FIRST AMENDED AND RESTATED ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

EXHIBIT 10.1

PORTIONS OF THIS EXHIBIT MARKED BY (“***”) HAVE BEEN OMITTED PURSUANT

TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE

SECURITIES AND EXCHANGE COMMISSION

FINAL EXECUTION VERSION

FIRST AMENDED AND RESTATED

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

by and between

DUKE ENERGY CAROLINAS, LLC, as Owner

and

SHAW NORTH CAROLINA, INC., as Contractor

for the

CONSTRUCTION OF A SUPERCRITICAL COAL-FIRED

GENERATION FACILITY IN CLIFFSIDE, NORTH CAROLINA

Dated February 20, 2008

Table of Contents

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EXHIBITS

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FIRST AMENDED AND RESTATED

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

This FIRST AMENDED AND RESTATED ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (the “Agreement” ) is entered into as of the 20th day of February, 2008 (the “Amendment 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 SHAW NORTH CAROLINA, INC., a Shaw Group Company, a North Carolina 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, Owner and Stone and Webster National Engineering, P.C. ( “SWNE” ) are parties to that certain Engineering, Procurement and Construction Agreement, dated as of July 11, 2007 (the “Original EPC Agreement” ), pursuant to which Owner engaged SWNE to perform the engineering, procurement, construction and commissioning of the following systems:

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

WHEREAS , pursuant to that certain Assignment and Assumption Agreement, dated as of the date hereof and entered into immediately prior to the execution of this Agreement, (i) SWNE has assigned to Contractor all of its right, title, interest and obligations in, to and under the Original EPC Agreement and all of its right, title and interest in the Documentation (as defined in the Original EPC Agreement), including all intellectual property rights relating thereto, and (ii) Contractor accepted such assignment and assumed and agreed to pay and otherwise undertake, observe, perform and discharge in accordance with its terms all of SWNE’s obligations and other liabilities under, arising out of or relating to the Original EPC Agreement;

WHEREAS , the Original EPC Agreement provided *** process whereby the Parties agreed to ***;

WHEREAS , the Parties agreed to *** and, as a result, the Parties have *** set forth herein; and

WHEREAS , the Parties hereto desire to amend and restate the Original EPC Agreement in the manner set forth herein in order to reflect ***, determine the process pursuant to which *** and make the other changes set forth herein.

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).

***

“ *** Work” shall mean the scope of Work performed by Contractor hereunder for which the *** Costs apply.

“Alstom Contract ” shall mean the Engineering, Fabrication and Delivery Agreement for the Cliffside Steam Station, dated as of ***, by and between Owner and Alstom Power Inc. for the purchase of one (1) wet flue gas desulfurization system for the Unit 5 Scrubber and one (1) Air Quality Control System for Unit 6.

“Amendment Date” shall have the meaning set forth in the first paragraph of this Agreement.

*** shall mean ***.

“Bulk Materials” shall mean those items of material and Equipment described in Table I-5e of Exhibit I .

“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 .

*** shall mean ***.

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

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“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). Notwithstanding the foregoing, the issuance of the Facility Air Permit subsequent to the Effective Date shall not be considered a Change in Law for any purpose hereunder.

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

“Clarifier Refurbishment” shall have the meaning set forth in Table I-4c of Exhibit I .

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

“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 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 Agreement” shall mean Owner Purchase Order FHP01564 issued pursuant to the ***.

“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.

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*** shall mean ***.

“Contract Price” shall mean ***.

“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 whom 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 whom Contractor designates in Exhibit G to represent Contractor at the Site.

“Control” shall mean (a) 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 (b) the ownership, directly or indirectly, of fifty percent (50%) or more of the equity interest in a Person.

*** shall mean for any month, a comparison of the total *** incurred by Contractor during such month in the performance of each type of ***, as described in each of *** (which shall include reasonable detail showing the build-up of such total ***) against the applicable *** for such type of *** for such month as set forth in ***, as applicable.

*** shall mean, for any month, a comparison of the total *** and which are incurred in the performance of that *** during such month against the *** during such month as set forth in ***.

