exv10w3



 





Exhibit 10.3



CERTAIN PORTIONS OF THIS EXHIBIT

HAVE BEEN OMITTED AND FILED


SEPARATELY WITH THE SECURITIES

AND EXCHANGE COMMISSION

PURSUANT TO A
REQUEST FOR

CONFIDENTIAL TREATMENT. THE

SYMBOL “****” HAS
BEEN INSERTED IN

PLACE OF THE PORTIONS SO OMITTED.


Execution Version




TARGET PRICE




ENGINEERING, PROCUREMENT




AND CONSTRUCTION AGREEMENT




between




PRAIRIE STATE GENERATING COMPANY, LLC




PSGC




and




BECHTEL POWER CORPORATION




Contractor




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 DEFINITIONS; AGENCY; OWNERSHIP
	 	 	1	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	1	 
	 
	 	 	 	 
	1.2 Certain Interpretative Matters
	 	 	22	 
	 
	 	 	 	 
	1.3 Order of Precedence
	 	 	23	 
	1.3.1 Notice
	 	 	23	 
	1.3.2 Conflict
	 	 	24	 
	 
	 	 	 	 
	1.4 PSGC Acting as Agent for Owners
	 	 	24	 
	1.4.1   Appointment as Agent
	 	 	24	 
	1.4.2   Actions Against Contractor
	 	 	24	 
	1.4.3   Binding Effect
	 	 	25	 
	1.4.4   Actions of Contractor
	 	 	25	 
	1.4.5   Several Liability
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 2 CONTRACTOR’S WORK AND OTHER OBLIGATIONS
	 	 	26	 
	 
	 	 	 	 
	2.1 Commencement of the Work
	 	 	26	 
	2.1.1   Effectiveness; LNTP Activities
	 	 	26	 
	2.1.2   Full Notice to Proceed
	 	 	26	 
	2.1.3   FNTP Requirements
	 	 	27	 
	 
	 	 	 	 
	2.2 Work to be Performed
	 	 	29	 
	2.2.1   Engineering/Design Services
	 	 	30	 
	2.2.2   Supervision and Superintendence
	 	 	30	 
	2.2.3   Contractor’s Construction Manager
	 	 	31	 
	2.2.4   Certain Facility Site Related Work
	 	 	31	 
	2.2.5   Reference Points
	 	 	32	 
	2.2.6   Procurement of Materials, Equipment
	 	 	32	 
	2.2.7   Inspection, Factory Tests and Expediting
	 	 	33	 
	2.2.8   Labor and Personnel
	 	 	34	 
	2.2.9   Certain Taxes
	 	 	35	 
	2.2.10   Permitting
	 	 	37	 
	2.2.11   Personnel Training; Facility Manual
	 	 	37	 
	2.2.12   Safety Precautions
	 	 	38	 
	2.2.13   Hazardous Substances
	 	 	39	 
	2.2.14   Royalties, Import Duties and License Fees
	 	 	42	 
	2.2.15   Interconnection Agreement
	 	 	42	 
	2.2.16   Access
	 	 	42	 
	2.2.17   Storage and Related Matters
	 	 	42	 
	2.2.18   Functional Tests
	 	 	42	 
	2.2.19   Clean Site and Waste Removal
	 	 	42	 
	2.2.20   Owner Contracts
	 	 	43	 






-i- 









 






	 	 	 	 	 
	 	 	Page	 
	2.3 Project Schedule, Progress Reports and Progress Meetings
	 	 	45	 
	2.3.1   Project Schedule and Progress Reports
	 	 	45	 
	2.3.2   Reporting to PSGC
	 	 	45	 
	2.3.3   Recovery Plan
	 	 	45	 
	 
	 	 	 	 
	2.4 Methods of Performance
	 	 	46	 
	 
	 	 	 	 
	2.5 Transfer of Title/Risk of Loss for Certain Items
	 	 	46	 
	2.5.1   Title to Work
	 	 	46	 
	2.5.2   Risk of Loss to Contractor Property
	 	 	47	 
	2.5.3   Title to Drawings, Reports, Documents and Information
	 	 	47	 
	2.5.4   Title to Natural Resources
	 	 	48	 
	2.5.5   Title to Fossils and Artifacts
	 	 	49	 
	2.5.6   Title Warranty
	 	 	49	 
	 
	 	 	 	 
	2.6 Subsurface Conditions
	 	 	49	 
	 
	 	 	 	 
	2.7 Local Conditions
	 	 	49	 
	 
	 	 	 	 
	2.8 Subcontractors and Owner Suppliers
	 	 	50	 
	2.8.1   Subcontractors
	 	 	50	 
	2.8.2   No Privity with Owners or PSGC
	 	 	51	 
	2.8.3   Certain Subcontracts
	 	 	51	 
	2.8.4   Purchase Orders and Subcontracts
	 	 	51	 
	2.8.5   Subcontractor Warranties
	 	 	52	 
	2.8.6   Subcontractor Insurance
	 	 	52	 
	2.8.7   Local Content Strategy
	 	 	52	 
	 
	 	 	 	 
	2.9 Insurance
	 	 	53	 
	 
	 	 	 	 
	2.10 Compliance with Applicable Legal Requirements
	 	 	53	 
	 
	 	 	 	 
	2.11 Real Estate
	 	 	53	 
	 
	 	 	 	 
	2.12 Use of Facility Site
	 	 	53	 
	2.12.1   Use and Restoration
	 	 	53	 
	2.12.2   Site Authority
	 	 	54	 
	 
	 	 	 	 
	2.13 Record Documents
	 	 	54	 
	 
	 	 	 	 
	2.14 Submittals
	 	 	54	 
	2.14.1   Review
	 	 	54	 
	2.14.2   Variations
	 	 	55	 
	2.14.3   Due Consideration
	 	 	55	 
	2.14.4   Applicable Electronic Format
	 	 	55	 
	 
	 	 	 	 
	2.15 Separate Contractors and Activities By PSGC
	 	 	55	 
	2.15.1   Separate Work
	 	 	55	 
	2.15.2   Integration
	 	 	55	 
	2.15.3   Coordination
	 	 	55	 
	2.15.4   PSGC Contractor Storage and Laydown
	 	 	56	 






-ii- 










 






	 	 	 	 	 
	 	 	Page	 
	2.16 Transportation Costs
	 	 	56	 
	 
	 	 	 	 
	2.17 Labor Matters
	 	 	56	 
	 
	 	 	 	 
	2.18 Discipline and Protection
	 	 	57	 
	 
	 	 	 	 
	2.19 Security
	 	 	57	 
	 
	 	 	 	 
	2.20 Facility Site Fire Protection
	 	 	58	 
	 
	 	 	 	 
	2.21 Coordination and Transition
	 	 	58	 
	 
	 	 	 	 
	2.22 Surplus Equipment and Materials
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 3 PSGC’S OBLIGATIONS
	 	 	58	 
	 
	 	 	 	 
	3.1 Facility Site
	 	 	58	 
	 
	 	 	 	 
	3.2 Permits
	 	 	59	 
	 
	 	 	 	 
	3.3 PSGC Insurance
	 	 	59	 
	 
	 	 	 	 
	3.4 PSGC Taxes
	 	 	59	 
	3.4.1   Payment of Taxes
	 	 	59	 
	3.4.2   Sales Taxes
	 	 	59	 
	 
	 	 	 	 
	3.5 Start-up Personnel
	 	 	60	 
	 
	 	 	 	 
	3.6 PSGC Project Manager and PSGC Engineer
	 	 	60	 
	 
	 	 	 	 
	3.7 Interconnection
	 	 	61	 
	3.7.1   Out of Scope Interconnection Facilities and Utility Connections
	 	 	61	 
	3.7.2   Transmission Facilities
	 	 	61	 
	 
	 	 	 	 
	3.8 Startup Period
	 	 	61	 
	3.8.1   Startup Period; Pre-Commercial Energy
	 	 	61	 
	3.8.2   Unit Generated Waste
	 	 	62	 
	 
	 	 	 	 
	3.9 Hazardous Substances
	 	 	62	 
	 
	 	 	 	 
	3.10 Compliance with Contractor’s Rules
	 	 	63	 
	 
	 	 	 	 
	3.11 Road Access
	 	 	63	 
	 
	 	 	 	 
	3.12 Performance of PSGC Obligations
	 	 	63	 
	 
	 	 	 	 
	3.13 Compliance with Applicable Legal Requirements
	 	 	63	 
	 
	 	 	 	 
	3.14 Owner Suppliers
	 	 	63	 
	3.14.1   Contract Execution
	 	 	63	 
	3.14.2   Payment
	 	 	63	 
	 
	 	 	 	 
	3.15 Discipline and Protection
	 	 	64	 
	 
	 	 	 	 
	3.16 PSGC-Provided Supplies
	 	 	64	 
	 
	 	 	 	 
	3.17 Capital Spare Parts
	 	 	64	 






-iii- 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 4 PSGC’S RIGHT TO INSPECT, STOP AND RE-PERFORM WORK
	 	 	64	 
	 
	 	 	 	 
	4.1 Inspection
	 	 	64	 
	 
	 	 	 	 
	4.2 Right to Reject and Re-Performance
	 	 	65	 
	 
	 	 	 	 
	4.3 Defects in Owner Suppliers’ Scope
	 	 	65	 
	 
	 	 	 	 
	4.4 Right to Suspend Work for Convenience
	 	 	65	 
	 
	 	 	 	 
	4.5 Uncovering Work
	 	 	66	 
	 
	 	 	 	 
	4.6 Right to Stop Work for Cause
	 	 	66	 
	 
	 	 	 	 
	ARTICLE 5 PRICE AND PAYMENT
	 	 	67	 
	 
	 	 	 	 
	5.1 Compensation
	 	 	67	 
	5.1.1   Reimbursable Costs
	 	 	67	 
	5.1.2   [Not Used]
	 	 	67	 
	5.1.3   Fee
	 	 	67	 
	5.1.4   Fee Adjustment
	 	 	67	 
	5.1.5   Allowance
	 	 	68	 
	5.1.6   Substituting Milestones
	 	 	69	 
	 
	 	 	 	 
	5.2 Monthly Payment
	 	 	69	 
	5.2.1   Monthly Payments
	 	 	69	 
	5.2.2   Application for Payment
	 	 	69	 
	5.2.3   Progress Reports
	 	 	70	 
	5.2.4   Lien Waivers and Sworn Statements
	 	 	70	 
	5.2.5   Other Documentation
	 	 	72	 
	5.2.6   Failure to Comply
	 	 	72	 
	5.2.7   Security for Fee At Risk
	 	 	72	 
	 
	 	 	 	 
	5.3 PSGC Review
	 	 	73	 
	 
	 	 	 	 
	5.4 Monthly Payments
	 	 	73	 
	 
	 	 	 	 
	5.5 Final Payment
	 	 	73	 
	5.5.1   Final Payment to Contractor
	 	 	73	 
	5.5.2   Final Owner Supplier Payment Statement
	 	 	74	 
	5.5.3   Reconciliation
	 	 	74	 
	 
	 	 	 	 
	5.6 Withholding to Protect PSGC from Loss
	 	 	75	 
	5.6.1   Withholding
	 	 	75	 
	5.6.2   Lien Title Indemnity
	 	 	75	 
	 
	 	 	 	 
	5.7 Delinquent Payments
	 	 	75	 
	 
	 	 	 	 
	5.8 Contractor Liens
	 	 	76	 
	 
	 	 	 	 
	5.9 Forecasts
	 	 	76	 
	 
	 	 	 	 
	5.10 Owner Supplier Payments
	 	 	76	 






-iv- 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 6 COMPLETION AND ACCEPTANCE OF THE WORK
	 	 	76	 
	 
	 	 	 	 
	6.1 Mechanical Completion
	 	 	76	 
	6.1.1   Criteria for Mechanical Completion of the Units
	 	 	76	 
	6.1.2   Notice and Report of Mechanical Completion
	 	 	78	 
	6.1.3   Achievement of Mechanical Completion
	 	 	78	 
	6.1.4   Initial Synchronization
	 	 	78	 
	 
	 	 	 	 
	6.2 Substantial Completion
	 	 	79	 
	6.2.1   Criteria for Substantial Completion of the Units
	 	 	79	 
	6.2.2   Notice and Report of Substantial Completion
	 	 	80	 
	6.2.3   Achievement of Substantial Completion
	 	 	80	 
	6.2.4   Care, Custody and Control of the Unit During a Dispute Regarding Substantial Completion
	 	 	81	 
	 
	 	 	 	 
	6.3 Creation of Punch Lists
	 	 	81	 
	6.3.1   Unit 1 Punch List
	 	 	81	 
	6.3.2   Unit 2 Punch List
	 	 	82	 
	 
	 	 	 	 
	6.4 Transfer of Possession and Control of each Unit to PSGC
	 	 	82	 
	6.4.1   Possession and Control
	 	 	82	 
	6.4.2   Common Facilities Support
	 	 	83	 
	 
	 	 	 	 
	6.5 Final Completion
	 	 	83	 
	6.5.1   Criteria for Final Completion of the Facility
	 	 	83	 
	6.5.2   Notice and Report of Final Completion
	 	 	84	 
	6.5.3   Achievement of Final Completion
	 	 	85	 
	 
	 	 	 	 
	ARTICLE 7 PERFORMANCE TESTING
	 	 	85	 
	 
	 	 	 	 
	7.1 Performance Tests
	 	 	85	 
	 
	 	 	 	 
	7.2 Notice to PSGC
	 	 	86	 
	 
	 	 	 	 
	7.3 Completed Performance Test
	 	 	86	 
	7.3.1   Certain Performance Tests
	 	 	86	 
	7.3.2   Completed Equivalent Availability Test
	 	 	87	 
	7.3.3   Individual Test Reports
	 	 	87	 
	 
	 	 	 	 
	7.4 Repetition of Tests
	 	 	88	 
	 
	 	 	 	 
	7.5 Re-Setting of Facility
	 	 	88	 
	 
	 	 	 	 
	ARTICLE 8 PERFORMANCE AND COMPLETION TARGETS, BUYDOWN AMOUNTS, INTERIM AND LATE COMPLETION DAMAGES AND BONUS AMOUNTS
	 	 	88	 
	 
	 	 	 	 
	8.1 Performance and Completion Targets
	 	 	88	 
	8.1.1   Performance Targets
	 	 	88	 
	8.1.2   Early Target Substantial Completion Date
	 	 	88	 
	8.1.3   Target Final Completion Date
	 	 	88	 
	8.1.4   Sound Level Targets
	 	 	89	 






-v- 









 






	 	 	 	 	 
	 	 	Page	 
	8.2 Late Completion Damages and Buydown Amounts
	 	 	89	 
	8.2.1   Substantial Completion Buydown Amounts
	 	 	89	 
	8.2.2   Unit Equivalent Availability Buydown Amount
	 	 	90	 
	8.2.3   Late Completion Damages
	 	 	91	 
	8.2.4   Buydown Amounts
	 	 	91	 
	8.2.5   Minimum Achievement
	 	 	92	 
	8.2.6   Buydown Damages
	 	 	92	 
	8.2.7   Recovery from Owner Suppliers
	 	 	92	 
	8.2.8   Limestone Interim Damages
	 	 	92	 
	 
	 	 	 	 
	8.3 Bonus Amounts
	 	 	93	 
	8.3.1   Performance Bonuses
	 	 	93	 
	8.3.2   Early Substantial Completion Bonus Amount and Related Limits
	 	 	93	 
	8.3.3   Earned Bonus Amounts
	 	 	93	 
	8.3.4   Maximum Amounts
	 	 	94	 
	 
	 	 	 	 
	ARTICLE 9 THE WARRANTY PERIODS
	 	 	94	 
	 
	 	 	 	 
	9.1 General Warranty of Work, Materials and Equipment
	 	 	94	 
	 
	 	 	 	 
	9.2 Owner Supplier Work
	 	 	94	 
	 
	 	 	 	 
	9.3 Nonconforming Work
	 	 	94	 
	 
	 	 	 	 
	9.4 Contractor’s Warranty Work
	 	 	95	 
	 
	 	 	 	 
	9.5 Warranty Periods
	 	 	96	 
	9.5.1   Duration
	 	 	96	 
	9.5.2   Transfer
	 	 	96	 
	 
	 	 	 	 
	9.6 Subcontractor Warranties
	 	 	96	 
	 
	 	 	 	 
	9.7 Root Cause Repairs
	 	 	96	 
	 
	 	 	 	 
	9.8 Cure Rights of PSGC for Breach of Warranty
	 	 	97	 
	 
	 	 	 	 
	9.9 Title to Warranty Work
	 	 	97	 
	 
	 	 	 	 
	9.10 Exclusions
	 	 	97	 
	 
	 	 	 	 
	9.11 Primary Liability
	 	 	98	 
	 
	 	 	 	 
	9.12 General Limitations on Warranties and Remedies
	 	 	98	 
	 
	 	 	 	 
	9.13 Warranty Cap
	 	 	98	 
	 
	 	 	 	 
	ARTICLE 10 CHANGES
	 	 	98	 
	 
	 	 	 	 
	10.1 Changes
	 	 	98	 
	 
	 	 	 	 
	10.2 Procedure for Changes
	 	 	99	 
	10.2.1   Changes Initiated by Contractor
	 	 	99	 
	10.2.2   Changes Initiated by PSGC
	 	 	100	 
	 
	 	 	 	 
	10.3 Specified Change Events
	 	 	100	 






 -vi-









 






	 	 	 	 	 
	 	 	Page	 
	10.4 Changes Involving Schedule Extensions
	 	 	102	 
	 
	 	 	 	 
	10.5 Changes to the Target Price
	 	 	103	 
	 
	 	 	 	 
	10.6 Continued Performance Pending Resolution of Disputes
	 	 	103	 
	 
	 	 	 	 
	10.7 Options for Implementing Changes
	 	 	103	 
	 
	 	 	 	 
	10.8 Remedy
	 	 	103	 
	 
	 	 	 	 
	10.9 Documentation
	 	 	103	 
	 
	 	 	 	 
	10.10 Insurance
	 	 	103	 
	 
	 	 	 	 
	ARTICLE 11 FORCE MAJEURE
	 	 	104	 
	 
	 	 	 	 
	11.1 Force Majeure Event
	 	 	104	 
	 
	 	 	 	 
	11.2 Burden of Proof
	 	 	105	 
	11.2.1   Excused Performance
	 	 	105	 
	11.2.2   Scope of Excused Performance
	 	 	105	 
	11.2.3   Prior Obligations and Liabilities
	 	 	105	 
	11.2.4   Continued Performance
	 	 	105	 
	11.2.5   No Affect on Payment Obligations
	 	 	105	 
	 
	 	 	 	 
	ARTICLE 12 INDEMNIFICATION
	 	 	106	 
	 
	 	 	 	 
	12.1 Indemnity
	 	 	106	 
	 
	 	 	 	 
	12.2 Obligations with Respect to Liens
	 	 	106	 
	 
	 	 	 	 
	12.3 Obligations with Respect to Intellectual Property
	 	 	107	 
	 
	 	 	 	 
	12.4 PSGC Indemnity
	 	 	108	 
	 
	 	 	 	 
	12.5 Notice and Legal Defense
	 	 	108	 
	 
	 	 	 	 
	12.6 Failure to Defend Action
	 	 	109	 
	 
	 	 	 	 
	12.7 No Limitation to Workers’ Benefits
	 	 	109	 
	 
	 	 	 	 
	12.8 Limitation on Indemnification
	 	 	110	 
	 
	 	 	 	 
	ARTICLE 13 REMEDIES AND TERMINATION
	 	 	110	 
	 
	 	 	 	 
	13.1 Termination for Convenience
	 	 	110	 
	13.1.1   Termination Payment
	 	 	110	 
	13.1.2   Termination Obligations
	 	 	111	 
	13.1.3   Termination Due to Force Majeure
	 	 	111	 
	 
	 	 	 	 
	13.2 Termination Upon Contractor Event of Default
	 	 	111	 
	 
	 	 	 	 
	13.3 Termination for Agreed Circumstances
	 	 	113	 
	 
	 	 	 	 
	13.4 Consequences of Termination; Actions upon Termination
	 	 	113	 
	13.4.1   Assumption and Succession
	 	 	113	 
	13.4.2   Completion of the Work
	 	 	114	 
	13.4.3   Actions Upon Termination
	 	 	114	 






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	 	 	Page	 
	13.5 PSGC Monetary and Non Monetary Defaults
	 	 	115	 
	13.5.1   Non-Payment
	 	 	115	 
	13.5.2   Non-Monetary Default
	 	 	115	 
	 
	 	 	 	 
	13.6 Duty to Mitigate Damages
	 	 	117	 
	 
	 	 	 	 
	ARTICLE 14 SECURITY
	 	 	117	 
	 
	 	 	 	 
	14.1 Owner Guaranties
	 	 	117	 
	 
	 	 	 	 
	ARTICLE 15 REPRESENTATIONS AND WARRANTIES
	 	 	117	 
	 
	 	 	 	 
	15.1 Representations and Warranties of Contractor
	 	 	117	 
	 
	 	 	 	 
	15.2 Representation and Warranties of PSGC
	 	 	118	 
	 
	 	 	 	 
	ARTICLE 16 LIMITATIONS OF LIABILITY
	 	 	119	 
	 
	 	 	 	 
	16.1 Aggregate Limitation of Contractor’s Liability
	 	 	119	 
	 
	 	 	 	 
	16.2 Consequential Damages
	 	 	119	 
	 
	 	 	 	 
	16.3 Application
	 	 	120	 
	 
	 	 	 	 
	16.4 Sole Remedies
	 	 	120	 
	 
	 	 	 	 
	16.5 Time Limit
	 	 	120	 
	 
	 	 	 	 
	ARTICLE 17 DISPUTE RESOLUTION
	 	 	120	 
	 
	 	 	 	 
	17.1 Dispute Resolution Between the Parties
	 	 	120	 
	17.1.1   Cooperation
	 	 	120	 
	17.1.2   Management Discussions
	 	 	120	 
	17.1.3   Voluntary Mediation
	 	 	121	 
	 
	 	 	 	 
	17.2 Arbitration
	 	 	121	 
	17.2.1   Rules and Arbitrators
	 	 	121	 
	17.2.2   Impartiality, Independence and Qualifications of Arbitrators
	 	 	121	 
	17.2.3   Costs and Discovery
	 	 	122	 
	17.2.4   Limitations
	 	 	122	 
	17.2.5   Additional Relief
	 	 	122	 
	17.2.6   Venue and Timing
	 	 	122	 
	17.2.7   Continued Performance
	 	 	123	 
	17.2.8   Consolidation
	 	 	123	 
	17.2.9   When Inapplicable
	 	 	123	 
	17.2.10   Cross Examination
	 	 	123	 
	17.2.11   Survival
	 	 	123	 
	 
	 	 	 	 
	ARTICLE 18 CONFIDENTIALITY
	 	 	124	 
	 
	 	 	 	 
	18.1 Confidential Information
	 	 	124	 
	 
	 	 	 	 
	18.2 Publicity
	 	 	125	 
	 
	 	 	 	 
	18.3 Prior Confidentiality Agreements
	 	 	126	 






 -viii-









 






	 	 	 	 	 
	 	 	Page	 
	18.4 Injunctive Relief
	 	 	126	 
	 
	 	 	 	 
	ARTICLE 19 COST RECORDS
	 	 	126	 
	 
	 	 	 	 
	19.1 Records
	 	 	126	 
	 
	 	 	 	 
	19.2 Inspection of Books, Records and Audit Rights
	 	 	126	 
	 
	 	 	 	 
	ARTICLE 20 MISCELLANEOUS
	 	 	127	 
	 
	 	 	 	 
	20.1 Change in Owners
	 	 	127	 
	20.1.1   Initial Ownership Transfers
	 	 	127	 
	20.1.2   Subsequent Ownership Transfers
	 	 	127	 
	20.1.3   Transfer Deliveries
	 	 	127	 
	20.1.4   Security Release
	 	 	128	 
	 
	 	 	 	 
	20.2 Authorized Representatives
	 	 	128	 
	 
	 	 	 	 
	20.3 Assignment/Delegation
	 	 	129	 
	20.3.1   Assignment/Delegation by Contractor
	 	 	129	 
	20.3.2   Assignment/Delegation by PSGC
	 	 	129	 
	20.3.3   Successors and Assigns
	 	 	130	 
	 
	 	 	 	 
	20.4 Reviews, Inspections, Approvals by PSGC
	 	 	130	 
	 
	 	 	 	 
	20.5 Governing Law; Choice of Forum
	 	 	130	 
	 
	 	 	 	 
	20.6 Surviving Obligations
	 	 	130	 
	 
	 	 	 	 
	20.7 Severability
	 	 	131	 
	 
	 	 	 	 
	20.8 Notices
	 	 	131	 
	 
	 	 	 	 
	20.9 Article and Section Headings
	 	 	132	 
	 
	 	 	 	 
	20.10 Duties and Remedies
	 	 	132	 
	 
	 	 	 	 
	20.11 No Waiver of Rights
	 	 	133	 
	 
	 	 	 	 
	20.12 Entire Agreement
	 	 	133	 
	 
	 	 	 	 
	20.13 Amendments
	 	 	133	 
	 
	 	 	 	 
	20.14 No Third Party Rights
	 	 	133	 
	 
	 	 	 	 
	20.15 Obligations Non-recourse
	 	 	133	 
	 
	 	 	 	 
	20.16 Relationship of the Parties
	 	 	133	 
	 
	 	 	 	 
	20.17 Counterparts
	 	 	134	 
	 
	 	 	 	 
	20.18 Cooperation with Financing Efforts
	 	 	134	 
	 
	 	 	 	 
	20.19 Financing Engineer
	 	 	135	 
	 
	 	 	 	 
	20.20 PSGC’s Engineer
	 	 	135	 
	 
	 	 	 	 
	20.21 Review Committee
	 	 	135	 
	20.21.1   Formation and Meetings
	 	 	135	 






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	 	 	Page	 
	20.21.2   Craft Labor ****
	 	 	136	 
	 
