ARTICLE 1 DEFINITIONS AND INTERPRETATION

Section 1.1

Defined Terms

Section 1.2

Interpretation

ARTICLE 2 PROJECT COMMENCEMENT AND COMPLETION

Section 2.1

Full Notice to Proceed

ARTICLE 3 CONSIDERATION AND PAYMENT

Section 3.1

Contract Price; Payment Milestones and Effect of Payment on Title Transfer

Section 3.2

Conditions Precedent to Payment of Invoiced Amounts

Section 3.3

Wire Transfer

Section 3.4

Invoice Instructions

Section 3.5

Contractor Taxes

Section 3.6

Project Taxes

Section 3.7

Offset and Withholding Provisions

Section 3.8

Payment Lien and Claim Releases

Section 3.9

Basis of Contract Price

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR

Section 4.1

Organization, Good Standing and Power

Section 4.2

Authority; Execution and Delivery: Enforceability

Section 4.3

Validity of Contract; No Conflict

Section 4.4

Governmental Approvals and Consents

Section 4.5

No Proceedings

Section 4.6

Compliance

Section 4.7

Environmental Matters

Section 4.8

No Defaults

Section 4.9

Expertise

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF COMPANY

Section 5.1

Corporate Organization

Section 5.2

Validity of Contract; No Conflict

Section 5.3

Approvals and Authorizations

Section 5.4

Company-Procured Equipment

Section 5.5

No Proceedings

ARTICLE 6 CONTRACTOR’S SECURITY

Section 6.1

Contractor’s Parent Company Guaranty and Letter of Credit

ARTICLE 7 GENERAL OBLIGATIONS OF CONTRACTOR

Section 7.1

Contractor’s General Obligations

Section 7.2

Physical Obstructions and Conditions

Section 7.3

Selection of Suppliers and Use of Subcontractors

Section 7.4

Compliance with Applicable Law

Section 7.5

Governmental Approvals

Section 7.6

Other Contractors

Section 7.7

Construction Coordination

Section 7.8

Authority For Access for Inspection

Section 7.9

Training

Section 7.10

Safety

Section 7.11

Intellectual Property Rights and Computer Program Licenses

Section 7.12

Contractor’s Representatives

Section 7.13

Contractor’s and Subcontractor’s Personnel

Section 7.14

Use of Premises and Trespassing

Section 7.15

Temporary Facilities

Section 7.16

Contractor Deliverables

Section 7.17

Cooperation Between the Parties

Section 7.18

Liens

Section 7.19

No Amendment of Project Documents; Additional Project Documents

Section 7.20

Records and Accounts; Audit Rights

ARTICLE 8 GENERAL OBLIGATIONS OF THE COMPANY

Section 8.1

Company’s General Obligations

Section 8.2

Company Governmental Approvals

Section 8.3

Operations and Maintenance Staff

Section 8.4

Company’s Representative

Section 8.5

Company-Procured Equipment Responsibility

Section 8.6

Communications and Cooperation with Contractor

Section 8.7

Natural Gas

Section 8.8

Company-Provided Utilities

ARTICLE 9 WORKING ARRANGEMENTS

Section 9.1

Site Security

Section 9.2

Public and Private Roads and Rights-of-Way; Facilities; Access Route Matters

Section 9.3

Night, Weekend or Holiday Work

Section 9.4

Avoidance of Noise and Disturbance; Good Neighbor Policy

Section 9.5

Fencing, Protection, and Lighting

Section 9.6

Uncovering Work

Section 9.7

Cleanup

Section 9.8

Historical Artifacts

ARTICLE 10 PROJECT SCHEDULE

Section 10.1

Project Schedule

Section 10.2

Rejection of the Project Schedule

Section 10.3

Alterations to Project Schedule

Section 10.4

Contractor’s Responsibility to Complete Milestones

Section 10.5

Rate of Progress

Section 10.6

Progress Reports

Section 10.7

Progress Meetings

ARTICLE 11 DELIVERY, SHIPPING, AND HANDLING OF MATERIALS AND EQUIPMENT

Section 11.1

Delivery Responsibility

Section 11.2

Packing

ARTICLE 12 CONTRACTOR EQUIPMENT

Section 12.1

Contractor Equipment

Section 12.2

Contractor Equipment on Site

Section 12.3

CTG Matters

ARTICLE 13 CHANGE ORDERS

Section 13.1

Changes and Change Orders

Section 13.2

Continued Performance Pending Resolution of Disputes

Section 13.3

Preservation of Schedule and Contract Price

ARTICLE 14 COMPANY-PROCURED EQUIPMENT

Section 14.1

Contractor Responsibilities with respect to Company-Procured Equipment

ARTICLE 15 DRAWINGS

Section 15.1

Contractor’s Use of Company’s Drawings

Section 15.2

Contractor Drawings and Manuals

Section 15.3

Consequences of Drawings and Manuals Not in Accordance with Contract

Section 15.4

Drawings Submitted

Section 15.5

Inspection of Drawings

Section 15.6

Operations and Maintenance Manuals and As-Built Drawings

Section 15.7

Company’s Use of Drawings

Section 15.8

Errors in Drawings Supplied by Contractor

ARTICLE 16 SUSPENSION OF WORK, DELIVERY OR ERECTION

Section 16.1

Order to Suspend

Section 16.2

Protection of Work

Section 16.3

Resumption of Work

ARTICLE 17 PERFORMANCE TESTING

Section 17.1

Performance Tests

Section 17.2

Minimum Performance Guarantees

Section 17.3

Cost and Direction

Section 17.4

Company’s Right to Validate

Section 17.5

Test Energy

Section 17.6

Test Reports

Section 17.7

Duty to Advise of Defects, Errors and Omissions in the Work

ARTICLE 18 DEFECTS BEFORE TRANSFER OF POSSESSION AND CONTROL OF WORK

Section 18.1

Identification of Defects

Section 18.2

Replacement of Defects

ARTICLE 19 SUBSTANTIAL COMPLETION, FINAL COMPLETION, AND TRANSFER OF CARE, CUSTODY AND CONTROL

Section 19.1

Substantial Completion

Section 19.2

Care, Custody, Control and Risk of Loss; Punch List Items

Section 19.3

Title

Section 19.4

Marking of Equipment and Materials

Section 19.5

Removal of Equipment and Materials

Section 19.6

Final Completion

ARTICLE 20 CODES AND STANDARDS

Section 20.1

Comparable Quality

ARTICLE 21 ENVIRONMENTAL MATTERS

Section 21.1

General

Section 21.2

Release On-Site

Section 21.3

Release Off-Site

Section 21.4

Liability

Section 21.5

Pre-existing Regulated Materials

Section 21.6

Notice

ARTICLE 22 NATURE OF WORK AND WARRANTIES

Section 22.1

Nature of Work

Section 22.2

Warranties

Section 22.3

Warranty Period

Section 22.4

Repair of Defects

Section 22.5

Warranty Period Extension

Section 22.6

Contractor and Subcontractor Warranties

Section 22.7

Delay in Remedying Defects

Section 22.8

Removal of Defective Work

Section 22.9

Repeated or Chronic Failure

Section 22.10