*** shall mean, for any month, a comparison of the total *** incurred by Contractor during such month in the performance of each type of ***, as described in each of *** (which shall include reasonable detail showing the build-up of such total ***), against the applicable *** for such type of *** for such month as set forth in ***, as applicable, and shall contain a certification as to whether any such *** has exceeded ***.

*** shall mean ***.

*** shall mean ***.

“*** Comparison” shall mean, as the context may require, the Cost Comparison — ***, the Cost Comparison — ***, the Cost Comparison — *** the Cost Comparison — *** or the Cost Comparison — ***.

*** shall mean ***.

*** shall mean ***.

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*** shall mean ***.

*** shall have the meaning set forth in Section 3.2 of Exhibit I .

*** shall mean ***.

*** shall mean ***.

*** shall mean ***.

*** shall have the meaning set forth in Section 3.2 of Exhibit I .

“Craft Labor” shall mean, with respect to each of Unit 6 and the Unit 5 Scrubber, respectively, those items of Contractor craft labor as set forth in more detail in Table I-5c of Exhibit I .

“Craft Labor Costs” shall mean for each of Unit 6 and the Unit 5 Scrubber, respectively, those amounts that are incurred by Contractor in providing *** for Unit 6 or the Unit 5 Scrubber, as applicable.

“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;

(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 Unit 5 Tie-In Commencement Date until the *** Day after the Guaranteed Unit 5 Tie-In Commencement Date that Unit 5 Scrubber Tie-In has not commenced;

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(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 Unit 5 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 Unit 5 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 .

“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

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(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 July 11, 2007, which is the date of execution by the Owner and SWNE of the Original EPC Agreement.

“Electrical Output” shall mean the net electrical power, as measured at the high side of the main step-up transformer, which 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 those items of material, Equipment and associated Subcontractor services (e.g., transportation, technical assistance, warranty services, etc.) as defined in *** of ***.

“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 .

*** shall mean ***.

*** shall mean ***:

(a) ***

(b) ***

“Facility Air Permit” shall mean Permit No. 04044T28 issued by the North Carolina Department of Environmental and Natural Resources (NCDENR) Division of Air Quality to Owner, effective as of January 29, 2008.

*** shall mean ***.

“FERC” shall mean the Federal Energy Regulatory Commission, and its successors.

*** shall mean ***.

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*** shall mean those costs for each of the Unit 5 Scrubber and Unit 6, respectively, incurred by Contractor in performance of *** for the Unit 5 Scrubber and Unit 6, as applicable, ***.

“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 ***.

“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

(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

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that Party has control). For the avoidance of doubt, except as otherwise expressly provided in Exhibit I , 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.

*** shall mean, with respect to each of Unit 6 or the Unit 5 Scrubber, respectively, the Work as set forth in more detail in *** of ***.

*** or *** shall mean:

(a) ***

(b) ***

“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” shall mean 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 Certificate of Public Convenience and Necessity (CPCN), the Facility Air Permit and other work permits, environmental permits, licenses and construction permits.

“Gross Negligence” shall mean a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both.

*** shall mean the ***, dated as of ***, which has been executed and delivered by *** to Owner ***, and as attached hereto as ***.

“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 by Change Order.

“Guaranteed Substantial Completion Date” shall mean:

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

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(b) With respect to Unit 6, ***;

as such dates may be adjusted by Change Order.

“Guaranteed Unit 5 Tie-In Commencement Date” shall mean ***, as such date may be adjusted by Change Order.

“Guaranteed Unit 5 Tie-In Completion Date” shall mean ***, as such date may be adjusted 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 “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, 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 .

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“ Hitachi Contract ” shall mean the Engineering, Fabrication and Delivery Agreement for the ***, dated as of ***, by and between Owner and Hitachi Power Systems America, Ltd. for the purchase of one new single-reheat boiler.

*** shall mean, with respect to each of Unit 6 or the Unit 5 Scrubber, those items as set forth in more detail in Table I-5a of Exhibit I .

*** shall mean ***.

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

*** shall mean those amounts for each of the Unit 5 Scrubber and Unit 6, respectively, that are incurred by Contractor in performance of the *** at the Site for the Unit 5 Scrubber or Unit 6, as applicable.