	 	 	 	 
	20.22 Source Country
	 	 	137	 
	20.22.1   Articles and Materials
	 	 	137	 
	20.22.2   Documentation
	 	 	138	 
	20.22.3   Other Transactions
	 	 	138	 
	20.22.4   Impact
	 	 	138	 
	 
	 	 	 	 
	20.23 Equal Opportunity Clause
	 	 	138	 
	20.23.1   Forms
	 	 	138	 
	20.23.2   Non-Discrimination
	 	 	139	 
	20.23.3   Non-Segregated Facilities
	 	 	140	 
	 
	 	 	 	 
	20.24 Surrender of Guaranties
	 	 	140	 






List of Appendices




	 	 	 
	Appendix A:

	 	Scope Book
	 
	 	 
	Appendix B:

	 	Work by PSGC
	 
	 	 
	Appendix C:

	 	PSGC-Provided Supplies
	 
	 	 
	Appendix D:

	 	Project ****
	 
	 	 
	Appendix E:

	 	Functional ****; Performance ****
	 
	 	 
	Appendix F:

	 	Permits
	 
	 	 
	Appendix G:

	 	**** Contracts and **** Subcontracts
	 
	 	 
	Appendix H:

	 	Key Personnel
	 
	 	 
	Appendix I:

	 	**** Costs and **** Costs
	 
	 	 
	Appendix J:

	 	**** Cap, **** Cap, **** Values, **** Procedures, and Form of ****
	 
	 	 
	Appendix K:

	 	Cost Breakdown Structure
	 
	 	 
	Appendix L:

	 	**** and ****
	 
	 	 
	Appendix M:

	 	Dispute Resolution Process for Payment Disputes
	 
	 	 
	Appendix N:

	 	**** Assumptions
	 
	 	 
	Appendix O:

	 	PSGC Project Manager and PSGC Engineer
	 
	 	 
	Appendix P:

	 	Operations and Maintenance Personnel
	 
	 	 
	Appendix Q:

	 	Insurance Requirements
	 
	 	 





-x-









 






	 	 	 	 	 
	Appendix R: Forms
	 	 	 	 
	R-1 Form of Notice to Proceed
	 	 	 	 
	R-2A Form of Application for Payment
	 	 	 	 
	R-2B Form of Recommendation for Funding of Owner Supplier Payment Account
	 	 	 	 
	R-2C Form of Reconciled Application for Payment
	 	 	 	 
	R-2D Form of Owner Supplier Reconciliation Report
	 	 	 	 
	R-3 Form of Certificate
	 	 	 	 
	R-4 Form of Notice of Mechanical Completion, Substantial
Completion and Final Completion
	 	 	 	 
	R-5 Form of Change Order
	 	 	 	 
	R-6 Form of Acceptable Letter of Credit
	 	 	 	 
	R-7 Form of Peabody Guaranty
	 	 	 	 
	R-8 Form of Initial Guaranty
	 	 	 	 
	R-9 Form of Owner Guaranty
	 	 	 	 
	R-10 Form of Opinion
	 	 	 	 
	R-11 Lien Waiver Forms
	 	 	 	 
	 
	 	 	 	 
	Appendix S: Facility Site
	 	 	 	 
	 
	 	 	 	 
	Appendix T:
**** Price, ****, and ****
	 	 	 	 
	T-1 **** Price
	 	 	 	 
	T-2 ****
	 	 	 	 
	T-3 ****
	 	 	 	 
	 
	 	 	 	 
	Appendix U: Sales Tax Materials; Map of Enterprise Zone
	 	 	 	 
	 
	 	 	 	 
	Appendix V: LNTP Activities
	 	 	 	 
	 
	 	 	 	 
	Appendix W: Owner Contract Administration
	 	 	 	 
	 
	 	 	 	 
	Appendix X: Ownership
	 	 	 	 
	 
	 	 	 	 
	Appendix Y: Project Information
	 	 	 	 
	 
	 	 	 	 
	Appendix Z Performance ****
	 	 	 	 







 -xi-









 








TARGET PRICE ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT




     THIS TARGET PRICE ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT, is entered into as of
the 19th day of June 2007 (the “Effective Date”), by and between Prairie State Generating Company,
LLC, a Delaware limited liability company, for itself and, effective on and from the Commencement
Date, as agent for Owners (hereinafter defined) (“PSGC”) and Bechtel Power Corporation, a Nevada
corporation. PSGC and Contractor are sometimes individually referred to herein as a “Party” and,
collectively, as the “Parties.”



W I T N E S S E T H:




     WHEREAS, PSGC desires Contractor to perform all necessary work and services and to provide
equipment and materials required in connection with the engineering, design, procurement,
construction, construction management, testing and commissioning of the Facility, as more
particularly described herein;



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



     WHEREAS, prior to the Commencement Date all of the membership interests in PSGC will be
transferred to an Indiana non-stock mutual benefit corporation designated by Owners which will be
controlled by Owners in accordance with their Proportionate Shares; and



     WHEREAS, prior to the Commencement Date each Owner will designate and appoint PSGC as its
agent to act for and on its behalf under this Agreement.



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



ARTICLE 1

DEFINITIONS; AGENCY; OWNERSHIP




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



 









 





     “Acceptable Credit Bank” means a bank, the long term senior debt obligations of which are
rated “AA-” or better by S&P or Fitch or “Aa3” or better by Moody’s, or whose obligations are
guaranteed, insured or otherwise credit enhanced by a bank or financial institution, the long term
senior unsecured debt obligations of which are so rated.



     “Acceptable Letter of Credit” means an irrevocable standby letter of credit issued by an
Acceptable Credit Bank, to which PSGC is the beneficiary, (a) having a stated expiration date of
not earlier than three hundred sixty-four (364) Days (or such longer term as may be commercially
available) after the date of the original issuance or any renewal thereof, (b) that automatically
renews or permits PSGC, on the signature of an authorized representative, to draw on sight all or
any portion of the stated amount if not renewed on or prior to the thirtieth (30th) Day prior to
the stated expiration date, (c) the principal office of such Acceptable Credit Bank, the location
for the submittal of documents required for draws under the Applicable Letter of Credit and the
location for disbursements under the Applicable Letter of Credit being Chicago, Illinois; St.
Louis, Missouri; or New York, New York; or such other location as may be mutually agreed by
Contractor and PSGC, (d) which is payable in U.S. Dollars in immediately available funds, (e) that
is governed by the (i) Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, or (ii) International Standby Practices (ISP
98) and any amendments or revisions thereto, and, to the extent not governed thereby, the laws of
the state in which its principal office is located, (f) drawable upon issuance of a drawing
certificate signed by an authorized representative of PSGC stating that PSGC is entitled to be paid
under this Agreement and such other requirements as may be mutually agreed by Contractor and PSGC,
and (g) is otherwise in the form set forth in Appendix R-6.



     “Actual Reimbursable Costs” has the meaning set forth in Section 5.2.2.



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



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



     “Agreement” means this Target Price Engineering, Procurement and Construction Agreement,
including the body of this Agreement (the “Body of this



-2-









 







Agreement”), all Appendices hereto, Change Orders, and all written amendments hereto.



     “Applicable Electronic Format” means the electronic formats set forth in Section 01330 of
Appendix A.



     “Applicable Legal Requirements” means all laws (including common law), statutes, regulations,
rules, treaties, ordinances, judgments, directives, Permits, decrees, decisions, approvals,
interpretations, injunctions, writs, orders or other similar legal requirements, in each case of
any Governmental Authority; provided, however, Contractor’s obligation to comply
with PSGC Permits shall be as set forth in Appendix F and Contractor’s obligations with respect to
sound levels are limited to its obligations under Section 02200 of Appendix A and Section 8.1.4.



     “Application for Payment” means an application for payment under this Agreement, in the form
attached as Appendix R-2A, which is to be used by Contractor during the course of Work in
requesting monthly payments pursuant to Section 5.2.1, and which is to be accompanied by such
supporting documentation as is required by this Agreement.



     “Appointing Authority” means a single arbitrator acting under JAMS Streamlined Arbitration
Rules & Procedures and administered by the Chicago, Illinois office of Judicial Arbitration and
Mediation Services, Inc.



     “AQCS” means, for each Unit, the air quality control system for such Unit.



     “AQCS Vendor” means the Owner Supplier supplying the AQCS under an Owner Contract.



     “Authorized Representative” means, with respect to each Party, the individual appointed by
such Party under Section 20.2 to act on such Party’s behalf with respect to that Party’s duties and
responsibilities under this Agreement.



     “Average Total Compensation” means an amount equal to the arithmetic average of the total
compensation then actually being paid to craft labor in the specific Craft Labor Category at issue.



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



     “Banking Day” means any Day on which banks are open for business in New York City, New York.



     “Base Fee Component” means that portion of the Fee identified as the “Base Fee Component” in
Appendix T-3 and which is equal to the amount specified therefor in Appendix T-3, as such amount
may be adjusted as a result of adjustment of the Fee pursuant to Section 5.1.4 of this Agreement.



-3-









 





     “Base Target Substantial Completion Date” means (a) for Unit 1, the date that is **** (****)
Days after the Commencement Date, and (b) for Unit 2, the date that is **** (****) Days after the
Commencement Date, in each case, as such dates may be adjusted pursuant to this Agreement.



     “Bonus Amounts” means, with respect to a Unit, the Early Substantial Completion Bonus Amount,
the Limestone Consumption Bonus Amount, the Net Electrical Output Bonus Amount, and the Net Heat
Rate Bonus Amount.



     “BTU” means British Thermal Units.



     “Business Day” means any Day, except Saturdays, Sundays, and United States Government federal
holidays, and holidays under the laws of the State of Illinois.



     “Buydown Amounts” means the Net Electrical Output Buydown Amount, the Net Heat Rate Buydown
Amount, the Limestone Consumption Buydown Amount, and the Unit Equivalent Availability Buydown
Amounts.



     “Cash Flow Cap” has the meaning set forth in Appendix J.



     “Cash Flow Cap Curve” has the meaning set forth in Appendix J.



     “Certificate of Final Completion” has the meaning set forth in Section 6.5.3.



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



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



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



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



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



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



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



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



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



-4-









 





     “Coal Combustion Waste” means waste products generated from the combustion of coal at the
Facility, including fly ash, pyrites, crusher screened or rejected material, bottom ash and gypsum.



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



     “Common Facilities” means (a) the fresh water intake facilities and the water discharge
facilities, (b) all ponds required by Permits, (c) Coal Combustion Waste storage and handling
facilities, (d) coal yard and handling facilities, (e) the limestone receiving and handling
facilities, (f) the water treatment system, (g) the railroad facilities, (h) the chimney shell (but
not the flues), and (i) other installed Equipment or permanent facilities located on the Facility
Site that are used by both Units, as more particularly described in Appendix A.



     “Common Facilities Capacity Test” has the meaning set forth in Appendix E.



     “Compensation” means the amounts of compensation to which Contractor is entitled for
performance of the Work as described in Section 5.1.



     “Completed Equivalent Availability Test” has the meaning set forth in Section 7.3.



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



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



     “Connect” (and derivations thereof) means the provision by Contractor of all Work (including
Equipment, Materials and labor) necessary to effect the connection of the Facility to the Utility
Interconnection Points.



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



     “Consumables” means items such as compressed air or gases, chemicals, oils, lubricants,
cleaning materials, gaskets, valve packing, lamps, light bulbs, fuel filters and comparable items
which, by normal industry practices, are considered consumables and are replaced on a regular
basis, required for cleaning, preparing or completing the Work or are required for the proper
operation of the Equipment. The term “Consumables” does not include items to be provided by PSGC
pursuant to Section 3.16.



     “Contractor” means Bechtel Power Corporation, a Nevada corporation.



-5-









 





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



     “Contractor Equipment and Materials” means all Equipment and Materials other than Owner
Equipment and Materials.



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



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



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



     “Contractor Lien” means a Lien upon the Facility, the Work, any Owner’s Proportionate Share or
the Facility Site, or any Equipment or Materials encompassed therein, or any other property of any
Owner or PSGC or any of their respective Affiliates filed by or through Contractor or its
Affiliates, Subcontractors, Owner Suppliers, or their respective Personnel in connection with the
Work.



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



-6-









 





     “Contractor Lien Security” means, at Contractor’s sole discretion, either a Contractor Lien
Bond or Contractor Lien Title Indemnity.



     “Contractor Lien Title Indemnity” means a policy of title insurance or update or endorsement
to an existing policy of title insurance (a) issued by a title insurance company reasonably
acceptable to PSGC, (b) in form and substance reasonably acceptable to PSGC, (c) in the amount
necessary under Applicable Legal Requirements to secure such Lien, and (d) sufficient (i) to insure
Owner(s)’ interest in the Facility with no exceptions for such Contractor Lien, and (ii) to prevent
the Lien holder from causing a sale, foreclosure or other title divestiture with respect to the
Facility or the Facility Site or improvements thereon (including any Equipment or Materials
encompassed therein), or any other property of any Owner or PSGC.



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



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



     “Contractor’s Construction Manager” has the meaning set forth in Section 2.2.3.



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



     “Contractor Transmission Facilities” means transmission facilities required to be provided by
Contractor pursuant to Appendix A.



     “Contractual Target Substantial Completion Date” means (a) for Unit 1, the date that is ****
(****) Days after the Commencement Date, and (b) for Unit 2, the date that is **** (****) Days
after the Commencement Date, in each case, as such dates may be adjusted pursuant to this
Agreement.



     “Craft Labor” means all of Contractor’s and its Affiliates’ craft labor (direct, indirect and
start-up) for general foremen, foremen, journeymen, apprentices, and others who perform
construction and associated construction activities in connection with the Work. Craft Labor
excludes all of Contractor’s and Contractor’s Affiliates’ non-manual labor and all Subcontractor
(other than Contractor’s Affiliates) labor.



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



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



-7-









 





     “Day” means the twenty-four hour period beginning at 12:00 midnight prevailing time in Lively
Grove, Illinois and ending immediately before 12:00 midnight prevailing time in Lively Grove,
Illinois on the next succeeding day.



     “Deadband” has the meaning set forth in Appendix T-3.



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



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



     “Design Conditions” means the “Design Conditions” of Unit operation for purposes of the Net
Electrical Output Target and Net Heat Rate Target as identified in Paragraph 1.05 of Appendix E.



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



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



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



     “Early Substantial Completion Bonus Amount” has the meaning set forth in Section 8.3.2.



     “Early Target Substantial Completion Date” means (a) for Unit 1, the date that is **** (****)
Days after the Commencement Date, and (b) for Unit 2, the date that is **** (****) Days after the
Commencement Date, in each case, as such dates may be adjusted pursuant to this Agreement.



     “Earned Fee Component” means that portion of the Fee identified as the “Earned Fee Component”
in Appendix T-3 and which is equal to the amount specified therefor in Appendix T-3, as such amount
may be adjusted as a result of an adjustment of the Fee pursuant to Section 5.1.4 and pursuant to
Appendix T-3.



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



     “Eligible Person” means a Person that (a) has a credit rating on its debt from one or more of
the Rating Agencies of Investment Grade or has obtained a shadow rating of Investment Grade, (b)
has closed on a Financing, the proceeds of which are sufficient (taking into account any equity
contributions required by such Financing) to pay its Proportionate Share of the unpaid balance of
the Compensation payable to Contractor for performance of the Work, (c) is approved by Contractor,
which approval will not be unreasonably withheld, conditioned or delayed, (d) has delivered to
Contractor a Qualified Backup Guaranty, or (e) with



-8-









 







respect to a transfer of a Proportionate Share
(or portion thereof), such Person has a financial condition either (i) substantially equivalent to
the transferring Owner as of the
Effective Date relative to that transferring Owner’s Maximum Permitted Proportionate Share or
(ii) superior to the transferring Owner measured as of the Effective Date relative to the increased
Proportionate Share to be held by the transferee, in each case taking into consideration, in the
case of Peabody Energy Corporation Affiliates, the Peabody Guaranties required by Appendix X.



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



     “Environmental Compliance Target” has the meaning set forth in Section 8.1.1.5 of Appendix Z.



     “Equipment” means any product that (a) is to be incorporated into the Facility, (b) is an
assembly of operational and/or non-operational parts, whether motorized or manually operated, and
(c) requires service connections such as wiring or piping.



     “Equivalent Availability” has the meaning specified in Appendix E.



     “Estimated Reimbursable Costs” has the meaning set forth in Section 5.2.2.



     “Excess Escalation” has the meaning set forth in Appendix T-2.



     “Excluded Change of Law” means (a) any Change of Law that is primarily applicable to
Contractor Taxes of any kind or nature, or (b) any Change of Law that has been enacted, passed or
adopted (but is not yet effective) as of the Effective Date; provided, however,
that the foregoing shall be without prejudice to Section 10.3 (n) and (o).



     “Facility” means the mine mouth pulverized coal-fired steam-electric generating facility
having a name plate electricity generating capacity of approximately 1,600 megawatts (nominal)
located on the Facility Site, together with all Equipment, Materials, Common Facilities,
appurtenances and auxiliaries necessary for its operation and transmission of electricity to the
Transmission Owner Facilities, as described in Appendix A, but excluding (a) Utility Facilities,
and (b) permanent improvements on the Facility Site not to be performed, provided, construction
managed or administered by Contractor as part of the Work.



     “Facility Manual” means the manual described in Appendix A, Section 01111.



     “Facility Site” means the land on which the Facility will be located or which is provided for
performance of the Work, as further described in Appendix S.



-9-









 





     “Fee” has the meaning set forth in Appendix T-3, as such amount may be adjusted in accordance
with Section 5.1.4 of this Agreement and pursuant to Appendix T-3.



     “Fee Installment” means an installment of either the Base Fee Component or the Earned Fee
Component.



     “Final Completion” means that Contractor has satisfied the applicable requirements set forth
in Section 6.5 and Appendix A with respect to the Facility.



     “Final Completion Date” means the date determined in accordance with Section 6.5 as the date
on which Final Completion occurs.



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



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



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



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



     “First Fire Date” means as to each Unit, the Day on which natural gas or propane is first used
to ignite such Unit.



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



     “FNTP Advance Notice” has the meaning set forth in Section 2.1.2.



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



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



     “Functional Tests” means the functional tests to be conducted by Contractor as described in
Appendix E.



-10-









 





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



     “Gross Negligence” (and derivations thereof) means an act or failure to act that blatantly
deviates from the standard of care of a reasonable person in circumstances where the actor had
actual awareness that a risk of harmful consequences could be involved, but nevertheless proceeded
in reckless disregard of harmful consequences.



     “Hazardous Substance” means any element, compound, mixture, solution, particle or substance
(a) which is included within the definitions of (i) ”hazardous substances,” “hazardous wastes,”
“toxic substances,” “hazardous pollutants” or “toxic pollutants” in any Applicable Legal
Requirement of any Governmental Authority of the United States or the State of Illinois and any
applicable judicial, administrative and regulatory decrees, judgments and orders relating to the
protection of human health or the environment, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., the Resource, Conservation
and Recovery Act, as amended, 42 U.S.C. Sections 6901 et seq. (“RCRA”), the Toxic Substances
Control Act, 15 U.S.C. Sections 2601 to 2671, the Clean Air Act, 42 U.S.C. Sections 7401 et seq.,
and/or the Federal Water Pollution Control Act, 33 U.S.C. Sections 1251 to 1387, (ii) any “PCBs” or
“PCB items” as defined in 40 CFR Section 761.3, and (iii) any “asbestos”, as defined in 40 CFR
Section 763.63, (b) the presence of which requires investigation or remediation under any
Applicable Legal Requirements, or (c) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous, and is or becomes, prior to
Substantial Completion of Unit 2, regulated as a “Hazardous Waste” or “Hazardous Material” by any
Governmental Authority of the United States or the State of Illinois. “Hazardous Substances” shall
also include underground storage tanks as defined in Section 9001 of RCRA, 42 U.S.C. § 6991.



     “Incidental Equipment” has the meaning set forth in Section 1.5.3 of Appendix I.



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



     “Initial Guaranty” means the guaranty of Peabody Energy Corporation to be executed
substantially in the form of Appendix R-8.



-11-









 





     “Initial Synchronization” means, for each Unit, the first time the generator breaker from the
steam turbine generator is closed and connected to the electric transmission grid.



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



     “Interconnection Agreement” means that certain Large Generator Interconnection Agreement,
effective November 16, 2004, entered into among Midwest Independent Transmission System Operator,
Inc., Ameren Services Company, acting as agent for Illinois Power Company, and PSGC.



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



     “Key Benchmark Project” means a construction project involving use of **** (****) or more
workers at peak or use of **** (****) or more workers of one single Craft Labor Category at peak,
which is located within a radius of **** (****) miles from the Facility Site, excluding any project
which primarily involves outage work and lasts for a cumulative duration of less than **** (****)
Days.



     “Key Owner Supplier” means an Owner Supplier for the STG, the AQCS or the steam generator for
each Unit.



     “Key Personnel” has the meaning set forth in Section 2.2.8.



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



     “Late Completion Damages” has the meaning set forth in Section 8.2.3.



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



     “Letter of Intent” means the Letter of Intent by and between Prairie State Generating Company,
LLC and Contractor, dated as of October 14, 2006.



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



     “Lien Waiver” means a waiver and release of Liens in substantially the same form as set forth
in Appendix R-11-1, R-11-2, R-11-3 or 

R-11-4, as applicable.



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     “Limestone Consumption Bonus Amount” has the meaning set forth in Section 8.3.1(i).



     “Limestone Consumption Buydown Amount” has the meaning set forth in Section 8.2.1(i).



     “Limestone Consumption Target” has the meaning set forth in Section 8.1.1.1 of Appendix Z.



     “Limestone Interim Damages” has the meaning set forth in Section 8.2.8.



     “LNTP Activities” means the activities described as such in Appendix V, as such activities may
be expanded pursuant to Section 2.1.2.



     “LSB”
means the **** (****) last stage blades of the STG.



     “LSB
Event” means (a) any **** relating to the LSB of the STG for either Unit, except to the
extent caused by (i) **** by Contractor or any of its Subcontractors, it being understood
that **** means a **** to **** or **** the LSB in a manner consistent with the instructions of
the STG Vendor (or Professional Standards in the absence of Contractor having received such instructions
or if such instructions do not provide sufficient guidance),
(ii) the **** of another **** of
the STG Vendor or other system of a Unit not initially caused by the
****, or (iii) the **** by Contractor or any of its Subcontractors (or PSGC’s operations personnel acting under Contractor’s
or any of its Subcontractors’ direction) to **** or **** the **** in accordance with the manuals
provided by the **** (or Prudent Industry Practices in the absence of Contractor having received
all or any portion of such manuals or if such manuals do not provide sufficient guidance), or (b)
any delay in delivery of the **** which delay is related to a **** of its ****, or (c) a **** of
the **** after the Effective Date, which in any of the above cases has an adverse impact on the
ability of Contractor to achieve any of the Targets.



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



     “Mechanical Completion” for each Unit means that Contractor has satisfied the requirements set
forth in Section 6.1 with respect to such Unit.



     “Mechanical Completion Date” has the meaning set forth in Section 6.1.3.



     “Milestone(s)” means the milestones identified in Appendix J, the achievement of which are a
condition of the payment of Fee Installments.



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     “Milestone Values” means the values assigned in Appendix J to the Milestones.



     “Moody’s” means Moody’s Investors Service, Inc., a corporation organized and existing under
the laws of the State of Delaware.



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



     “Net Electrical Output Bonus Amount” has the meaning set forth in Section 8.3.1(ii).



     “Net Electrical Output Buydown Amount” has the meaning set forth in Section 8.2.1(ii).



     “Net Electrical Output Target” has the meaning set forth in Section 8.1.1.2 of Appendix Z.



     “Net Heat Rate” has the meaning set forth in Appendix E.



     “Net Heat Rate Bonus Amount” has the meaning set forth in Section 8.3.1(iii).



     “Net Heat Rate Buydown Amount” has the meaning set forth in Section 8.2.1(iii).



     “Net Heat Rate Target” has the meaning set forth in Section 8.1.1.3 of Appendix Z.



     “Non-Reimbursable Costs” has the meaning set forth in Appendix I.



     “Notice” means a written notice, order or other communication given under this Agreement to a
Party in accordance with Section 20.8.



     “Notice of Final Completion” has the meaning set forth in Section 6.5.2.



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



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



     “Other Benchmark Project” means a construction project involving use of **** (****) or more
workers at peak or use of **** (****) or more workers of one single Craft Labor Category at peak,
which is located within a radius of **** (****) miles from the Facility Site, excluding any project
which primarily involves **** and lasts for a cumulative duration of less than **** (****) Days.



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



     “Owner Contract” means a contract or purchase order executed or to be executed by PSGC for any
Owner Suppliers’ Scope as set forth in Appendix G.



     “Owner Equipment and Materials” means all Equipment and Materials provided or to be provided
by Owner Suppliers under Owner Contracts.



     “Owner Guaranty” has the meaning set forth in Section 14.1.