SOLE AND EXCLUSIVE REMEDIES

ARTICLE 23 LIQUIDATED DAMAGES

Section 23.1

General

Section 23.2

Liquidated Damages for Delay in Substantial Completion

Section 23.3

Liquidated Damages for Failure to Achieve the BOP Load Guarantee

Section 23.4

Intentionally Omitted

Section 23.5

Calculations and Payments of Liquidated Damages

ARTICLE 24 LIMITATIONS OF LIABILITY

Section 24.1

Duty to Mitigate

Section 24.2

Limitation of Liability

Section 24.3

Inapplicability of Limitations of Liability

ARTICLE 25 INDEMNIFICATION

Section 25.1

General Indemnification Obligations

Section 25.2

Additional Indemnification Obligations of Contractor

Section 25.3

Indemnification Procedures

Section 25.4

Indemnity Duration

ARTICLE 26 INSURANCE

Section 26.1

Contractor’s and Subcontractors’ Insurance Coverage

Section 26.2

Waiver of Rights

Section 26.3

Contractor’s Cooperation with Company

ARTICLE 27 FORCE MAJEURE

Section 27.1

Effect of Force Majeure

Section 27.2

Notice of Occurrence

Section 27.3

Performance to Continue

Section 27.4

Resumption of Performance

Section 27.5

Termination in Consequence of Force Majeure

ARTICLE 28 DEFAULT

Section 28.1

Contractor Default

Section 28.2

Company Default

Section 28.3

Intentionally Omitted

ARTICLE 29 TERMINATION

Section 29.1

Termination by Company

Section 29.2

Termination by Contractor

Section 29.3

Procedures and Remedies Following Termination Other than for Contractor Default

Section 29.4

Procedures and Remedies Following Termination for Contractor Default

Section 29.5

Exclusivity

ARTICLE 30 DISPUTE RESOLUTION

Section 30.1

Applicability of Dispute Resolution Procedures

Section 30.2

Dispute Resolution

ARTICLE 31 ASSIGNMENT

Section 31.1

Contractor Assignment

Section 31.2

Company Assignment

Section 31.3

Company’s Right to Assign to ML&P

Section 31.4

Conveyance of Title to Equipment

Section 31.5

Collateral Assignment

Section 31.6

Assignment to State Instrumentality

ARTICLE 32 CONFIDENTIALITY

Section 32.1

Confidentiality

ARTICLE 33 MISCELLANEOUS PROVISIONS

Section 33.1

Non-Solicitation

Section 33.2

Notices, Consents and Approvals

Section 33.3

Entire Contract

Section 33.4

Amendment; Waiver

Section 33.5

Successors and Assigns

Section 33.6

Third Party Beneficiaries

Section 33.7

Severability

Section 33.8

Further Assurances

Section 33.9

Publicity

Section 33.10

Independent Contractor

Section 33.11

Survival

Section 33.12

Governing Law; Waiver of Jury Trial

Section 33.13

Counterparts

Section 33.14

Captions

Appendix A

Glossary of Defined Terms

Appendix B

Governmental Approvals

Appendix C

Approved/Preferred Subcontractors List

Appendix D

Payment Schedule

Appendix E

Options

Appendix F

Substantial Completion, Final Completion, Performance Guarantees and Performance Tests

Appendix G

Statement of Work and Supply and Technical Specifications

Appendix H

Termination Fees

Appendix I

Reference Drawings and Documents

Appendix J

Project Schedule

Appendix K

Execution Plan

Exhibit A

Form of Full Notice to Proceed

Exhibit B

Form of Limited Notice to Proceed

Exhibit C

Form of Certificate of Authorized Officer of Contractor

Exhibit D

[Reserved]

Exhibit E

Form of Notice of Request for Payment

Exhibit F

Form of Invoice

Exhibit G

Form of Contractor Lien Release

Exhibit H

Form of Subcontractor Lien Release

Exhibit I

[Reserved]

Exhibit J

Form of Guaranty of Contractor’s Parent Company

Exhibit K

Form of Letter of Credit

Exhibit L

[Reserved]

Exhibit M

[Reserved]

Exhibit N

Form of Progress Report

Exhibit O

Form of Change Order Request

Exhibit P

Form of Change Order

Exhibit Q

Certificate of Insurance

Exhibit R

Form of Bill of Sale

ARTICLE 1

DEFINITIONS AND INTERPRETATION

Section 1.1

Defined Terms

Section 1.2

Interpretation

ARTICLE 2

PROJECT COMMENCEMENT AND COMPLETION

Section 2.1

Full Notice to Proceed

(a) Contractor shall not take any action with respect to the Project and shall not commence the Work until Company has issued a full notice to proceed to Contractor substantially in the form attached hereto as Exhibit A (the “Full Notice to Proceed”), except as otherwise provided in this Section 2.1; provided, however, that if Company shall not have issued the Full Notice to Proceed on or before March 1, 2011, Contractor shall be entitled to a Required Change.   Issuance of the Full Notice to Proceed is subject to the satisfaction or waiver by Company of each of the conditions in Section 2.1(d). Following issuance of the Full Notice to Proceed,  Contractor shall proceed with performing the Work.  

(b) At Company’s option,  Company may issue one or more limited notices to proceed substantially in the form attached hereto as Exhibit B (each, a “Limited Notice to Proceed”) prior to issuing the Full Notice to Proceed, pursuant to which Contractor shall perform or cause to be performed certain portions of the Work specified in such Limited Notice to Proceed.  Each Limited Notice to Proceed shall describe that portion of the Work to be performed, the time for completion of such portion of the Work, the payment schedule and the maximum amount of liability of Company in connection with such Limited Notice to Proceed.  A Limited Notice to Proceed shall become effective only upon mutual written agreement of the Parties in connection with the terms thereof. 

(c) If, before the execution and delivery of this Contract, the Parties shall have entered into any separate services agreement to perform any of the Work, the Parties agree and acknowledge that the Contract Price and the scope of Work have been adjusted to account for the activities performed and payments made under any such agreements.

(d) The obligation of Company to issue the Full Notice to Proceed to Contractor is subject to the satisfaction or waiver by Company of all of the following conditions precedent:

(i) Governmental Approvals.  Company’s receipt of and satisfaction with the terms of all Governmental Approvals;

(ii) Appendices and Exhibits. Each Appendix and Exhibit to this Contract shall be in final form and substance satisfactory to Company, in its sole discretion.

