proper execution and completion of the Services, whether temporary or permanent and whether

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or not incorporated or to be incorporated into the Work, including all procurement, design and engineering services, all installation and construction services, administration, management, training and coordination, all Commissioning and verification services, and all labor, Equipment, construction aids, furnishings, equipment, supplies, insurance (other than Owner insurance), permits (other than Owner permits), licenses, inspections, storage and transportation, Project Manuals, and all other items, facilities and services. Contractor shall design, construct and install the Equipment on an engineering and construction basis pursuant to this Agreement, including providing all necessary civil, structural, mechanical, and electrical engineering services, all control equipment necessary for the design, construction and operation of the Equipment, all interconnections set forth in the Specifications, and all equipment not specifically described in the Specifications which is customary and necessary to meet the requirements of the Specifications and the Performance Guarantees. Work not specifically delineated in this Section or elsewhere shall be performed and provided by Contractor to the extent customary and necessary to complete the Project in accordance with Prudent Industry Practices. Contractor shall execute the entire Services in a manner that will enable Unit 6 and the Unit 5 Scrubber to achieve Substantial Completion by the Guaranteed Substantial Completion Date for Unit 6 or the Unit 5 Scrubber and Final Completion of Unit 6 and the Unit 5 Scrubber by the Guaranteed Final Completion Date for Unit 6 or the Unit 5 Scrubber.

(ii) Scope of Services for Owner Equipment . Owner shall be responsible for procuring, supplying and providing the Owner Equipment by the dates set forth in the Schedule. The Owner Equipment shall be provided pursuant to the Existing LNTPs (as may be amended or updated) and any other contracts between Owner and the suppliers of such Owner Equipment (collectively, the “ Owner Equipment Contracts ”). With respect to such Owner Equipment, the Parties hereby agree as follows:

(A) Owner hereby authorizes Contractor to, and Contractor hereby agrees to, act as Owner’s agent for the purpose of generally administering the Owner Equipment Contracts on behalf of Owner and assuring compliance by Owner and suppliers with the terms thereof. Contractor shall perform such services in the manner that a reasonably prudent contractor in the pulverized-coal construction industry would perform if such contractor, instead of Owner, were a party to such Owner Equipment Contracts. Such agency services shall include but shall not be limited to reviewing design documents, obtaining design interface and delivery schedule information, coordinating and expediting delivery of such Owner Equipment, diligently asserting Owner’s rights, maintaining appropriate records, providing to Owner any notices delivered to Contractor by the supplier of the Owner Equipment, regularly updating Owner with respect to the status of the performance of the suppliers of the

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Owner Equipment, assisting Owner in pursuing available remedies against the suppliers of the Owner Equipment, including assistance to Owner in the administration and coordination of warranty claims for such Owner Equipment and enforcing the repair, replacement or refurbishment of such Owner Equipment as necessary, consulting with Owner with respect to any material issues, and attending meetings and otherwise interfacing with the suppliers of the Owner Equipment, all as necessary in order to ensure performance by the respective suppliers under the Owner Equipment Contracts in accordance with the terms and condition set forth in such Owner Equipment Contracts. Notwithstanding the foregoing, Contractor shall have no authority to, and shall not, take any of the following actions under or with respect to the Owner Equipment Contracts without the prior approval of Owner: (1) consent to any change order; (2) agree to or permit any amendment, modification, or supplement; (3) waive any of Owner’s rights or the obligations of the suppliers of the Owner Equipment; (4) initiate or conduct any litigation or other similar proceedings; (5) take any action that would cause a default or breach by Owner of an Owner Equipment Contract; or (6) agree to or consent to termination or suspension of work or activities thereunder. Owner shall provide notice to and consult with Contractor on any performance or schedule concerns before making payments to the suppliers of the Owner Equipment after the Effective Date.

(B) In addition to the agency services set forth in Section 3.1(a)(ii)(A) above, Contractor shall also provide timely review and response to all Owner Equipment designs, specifications and drawings, provide all on-site storage and transportation, provide on-site administration and coordination, provide installation and integration services with respect to the Owner Equipment in accordance with the Schedule, perform inspections of such Owner Equipment, perform all installation, commissioning testing and Performance Testing for all such Owner Equipment, conduct quality surveillance and start-up of such Owner Equipment to the extent permitted under the Owner Equipment Contracts, coordinate training, incorporate Owner Equipment manuals into the Project Manual, and provide other services reasonably necessary to install and interconnect such Owner Equipment to the Facility as contemplated by Contractor’s Scope of Work.

(C) Notwithstanding anything to the contrary, Contractor shall have no liability to Owner for payment of any performance liquidated damages specified within the Owner Equipment Contracts for any shortfall in the performance of such Owner Equipment (including failure to meet performance guarantees) or for the payment of any delay liquidated damages specified within the Owner Equipment Contracts for the late delivery of such Owner Equipment. Except to the extent that Contractor’s failure to perform its obligations in accordance with this Agreement hereof is the cause of such non-performance or schedule delay,

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Contractor shall be entitled to a Change Order granting equitable relief from any impact on Contractor’s cost or schedule of performance under this Agreement attributable to a breach by the suppliers of the Owner Equipment of the terms of the Owner Equipment Contracts.

(b) Work Under Limited Notices to Proceed .

(i) From the Effective Date and until such time that Owner issues a Full Notice to Proceed with respect to Unit 6 or the Unit 5 Scrubber, Owner shall from time to time issue Limited Notices to Proceed for Contractor to perform certain portions of the Work with respect to Unit 6 or the Unit 5 Scrubber as set forth in each such Limited Notice to Proceed. Such portions of the Work shall be performed for the price and in the manner set forth in such Limited Notice to Proceed. The Parties acknowledge that such agreement concerning price and payment terms may be reached as part of, and included in, the process of determining the Contract Price pursuant to the Open Book Price and Schedule Finalization Process. Each Limited Notice to Proceed shall expire upon the earlier of (A) the date set forth in such Limited Notice to Proceed for Unit 6 or Unit 5 Scrubber, (B) issuance of the Full Notice to Proceed for Unit 6 or Unit 5 Scrubber or (C) termination of this Agreement with respect to Unit 6 or Unit 5 Scrubber in accordance with Section 23.4(a) .

(ii) The Parties hereto acknowledge and agree that the Existing LNTPs were issued by Owner prior to the Effective Date. In connection with the execution of this Agreement, the Owner hereby retains all of Owner’s obligations, rights, and remedies under each Existing LNTP and with respect to the Owner Equipment obtained pursuant thereto.

(c) Work After Full Notice to Proceed . Upon the issuance by Owner of the Full Notice to Proceed with respect to Unit 6 or the Unit 5 Scrubber, such notice shall be deemed to be authorization for Contractor to commence the remainder of the Work relating to Unit 6 or the Unit 5 Scrubber on the date set forth in such Full Notice to Proceed, which shall continue until such Work is completed unless this Agreement is earlier terminated with respect to Unit 6 or the Unit 5 Scrubber in accordance with Section 23.4(a) . Owner shall issue the Full Notice to Proceed with respect to the Unit 5 Scrubber no later than thirty (30) Days after the Effective Date. If Owner fails to issue such Full Notice to Proceed by such time, such failure shall constitute a Change, with respect to which Article 8 shall apply. In addition, the Parties acknowledge that the Schedule sets forth a specific date for the anticipated delivery of each Full Notice to Proceed for Unit 6. The failure by Owner to issue a Full Notice to Proceed by the applicable date set forth in the Schedule, as may be revised an updated as part of the Open Book Price and Schedule Finalization Process, will constitute a Change, with respect to which Article 8 shall apply. After completion of the Open Book Price and Schedule Finalization Process, Contractor shall perform its obligations under this Agreement in accordance with the agreed upon Schedule, as such Schedule may be modified or updated from time to time in accordance with the terms of this Agreement.

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3.2 Professional Standards . Contractor shall perform and complete the Services and its other obligations under this Agreement, and all Equipment shall be, in accordance with all applicable Laws, this Agreement and Prudent Industry Practices. In the event of any conflict between any of the authorities in the foregoing sentence, all applicable Laws shall control over the terms of this Agreement and Prudent Industry Practices, and the terms of this Agreement shall control over Prudent Industry Practices.

3.3 Sufficient Personnel . At all times during the term of this Agreement, Contractor shall employ a sufficient number of qualified Persons, who shall be licensed if required by applicable Laws, so that Contractor may complete the Services and Contractor’s other obligations under this Agreement in an efficient, prompt, economical and professional manner and in accordance with the Schedule. Without in any way limiting the foregoing, Contractor shall, for example, employ a sufficient number of qualified buyers, inspectors, and expediters necessary to provide all equipment, materials and supplies to be provided by Contractor hereunder in a timely manner consistent with the Schedule. Contractor shall provide all technical services and supervision for Commissioning and verification. Contractor shall also provide all construction services and craft personnel as required for system adjustments during Commissioning and verification. Owner shall provide and pay for operations and maintenance staff during Commissioning and verification.

3.4 Supervision and Discipline . Contractor shall supervise, coordinate and direct the Services using Contractor’s best skill, judgment and attention. Contractor shall enforce strict discipline and good order among Contractor’s employees, Subcontractors’ employees and all other Persons carrying out the Services. Contractor shall at all times take all necessary precautions to prevent any unlawful or disorderly conduct by or among its employees, employees of Subcontractors and other Persons performing the Services and for the preservation of the peace and the protection of Persons and property at, or in the immediate vicinity of, the Site. Contractor shall only permit the employment of Persons who are fit at the time they are employed and on each Day they perform the Services, who are skilled in the tasks assigned to them, and who are qualified to perform the tasks assigned to them. Contractor shall be responsible for labor peace on the Site and Contractor shall at all times implement policies and practices designed to avoid work stoppages, slowdowns, disputes and strikes where reasonably possible and practical under the circumstances.

3.5 Contractor’s Key Personnel . Exhibit G contains a list of Contractor’s key personnel who shall be responsible for supervising the performance of Contractor’s obligations under this Agreement. That list includes the designation of Contractor’s Project Manager and Contractor’s Site Representative. Any replacement of the key personnel listed in Exhibit G shall be subject to the prior written approval of Owner, which consent Owner shall not unreasonably withhold or delay. Contractor’s Project Manager shall act as Contractor’s liaison with Owner and shall have the authority (a) to administer this Agreement on behalf of Contractor, (b) to perform the responsibilities of Contractor under this Agreement, and (c) to bind Contractor as to the day-to-day project management operations under the Agreement. Contractor’s Site Representative or other Contractor supervisory personnel shall be present at the Site at all times when the Services are being performed at the Site.