     “Owner Supplier” means a contractor or vendor that has executed an Owner Contract.



     “Owner Supplier Defect” has the meaning set forth in Section 9.7.



     “Owner Supplier Payment Account” has the meaning set forth in Appendix W.



     “Owner Suppliers’ Scope” means (a) those items of Owner Equipment and Materials, (b)
construction work, or (c) other items or services to be supplied by PSGC pursuant to an Owner
Contract as set forth in Appendix G.



     “Owners” mean the Person(s) who have several, individual, undivided interests in the Facility,
designated as such in accordance with the Notice provided to Contractor pursuant to Section 2.0 of
Appendix X, as such list of Owners may be amended from time to time pursuant to Section 20.1.



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     “Parties” means PSGC and Contractor; “Party” means PSGC or Contractor, as the case may be.



     “Peabody Guaranty” means the guaranty of Peabody Energy Corporation substantially in the form
of Appendix R-7.



     “Performance Targets” means the Performance Targets as described in Appendix Z.



     “Performance Tests” means the tests described in Appendix E.



     “Permits” means all waivers, franchises, variances, permits, approvals, authorizations,
licenses or orders of or from any federal, state, provincial, county, municipal, regional,
environmental or other governmental body, instrumentality, agency, authority, court or other body
having jurisdiction over any Owner, PSGC or Contractor and their respective obligations under this
Agreement or the Facility, the Facility Site, the performance of the Work, or the operation of the
Facility, as may be in effect from time to time.



     “Person” means any individual, corporation, partnership, limited liability company,
association, joint stock company, trust, unincorporated organization, joint venture or other entity
with legal constitution under Applicable Legal Requirements, or any government or political
subdivision or instrumentality or agency thereof.



     “Personnel” means, with respect to a Person, such Person’s employees, agents, secondees,
independent contractors, representatives, invitees, subcontractors, vendors and its agents’,
independent contractors’, representatives’, invitees’, subcontractors’, vendors’ respective
employees, agents, secondees, personnel, representatives, invitees, subcontractors, vendors or
independent contractors.



     “Preliminary Mitigation Plan” has the meaning set forth in Section 11.2.1.



     “Professional Standards” means those standards and practices used by, and the degree of skill
and judgment exercised by, recognized United States engineering and/or construction firms, when
performing high quality services on power plants similar to the Facility, taking into account, as
appropriate, the recommendations and requirements of vendors of Equipment and Materials. It is not
intended that Professional Standards as a standard of care may be used by PSGC to require changes
to Equipment or Materials that are described with specificity in Appendix A.



     “Project Safety Manual” has the meaning set forth in Section 2.2.12.



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     “Project Schedule” is the Level **** schedule as of the Effective Date, and the Level ****
schedule as of the Commencement Date, as such Level **** schedule may be updated (in accordance
with the terms of this Agreement) from time to time.



     “Proportionate Share” means the proportionate, several, individual undivided interest of each
Owner, as a tenant-in-common in and to the Facility as designated in accordance with the Notice
provided to Contractor pursuant to Section 2.0 of Appendix X, as such Proportionate Share may be
amended from time to time pursuant to Section 20.1.



     “Prudent Industry Practices” means, at a particular time, the practices, methods, materials,
supplies, equipment and standards of safety, performance and service that are commonly applied in
the electric utility industry in the United States to operate and maintain power plants similar to
the Facility, including the use of, and adherence to, equipment, practices and methods, applicable
industry codes, standards, and regulations that, in the exercise of reasonable judgment and in
light of the facts and circumstances known at the time the decision was made, would be reasonably
expected to accomplish the desired result while protecting the Facility and any individual from
damage, loss or injury. Prudent Industry Practices are not intended to be limited to the optimum
practice or method to the exclusion of all others, but rather to be a spectrum of possible, but
reasonable practices and methods, having due regard for, among other things, manufacturers’ and
vendors’ requirements and warranties, Applicable Legal Requirements and the requirements of this
Agreement.



     “PSGC” has the meaning set forth in the preamble to this Agreement.



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



-17-









 







liquidator or trustee or assignee in bankruptcy or insolvency
of PSGC, or of all or substantially all of the property of PSGC.



     “PSGC Authorized Parties” has the meaning set forth in Section 9.2.



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



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



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



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



     “PSGC Permits” has the meaning set forth in Section 3.2.



     “PSGC Project Manager” has the meaning set forth in Section 3.6.



     “PSGC-Provided Supplies” has the meaning set forth in Section 3.16.



     “PSGC Taxes” has the meaning set forth in Section 3.4.1.



     “PSGC Test Interruption” has the meaning set forth in Appendix E.



     “Qualified Backup Guaranty” means a guaranty of the obligation of an Owner under its Owner
Guaranty, in substantially the form of the Peabody Guaranty, issued by an Eligible Person meeting
the requirements of (a), (c) or (e) of the definition of Eligible Person. So long as one hundred
percent (100%) of the obligations of an Owner are guaranteed, a Qualified Backup Guaranty for such
Owner may consist of two or more guaranties of the applicable Owner Guaranty (i) issued by Eligible
Persons who meet the requirements of (a), (c) or (e) of the definition of Eligible Person and (ii)
guaranteeing (severally and not jointly) only the percentage of the Owner’s obligations under its
Owner Guaranty that relates to the issuing guarantor’s direct or indirect ownership interest in the
Owner.



     “Rating Agency” means any of Standard & Poor’s, Moody’s or Fitch (or another nationally
recognized credit rating agency of similar standing).



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



     “Reconciled Application for Payment” has the meaning set forth in Section 5.2.2.



     “Record Documents” has the meaning set forth in Section 2.13.



     “Recovery Plan” has the meaning set forth in Section 2.3.2.1.



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     “Reimbursable Costs” has the meaning set forth in Appendix I.



     “Release” means spilling, leaking, pumping, pouring, emitting, discharging, injecting,
escaping, leaching, dumping, or disposing into or migration within the environment.



     “Remediation” means the investigation, handling, treatment, transportation, removal, disposal,
remediation and cleanup of, and other corrective action for, Hazardous Substances and/or damage to
the environment caused by Hazardous Substances.



     “Replacement Contractor” has the meaning set forth in Section 13.4.1.



     “Review Committee” has the meaning set forth in Section 20.21.



     “Rules” has the meaning set forth in Section 17.2.1.



     “Sales Taxes” has the meaning set forth in Section 2.2.9.1.



     “Samples” has the meaning set forth in Section 01330 of Appendix A.



     “Separate Contractors” means subcontractors and vendors of PSGC (other than Owner Suppliers)
that will perform work for or on behalf of PSGC as to which Section 2.15 applies.



     “Sound Level Targets” means the sound level(s) required pursuant to Section 02200(G) and (H)
of Appendix A.



     “Standard & Poor’s” means Standard & Poor’s Ratings Group, a division of McGraw-Hill Inc.



     “Startup Period” has the meaning set forth in Section 3.8.1.



     “STG” means, for each Unit, the steam turbine generator for such Unit.



     “STG Vendor” means the Owner Supplier supplying the STGs under an Owner Contract.



     “Subcontractor” means each and every Supplier, subcontractor or contractor of any tier
performing any part of the Work, including providing any Contractor Equipment and Materials,
directly or indirectly for or to Contractor.



     “Submittals” means all documents required to be submitted to PSGC by Contractor pursuant to
Appendix A or other provisions of this Agreement.



-19-









 





     “Substantial Completion” for each Unit means that Contractor has satisfied the requirements
set forth in Section 6.2 and Section 01780, paragraph 1.02 of Appendix A with respect to such Unit.



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



     “Supplier” means a manufacturer, fabricator, supplier, distributor, materialman or vendor of
Contractor or a Subcontractor.



     “Target Assumptions” means the assumptions set forth in Appendix N.



     “Target Contract Dates” means the Target Mechanical Completion Date for each Unit, the Early
Target Substantial Completion Date for each Unit, the Base
Target Substantial Completion Date for each Unit, the Contractual Target Substantial
Completion Date for each Unit and the Target Final Completion Date, as such dates may be adjusted
pursuant to this Agreement.



     “Target Final Completion Date” means the **** of the Contractual Target
Substantial Completion Date of Unit 2, as such date may be adjusted pursuant to this Agreement,
unless the Substantial Completion Date of Unit 2 occurs after the Contractual Target Substantial
Completion Date of Unit 2, in which case, the Target Final Completion Date shall be the earlier of
(i) the Day prior to the **** of the Substantial Completion Date of Unit 2, or (ii) the
**** (****) Day following the **** of the Contractual Target Substantial Completion
Date of Unit 2.



     “Target Mechanical Completion Date” means (a) for Unit 1, the date that is **** (****) Days
after the Commencement Date, and (b) for Unit 2, the date that is **** (****) Days after the
Commencement Date, in each case, as such dates may be adjusted pursuant to this Agreement. The
foregoing dates are premised upon the Base Target Substantial Completion Dates.



     “Target Price” means the amount set forth in Appendix T-1 as such amount may be adjusted
pursuant to this Agreement.



     “Target Price Estimate” means the detailed breakdown of the Target Price compiled by
Contractor and initialed by the Parties.



     “Targets” means the Target Price, the Target Contract Dates, and the Performance Targets.



     “Taxes” means all taxes, assessments, levies, duties, fees, charges and withholdings of any
kind whatsoever and all penalties, fines, additions to tax, and interest thereon.



-20-









 





     “Term” means the period of time commencing upon the Effective Date and ending upon the earlier
of the last Day of the Warranty Period for Unit 2 or the termination of this Agreement.



     “Termination Cost Cap” has the meaning set forth in Appendix J.



     “Termination Payment” has the meaning set forth in Section 13.1.1.



     “Threshold Amount” has the meaning set forth in Section 5.2.7.



     “Total Installed Cost” has the meaning set forth in Appendix T-2.



     “Transmission Owner” means Ameren Services Company, acting as agent for Illinois Power Company
under the Interconnection Agreement.



     “Transmission Owner Facilities” means the transmission facilities to be provided by the
Transmission Owner.



     “Unit” means either Unit 1 or Unit 2, as the case may be, collectively, the “Units.”




     “Unit 1” means (a) that portion of the Facility consisting of the first of two pulverized
coal-fired power generation units to be provided, installed and started-up by Contractor, and (b)
the Common Facilities (other than Common Facilities associated with Unit 2 as set forth in Appendix
A).



     “Unit 1 Punch List” has the meaning set forth in Section 6.3.1.



     “Unit 2” means that portion of the Facility consisting of the second of two pulverized
coal-fired power generation units (and the Common Facilities associated with Unit 2 as set forth in
Appendix A) to be provided, installed and started-up by Contractor.



     “Unit 2 Punch List” has the meaning set forth in Section 6.3.2.



     “Unit Equivalent Availability” has the meaning set forth in Appendix E.



     “Unit Equivalent Availability Buydown Amount” has the meaning set forth in Section 8.2.2.



     “Unit Equivalent Availability Target” has the meaning set forth in Section 8.1.1.4 of Appendix
Z.



     “Unit Equivalent Availability Test” means the thirty (30) consecutive Day Equivalent
Availability Test described in Appendix E.



-21-









 





     “Unit Hundred Hour Test” means the one hundred (100) consecutive hour Equivalent Availability
Test described in Appendix E.



     “Utility Facilities” means the third party permanent facilities for potable water, sewer,
phone, cable and other utility services to which Contractor will Connect the Facility.



     “Utility Interconnection Points” means the respective points where the Facility will be
Connected to each of the Utility Facilities as set forth in Appendix A.



     “Warranties” means the warranties made by Contractor in Article 9.



     “Warranty Defect” has the meaning set forth in Section 9.2.1.



     “Warranty Period” has the meaning set forth in Section 9.5.1.



     “Work” has the meaning set forth in Section 2.2.



     1.2 Certain Interpretative Matters. In this Agreement, unless the context otherwise requires:




	 	(a)	 	the singular number includes the plural number and vice versa;
	 
	 	(b)	 	reference to any Person includes such Person’s successors and assigns that are
permitted by this Agreement, and reference to a Person in a particular capacity
excludes such Person in any other capacity;
	 
	 	(c)	 	any accounting term used and not otherwise defined in this Agreement has the
meaning assigned to such term in accordance with generally accepted accounting
principles in the United States consistently applied;
	 
	 	(d)	 	“including” (and with correlative meaning “include”) means (i) including
without limiting the generality of any description preceding such term, and (ii), with
respect to any description following such term, means “including, without limitation”
and “including, but not limited to;”
	 
	 	(e)	 	reference to any Applicable Legal Requirement means such Applicable Legal
Requirement as amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time;
	 
	 	(f)	 	a reference in a document to an Article, Section, Exhibit, Schedule, Annex, or
Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such
document unless otherwise indicated and Exhibits,




-22-









 






	 	 	 	Schedules, Annexes or Appendices to
any document shall be deemed incorporated by reference in such document;
	 
	 	(g)	 	without limiting the rights or obligations of the Parties pursuant to Article
10, any agreement, document, instrument, or insurance policy, defined or referred to
herein or in any agreement or instrument that is referred to herein (including this
Agreement) means such agreement, document, instrument, or insurance policy, as from
time to time amended, modified, supplemented, superseded, or replaced in accordance
with the terms thereof and, if applicable, the terms hereof, including (in the case of
agreements or instruments) by waiver or consent, and references to all attachments
thereto and instruments incorporated therein; and
	 
	 	(h)	 	“as indicated” refers to drawings;
	 
	 	(i)	 	unless the context specifically requires otherwise, the terms “approval,”
“consent,” “accept,” “acceptance,” “authorization” and terms of similar import shall be
deemed to be followed by the phrase “which shall not be unreasonably withheld,
unreasonably conditioned or unreasonably delayed;”
	 
	 	(j)	 	“hereof,” “herein,” “hereby,” “hereto,” and similar words refer to this entire
Agreement and not any particular article, section, subsection or other subdivision of,
or Appendix, or schedule to this Agreement;
	 
	 	(k)	 	an amount is “due” or “owing” (or using words of similar meaning) when the
payment period associated with such payment obligation has expired (excluding cure
periods);
	 
	 	(l)	 	any discretionary activity to be exercised by a Person hereunder (including any
approval to be granted by such Person) shall be deemed to include the requirement that
such Person exercise its discretion reasonably, unless otherwise specifically provided
herein; and
	 
	 	(m)	 	a “month” refers to a calendar month.





     1.3 Order of Precedence.



          1.3.1 Notice. Each Party shall provide Notice to the other Party of any discovered
conflict or inconsistency among any of the Appendices or between any of the Appendices and the Body
of this Agreement promptly upon such Party acquiring actual knowledge of such conflict or
inconsistency. In the event of any conflict between provisions within the Body of this Agreement
and the Appendices, the following order of precedence for construction and interpretation shall
apply unless the Parties otherwise agree:




-23-









 









	 	(a)	 	Amendments and Change Orders to the Body of this Agreement duly signed and
issued after the Effective Date, with those of a later date having precedence over
those of an earlier date;
	 
	 	(b)	 	the Body of this Agreement;
	 
	 	(c)	 	Change Orders to Appendices duly signed and issued after the date of this
Agreement, with those of a later date having precedence over those of an earlier date;
	 
	 	(d)	 	All Appendices.





          1.3.2 Conflict. In the event of a conflict within any of the levels set forth in the
order of precedence in Section 1.3.1, the Party identifying such conflict shall give notice to the
other Party and the Parties shall evaluate the conflict and use their respective reasonable efforts
to resolve the conflict and, as necessary, set forth the solutions in writing by executing a Change
Order, as appropriate. In the event the Parties are unable to resolve the conflict, the decision
shall be made by PSGC, in consultation with the PSGC Engineer, and must be consistent with
Professional Standards, subject to Contractor’s rights under Article 17. Such resolution shall be
provided by written Notice to Contractor. In the event a lower level of precedence set forth in
Section 1.3.1 contains additional or more detailed requirements than are contained in a higher
level precedence, the existence of such additional or detailed requirement does not constitute a
conflict. Notwithstanding anything in this Section 1.3, the provisions of this Agreement,
including all Appendices, shall wherever possible be construed as complementary rather than
conflicting.




     1.4 PSGC Acting as Agent for Owners.



          1.4.1 Appointment as Agent. On the Commencement Date, each Owner, as evidenced by its
Owner Guaranty, will have agreed to designate and appoint PSGC as its agent to act for and on
behalf of such Owner for all purposes under this Agreement. In each such Owner Guaranty, each
Owner will affirm to Contractor that PSGC shall take all actions under this Agreement on behalf of
such Owner and that PSGC shall exercise all rights and perform all obligations of such Owner under
this Agreement, except (a) the right of each Owner to receive its Proportionate Share of the
Facility and other Work as to which title (or license) is to vest in each Owner pursuant to this
Agreement, (b) the several obligation of each Owner to make payment of its Proportionate Share of
all payments due to Contractor under this Agreement, and (c) other rights of Owners that are
expressly reserved in this Agreement. PSGC covenants to Contractor that, prior to the Commencement
Date, it will have accepted its designation as agent for each Owner.




          1.4.2 Actions Against Contractor. On the Commencement Date each Owner, as evidenced
by its Owner Guaranty, will have agreed that it will (a) enforce




-24-









 







all of its rights against
Contractor hereunder solely through the collective action of PSGC on behalf of all Owners, and (b)
bring no other action against Contractor in connection with or arising under this Agreement in its
own name or otherwise except through PSGC; provided, however, nothing in this Section 1.4.2 shall
limit the rights of an Owner (i) to defend any claims made by Contractor under or pursuant to its
Owner Guaranty, or (ii) to
pursue a Claim that must be commenced or defended in its own name; provided, further, in the
case of clause (ii) above, Owners agree to use their respective reasonable efforts to consolidate
similar Claims in a single action.




          1.4.3 Binding Effect. On the Commencement Date, each Owner, as evidenced by its Owner
Guaranty, will have agreed that it and the successors and assigns of its Proportionate Share, in
whole or in part, shall be bound by all of the limitations and restrictions imposed upon PSGC under
this Agreement as though such limitations and restrictions were imposed directly upon such Owner.




          1.4.4 Actions of Contractor. Contractor agrees that on and after the Effective Date,
it shall bring all actions and claims arising under this Agreement against PSGC pursuant to the
provisions of Article 17; provided, however, on and from the Commencement Date, if PSGC shall have
failed to make an undisputed (as determined by PSGC, not the individual Owner) payment when due to
Contractor and Contractor gives Notice to PSGC pursuant to Section 1.4.5 requesting the identity of
any Owner (or Owners) that has failed to pay its Proportionate Share of amounts due and owing to
Contractor, and PSGC has given Contractor Notice of the identity of such Owner (or Owners), then
Contractor may bring such action directly against a non-paying Owner for any failure by such
non-paying Owner to pay its Proportionate Share of such payment obligation to Contractor under and
pursuant to such Owner’s Owner Guaranty. Notwithstanding the foregoing, Contractor shall be
entitled to exercise its other rights hereunder in the event of a payment default, including its
right to suspend performance of the Work and its termination rights pursuant to this Agreement.




          1.4.5 Several Liability. On and from the Commencement Date, each Owner shall be
severally (and not jointly) liable for its Proportionate Share of all amounts owed to Contractor
hereunder. Such several obligation of each Owner shall be reflected in such Owner’s Owner
Guaranty. In the event of any failure by PSGC to pay Contractor any undisputed amount when due
under this Agreement, then within two (2) Business Days following receipt by PSGC of a written
request by Contractor to PSGC, PSGC shall provide Notice to Contractor of the identity of Owner or
Owners who have not paid their Proportionate Share of any amount owed to Contractor giving rise to
such payment default and the amount of the payment deficiency of each such Owner.




-25-









 








ARTICLE 2

CONTRACTOR’S WORK AND OTHER OBLIGATIONS




     2.1 Commencement of the Work.



          2.1.1 Effectiveness; LNTP Activities. This Agreement shall be effective and the
Parties shall be bound by the conditions applicable to their conduct on the Effective Date.
Contractor shall also provide PSGC with the forecast required by Section 5.9. Contractor is
authorized to and shall, from and after the Effective Date, proceed with the performance of the
LNTP Activities. The schedule for performance of the LNTP Activities is set forth in Appendix V.
In no event will the cumulative payment liability of PSGC to Contractor in respect of the LNTP
Activities prior to the Commencement Date exceed the Cash Flow Cap Curve or, in the event of
termination of this Agreement prior to the Commencement Date, the Termination Cost Cap associated
therewith. In no event will PSGC be liable for or responsible for any costs incurred by Contractor
prior to the Commencement Date for any Work Contractor performs other than the LNTP Activities
unless (a) agreed to by the Parties in a Change Order, (b) assumed by PSGC pursuant to the
provisions of Section 13.4 in connection with a termination of this Agreement, or (c) PSGC
suspends performance of the Work (or is deemed to have suspended performance of the Work) in
accordance with Section 2.1.2) and then only with respect to the cost of such suspension as
determined under this Agreement. The LNTP Activities are part of the Work for all purposes of this
Agreement, including the right to suspend Work for convenience pursuant to Section 4.4 and the
Change provisions of Article 10. A condition precedent to Contractor’s execution of this Agreement
is that all amounts due to Contractor pursuant to the Letter of Intent as at the Effective Date
have been paid for in full. PSGC shall be liable, as an obligation under this Agreement (and not
as an obligation under the Letter of Intent), to make payments pursuant to Task Orders 7, 8 and 9
issued under the Letter of Intent, to the extent unpaid as at the Effective Date. Only amounts paid
(whether under the Letter of Intent or under this Agreement) for work performed from and after
June 1, 2007, are included in the Target Price and will be included in the calculation of the Total
Installed Cost. A condition precedent to PSGC’s execution of this Agreement is (i) the surrender
to PSGC of the Guaranty of Peabody Energy Corporation, dated as of November 7, 2006, in favor of
Bechtel Power Corporation, which guaranty, upon execution of this Agreement by the Parties, will be
deemed terminated in its entirety, and (ii) delivery to Contractor, and Contractor’s
acknowledgement, of that certain letter from Peabody Energy Corporation, dated as of the Effective
Date, and relating to Section 2.1.3.2(c). A condition precedent to Contractor’s execution of this
Agreement is the delivery by PSGC of the Initial Guaranty.




          2.1.2 Full Notice to Proceed
        . If and when PSGC has determined it is desirable for Contractor to commence full performance
of the Work and the requirements of Sections 2.1.3.2 (a) through (d) and (f) through (h) have been




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satisfied, PSGC may deliver to Contractor a Notice in form of Appendix R-1 (the “Full Notice to
Proceed”), which will authorize Contractor to commence full performance of the Work on the Business
Day following delivery of such Notice (the “Commencement Date”). PSGC shall deliver a Notice to
Contractor that it intends to deliver the Full Notice to Proceed no less than thirty (30) Days
prior to delivering the Full Notice to Proceed (the “FNTP Advance Notice”). If the Full Notice to
Proceed is delivered to Contractor prior to October 1, 2007, for purposes of the Target Contract
Dates and the Project Schedule only, the Commencement Date will be deemed to be October 1, 2007.
If the Full Notice to Proceed has not been delivered to Contractor by October 1, 2007, then (i) the
Target Price and Project Schedule (including Target Contract Dates) will be equitably adjusted
until the Full Notice to Proceed is delivered, and (ii) either PSGC shall authorize in writing the
continued performance of the Work beyond October 1, 2007, by way of an expansion of the scope of
the LNTP Activities, or PSGC shall suspend the further performance of the Work in accordance with
Section 4.4; provided, that, in the absence of any continuing authorization from PSGC to
continue performance of the Work, it will be deemed that PSGC has suspended the further performance
of the Work in accordance with Section 4.4. In the event of any expansion of LNTP Activities,
suspension or deemed suspension as described above, the Cash Flow Cap, the Cash Flow Cap Curve and
the Termination Cost Cap will be equitably adjusted. If the Commencement Date has not occurred by
March 31, 2008, then either PSGC or Contractor may terminate this Agreement upon thirty (30) Days’
prior Notice to the other Party, and the termination will be effected as described in Section 13.1,
without any other liability to either Party as a result of such termination.




          2.1.3 FNTP Requirements.





          2.1.3.1 Contractor’s FNTP Requirements. At any time PSGC delivers a FNTP
Advance Notice, Contractor shall fulfill the following requirements:



                    (a) within ten (10) Business Days of delivery of the FNTP Advance Notice, advise PSGC in
writing that (i) there are no grounds of which it has knowledge on which a claim by Contractor
pursuant to Article 10 may be based or (ii) the specific grounds upon which all claims by
Contractor pursuant to Article 10 may be based together with an estimate of the impact thereof on
the Target Price, Target Contract Dates and other terms and conditions of this Agreement (with
further detail provided in a timely manner), it being understood that Contractor will not be
entitled to a Change Order for Change Events to the
extent Contractor had knowledge of the grounds therefor and failed to disclose such grounds as
required above; and



                    (b) contemporaneously with the delivery of the Full Notice to Proceed, deliver to PSGC:



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               (i) evidence of insurance required to be obtained by Contractor in
accordance with Appendix Q (if not previously delivered); (ii) the Level
**** Project Schedule (non-resource loaded) in native format; and




               (iii) subject to Section 20.24, surrender the Initial Guaranty for
cancellation; provided, that Contractor has been provided (i)
executed Owner Guaranties for all Proportionate Shares from such Persons
specified in the Notice given to Contractor in accordance with Section 2.0
of Appendix X, accompanied in each case by an opinion of counsel (inside
or outside) substantially in the form of Appendix R-10, and (ii) executed
Peabody Guaranties in the form of Appendix R-7 with respect to Owners that
are Affiliates of Peabody Energy Corporation.