*** shall mean, with respect to Unit 6 and the Unit 5 Scrubber, respectively, those items identified as such costs in more detail in Table I-2a of Exhibit I , examples of which include***.

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

*** shall mean ***.

“ *** 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

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Limits, but only to the extent that the failure to meet any such limits are attributable to Contractor’s scope of Work (with respect to Owner Equipment, only the Work as expressly set forth in Section 3.1(a)(ii)(B)) .

“Major Subcontractor” shall mean any Subcontractor who is engaged by Contractor: (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, ***.

“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 .

“Minimum Performance Guarantees” shall mean, to the extent that the failure to meet any such limit is attributable to Contractor’s scope of Work (but with respect to Owner Equipment, only the Work as expressly 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 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) .

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

“ Original EPC Agreement ” shall have the meaning set forth in the Recitals.

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

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

“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 has agreed 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.;

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(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 mean, collectively, the ***, the ***, the *** and any other contract executed directly between Owner and a third-party supplier of equipment, including the Owner Equipment, for the Project, as each may be amended or updated.

“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 .

“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 (but with respect to ***, only the Work as expressly 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 *** lbm/hr (all of which are achieved while meeting the Guaranteed Emission Limits of Unit 6);

as such may be adjusted 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 (but with respect to Owner Equipment, only the Work as expressly set forth in Section 3.1(a)(ii)(B)) :

(a) With respect to the operation of 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

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(b) With respect to the performance of the Air Quality Control System for Unit 6, the liquidated damages as expressly set forth in Section 9.0 of Exhibit L-2 ; and

(c) With respect to the performance of the Unit 5 Scrubber, the liquidated damages as expressly set forth in Table 5.1 of Exhibit L-1 .

“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.

“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 Facility Air Permit 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.

“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) .

“Prudent Industry Practice” shall mean those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to

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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 the United States.

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

*** shall have the meaning set forth in Table I-4d of Exhibit I .

“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 set forth in Exhibit L-3 .

“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 Key Schedule 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” or “ Small Diverse Suppliers ” 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) .

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

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“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 mean *** dated ***, executed and delivered by *** to Owner in the *** in support of *** .

“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.

*** shall mean those amounts for each of the Unit 6 and the Unit 5 Scrubber, respectively, that are incurred by *** in performance of the Work in connection with the items identified in *** of Exhibit I .

*** shall mean, with respect to Unit 6 and the Unit 5 Scrubber, respectively, those items of Work provided by the furnish and erect Subcontractors as identified in *** of Exhibit I for Unit 6 or the Unit 5 Scrubber, as applicable.

*** shall mean, as the context may require, *** for, each of the Unit 6 and the Unit 5 Scrubber, respectively, that are incurred by the *** in performance of the *** for Unit 6 or the Unit 5 Scrubber, as applicable.

“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).

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“Targeted 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 by Change Order.

*** shall mean ***:

(a)***

(b)***

as such amounts may be amended by Change Order in accordance with this Agreement and Exhibit I . ***.

“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.

“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 Contract ” shall mean the Engineering, Fabrication and Delivery Agreement, dated as of ***, by and between Owner and 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.

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“ 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) .

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. For all Major Subcontractors listed on Exhibit H , Contractor shall provide not less than *** prior notice to Owner prior to execution of such subcontracts. If, prior to execution of a subcontract with such Major Subcontractor listed on Exhibit H , Owner desires that Contractor engage an alternative approved Major Subcontractor in lieu of the Major 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 Major Subcontractor desired by Owner and the Major Subcontractor preferred by Contractor, plus any additional impacts to Schedule or warranties attributable to selecting the alternative Major Subcontractor in lieu of the preferred Major Subcontractor. If desired by Owner, Contractor shall engage such alternative approved Major Subcontractor but shall be entitled to a Change Order for the schedule, cost, warranty or other impacts in selecting the alternative Major Subcontractor.

(b) If Contractor desires to engage a Subcontractor that is not identified in Exhibit H as an approved Subcontractor, then, before Contractor enters into any contract with, or otherwise engages, such 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 Subcontractor

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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 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 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 Subcontractor available to perform such Services or provide such Equipment.

(c) 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.