3.6 Design and Engineering . Prior to the Effective Date, Contractor shall have scrutinized, and satisfied itself as to the adequacy of, the Specifications (including design criteria

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and calculations, if any) for completion of the Project. Contractor shall be responsible for the design of the Project and for the accuracy of the Specifications. Any data or information received by Contractor, from Owner or otherwise, shall not relieve Contractor from its responsibility for the design of the Project and execution of the Services. Contractor shall engage all supervisors, engineers, designers, draftsmen and other Persons necessary for the preparation of all Documentation required for the Work. In connection with the Documentation, Contractor shall prepare working drawings and specifications setting forth in detail the requirements for the construction of the Project in accordance with this Agreement (the “ Design Documents ”). Contractor shall submit those Design Documents identified in Exhibit A for Owner’s review, and Owner shall complete its review of, and provide any comments to Contractor with respect to, the Design Documents within ten (10) Days of receiving such Design Documents from Contractor (and such Design Documents shall be deemed reviewed without comment if Contractor does not receive any comments from Owner within such time period). If Owner notifies Contractor that the Design Documents fail to comply with this Agreement, Contractor shall correct such Design Documents and shall resubmit them for Owner’s prompt review within five (5) Business Days in accordance herewith. Owner shall be entitled, but not obligated, to review and comment on all other Design Documents not identified in Exhibit A . Any review by Owner of any Design Documents pursuant to this Section shall not relieve Contractor from any obligation or responsibility under this Agreement. If errors, omissions, ambiguities, inconsistencies, inadequacies or other defects are found in the Designs Documents, they shall be corrected at Contractor’s cost, notwithstanding any prior consent or approval of Owner of any such Design Documents.

3.7 Quality Assurance Plan . Contractor shall develop, implement and maintain a written plan for quality assurance of the Services (the “ Quality Assurance Plan ”). Such plan shall meet the Owner’s corporate and Site-specific policies and requirements and the requirements of all applicable Laws. Contractor shall deliver the plan to Owner within ninety (90) Days after the Effective Date for Owner’s review and comment, and Contractor shall thereafter incorporate Owner’s reasonable comments therein. Following Owner’s review of and comment to such plan, Contractor shall have the right to rely on such plan in performing the Services. Contractor shall also require all Subcontractors to establish, implement and maintain appropriate quality control and safety programs with respect to their respective portions of the Services. Contractor shall provide Owner and its employees, agents, representatives and invitees with reasonable access to the Work wherever located for observation and inspection, including but not limited to auditing of all activities for conformance with the requirements of the plan and all requirements of the Agreement. Inspections and audits of Contractor’s Subcontractors will be coordinated with Contractor.

3.8 Training . Contractor shall develop and implement a program to instruct and train Owner’s personnel adequately in accordance with the provisions of Exhibit A . Contractor shall deliver to Owner by the date specified in the Schedule, substantially complete versions of the Project Manuals that are sufficient for Contractor’s use in training Owner’s maintenance and operating personnel, and Contractor shall thereafter use the Project Manuals to train such Owner personnel.

3.9 Utility Use . Subject to Section 4.5 , Contractor shall pay for all temporary construction utilities required to perform the Services until the latest of the Substantial Completion Dates of Unit 6 and the Unit 5 Scrubber, including fuel (other than coal fuel used for

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Commissioning, Performance Testing and operation), telephones (other than telephones for Owner’s staff), potable water, construction waste disposal, and wastewater disposal. After Substantial Completion of Unit 6 and the Unit 5 Scrubber, Owner shall become solely responsible for the provision and payment thereof.

3.10 Spare Parts . Contractor shall provide the spare parts required for Commissioning and start-up of the Equipment and the cost of such spare parts shall be contained within the Contract Price. Acting as Owner’s agent pursuant to Section 3.1(a)(ii)(A) , Contractor shall obtain from each supplier of Owner Equipment a recommended list of spare parts required for Commissioning and start-up of such Owner Equipment, and Owner shall procure and provide such spare parts to Contractor approximately sixty (60) Days prior to start-up of any such Owner Equipment. Upon Owner’s request and acting as Owner’s agent pursuant to Section 3.1(a)(ii)(A) , Contractor shall use its commercially reasonable efforts to obtain from each supplier of Equipment and Owner Equipment at least two hundred and seventy (270) Days prior to Substantial Completion a list of recommended spare parts for such Equipment and Owner Equipment for the ongoing operation and maintenance of the Project. The Contractor shall request such spare parts list to include: (1) name of manufacturer, (2) manufacturer’s description of spare part, (3) The manufacturer’s part number, (4) required quantities, (5) lead time, and (6) price. The cost for procurement of such additional recommended spare parts shall not be included in the Contract Price. The parties shall mutually determine the process for procuring and providing such additional spare parts. Owner shall make available at no cost for Contractor to utilize during start-up and testing, all spare parts acquired by Owner for the Equipment and Owner Equipment, subject to Contractor’s commitment to replace promptly at its cost spare parts of an equal or greater quality.

3.11 Subcontractor Presence . Contractor shall be responsible for notifying and paying any Subcontractor representative that it deems necessary to be present for technical assistance at (a) any training session, (b) erection supervision, (c) Commissioning, or (d) the Performance Testing. Similarly, Owner, at its cost, shall ensure that an adequate number of qualified representatives from those suppliers supplying Owner Equipment are present for technical assistance at the same events.

3.12 Current Records; Record Drawings . Contractor shall maintain in good order and make available to Owner, for inspection at the Site at all times, at least one record copy of the Documentation marked currently to record material changes made during construction. Before, and as a condition to, Final Completion of Unit 6 and the Unit 5 Scrubber, Contractor shall deliver to Owner all of the preceding items and a set of reproducible of those as-built drawings listed in Exhibit A (in hard copy and electronic formats (non-native files) reasonably requested by Owner), showing all Changes made during construction with respect to Unit 6 and the Unit 5 Scrubber.

3.13 Transportation Costs . Contractor shall arrange and pay for all transportation, storage and transfer costs incurred in connection with the Work, except for the transportation and storage costs attributable to Owner Equipment, which transportation and storage costs shall be paid by Owner.

3.14 Project Manuals . Contractor shall deliver to Owner the first draft of the Project Manuals no less than one hundred and eighty (180) Days prior to Substantial Completion of Unit

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6 and the Unit 5 Scrubber in accordance with the requirements of this Agreement, with such first draft containing sufficient operational and technical information to allow Owner to develop Facility operating and maintenance procedures in order for Contractor to provide operator training. Contractor shall deliver to Owner the final draft of the Project Manuals, in both hard copy and electronic format, prior to Final Completion of Unit 6 and the Unit 5 Scrubber.

3.15 Control of Work . Contractor shall control and be solely responsible for all construction means, methods, techniques, sequences, procedures, safety and quality assurance, and quality control programs in connection with the performance of the Services. Contractor, as part of the construction indirects in Exhibit I shall provide all necessary security at that portion of the Site under Contractor’s care, custody and control for the construction Work, including, without limitation, a suitable fence around such portion of the Site, and the prohibition and prevention of access and entrance to such portion of the Site by all unnecessary and unauthorized Persons. Contractor shall strictly control the admission of Persons to such portion of the Site and no such Person (other than the employees, officers or directors of the Parties or their Affiliates) who is not required for the performance or supervision of the Services shall be admitted without the prior approval of Owner (such approval not to be unreasonably withheld or delayed). From Substantial Completion through Final Completion of Unit 6 and the Unit 5 Scrubber, ***.

3.16 Emergencies . In the event of any emergency endangering life or property, Contractor shall take all actions as may be reasonable and necessary to prevent, avoid or mitigate injury, damage or loss and shall promptly report each such emergency, and Contractor’s responses thereto, to Owner.

3.17 Local Conditions; Inspection of Interface Points .

(a) Contractor has reviewed the Site and the access to the Site, all as described in Exhibit B , and acknowledges that they are sufficient for the performance of the Services. Contractor represents and warrants that it has taken all steps necessary to ascertain the nature and location of the Services and that it has investigated and satisfied itself as to the general and local conditions that can affect the Project, the Site or the performance of the Services, including: (a) conditions bearing on access, egress, transportation, waste disposal, handling, lay down, parking and storage of materials; (b) the availability of labor, water, electric power, other utilities and roads needed for construction; (c) uncertainties of normal weather or other observable physical conditions at the Site; and (d) the character of equipment and facilities needed before and during the performance of the Services. If Contractor has taken all reasonable steps as described in this Section, then, notwithstanding Article 9 , Contractor shall be entitled to an adjustment in the Contract Price or Schedule for any differing Site conditions.

(b) Contractor has inspected the various interface points on the Owner’s existing systems, each of which is identified on Exhibit A , and has satisfied itself that such interface points are sufficient and adequate for the performance and completion of the Services. Contractor represents that it has taken all prudent and commercially reasonable steps necessary to ascertain the nature and location of the interface points and

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has satisfied itself as to their sufficiency and adequacy, except for the tie-in ducts which are scheduled for inspection during the outage for Unit 5 Scrubber Tie-In. In the event that Contractor discovers a differing interface point condition that affects the Services during the performance of the Services, Contractor shall not be entitled to an adjustment in the Contract Price pursuant to a Change in accordance with Article 8 to the extent such differing condition could have been observed or discovered in a visual inspection of the applicable interface points, otherwise Contractor shall be entitled to a Change Order.

3.18 Use of Site: Owner Access . Contractor shall confine its operations at the Site to areas permitted by applicable Laws, this Agreement and the Exhibits hereto. Contractor shall prepare, implement and enforce written Site rules necessary for the safe, efficient and proper prosecution of the Work. Those rules shall, at a minimum, comply with the Owner Environmental Health and Safety manual and all applicable Laws. Contractor shall provide Owner, the Financial Institutions and their respective employees, agents, representatives and invitees with reasonable access to the Work wherever located for observation and inspection; provided , that Contractor may provide, and Owner and the Financial Institutions shall accept, an escort or other safety measures that Contractor, in its sole discretion acting reasonably, deems necessary or advisable. Contractor shall provide Owner with office facilities on the Site which shall be outfitted in a customary manner (including a conference room) as more fully described in Exhibit A . Those office facilities shall be connected to and serviced by the usual utilities, subject to Sections 3.9 and 4.5 . Owner shall have the right to assign a maximum of five dedicated representatives to Contractor’s facility on a full time basis.

3.19 Compliance With Laws . Contractor shall comply, and shall cause all Subcontractors to comply, with all applicable Laws and Change Orders that relate to Changes in Law relating to the Work or the Project, and Contractor shall give all applicable notices with respect to, and in accordance with, any applicable Laws. Contractor shall ensure that the Project, as designed and constructed, complies, and, when operated in accordance with Prudent Industry Practices, shall comply with all applicable Laws. Notwithstanding the foregoing, or anything else in this Agreement to the contrary, Contractor’s obligation with respect to water, air and other emissions of the Project shall be limited to the requirements set forth in the Specifications. If not otherwise exempted by Title 48 and to the extent applicable, Contractor will make a good faith effort to comply with 48 CFR §52.219-8, Utilization of Small, Small Disadvantaged, and Women-Owned Small Business Concerns, and 48 CFR §52.219-9, Small, Small Disadvantaged, and Women-Owned Small Business Subcontracting Plan.