2.1.3.2 Commencement of Full Performance of the Work. Contractor’s obligation
to commence full performance of the Work is subject to:



                    (a) PSGC having furnished to Contractor evidence of insurance required to be obtained by PSGC
in accordance with Appendix Q (if not previously delivered);



                    (b) PSGC having obtained those PSGC Permits required to be obtained by PSGC for the
commencement of construction and Contractor having received copies of such PSGC Permits;



                    (c) each Owner having provided (i) evidence that it has a rating on its debt from one or more
of the Rating Agencies of Investment Grade or has obtained a shadow rating of Investment Grade, or
(ii) reasonable assurance to Contractor of its ability to pay its Proportionate Share of the
Compensation, or (iii) evidence of the Financial Closing of a Financing in respect of which the
lending commitment is fully sufficient to fund payments of its Proportionate Share of the
Compensation (which on the Effective Date means an amount equal to the Target Price and the Fee,
assuming that the Total Installed Cost equals the Target Price);



                    (d) each Owner having provided an executed Owner Guaranty to Contractor, accompanied in each
case by an opinion of counsel (inside or outside) substantially in the form of Appendix R-10, for
its Proportionate Share
and each Owner(s) that is an Affiliate of Peabody Energy Corporation having provided executed
Peabody Guaranties in the form of Appendix R-7;



                    (e) PSGC having delivered the Full Notice to Proceed;



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                    (f) PSGC having provided access to the Facility Site in accordance with Section 3.1;



                    (g) PSGC having paid all amounts then due and owing to Contractor under this Agreement; and



                    (h) PSGC having given the notice required by Section 2.0 of Appendix X.


It is understood by the Parties that with respect to Section 2.1.3.2(c) and at any time after
issuance of the Full Notice to Proceed, Contractor will be entitled to request a meeting with any
Owner, which meeting shall be arranged by PSGC, for the purpose of providing Contractor with
reasonable information related to the credit standing and financial position of such Owner as it
relates to its plan to finance or otherwise fund its Proportionate Share of the Compensation. Any
Owner that provides evidence of a Financial Closing pursuant to Section 2.1.3.2(c)(iii), agrees to
allow Contractor to review a controlled copy of those portions of its loan agreement and/or other
related agreements that directly relate to the payment of Compensation hereunder. Such copy will
remain in the possession of such Owner or its Financing Parties at the time of its review by
Contractor.




     2.2 Work to be Performed. Except as otherwise expressly set forth in this Agreement as being
the responsibility of PSGC, Contractor shall, in accordance with this Agreement, perform or cause
to be performed all acts or actions required under this Agreement, including designing,
engineering, inspecting, securing, permitting (with respect to Contractor Permits), procuring
Equipment, Materials and Consumables, transportation, expediting, equipping, supplying,
constructing, installing, Connecting, training operators, commissioning, starting-up, testing,
construction management and administration of Owner Contracts in accordance with Appendix W and
completing the Facility (whether at the Facility Site or elsewhere as applicable) and satisfying
Contractor’s warranty obligations during the Warranty Period (collectively, the “Work”).
Contractor represents and warrants that it has thoroughly familiarized itself with all requirements
of this Agreement regarding the Work and has the requisite qualifications to perform, or cause to
be performed, all aspects of the Work in accordance with this Agreement. Without otherwise
limiting Contractor’s responsibility under this Agreement, including the responsibility to define
the scope of work and/or services for each Owner Contract as part of the Work, furnishing Owner
Suppliers’ Scope is not part of the Work. All work and services performed by or on behalf of
Contractor under the Letter of Intent shall be
treated as if performed under this Agreement. The definition of Work, together with the Owner
Suppliers’ Scope, includes everything necessary to complete the Facility consistent with
Professional Standards. The Work shall be performed by Contractor in accordance with Professional
Standards. Contractor shall perform all managerial, supervisory, administrative services, and
construction management that may be necessary to ensure the proper and timely



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completion of the
Facility in accordance with this Agreement. Contractor agrees that Contractor will be ultimately
responsible for the proper and timely completion of the entirety of the Work in accordance with
this Agreement, whether performed by Contractor or by any Subcontractor. The intent of this
Agreement is to relieve PSGC of the necessity of performing the Work, or any part thereof, to
complete the Facility in accordance with the requirements of this Agreement, except as expressly
and specifically itemized herein as being performed by PSGC in accordance with this Agreement.
Contractor hereby undertakes the following covenants and agrees to perform the Work and its
obligations hereunder as follows:



          2.2.1 Engineering/Design Services. Contractor represents and warrants that it has
thoroughly familiarized itself with this Agreement, that it shall provide all engineering and
design services (other than engineering and design services that are part of Owner Suppliers’
Scope) necessary for the achievement of the Performance Targets and the Sound Level Targets. All
engineering and design performed as part of the Work will be, and will have been, performed in
accordance with Professional Standards and Applicable Legal Requirements, and the Facility will be
engineered and designed to operate in conformity with the requirements of this Agreement,
Professional Standards, and Applicable Legal Requirements. Engineering and design services shall
include those services described in Appendix A. The Facility shall be designed so as to be capable
of generating, transmitting and delivering electricity and satisfying each of the Performance
Targets as demonstrated during the Performance Tests and the Sound Level Targets. Contractor shall
cooperate with PSGC and PSGC’s Engineer with respect to the performance by PSGC of its obligations
under Article 3. All engineering parts of the Work requiring certification under Applicable Legal
Requirements shall be certified by professional engineers licensed and properly qualified in the
State of Illinois to perform such engineering services. All such professional services shall be
performed with the degree of care, skill and responsibility customary among such licensed
personnel.




          2.2.2 Supervision and Superintendence.





          2.2.2.1 Supervision of Work; Responsibility. Contractor shall supervise and
direct the Work competently and efficiently, devoting such attention thereto and applying
such skills and expertise as may be
necessary to perform the Work in accordance with this Agreement. Contractor shall be
responsible for the conduct of Persons under its supervision. Contractor shall be
responsible for check-out, start-up and testing of the Facility and shall carry out those
activities in accordance with all applicable codes and Applicable Legal Requirements, the
start-up and check-out requirements and procedures as set forth in Appendix A and the
requirements for the Performance Tests. During start-up of the Facility, Contractor shall
coordinate with PSGC’s operating personnel to be provided by PSGC pursuant to Section 3.5
and shall schedule and phase-in the



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activities of such personnel in accordance with an
operator phase-in plan to be prepared and submitted by Contractor for PSGC’s review and
approval no later than twelve (12) months after the Commencement Date.




          2.2.2.2 Manufacturers’ Field Representatives. Contractor shall keep at the
Facility Site (through either the Contractor Subcontracts or, with PSGC’s support, the Owner
Contracts), competent manufacturers’ field representatives and any necessary assistants in
connection with the erection, installation, start-up, or testing of Equipment and other
components of the Facility, or for instruction or training of PSGC’s Personnel thereon, as
needed and/or as required by Appendix A.



          2.2.3 Contractor’s Construction Manager. At all times when performing Work on the
Facility Site and at all times on and from the Commencement Date, Contractor shall keep at the
Facility Site during the progress of the Work a competent project construction manager
(“Contractor’s Construction Manager”), who shall not be replaced without the prior concurrence by
PSGC with the replacement proposed by Contractor. Contractor’s Construction Manager shall be
solely dedicated to the performance of the Work. With prior Notice to PSGC, Contractor may
designate a temporary construction manager, who shall be deemed to be Contractor’s Construction
Manager, if and when Contractor’s Construction Manager is away from the Facility Site for four (4)
or more consecutive Days. Contractor’s Construction Manager shall be Contractor’s representative
at the Facility Site and shall have authority to act on behalf of and bind Contractor with respect
to day-to-day decisions in the ordinary course of business; provided, however,
Contractor’s Construction Manager has no authority to execute a Change Order or amend this
Agreement. Further, Contractor’s Construction Manager shall be responsible for furnishing
information on a timely basis as reasonably requested by PSGC, shall have the authority to agree
upon procedures for coordinating Contractor’s efforts with those of PSGC, and shall be present or
duly represented at the Facility Site at all times when the Work is being performed. Contractor’s
Construction Manager will not be Contractor’s Authorized Representative, unless Contractor
specifically appoints him or her as its Authorized Representative. PSGC may rely upon the actions
of Contractor’s Construction Manager taken within the authority set forth in this Section 2.2.3.
Any
communication (other than a Notice) given to the Contractor’s Construction Manager will be
deemed to be given to Contractor.




          2.2.4 Certain Facility Site Related Work. Contractor shall be responsible for
clearing, preparation, excavation, fill and landscaping of the Facility Site as is necessary to
perform the Work in accordance with this Agreement. Contractor shall also be responsible to clear,
prepare and rough grade that portion of the Facility Site on which the Transmission Owner
Facilities will be located as indicated in Appendix S, which portion of the Facility Site will
cease to be part of the Facility Site upon completion of such activities. Such Work shall be
performed




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in accordance with the Project Schedule to enable PSGC to arrange for the timely
installation of the Transmission Owner Facilities. Contractor shall provide for the procurement of
all soil, gravel and similar materials required for the performance of or otherwise in connection
with the Work and the proper disposal of such materials, subject to Section 2.5.4. Contractor
shall provide adequate treatment of and protection against soil erosion and water runoff resulting
from the Work. Contractor shall provide for the collection and disposal of groundwater resulting
from the Work. For the avoidance of doubt, Contractor shall have no responsibility for
pre-existing Hazardous Substances existing on the Facility Site, except to the extent provided in
Section 2.2.13.2(b).




          2.2.5 Reference Points. Contractor shall provide engineering surveys to establish
reference points for construction, which in Contractor’s judgment are necessary to enable
Contractor to perform the Work. Contractor shall be responsible for laying out the Work and shall
protect and preserve such established reference points. Any changes to the established reference
points shall require Contractor to update all Submittals (including those previously submitted)
reflecting the new reference points. Such updating shall be undertaken promptly, consistent with
Professional Standards, and without delaying Work that will be based on such updating. Contractor
shall provide Notice to PSGC whenever any reference point is lost or destroyed or requires
relocation and shall be responsible for the accurate replacement or relocation of such reference
points by professionally qualified Personnel.




          2.2.6 Procurement of Materials, Equipment.





          2.2.6.1 Procurement of and Responsibility for Materials and Equipment. Except
as otherwise provided in this Agreement, as part of the Work, Contractor shall furnish and
assume full responsibility for all Contractor Equipment and Materials, Construction Aids,
Consumables, Incidental Equipment, labor, transportation, construction equipment and
machinery, tools, appliances, fuel and power, light, heat, telephone, water (including
potable water for Personnel performing Work on the Facility Site), sanitary facilities,
temporary facilities, Internet and other communications access and all other facilities,
products, items, supplies and incidentals necessary for the performance of its obligations
under this Agreement.




          2.2.6.2 New Materials and Equipment; No Liens. Each item of Contractor
Equipment and Materials shall be (a) new and unused and (b) free from any Liens or Claims by
any third Persons, provided, that in the case of clause (b) above, PSGC has made
payment of all amounts of Compensation properly due to Contractor in respect of such item,
and Contractor shall furnish PSGC with evidence thereof. All Equipment and Materials
delivered to the Facility Site shall be applied, installed, connected,



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erected, used,
cleaned, and conditioned in accordance with the instructions of the applicable Supplier.




          2.2.6.3 Safety Standards. All Work shall be designed to meet the safety
standards established by Applicable Legal Requirements and this Agreement.




          2.2.6.4 Total Cost Breakdowns. Contractor shall provide to PSGC a cost
breakdown of the aggregate amount paid to Owner Suppliers, the Fee, and Reimbursable Costs
in accordance with Appendix K. Such information shall be provided, (a) with respect to Unit
1, on or before the reasonably projected Substantial Completion Date of Unit 1, and (b) with
respect to the Facility, on or before the reasonably projected Substantial Completion Date
of Unit 2. Such information shall be updated on the Final Completion Date. Overhead and
profit should not be listed as separate items.



          2.2.7 Inspection, Factory Tests and Expediting. Contractor shall perform all
inspection, component testing, expediting, quality surveillance and traffic services as necessary
for the performance of the Work, including the provision of such services in connection with the
Owner Contracts. Contractor’s responsibilities under this Section 2.2.7 shall include inspecting
and testing such work and Equipment and Materials, as is customarily inspected and/or tested in
accordance with Professional Standards, including inspecting work in progress at intervals
appropriate to the stage of construction, fabrication or shipment on or off the Facility Site as
necessary to ensure that such work is proceeding in accordance with this Agreement and the Project
Schedule. All third party inspections, tests or approvals shall be performed by qualified
organizations acceptable to Contractor and PSGC. If Applicable Legal Requirements require any Work
to specifically be inspected, tested or approved, Contractor shall assume full responsibility
therefor and furnish to PSGC the required certificates of inspection, testing or approval. Not
later than the date that
the Full Notice to Proceed is delivered to Contractor, Contractor will supply to PSGC a
quality surveillance plan for all Equipment that will be inspected by Contractor. Each monthly
progress report delivered by Contractor shall specify the date, time and location of factory tests,
inspections and witness points of which Contractor is then aware of and intends to witness with
respect to Equipment and Materials or other work to be provided or performed by its Subcontractors
and/or Owner Suppliers in the month following the month in which each such progress report is
delivered to PSGC. If and when Contractor obtains new information about such factory tests,
inspections or witness points or other factory tests, inspections or witness points that was not
available to it when the monthly progress report was delivered, it will promptly advise PSGC and
update such information as necessary to allow PSGC and the PSGC Engineer a reasonable opportunity
to attend such event. Contractor shall give reasonable notice of changes to such dates, times and
locations to allow PSGC and the PSGC Engineer to make arrangements to attend, it being understood
that tests,




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inspections or witness points to be performed outside the United States will require
additional notice. PSGC and its invitees (including representatives of Owners and the Engineers)
shall have the right, but not the obligation, to attend any inspections, tests or approvals of the
Work. In no event shall Contractor’s obligation to provide notice regarding certain tests,
inspections or approvals or PSGC’s and its designees’ right to attend tests, inspections or
approvals, limit, delay, or modify Contractor’s obligation to perform all tests, inspections or
obtain approvals required by this Agreement. Successful completion of factory or other
off-Facility site tests is a precondition to shipment of such Equipment to the Facility Site or
other Contractor storage facility; provided, however, Contractor may authorize such
shipment if, prior to shipment, Contractor presents a plan consistent with Professional Standards
to PSGC to rectify the reasons for such failure. Contractor shall thereafter implement such plan
and reperform and demonstrate that such test has been passed. Should Contractor fail to give
proper notice under this Section 2.2.7, at PSGC’s option, Contractor shall reperform or reinspect
any such test or inspection as to which Contractor failed to give proper notice if PSGC has
reviewed the test results (which are to be provided to PSGC within seven (7) Days of such failure
or as soon thereafter as test results are available to Contractor) and gives notice to Contractor
questioning the validity thereof. Attendance by PSGC at any such test or inspection despite the
lack of proper notice will waive PSGC’s right to cause Contractor to so retest or reinspect. PSGC
shall require that its Personnel conform to all safety and security requirements that may apply to
the location where the inspection shall be performed.




          2.2.8 Labor and Personnel.





          2.2.8.1 Qualified Personnel. Except as set forth in Section 3.5, Contractor
shall provide competent and suitable qualified
Personnel to perform the Work, and Contractor shall be solely responsible for all labor
and Personnel required in connection with the Work, including: (a) professional engineers
licensed to perform engineering services in accordance with Applicable Legal Requirements
and qualified to perform the type of engineering services required by Contractor hereunder,
and (b) the Contractor’s Construction Manager who has the experience and authority to
supervise and manage the Work on behalf of Contractor. Contractor’s staff shall include the
key personnel set forth in Appendix H, who shall be dedicated to the performance of the Work
(the “Key Personnel”). Contractor shall in good faith consult with PSGC regarding the
removal or replacement of any Key Personnel. Without PSGC’s prior approval, Contractor
shall neither reassign Key Personnel to any other project nor give Key Personnel tasks
related to any matter other than the Work, except to the extent that such reassignment or
other tasks (a) could not reasonably prevent, delay or hinder the performance of the Work by
Contractor in accordance with this Agreement or (b) is necessitated by serious personal
reasons (e.g., death, retirement, or personal or family illness); provided, that



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the
foregoing limitations will not preclude the career advancement of any of the Key Personnel.
If at any time during the performance of the Work, any of Contractor’s or its
Subcontractors’ personnel becomes reasonably unacceptable to PSGC, then, upon notice from
PSGC setting forth its objections to the performance of such individual, Contractor and PSGC
shall discuss such personnel issues and attempt to resolve any problem involving such
personnel. If the attempt to resolve such problem is not successful in the reasonable
judgment of PSGC, Contractor shall replace such individual as soon as possible consistent
with a diligent effort to find a suitable replacement and shall in good faith consult with
PSGC regarding such replacement. If at any time during the performance of the Work any of
the Key Personnel should no longer be available to perform services in connection with the
Work, then Contractor shall replace such individual and shall in good faith consult with
PSGC regarding such replacement. The impact associated with the replacement or renewal of
any such personnel will not entitle Contractor to a Change Order.




          2.2.8.2 Labor Plan. In order to optimize the availability, recruitment,
safety, productivity, utilization and retention of Craft Labor needed to perform the Work at
the Facility Site, Contractor shall update the Craft Labor plan for execution of the Work
within sixty (60) Days following the Effective Date. Such plan shall be delivered to PSGC
for its review and comment within twenty (20) Days of its receipt by PSGC. Contractor shall
give due consideration to PSGC’s comments and issue a revised plan within fifteen (15) Days
after receiving PSGC’s comments (the “Labor Plan”). The Labor Plan will be an update of the
document titled “Labor Plan: Prairie State Energy Campus, Lively Grove: Revision A” dated
June 12, 2007. During the performance of the Work, either Party will be entitled to
recommend amendments to the Labor Plan, which amendments shall be considered by the
Review Committee. The decision of the Review Committee will be implemented by the Parties.
This Section 2.2.8.2 is not intended to limit the right of Contractor to a Change Order with
respect to labor-related matters to the extent Contractor is otherwise entitled to relief
therefor under this Agreement or the rights of Contractor pursuant to Section 20.21.2(c).



          2.2.9 Certain Taxes.





          2.2.9.1 Sales Taxes. Contractor shall be responsible for the administration
and timely payment, with reimbursement therefor as provided in Appendix I in accordance with
this Agreement, of all (a) sales and use taxes that are properly payable (“Sales Taxes”) in
connection with or arising from the Work, and (b) value added, excise taxes and import
duties that are properly payable by Contractor or any Subcontractor in performance of the
Work. All other Taxes (except to the extent similar to those set forth in Section 2.2.9.2)
imposed by non-U.S. Governmental Authorities, duties and



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fees of any kind, in each case that
are properly payable in connection with or arising from the performance of the Work will
also be treated as Reimbursable Costs. In circumstances where a Sales Tax is imposed for
purchases that are not exempt from Sales Tax pursuant to exemption programs identified by
PSGC to Contractor or for which an exemption is not applicable, Contractor shall be
reimbursed in accordance with Section 3.4 for its payment of all such Sales Taxes;
provided, however, if Sales Taxes (for which an exemption would have
otherwise applied) are paid because of the Contractor’s failure to furnish or cause to be
furnished a properly completed Sales Tax certificate as provided in Appendix U, then
Contractor shall reimburse PSGC, at Contractor’s expense (as a Non-Reimbursable Cost), for
the reasonable costs incurred by PSGC in seeking a refund of such Sales Taxes from
appropriate authorities. Contractor shall furnish to the appropriate taxing authorities all
required information and reports in connection with all Contractor Taxes and Sales Taxes as
described in Appendix U or otherwise reasonably requested in a notice from PSGC to
Contractor. Contractor shall provide assistance as reasonably requested by PSGC or its tax
consultant(s), in confirming eligibility and qualification for exemptions from Sales Taxes
(and any other exemptions) to the relevant Governmental Authorities. From time to time
during the Term and within thirty (30) Days of a request therefor, Contractor shall provide
PSGC with information regarding quantities, descriptions, and costs of property installed at
the Facility reasonably requested by PSGC in connection with the preparation of PSGC’s or an
Owner’s tax returns, satisfying regulatory requirements or as otherwise required in
connection with Financing or with obtaining exemption from, or rebate of, Sales Tax.
Contractor agrees to
participate in any Sales Tax exemptions or rebate programs identified by PSGC, to
complete and deliver the applicable documentation to obtain tax-exemption for purchases of
Equipment and Materials, and to pass any Sales Tax savings or rebates through to PSGC. PSGC
hereby notifies Contractor that all Equipment and Materials to be utilized within the
enterprise zone shown in Appendix U will be exempt from Sales Tax upon Contractor’s proper
completion and presentation of the Sales Tax certificate set forth in Appendix U. PSGC has
the right to replace the map of the enterprise zone designated in Appendix U on Notice to
Contractor.





          2.2.9.2 Contractor Taxes. Contractor shall also be liable, without
reimbursement by PSGC hereunder, for (a) all foreign and U.S. federal, state, local, and
other taxes, which may be assessed on Contractor’s net income or gross receipts (except
taxes on gross receipts that are deemed to be Sales Taxes), and (b) all corporate
engineering, contractor, or business license costs and franchise fees required for
Contractor to conduct business in the State of Illinois, (collectively, the “Contractor
Taxes”). Neither the Target Price nor the Total Installed Cost will include Sales Taxes or
Contractor Taxes.



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          2.2.9.3 Federal, State of Illinois, Washington County and Local Incentive
Program. Applications for various Federal, State of Illinois, Washington County
(Illinois) and other local incentive programs and inducements related to the construction of
the Facility have been submitted by, or on behalf of, PSGC and Owners. At the request of
PSGC, Contractor will support PSGC and its consultants in order to fully utilize the
incentives offered. Participation in this effort, when requested by PSGC, will include
assistance with information requests to third Persons for filings related to the programs,
assistance with tracking specific costs related to the incentive programs, providing
Contractor and Subcontractor employee headcounts and (to the extent reasonably available)
payroll information, and other reasonable assistance as may be requested in a timely manner;
provided, however, such assistance shall not require Contractor to (a)
engage in lobbying or other efforts to obtain favorable legislation, (b) require the release
of confidential personnel data or (c) engage in litigation, administrative proceedings, or
other efforts to obtain favorable judicial outcomes. Contractor shall, as a Reimbursable
Cost, cooperate and provide testimony, documentation and other relevant information in
connection with Disputes with respect to Taxes assessed against, payable by or for which
PSGC or Owners are responsible, to the extent relating to the Work performed under this
Agreement.



          2.2.10 Permitting. Contractor shall obtain, pay for (as a Reimbursable Cost) and
maintain in effect, all permits and governmental approvals designated as Contractor Permits in
Appendix F, and, except as provided below, any other permits, licenses or governmental
approvals that are customarily obtained by a contractor (in its own name) performing work in the
State of Illinois, similar to the Work, excepting only PSGC Permits (“Contractor Permits”). PSGC
shall obtain the PSGC Permits, and Contractor shall perform the Work so as to comply with PSGC
Permits, as provided in Appendix F. Each Party shall provide the Party responsible for a Permit
with information in its possession or reasonably available to it, as is reasonably required by the
responsible Party in order to obtain and keep such Permit in full force and effect. Costs incurred
by Contractor to obtain and/or maintain licenses, certifications and other permissions of
Governmental Authorities to conduct its business in the State of Illinois will not constitute
Reimbursable Costs, provided, that costs associated with licenses, certifications and
permissions which are specifically and only required for the performance of the Work will be
treated as Reimbursable Costs.




          2.2.11 Personnel Training; Facility Manual. In accordance with the Project Schedule,
Contractor shall provide the facilities, material, supplies, personnel and other items required to
train the operations and maintenance personnel to be provided by PSGC pursuant to Appendix P in the
proper and safe operation and maintenance of the Facility, as further described in Appendix A.
Contractor shall prepare the Facility Manual.