2.4 Assignment of Subcontracts . All subcontracts between Contractor and its Subcontractors shall be in writing and, to the extent commercially reasonable, all subcontracts with Major Subcontractors shall 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.

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(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.

(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 the 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.

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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 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 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

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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 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 conditions 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

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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, 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 for Unit 6 .

(i) Until such time that Owner issues a Full Notice to Proceed with respect to Unit 6, 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 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. Each Limited Notice to Proceed for Unit 6 shall expire upon the earlier of (A) the date set forth in such Limited Notice to Proceed, (B) issuance of the Full Notice to Proceed for Unit 6 or (C) termination of this Agreement with respect to Unit 6 in accordance with Section 23.4(a) .

(ii) The Parties hereto acknowledge and agree that the Owner has entered into Owner Equipment Contracts for the Owner Equipment prior to the Amendment Date. In connection with the execution of this Agreement, the Owner hereby retains all of Owner’s obligations, rights, and remedies under each Owner Equipment Contract and with respect to the Owner Equipment obtained pursuant thereto.

(c) Work After Full Notice to Proceed . The Parties hereto acknowledge and agree that Owner issued a Full Notice to Proceed to Contractor with respect to the Unit 5 Scrubber on ***. Therefore, Contractor has received authorization to provide the full scope of Work relating to the Unit 5 Scrubber until such Work is completed unless this Agreement is earlier terminated with respect to the Unit 5 Scrubber in accordance with Section 23.4(a) . Upon the issuance by Owner of the Full Notice to Proceed with respect to Unit 6, such notice shall be deemed to be authorization for Contractor to commence the remainder of the Work relating to Unit 6 on the date set forth in such Full Notice to Proceed, and thereafter, Contractor shall perform the full scope of Work relating to Unit 6 until such Work is completed unless this Agreement is earlier terminated with respect to Unit 6 in accordance with Section 23.4(a) . Owner shall issue the Full Notice to Proceed with respect to Unit 6 no later than ***. If Owner fails to issue such Full Notice to Proceed by such time, such failure shall constitute, as Contractor’s sole and exclusive remedy, a Change, with respect to which Article 8 shall apply. 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.

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.

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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 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

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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, 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 delivered the plan to Owner on October 9, 2007 for Owner’s review and comment, and Contractor has incorporated Owner’s reasonable comments therein. Contractor has the right to rely on such approved October 9, 2007 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 no less than six (6) months prior to Substantial Completion of each of Unit 6 and the Unit 5 Scrubber, substantially complete versions of the Project Manuals for Unit 6 or the Unit 5 Scrubber (as applicable) that are sufficient for Contractor’s use in training Owner’s maintenance and operating personnel in respect thereof, and Contractor shall thereafter use such Project Manuals to train such Owner personnel.

3.9 Utility Use . Subject to Section 4.5 , from the Effective Date until the latest of Final Completion of either Unit 5 Scrubber and Unit 6, Contractor shall be responsible in connection with Contractor’s scope of Work for the temporary power distribution grid within the Site (from the Owner designated tie-in points), fuel (other than coal and fuel oil used for Commissioning, Performance Testing and operation), communication systems for Contractor’s temporary office facilities (including telephones for Owner’s staff), construction waste disposal, and wastewater disposal.

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3.10 Spare Parts .

(a) 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. 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. *** cost for procurement of such recommended *** spare parts *** not included in the Contract Price. The parties shall mutually determine the process for procuring and providing such additional spare parts. Owner shall make available for Contractor at no cost to utilize during start-up and testing, all spare parts acquired by Owner for the Equipment and Owner Equipment. ***.

(b) As of the Amendment Date and as part of the *** within the Contract Price, Contractor has agreed to procure two recommended operations and maintenance spare parts, which spare parts *** and the ***, as noted in more detail in Table I-4a of Exhibit I .

3.11 Subcontractor Presence . Within the Contract Price component for which the technical assistance is provided as set forth in more detail in Exhibit I, 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.