3.20 Permits and Approvals . Contractor shall be responsible for obtaining, renewing and maintaining all permits, licenses, approvals and certifications customary and necessary for Contractor to demolish, Site prepare, engineer, detail, fabricate, furnish, deliver, unload, store, erect, install, commission (but only those permits exclusively used for commissioning) and inspect the Work, all as described in Exhibit D (collectively, the “ Contractor Permits ”). At least three (3) Days prior to application for any of those items that are Site-specific and relate to Site activities, Contractor shall give to Owner a copy of such application. If Owner objects to such application, Contractor shall not proceed with such application and the Parties shall discuss and agree upon a mutually acceptable method to achieve compliance with such requirements; provided , that Contractor shall be entitled to a Change to the extent such delay in submitting the application impacts the Contract Price or the Schedule. Contractor shall provide reasonable assistance and documents to Owner in connection with Owner’s efforts to obtain the Owner

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Permits. Contractor represents that, to the best of its knowledge, the Contractor Permits listed in Exhibit D are the customary permits, approvals and certifications required to be obtained by Contractor for its performance of the Services. Upon Contractor’s request, Owner shall provide Contractor reasonable cooperation and assistance in obtaining and maintaining Contractor Permits.

3.21 Periodic Reports and Meetings .

(a) Status Report . Within ten (10) Business Days after the end of each calendar month after Owner gives Contractor a Limited Notice to Proceed, or if none is given, a Full Notice to Proceed, Contractor shall prepare and submit to Owner a written status report covering the previous calendar month, which report shall be prepared in a manner and format (hard copy and electronic) reasonably acceptable to Owner and shall include (i) a detailed description of the progress of the Work, including an up-to-date Work Schedule depicting all critical path activities and Key Schedule Milestones and illustrating the progress which has been made against such activities and Key Schedule Milestones, (ii) if the description of the progress of the Work indicates that the Work does not comply with the Schedule, a brief description of the steps and actions that Contractor proposes to take in order to comply with the Schedule, (iii) a comparison of the actual amounts paid or payable by Owner through the end of the previous calendar month for the Work completed by Contractor compared to the forecasted amounts payable for such Work as set forth in the Cash Flow Plan (including in each of the Milestone Payment Schedule and the Craft Labor Cost plan), (iv) a Craft Labor Cost Comparison for the actual Craft Labor Costs incurred by Contractor in performing the Work through the end of the previous calendar month, (v) a statement of any significant issues which remain unresolved and Contractor’s recommendations for resolving the same, (vi) a summary of any significant Project events which are scheduled or expected to occur during the following thirty (30) Days, and (vii) all additional information reasonably requested by Owner (the “ Monthly Progress Report ”).

(b) Attendance and Participation . From the issuance of the first Full Notice to Proceed issued hereunder until the latest of the Final Completion Dates of Unit 6 and the Unit 5 Scrubber, Contractor shall attend and participate in regular meetings with Owner which shall occur monthly (or upon such other interval as the Parties agree in writing) for the purpose of discussing the status of the Work and anticipating and resolving any problems (“ Progress Meetings ”). The Progress Meetings may also include, at the request of Owner, the Financial Institutions, consultants and other Persons. Contractor shall prepare and promptly deliver to Owner written minutes of each meeting; provided , that the publication or distribution of such minutes shall not constitute a permitted basis for providing notice, or otherwise asserting claims, under this Agreement by any Party. No implication whatsoever shall be drawn as consequence of a failure by any Party to comment on or object to any minutes prepared or distributed by Contractor. Unless otherwise mutually agreed, Contractor’s Site Representative shall attend all Progress Meetings after Contractor mobilizes to the Site. In addition to the above monthly Progress Meetings, Contractor shall hold regularly scheduled (but not less frequently than weekly during construction) status or scheduling meetings with its Subcontractors as appropriate, and Owner shall have the right but not the obligation to attend and participate in such weekly status meetings; provided , that, if Contractor determines in its

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reasonable discretion that Owner’s attendance at the meeting would prohibit Contractor from effectively addressing confidential or sensitive issues, Contractor shall have the right to bar Owner from all or a portion of such meetings.

3.22 Signage . Neither Contractor nor its Subcontractors shall display, install, erect or maintain any advertising or other signage at the Site without Owner’s prior written approval, other than signs and notices required by applicable Laws, related safety or work rules, site identification, or used to solicit employees for the performance of the Services.

3.23 Interference with Traffic . Contractor shall carry out the Services so as not to interfere unnecessarily or improperly with (a) Owner’s operations on the Site (after Owner has assumed custody and control of the Project) or (b) access to, use of or occupation of public or private roads, footpaths or properties in the possession of Owner or any other Person. Contractor shall communicate with, and ascertain the requirements of, all Government Authorities in relation to vehicular access to and egress from the Site and shall comply with any such requirements. Contractor shall be deemed to have satisfied itself as to, and shall be fully responsible for, the routing for delivery of heavy or large loads to the Site so as to satisfy any requirements of Government Authorities with respect thereto.

3.24 Supply of Water and Disposal of Sewage . Contractor shall provide, within the Site, an adequate supply of drinking and other water for the use of those Persons working on the Site. Contractor shall dispose of, either off-Site or through the Facility’s septic system or other approved method, all on-Site sewage effluent during performance of the Services.

3.25 Housekeeping . At all times during the term of this Agreement, Contractor shall keep the Site and surrounding area adjacent to where the Services are actually being performed, free from waste materials, equipment, rubbish, debris and other garbage, and liquid and non-liquid materials whether spilled, dropped, discharged, blown out or leaked. Contractor shall employ adequate dust control measures. To the extent practicable, Contractor and all Subcontractors shall utilize reasonable waste reduction and recycling techniques at the Site. Before the latest of the Final Completion Dates of Unit 6 and the Unit 5 Scrubber, Contractor shall remove from the Site all tools, trailers, surplus and waste materials, and rubbish, and shall otherwise leave the Project and the Site in a neat and clean condition. With respect to all buildings on the Site, Contractor shall clean all glass (inside and out), remove all paint spots and other smears, stains or scuff marks, clean all plumbing and lighting fixtures, and clean all concrete, tile and finished floors. If Contractor fails to perform such housekeeping services, Owner, following notice and a reasonable opportunity for Contractor to cure, may perform such services, and Contractor shall reimburse Owner for all costs incurred in connection therewith.

Owner shall perform the responsibilities set forth in this Article at its own expense and at those reasonable times as may be required by Contractor for the successful completion of the Work in accordance with the Schedule.

4.1 Owner’s Representative . Owner shall appoint Owner’s Project Director with whom Contractor may consult at all reasonable times, and whose instructions, requests and decisions shall be binding upon Owner as to all matters pertaining to this Agreement and the performance

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of the Parties under this Agreement; provided , that no amendment or modification of this Agreement shall be effected except by an Amendment, and no Change shall be effected except as provided in Article 8 .

4.2 Access . From the time of the issuance of the first Full Notice to Proceed hereunder until the latest of the Substantial Completion Dates of Unit 6 and the Unit 5 Scrubber, Owner shall provide Contractor, at no additional cost to Contractor, unrestricted right of access to such portion of the Site as Contractor may reasonably require for the construction of the Project and for Contractor’s office, warehouse, shop buildings, welding facilities, Contractor’s equipment storage, lay down area, and employee parking. Owner shall cooperate with Contractor so as to minimize disruption by Owner of Contractor’s performance of the Services. After Substantial Completion of Unit 6 or the Unit 5 Scrubber and Owner takes over care, custody and control of Unit 6 or the Unit 5 Scrubber, Owner shall allow Contractor reasonable access to the applicable portion of the Site in order to achieve Final Completion of Unit 6 or the Unit 5 Scrubber.

4.3 Permits . Owner shall be responsible for obtaining, renewing and maintaining the permits, licenses, approvals and certifications necessary for the operation, maintenance, use and ownership of the Facility, including the permits listed in Exhibit E (collectively, the “ Owner Permits ”). Contractor shall provide Owner with all reasonably necessary information, documents, data, criteria and performance characteristics of the Project requested or required by Owner to assist Owner in obtaining Owner Permits.

4.4 Owner Equipment . Owner shall procure and provide Owner Equipment by the dates set forth in the Schedule in order to prevent delay. Except to the extent that Contractor’s failure to perform its obligations in accordance with this Agreement hereof is the cause of such non-performance or schedule delay, any impact to Contractor from the delay (or re-sequence) in delivery or performance of Owner Equipment shall give rise to a Change.

4.5 Fuel and Utilities . Owner shall provide, at no cost to Contractor, the electrical interconnect for power export from the Facility at the interconnection points identified in Exhibit A , all electrical power necessary for construction of the Project (including back feed power) and all fuel, electricity and other utilities necessary for Commissioning and Performance Testing when requested by Contractor and as required in accordance with the Schedule. Commencing on each of the Substantial Completion Dates of Unit 6 and the Unit 5 Scrubber, Owner shall be responsible for permanent utilities, lubricants, consumables, chemicals and other necessary fuels for the operation of Unit 6 or the Unit 5 Scrubber, as applicable.

4.6 Operation and Maintenance Staff . At least one year prior to Substantial Completion of Unit 6 and at least six months prior to Substantial Completion of the Unit 5 Scrubber, Owner shall provide, under the direction of Contractor through Substantial Completion of Unit 6 or the Unit 5 Scrubber but at no cost to Contractor, the complement of qualified operation and maintenance personnel for Commissioning, Performance Testing and operation of Unit 6 or the Unit 5 Scrubber; provided , that such action by Owner in connection with Commissioning, Performance Testing and operation of the Project shall not, in any way, modify or relieve Contractor from its obligations or void any warranties under this Agreement.

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4.7 Job Site Rules . From the Effective Date until the latest of the Substantial Completion Dates of Unit 6 and the Unit 5 Scrubber, Owner, its representatives and agents shall abide by all reasonable Site safety rules promulgated by Contractor.

4.8 Payment . Owner shall pay Contractor the Contract Price, as such price may be adjusted from time to time pursuant to the provisions of this Agreement. Owner shall make all payments promptly when due.

5.1 Quality of Equipment and Workmanship . All Equipment and workmanship shall be of the respective kinds required by this Agreement, including those required by the Specifications and Prudent Industry Practices and shall be subjected from time to time to such tests as Owner may reasonably require at the place of manufacture, fabrication or preparation, or at the Site or at such other place or places as may be mutually agreed upon by the Parties, including any place of an independent third party. Contractor shall provide such assistance, labor, stores, apparatus and instruments as are normally required for examining, measuring and testing any Equipment and Owner Equipment (other than specialty tools as listed in Owner Equipment Contracts) and workmanship, before incorporation into the Project, for testing as may be reasonably selected and required by Owner. Contractor shall remove from the Site any Equipment that is not in accordance with this Agreement.