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          2.2.12 Safety Precautions. Until the Substantial Completion Date for the applicable
Unit, Contractor shall be solely responsible for developing, implementing, and administering job
site safety requirements. PSGC shall have no responsibility therefor, except as otherwise
expressly provided in this Agreement. Beginning on the Substantial Completion Date of each Unit,
PSGC shall assume responsibility for developing, implementing, and administering the site safety
requirements for that Unit. Each Party, to include Financing Parties, invitees of any Party, and
the Engineers, shall abide by the safety requirements of the Party that has responsibility for
administering such requirements. Contractor shall assign a full-time safety and health manager who
will be responsible (until turnover of care, custody and control of the Unit in question) for
introducing, administering and monitoring procedures to promote safe working conditions on the
Facility Site, in compliance with Applicable Legal Requirements. In addition to reporting to the
Contractor’s Construction Manager, such safety and health manager shall have direct reporting
responsibility to Contractor’s home office management. Contractor shall notify PSGC orally of all
potential lost-time accidents on the Facility Site suffered by individuals on the Facility Site as
soon as possible but no later than the earlier of any deadline to report such matter to a
Governmental Authority or twelve (12) hours after the occurrence. Contractor shall furnish PSGC a
written report describing each such accident, and the injuries incurred, within two (2) Business
Days after occurrence of
the accident, which shall include any written reports thereof required to be submitted to any
Governmental Authority. Such report must also contain the cause of the occurrence (if known) and
the actions taken or to be taken to avoid repetition. Contractor shall promptly give Notice to
PSGC of any hazardous conditions at the Facility Site immediately after it becomes aware of such
conditions. Contractor shall also comply with Applicable Legal Requirements and the requirements
of Appendix A bearing on the safety of individuals or property (on and off the Facility Site) or
their protection from damage, injury or loss. Within ten (10) Business Days after the Effective
Date, but, in all cases, prior to the performance of any Work on the Facility Site by Contractor,
Contractor shall provide PSGC with an initial draft of a project safety manual to be used in
connection with the Work. Such draft safety manual shall include (a) express prohibitions on the
presence of alcohol, controlled substances, firearms (except, with the prior consent of PSGC, for
trained security personnel), explosives (except as necessitated for performance of the Work), or
other weapons at the Facility Site or fighting or other disorderly conduct at the Facility Site,
(b) proper training and workplace examinations, (c) compliance with Applicable Legal Requirements,
(d) Contractor’s standard drug and alcohol testing protocol, (e) a requirement for appropriately
staffed on-site first aid trailers, and (f) the requirements specified in Appendix A. PSGC shall
review this initial draft and provide Contractor with comments thereto within fifteen (15) Business
Days. Contractor shall give due consideration to the comments of PSGC and shall make all necessary
revisions required to comply with Applicable Legal Requirements, the requirements of applicable
insurers and the requirements specified in this Section 2.2.12 (the




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“Project Safety Manual”).
Contractor shall initiate, maintain and supervise reasonable safety precautions and programs in
connection with the performance of the Work in accordance with the Project Safety Manual and shall
take reasonable precautions for the safety of, and shall provide reasonable protection to prevent
damage, injury or loss to: (i) any individual on the Facility Site or who may be affected thereby
(including Personnel of PSGC and Owners, and the Engineers), (ii) all Materials and Equipment in
storage on the Facility Site, or under the care, custody or control of Contractor or any
Subcontractor, and (iii) other property at or immediately surrounding the Facility Site. In
emergencies affecting the safety or protection of Persons or the Work or property at the Facility
Site, Contractor, without special instruction or authorization from PSGC, shall reasonably act to
prevent damage, injury, or loss. Whenever Contractor has failed to take sufficient precautions for
the safety of the public or the protection of the Facility or of structures or property on the
Facility Site, creating, in the opinion of PSGC, an emergency requiring immediate action, then
PSGC, may cause such sufficient precautions to be taken or provide such protection. PSGC shall
give Contractor Notice as soon as practicable under the circumstances regarding the action it
intends to take, or if circumstances do not reasonably permit prior Notice, the action it has
taken; provided, however, the failure by PSGC to include all actions it takes in
such Notice shall not preclude PSGC from taking all necessary action, nor relieve Contractor of any
of its obligations hereunder. The taking or
providing of any such precautions or protection by PSGC or its agents or representative will
be **** the **** and will not relieve Contractor of its obligations under this Agreement and
Applicable Legal Requirements.




          2.2.13 Hazardous Substances.





          2.2.13.1 Prevention of Releases; Notice. Contractor shall take reasonable
measures necessary to prevent the Release or threatened Release of any Hazardous Substances
that are actually known by Contractor to be located at the Facility Site. Contractor shall
immediately notify PSGC of: (a) any Release or threatened Release of Hazardous Substances of
which Contractor becomes aware that occurs (or may occur) in connection with the performance
of the Work promptly upon Contractor becoming aware of such Release or threatened Release,
(b) any violations and any and all investigations, actions, claims, suits, notices of
violation, fines, penalties, orders, and other proceedings related to violations or alleged
violations of Applicable Legal Requirements, including Permits issued thereunder, which are
asserted against Contractor or any of Contractor’s Personnel or any Subcontractors in
connection with the Work or their activities on, along, adjacent to or near the Facility
Site, (c) Contractor’s discovery of any Releases of Hazardous Substances at the Facility
Site or nearby areas, and (d) all material developments with respect to Sections 2.2.13.1
(a) - (c). The provisions of this Section 2.2.13.1 shall not limit the obligations of
Contractor under Section 2.2.13.2.



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          2.2.13.2 Contractor-Related Releases.



                    (a) Contractor shall be responsible for collection, handling, storage and removal from the
Facility Site and immediately surrounding areas, proper disposal of, and the Remediation of, in
compliance with this Agreement, all Applicable Legal Requirements and all Permits, Hazardous
Substances that were brought onto the Facility Site by Contractor, its Personnel, Subcontractors or
contained in the Owner Equipment or Materials (“Contractor Hazardous Substance”). For purposes of
clarification, if Hazardous Substances are brought onto the Facility Site in containers or are
deposited into containers on the Facility Site by Contractor, its Personnel or Subcontractors (or
any other Person acting on behalf of Contractor, its Personnel or Subcontractors) and Contractor or
any such Person thereafter ruptures or otherwise causes a Release of such Hazardous Substances,
such Hazardous Substances as so released and contaminated media caused thereby shall be a
Contractor Hazardous Substance. As part of the Work, Contractor shall dispose of all Contractor
Hazardous Substances in its own name, or the name of the applicable Subcontractor, including
listing its name, or the name of the applicable Subcontractor, as “generator” on any
waste management and shipping papers. Costs incurred as a result of a Release or threatened
Release of Contractor Hazardous Substances constitute Non-Reimbursable Costs to the extent caused
by the negligence or intentional misconduct of Contractor, its Subcontractors and their respective
Personnel.



                    (b) Contractor, as a Non-Reimbursable Cost, shall be responsible for the incremental damage,
incremental liability and incremental Remediation associated with a Release or threatened Release
of any non-Contractor Hazardous Substance after it has been discovered by or specifically
identified to Contractor or its Subcontractors or their Personnel, to the extent that such Release
or threatened Release was intentionally caused by Contractor’s non-manual employees or by their
Gross Negligence. Contractor will not be responsible for paying any portion of a fine that is
imposed upon PSGC or Owners as a result of a prior violation for which Contractor or its
Subcontractors or their respective Personnel were not responsible.



                    (c) If Contractor should fail or refuse to commence and diligently pursue Remediation required
of it in accordance with this Section 2.2.13.2, then PSGC may, at its discretion and after
forty-eight (48) hours’ Notice to Contractor, perform such Remediation as it deems to be necessary
or adequate. All reasonable costs and expenses of such Remediation shall be **** the ****,
except costs that are ****, in which case, Contractor shall promptly **** to PSGC.



                    (d) To the fullest extent permitted by Applicable Legal Requirements, Contractor agrees to and
shall release, defend, indemnify and hold harmless each Owner, PSGC, the Engineers and the
Financing Parties and their



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respective directors, commissioners, members, officers, employees,
agents, and Affiliates from and against all Claims (except to the extent Claims arise from the
negligence or intentional misconduct of such indemnified Persons) to the extent arising out of (i)
the negligence or intentional misconduct of Contractor, its Subcontractors and their respective
Personnel with respect to Contractor Hazardous Substances and/or (ii) the incremental damage,
liability or Remediation for which Contractor is responsible under this Section 2.2.13.2(b) with
respect to non-Contractor Hazardous Substances, whether through suits or causes of action in a
court of law or claim, complaints or penalties arising out of a violation or alleged violation of
Applicable Legal Requirements.





          2.2.13.3 Other Releases. If Contractor encounters on the Facility Site
material reasonably believed to be a Hazardous Substance (other than a Contractor Hazardous
Substance), which under Applicable Legal Requirements or Professional Standards requires
Contractor to suspend Work to avoid injury to Persons or property, then Contractor shall
immediately cease performance of any Work in the area affected and report the condition to
PSGC in writing. PSGC shall be responsible for such
material as provided in Section 3.9. Contractor shall not thereafter resume
performance of the Work in the affected area, except with the prior written permission of
PSGC.




          2.2.13.4 MSDSs. Contractor shall provide PSGC with Material Safety Data Sheets
(written in English) (“MSDSs”) properly completed covering any Contractor Hazardous
Substances three (3) Business Days prior to arrival of such Contractor Hazardous Substances
to the Facility Site. Contractor shall maintain at the Facility Site complete records and
inventories, including MSDSs, of Contractor Hazardous Substances delivered to or located at
the Facility Site as part of the Work. Contractor and its Subcontractors shall properly
label all containers holding Contractor Hazardous Substances and train their respective
employees in the safe storage, usage and handling of such substances, including any training
that is required by Applicable Legal Requirements.




          2.2.13.5 Prohibited Materials. PCBs, lead paint, lead paint containing
materials, asbestos or asbestos containing materials shall not be delivered to the Facility
Site by Contractor, its Personnel or its Subcontractors in any form.




          2.2.13.6 Hazardous Substance Handling Protocol. Contractor shall develop a
Hazardous Substance management, handling and remediation protocol, as referenced in Appendix
A and shall adhere to such protocol in connection with the performance of all of its
obligations with respect to Hazardous Substances at the Facility Site.



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          2.2.14 Royalties, Import Duties and License Fees. Contractor shall be responsible for
the administration and payment (as a Reimbursable Cost) of all royalties, import duties, port fees
and related charges, and license fees (except as provided in Section 2.2.10), if any, for or
associated with the Work. In performing the Work, Contractor shall not incorporate into the
Facility any materials, methods, processes or systems which involve the use of any confidential
information, Intellectual Property or proprietary rights, which PSGC or Contractor does not have
the right to use or which may result in claims or suits against any Owner, PSGC or Contractor for
infringement or misappropriation of any Intellectual Property, or pending applications for any such
rights, it being understood that Contractor will not be responsible for infringement or
misappropriation of Intellectual Property by an Owner Supplier.




          2.2.15 Interconnection Agreement.





          2.2.15.1 Transmission. PSGC has entered into the Interconnection Agreement,
which provides, among other things, for the construction by the Transmission Owner of the
Transmission Owner Facilities. Contractor shall cooperate with PSGC and the Transmission
Owner and effect the timely interconnection of the Facility with the Transmission Owner
Facilities. Contractor shall perform all Work necessary to complete the Contractor
Transmission Facilities, including the Work specified in the Appendices.




          2.2.15.2 Utilities. Contractor shall Connect the Facility at the Utility
Interconnection Points in accordance with the Project Schedule and Appendix A.



          2.2.16 Access. Subject to Section 3.11, Contractor shall be responsible for the
construction, maintenance and improvement of all facilities and improvements necessary for vehicle,
rail and utility access to and from the Facility Site and for the purpose of performance of the
Work.




          2.2.17 Storage and Related Matters. Contractor shall unload, handle, load, transport,
inspect, warehouse or otherwise provide appropriate storage, in accordance with manufacturers’
recommendations, for all Equipment and Materials to be incorporated into the Facility and as
required for permanent and temporary construction, as more particularly described in Appendix A.




          2.2.18 Functional Tests. Contractor shall include Functional Tests on the Project
Schedule and shall perform and successfully complete each of the Functional Tests described in
Appendix E.




          2.2.19 Clean Site and Waste Removal. Without limiting the obligations of Contractor
under Appendix A, Contractor shall, at all times during the term of this Agreement, keep the
Facility Site and immediately surrounding




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streets (whether public or private), properties,
waterways, sidewalks and other areas free from accumulations of waste, rubbish, dirt, debris and
other garbage, liquid and non-liquid materials whether spilled, dropped, discharged, blown out or
leaked because of performance of the Work and shall properly dispose of same. Contractor shall
maintain its working, storage, laydown and parking areas in a clean and non-hazardous condition,
and shall employ adequate dust control measures. Contractor must provide adequate tire washing
facilities for trucks leaving the Facility Site. Contractor is responsible for
disposal of all wastes generated by it or its Subcontractors and Owner Suppliers during the
performance of the Work on the Facility Site, including waste water, sanitary wastes, demolition
debris, construction debris, spoil, surplus excavation material, office wastes, and wastes related
to preparation, commissioning, testing, and start-up of Equipment, but excluding (a) wastes for
which PSGC is responsible pursuant to Section 3.8.3, and (b) PSGC Hazardous Substances pursuant to
Section 3.9 which shall be responsibility of PSGC. Prior to the Startup Period of a Unit, water
treatment wastes are to be pumped by Contractor to the area on the Facility Site specified by PSGC
for disposal by PSGC. Contractor shall handle, store or dispose of all wastes for which it is
responsible in accordance with Applicable Legal Requirements. Except as expressly permitted under
this Agreement, wastes shall be disposed of in a suitable off-site location. Except as provided in
Section 2.2.13.2, all costs related to waste (for which Contractor is responsible) disposal shall
be treated as Reimbursable Costs. On the Substantial Completion Date of a Unit, Contractor shall
leave the Unit and the Common Facilities in a neat, clean and orderly condition, as specified in
Appendix A, ready for use by PSGC. Upon the Substantial Completion Date of Unit 2, Contractor
shall remove all such waste materials, rubbish, and debris from the Facility Site.




          2.2.20 Owner Contracts.





          2.2.20.1 Owner Contract Administration. Appendix G includes a list of executed
Owner Contracts that have been provided to Contractor. Commencing on the Effective Date,
Contractor shall exercise the authority granted to Contractor pursuant to Appendix W to
administer each Owner Contract entered into by PSGC on or prior to the Effective Date for
the benefit of PSGC and Owners. Contractor shall also exercise the authority granted to
Contractor pursuant to Appendix W to administer all Owner Contracts entered into after the
Effective Date, which administration shall commence on the date each such Owner Contract
becomes effective and a complete copy of the Owner Contract has been provided to Contractor.
Contractor shall maintain in an orderly fashion all books, records and written
communications with respect to the performance of its responsibilities under this Agreement
with respect to Owner Suppliers and the administration of Owner Contracts. Such books,
records and communications (either paper copy or electronic) may, at Contractor’s option, be
maintained for a three-year period commencing on the Substantial Completion Date for Unit 2,
or be



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delivered to PSGC at any time upon the earlier of Final Completion or the earlier
termination of this Agreement. PSGC shall be entitled to access to such materials while in
the possession of Contractor on reasonable notice at reasonable times when in the possession
of Contractor.




          2.2.20.2 Owner Contract Indemnity. Except as otherwise agreed by the Parties,
PSGC agrees that all indemnity, all release, and all hold harmless agreements contained in
the Owner Contracts whereby the Owner Supplier agrees to indemnify, release, or hold PSGC
and/or Owners harmless shall extend like protection to Contractor and its Affiliates and its
and their respective employees, representatives and agents.




          2.2.20.3 Representative Capacity. Nothing contained herein shall create any
contractual relationship between Contractor and any Owner Supplier, except that Contractor
shall be designated as PSGC’s representative in each Owner Contract for the purpose of
administering such Owner Contract and enforcing PSGC’s and/or Owners’ rights expressed
therein.




          2.2.20.4 Responsibility. Without limiting the other express obligations of
Contractor under this Agreement, as between PSGC and Contractor, PSGC shall be responsible
for the items of equipment, materials and work to be provided pursuant to the Owner
Contracts but, in its agency capacity, Contractor shall administer and enforce such Owner
Contracts on behalf of PSGC in accordance with the authority granted to Contractor pursuant
to Appendix W.




          2.2.20.5 Liquidated Damages. Except as set forth below in this Section
2.2.20.5, liquidated damages, backcharges, refunds or other amounts of any kind recovered
under the Owner Contracts or Contractor Subcontracts are the property of PSGC and will
either be payable directly to PSGC or, if received by Contractor, shall be credited against
amounts to be paid by PSGC in any of the next succeeding Applications for Payment or
Reconciled Applications for Payment, as the case may be; provided, however,
any such amount(s) (a) in excess of $****, or (b) if no additional monthly Application for
Payment or Reconciled Application for Payment is to be tendered, shall be remitted forthwith
(but in any event not later than five (5) Business Days after receipt thereof) to PSGC.
Upon receipt by PSGC, such amounts shall **** the ****. Amounts recovered by
a Party in respect of an indemnification obligation are to be retained by the indemnified
Party and will not affect the Total Installed Cost. Reimbursable Costs incurred by
Contractor and the costs incurred by PSGC in enforcing the obligations of an Owner Supplier
under an Owner Contract, including the costs of and associated with litigation and/or
arbitration (whether or not successful and whether incurred by PSGC or Contractor),
including



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attorneys’ fees and charges, will be **** the ****. Both Parties agree to act
reasonably in determining whether to initiate, continue, settle or abandon claims or
proceedings against an Owner Supplier. If the Parties do not agree on whether to initiate,
continue, settle or abandon a claim or proceeding
against an Owner Supplier, the decision shall be referred to the Review Committee.



     2.3 Project Schedule, Progress Reports and Progress Meetings.



          2.3.1 Project Schedule and Progress Reports. Without limiting Contractor’s
responsibility under Section 8.2.3, Contractor shall perform the Work in accordance with the
Project Schedule with the objective of achieving the Target Contract Dates. Contractor shall be
entitled to adjust the Project Schedule at its discretion; provided, however, the Target Contract
Dates, and those dates on which PSGC is to perform any obligation hereunder as contained in the
Project Schedule may only be modified by a Change Order implemented in accordance with Article 10.
Contractor shall report progress and hold progress meetings as specified in Appendix A, which
reports and meetings will include matters and activities relating to any on-going or anticipated
Recovery Plans.




          2.3.2 Reporting to PSGC. Changes to the Project Schedule pursuant to Section 2.3.1.1
shall be reported to PSGC as part of the monthly reporting process set forth in Appendix A. More
particularly, each month, Contractor will provide PSGC with (a) an updated Project Schedule
(Primavera Project Planner 3.1 (Level 3) non-resource loaded), in native format, (b) a monthly
float analysis, and (c) a hard copy ninety-Day look-ahead Level 3 schedule (which will be delivered
with the monthly progress report). Such Project Schedule and all updates, each in native format,
thereto shall be treated as Confidential Information by PSGC, subject to the following provisions
of this Section 2.3.1.2. PSGC and the Engineers will be permitted to view the Project Schedule in
native format (Primavera Project Planner 3.1 (Level 3)) during schedule reviews conducted by
Contractor, but the Engineers will not be permitted by PSGC to obtain or maintain a copy thereof in
native format at any time. PSGC shall be entitled to retain its copies of the Project Schedule
(Primavera Project Planner 3.1 (Level 3)) in native format for use in connection with the Facility
and may make such information available to its employees and agents (which are not engineering
and/or construction competitors of Contractor) for purposes in connection with the Facility, but
such employees or agents shall not be permitted to copy such information in native format. Upon
expiration of the Term, PSGC shall return or destroy all copies of the Level 3 Project Schedule it
received except for one paper and one native format copy of each Level 3 Project Schedule provided
to PSGC.




          2.3.3 Recovery Plan.





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          2.3.3.1 Preparation. If, at any time during the performance of the Work,
Contractor is delayed in its adherence to the
progress described in the Project Schedule for any reason such that any Target Contract
Date is reasonably expected to be delayed, Contractor shall give Notice to PSGC and PSGC may
require Contractor to prepare a proposed plan of recovery (the “Recovery Plan”) and
implement it. A Recovery Plan will explain and demonstrate how Contractor intends that the
applicable Target Contract Dates should be achieved, if practicable, or as soon thereafter
as possible if not practicable.




          2.3.3.2 Review; Implementation. Contractor shall submit its initial proposed
Recovery Plan to PSGC within a reasonable period of time under the circumstances and in no
event to exceed thirty (30) Days of receiving Notice from PSGC of the requirement for
submission of a Recovery Plan. Upon receipt of such proposed Recovery Plan, PSGC shall
review and comment upon the same. Contractor shall coordinate with and consider any
comments proposed by PSGC to its proposed Recovery Plan and shall update and supplement such
Recovery Plan as quickly as possible under the circumstances. Contractor shall implement
such Recovery Plan in order that, to the maximum extent possible, the Target Contract Dates
will be achieved. If Contractor determines it necessary to update or modify its Recovery
Plan to reflect the progress of its recovery Work, it shall as soon as reasonably possible
submit such modified or updated Recovery Plan to PSGC. Neither PSGC’s review nor comment
upon a Recovery Plan under this Section 2.3.2, nor Contractor’s efforts to adhere to a
Recovery Plan, shall constitute grounds for a Change Order or relieve Contractor of any of
its obligations under this Agreement.



     2.4 Methods of Performance. Contractor shall be solely responsible for all construction
means, methods, techniques, sequences, procedures and safety and security programs in connection
with the performance of the Work.



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



          2.5.1 Title to Work. Title to all or any portion of Contractor Equipment and
Materials provided by Contractor covered by any Application for Payment or Reconciled Application
for Payment and intended for incorporation in the Facility shall pass to Owners in accordance with
their respective Proportionate Shares upon the first to occur of payment therefor to Contractor
pursuant to this Agreement or delivery of such items to the Facility Site. Title to each item of
Contractor Equipment and Materials required to pass to Owners pursuant to this Agreement shall pass
in accordance with their respective Proportionate Shares and title shall pass free and clear of all
Liens, provided, that PSGC has paid all amounts then due and owing to Contractor in
respect of such item. PSGC and Owners release Contractor from all liability for loss of or damage
to the Facility (including




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items provided by Contractor and the Owner Suppliers for incorporation
into the Facility whether incorporated into the Facility or not) and damage to other property of
PSGC and/or Owners, arising out of the performance of Work under this Agreement, except to the
extent that **** and/or **** are **** the calculation of the ****,
as provided in ****.




          2.5.2 Risk of Loss to Contractor Property. Construction equipment utilized by
Contractor or its Subcontractors, whether owned by Contractor, a Subcontractor or their Affiliates
or rented or leased from a third party, must be insured against loss or damage, and Contractor
shall be entitled to use such construction equipment on the Facility Site, provided, that
neither PSGC nor Owners will be responsible for the risk of loss or damage with respect thereto,
except as the Parties may otherwise agree. The costs of providing and replacing small tools
constitute Reimbursable Costs.




          2.5.3 Title to Drawings, Reports, Documents and Information.





          2.5.3.1 Submittals. Contractor hereby assigns title to all Submittals (hard
and soft) provided by Contractor to PSGC or its designee pursuant to this Agreement, which
shall vest in Owners in accordance with their Proportionate Shares upon submission thereof
by Contractor; provided, that, the respective rights of the Parties to the
Intellectual Property therein contained are set forth in this Section 2.5.3.




          2.5.3.2 License. Contractor grants to PSGC and each Owner the right to
practice, perform, make, copy, create derivative works of, import and otherwise use by
irrevocable, non-exclusive, perpetual, royalty free license, any and all patents, patent
applications, copyrights, trade secrets and other intellectual property rights
(“Intellectual Property”) and any Submittals, Record Documents and Intellectual Property
contained therein relative to the Facility that is included in the Work, whether now
existing or hereinafter developed or otherwise acquired, but only to the extent reasonably
necessary in connection with the ownership, construction, operation, maintenance,
improvement, replacement, expansion or repair of the Facility. Contractor further agrees
that it shall, upon request, provide the aforementioned Persons with such information in a
timely fashion and subject only to the confidentiality restrictions provided in Article 18.




          2.5.3.3 Inventions. All inventions arising from the Work shall be the property
of the Contractor. In the event Contractor obtains legal entitlements to such inventions,
the provisions of this paragraph shall entitle
each of PSGC and each Owner to use such inventions for use in connection with the
ownership, construction, operation, maintenance, improvement, replacement, expansion,
repair, or upgrading of the Facility, without the obligation to compensate, otherwise
coordinate with, obtain the approval of



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any other Party. Contractor grants to each of PSGC
and each Owner an irrevocable, royalty-free, non-exclusive and perpetual license and right
to practice, perform, make, copy, create derivative works of, import and otherwise use any
and all inventions reasonably arising from the Work that are necessary for the construction,
operation, maintenance, improvement, replacement, expansion or repair of the Facility, all
without additional cost to PSGC or any Owner in connection with the Facility. Such license
shall be subject to the provisions of Section 2.5.3.5.




          2.5.3.4 Use. Contractor grants to PSGC and each Owner an irrevocable,
perpetual, non-exclusive, royalty free license and right to practice, perform, make, copy,
create derivative works of, import and otherwise use any and all Submittals, Record
Documents and the information contained therein in connection with the Facility. Contractor
shall have the right to retain and use all Submittals, Record Documents and the information
contained therein. Neither PSGC nor any Owner shall acquire any rights to any of
Contractor’s or any Subcontractors’ reference documents (documents that are prepared prior
to the performance of the Work or are prepared independent of the Work and, in each case,
are not a Submittal) or proprietary computer software that may be used in connection with
the Work. Submittals and Record Documents are not intended or represented to be suitable
for reuse by Owners or PSGC or others for any facility other than the Facility. Any reuse
of Submittals or other Record Documents for any purpose other than in connection with the
Facility, without prior written verification or adaptation by Contractor for the specific
purpose intended, will be at such user’s sole risk and further subject to Section 2.5.3.5.




          2.5.3.5 Indemnification. Intellectual Property, any Submittals, Record
Documents or any other documents provided by Contractor to PSGC in connection with the Work
may not be used by PSGC or any Owner for any purpose other than in connection with the
ownership, construction, operation, maintenance, improvement, replacement, expansion and
repair of the Facility. To the fullest extent permitted by Applicable Legal Requirements,
PSGC or any such Owner, as appropriate, that so uses such Intellectual Property, Submittals,
Record Documents or other such documents for any other purpose agrees to defend, indemnify
and hold Contractor harmless from third party Claims arising therefrom as provided in
Section 12.4(e).