(iii) Project Documents.  Company shall have received the Project Documents and the Security Documents, each of which shall (A) have been duly authorized, executed and delivered by each party thereto, (B) be in the form of the applicable form attached hereto (if such a form is attached) and otherwise in form and substance satisfactory to Company, and (C) be in full force and effect.

(iv) Officer’s Certificate.  Company shall have received the certificate of an authorized officer of Contractor, substantially in the form attached hereto as Exhibit C, certifying that (A) each of the conditions precedent to the issuance of the Full Notice to Proceed has been satisfied (other than to the extent that the satisfaction of a condition is dependent on the judgment of Company); (B) that each of the conditions in Sections 3.2(b), 3.2(c), 3.2(d) 3.2(e) and 3.2(f) has been and will be satisfied as of the date of the issuance of the Full Notice to Proceed; and (C) each of the representations of Contractor set forth in Article 4  is true and correct.

(v) Company-Procured Equipment.  Company shall have entered into all Company-Procured Equipment Purchase Agreements which Company has elected to enter into in connection with the Project as of such point in time.  

(vi) Additional Matters.  Company shall have received such other certificates, documents and instruments relating to the transactions contemplated hereby as may have been reasonably requested by Company, and all corporate or other organizational actions and other matters and all other documents (including all documents referred to herein and not appearing as Appendices or Exhibits hereto) and all legal matters in connection with such transactions shall be satisfactory in form and substance to Company, provided that if such certificates, documents and instruments to be produced by Contractor result in Contractor incurring an unreasonable expense, Contractor may seek reimbursement therefor from Company. 

ARTICLE 3

CONSIDERATION AND PAYMENT

Section 3.1

Contract Price; Payment Milestones and Effect of Payment on Title Transfer

(a) As full consideration for the satisfactory performance of all of Contractor’s obligations under this Contract,  including Contractor’s provision of all labor, Materials,  Equipment, and services associated with the Work, Company shall pay Contractor the aggregate fixed price amount of two hundred seventeen million six hundred twenty eight thousand nine hundred ninety nine Dollars ($217,628,999.00) (the “Contract Price”) in accordance with this Contract and the payment schedule in Appendix D (the “Payment Schedule”) and all payments of the Contract Price shall be linked to the timely achievement of specific Project milestones (each, a “Milestone”).  Unless agreed otherwise by the Parties,  Change Orders which result in additional or reduced payments to Contractor shall result in an equivalent upward or downward adjustment to the Contract Price, as the case may be.

(i) Company shall have the right to exercise the option to purchase certain additional equipment, material and/or services which as of the Effective Date are not included as part of the Work and which are described in Appendix E (the “Option”), within the times frame and at the price stated therein.  If Company exercises the Option in writing prior to the Option exercise deadline set forth in Appendix E, the Contract Price will be adjusted upward to account for the price associated with the Option and the equipment, materials and/or services associated with the Option shall become part of the Work.  The specific payment, construction and/or delivery schedules associated with such Option shall be set forth in a mutually agreed upon Change Order.

(b) Company shall pay Contractor all undisputed invoice amounts in accordance with the Payment Schedule within twenty-five (25) days of receipt of an invoice from Contractor; provided, however, in no event shall any payment be due and owing until such time as the Work associated with the applicable Payment Milestone has been satisfactorily completed and accepted by Company pursuant to the procedures set forth in this Contract (including Appendix D) and all other conditions to payment have been satisfied. Notwithstanding the foregoing, in the case of payments to be made pursuant to Payment Milestones,  no payment shall be made thirty (30) days prior to the Milestone Date corresponding to the applicable Payment Milestone unless Contractor (i) has achieved the Payment Milestone for which payment is requested and due in accordance with the Payment Schedule, and (ii) all Milestones for which Contractor has submitted a Notice of Request for Payment prior to such Payment Milestone have been achieved prior to Contractor submitting its invoice with respect thereto.  Payment due dates shall be on Business Days. If any payment becomes payable on a day that is not a Business Day, then payment shall be paid on the next succeeding Business Day. Company shall pay interest on any late payments, including any payment amount which Company disputes in good faith and which is later found conclusively to be have been due, at the Late Payment Rate, compounded daily from the date such amount was due.

(c) The Parties may agree to an electronic invoicing procedure whereby the receipt of an electronic invoice by Company would trigger the twenty-five (25) day payment period subject to the requirements and conditions for payment set forth in this Contract,  including this Article 3.  For recordkeeping purposes, Contractor shall promptly provide Company with a hard-copy of any invoice and any other supporting documentation or materials submitted to Company via any electronic invoicing procedure.

(d) Company’s Representative shall, within fifteen (15) days after receipt of any invoice from Contractor, determine whether (i) the Work evidenced by Contractor’s invoice has been completed in conformance with the requirements of this Contract;  (ii) the Work associated with the applicable Payment Milestone has been fulfilled or met; (iii) the invoice, together with any required backup information, has been properly submitted; and (iv) the invoiced amount reflects the payment due under the applicable Payment Milestone.  Company’s Representative shall inform Contractor if it disputes the invoice or any portion of the invoice where and as contemplated on the Notice of Request for Payment.  If Company’s Representative disputes only a portion of the invoiced amount, the remaining amount not in dispute shall be paid on or before the due date.

(e) Notwithstanding Section 3.1(d), payment by Company of any invoiced amounts shall not be deemed acceptance of the Work or waiver of any Claims that Company may have with respect to such Work,  including with respect to the completeness thereof or the compliance of such Work with Applicable Law or the terms of this Contract.

(f) In addition to the foregoing, within five (5) Business Days after receipt by Contractor of any payment made pursuant to (i) the Payment Schedule and/or (ii) any Limited Notice to Proceed, Contractor shall deliver to Company the Retainage Letter of Credit pursuant to Section 6.1(b).    

Section 3.2

Conditions Precedent to Payment of Invoiced Amounts

(a) Notice Required.  Contractor shall submit, along with its invoice, a notice of request for payment in the form attached hereto as Exhibit E (each, a “Notice of Request for Payment”) and in substance satisfactory to Company, that meets all of the requirements of this Section 3.2 and Section 3.4.

(b) Representations and Warranties.   The representations and warranties made by Contractor in each Project Document to which it is a party shall be true and correct in all material respects on such payment date both before and after giving effect to the making of such payment. In each case such representations and warranties shall be deemed renewed and re-stated as of the date of such payment.

(c) No Default.    No  Contractor Default shall have occurred and be continuing; no breach, violation or default shall have occurred and be continuing with respect to any of the Security Documents; and no breach, breach, violation or default shall have occurred with respect to any of the Project Documents or any consent or Governmental Approval, in each case which would reasonably be expected to result in a Material Adverse Change.