5.2 Cost of Tests .

(a) The cost of conducting any test related to the Work shall be borne by Contractor unless such test is clearly intended by or provided for in this Agreement as being the responsibility of Owner If the results of such test indicate that the Equipment or the workmanship do not conform to the requirements of this Agreement (including the Specifications and Prudent Industry Practices), the costs shall be borne solely by Contractor.

(b) If the results of any such test indicate that the applicable Equipment or workmanship do not conform to the requirements of this Agreement (including the Specifications) and Owner has reasonable grounds to suspect that any other similar Equipment or workmanship may not conform to the requirements of this Agreement (including the Specifications), Owner may require Contractor to carry out further tests, which in the reasonable opinion of Owner are necessary to verify that such other similar Equipment or workmanship conforms to the requirements of this Agreement (including the Specifications). The costs of any such tests shall be borne by Owner if such tests reveal that such Equipment and workmanship conforms to the requirements of this Agreement (including the Specifications).

5.3 Samples . At the reasonable request of Owner and at Owner’s cost, Contractor shall supply Owner with samples of Equipment (for which samples can reasonably be provided). The manufacturer’s standard samples (with relevant information) and any additional samples shall be labeled as to origin and intended use in the Project.

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5.4 Inspection of Operations . Owner (and its representatives) shall at all reasonable times have access to the Site and to all workshops and places where Equipment or Owner Equipment is being manufactured, fabricated or prepared for the Project. Contractor shall provide Owner a reasonable opportunity to be present for any tests of any Equipment or Owner Equipment.

5.5 Examination of Work before Covering . No part of the Equipment or Owner Equipment, as applicable, shall be permanently covered up at the Site or put out of view without affording Owner a reasonable opportunity to examine and measure any such part of the Equipment or Owner Equipment, as applicable, which is about to be covered up or put out of view, including examining foundations before any part of the Equipment or Owner Equipment, as applicable, is placed thereon. For certain agreed parts of the Work as set forth in Exhibit A , Contractor shall give notice to Owner whenever any such part of the Equipment or Owner Equipment, as applicable, or foundations is or are ready or about to be ready for examination and Owner shall, without unreasonable delay, attend (or inform Contractor that it is unnecessary for it to attend) for the purpose of examining and measuring such part of the Equipment or Owner Equipment, as applicable, or of examining such foundations.

5.6 Uncovering and Making Openings . If, following discovery of defective workmanship or materials in any part of the Work, Owner has reasonable grounds to suspect that further parts of the Work may be similarly defective, Contractor shall, upon the reasonable request of Owner, provide Owner clear evidence that such other parts are not defective to the reasonable satisfaction of Owner or shall uncover such further parts of the Work or make further openings, in or through the same, and Contractor shall inspect and repair, if necessary, any such parts. The costs of such work carried out by Contractor under this Section shall be borne by Contractor, unless the parts of the Work so uncovered turn out to be not defective in which case Owner shall bear all such costs.

6.1 ***

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6.2 Commencement of Work for Unit 6 and the Unit 5 Scrubber . For Unit 6 and Unit 5 Scrubber, Contractor shall commence the performance of the Services with respect thereto upon the receipt of the Limited Notice to Proceed with respect to Unit 6 and Unit 5 Scrubber, or, if none is given, upon the Full Notice to Proceed with respect to Unit 6 and Unit 5 Scrubber, and continuously and diligently fulfill its obligations under this Agreement through the Warranty Period. For Unit 6 and the Unit 5 Scrubber, Contractor shall perform its obligations under this Agreement in accordance with the Contract Price for Unit 6 and the Unit 5 Scrubber as set forth on Exhibit I and with the Key Schedule Milestones set forth in Exhibit C , as such may be modified and updated from time to time in accordance with the terms of this Agreement. Contractor hereby acknowledges and agrees that a portion of the Work for the Unit 5 Scrubber and Unit 6 includes: (a) Work performed under the ***, which Work has already been paid by Owner under the ***, and (b) Work performed under Duke purchase order FHP01564, which Work has already been paid by Owner under such purchase order (but is included as part of the Contract Price).

6.3 ***. Each Party shall, in good faith, cooperate with the other and use all commercially reasonable efforts to expeditiously update, in accordance with the *** as described in Exhibit I , ***.

6.4 Finalization of Schedule . The Parties shall, in good faith, cooperate with the other and use all commercially reasonable efforts to expeditiously update, in accordance with the *** as described in Exhibit I , the Preliminary Schedule for Unit 6 and the Unit 5 Scrubber, respectively, ***. Upon the issuance of the Full Notice to Proceed for Unit 6 or the Unit 5 Scrubber, Contractor shall prepare and make available to Owner at all times at the Site, or such other location mutually agreed upon by the Parties, a current, working copy of the Schedule depicting all Key Schedule Milestones and illustrating the progress which has been made on the Work against the Schedule (in hard copy and electronic format), including critical path activities interconnected by schedule logics, for Owner’s review and comment. Unless otherwise mutually agreed upon by the Parties, Contractor shall update the working copy of the Schedule monthly and shall provide a copy to Owner at the Progress Meeting; provided , however , that no update of or revisions to the working copy of the Schedule shall be deemed to alter, revise or otherwise change any of the Guaranteed Substantial Completion Dates, the Guaranteed Final Completion Dates, the Guaranteed Tie-in Commencement Date or the Guaranteed Tie-In Completion Date, which shall only be amended by a duly executed Change Order or amendment hereto.

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6.5 Enhanced Project Management System . At any time following the finalization of the Schedule, in the event that Contractor’s Monthly Progress Report indicates that Contractor is unlikely to meet either the Guaranteed Substantial Completion Date or any Key Schedule Milestone identified on Exhibit C with respect to Unit 6 or the Unit 5 Scrubber, Contractor shall promptly notify Owner in writing thereof, and the Parties shall consult in good faith as to what measures need to be undertaken to regain lost time. If Contractor’s progress on any Key Schedule Milestone set forth in the Schedule is, or forecasted to be, delayed by ninety (90) days or more as compared to the Schedule, and until Contractor’s progress on such Milestone complies with the Schedule, at the request of Owner, Contractor shall, without increase to the Contract Price, establish and submit to Owner a comprehensive acceleration plan to regain compliance with the Schedule. The Parties shall consult in good faith to determine what measures to include in such comprehensive acceleration plan. Such plan shall be subject to the approval of Owner, which approval shall not be unreasonably withheld. Following such approval by Owner, Contractor shall promptly implement such plan. Unless the underlying cause for such delay constitutes a Change, neither the preparation nor the implementation of such plan shall constitute a Change.

6.6 Unit 5 Scrubber Tie-In . Contractor shall perform Unit 5 Scrubber Tie-In in accordance with the Guaranteed Tie-In Commencement Date and Guaranteed Tie-In Completion Date, both as may be adjusted in accordance with Exhibit I. Owner shall have the right to make adjustments to such outage schedule, including delaying or accelerating the Guaranteed Tie-In Commencement Date or the Guaranteed Tie-In Completion Date; provided , that as a result of any such adjustment, Contractor shall be entitled to an equitable adjustment in the Contract Price and the Schedule in accordance with Article 8. *** (or longer if Contractor is entitled to a Change upon inspection of the tie-in ducts which reveals differing conditions) to such portion of the Site as Contractor may reasonably require to perform the Work during the outage for Unit 5 Scrubber Tie-In.

7.1 Cash Flow Plan . *** as Exhibit F-1 ***. In connection with and as part of the ***, the Contractor shall update and revise the Cash Flow Plan in accordance with Exhibit I . On or before the ***, Owner shall issue a Change Order to capture all of the updates made to the Cash Flow Plan pursuant to Exhibit I , and an updated Cash Flow Plan shall be attached to this Agreement as Exhibit F .

7.2 Payments of the Contract Price .

(a) Payments .

(i) In consideration of Contractor’s performance and provision of the Work as specified in this Agreement, Contractor shall invoice and

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Owner shall pay to Contractor that portion of the Contract Price (a “ Milestone Payment ”) of Unit 6 or the Unit 5 Scrubber assigned to each milestone set forth in Exhibit F-1 (a “ Milestone ”) that Contractor completes in accordance with this Agreement. Owner and Contractor agree that each Milestone Payment is a reasonable representation of the value of the related Milestone.

(ii) Upon completion of each Milestone, irrespective of sequence, for which Contractor has not been previously paid, Contractor shall submit to Owner an invoice for the Milestone Payment with respect to such Milestone (the “ Invoice ”). *** Contractor shall make available such documentation and materials as Owner may reasonably require to substantiate Contractor’s right to payment of such Invoice.

(iii) If at any time the *** contained within any Monthly Progress Report indicates that the actual *** incurred by Contractor in performing the Work exceeds the *** (the amount of such excess, the “ ***”), then the Parties shall share in such *** as provided in Section 7.2(b) below. If, at the latest of the Final Completion of Unit 6 and the Unit 5 Scrubber, the *** contained within the final Monthly Progress Report indicates that the actual *** incurred by Contractor in performing the Work is less than the *** (the amount of such shortage, the “ ***”), then the Parties shall share in such *** as provided in Section 7.2(b) below.

(b) ***.

(i) ***.

(A) Owner shall pay *** of all *** incurred by Contractor in performing the Work until such time as the *** incurred by Contractor in performing the Work reaches the ***.

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(B) At such time as *** incurred by Contractor in performing the Work reaches the ***, Owner thereafter shall pay *** of all *** incurred by Contractor in performing the Work in excess of the *** until such time as the *** portion of the *** to be borne by Contractor in performing the Work reaches the ***.

(C) At such time as the *** share of the *** to be borne by Contractor in performing the Work reaches the ***, Owner shall thereafter pay *** of all further *** incurred by Contractor thereafter in performing the Work in excess of the ***, but without contingency, fee or G&A.

(D) Notwithstanding the above or anything else in this Agreement to the contrary, the Contractor’s total liability for all *** shall be capped at the ***.

(ii) ***. If, at the latest of the Final Completion of Unit 6 and the Unit 5 Scrubber, the Craft Labor Cost Comparison contained within the final Monthly Progress Report for the Project indicates the existence of a ***, then Owner shall be required to pay to Contractor, as part of the applicable Final Payment Invoice, an amount equal to *** of such ***.

(iii) Change Orders . Concurrently with the payment by Owner of any *** payment, Owner shall issue a Change Order, and Contractor shall accept such Change Order, (a) to increase the Contract Price for Unit 6 and Unit 5 Scrubber by the amount of such payment, with such increases to be allocated proportionally between Unit 6 and the Unit 5 Scrubber in the same ratio as the craft labor hours allocable to each scope of Work, and (b) to adjust the Target Labor Cash Flow Plan set forth in Exhibit F-2 to reflect the existence of a ***. Concurrently with the payment by Owner of any *** payment, Owner shall issue a Change Order to decrease the Contract Price for Unit 6 and Unit 5 Scrubber by the amount of such payment, with such decreases to be allocated proportionally between Unit 6 and the Unit 5 Scrubber in the same ratio as the craft labor hours allocable to each scope of Work.