          2.5.3.6 Survival. The provisions of this Section 2.5.3 shall survive
termination of this Agreement and continue in full force and effect for perpetuity.



          2.5.4 Title to Natural Resources. Title to water, soil, rock, gravel, sand, minerals,
timber and any other resources developed or obtained in the





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excavation or the performance by
Contractor of the Work and the right to use said items or dispose of the same is hereby expressly
vested in and reserved by Owners. Contractor agrees to execute and deliver and cause its employees
and agents and all Subcontractors to execute and deliver, to Owners transfers, assignments,
documents or other instrument which are necessary to vest complete right, title, interest and
ownership of and to any or all items described herein, exclusively in Owners. Notwithstanding the
foregoing to the contrary, Contractor shall be entitled to use any natural resources developed or
obtained in the excavation or clearing of the Facility Site as necessary for the performance of the
Work.




          2.5.5 Title to Fossils and Artifacts. Title to all fossils, coins, articles of value
or antiquity, and structures and other remains or things of geological or archaeological interest
discovered at the Facility Site shall (as between the Parties) remain with and be the property of
Owners in accordance with their Proportionate Shares. Contractor shall use reasonable efforts not
to damage any such articles or items and shall not knowingly remove any such articles or items.
Contractor shall, immediately upon the discovery of any such article or item, provide Notice to
PSGC.




          2.5.6 Title Warranty. Contractor warrants that upon passage of title in accordance
with Section 2.5.1, Owners will have good and indefeasible title to such Work not subject to any
Lien, privilege, security interest or other defect in title, provided that PSGC has made
payment of the amount in respect of such item of the Work then due and owing to Contractor.
Without limiting Contractor’s obligation under Section 12.2, in the event of any non-conformity
with this warranty, Contractor, at its own expense upon written Notice of such failure, shall cure
such defect. The passage of title under Section 2.5.1 shall neither limit PSGC’s obligation to
make payment for the Work in accordance with this Agreement or Contractor’s right to pursue its
remedies pursuant to Section 13.5.1 for non-payment of amounts due and owing to it hereunder. The
provisions of this Section 2.5.6 will survive the execution or earlier termination of this
Agreement.




     2.6 Subsurface Conditions
        . Contractor has inspected the Facility Site, has had an opportunity to conduct such tests
and make such investigations that are consistent with Professional Standards and has reviewed the
information provided to it by PSGC relating to surface and subsurface conditions and has properly
interpreted such PSGC-provided information and the results of such inspections and tests.
Contractor will be entitled to a Change Order for the associated adverse impact if actual
subsurface conditions are encountered by Contractor that deviate from such information and/or the
results of such inspections or tests, and/or the reasonable interpretation thereof.



     2.7 Local Conditions. Contractor represents that it has taken steps necessary to examine and
ascertain the nature and location of and all general and local conditions relevant to the Work and
its surroundings and the cost thereof, and that it has investigated and satisfied itself as to the
general and local conditions



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that can affect the Facility, the Facility Site, and/or the
performance of the Work, including transportation, inland transit, access and egress (subject to
Section 3.1), laydown, parking, storage of materials, availability of utilities and utility
services, location of local residences and businesses, water, waste disposal, electricity, roads,
or other public goods or services, reasonably foreseeable climatic conditions at the Facility Site
(subject to Section 11.1), Applicable Legal Requirements, and the character and availability of
equipment and facilities needed preliminary to and during the prosecution of the Work.



     2.8 Subcontractors and Owner Suppliers.



          2.8.1 Subcontractors. Contractor may have portions of the Work performed by
Subcontractors; provided, that Contractor may not subcontract all or substantially all of
the Work to non-Affiliates. Contractor agrees that (a) with respect to services performed by
non-manual personnel, Contractor will only subcontract Work to Affiliates at the agreed rates set
forth in Appendix I or at rates otherwise approved by PSGC, (b) with respect to the provision of
construction equipment, Contractor will only subcontract with an Affiliate at rates determined in
accordance with Appendix I, and (c) with respect to any Work not covered by clause (a) or (b) above
that Contractor desires to have performed by an Affiliate, Contractor may enter into such
subcontract (i) if such Affiliate is listed as a pre-approved Affiliate on Appendix G, or (ii) if
such Affiliate is not listed as a pre-approved Affiliate on Appendix G such subcontract will be
entered into in good faith and at market-based rates after notice to PSGC and receipt of PSGC’s
prior consent, provided that no such consent shall be required if such subcontracted Work will have
an aggregate value of less than fifty thousand
dollars ($50,000). Appendix G includes a list of Subcontractors who are acceptable to PSGC
for performance of Contractor Subcontracts for those portions of the Work identified in Appendix G.
Contractor shall be obligated, unless otherwise reasonably agreed to by PSGC, to select from
Appendix G those proposed Subcontractors (including any successor or replacement Subcontractor)
which are identified in Appendix G as acceptable for specific portions of the Work, subject to
Section 2.8.7. PSGC and Contractor shall have the right to recommend additions or deletions to
Appendix G from time to time for the other’s approval. The recommending Party shall provide to the
other Party such information concerning any proposed successor or replacement as such other Party
may request to facilitate such approval. Contractor shall cooperate with PSGC to attempt to
minimize the number of Suppliers of similar Equipment and Materials, such as bulk items like meters
or valves. In the event that a proposed Subcontractor identified in Appendix G experiences a
material adverse change in its business condition or evidences recent poor performance, in each
case the knowledge of which arises after the Effective Date, Contractor may refuse to enter into
any new Contractor Subcontract with respect to such Subcontractor.




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          2.8.2 No Privity with Owners or PSGC. Neither Owners nor PSGC shall be deemed by
virtue of this Agreement or otherwise to have any contractual obligation to, or relationship with,
any Subcontractor. Contractor shall include a clause to this effect in each Contractor Subcontract
with its Subcontractors.




          2.8.3 Certain Subcontracts.





          2.8.3.1 Contractor Subcontracts. Contractor shall ensure that the terms of
each Contractor Subcontract with an aggregate value equal to or exceeding **** dollars
($****) provide that it may be, without requiring the prior consent of the relevant
Subcontractor, in whole or in part, assigned and delegated by Contractor to PSGC, upon
assumption of the obligations in respect of such Contractor Subcontract by PSGC, in the
event of a termination of this Agreement.




          2.8.3.2 Confirmation of Performance. Contractor shall use commercially
reasonable efforts to obtain provisions in each Contractor Subcontract with an aggregate
value less than **** dollars ($****) and shall cause each Contractor Subcontract with an
aggregate value equal to or exceeding **** dollars ($****) to provide, upon notification to
the Subcontractor, that if: (a) this Agreement has been terminated for any reason other than
PSGC’s default, and (b) PSGC or its designee shall thereafter be assuming Contractor’s
obligations in full under such Contractor Subcontract,
then such Subcontractor shall continue to perform its responsibilities under such
Contractor Subcontract for the benefit of PSGC or its designee and such Subcontractor shall
recognize PSGC or its designee as being vested with all the rights and responsibilities of
Contractor from and after such assignment and assumption of such Contractor Subcontract.




          2.8.3.3 Notice. Within thirty (30) Days of the execution of a Contractor
Subcontract with an aggregate value less than **** dollars ($****), Contractor will give
PSGC notice of the identity of the Subcontractor if it will be providing Work that will be
physically incorporated into the Facility, will be valued in excess of **** Dollars ($****)
and will not permit assignment of its Contractor Subcontract in accordance with Sections
2.8.3.2 (a) and (b).



          2.8.4 Purchase Orders and Subcontracts. Contractor shall furnish to PSGC a copy of
each Contractor Subcontract with an aggregate value equal to or exceeding **** dollars ($****)
entered into by Contractor within thirty (30) Days following Contractor entering into such
Contractor Subcontract. Such copy is for informational purposes only and PSGC shall not have any
liability with respect thereto, including the terms and condition (or lack thereof) of such
Contractor Subcontract. Thereafter, Contractor shall furnish to PSGC a copy of any amendment or
supplement to any such Contractor Subcontract within thirty (30)




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Days after entering into such
amendment or supplement. Contractor shall also provide to PSGC a list of all Contractor
Subcontracts that it is a party to for Contractor Equipment and Materials that are incorporated
into the Facility. Such list will identify the Subcontractor and describe that portion of the Work
provided by such Subcontractor. Such list will be delivered within one hundred twenty (120) Days
of Full Notice to Proceed and shall be periodically updated by Contractor through Final Completion.




          2.8.5 Subcontractor Warranties. Contractor shall use reasonable commercial efforts to
procure from all Subcontractors entering into a Contractor Subcontract with an aggregate value
equal to or exceeding **** dollars ($****), warranties substantially similar (in length and in
scope) to those required of Contractor under Article 9, but without provisions making warranty work
cost reimbursable or otherwise providing any sublimit on the cost of warranty work that is less
than the overall limit of liability under such Contractor Subcontract. All such warranties shall
be enforceable by Contractor or, as noted in the proviso in the next sentence and in the sentence
thereafter, by PSGC. Contractor shall enforce all Subcontractor warranties itself and/or on behalf
of PSGC during the Warranty Period; provided, however, PSGC shall have the right to
enforce such warranties during the Warranty Period if Contractor fails to do so following Notice
from PSGC and an opportunity for
Contractor to cure. At the earlier of (a) the end of the Warranty Period, or (b) the date of
termination of this Agreement, Contractor shall assign to PSGC its rights under any and all
Subcontractor warranties that continue after such date. Contractor shall secure such assignment
from each Subcontractor, and at the earlier of (i) Final Completion or (ii) the date of termination
of this Agreement, Contractor shall deliver to PSGC copies of all Contractor Subcontracts providing
for warranties that continue in effect after such date.




          2.8.6 Subcontractor Insurance. Contractor shall require all Subcontractors who
perform activities on the Facility Site to obtain, maintain and keep in force throughout the time
during which they are engaged by Contractor such insurance coverages as are set forth in Section
1.03 of Appendix Q in addition to those that are normal and customary under Professional Standards
for the portion of the Work to be performed on the Facility Site by such Subcontractor.




          2.8.7 Local Content Strategy. Contractor shall use commercially reasonable efforts
during the course of performance of the Work to implement the local procurement strategy set forth
in Appendix G. Contractor is entitled to reasonably adjust such strategy during performance of the
Work to reflect changing market conditions. No such change of strategy will entitle Contractor to
a Change Order under this Agreement. Contractor shall provide a Notice to PSGC during the bid
evaluation process involving any local supplier identified in Appendix G for a portion of the Work,
including documentation of the scope of supply or scope of work associated therewith and shall
discuss the award of such Work with PSGC in advance of such award. If Contractor determines that
it will not make an award to





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a local supplier identified on Appendix G, then Contractor
shall advise PSGC of the reasons therefor and the adverse impact that Contractor would incur should
PSGC direct Contractor to award the Contractor Subcontract to the local supplier rather
than the supplier selected by Contractor, and PSGC shall, within seven (7) Days after it
is advised of such non-selection, have the right to direct Contractor to make the award to such
local supplier; provided, that PSGC enters into a Change Order on account of such
direction.




     2.9 Insurance. Contractor shall obtain and maintain the insurance required of Contractor in
accordance with Appendix Q. The foregoing provision requiring Contractor to obtain or maintain
insurance shall not be construed in any manner as waiving, restricting or limiting the liability of
Contractor as to any obligations imposed under this Agreement, whether or not the same are, or may
be, covered by insurance.



     2.10 Compliance with Applicable Legal Requirements. Contractor shall comply with all Applicable Legal Requirements in connection with its
performance of the Work.



     2.11 Real Estate. Contractor acknowledges that it does not require rights to use any real
estate, including any easements or access rights for other property, which is not included in the
Facility Site in order to perform the Work, including areas for storage, parking and construction
laydown. If Contractor at any time after the Effective Date becomes aware that it requires the use
of any real estate that is outside of the boundaries of the Facility Site (but adjacent to the
Facility Site), Contractor shall immediately give Notice thereof to PSGC and PSGC shall, at its own
cost, obtain rights to use such additional real estate or authorize a change in the plan of
execution of the Work in lieu thereof, the cost of which will be a Reimbursable Cost;
provided, however, that Contractor shall not be entitled to a Change Order on
account of any delay arising from PSGC’s efforts in obtaining additional real estate rights.



     2.12 Use of Facility Site.



          2.12.1 Use and Restoration. Contractor shall confine the portions of the Work to be
conducted at the Facility Site to the Facility Site, subject to any restriction thereon specified
in Appendix S, and shall not conduct activities or store equipment or materials unrelated to the
Work at the Facility Site. Contractor shall restore the Facility Site to the final landscape plan
and Facility Site plan, each as provided in Appendix A. As soon as practicable after the
Substantial Completion Date for a Unit, Contractor shall clear the portion of Facility Site
relating to such Unit of Construction Aids and surplus




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materials except as needed for Final
Completion. Within ninety (90) Days after the Final Completion Date, Contractor shall remove all
of its Construction Aids and surplus Materials from the Facility Site, except as necessary for
Contractor to attend to a warranty claim.




          2.12.2 Site Authority. Consistent with the provisions of this Agreement and Section
3.1, it is understood between the Parties that Contractor shall have primary authority over the
applicable portion of the Facility Site until Substantial Completion of each Unit has occurred. It
is further understood to the extent that areas of the Facility Site are to be used by PSGC for the
performance of the activities in Appendix B, such areas will be under the primary authority of PSGC
while activities are being performed thereon by PSGC or its Separate Contractors. Contractor is
responsible for the safety, security and discipline of Persons and property on the Facility Site
until the Substantial Completion of each Unit, as applicable, as provided in Section 2.2.12;
provided, however, Contractor shall not be responsible for the safety or security
with respect to the work being performed by PSGC or PSGC Personnel within such identifiable
separate work areas when the Appendix B activities of PSGC are being performed on the Facility
Site. PSGC will provide access to such PSGC controlled work areas to Contractor as reasonably
required for performance of the Work, consistent with the proviso set forth in Section 3.1.




     2.13 Record Documents. Contractor shall properly and currently maintain accessibility from
the Facility Site to all Submittals, field change notices, requests to engineering (and associated
approvals or disapprovals), Change Orders, field test records, and written interpretations and
clarifications (issued pursuant to Appendix O) (collectively, “Record Documents”) indexed and
currently annotated to show all material changes made during construction. Record Documents will
be maintained in Applicable Electronic Format. PSGC, Owners and Engineers shall have access to
such Record Documents at all times during the Term and may reasonably request paper (or portable
document format (PDF)) copies of these Record Documents, together with all approved Samples for
reference. Prior to Final Completion, Contractor shall provide PSGC with surveyed as-built
documents that have been conformed to construction records, as specified in Section 01780,
paragraph 1.04 of Appendix A. A copy of all Record Documents in Applicable Electronic Format shall
be provided to PSGC by Contractor at the end of the Term.



     2.14 Submittals.



          2.14.1 Review. Contractor shall submit to PSGC for review in accordance with the
accepted schedule of submissions, copies of Submittals as specified in Appendix A, which shall bear
the required information that Contractor has satisfied Contractor’s responsibilities under this
Agreement with respect to the review of the submission. Title block information on all Submittals
shall be as agreed between PSGC and Contractor and as specified in Appendix A. The data shown on
Submittals shall be materially complete with respect to quantities,




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dimensions, specified
performance and design criteria, materials, and similar data to enable PSGC to review the
information as contemplated by Section 2.14.3.




          2.14.2 Variations. At the time of each submission, Contractor shall specify in
writing each variation that the Submittal has from the requirements of Appendix A, and in
addition, shall cause a specific notation to be made on each submittal submitted to PSGC for
review of each such variation.




          2.14.3 Due Consideration. PSGC shall review Submittals within the time-period
specified in Appendix A, but review by or on behalf of PSGC shall be only for conformance with the
design concept of the Project and for compliance with this Agreement and shall not extend to means,
methods, techniques, sequences, or procedures of construction (except where a specific means,
method, technique, sequence, or procedure of construction is indicated in or required by this
Agreement). The review of a separate item as such shall not indicate approval of the item or the
component in which the item functions. Contractor shall give due consideration to PSGC’s comments
and make corrections required by this Agreement, and resubmit as required so that such Submittals
conform to the requirements of this Agreement. Upon re-submission, Contractor shall direct
specific attention in writing to revisions to Submittals. PSGC will not have any responsibility or
liability for the accuracy or completeness of any Submittal, or for any defect, deficiency thereof
or for any failure of such Submittal to comply with the requirements of this Agreement,
notwithstanding any review or comment on its part.




          2.14.4 Applicable Electronic Format. Submittals by Contractor to PSGC shall be made
in accordance with Appendix A, the provisions of this Agreement, and, as applicable, in the
Applicable Electronic Format.




     2.15 Separate Contractors and Activities By PSGC.



          2.15.1 Separate Work. PSGC will perform, either with its own forces or through other
contractors and subcontractors, the activities described in Appendix B.




          2.15.2 Integration. Contractor shall use reasonable efforts to arrange the
performance of the Work so that the Work and the work of PSGC’s forces or any of its Separate
Contractors are properly coordinated, joined in an acceptable manner and performed in the proper
sequence without any disruption or damage to the Work, or any work of PSGC’s forces or its Separate
Contractors.




          2.15.3 Coordination. Contractor shall coordinate the activities of Contractor’s and its Subcontractors’ forces
on the Facility Site with the activities of PSGC’s forces and each of its Separate Contractors for
the activities defined in Appendix B such that the Work of Contractor and the work of such PSGC’s
forces or Separate Contractors can be performed in accordance with the Project Schedule;




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provided, that PSGC timely provides Contractor with the information reasonably requested in
respect of activities of PSGC and its Separate Contractors, and that PSGC gives Contractor timely
and reasonable notice of activities that would require such coordination. For the avoidance of
doubt, Contractor shall have final authority over the coordination of activities on the Facility
Site; provided, however, if Contractor’s exercise of such authority delays PSGC in
performing its obligation such that PSGC cannot reasonably perform an obligation hereunder in
accordance with the Project Schedule, Contractor will not be entitled to a Change Order on account
thereof.




          2.15.4 PSGC Contractor Storage and Laydown. Contractor shall afford all of Owner
Suppliers and PSGC’s Separate Contractors reasonable opportunity for storage of their materials and
equipment and for performance of their work on the Facility Site. PSGC shall direct all Owner
Suppliers and Separate Contractors to cooperate with Contractor and to avoid actions that could
unreasonably interfere with the activities of Contractor. Prior to the Commencement Date, PSGC
will provide Contractor with the storage and laydown requirements of PSGC’s Separate Contractors
then known. After the Commencement Date, PSGC will provide Contractor with the storage and laydown
requirements of PSGC’s additional Separate Contractors, with such notice provided thirty (30) days
in advance of the actual need for storage and/or laydown.




     2.16 Transportation Costs. Contractor shall arrange and pay for all transportation, inland
transit, storage and handling costs of every kind and nature in connection with the Work (other
than as provided for in an Owner Contract) and such costs shall be Reimbursable Costs.



     2.17 Labor Matters. Prior to the Substantial Completion Date of a Unit, Contractor shall
manage the labor workforce on the Facility Site with respect to that Unit in accordance with the
Labor Plan, provided that the foregoing shall not be construed to require Contractor to manage the
labor engaged by the Separate Contractors. On the Effective Date, Contractor, its Subcontractors,
and Owner Suppliers performing construction work, as appropriate, shall have entered into, or will
enter into (in the case of Subcontractors and Owner Suppliers engaged after the Effective Date),
but in each case prior to and as a condition of working on the Facility Site, a labor agreement or
agreements, containing “no-strike” clauses, covering all workers
employed by them on or about the Facility Site in connection with the Work. Subject to
Article 11, Contractor shall be responsible for managing all labor relations matters relating to
the Work (including Owner Suppliers) on or about the Facility Site (except to the extent such labor
relations matters involve PSGC’s Appendix B activities or PSGC’s operating personnel who are
subject to Contractor’s supervision and technical direction during start-up and testing).
Contractor shall advise PSGC promptly (and vice versa), in writing, of any actual, anticipated, or
threatened labor dispute that might affect the completion of the Work by Contractor or by any of
its Subcontractors in accordance with the Project



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Schedule. As of the Effective Date, other than
administrative, operations and/or maintenance Personnel, PSGC, either by itself or through an Owner
or a separate contractor, does not intend to engage the services of any non-union labor on the
Facility Site until the Substantial Completion Date; provided, however, if PSGC
does employ or permit (through an Owner or a separate contractor) employment of non-union labor to
work on the Facility Site prior to the Substantial Completion Date (other than administrative,
operations and/or maintenance Personnel), it will do so on notice to Contractor and Contractor will
be entitled to a Change Order to the extent that performance of the Work is delayed or otherwise
adversely impacted by labor disturbances arising from the employment of such non-union labor.



     2.18 Discipline and Protection. Contractor shall enforce strict discipline and good order
among its employees, Subcontractors’ employees, Owner Supplier employees and any other Persons
carrying out portions of the Work on the Facility Site and provide for the protection and
maintenance of the Work and Owner Equipment and Materials on the Facility Site and of all Persons
and property related thereto. Contractor shall at all times take reasonable and appropriate
actions to prevent any unlawful or disorderly conduct by or amongst its employees and those
employees of Subcontractors and Owner Suppliers on the Facility Site. Contractor shall not permit
the employment, by it or its Subcontractors, of unfit Persons or Persons not skilled in tasks
assigned to them.



     2.19 Security. Except as provided in Section 2.12.2, Contractor shall be responsible for and
shall take precautions and measures as may be necessary to secure those portions of the Facility
Site on which Work is being performed at all hours, including evenings, holidays and non-work
hours, including the requirements specified therefor in Appendix A; provided,
however, upon the Substantial Completion of a Unit, access to and security for such Unit
will be the responsibility of PSGC and Contractor shall observe the requirements imposed by PSGC,
which shall be consistent with Prudent Industry Practices. Contractor is not entitled to rely on
security provided by PSGC for tangible property associated with a Unit prior to the Substantial
Completion Date. Contractor shall erect, maintain or undertake,
as required by existing conditions and the performance of this Agreement, all reasonable
safeguards for safety and protection, including banners, lighting, CCTV monitoring, security
patrols, controlled access, posting danger signs and other warnings against hazards, promulgating
safety regulations, and notifying PSGC and users of nearby sites and utilities. While Work takes
place on any off-Facility Site area, Contractor shall be responsible for security with respect to
its activities in those locations. Contractor shall also develop, implement and revise as
necessary, a written security policy designed to assure that small tools are reasonably and
continuously maintained and accounted for, with the objective of minimizing, to the extent
practicable, the need for replacement. Upon the earlier of Final Completion or such other time as
agreed by the Parties, care, custody and control of all or a portion of such small tool inventory,
as requested by PSGC, shall be turned over to PSGC.



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     2.20 Facility Site Fire Protection. Without limiting Contractor’s obligations pursuant to
Appendix A, Contractor shall be responsible for providing all fire protection services, including
liaison with the local fire and emergency authorities, necessary to safeguard and protect the areas
associated with Unit 1 and the common areas until the earlier of (a) Substantial Completion of Unit
1, or (b) termination of this Agreement. Contractor shall be responsible for providing all fire
protection services associated with Unit 2 until the earlier of (i) Substantial Completion of Unit
2 or (ii) termination of this Agreement. Contractor shall provide a Facility Site fire protection
plan for PSGC’s review and comment no later than ninety (90) Days following the Commencement Date.
Contractor shall give due consideration to PSGC’s comments and modify the plan appropriately.



     2.21 Coordination and Transition. At least twelve (12) months prior to the projected
Substantial Completion Date of Unit 1, Contractor shall deliver to PSGC a proposed plan that
provides for the coordination of (a) Contractor’s access to and use of the Facility Site for
performance of the balance of the Work consistent with Section 6.4.1 and consistent with the right
of PSGC and Owners to operate the Unit in the ordinary course of business, and (b) the security
forces, facilities and safety procedures of the Parties that will be in effect for the remainder of
the Term. Contractor and PSGC shall thereafter agree on the final plan no later that six (6)
months prior to the projected date of Substantial Completion of Unit 1; provided, that at
least six (6) months prior to the projected date of Substantial Completion of Unit 2, such plan
shall be updated by the Parties. Such plan shall provide for separate access gates to the Facility
and parking for PSGC’s administrative, operations and/or maintenance personnel, and other Personnel
entering the Facility Site in connection with the business operations of PSGC and/or the operations
and maintenance of the Facility in the ordinary course of business, as well as plans for fencing or
other methods of
separating operations and construction areas, and after Substantial Completion of Unit 1, for
separate access gates and parking for the Affiliates, employees, agents and independent contractors
of PSGC and Owners, other than those individuals performing services in connection with the
oversight of construction start-up and/or testing of Unit 2.



     2.22 Surplus Equipment and Materials. Except as the Parties otherwise agree, any surplus
Equipment, Materials, Construction Aids and Incidental Equipment shall be returned to the supplier
or sold by Contractor when no longer required. The proceeds or credit, if any from such return
and/or sale shall be promptly made available to PSGC. Such proceeds or credit made available to
PSGC will be **** the ****.