(d) No Proceeding or Litigation. No action, suit, proceeding or investigation by or before any Governmental Authority or any arbitrator shall be pending or, to Contractor’s knowledge, threatened against or affecting a Project Party or the Project which would reasonably be expected to result in a Material Adverse Change.

(e) Material Adverse Change. No Material Adverse Change shall have occurred (i) with respect to Contractor, any Key Subcontractor or the Guarantor or (ii) that is otherwise the result of an act or omission of Contractor, any Subcontractor or the Guarantor.

(f) Governmental Approvals. All Governmental Approvals required to be obtained by such time shall have been obtained and shall be in full force and effect.

(g) Progress Reports.  Contractor shall have delivered to Company on or before the 15th day of the month in which payment is being sought, the Progress Report pursuant to Section 10.6, which Progress Report shall cover the month associated with the applicable Payment Milestone(s) for which payment is requested,  and such Progress Report shall be satisfactory to Company in its sole discretion.

(h) Delivery of Lien and Claim Releases.  Contractor shall have delivered to Company Lien and Claim releases pursuant to Section 3.8. 

Section 3.3

Wire Transfer

Section 3.4

Invoice Instructions    

(a) All invoices shall (i) provide all information specified in Exhibit F,  (ii) reference the applicable Contract number, and (iii) be addressed as follows:

(b) CONTRACTOR ACKNOWLEDGES AND AGREES THAT (I) ANY INVOICE THAT DOES NOT MEET THE REQUIREMENTS OF THIS SECTION 3.4 MAY RESULT IN A DELAY IN PAYMENT AND (II) COMPANY SHALL HAVE NO LIABILITY TO CONTRACTOR THEREFOR.

Section 3.5

Contractor Taxes

Section 3.6

Project Taxes

Section 3.7

Offset and Withholding Provisions

Section 3.8

Payment Lien and Claim Releases

Section 3.9

Basis of Contract Price

(a) Contractor’s Duty to be Fully Informed.  Contractor shall have satisfied itself, through its own due diligence efforts as to the nature and location of the Work, the general, local, physical and other conditions of the Work and the Site, and all other matters which could in any way affect the Work or the cost thereof and the Contract Price.  In addition, Contractor shall have, to the extent it deems necessary (i) inspected the Site,  (ii) satisfied itself as to the state and condition (including ground, underground, geological, climatic and hydrological conditions) of all circumstances affecting the Site and the Work,  (iii) examined any documentation and information supplied or made available to Contractor by Company or available for inspection in the public domain, (iv) reviewed the conditions and the Specifications, and (v) satisfied itself as to the feasibility of executing the Work at the Site,  including as to the suitability and availability of access routes to the Site.    Company shall not be responsible for any error, inaccuracy or omission of any kind in the RFP and data and information related thereto and shall not be deemed to have given any representation or warranty of accuracy or completeness of any data or information related thereto; provided however, that any professional report delivered by Company that is relied upon by Contractor and found to contain errors or omissions  which cause an adverse impact on the Work or Project Schedule shall entitle Contractor to a Required Change.  The failure of Contractor to adequately investigate and

acquaint itself with any applicable conditions and other matters shall not relieve Contractor from the responsibility for properly estimating the difficulties of successfully performing the Work and completing the Contract, and shall not be grounds for adjusting either the Contract Price or the Project Schedule, unless provided otherwise herein. 

(b) Underground Obstructions.  Subject to the provision of reasonable cooperation from Company,  including the provision by Company of information in Company’s possession that Company reasonably believes is pertinent, Contractor shall be responsible for ascertaining the location of and avoiding damage to all underground installations including cable, gas, water pipes, telephone lines, and other underground installations, whether the location of the excavation, digging, or trenching required for performance of the Work is fixed by Company or by Contractor.  Except (i) as provided otherwise herein or (ii) in the case of any ground conditions or artificial obstructions or hazards that could not have been reasonably anticipated by Contractor or that have not been previously disclosed to Contractor by Company, Contractor shall be responsible for all delays, Costs, loss or expense arising, whether directly or indirectly, from any ground conditions or artificial obstructions or hazards including any Work performed underground or involving excavation and Contractor shall not be entitled to adjustment to either the Contract Price or the Project Schedule. 

(c) Surveying.  Contractor is responsible for performing, and shall include in its pricing, all construction layout surveying required for execution of the Work.  

(d) Existing Foundations, Structures and Work.  Contractor shall be solely responsible for the consequences of incorporating into the Work any existing foundations, structures, Equipment or Materials including any existing piling, floor slabs and culverts. To the extent that the same are incorporated into the Work, such pre-existing items shall be subject to the conditions as if they were supplied by Contractor hereunder. Contractor shall notify Company of its intention to incorporate any existing foundations, structures, Equipment or Materials into the Work other than those specifically identified in the Contract as soon as is reasonably practicable and shall seek the prior written consent of Company for the use or utilization thereof, which consent may be withheld in the sole discretion of Company.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF CONTRACTOR

Section 4.1

Organization, Good Standing and Power

Section 4.2

Authority; Execution and Delivery: Enforceability

Section 4.3

Validity of Contract; No Conflict

(a) conflict with, constitute or result in a breach, default or violation of any provision of, or give rise to any right of termination, cancellation or acceleration under, or loss of any right and/or benefit under, Contractor’s organizational documents or any contract, lease, license, Governmental Approval, instrument or other agreement to which Contractor is a party or by which it, the Project, or the assets of either is bound;

(b) result in the creation or imposition of any Lien of any nature on the Project, other than Permitted Liens, if any; or 

(c) conflict with or violate the charter documents of Contractor; or

(d) violate any Applicable Law applicable to Contractor or any of its Affiliates.

Section 4.4

Governmental Approvals and Consents

(a) Appendix B sets forth all Governmental Approvals.  Such Governmental Approvals that are the responsibility of Company to obtain prior to Substantial Completion are separately identified on Appendix B (the “Company Governmental Approvals”). All Governmental Approvals (i) have been obtained, are in full force and effect, and are final and all appeal periods with respect thereto have expired or terminated, or (ii) if required to be obtained in the future as part of the Work, shall be obtained in the ordinary course. There is no action, suit, investigation or proceeding pending, or, to Contractor’s knowledge, threatened, that could result in the modification, rescission, termination, or suspension of any Governmental Approval obtained prior to the date this representation is made or deemed made.  Except for the Governmental Approvals listed in Appendix B,  Contractor is not required, and under Applicable Law will not be required, to obtain any Governmental Approval in connection with the execution and delivery by Contractor of this Contract or the performance of Contractor’s obligations hereunder.