(c) Revisions to Cash Flow Plan. If any Monthly Progress Report shows that the amount actually paid or payable by Owner for *** incurred by Contractor in performing the Work through the end of the month for which such Monthly Progress Report relates varies by more than *** in each of two consecutive Monthly Progress Reports from the amounts scheduled to be paid for

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*** during such two month period as reflected in the ***, prior to the issuance of the next Invoice, Contractor shall create a revised forecast of future payments to be made by Owner for the *** to be incurred by Contractor in performing the Work for the Project (it being understood that the intent of such revised forecast shall be to make adjustments necessary to eliminate such variance), which revised forecast shall be reasonably acceptable to Owner, and Owner shall issue a Change Order to amend the *** plan to reflect such revised forecast; provided , that such revised forecast shall not result in any adjustment to the Contract Price except when the true-up shows that the actual *** exceed the ***.

(d) True Up of Contract Price .

(i) As the *** or in situations in which the actual costs for such Work either: (a) shows a variance (increase or decrease) as compared to *** for such Work as reflected in Exhibit I , or (b) such Work is completed and the actual, final price differs from the *** for such Work as reflected in Exhibit I , as applicable, Owner shall issue a Change Order to adjust the Contract Price. As a result of such Change Order, Contractor shall issue either a debit or credit, as applicable, to its subsequent monthly Invoice(s) to reflect any change in Contract Price pursuant to such Change Order, unless the Parties mutually agree to allocate the impact of such Change Order through a revision and reforecast to future Milestone Payments in the Milestone Payment Schedule in Exhibit F-1.

(ii) If a *** plan set forth in Exhibit F-2 shows a variance (either above or below) in *** as compared to the *** plan set forth in Exhibit F-2 for such date, Contractor shall issue either a debit or credit, as applicable, to its next monthly Invoice to reflect the variance between the *** plan. Such adjustment shall not be a Change or entitle Contractor to a Change Order, except the *** plan may be adjusted to the extent such variance affects the *** plan set forth in Exhibit F-2.

7.3 Invoicing and Payments .

(a) If any Invoice is deficient in any material respect, Contractor shall be required to resubmit that Invoice in proper form; provided , however, that Owner shall pay any portion of it that is not deficient or subject to dispute. Owner shall review each Invoice and shall endeavor to make exceptions, if any, by providing Contractor with written notice fifteen (15) Days after Owner receives the Invoice and such substantiating documentation and materials as Owner may have reasonably required. Notwithstanding anything in this Article to the contrary, the failure of Owner to raise an exception shall not preclude Owner from subsequently seeking, and Contractor from paying, a refund of any amounts to which Contractor was not entitled under this Agreement, and Owner may,

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by any payment pursuant to Section 7.3(b) below, make any correction or modification that should properly be made to any amount previously considered due.

(b) If Owner provides no exceptions within such time period, Owner shall pay Contractor, within thirty (30) Days of receipt of the Invoice and such substantiating documentation and materials as Owner may have reasonably required, in U.S. dollars the amounts designated in such Invoice, plus any additions and less any deductions which may have become due under this Agreement, as reflected in the Invoice. Any amount of an Invoice that Owner disputes shall be resolved promptly in accordance with Article 28 . Once the dispute is resolved, Owner or Contractor, as applicable, shall pay any amount owing promptly after the date of the final resolution. If for any reason Owner fails to pay Contractor for all sums due and owing (other than sums that are the subject of a good faith dispute or permitted to be withheld pursuant to this Section 7.3(b) ) within thirty (30) Days after receipt of a substantiated Invoice which complies with the requirements of this Article, a late payment charge shall accrue that is based on an annual percentage rate (APR) equal to the Prime Interest Rate plus one percentage point (1%), payable each month or portion thereof that payment is delayed beyond such 30th Day.

(c) If any Services performed or Equipment supplied by Contractor is not in accordance with this Agreement, Owner may withhold from any Invoice the cost of rectification or replacement until such rectification or replacement has been completed, and, if Contractor is failing to perform any Services or provide any Equipment in accordance with this Agreement and Owner has so notified Contractor in writing, Owner may withhold the estimated value of such Work until it has been performed or provided in accordance with this Agreement.

7.4 Cash Flow .

(a) The Parties acknowledge and agree that, in arranging for financing for the Project and in managing its cash flow, Owner is relying on all Milestone Payments to be made in accordance with the Cash Flow in Exhibit F and that any significant excess over the amounts set forth in the Cash Flow Plan would adversely affect Owner’s ability to manage its cash flow. Accordingly and notwithstanding anything to the contrary in this Article (but subject to the last sentence of Section 7.4(b) below), unless otherwise mutually agreed in writing, Contractor shall not submit and Owner shall not be obligated to pay any Invoice with respect to Unit 6 or the Unit 5 Scrubber that would otherwise be due and payable in any given calendar month, calendar quarter or calendar year to the extent that such Invoice, together with all other Invoices issued during such calendar month, calendar quarter or calendar year, as applicable, exceeds the Cash Flow Plan for Unit 6 or the Unit 5 Scrubber, unless otherwise agreed to in writing by Owner, except that Owner shall pay all actual *** anytime when trued-up notwithstanding the Cash Flow Plan. Contractor shall not be entitled to any interest or late payment charge with respect to any amount that cannot be billed and is carried forward pursuant to this Section.

(b) The Parties acknowledge that nothing in this Section limits, and the Parties shall not construe this Section as limiting, Contractor’s ability to accelerate or substitute Milestones, provided that Owner shall not be obligated to pay more than the Cash Flow

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Plan for completion of any accelerated or substituted Milestone for any Unit 6 or the Unit 5 Scrubber. The parties also acknowledge and agree that nothing in the Section limits, and the Parties shall not construe this Section as limiting, Contractor’s ability to update the Schedule in accordance with Section 6.2 . In the event that the dates for the Milestones set forth in an updated Schedule forecast no longer match the dates for the corresponding Cash Flow Plan, the parties shall cooperate to revise the Cash Flow Plan to match as closely as possible the updated Schedule to the extent that such revisions will not adversely impact the ability of Owner to arrange for financing for the Project and to manage its cash flow as contemplated by this Section.

7.5 Final Payment . Upon achievement of Final Completion of Unit 6 or the Unit 5 Scrubber, Contractor shall submit to Owner an invoice for the final Milestone Payment and other payments due under this Agreement with respect to Unit 6 or the Unit 5 Scrubber (the “ Final Payment Invoice ”) which shall set forth all remaining amounts due to it pursuant to this Agreement with respect to Unit 6 or the Unit 5 Scrubber. When submitting the applicable Final Payment Invoice, Contractor shall submit a written discharge, in form and substance reasonably satisfactory to Owner, confirming that the total of the applicable Final Payment Invoice represents full and final settlement of all monies due to Contractor under this Agreement with respect to Unit 6 or the Unit 5 Scrubber. If requested by Owner, the applicable Final Payment Invoice shall also include a waiver (or a bond if a Lien exists to indemnify Owner against such Lien) of any Liens; provided , that the waiver or bond shall be conditioned on Contractor receiving payment pursuant to such Final Payment Invoice. The procedures set forth in Section 7.3 above (including application of any late payment charge) shall be followed for payment of the applicable Final Payment Invoice, and Owner shall be entitled to offset against any invoice or Final Payment Invoice any undisputed amounts owing by Contractor to Owner under this Agreement with respect to Unit 6 or the Unit 5 Scrubber, including any undisputed Liquidated Damages as may be applicable.

7.6 Certification by Contractor . In each Invoice, Contractor shall certify as follows:

“There are no known Liens (or such Liens are bonded over) outstanding at the date of this invoice, all amounts that are due and payable to any third party (including Subcontractors) with respect to the Work as of the date of this invoice have been paid or are included in the amount requested in this invoice, and, except for those bills not paid but so included and amounts disputed between Owner and Contractor, there is no known basis for the creation of any Liens except in respect to payments to Subcontractors withheld for proper reasons. Contractor hereby waives and releases, to the extent of the receipt of payment requested in this invoice, any right to any Lien with respect to payment for such portion of the Work included in this invoice.”

7.7 No Acceptance by Payment. Owner’s payment of any invoice, including a Final Payment Invoice, does not constitute approval or acceptance of any item or cost in that invoice nor shall be construed to relieve Contractor of any of its obligations under this Agreement.

7.8 Revenue from Use of Unit 6 and Facility . Owner shall be entitled to all revenue derived from or in connection with operation or use of Unit 6 and the Facility before (as contemplated in Section 10.4 ) and after the Substantial Completion Date for Unit 6.

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8.1 Change Requests . Without invalidating this Agreement, Owner may order changes in the Specifications or the Work consisting of additions, deletions or other revisions (each, a “ Change ”), including deletion of Unit 6 or the Unit 5 Scrubber (such deletion being only in the event: (x) Owner is denied the DENR permit for Unit 6, or (y) Owner has cancelled the Work associated with Unit 6 or the Unit 5 Scrubber and does not intend to proceed with another contractor for such Work); provided , that Owner may not delete all Work through this Article. Without limiting the generality of the foregoing, Owner may order:

(a) an increase or decrease in the quantity of any Work,

(b) any Work omitted,

(c) a Change in the character or quality or kind of any such Work,

(d) a Change in the levels, lines, position and dimensions of any part of the Project,

(e) execution of additional Services of any kind prudent for the completion of the Work, or

(f) a Change in any specified sequence or timing of the Services.

If Owner desires to make a Change, it shall submit a written proposal to Contractor describing the Change requested. Contractor shall promptly review Owner’s proposal and submit to Owner an estimate of the cost to develop a Change Order for such Change, such development costs to be determined on a time and materials basis utilizing the rates set forth in Exhibit K . If the estimated costs to develop the Change Order are reasonably acceptable to Owner, Owner shall promptly provide notice thereof to Contractor in writing. Upon receipt of such notice, Contractor’s Project Manager shall promptly notify Owner in writing, as soon as practicable, either by giving reasons why Contractor, either directly or indirectly through a Subcontractor, could not effect such Change (if this is the case) or by submitting a proposed Change Order, which shall include in reasonable detail:

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Contractor shall provide Owner such supporting documentation for the foregoing as Owner may reasonably request. Notwithstanding the foregoing, Contractor shall not be entitled to any increase in the Contract Price or any extension of the Schedule if such Change was necessary as a result of a breach by Contractor of this Agreement. Owner shall, as soon as practicable after receipt of such submittal and supporting documentation, respond with any comments or questions. Contractor shall not delay any Work while awaiting a response. If Owner responds with comments or questions, Contractor shall endeavor to address such comments or answer such questions as soon as practicable. If Owner decides not to proceed with a Change, it shall reimburse Contractor for its efforts in developing the estimates and other information regarding the potential Change, on a time and material basis utilizing the rates set forth in Exhibit K (such reimbursement to be either outside the Contract Price or through a separate Change Order); provided , that Owner shall only be required to reimburse Contractor if Contractor has complied with the cost proposal requirements set forth above. If Owner wishes to proceed with the Change, Owner shall issue a written order to Contractor authorizing the Change and setting forth any revisions to this Agreement necessary to effect the Change (the “ Change Order ”). If Contractor refuses to accept such necessary revisions in the Change Order, Owner shall be entitled to require Contractor to continue to perform its obligations hereunder as would be modified by the Change Order; provided , that, if Owner requires Contractor to so perform, (x) the Parties shall resolve the Dispute over the necessary revisions in accordance with the dispute resolution procedures set forth in Article 28 and (y) if the Change requires additional or disputed Work, Owner shall continue to pay Contractor pursuant to the payment terms hereof based, subject to resolution of the Dispute pursuant to Article 28 , on the time and materials rates set forth in Exhibit K . Once the Dispute is resolved, any amount owing will be paid within thirty (30) Days after the date of resolution.