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3.14 Project Manuals . Contractor shall deliver to Owner the first draft of the Project Manuals for each of Unit 6 and the Unit 5 Scrubber no less than one hundred and eighty (180) Days prior to Substantial Completion of Unit 6 or the Unit 5 Scrubber (as applicable) in accordance with the requirements of this Agreement, with such first draft containing sufficient operational and technical information to allow Owner to develop related Facility operating and maintenance procedures in order for Contractor to provide operator training. Contractor shall deliver to Owner the final draft of such Project Manuals, in both hard copy and electronic format, prior to Final Completion of Unit 6 or the Unit 5 Scrubber (as applicable).

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. Such steps shall include the incident reporting to Owner station management as required by Article 24 herein.

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: (i) conditions bearing on access, egress, transportation, waste disposal, handling, lay down, parking and storage of materials; (ii) the availability of labor, water, electric power, other utilities and roads needed for construction; (iii) uncertainties of normal weather or other observable physical conditions at the Site; and (iv) 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

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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 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 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 C.F.R. § 52.219-8, Utilization of Small, Small Disadvantaged, and Women-Owned Small Business Concerns, and 48 C.F.R. § 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

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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 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, 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 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 ***), (iv) ***, (v) ***, (vi) ***, (vii) a statement of any significant issues which remain unresolved and Contractor’s recommendations for resolving the same, (viii) a summary of any significant Project events which are scheduled or expected to occur during the following thirty (30) Days, and (ix) all additional information reasonably requested by Owner (the “Monthly Progress Report” ).

(b) Attendance and Participation . From the Effective Date 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 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.

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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 the cost of such services shall be allocated to the Contract Price in accordance with the pricing component for which the Services are being performed. For example, if the housekeeping services are performed to remedy a problem with a ***, the Owner shall be entitled to ***. If the housekeeping services are performed to remedy a problem that would have been a ***, the costs for Owner to perform such services shall be counted towards the*** solely for the purpose of calculating ***.

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.

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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 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 Effective Date 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 such other fuel, ***.

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.

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.

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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 . The cost of conducting any test related to the Work shall be allocated to the Contract Price in accordance with the price component for which the Work is performed unless such test is clearly intended by or provided for in this Agreement as being the responsibility of Owner. 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 ***.

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.

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

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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. Unless the cause of such defective workmanship is shown to be the result of Gross Negligence or willful misconduct, the costs of such work carried out by Contractor under this Section shall be added to the Craft Labor Costs and shall be applied against the existing Cost Target — Craft Labor without a Change. If the cause of such defective workmanship is shown to be the result of Gross Negligence or willful misconduct of Contractor, Contractor shall bear the full costs of repair.

6.1 ***

6.2 Commencement of Work for Unit 6 and the Unit 5 Scrubber . Owner has issued the Full Notice to Proceed with respect to the Unit 5 Scrubber, and Contractor has commenced the performance of the Services with respect thereto and shall continuously and diligently fulfill its obligations under this Agreement with respect to the Unit 5 Scrubber through the Warranty Period. Owner has issued a Limited Notice to Proceed with respect to Unit 6, and Contractor has commenced the performance of the Services with respect thereto in a limited fashion. Upon issuance of the Full Notice to Proceed with respect to Unit 6, Contractor shall 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 *** and the Original EPC Agreement, which Work has already been paid by Owner under the *** and the Original EPC Agreement, 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 ***, in each case, in accordance with *** described in Exhibit I . ***.

6.4 Schedule Requirements; Updates . *** 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 detailed Schedule depicting all critical path activities 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

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Owner’s review and comment. On a monthly basis, Contractor shall provide Owner with any and all updates to the working Schedule, including any forecasted changes in the Schedule and the resulting effects on achieving the Key Schedule Milestones; provided, however, that no update of or revisions to the working copy of the Schedule shall be deemed to alter, revise or otherwise change the date for any Owner obligation, any Key Schedule Milestones, the Guaranteed Tie-In Date, the Guaranteed Substantial Completion Date or the Guaranteed Final Completion Date, all of which shall be amended only by a duly executed Change Order or amendment hereto. Owner shall be entitled to have access to the Schedule in order to input, track and update Owner’s and its subcontractors’ activities within the Schedule (including logic ties) and to review and generate reports related to the Schedule in accordance with the terms of this Agreement. *** The Key Schedule Milestones shall be provided in the Schedule in such a way as to support the achievement of Substantial Completion by the ***.