(b) No consent or approval of any Person is required to be obtained or made by or with respect to Contractor transferring custody and control of the Project to Company as contemplated hereby, or in connection with the execution, delivery and performance of this Contract, the Project Documents or the consummation of the transactions contemplated hereby or thereby.

Section 4.5

No Proceedings

(a) There are no actions, suits, investigations or proceedings by or before any Governmental Authority or arbitrator pending against Contractor or any Subcontractor, or against the Project, or, to Contractor’s knowledge, threatened against or affecting Contractor or any Subcontractor, or the Project,  which would reasonably be expected to result in a Material Adverse Change.

(b) There are no actions, suits, investigations or proceedings by or before any Governmental Authority or arbitrator pending or, to Contractor’s knowledge, threatened against or affecting Guarantor,  which would reasonably be expected to result in a Material Adverse Change.

Section 4.6

Compliance

(a) The Project is being designed and constructed and all components thereof are being procured, in compliance with all Applicable Law, standards and codes and in compliance with the requirements of all Governmental Approvals and Prudent Industry Practice.  When constructed, the Project shall conform to and comply with all Applicable Law, standards and codes, and the requirements of all applicable Governmental Approvals.  

(b) Contractor and the operation of its businesses are, and at all times during the term of this Contract will be, in compliance with all Applicable Law.

Section 4.7

Environmental Matters

(a) The Project has been designed and constructed and the Work has been and will be performed, in compliance with all Environmental Laws.

(b) In connection with the Project, Contractor (i) has not received any notice of a pending or threatened Claim, or inquiry by any Governmental Authority or other Person relating to any actual or alleged violations of Environmental Laws or any obligation on the part of Contractor to investigate or take any other action relative to any Regulated Materials or threatened Release of any Regulated Materials and (ii) is and has been in compliance with all Environmental Laws.

(c) Contractor has not entered into or agreed to any decree or order with any Governmental Authority and Contractor is not subject to any judgment relating to compliance with any Environmental Law or to the investigation or cleanup of Regulated Materials.

(d) Neither Contractor nor any Subcontractor in the performance of the Work has generated, transported, treated, stored, disposed of, arranged to be disposed of, Released or threatened to Release or will generate, transport, treat, store, dispose of, arrange to be disposed of, Release or threaten to Release, any Regulated Materials at, on, from or under the Site in violation of, or so as would reasonably be expected to result in Liability under any Environmental Laws.

Section 4.8

No Defaults

Section 4.9

Expertise

(a) To Contractor’s knowledge, there is no reason that (i) the Project will not achieve Substantial Completion by the Guaranteed Substantial Completion Date; or (ii) the cost to complete the Project will exceed the Contract Price.

(b) The construction and operation of the Project in accordance with the Project Documents and any other contract connected with the performance of the Work to which Contractor is a party and in compliance with Governmental Approvals, Applicable Law and pursuant to this Contract, is technically feasible.

(c) Contractor has substantial and sufficient experience, expertise and capability in the development and engineering, construction and procurement of combined cycle power plants such as the Plant and the capability to carry out the Work

and acknowledges that Company is relying on such experience, expertise and capability in executing this Contract.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF COMPANY

Section 5.1

Corporate Organization

Section 5.2

Validity of Contract; No Conflict

(a) This Contract has been duly authorized, executed and delivered by Company and is a legal, binding and valid obligation of Company enforceable against Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect that affect creditors’ rights generally and by legal and equitable limitations on the availability of specific remedies.

(b) The execution, delivery and performance by Company of this Contract, the consummation of the transactions contemplated hereby, and the compliance with the provisions hereof by Company shall not, with or without the passage of time or the giving of notice or both:

(i) as to execution, delivery and performance, require any consent or approval of Company’s board of directors, any of Company’s owners, or any other Person which has not been obtained and each such consent and approval that has been obtained is in full force and effect;

(ii) conflict with, constitute a breach or violation of any provision of, or give rise to any right of termination, cancellation or acceleration under, or loss of any right and/or benefit under, any material contract or agreement to which Company is a party or to which it or its assets are subject or to any Governmental Approval held by or on behalf of Company, the loss of which would reasonably be expected to result in a Material Adverse Change on Company’s performance under this Contract;

(iii) conflict with or violate the charter documents of Company; or

(iv) violate any Applicable Law applicable to Company.

Section 5.3

Approvals and Authorizations

Section 5.4

Company-Procured Equipment

Section 5.5

No Proceedings

ARTICLE 6

CONTRACTOR’S SECURITY

Section 6.1

Contractor’s Parent Company Guaranty and Letter of Credit

(a) Within five (5) Business Days after the Effective Date,  Contractor shall provide to Company a  guaranty acceptable to Company from SNC-Lavalin Group Inc.,  in favor of Company and substantially in the form of Exhibit J (“Guaranty”), which shall guarantee all of Contractor’s payment and performance obligations under this Contract until the expiration of the Warranty Period; and

(b) Within five (5) Business Days after receipt by Contractor of the first payment made pursuant to (i) the Payment Schedule and/or (ii) any Limited Notice to Proceed, Contractor shall deliver to Company a letter of credit (the “Retainage Letter of Credit”) substantially in the form of Exhibit K in a stated amount equal to ten percent (10%) of the payment made.  Contractor shall within five (5) Business Days after receipt of each subsequent payment through Substantial Completion cause the Retainage Letter of Credit to be amended or reissued such that the total stated amount of the Retainage Letter of Credit shall at all times be equal to ten percent (10%) of the cumulative amount of payments made.  Notwithstanding the preceding sentence, the Retainage Letter of Credit shall be released with the payment after achievement of Substantial Completion 

unless such letter of credit is converted into the Punch List Letter of Credit as set forth in Section 6.1(c).

(c) Substantial Completion shall not be achieved unless Contractor (i) delivers to Company a new irrevocable standby letter of credit substantially in the form of Exhibit K replacing the Retainage Letter of Credit for an amount, or (ii) reduces the stated amount of the Retainage Letter of Credit (such new letter of credit or reduced Retainage Letter of Credit, the “Punch List Letter of Credit”) in an amount, in either case, equal to the greater of two million Dollars ($2,000,000.00) or two hundred percent (200%) of  the agreed Final Punch List value.    

(d) The Retainage Letter of Credit and the Punch List Letter of Credit shall secure all of Contractor’s obligations under this Contract during the period each such letter of credit is in effect (the “Secured Obligations”).  Company shall have the right to draw on the Retainage Letter of Credit and the Punch List Letter of Credit in accordance with each of their terms upon a default by Contractor with respect to any of the Secured Obligations.