If Contractor experiences an increase in costs or a delay in Contractor’s ability to perform the Work due to a delay in the delivery of any Owner Equipment or a delay resulting from a defect in any Owner Equipment or a breach of the Owner Equipment Contracts by the suppliers of the Owner Equipment, and such delay or defect is not the result of Contractor’s failure to comply with the requirements of this Agreement, Contractor shall be entitled to a Change and an equitable adjustment in the Contract Price and/or the Schedule.

Contractor shall have the right to request a Change but shall have no right to require a Change which is not contemplated by this Agreement without the prior written consent of Owner. If Contractor determines that a Change is necessary or advisable for any reason, including a Change in Law, Contractor shall give Owner written notice within twenty-one (21) Days thereof.

Owner may include in any Change Order provision that any additional Services shall be performed and any additional Equipment shall be provided on a time and materials basis. Contractor shall then be paid for such Work under the terms set out in Exhibit K . Contractor shall furnish to Owner such receipts or other vouchers as may be necessary to prove the amounts paid and labor performed and, before ordering materials, shall submit to Owner quotations for the same for its approval (such approval not to be unreasonably delayed or withheld). Promptly after the end of each month, Contractor shall deliver to Owner a priced statement of the labor and materials used during such month associated with such Change.

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9.1 Event of Force Majeure . The performance by Owner or Contractor under this Agreement shall be excused to the extent that such Party’s performance is delayed or prevented by reason of an event of Force Majeure. If a Party is or will be reasonably prevented from performing its obligations under this Agreement by an event of Force Majeure, such Party shall use all commercially reasonable efforts to remove the cause affecting such non-performance and to minimize any delay in or impact upon the performance of this Agreement or any damage to or other impact upon the Equipment or the Owner Equipment. If an event of Force Majeure occurs, the Parties shall negotiate ***, and (b) the Contract Price; provided , that Contractor shall *** on Change Orders which result from an event of Force Majeure.

9.2 Notice . If a Party is or will be reasonably prevented from performing its obligations under this Agreement by an event of Force Majeure, then it shall notify the other Party of the obligations, the performance of which is or will be prevented, and the nature and cause of the event in writing within thirty (30) Days after the notifying Party or its Project Manager becomes aware, through the exercise of reasonable diligence, of the event of Force Majeure. The Party affected by an event of Force Majeure shall provide the other Party with weekly updates (a) estimating its expected duration, the cost of any remedial action, and the probable impact on the performance of its obligations hereunder, (b) of the actions taken to remove or overcome the event of Force Majeure and (c) of the efforts taken to mitigate or limit damages to the other Party. The Party affected by an event of Force Majeure shall also provide written notice to the other Party when it ceases to be so affected.

9.3 Suspension; Termination Due to Force Majeure . If any event of Force Majeure by Contractor delays Contractor’s performance for an aggregate time period greater than *** consecutive Days, then Owner, in its sole and absolute discretion, shall have the right to terminate this Agreement without penalty upon payment of all due and owing payments in accordance with Article 23 . If any event of Force Majeure by Owner delays Contractor’s performance for an aggregate time period greater than *** consecutive Days, then Contractor, in its sole and absolute discretion, shall have the right to suspend performance and demobilize under this Agreement without penalty in accordance with Section 23.7 . If any event of Force Majeure delays Contractor’s performance in any three year time period for an aggregate time period greater than *** Days, then Contractor, in its sole and absolute discretion, shall have the right to terminate performance and demobilize under this Agreement without penalty, and such termination shall be deemed and treated as a termination under Section 23.4 .

10.1 Mechanical Completion Inspection . At least thirty (30) Days prior to the date upon which Contractor expects that Unit 6 or the Unit 5 Scrubber will satisfy the conditions for Mechanical Completion set forth in Section 11.1 , Contractor shall notify Owner in writing thereof and shall take necessary measures to allow a preliminary Mechanical Completion inspection of the relevant Unit 6 or the Unit 5 Scrubber to be conducted by Owner and its representatives. Contractor shall include with such notice documents and information prudent or convenient for Owner to determine whether Unit 6 or the Unit 5 Scrubber will satisfy the

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conditions for Mechanical Completion set forth in Section 11.1 . If Owner notifies Contractor of any deficiencies in the Work, Contractor shall immediately remedy such deficiencies as part of the Contract Price and provide Owner with the relevant documentary evidence of the correction.

10.2 Performance Testing . As soon as reasonably practicable following Mechanical Completion of Unit 6 or the Unit 5 Scrubber as set forth in Article 11 below, and after providing Owner at least five (5) Days prior written notice (unless Owner agrees to a shorter notice period or regulatory requirements necessitate a longer notice period), Contractor shall commence Performance Testing of Unit 6 or the Unit 5 Scrubber. All Performance Testing shall be conducted in accordance with the Testing Procedures developed in accordance with the requirements of Exhibit L-1 or Exhibit L-2 , as applicable, and approved by Owner (such approval not to be unreasonably withheld or delayed). Owner and its agents, representatives and invitees, including any independent third party inspector, shall have the right to attend and witness the Performance Testing. After the completion of each successful Performance Test, Contractor shall determine and submit to Owner, in writing and electronically, the raw data and completed results of such Performance Test, together with a comparison of such results to the applicable Performance Guarantees and a statement whether such results satisfy the applicable Performance Guarantees. By submitting such raw data and completed results, Contractor represents that such raw data, and the conversion of such raw data into the test results, is accurate. All Performance Testing shall be conducted in conformance with the applicable requirements of this Agreement and the Testing Procedures and with the required prior notification to Owner.

10.3 Satisfaction of Performance Testing . Within ten (10) Days after it receives the results for all of the Performance Testing, the underlying raw data and other information required by Section 10.2 , Owner shall respond in writing to Contractor stating whether (a) such Performance Testing was performed according to the Testing Procedures, and (b) the results of such Performance Testing satisfied the applicable Performance Guarantees, or, if Owner does not believe that is the case, Owner shall provide its reasons therefore. Upon its receipt of any such response from Owner that is not in the affirmative, Contractor shall promptly take whatever action shall be necessary to cure the defect in the Performance Testing, adjust or modify any of the Equipment, or request adjustment or modification of Owner Equipment in accordance with Section 3.1(a)(ii), or otherwise in order to satisfy the applicable Performance Guarantees so noted by Owner and shall promptly repeat the Performance Testing in accordance with Section 10.2 and this Section. If, following the Performance Testing, either: (a) Owner agrees that the Performance Guarantees have been satisfied and that the Performance Testing was performed according to the Testing Procedures, (b) the failure to meet any Performance Guarantees is attributable to the performance of Owner Equipment (other than due to Contractor’s obligations set forth in Section 3.1(a)(ii)(B)), or (c) Owner fails to respond within the time period set forth above, then the applicable Performance Guarantees shall be deemed to have been satisfied on the date of completion of such Performance Testing for the purposes of calculating Delay Liquidated Damages. Notwithstanding anything in this Article to the contrary, no agreement, confirmation, statement or otherwise of Owner relating to whether the Performance Testing was performed according to the Testing Procedures or whether the results of such Performance Testing satisfied the applicable Performance Guarantees shall relieve Contractor of any of its obligations under this Agreement. All costs that Contractor incurs in satisfying its obligations under this Article are the sole responsibility of Contractor and included in the Contract Price, except that

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Contractor shall be reimbursed through a Change Order for additional costs it may incur due to problems with Owner Equipment that are not the result of Contractor’s failure to comply with the requirements set forth in this Agreement (other than Section 3.1(a)(ii)(A)) , including for any repeat Performance Testing and the consumables and spare parts associated therewith.

10.4 Owner’s Right to Operate Prior to Satisfaction of Performance Guarantees . If Unit 6 or the Unit 5 Scrubber fails to satisfy the Performance Guarantees during the Performance Testing for Unit 6 or the Unit 5 Scrubber or fails to achieve Substantial Completion by the Guaranteed Substantial Completion Date for Unit 6 or the Unit 5 Scrubber and Unit 6 or the Unit 5 Scrubber can be operated in compliance with applicable Laws, Owner, in its sole discretion, shall have the right nonetheless to operate Unit 6 or the Unit 5 Scrubber and shall give Contractor written notice of its decision; provided ; that if by doing so Owner would cause material damage or deterioration to Unit 6 or the Unit 5 Scrubber, Contractor shall not be responsible for such material damage or deterioration to Unit 6 or the Unit 5 Scrubber to the extent caused by Owner’s election to operate prior to Contractor having an opportunity to cure any Defects. If Owner elects to operate Unit 6 or the Unit 5 Scrubber and, during such time, does not permit Contractor to cure the Defects necessary for Unit 6 or the Unit 5 Scrubber to satisfy the Minimum Performance Guarantees of Unit 6 or the Unit 5 Scrubber, then the Guaranteed Substantial Completion Date and Guaranteed Final Completion Date (if such dates have not passed) for Unit 6 or the Unit 5 Scrubber shall be extended on an equitable basis until such time as Owner tenders Unit 6 or the Unit 5 Scrubber to Contractor for further Services and Performance Testing, and Contractor shall be entitled to a Change Order for equitable schedule and/or price adjustment. Owner shall bear the risk of loss during such time as it operates Unit 6 or the Unit 5 Scrubber. Owner’s operation of Unit 6 or the Unit 5 Scrubber under this Section shall not reduce Contractor’s obligations under this Agreement, including Contractor’s obligation to cause Unit 6 or the Unit 5 Scrubber to satisfy the Specifications and Performance Guarantees for Unit 6 or the Unit 5 Scrubber, except for normal wear and tear, degradation, and operation not in accordance with Contractor’s instructions. In any event, if Owner elects to operate any Unit 6 or the Unit 5 Scrubber as contemplated in this Section 10.4 for more than *** Days, then Substantial Completion of Unit 6 or Unit 5 Scrubber shall be deemed to have been achieved on the day Owner made such election, and ***.