ARTICLE 3

PSGC’S OBLIGATIONS




     3.1 Facility Site. In accordance with the Project Schedule, PSGC shall make available, and
provide and maintain access to, the Facility Site as required by



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Contractor for the performance of
the Work, including access to the portions of the Facility Site (as more particularly described in
the interface drawings set forth in Appendix A) required to effect those interconnections of the
Facility to the Utility Facilities as described in Appendix A; provided, however,
Contractor’s access is subject to PSGC’s (and Owners’ and the Engineers’, as appropriate)
reasonable exercise of their respective rights and the performance of their respective obligations
under and in accordance with this Agreement, including (a) to inspect the Work; (b) to operate and
maintain Unit 1 and Unit 2 on and after the Substantial Completion Date therefor whether performed
directly or pursuant to third party agreements; (c) to perform or cause to be performed the
activities identified in Appendix B, subject to Section 2.15; (d) to prepare for, in accordance
with Prudent Industry Practices, the operation of the Facility and related mine and Coal Combustion
Waste operations, subject to Section 2.21; and (e) to conduct such other activities and obligations
typically associated with an owner of real property, including compliance and communication with
Governmental Authorities. PSGC has disclosed the information set forth in Appendix Y to
Contractor.



     3.2 Permits. PSGC shall obtain, pay for and maintain in effect the Permits designated in
Appendix F as PSGC’s responsibility together with other Permits required in connection with the
Work that are customarily obtained by the owner (in its own name) for a facility similar to the
Facility (“PSGC Permits”). Contractor shall reasonably cooperate with PSGC by providing
information needed by PSGC in connection with PSGC’s efforts to obtain and maintain the PSGC
Permits. Nothing
herein shall be deemed to limit Contractor’s obligations with respect to the Environmental
Compliance Target or any other Performance Target.



     3.3 PSGC Insurance. PSGC shall obtain and maintain the insurance required of PSGC in
accordance with Appendix Q.



3.4 PSGC Taxes.




          3.4.1 Payment of Taxes. PSGC shall administer and pay Taxes properly imposed by any
taxing authority on PSGC or on Owners or required to be collected or paid by PSGC, including Taxes:
(a) that constitute property taxes, real or personal, assessed on the Equipment, Materials, the
Facility, and the Facility Site, (b) that are measured by the sale of electricity or byproducts
from the Facility, (c) upon services or labor provided by PSGC (other than by Contractor or any
Subcontractor) in connection with the Facility, and (d) upon the gross receipts (except taxes on
gross receipts that are deemed to be Sales Taxes) or net income of PSGC (collectively “PSGC
Taxes”).




          3.4.2 Sales Taxes. With respect to Sales Taxes, PSGC shall, in a timely manner as
reasonably required by Contractor in order to purchase items as necessary to comply with the
Project Schedule: (a) furnish to Contractor all exemption certificates, information and reports
required to be submitted to





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appropriate taxing authorities in connection with Sales Tax exemptions
or rebates necessary for Contractor to perform its obligations with respect to Sales Tax rebates
and exemptions pursuant to Section 2.2.9, as more particularly described in Appendix U, and (b)
reimburse Contractor in connection with an Application for Payment or Reconciled Application for
Payment, as the case may be, for the full amount of Sales Taxes properly paid by Contractor in
accordance with this Agreement (recognizing Contractor’s obligation to seek and obtain Sales Tax
exemptions as described in Section 2.2.9). Contractor shall use commercially reasonable efforts to
minimize Sales Taxes and cooperate with PSGC in its efforts to minimize Sales Taxes.




     3.5 Start-up Personnel. PSGC shall provide operations and maintenance Personnel in accordance
with Appendix P and the phase-in plan to be developed in accordance with Section 2.2.2.1 to assist
Contractor in operating and maintaining the Facility during the Startup Period. Such Personnel
will have the qualifications and experience required pursuant to Appendix P. Such phase-in plan,
may be subsequently adjusted by agreement of the Parties; provided, however,
Contractor must give Notice thereof to PSGC as soon as reasonably practicable but not less than six
(6)
months in advance of any proposed adjustment. Scheduling of such Personnel shall be
undertaken by Contractor with the concurrence of PSGC and with due regard for minimizing overtime.
Such Personnel shall be trained by Contractor and shall assist Contractor by performing normal
operating, testing, check-out and maintenance duties during the Startup Period. If any of the
Personnel provided by PSGC do not satisfy the criteria set forth in Appendix P, Contractor shall
provide a detailed Notice describing any such deficiency to PSGC as soon as practicable, and, for
adequate cause stated, PSGC shall replace such Personnel for training by Contractor promptly under
the circumstances. Until the applicable Substantial Completion Date, Contractor shall be
responsible for the direct supervision and technical direction of PSGC’s operations Personnel;
provided, that PSGC shall be responsible for any failures of such operations Personnel to
follow the directions of Contractor or the site procedures established by Contractor. Any
additional Personnel required by Contractor during the Startup Period shall be provided by
Contractor as a Reimbursable Cost.



     3.6 PSGC Project Manager and PSGC Engineer. PSGC shall designate by Notice to Contractor (a)
a full-time PSGC employee or consultant (which consultant will not be an employee of a competitor
of Contractor in the construction and engineering business) to serve as PSGC’s project manager
(“PSGC Project Manager”), and (b) the PSGC Engineer. PSGC may by Notice to Contractor change the
PSGC Project Manager or the PSGC Engineer. The authority of the PSGC Project Manager and the PSGC
Engineer is described in Appendix O, which PSGC may amend at any time by Notice to Contractor.
Contractor may rely upon the actions of the PSGC Project Manager or the PSGC Engineer taken within
the limits of authority specified in Appendix O. The PSGC Project Manager shall be PSGC’s
representative at the Facility Site and shall have



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authority to act on behalf of PSGC with respect
to day-to-day decisions in the ordinary course of business; provided, however, the
PSGC Project Manager has no authority to execute Change Orders or amend this Agreement. Further,
the PSGC Project Manager will be responsible for furnishing information on a timely basis as
reasonably requested by Contractor that is required by this Agreement to be provided by PSGC to
Contractor, and will have the authority to agree upon procedures for coordinating PSGC’s efforts
with those of Contractor. Neither the PSGC Project Manager nor the PSGC Engineer shall be PSGC’s
Authorized Representative unless specifically appointed to such position by PSGC. Contractor may
rely upon the actions of the PSGC Project Manager taken within the authority set forth in this
Section 3.6. Any communication (other than a Notice) given to the PSGC Project Manager shall be
deemed to be given to PSGC.



     3.7 Interconnection.



          3.7.1 Out of Scope Interconnection Facilities and Utility Connections. Upon
completion of the site preparation and grading activities by Contractor with respect to that
portion of the Facility Site to be utilized for the Transmission Owner Facilities as specified in
Appendix S, which activities shall be performed in accordance with the Project Schedule and other
applicable provisions of this Agreement, PSGC shall be responsible for the installation, operation
and maintenance of the Transmission Owner Facilities and for payment of all fees to be paid to
Utility Facilities providers for interconnection of the Facility. PSGC is responsible for ensuring
the Transmission Owner Facilities and the Utility Facilities, as set forth in Appendix B, are
available in accordance with the Project Schedule. Prior to the date specified therefor in the
Project Schedule, PSGC shall cause the Transmission Owner or other transmission service provider to
take from the Facility the net electricity generated during the Startup Period. The Project
Schedule shall include the date when backfeed power will commence.




          3.7.2 Transmission Facilities. PSGC shall coordinate with the Transmission Owner
under the Interconnection Agreement with respect to the inspection and start-up of the Contractor
Transmission Facilities. Contractor shall give PSGC no less than thirty (30) Days’ prior initial
Notice that Contractor is ready for energization and backfeed power, and PSGC shall coordinate the
supply thereof. PSGC shall provide Notice to Contractor of any requirements for access to the
Facility by the Transmission Owner or its designees as required by the Interconnection Agreement.
Contractor shall reasonably cooperate with PSGC, the Transmission Owner and their respective
designees in connection with these interconnection activities.




     3.8 Startup Period.



          3.8.1 Startup Period; Pre-Commercial Energy. The “Startup Period” for a Unit means
the period from the First Fire Date until the Substantial




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Completion Date of the Unit. Owners have
all right, title and interest to all revenue resulting from electricity generated (net of auxiliary
loads) by the Facility, and Contractor shall have no right to any such electricity or to the
proceeds of the sale of such electricity.




          3.8.2 Unit Generated Waste. PSGC shall be responsible for the handling,
transportation and placement of, in accordance with all Applicable Legal Requirements, all Coal
Combustion Waste and other wastes generated by the operation of a Unit during its Startup Period,
and thereafter, and made available by the Contractor to PSGC at the
applicable delivery point specified in Appendix A, provided, however, cooling tower blow down
generated by operation of a Unit will be pumped to the river by Contractor in accordance with the
Illinois National Pollutant Discharge Elimination System Operating Permit (No. IL0076996) obtained
by PSGC for such purpose. Excess wastewater generated during the Startup Period will be sent to
the recycle basin and/or raw water pond for reuse or disposal by PSGC. PSGC will be responsible
for utility and waste disposal costs associated with the work of PSGC’s Separate Contractors. PSGC
will create and manage the inactive coal and inactive limestone storage piles at the Facility Site
from and after that point in time that Contractor completes the necessary infrastructure and gives
access to such infrastructure to permit PSGC to perform such obligations in accordance with Prudent
Industry Practices.




     3.9 Hazardous Substances. In addition to the information referenced in Appendix Y, PSGC also
shall disclose to Contractor, as information becomes available to PSGC, the existence of Hazardous
Substances at the Facility Site as to which PSGC or any Owner has actual knowledge. PSGC shall be
and remain responsible for any Hazardous Substances that are brought onto the Facility Site by PSGC
or any other Person performing activities on behalf of PSGC (other than Contractor, its
Subcontractors or Owner Suppliers) or that exist on the Facility Site prior to the Commencement
Date or releases caused by PSGC (or any other Person acting on its behalf (other than Contractor,
its Subcontractors and Owner Suppliers)) and not in accordance with Contractor’s direction (“PSGC
Hazardous Substances”), including any required Remediation and/or site restoration in connection
therewith. To the fullest extent permitted by Applicable Legal Requirements, PSGC agrees to
release, defend, indemnify and hold Contractor, its directors, officers, employees, agents, and
Affiliates harmless from and against all liability (except for any liability arising from the
negligence or intentional Release by such indemnified Persons) arising out of PSGC Hazardous
Substances, or otherwise arising out of fulfilling PSGC’s obligations under this Section 3.9,
whether through suits or causes of action in a court of law or claim, complaints or penalties
arising out of a violation or alleged violation of Applicable Legal Requirements. If Contractor
discovers or encounters any PSGC Hazardous Substances, which under Applicable Legal Requirements or
Professional Standards would require Contractor to suspend Work to avoid injury to individuals or
damage to property, then Contractor shall promptly give Notice to PSGC and cease



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performance of the
Work in and around the affected area. Except as provided in Section 2.2.13.2, Contractor shall
have no responsibility for the removal, treatment, transportation, disposal or Remediation of PSGC
Hazardous Substances. Contractor shall not have or exert any control over PSGC in PSGC’s
performance of its obligations or responsibilities in connection with the storage, transportation
or disposal of any PSGC Hazardous Substances. Contractor shall reasonably cooperate with PSGC in
connection with the Remediation by PSGC of any PSGC Hazardous Substances identified at the Facility
Site; provided, however,
Contractor shall not be required to provide disposal services for PSGC Hazardous Substances.



     3.10 Compliance with Contractor’s Rules. Not less than ten (10) Business Days prior to the
performance of any Work on the Facility Site by Contractor, Contractor will provide to PSGC a copy
of its proposed written rules regarding activities at the Facility Site that are applicable to all
Persons on the Facility Site prior to Substantial Completion of a Unit. Within fifteen (15)
Business Days from receipt thereof, PSGC will be entitled to provide its comments thereto.
Contractor shall give due consideration to such comments and thereafter promptly provide PSGC with
a final copy of such rules. PSGC and all PSGC Personnel shall comply with such final written rules
and, until the Substantial Completion Date of each Unit, as applicable, PSGC and its Separate
Contractors shall only enter the Facility Site through Contractor-controlled access points.



     3.11 Road Access. PSGC shall, in accordance with the Project Schedule, perform improvements
to upgrade the road access to the Facility Site as described in Appendix B.



     3.12 Performance of PSGC Obligations. PSGC shall perform its obligations under Article 3 and
Appendix B that appear on the Project Schedule on or before the date specified therefor as such
date may be adjusted in accordance with this Agreement.



     3.13 Compliance with Applicable Legal Requirements. PSGC shall comply with Applicable Legal
Requirements in connection with the performance of its obligations hereunder and in connection with
contracting for work or services to be performed by its Separate Contractors related to the
Facility.



     3.14 Owner Suppliers.



          3.14.1 Contract Execution. PSGC is responsible for entering into the Owner Contracts,
the execution of which will not occur later than the date set forth in Appendix G; provided, that
Contractor has provided the support contemplated by Appendix W. The Parties agree that the
negotiation of such Owner Contracts is a joint effort that requires cooperation.




          3.14.2 Payment. PSGC shall make payment to the Owner Supplier Payment Account in
accordance with the provisions of Appendix W of all




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amounts properly due to each Owner Supplier
under the terms of each Owner Contract after receipt and consideration of the recommendations
therefor of Contractor.




     3.15 Discipline and Protection. PSGC shall enforce strict discipline and good order among its
employees and its Separate Contractors’ employees carrying out PSGC activities set forth in
Appendix B on the Facility Site and provide (or cause to be provided) for the protection and
maintenance of such work and of such individuals and property related thereto. PSGC shall at all
times take reasonable and appropriate actions to prevent any unlawful or disorderly conduct by or
amongst its employees and those employees of its Separate Contractors. PSGC shall require that its
Separate Contractors not employ unfit individuals or assign individuals to tasks as to which they
inappropriately suited in connection with the performance of the activities of such Separate
Contractors.



     3.16 PSGC-Provided Supplies. PSGC shall be responsible for providing the supplies set forth
in Appendix C in the quantities, quality and location (as applicable) specified in Appendix C,
subject to any technical limitations therein specified (collectively, “PSGC Provided Supplies”).
At least three (3) months prior to the first Day of the calendar month in which any such supplies
will first be required, Contractor shall give PSGC Notice of the amount of such supplies required
by Contractor. Contractor shall provide monthly updates thereafter.



     3.17 Capital Spare Parts. Within one hundred eighty (180) Days after the Commencement Date,
PSGC shall prepare and deliver to Contractor a plan for the acquisition of capital spare parts for
the Facility. Such plan will, at a minimum, set forth the list of capital spare parts to be
purchased and the dates on which such spare parts should be delivered to the Facility Site so that
they are available for Contractor’s use during the Startup Period of each Unit. Contractor shall
review such plan and provide comments to PSGC within thirty (30) Days of receipt. The Parties shall
thereafter promptly meet to consider Contractor’s comments and revise and finalize the plan as
necessary. PSGC shall proceed with the acquisition of capital spare parts in accordance with the
finalized plan.



ARTICLE 4

PSGC’S RIGHT TO INSPECT, STOP AND RE-PERFORM WORK




     4.1 Inspection. PSGC and its designees (including the Engineers and PSGC’s Authorized
Representative) will have the right to (a) have access to and inspect the Work, including Equipment
and Materials, (b) be present on the Facility Site, and (c) be present at all tests and
inspections, at any stage of completion on the Facility Site. The participation in or observation
of any such inspections or testing by PSGC and its designees (or any failure by PSGC or its
designees to participate in or observe such inspections and testing) will not be deemed to
constitute a waiver of any of Contractor’s obligations under this Agreement or be



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construed as an
approval or acceptance of the Work. So long as Contractor provides notice to PSGC of a test or
inspection (such notice may be in the form of the identification of such test or inspection in the
Project Schedule, Monthly Progress Report or other Submittal to PSGC), then the failure of PSGC,
its designees or the Engineers to be present at such test or inspection will not invalidate or
otherwise adversely affect the conduct or results of such test or inspection. PSGC, its designees
or the Engineers exercising rights pursuant to this Section 4.1 shall not unreasonably interfere
with Contractor’s performance of its obligations hereunder.



     4.2 Right to Reject and Re-Performance. Prior to the Warranty Period, if the Work is not in
conformance with the requirements of this Agreement (“Defective Work”) and will not otherwise be
included on the Unit 1 Punch List or the Unit 2 Punch List, then PSGC may give Contractor Notice of
the Defective Work. If PSGC provides Notice to Contractor that PSGC requires a plan of correction
for Defective Work, then Contractor shall, within seven (7) Business Days after PSGC’s Notice
thereof, submit a plan of correction of the Defective Work to PSGC for review and Contractor shall
give due consideration to any comments to such plan proposed by PSGC. Contractor shall provide
Notice to PSGC of any modifications or supplements to the plan of correction reasonably implemented
by Contractor. For purposes of this Agreement, “Defect,” “Defects” or “Defective” describes Work
that is not in conformance with the requirements of this Agreement.



     4.3 Defects in Owner Suppliers’ Scope. Prior to the Warranty Period, if either Party obtains
knowledge of any defect or deficiency in any Owner Suppliers’ Scope, such Party shall give Notice
thereof to the other Party and Contractor shall thereafter enforce the provisions of the applicable
Owner Contract and secure from the applicable Owner Supplier a plan of correction for such
deficiency.



     4.4 Right to Suspend Work for Convenience. PSGC may, at any time and from time to time, by a Notice, suspend (and later reinstate) all
or any portion of the Work. Upon receipt of such Notice, Contractor shall immediately suspend its
performance of such Work consistent with a safe and orderly shut-down of such Work. Either Party
may terminate this Agreement, with such termination being handled under Section 13.1 hereof, if (a)
in the case of a suspension of all or substantially all of the Work by PSGC for convenience, the
suspension of Work exceeds two hundred seventy (270) Days in the aggregate, or (b) in the case of a
suspension resulting from the occurrence of a Change of Law or event of Force Majeure, a single
suspension of all or substantially all of the Work exceeds three hundred sixty (360) Days. In the
case of either (a) or (b) above, Contractor may reassign Key Personnel engaged in Work at the
Facility Site if any such suspension of the Work exceeds one hundred twenty (120) consecutive Days.
If Contractor reassigns Key Personnel in accordance with this Section 4.4, it shall use reasonable
efforts to reassemble the original Key Personnel at such time as the suspension of the Work is
lifted.



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     Payment of Contractor’s Reimbursable Costs in accordance with Article 5 shall continue during
the period of suspension. Contractor shall use reasonable efforts to minimize such Reimbursable
Costs, including consultation with PSGC as to potential reassignment of Contractor’s personnel
and/or suspension of the work of Subcontractors. In the event that a suspension lasts for more
than thirty (30) consecutive Days, Contractor shall be entitled to invoice PSGC for an equitable
proportion of the Milestone Values for partially completed Milestones.



     4.5 Uncovering Work. Without limiting PSGC’s or any Owner’s right to inspect the Work at any
time on the Facility Site, at each weekly construction meeting at the Facility Site, Contractor
shall provide to PSGC a copy of Contractor’s three (3) week look-ahead schedule for Work to be
performed on the Facility Site. PSGC shall promptly advise Contractor in writing of those items of
Work on such look-ahead schedule that it specifically wants to witness or inspect. For those items
of Work that PSGC advises Contractor that it wants to witness or inspect, Contractor shall keep
PSGC reasonably apprised of changes to the time and location of the performance of such events. If
Contractor performs any such item of Work at a time as to which PSGC did not have Notice in
accordance herewith, then, upon PSGC’s written request, given within seven (7) Days of the date on
which PSGC was advised that such Work would be performed, Contractor shall expose, uncover or
otherwise test such Work as PSGC may reasonably require. If PSGC fails to witness or inspect Work
which it had requested the opportunity to witness or inspect, Contractor shall be entitled to
proceed with such Work and PSGC shall not be entitled to enforce its rights under this Section 4.5,
except upon issuance of a Change Order to Contractor in accordance with Article 10. With respect
to any other Work that is covered by Contractor, Contractor, at PSGC’s written request prior to the
commencement of the Warranty Period, shall uncover, expose, or otherwise make available for
observation, inspection, or testing as PSGC may require. If Work that is not required to be
inspected or tested is Defective, Contractor shall (a) be paid its Reimbursable Costs associated
with the correction of such Defect but shall not be entitled to a Change Order on account thereof,
including any delay associated therewith, and (b) prepare a Recovery Plan if there is a delay in
the Project Schedule. If, however, such Work is not Defective, PSGC shall issue Contractor a
Change Order in accordance with Article 10 for the associated impact, as demonstrated by Contractor
in a Change Order Request.



     4.6 Right to Stop Work for Cause. PSGC, by a Notice, may order Contractor to stop performance
of that portion of the Work that reasonably appears to PSGC to cause or threaten to cause an
immediate danger to life or material damage to property. If it is reasonably determined by PSGC
that such activities of Contractor or Contractor’s Personnel caused or threatened to cause
immediate danger to life or material damage to property, Contractor shall not be entitled to a
Change Order for the associated impact. PSGC’s right to stop Work under this Section 4.6 shall be
without prejudice to any other right or remedy PSGC may have under this Agreement. Once the cause
of the stop work order has been



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resolved by Contractor, PSGC shall promptly direct Contractor to
resume performance of the Work that had been stopped. In the event that any stop work order Notice
provided hereunder is subsequently determined to not have been properly issued in accordance with
the provisions of this Section 4.6, PSGC shall issue a Change Order to Contractor in accordance
with Article 10, to reflect any cost or schedule impact, as demonstrated by Contractor in a Change
Order request.



ARTICLE 5

PRICE AND PAYMENT




     5.1 Compensation. Compensation payable to Contractor shall consist of (a) Reimbursable Costs
and (b) the Fee, as more particularly described below:



          5.1.1 Reimbursable Costs. Except for Non-Reimbursable Costs, all of Contractor’s
costs incurred in performing the Work and performing its other obligations under this Agreement,
including costs of Contractor’s personnel engaged in performing the Work, will be reimbursable in
accordance with Appendix I; provided, that Reimbursable Costs must be of similar types of costs
which are (a) typically charged by Contractor to its customers in accordance with its generally
applicable policies and procedures (which shall be made available to PSGC on request), or (b) in
the absence of a specific policy or procedure, consistent with practices customarily employed by
Contractor in the execution of its other power projects similar to the Facility.
Contractor will be compensated for all Reimbursable Costs incurred in connection with the
correction of Defective Work (except as provided in Article 9) and including Reimbursable Costs
incurred in connection with efforts taken to achieve Substantial Completion, Final Completion and
satisfaction of the Performance Targets.




          5.1.2 [Not Used]




          5.1.3 Fee. The Base Fee Component and the Earned Fee Component will be paid to
Contractor on a milestone basis in the amounts and upon achievement of the Milestones therefor
established in Appendix J. To the extent required by this Agreement, Contractor shall be liable to
refund to PSGC the Earned Component paid to Contractor. The Fee will not be subject to adjustment,
except (a) in accordance with Section 5.1.4 and (b) to reflect an adjustment of the Earned Fee
Component in accordance with ****.




          5.1.4 Fee Adjustment. The Parties agree that the Fee will not be increased for any
reason other than as set forth in this Section 5.1.4 and ****. If any one of the following
events occurs:




                    (a) PSGC directs or initiates a change order that increases the scope of Work under this
Agreement or scope of work under an Owner Contract, including an exercise of an option under an
Owner Contract, in each case,



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net of any savings that otherwise results from such change or
exercise, but excluding changes in Owner Contracts caused or requested by Contractor;




                    (b) a Change Event described in Sections 10.3(d), (h)(ii), (i) or (p);



                    (c) a Change of Law; or



                    (d) rework or restoration associated with a casualty to the Facility resulting from an event
of Force Majeure or a portion thereof to the extent the cost thereof
(and profit thereon) is **** from **** by PSGC;


then,
Contractor will be entitled to an adjustment of the **** in an amount equal to **** percent
(****%) of the (i) amount by which the Target Price will increase as a result of (a), (b), or (c)
above, or (ii) the actual cost (excluding profit and contingency) associated with (d) above.




     If and to the extent that the Total Installed Cost is less than the Target Price upon Final
Completion (subject to the reconciliation provisions of Section 5.5.3), Contractor shall be paid
the increased amount of the Earned Fee Component
calculated in accordance with ****. If, upon Final Completion (or upon any subsequent
reconciliation), Contractor has been paid more of the Earned Fee Component than the amount it is
entitled to under this Agreement, Contractor shall promptly refund such excess to PSGC no later
than seven (7) Business Days following receipt of PSGC’s invoice therefor.



          5.1.5 Allowance. The Target Price includes the following allowances:




                    (a) **** dollars ($****) for the cost of procurement, installation, calibration and testing of
continuous monitors relating to the emissions of mercury and PM10. Inasmuch as such
certified monitors for such emissions are not commercially available as of the Effective Date, the
Parties have agreed to cooperate to procure approved monitors for such purposes in the future.
Should PSGC desire not to purchase such monitors, PSGC shall give notice to Contractor no later
than ****, and in such event the **** will be **** the amount of such ****. Should the cost
of procurement, installation, calibration and testing of such monitors exceed such **** then a
Change Order shall be issued in order to **** the **** by the amount of such ****.



                    (b) **** dollars ($****) for the cost impact of compliance with the OSHA standard regarding
hexavalent chromium as issued by the US Department of Labor on February 28, 2006. Should the
aggregate amount of Reimbursable Costs in respect of such impact be less than the **** stated
above, the **** will be **** the amount of ****. Should the aggregate amount of
Reimbursable Costs in respect of such impact **** such ****, then a



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Change Order shall be
issued in order to **** the **** by the amount of such ****.