(e) Contractor shall maintain the Retainage Letter of Credit and shall renew the Retainage Letter of Credit as required, until the achievement of Substantial Completion.  Contractor shall maintain the Punch List Letter of Credit and shall renew the Punch List Letter of Credit as required, until the achievement of Final Completion.  Each of the Retainage Letter of Credit and the Punch List Letter of Credit shall be closed upon the receipt by the bank that issued the applicable letter of credit of a document signed by Contractor and Company which states that the applicable  letter of credit expiration date has occurred.  Unless the applicable letter of credit expiration date has occurred, Contractor shall, at least fifteen (15) days prior to the stated expiration date, (i) cause the issuer of the applicable letter of credit to renew such letter of credit for a period of not less than the lesser of (A) one year, or (B) such shorter period as may be necessary to cause the applicable letter of credit expiration to occur, as mutually agreed upon by Contractor and Company, but in no event shall any such renewal under items (i) or (ii) in this Section 6.1(e) be less than thirty (30) days, or (ii) cause a replacement letter of credit to be issued in the same amount and in the same form as the initial letter of credit.  If the applicable letter of credit is not renewed or replaced in accordance with this paragraph, Company shall have the right to draw the full amount of such letter of credit and hold such amounts to be applied toward any Secured Obligations. 

ARTICLE 7

GENERAL OBLIGATIONS OF CONTRACTOR

Section 7.1

Contractor’s General Obligations

(a) Provide Company with a fully-operational Project for the Contract Price, completed in accordance with the terms of this Contract, Applicable Law, applicable industry standards and codes and Prudent Industry Practice, and meeting the Specifications and the Performance Guarantees.

(b) Provide detailed design and engineering of the Plant,  including preparation of operating manuals, Equipment and Materials specifications, all required civil works and Plant structures, drawings, schedules, software, and coordination of engineering efforts of Subcontractors, in each case as more fully set forth in the Specifications.

(c) Except as otherwise expressly provided herein, procure and provide handling of Materials and Equipment to be incorporated into the Project and construction equipment,  including as necessary, inspection, expediting, shipping unloading, receiving  and customs clearance, transportation to and storage at the Site.  

(d) Per Company’s reasonable instructions, accommodate Company’s other contractors on the Site.

(e) Comply with Alaska’s Little Davis Bacon Act; be familiar with all collective bargaining agreements pertaining to or affecting the Work; use local labor to the extent required under Applicable Law and, if not required or provided otherwise in this Contract, to the extent commercially reasonable; abide by the requirements under Alaska Applicable Law associated with the determination of the Commissioner of Alaska’s Department of Labor and Workforce Development that Alaska is a “zone of underemployment,” and continue to comply with such requirements even after expiration of the current determination for the duration of this Contract; subject always to compliance with Applicable Law, Contractor shall, and shall cause each Subcontractor to, to the fullest extent commercially reasonable, perform the Work using Alaska labor. 

(f) Employ only personnel qualified for the Work and ensure no illegal drugs, alcohol, firearms or other prohibited items are on or at the Site.

(g) Provide reasonable notice and opportunity for inspections by Company; provided, however, Company’s inspections shall not relieve Contractor of any responsibility or demonstrate any acceptance of Work performed by Contractor.

(h) Furnish the Training to Contractor’s personnel, all as set forth in the Specifications.

(i) Maintain and abide by all Applicable Laws regarding safety and security obligations; maintain accurate records and provide reports of injuries and damages; perform Work in accordance with Contractor’s Company-approved health and safety plan and Company’s safety policies.

(j) Provide on-Site utilities during construction and pay for their use, except Company-Provided Utilities.    

(k) Except as may be set forth otherwise in the Specifications, provide consumables (including water, gas, lubricants, oils, etc.) for commissioning and startup of the Plant.

(l) Be solely responsible for design, engineering and procurement of all equipment necessary for the performance of the Work or to be incorporated into the Project (other than Company-Procured Equipment) (collectively, the “Equipment”) and Materials, construction and coordination and scheduling of Subcontractor performance of the Work.

(m) Prepare and furnish a spare parts inventory (based, at least in part, on a single point of failure analysis of the Plant and Plant systems) one hundred eighty (180) days prior to Substantial Completion.  Contractor shall replace at its own cost any part used from spare parts inventory until termination of the Warranty Period.

(n) Prevent the imposition of Liens other than Permitted Liens.

(o) Intentionally omitted. 

(p) Maintain all records related to the Project for a period of not less than five (5) calendar years after the Final Completion Date.

(q) In accordance with the Specifications, timely implement and have in place a Company-approved Project implementation plan, Site security plan, industrial health and safety program, environmental protection plan, emergency response plan, Project quality plan, document control and process management program and communication plan.

(r) Timely implement the process management obligations and quality assurance plan set forth in the Specifications.  

Section 7.2

Physical Obstructions and Conditions

Section 7.3

Selection of Suppliers and Use of Subcontractors

(a) In connection with its performance of this Contract,  Contractor shall, and shall cause each Subcontractor to, purchase Equipment, Materials and services in connection with the performance of the Work from the approved/preferred Subcontractors set forth in Appendix C (“Approved/Preferred Subcontractors List”). 

(b) Contractor may subcontract Work to Subcontractors (subject to approval of such Subcontractor by the Company, acting in a commercially reasonable manner, if a

proposed Subcontractor is not on the Approved/Preferred Subcontractors List set forth in Appendix C).  Contractor shall be fully liable for all acts and omissions of each Subcontractor to the same extent as though such act or omission had been performed by Contractor. 

(c) Company shall have no contractual obligation to, and shall not be deemed to be in privity with, any Subcontractor; provided, however, that in the event Contractor’s obligations hereunder terminate for any reason, Contractor shall, at Company’s request, take such actions and execute such documents as may be necessary or desirable to assign any or all of the Project Documents executed by Contractor and any other contract connected with the performance of the Work to which Contractor is a party and selected by Company to Company.  Contractor shall ensure that each subcontract with a Subcontractor is assignable to Company without consent of the Subcontractor or any other Person.

Section 7.4

Compliance with Applicable Law

Section 7.5

Governmental Approvals

Section 7.6

Other Contractors

(a) Contractor shall, in accordance with Company’s reasonable instructions, afford to other contractors identified by Company from time-to-time all reasonable opportunities for carrying out their work at the Site, provided that the same shall not materially obstruct or disturb the progress of the Work.  Contractor shall also afford access to Company’s employees, including employees who will operate and maintain the Plant, to perform their work at the Site.  

(b) Contractor and Company shall consult and agree on the means of coordinating Company’s other contractors and Company’s employees as it relates to

mobilization and laydown space requirements, interconnection with Site construction power and temporary storage facilities, water, emergency evacuation requirements, trash/waste disposal, Site access, temporary office space, safety and security and other Site regulations and requirements.  Each of Company’s other contractors shall be responsible for any Costs with respect to that contractor’s work, including mobilization and laydown space requirements, interconnection with Site construction power and temporary storage facilities, water, emergency evacuation requirements, trash/waste disposal, Site access, safety and security and other Site regulations and requirements. 