10.5 Failure of Component to Meet Performance Criteria . If Unit 6 or the Unit 5 Scrubber satisfies the Performance Guarantees of Unit 6 or the Unit 5 Scrubber under this Agreement but an item of Equipment within Unit 6 or the Unit 5 Scrubber does not meet its specific performance criteria as set forth in the Specifications, Contractor shall, in addition to its Warranty obligations hereunder, provide Owner with all commercially reasonably paid assistance in pursuing the available remedies against the Subcontractor which provided such Equipment. This assistance may include but shall not be limited to assistance in enforcing the repair, replacement or refurbishment of the Equipment by Subcontractor or the collection of monetary remedies from the Subcontractor for failure to meet its guarantees. The Owner shall be entitled to the benefits of any recovery from such Subcontractor.

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11.1 Mechanical Completion . “ Mechanical Completion ” shall be deemed to have occurred with respect to Unit 6 or the Unit 5 Scrubber upon the satisfaction of all of the following conditions:

(a) All materials, equipment and systems related to the safe start-up and testing of Unit 6 or the Unit 5 Scrubber shall have been constructed and installed in accordance with this Agreement, including the Specifications and applicable Laws, and in a manner that does not void any warranties, and the Equipment and Owner Equipment shall be mechanically and electrically sound, all required pre-operational testing shall have been satisfactorily completed, and all systems shall have been checked for alignment, lubrication, rotation and hydrostatic and pneumatic pressure integrity.

(b) All systems and components shall have been flushed and cleaned out as necessary, and the Equipment and Owner Equipment shall be ready to support the commencement of Performance Testing;

(c) The Parties shall have agreed upon the Testing Procedures;

(d) For Unit 6, Contractor shall have synchronized Unit 6 to the transmission grid as described in Exhibit A ;

(e) The Equipment and Owner Equipment shall be capable of being tested in accordance with Exhibit L without damage thereto (including any portion of the Facility) or to any property or injury to any Person and in compliance with all applicable Laws and all permits and licenses required by such Laws;

(f) Contractor shall have provided the applicable Documentation that is needed to start-up, operate and maintain Unit 6 and the Project (including the Project Manuals), which Documentation shall have been approved, in the reasonable determination of Owner, as adequate for the start-up, operation and maintenance of Unit 6 and the Project (such approval not to be unreasonably withheld or delayed);

(g) Contractor shall have provided the training of Owner’s personnel and representatives as required by Exhibit A ; and

(h) Contractor shall have delivered to Owner a certificate signed by Contractor certifying that all of the preceding conditions in this Section have been satisfied.

Contractor shall not commence Performance Testing of Unit 6 or the Unit 5 Scrubber until all of the above conditions have been satisfied with respect to Unit 6 or the Unit 5 Scrubber and Contractor shall have provided the required prior notice to Owner of the Performance Testing and given Owner an opportunity to attend.

11.2 Substantial Completion . “ Substantial Completion ” shall be deemed to have occurred with respect to Unit 6 or the Unit 5 Scrubber upon the satisfaction of all of the following conditions:

(a) Mechanical Completion of Unit 6 or the Unit 5 Scrubber shall have been achieved;

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(b) Unit 6 or Unit 5 Scrubber shall be capable of being operated in accordance with the Specifications without damage to Unit 6 or the Unit 5 Scrubber, the Facility or to any property or injury to any Person and in compliance with all Owner Permits, Laws and orders of all Government Authorities then in effect;

(c) Contractor shall have completed the initial Performance Testing of Unit 6 or Unit 5 Scrubber and the results of such initial Performance Testing shall have satisfied the Minimum Performance Guarantees of Unit 6 or Unit 5 Scrubber, all according to the Testing Procedures and the requirements of Article 10 ;

(d) Contractor shall have completed the performance of the Services with respect to Unit 6 or the Unit 5 Scrubber according to all of the provisions of this Agreement, with the exception of those items specified in the Substantial Completion Punch List with respect to Unit 6 or the Unit 5 Scrubber, which Contractor shall have prepared and for which Contractor shall have received approval from Owner (such approval not to be unreasonably withheld or delayed);

(e) Contractor shall have delivered to Owner the Documentation relating to Unit 6 or the Unit 5 Scrubber that Contractor is required to deliver to Owner pursuant to Exhibit A ; and

(f) Contractor shall have delivered to Owner a certificate signed by Contractor certifying that all of the preceding conditions in this Section have been satisfied.

Upon the satisfaction of all of the foregoing conditions, Owner shall accept Unit 6 or the Unit 5 Scrubber, subject to Final Completion of Unit 6 or the Unit 5 Scrubber according to Article 11 , by delivering to Contractor notice of that acceptance within a reasonable time, and Contractor shall turn over risk of loss and care, custody, control and operation of Unit 6 or the Unit 5 Scrubber to Owner. For the purposes of calculating Delay Liquidated Damages, the date upon which Contractor submits the certifying notice required by this Section 11.2 (if such notice is accurate) shall be deemed the Substantial Completion Date with respect to Unit 6 or the Unit 5 Scrubber.

11.3 Final Completion . “Final Completion” shall be deemed to have occurred for Unit 6 or for the Unit 5 Scrubber upon the satisfaction of all of the following conditions for Unit 6 or the Unit 5 Scrubber:

(a) for Unit 6 or the Unit 5 Scrubber, Contractor shall have achieved all conditions for Substantial Completion of Unit 6 or the Unit 5 Scrubber;

(b) Contractor shall have completed the Performance Testing of Unit 6 or Unit 5 Scrubber and either (i) all Performance Guarantees of Unit 6 or the Unit 5 Scrubber shall have been satisfied according to the Testing Procedures, or (ii) Contractor shall have satisfied all of the Make Right Performance Guarantees of Unit 6 or the Unit 5

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Scrubber and shall have paid to Owner Performance Liquidated Damages as required by Article 12 for those guarantees that allow a performance buy-down;

(c) The performance of the Services (except for Services relating to any warranty Work) shall be one hundred percent (100%) complete, including the Reliability Testing and the completion (or buying down) by Contractor of all items on the Substantial Completion Punch List with respect to Unit 6 or the Unit 5 Scrubber in accordance with this Agreement;

(d) Contractor shall have delivered to Owner the Documentation Contractor is required to deliver to Owner pursuant to Exhibit A as of the Final Completion Date for Unit 6 or the Unit 5 Scrubber;

(e) There shall exist no Default of Contractor and no event which, with the passage of time or the giving of notice or both, would be an Default of Contractor; and

(f) Contractor shall have delivered to Owner a certificate signed by Contractor certifying that all of the preceding conditions in this Section have been satisfied.

12.1 Delay Liquidated Damages .

(a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Contractor does not achieve Substantial Completion of Unit 6 by the Guaranteed Substantial Completion Date for Unit 6 (as the Guaranteed Substantial Completion Date for Unit 6 may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, if Contractor does not achieve Substantial Completion of Unit 6 by that date, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy for such delay shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day that Substantial Completion of Unit 6 is delayed beyond the Guaranteed Substantial Completion Date for Unit 6; provided , that in no event shall the aggregate Delay Liquidated Damages for Unit 6 exceed its Delay Liquidated Damages Cap.

(b) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if (i) Unit 5 Scrubber Tie-In does not commence by the Guaranteed Tie-In Commencement Date, (ii) Contractor does not complete the successful tie-in of the Unit 5 Scrubber by the Guaranteed Tie-In Completion Date or (iii) after the successful Tie-In of the Unit 5 Scrubber, Contractor does not achieve Substantial Completion of the Unit 5 Scrubber by the Guaranteed Substantial Completion Date (in each case, as the Guaranteed Tie-In Commencement Date, the Guaranteed Tie-in

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Completion Date or the Guaranteed Substantial Completion Date of the Unit 5 Scrubber, as applicable, may be extended due to Force Majeure, Owner caused delays, differing site conditions, discovery of Hazardous Materials, Changes in Law, or as otherwise contemplated in this Agreement), and, accordingly, upon the occurrence of either event, subject to Section 12.1(c) below, Owner’s sole and exclusive remedy therefore shall be to recover from Contractor as liquidated damages, and not as a penalty, the Delay Liquidated Damages for each Day after the Guaranteed Tie-In Commencement Date that Unit 5 Scrubber Tie-In does not commence, each Day after the Guaranteed Tie-In Completion Date that the successful Tie-In of the Unit 5 Scrubber has not been achieved, and, after the successful Tie-In of the Unit 5 Scrubber has been achieved, each Day after the Guaranteed Substantial Completion of the Unit 5 Scrubber that Substantial Completion of the Unit 5 Scrubber is not achieved, as applicable; provided , that in no event shall the aggregate Delay Liquidated Damages for the Unit 5 Scrubber exceed its Delay Liquidated Damages Cap. The Parties hereby agree that the Delay Liquidated Damages payable pursuant to this Section 12.1(b) shall not be duplicative. By way of example, if Contractor is assessed Delay Liquidated Damages due to the commencement of Unit 5 Scrubber Tie-In on a date that is two (2) days after the Guaranteed Tie-In Commencement Date, Contractor shall not be liable for Delay Liquidated Damages for the same two (2) day delay in completing Unit 5 Scrubber Tie-In or in achieving Substantial Completion of the Unit 5 Scrubber.

(c) Contractor shall have no liability or obligation to pay Delay Liquidated Damages to Owner hereunder for any delay in Contractor’s performance of the Work to the extent attributable to the performance of any Owner Equipment, unless such delay is the result of Contractor’s failure to comply with the requirements set forth in this Agreement.

12.2 Performance Liquidated Damages .

(a) The Parties agree that it would be extremely difficult and impracticable under presently known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Unit 6 or the Unit 5 Scrubber does not meet the corresponding Performance Guarantees on or before the Guaranteed Final Completion Date for Unit 6 or the Unit 5 Scrubber, and, accordingly, and subject to Section 12.2(c) below, Owner’s sole and exclusive remedy for such failure shall be to recover from Contractor as liquidated damages, and not as a penalty, the applicable Performance Liquidated Damages; provided , however , that in no event shall the aggregate Performance Liquidated Damages for Unit 6 or the Unit 5 Scrubber exceed the respective Performance Liquidated Damages Cap.

(b) Notwithstanding anything set forth in Section 12.2(a) to the contrary, Contractor shall have the right, exercisable by written notice to Owner, to delay the payment of Performance Liquidated Damages by Contractor with respect to Unit 6 or the Unit 5 Scrubber and to continue to use all commercially reasonable efforts to achieve the Performance Guarantees of Unit 6 or the Unit 5 Scrubber for a period of up to *** after the Guaranteed Final Completion Date for Unit 6 or the Unit 5 Scrubber.

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(c) Contractor shall have no liability or obligation to pay any Performance Liquidated Damages to Owner hereunder for the failure to meet any Performance Guarantee to the extent that such failure is attributable to the performance of any Owner Equipment, unless such failure is the result of Contractor’s failure to comply with the requirements set forth in Section 3.1(a)(ii)(B) .