6.5 Enhanced Project Management Process .

(a) ***.

(b) ***.

(c) ***.

(d) ***.

(e) ***.

6.6 Unit 5 Scrubber Tie-In . Contractor shall perform Unit 5 Scrubber Tie-In in accordance with the Guaranteed Unit 5 Tie-In Commencement Date and Guaranteed Unit 5 Tie-In Completion Date, both as may be adjusted pursuant to a Change Order. Owner shall have the right to make adjustments to such outage schedule, including delaying or accelerating the Guaranteed Unit 5 Tie-In Commencement Date or the Guaranteed Unit 5 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. *** to such portion of the Site as Contractor may reasonably require to perform the following Work during the outage for the Unit 5 Scrubber Tie-In: (1) removal of blanking plates and (2) activation of the previously installed *** quick acting relief dampers, as set forth in more detail in Exhibit A .

7.1 Cash Flow Plan . ***:

(collectively, the ***).

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(b) 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 *** for which such Monthly Progress Report relates varies or is reasonably forecasted to vary by more than *** in each of *** from the aggregate amounts scheduled to be paid during such two-month period as reflected in *** or *** actually incurred by Contractor in performing the Work through the end of the month for which such Monthly Progress Report relates varies substantially (as determined by Owner in its reasonable discretion) from the amounts scheduled to be paid 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 any such forecasted variance), which revised forecast shall be reasonably acceptable to Owner, and Owner shall issue a Change Order to amend the *** to reflect such revised forecast; provided , that such revised forecast shall not result in any adjustment to the Contract Price except by Change Order. *** shall be equitably adjusted as a result of any delay in the Work, whether caused by an event of Force Majeure or breach of this Agreement by Contractor.

7.2 Payments of the Contract Price . In consideration of Contractor’s performance and provision of the Work and subject to this Article 7 , Owner shall pay to Contractor the Contract Price as provided in ***.

7.3 Invoicing .

(a)***, submit to Owner a ***, broken out by Unit 6 and the Unit 5 Scrubber, in accordance with*** for the aggregate amount that is due for such calendar month pursuant to the Cash Flow Plan and for which Contractor has not been paid (the “Invoice” ). Each Invoice shall include:

***.

***. Contractor shall make available such documentation and materials as Owner may reasonably require to substantiate Contractor’s right to payment of such Invoice.

(b) 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 make exceptions, if any, by providing Contractor with written notice within 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, by any payment pursuant to Section 7.3(c) below, make any correction or modification that should properly be made to any amount previously considered due.

(c) If Owner provides no exceptions within such time period set forth in Section 7.3(b) , Owner shall pay Contractor, within thirty (30) Days of receipt of such

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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(c) ) within thirty (30) Days of 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.

(d) 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.

(e) Each monthly Invoice shall include ***.

7.4 Cash Flow . The Parties acknowledge and agree that, in managing its cash flow, Owner is relying on all payments to be made *** in accordance with the Cash Flow Plan 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. ***, and the Parties shall not construe this Section as limiting, Contractor’s ability to accelerate or substitute *** updated Schedule forecast *** revise the Cash Flow Plan to match as closely as possible the updated *** to the extent that doing so will not adversely impact the ability of Owner 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 Cash Flow 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.

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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.

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) the DENR permit for Unit 6 is reversed or stayed on appeal, 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.

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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:

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.

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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.

8.2. Change Order Pricing . All Change Orders will be developed on an open book basis, and the Owner shall have the right to review the detailed cost estimates and assumptions for the Work to be included in the Change Order. For each Change Order, the Parties may agree to have Contractor perform the Work under such Change Order in accordance with any of the pricing categories set forth in this Agreement, or a combination thereof, and, if the Parties are unable to agree on a pricing category under which such Work shall be performed, such Work shall be performed ***. All Contingency will be negotiated on a case by case basis, depending upon the risks associated with the Change Order Work.

8.3 Change Order Billing . All Change Orders shall be Invoiced and paid in accordance with the payment terms set forth in the Change Order.

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 an equitable adjustment to: ***, 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.

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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 Section 23.5 . 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 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

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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 or Early Completion Bonus. 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 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

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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.

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);

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(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;

(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 suc