(c) Contractor agrees that Claims resulting from concurrent Company contractor activities at the Site shall be brought to Company’s attention within ten (10) Business Days of the later to occur of: (i) the occurrence giving rise to the Claim; or (ii) Contractor’s knowledge of the occurrence giving rise to such Claim.  

Section 7.7

Construction Coordination

(a) Contractor shall be responsible for erecting a temporary and movable construction fence (the “Construction Fence”) on the Site for the purpose of separating the Project construction area (the “Construction Area”), which is initially depicted by the cross-hatched area on Appendix  I, from Company’s Area,  including the International Station, the switchyard and any Common Facilities. The Construction Fence may be moved and relocated as necessary with the prior written consent of Company following the completion of certain phases of construction for the purpose of accessing other areas of the Project, all in accordance with the Project Schedule and the Contract.  From the first to occur of issuance of an initial Limited Notice to Proceed (or as set forth therein), or issuance of Full Notice to Proceed through Final Completion,  Contractor will be in control of the Construction Area and will maintain a separate gate for access to the Construction Area.  Upon Substantial Completion, the Construction Area will be reduced to Company’s staging and laydown area, and shall not include any portion of the Facilities necessary for operation of the Project, the International Station or the Common Facilities.

(b) Without affecting or diminishing in any way Contractor’s obligations set forth herein, Contractor shall coordinate with Company all activities to be performed under the Contract, particularly if such activities may require taking the International Station off-line or have a possibility of causing an outage at the International Station.

(c) Contractor shall provide Company with reasonable advance notice of Contractor’s need to access Company’s Area for performance of Work activities associated with the Common Facilities.  Contractor and Company shall agree on a schedule for the performance of all Work activities in Company’s Area consistent with the Contract and the Project Schedule.  Company shall arrange for any safety instruction and workplace policy training deemed appropriate by Company for Contractor’s and its Subcontractors’ personnel prior to such personnel being allowed in Company’s Area.  Company shall arrange for escorts for such personnel accessing Company’s Area to the extent Company deems such escorts necessary.  If Contractor needs to work on a system that could be used by Company for the operation of the International Station,  Contractor

shall provide Company with advance written notice and receive prior authorization from Company that the system has been deactivated before commencing work on the system and Contractor shall notify Company once Contractor completes work on the system so Company can inspect and reactivate the system in accordance with Company’s policies.  Without limiting the preceding in this Section 7.7(c) and subject to Section 7.7(e), upon the reasonable request of Contractor and consistent with this Contract and the Project Schedule,  Company shall authorize Contractor’s and its Subcontractors’ personnel to have access to Company’s Area (i) for the purpose of undertaking Work activities necessary to integrate the Project into the Common Facilities, and (ii) after the Substantial Completion Date, to perform any Work activities required under the Contract.

(d) Notwithstanding any other provision herein to the contrary, at all times prior to the Substantial Completion Date,  Contractor shall provide Company and Company’s personnel and other contractors access to the Construction Area upon Company’s request.  Contractor and Company shall agree on a schedule for the performance of Work activities by Company’s personnel and other contractors in the Construction Area, which schedule shall be consistent with the Project Schedule.  Subject to Company’s compliance with Contractor’s safety programs as set forth in the Execution Plan attached hereto as Appendix K,  Company may access the Construction Area without notice at any time for the purpose of carrying out activities required (i) for the operation of the International Station,  (ii) to respond to an emergency or (iii) to comply with Company’s obligations under any Company-Procured Equipment Purchase Agreement.

(e) Contractor shall (i) schedule all Work activities that will require or may result in the shutdown of or inability to dispatch the International Station, and all Work activities performed on or affecting the Common Facilities in accordance with this Contract and the Project Schedule,  (ii) notify Company in writing of such schedule(s) at the earliest practicable time and (iii) update such schedules in writing as necessary; provided, however, Contractor shall not undertake any such Work activities until Company has agreed in writing with such schedule and plan for performing the identified Work.

(f) Except as otherwise provided in this Contract,  Contractor shall perform or cause to be performed, all Work activities with respect to the Project in a manner that will avoid any interference that could be reasonably expected to have a material adverse effect on Company’s operation of the International Station and Company’s day-to-day operations at its corporate headquarters adjacent to the International Station.

(g) Company shall provide oversight of, and shall have the right to consent to, activities of Contractor and its Subcontractors necessary for the connection of the Project’s systems with the Common Facilities and the activities necessary for the start-up and commissioning of the Project, as provided herein. Company shall provide Contractor and its Subcontractors with reasonable controlled access to all Common Facilities,  including the control room, to enable Contractor and its Subcontractors to interconnect the Project with the Common Facilities, all in accordance with the Project Schedule and the Contract, and upon Company’s prior consent after receipt of notice from Contractor.

(h) In the event of an unscheduled shutdown or loss of power generation capability of the International Station attributable to any act or omission of Contractor (each, an “Unscheduled Shutdown”), Contractor shall be liable to Company for all Liabilities incurred by Company in connection with such Unscheduled Shutdown (including the cost of Company to procure or produce replacement power); provided, however, that (i) Contractor’s liability for Company Liabilities shall not exceed fifty thousand Dollars ($50,000.00) per occurrence and (ii) in the event Company is required to obtain or produce replacement power following an Unscheduled Shutdown, the Liabilities for replacement power for which Contractor shall be liable shall be limited to the incremental cost increase over the cost basis that would be normally incurred by the Company had there not been an Unscheduled Shutdown provided that Company has an actual need to dispatch from the International Station because no other less costly generating capacity exists and is available for Company’s use.  Without limiting the preceding sentence, after an Unscheduled Shutdown, any future work that is to be performed by Contractor or its Subcontractors of the same or similar nature to that which caused the Unscheduled Shutdown shall proceed only in accordance with a plan developed by Company and Contractor and designed to accomplish the necessary work in a manner that will avoid re-occurrence of the Unscheduled Shutdown. 

Section 7.8

Authority For Access for Inspection

Section 7.9

Training

Section 7.10

Safety

(a) Contractor shall be solely responsible for being aware of and initiating, maintaining and supervising compliance with all safety laws, regulations, policies, precautions, and programs in connection with the performance of this Contract.  Prior to the commencement and throughout the performance of the Work,  Contractor shall ensure  that each of its employees and independent contractors, together with all employees and independent contractors of Company involved in the Work and all employees and independent contractors of each Subcontractor, are fully informed concerning all safety, health, and security regulations and policies pertaining to the Work.  Contractor shall conduct all operations and activities under this Contract in such a manner as to avoid the risk of bodily harm to persons or risk of damage to any property.