12.3 Early Completion Bonus . Owner shall pay Contractor the Early Completion Bonus for Unit 6 for Contractor’s early achievement of Substantial Completion of the Work for Unit 6 as compared to the Guaranteed Substantial Completion Date for Unit 6. Contractor shall only be entitled to such Early Completion Bonus if the Work meets the Minimum Performance Guarantees for Unit 6 at the time of Substantial Completion of Unit 6.

12.4 Payment . Unless disputed in good faith, the Liquidated Damages specified in Section 12.1 , Section 12.2 and the Bonus specified in Section 12.3 shall be due and payable within thirty (30) Days after written demand by Owner or Contractor, as the case may be. Any undisputed Liquidated Damages or Bonus that remain unpaid after the expiration of such ten-Day period shall bear interest at the Prime Interest Rate plus 1% per annum or the highest rate allowed by law, whichever is less. If any Liquidated Damages or Bonus are disputed by either Party, any Liquidated Damages or Bonus that are determined to be payable pursuant to the resolution of such dispute in accordance with this Agreement shall also bear interest from the expiration of the ten-Day period referred to above at the Prime Interest Rate plus 1% per annum or the highest rate allowed by law, whichever is less. Notwithstanding the assessment of interest, and in addition to its other rights and remedies, Owner and Contractor shall have the right to offset the amount of any unpaid Liquidated Damages or Bonus plus interest against any amounts due or that may become due to Contractor or Owner (as the case may be) under this Agreement.

13.1 Services Warranty Period . Contractor warrants that the Services will be performed in a professional and workmanlike manner, will conform to the requirements of this Agreement, including the requirements set forth in Section 3.1(a)(ii) , and will reflect competent professional knowledge and judgment. For Unit 6 and the Unit 5 Scrubber, if any portion of the Services fails to comply with this warranty obligation and Contractor is so notified in writing prior to *** after the respective Substantial Completion Date (the “ Services Warranty Period ”), Contractor will promptly re-perform such portion of the Services without additional compensation from Owner or, if re-performance is impossible or commercially impracticable, Owner and Contractor shall meet and discuss in good faith an equitable way to resolve such matter in order to place Owner in as good a position as Owner would have been in had there been no such breach of the warranty obligation. If the Parties are unable to resolve such matter in a manner reasonably acceptable to both Parties, either Party may initiate the Dispute resolution procedures set forth in Article 28 .

13.2 Equipment Warranty Period . Contractor warrants that the Equipment furnished to Owner will be free from Defects in workmanship and material and will conform to this Agreement, including the Specifications, for a period of *** from the earlier of (a) the date care, custody and control to the Equipment is transferred to Owner, or (b) the date Substantial Completion of Unit 6 or the Unit 5 Scrubber is achieved. Notwithstanding the foregoing, the Equipment Warranty Period for each item on a Substantial Completion Punch List shall

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commence upon Contractor’s completion (or buying down) of, and Owner’s acceptance of, the particular Punch List item and shall continue until the *** thereof (the warranty periods set forth in this Section are, collectively, referred to as the “ Equipment Warranty Period ”).

13.3 Extension of Warranty Periods . If a Defect (as defined in Section 13.4 ) is discovered within the Services Warranty Period or Equipment Warranty Period, as applicable, and such Defect is not cured to the reasonable satisfaction of Owner, then the Services Warranty Period or Equipment Warranty Period, as applicable, shall be extended to the *** of the date such Defect was corrected, but only with respect to the Equipment or Service that was the subject of such Defect. In no event shall any Services Warranty Period or Equipment Warranty Period for Unit 6 or the Unit 5 Scrubber extend beyond *** from the Substantial Completion Date for Unit 6 or Unit 5 Scrubber, respectively.

13.4 Defects . If, within the Services Warranty Period or Equipment Warranty Period, as applicable, deviations from, breaches of, or failures of the foregoing warranties (“ Defects ”) in the Equipment or Services are discovered by Owner or Contractor, Contractor shall, commence within a timely manner upon being discovered or upon notice from Owner to correct those Defects, including re-performance or re-provision of any affected portion of the Work and repair of any resulting damage, and shall demonstrate to Owner’s reasonable satisfaction that the Defects have been properly corrected. Warranty work critical to the operation of the Facility shall be performed at such time and in such manner as to take into consideration Owner’s requirements to avoid disruption of Owner’s operations at the Facility. Contractor shall be responsible for, and shall pay as and when due for, all inspection, removal, packaging, transportation, installation, consulting and other costs for the correction of Defects. Owner shall provide Contractor with reasonable access at the Site to correct Defects; provided , that any such access shall be restricted, and subject to such conditions, as Owner may have instituted generally for its contractors.

13.5 Responsibility for Warranty Work . Contractor shall have primary liability with respect to the warranties in this Agreement, whether or not any Defect or other matter is also covered by a warranty of a Subcontractor or other third party, and Owner need only look to Contractor for corrective action. In addition, Contractor’s warranties shall not be restricted in any manner by any warranty of a Subcontractor or other third party, and the refusal of a Subcontractor or other third party to provide or honor a warranty or to correct defective, deficient or nonconforming Work shall not excuse Contractor from its liability on its warranties to Owner. Contractor shall have no responsibility to perform any warranty Work with respect to Owner Equipment unless any Defect with respect to such Owner Equipment is attributable to Contractor’s failure to comply with the requirements set forth in Section 3.1(a)(ii)(B).

13.6 Conditions of Warranty . To the extent that any failure by Contractor to meet the foregoing warranties is the result of (a) Owner’s failure to receive, handle, store, maintain, or install the Equipment furnished in a reasonable manner or in accordance with any reasonable Contractor requirements conveyed to Owner, (b) Owner’s failure to operate the Equipment within its rating or operated and maintained in a reasonable manner consistent with Contractor’s or Equipment vendors’ instructions, (c) Owner subjecting the Equipment to abuse or misuse, or (d) normal wear and tear or corrosion inherent in the operation of the Facility, then, to that extent, Contractor shall be excused for said failure.

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13.7 Title Warranty . Contractor represents and warrants that it shall provide to, and, effective as of the applicable date set forth in Section 22.1 , hereby assigns and transfers to, Owner good, marketable and exclusive title to the Equipment, free and clear of all Liens (other than Liens created solely by the actions of Owner); provided , however , that Contractor shall not be required to assign and transfer to Owner good, marketable and exclusive title to certain intellectual property to be licensed to Owner as provided in Article 19 , but Contractor shall, and hereby does, grant, effective upon the date on which Owner takes over care, custody and control of the Facility, to Owner the licenses to such intellectual property as described in Article 19 . In the event of any nonconformity with or breach of this warranty, Contractor shall, as part of the Fixed Prices, promptly, and in any event within thirty (30) Days thereof, remove any Lien on any of such Equipment or otherwise provide Owner good, marketable and exclusive title to such Equipment, free and clear of all Liens; provided , that if Contractor is unable within such thirty (30) Day period to remove such Lien, Contractor may post a bond in an amount (and otherwise in form and substance) reasonably acceptable to Owner so long as Contractor continues to use all commercially reasonable efforts to remove such Lien as promptly as practicable. This Section shall survive the expiration, cancellation or termination of this Agreement.

13.8 Intellectual Property Warranty . Contactor warrants that the Services performed by Contractor or its Subcontractors, the Equipment and the Documentation, or any part of any of the foregoing, shall not infringe or constitute a misappropriation of any right of any third party, including, without limitation, any copyrights, mask work rights, patent rights, trademark rights, trade secret rights or confidentiality rights.

13.9 Warranty Assistance . During the Warranty Periods, Owner shall, without cost to Contractor: (a) provide Contractor reasonable working access (subject to such restrictions and conditions as Owner may have instituted generally for its contractors) to the Site to remove, disassemble, replace and reinstall any Equipment with respect to which a Defect exists; (b) remove, to the extent erected by Owner or a third party and not included in, or required by, the Specifications and to the extent necessary to permit Contractor to perform its warranty obligations, any material or structures; and (c) provide Contractor reasonable access to Facility personnel as are reasonably necessary to the extent consistent with personnel job classifications and subject to availability to assist Contractor in the performance of its warranty obligations.

13.10 Exclusive Warranties . THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE). Correction of Defects in the manner and within the period of time provided herein shall constitute complete fulfillment of all the liabilities of Contractor with respect to such Defect, whether the claims by Owner are based in contract, in tort (including negligence and strict liability), or otherwise.

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14.1 Contractor’s Indemnity . Contractor shall indemnify and hold harmless Owner, its parents and Affiliates, and their respective partners, shareholders, members, agents, employees, officers, directors, and lenders and Financial Institutions (collectively, the “ Owner Indemnitees ”) from and against:

(i) any and all Third Party Claims and all damages, liabilities, losses, costs and expenses associated therewith (including attorneys’ fees and other professionals’ fees) for any injury of or death to persons, damage to or destruction of third party property, contamination of the environment or injury to natural resources, whether contractual, in tort, or as a matter of strict liability or liability imposed by Law, to the extent any of the foregoing arise out of the negligence or willful misconduct or wanton acts or omissions of Contractor, any Subcontractor or any of their respective employees, agents or third parties over which either has reasonable control during the performance of the Services, including any Services during any Warranty Period, and

(ii) any and all claims, demands or causes of action of every kind and character by any Person and all damages, liabilities, losses, costs and expenses associated therewith (including attorneys’ fees and other professionals’ fees) for:

14.2 Owner’s Indemnity . Owner shall indemnify and hold harmless Contractor, its parents and Affiliates and their respective partners, shareholders, members, agents, employees, officers, directors, and lenders (collectively, the “ Contractor Indemnitees ”) from and against:

(i) any and all Third Party Claims and all damages, liabilities, losses, costs and expenses associated therewith (including attorneys’ fees and other professionals’ fees) for any injury of or death to persons, damage to or destruction of third party property, contamination of the environment or injury to natural resources, whether contractual, in tort, or as a matter of strict liability or liability imposed by Law, to the extent any of the foregoing arise out of, in whole or in part, the negligence or willful misconduct or wanton acts or omissions of Owner or any of its employees, agents or third parties over which it has reasonable control during the performance of the Services, including any Services during any Warranty Period; and

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(ii) any and all claims, demands or causes of action of every kind and character by any Person and all damages, liabilities, losses, costs and expenses associated therewith (including attorneys’ fees and other professionals’ fees) for:

14.3 Intellectual Property Indemnity . Contractor shall, as part of the Fixed Prices, defend, indemnify and hold harmless Owner Indemnitees against any and all damages, liabilities, losses, costs and expenses (including attorneys’ fees and other professionals’ fees) associated with any claims, suits or proceedings brought against any of the Owner Indemnitees based on an allegation that any Services performed by Contractor or its Subcontractors, the Documentation or the Equipment, or any part thereof, or use thereof, constitutes an infringement or misappropriation of any right of any third party, includ