(b) Notwithstanding any other provision in this Contract, if Contractor fails to promptly correct any violation of safety or health regulations, Company may suspend all or any part of the Work.  Contractor shall not be entitled to any extension of the Project Schedule, increase in the Contract Price or reimbursement for Costs caused by any such suspension order.  Failure of Company to discontinue any or all of Contractor’s operations shall not relieve Contractor of its responsibility for the safety of personnel and property. Contractor shall maintain an accurate record of and shall promptly report to Company all cases of property damage and of death, occupational diseases, or injury to employees or any other Persons connected with performance of the Work under this Contract.  Contractor shall promptly notify Company and provide a copy of any safety citation issued by any Governmental Authority.  Contractor shall, and shall cause its Subcontractors to, perform all Work under this Contract in strict accordance with Contractor’s Company-approved health and safety plan and Company’s safety policies.

Section 7.11

Intellectual Property Rights and Computer Program Licenses

(a) Contractor represents and warrants to Company that (i) except with respect to Company-Procured Equipment, it has, and upon the Substantial Completion Date, will have all intellectual property rights necessary with respect to the Work (and each part thereof) and the ownership and operation of the Project after it is constructed and to perform Contractor’s obligations under this Contract and (ii) the Work (and each part thereof) does not violate or infringe any patent, copyright or other intellectual property right. Contractor represents and warrants that it has not taken, and Contractor shall not take, any action that would violate, infringe or diminish any patent, copyright or other intellectual property right, including any intellectual property rights associated with any Company-Procured Equipment.

(b) In case the Work (or any part thereof) or the ownership or operation of the Project (other than any Company-Procured Equipment) is held to infringe or violate any patent or copyright or other intellectual property right and the use of the Work (or part thereof) or the operation of the Project is restricted or prohibited as a result thereof, Contractor shall, at its sole cost and expense, at Contractor’s option, either procure for Company the right to continue using the Work (or part thereof), replace the same with non-infringing comparable substitute Work, or modify the Work (or part thereof) so that it becomes non-infringing (provided that such modification does not adversely affect the Work (or any part thereof)).

(c) Contractor shall obtain and transfer to Company (i) title to all computer programs owned by Contractor that are generated in connection with or as part of the Work and that are necessary for the construction, operation and/or maintenance of the Plant (other than those connected with any Company-Procured Equipment which are furnished by the applicable supplier of the Company-Procured Equipment);  (ii) in the case of computer programs owned by Contractor that are not generated in connection with or as part of the Work, but that are  necessary for the construction, operation and/or maintenance of the Plant,  perpetual, fully-paid non-exclusive licenses to use such programs as necessary for the construction, operation and maintenance of the Plant;  and (iii) in the case of computer programs generated or provided by third party vendors (such as Equipment suppliers) and not owned by Contractor, perpetual, fully-paid non-exclusive licenses to use such programs for the construction, operation and maintenance of the Plant as are provided by such third party vendors in the normal course of providing such Equipment, Materials or services and which are integral to the use of such Equipment, Materials or services (other than those connected with any Company-Procured Equipment which are furnished by the applicable supplier of the Company-Procured Equipment), together with all warranties related thereto. 

Section 7.12

Contractor’s Representatives

(a) Contractor shall employ one or more competent representatives, whose name or names and details of qualifications and previous experience shall have been provided to Company and Company’s Representative by Contractor, to manage the Work and who shall have Contractor’s authority in respect of all matters arising out of or in connection with this Contract and the Work.

(b) Assigned Project Roster

(i) Contractor shall designate a Construction Manager,  Project Manager, a Project Engineer, and a Startup Manager for the Work, each of whom shall constitute a “Contractor Representative.” All natural persons assigned by Contractor to perform any of Contractor’s obligations shall be fully qualified to perform the tasks assigned them.

(ii) At least one Contractor’s Representative shall be present on the Site during working hours and at all times the Work is in progress, and any orders

or instructions which Company or Company’s Representative may give to the Contractor’s Representative shall be deemed to have been given to Contractor.

(iii) Company shall have the right, in its sole discretion, to approve or disapprove, prior to their selection by Contractor, Contractor’s selections for Construction Manager,  Project Manager,  Project Engineer and/or Startup Manager.

(iv) If Contractor intends to remove or change its Construction Manager,  Project Manager,  Project Engineer and/or Startup Manager assigned to the Work or reassign any such personnel to another project, Contractor shall give Company fifteen (15) days advance written notice of Contractor’s intentions. Company shall give due consideration to any request by Contractor to replace such persons and shall respond within fifteen (15) days to any such requests. Contractor shall not replace its Construction Manager,  Project Manager,  Project Engineer and/or Startup Manager assigned to the Work without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed.

(c) Company, provided it has reasonable grounds therefor, shall have the right to request the removal of any of Contractor’s personnel, any Contractor Representative or any person employed directly or indirectly by Contractor in the execution of the Work, which request Contractor shall promptly implement.

Section 7.13

Contractor’s and Subcontractor’s Personnel

Section 7.14

Use of Premises and Trespassing

Section 7.15

Temporary Facilities

Section 7.16

Contractor Deliverables

Section 7.17

Cooperation Between the Parties

Section 7.18

Liens

(a) Mechanics Liens relating to the Work supplied and performed by Contractor or by any Subcontractor that have not yet been paid in the ordinary course of business; and

(b) Liens filed with respect to amounts payable to Contractor or any Subcontractor that are being disputed in good faith, provided that Contractor has posted a

bond against such Liens with a bonding company or other surety reasonably acceptable to Company (each of the forgoing, a “Permitted Lien”).

Section 7.19

No Amendment of Project Documents; Additional Project Documents

(a) without the prior written consent of Company assign any of its rights or obligations to or under any Project Document;

(b) compromise or settle any Claim against any Project Party or other Person if to do so would reasonably be expected to result in a Material Adverse Change; or

(c) enter into any other material contract connected with the performance of the Work after the Effective Date (each, an “Additional Project Document”) that would reasonably be expected to result in a Material Adverse Change.  Contractor shall deliver copies of all Additional Project Documents to Company within three (3) Business Days of the execution thereof.

Section 7.20

Records and Accounts; Audit Rights

ARTICLE 8

GENERAL OBLIGATIONS OF THE COMPANY

Section 8.1

Company’s General Obligations

(a) Company’s general obligation hereunder is to pay the Contract Price, upon performance of Contractor’s obligations as provided in this Contract and in accordance with the Payment Schedule.

(b) Company shall provide the Site and all necessary access thereto for the performance of the Work, all as specified and described in the Contract and Appendix G.

(c) Additionally, Company shall:

(i) keep Contractor informed as to the status of any governmental or regulatory or other activities undertaken by Company that would relate to the Plant or any Company Government Approvals and take corrective action related thereto, if necessary;