          5.1.6 Substituting Milestones. Upon the request of Contractor, PSGC (acting
reasonably) may agree to substitute or reallocate Milestones on the schedule of Milestone Values in
Appendix J; provided, that Contractor cannot increase the amount of the Fee Installments to be paid
to it for any month as a result of such substitution. In addition, Contractor shall be entitled to
invoice and be paid for Milestones achieved in advance of the schedule shown in Appendix J, but
not for Milestones achieved more than two (2) months in advance of such schedule; provided, that
payment for such Milestones does not cause the current cash flow forecast provided pursuant to
Section 5.9 to be exceeded.




     5.2 Monthly Payment.



          5.2.1 Monthly Payments. Subject to Section 5.3, the Compensation will be paid to
Contractor in monthly installments upon completion and delivery to PSGC of Applications for Payment
and Reconciled Applications for Payment, as the case may be, in accordance with the payment
procedures set forth in this Agreement.




          5.2.2 Application for Payment. Between the first (1st) and fifth (5th) Day of each
month, Contractor shall submit to PSGC an Application for Payment filled out and signed by
Contractor invoicing PSGC for (a) Contractor’s good faith estimate of Reimbursable Costs for the
following month consistent with the monthly progress report delivered in accordance with Section
5.2.3 (the “Estimated Reimbursable Costs”), (b) the amount of Fee Installments to be paid for
Milestones completed in the prior month in accordance with the Milestone Values in Appendix J, (c)
any amount due for which payment was withheld from an earlier payment and where the cause for such
withholding no longer applies, and (d) any other amount due to Contractor pursuant to this
Agreement. On or before the seventh (7th) Business Day prior to the last Banking Day of such
month, Contractor shall reconcile the current Application for Payment with a statement setting
forth the actual Reimbursable Costs incurred in the performance of Work in the immediately prior
month (the “Actual Reimbursable Costs”) and deliver such reconciled Application for Payment to PSGC
in the form attached as Appendix R-2C (“Reconciled Application for Payment”). To the extent the
Actual Reimbursable Costs for a prior month exceed the Estimated Reimbursable Costs for that month
paid to Contractor, the amount of such excess shall be payable by PSGC pursuant to the current
month’s Reconciled Application for Payment. To the extent the Estimated Reimbursable Costs for a
prior month paid to Contractor exceed the Actual Reimbursable Costs for that month, the amount of
such excess shall be credited to PSGC against the amount requested by Contractor in the current
month’s Application for Payment and such credit shall be reflected in the current month’s
Reconciled Application for Payment. Until delivery of the Full Notice to





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Proceed by PSGC, the
aggregate amount of Compensation for which Contractor may submit a monthly Application for Payment,
or a Reconciled Application for Payment, as the case may be, will not exceed the total limit set
forth in the Cash Flow Cap Curve contained in Appendix J. The Cash Flow Cap Curve will be adjusted
whenever the Target Price is adjusted pursuant to a Change Order or as otherwise (a) provided in
this Agreement, or (b) agreed by the Parties so as to allow timely and efficient completion of the
Work. Notwithstanding the foregoing, on the Effective Date of this Agreement, Contractor shall
submit an Application for Payment to PSGC for the Estimated Reimbursable Costs for the remaining
portion of the then current month and for the next succeeding month without duplication of amounts
paid under the Letter of Intent. PSGC shall make payment of such amount within ten (10) Days of
the Effective Date. Thereafter, Applications for Payment and reconciliations between Estimated
Reimbursable Costs and Actual
Reimbursable Costs as described above shall continue on a monthly basis as otherwise
contemplated by this Section 5.2.2; provided, however, payment of the Estimated Reimbursable Costs
specified in the Application for Payment submitted by Contractor in September 2007, will not be due
until October 1, 2007. The Parties recognize that, after Final Completion, the Application for
Payment process will be utilized for the invoicing and payment of Reimbursable Costs incurred
during the Warranty Period; provided, that because such amounts cannot be estimated, Contractor
shall invoice such amounts in arrears. For example, Reimbursable Costs related to Warranty claims
incurred in any month shall be invoiced in an Application for Payment delivered by Contractor
between the first (1st) and fifth (5th) Day of the next month. During the Warranty Period,
Applications for Payment and Reconciled Applications for Payment need not be submitted monthly.




          5.2.3 Progress Reports. Each Application for Payment submitted by Contractor must be
supported by a monthly progress report, in a form and content in accordance with Appendix A, for
the month preceding the Application for Payment. Such progress report shall also include a good
faith forecast of (i) the estimated Reimbursable Costs and Fee Installments that PSGC will be
liable to pay to Contractor, and (ii) the payments to be required to be made under all of the Owner
Contracts, in each case, for the ninety (90) Day period commencing with the month following the
month in which the Application for Payment is submitted. It is recognized that forecasts are
forward-looking projections and variances from such forecasts shall not affect PSGC’s payment
obligations hereunder.




          5.2.4 Lien Waivers and Sworn Statements.





          5.2.4.1 Lien Waivers from Contractors and Subcontractors. With each Reconciled
Application for Payment, Contractor shall deliver to PSGC a Lien Waiver in the form of
Appendix R-11-1, duly executed and acknowledged by Contractor, together with signed Lien
Waivers in the form of Appendix R-11-3 duly executed and acknowledged by those
Subcontractors with an aggregate contract value in excess of **** dollars









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($****), in
respect of the Work performed in the preceding month, provided that, even in the
event of Contractor’s failure to provide Lien Waivers from such Subcontractor(s), Contractor
shall still be entitled to receive payment of the amount set forth in the Application for
Payment or Reconciled Application for Payment, as the case may be, if the aggregate amount
for which Lien Waivers have not been provided remains less than **** dollars ($****).




          5.2.4.2 Sworn Statement from Contractor. At the same time as delivering the
Lien Waiver provided above, Contractor shall deliver
to PSGC a duly executed and acknowledged sworn statement by Contractor in the form of
Appendix R-11-1, attaching a list of the entities that have entered into Contractor
Subcontracts with an aggregate contract value in excess of **** dollars ($****), the value
of each such subcontract, the amount paid as of the date of the listing and, as of the date
of the listing, the balance of the amount due or to become due to each. The additional
Contractor costs for preparing such statements shall be the basis of a Change Order.




          5.2.4.3 Sworn Statement from Subcontractors. Contractor shall also require all
entities that have entered into Contractor Subcontracts with an aggregate contract value in
excess of **** dollars ($****), and all other Subcontractors involved in performance of Work
at the Facility Site with an aggregate contract value in excess of **** dollars ($****), to
provide sworn statements satisfying the requirements of Section 22 of the Illinois Mechanics
Lien Act.




          5.2.4.4 Lien Waivers and Sworn Statements from Owner Suppliers. Contractor
shall also, exercising the authority granted to it pursuant to Appendix W, use its
reasonable efforts to obtain for PSGC with each request for payment submitted by each Owner
Supplier both (i) a Lien Waiver to the extent of such payment, in the form of Appendix
R-11-3, duly executed and acknowledged by such Owner Supplier and (ii) a sworn statement by
such Owner Supplier satisfying the requirements of Section 5 of the Illinois Mechanics Lien
Act. The Parties agree that exceptions may be made to the foregoing requirements on a case
by case basis. If Contractor is not able to obtain such a Lien Waiver and sworn statement
from any Owner Supplier, in circumstances where the Owner Supplier is obliged to provide
such Lien Waiver and sworn statement, as applicable, under the terms of its Owner Contract,
Contractor will not recommend approval of the request for payment by such Owner Supplier and
PSGC will be under no obligation to transfer funds to the Owner Supplier Payment Account in
respect of such request for payment.






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          5.2.5 Other Documentation. Each Application for Payment must be fully completed and
also include the following in form and substance reasonably satisfactory to PSGC:




                    (a) a duly executed Contractor’s certification stating that it has reviewed all financial
information contained in the Application for Payment is true, correct and complete;



                    (b) a copy of all invoices pursuant to which Contractor has paid Sales Taxes for which it
seeks reimbursement;



                    (c) information in such detail and with such backup as indicated in Appendix R-2 so as to
allow PSGC and the Independent Engineer to sign off on the reconciliation of Actual Reimbursable
Costs for a month compared to the Estimated Reimbursable Costs for the same month; and



                    (d) such other information as may be reasonably required by PSGC in respect of Actual
Reimbursable Costs; provided, however, if such information is not available and
cannot reasonably be made available by Contractor and must be specifically prepared in response to
PSGC’s request then Contractor will be entitled to receive payment (in connection with the current
Application for Payment) for the amounts as to which such additional information relates, subject
to the delivery of such information by Contractor together with the immediately following
Application for Payment.



     Reconciled Applications for Payment must be accompanied by the documentation required pursuant
to this Section 5.2.5 except to the extent previously provided.



          5.2.6 Failure to Comply. To the extent Contractor fails to comply with the foregoing
requirements with respect to submission of documentation with the Application for Payment or
Reconciled Application for Payment, PSGC shall, after issuing a Notice to Contractor, be entitled
to withhold an equitable portion of the payment due to Contractor.




          5.2.7 Security for Fee At Risk. As a condition of payment of any portion of the
Earned Fee Component and as security for the obligation that Contractor may have to refund the
Earned Fee Component, Contractor shall tender to PSGC an Acceptable Letter of Credit, the stated
amount of which (by amendment or otherwise) will at all times be at least as equal to the sum of
(a) any amount of the Earned Fee Component requested in a current Application for Payment (or
Reconciled Application for Payment as the case may be) delivered to PSGC and (b) the aggregate
amount of the Earned Fee Component previously paid to Contractor, the sum of (a) and (b) being
known as the “Threshold Amount”. PSGC will have the right to draw upon the Acceptable Letter of
Credit as provided therein only in the event (i) of a lapse of or failure to renew or provide a
substitute Acceptable





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Letter of Credit, (ii) Contractor fails to refund a portion of the Earned Fee
Component as required under this Agreement, or (iii) of termination of this Agreement for a
Contractor Event of Default where Contractor fails to pay the amount for which it is liable under
Section 13.4.2 within five (5) Business Days of receiving a demand therefor and where there are
insufficient funds due to Contractor for PSGC to withhold in order to satisfy Contractor’s
liability under Section 13.4.2. In the event of an improper draw on the Acceptable
Letter of Credit, PSGC shall repay the full amount of the improperly drawn amount within three
(3) Business Days of resolution of the dispute or agreement, with interest at the Late Payment Rate
from the date of the improper draw. If the stated amount of the Acceptable Letter of Credit
exceeds the Threshold Amount then, upon submission to PSGC of a reduction certificate by Contractor
requesting a reduction of the stated amount (but not a reduction that would reduce the stated
amount below the Threshold Amount), PSGC shall promptly execute such certificate and return it to
Contractor. On the fourteenth (14th) Business Day following delivery to Contractor of
the Certificate of Final Completion, the Acceptable Letter of Credit will be surrendered by PSGC to
Contractor for cancellation.




     5.3 PSGC Review. Without prejudicing PSGC’s other rights under this Agreement, for purposes
of determining the amount of payment to which Contractor is entitled in respect of an Application
for Payment or Reconciled Application for Payment, PSGC shall promptly notify Contractor concerning
any invoiced amount or portion thereof that is in dispute (including where PSGC contends that there
is a deficiency with respect to such Application for Payment or Reconciled Application for Payment,
as the case may be, and/or the accompanying documentation) and of the basis for such dispute as
soon as reasonably practicable with the objective of allowing time for the Parties to resolve such
dispute prior to the date on which payment on the disputed matter would otherwise be due. It is
understood by Contractor that PSGC’s determination under this Section 5.3 may be made in
conjunction with the Financing Parties, and the approval by the Financing Engineer may be required
prior to payment.



     5.4 Monthly Payments. Except with respect to those amounts which may have been disputed in
good faith by PSGC in accordance with Section 5.3, PSGC shall make full payment of the amounts
invoiced by Contractor pursuant to Section 5.2 such that payment is received by Contractor in
immediately available funds by the last Banking Day of the month in which the Application for
Payment and Reconciled Application for Payment, if any, were submitted. All payments to Contractor
under this Agreement shall be made to the bank account and in the manner as specified in Appendix
J.



     5.5 Final Payment.



          5.5.1 Final Payment to Contractor. Within thirty (30) Days after the Final Completion
Date, Contractor shall submit a reconciliation to PSGC which





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shows (a) all Reimbursable Costs and
Fee Installments to which Contractor is entitled for Work performed through the Final
Completion Date and (b) all Reimbursable Costs and Fee Installments previously received by
Contractor for Work performed through the Final Completion Date. To the extent that there is a
differential between such total amounts, Contractor shall, as appropriate, refund such differential
amount to PSGC or submit an Application for Payment to PSGC for such differential amount, by way of
request for final payment for Work performed through the Final Completion Date. PSGC shall not be
required to make such final payment of Compensation to Contractor until the Final Completion Date
occurs and Contractor has delivered all items and satisfied all conditions required under Section
6.5. The Application for Payment for such final payment submitted by Contractor must be
accompanied by (i) a full Lien waiver and release from Contractor that is applicable to all of the
Work performed through Final Completion, conditioned solely on receipt of such final payment, and
(ii) a full Lien waiver and release from each Subcontractor for all Work performed through Final
Completion under a Contractor Subcontract with an aggregate value equal to or exceeding three
million dollars ($3,000,000), in each case in the forms attached hereto as Appendix R-11.




          5.5.2 Final Owner Supplier Payment Statement. Within thirty (30) Days after the Final
Completion Date, Contractor shall submit a reconciliation to PSGC which shows: (a) all amounts
payable to each Owner Supplier under the Owner Contracts through the Final Completion Date and (b)
all amounts paid by PSGC to the Owner Supplier Payment Account through the Final Completion Date.
To the extent that there is a differential between such total amounts, Contractor shall, as
appropriate, require those Owner Supplier(s) who have been overpaid to refund such differential
amount to the Owner Supplier Payment Account or Contractor shall submit a final Recommendation for
Funding of Owner Supplier Payment Account to PSGC for any deficiency, by way of request for final
payment of Owner Supplier costs incurred through the Final Completion Date. The Recommendation for
Funding of Owner Supplier Payment Account for such final payment submitted by Contractor must
comply with the requirements of Appendix W and Contractor shall use reasonable efforts to obtain
full Lien waivers and releases from each Owner Supplier in the form attached hereto as Appendix
R-11.




          5.5.3 Reconciliation. The Parties acknowledge that on the date of Final Completion,
disputes between the Parties may be pending and liquidated damages and other amounts from Owner
Suppliers and others may not have been recovered. Although the Parties will initially reconcile
amounts due to Contractor or PSGC as provided in Appendix T-3 based on the comparison of the Total
Installed Cost to the Target Price as of Final Completion, they hereby agree to further reconcile
such amounts upon resolution of such disputes and receipt of payment of any such amounts. The
final reconciliation shall occur no later than the second anniversary of the Target
Final Completion Date, unless the Parties







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otherwise agree (such agreement not to be
unreasonably withheld if one Party requests a later date for final reconciliation). The making of
the final payment as provided in Section 5.5.1 above will constitute a waiver of all claims
incurred or arising through the date of Final Completion (excluding claims (a) based on a
reconciliation of the Total Installed Cost and the Target Price as contemplated by this Section
5.5.3, and (b) for unreimbursed Sales Taxes to which Contractor is entitled to be reimbursed
hereunder and/or amounts to which Contractor is entitled to indemnity hereunder, in each case to
the extent not known by Contractor on the date final payment is made) against PSGC and Owners (and
the Facility) not previously made in writing by Contractor, except that nothing herein may be
construed to imply a waiver of any right to any amount which is the subject of a written Dispute in
accordance with Article 17 at the time final payment is made or relates to an obligation that
survives in accordance with Section 20.6.




     5.6 Withholding to Protect PSGC from Loss.



          5.6.1 Withholding. PSGC may, without prejudice to any other rights PSGC may have
hereunder, after issuing a Notice to Contractor, also withhold all or any portion of any payment to
such extent as may be necessary in PSGC’s reasonable judgment to protect PSGC from losses, costs,
expenses or damages for which Contractor is liable due to:




                    (a) unpaid overdue amounts due to PSGC by Contractor under this Agreement;



                    (b) Contractor Liens (with respect to Liens filed by Subcontractors) for which, twenty (20)
Days after having received knowledge thereof, Contractor has failed to remove the Contractor Lien
or provide a Contractor Lien Security; and



                    (c) with respect to the Earned Fee Component, failure to furnish or maintain an Acceptable
Letter of Credit as required pursuant to Section 5.2.7.



          5.6.2 Lien Title Indemnity. Notwithstanding Section 5.6.1, PSGC shall release any
payments withheld because of any Lien if Contractor obtains a Contractor Lien Security; provided,
however, other than compliance with its obligation to deliver a Contractor Lien Security, the
posting of such Contractor Lien Security does not relieve Contractor of any other obligations
(including its indemnity obligations) under this Agreement.




     5.7 Delinquent Payments. Payments not made when due will bear interest from the due date
thereof until the date paid at the Late Payment Rate. For the avoidance of doubt, any portion of
any payment that is disputed and not paid in accordance with the provisions of this Agreement and
subsequently determined to be payable on the original due date thereof will bear interest in






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accordance with the foregoing from the date such portion of the disputed amount was due (assuming there had been no Dispute) until the date of actual payment.


     5.8
Contractor
Liens. Contractor shall cause each Contractor Lien to be canceled or discharged of record or furnish
PSGC with a Contractor Lien Security.  If Contractor does not promptly satisfy such Contractor Lien or
fails to provide PSGC with a Contractor Lien Security in lieu thereof, in any event within the period
specified in Section 5.6.1(c), then PSGC may, after Notice to Contractor and expiration of ten (10)
Days after Contractor’s receipt of such notice, cure or release such Contractor Lien by payment of
money or otherwise, and, if PSGC arranges a Contractor Lien Security with respect to such Contractor Lien,
Contractor shall reimburse PSGC for the reasonable cost of arranging such Contractor Lien Security within
thirty (30) Days after a request therefor by PSGC, if, based on the circumstances at the time, Contractor
acted unreasonably in not making payment of the amount which is the subject of the Contractor Lien.  .


     5.9
Forecasts. On the Effective Date,
Contractor shall deliver to PSGC a cash flow forecast covering the period from the
date of the forecast through Final Completion in the format specified
in Appendix J. Contractor shall
thereafter update such forecast semi-annually on or before the twentieth Day of January and July of each
calendar year commencing with January 2008, and as otherwise necessary, in the reasonable opinion of
Contractor or PSGC. It is recognized that forecasts are forward-looking projections and variances
from such forecasts shall not affect PSGC’s payment obligations hereunder.


     5.10 Owner
Supplier Payments. Invoicing for and payments to Owner Suppliers under Owner Contracts shall be handled by
the Parties in accordance with Appendix W.




ARTICLE 6

COMPLETION AND ACCEPTANCE OF THE WORK




     6.1
Mechanical Completion.


             6.1.1
Criteria for Mechanical Completion of the Units Each of the following conditions must be met for “Mechanical Completion” of a Unit to occur:



                 6.1.1.1        Contractor
has performed or provided the design, engineering, procurement, permitting (in respect of Contractor Permits
only), construction and installation of such Unit in
accordance with this Agreement and manufacturer’s requirements, including: (a) the installation of the Unit,
and Equipment and Materials related to such Unit on foundations; (b) the connection of all such
Equipment and Materials related to such Unit to other applicable Equipment and Materials as
required by way of piping, wiring, controls, and safety systems, and (c) ensuring that, with
respect to such Unit except as allowed under Section 6.3:



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	 	(i)	 	all such Equipment and related operating systems are individually cleaned, leak
checked, lubricated and aligned in accordance with Professional Standards;
	 
	 	(ii)	 	all initial fills have been completed;
	 
	 	(iii)	 	all instruments are calibrated;
	 
	 	(iv)	 	all relays are set in their final configuration;
	 
	 	(v)	 	all Equipment is checked out in accordance with Professional Standards;
	 
	 	(vi)	 	all ground checks are complete;
	 
	 	(vii)	 	piping is hydro tested and flushed in accordance with Professional Standards;
	 
	 	(viii)	 	all motor rotation checks are complete;
	 
	 	(ix)	 	all electrical devices (including the generator panels) have been energized;
	 
	 	(x)	 	he connections from the step-up transformer to the Transmission Owner
Facilities’ dead-end structure located as provided in Appendix A have been completed;
	 
	 	(xi)	 	all electrical circuits have been checked to verify that Equipment and
operating systems have been correctly installed;
	 
	 	(xii)	 	all Equipment is ready for initial operation, and may be so operated, without
damage thereto or to any other property and without injury to any person;
	 
	 	(xiii)	 	the Unit is on turning gear and ready for commissioning and start-up;
	 
	 	(xiv)	 	with respect to Unit 1, all of the Common Facilities required for Unit 1
operation have been completed and are ready for initial operation; and with respect to
Unit 2, all of the Common Facilities have been completed and are ready for initial
operation; and
	 
	 	(xv)	 	an initial Unit 1 Punch List or Unit 2 Punch List, as applicable, has been
provided by Contractor.






          6.1.1.2 Contractor has completed the Work necessary to cause the Unit to be capable of
operating safely and in accordance with Applicable Legal Requirements and Prudent Industry
Practices.



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          6.1.1.3 Contractor has completed the classroom training of PSGC-provided Personnel
designated for operating and maintenance, as required by Appendix A.




          6.1.1.4 A draft Facility Manual, including vendor manuals related to the applicable
Unit, has been provided as required by Appendix A.



          6.1.2 Notice and Report of Mechanical Completion. When Contractor determines that it
has satisfied the conditions for Mechanical Completion of a Unit, Contractor shall deliver Notice
of such determination (“Notice of Mechanical Completion”) to PSGC in the form set forth in Appendix
R-4. The Notice of Mechanical Completion will contain a certification by Contractor that it has
satisfied all of the conditions for Mechanical Completion pursuant to this Section 6.1 and Appendix
A.




          6.1.3 Achievement of Mechanical Completion. Within five (5) Days of receipt of the
Notice of Mechanical Completion with respect to a Unit by PSGC and the PSGC Engineer, PSGC shall
inspect such Unit, and/or cause such Unit to be inspected by the PSGC Engineer and by its other
designees and PSGC shall either: (a) deliver to Contractor a written acceptance of Contractor’s
Notice of Mechanical Completion in the form set forth in Appendix R-3 (the “Certificate of
Mechanical Completion”), or (b) notify Contractor in writing that it disputes Contractor’s
certification that the conditions for Mechanical Completion have been met, stating with specificity
the reasons therefor. If PSGC issues the Certificate of Mechanical Completion, the date of PSGC’s
issuance of the Certificate of Mechanical Completion shall be deemed the “Mechanical Completion
Date” of
such Unit. If PSGC notifies Contractor that it disputes satisfaction of the conditions for
Mechanical Completion, then Contractor shall either promptly undertake such action or Work as is
necessary to meet such conditions and issue another Notice of Mechanical Completion to PSGC or
refer the matter to dispute resolution in accordance with Article 17. In the event Contractor
prevails in the Dispute, the fifth (5th) Day following the date of PSGC’s receipt of the
then applicable Notice of Mechanical Completion will be deemed the “Mechanical Completion Date” of
such Unit.




          6.1.4 Initial Synchronization. Contractor shall provide PSGC with at least thirty
(30) Days prior written Notice of the projected time or times it will attempt Initial
Synchronization and forty-eight (48) hours prior verbal notice of the actual time or times it will
attempt Initial Synchronization.





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     6.2 Substantial Completion.



          6.2.1 Criteria for Substantial Completion of the Units. Each of the following
conditions must be met with respect to a Unit for Substantial Completion of the Unit to occur:




                    (a) Mechanical Completion of such Unit has been achieved;



                    (b) the most recent Completed Performance Test for the Unit demonstrates: (i) concurrent
achievement of (A) at least **** percent (****%) of the Net Electrical Output Target, (B) not more
than **** percent (****%) of the Net Heat Rate Target, (C) compliance with the Environmental
Compliance Target, and (D) compliance with all Applicable Legal Requirements applicable to
Contractor under this Agreement and necessary for the Unit to be capable of operations in
compliance therewith, (ii) for each Unit, as applicable and in accordance with Appendix E,
successful completion of the Common Facilities Capacity Test, and (iii) passage of the Unit Hundred
Hour Test, all as more particularly set forth in Appendix E;



                    (c) during the most recent Completed Performance Test, the Unit, its individual components,
systems, subsystem and Equipment were not operated outside their respective manufacturer’s designed
continuous rated limits; provided, that for purposes of achievement of Substantial
Completion, such requirement shall only apply to such items that are integral / essential to the
continuous safe and reliable operation of the Unit in accordance with Prudent Industry Practices.
Contractor shall develop a suitable plan to correct the cause(s)
underlying operation of any Facility component, system, subsystem or item of Equipment (not
integral / essential to the continuous safe and reliable operation of the Unit) that operated
outside of its designed continuous rated limits and Contractor shall thereafter promptly implement
such correction plan during the applicable Warranty Period;



                    (d) there are no Liens (except those for which a Contractor Lien Security has been provided in
accordance with the terms of this Agreement) resulting from the actions or failure to act of
Contractor, its Personnel or any of the Owner Suppliers, other than Liens resulting from the
failure of PSGC to pay all amounts in respect of that portion of the Work out of which such Lien
arises due to Contractor and/or Owner Suppliers in accordance with the terms of this Agreement;



                    (e) Contractor has provided to PSGC special tools and spare parts related to such Unit that
are required to be provided pursuant to Appendix A. Special tools may be reconditioned subject to
PSGC approval;



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                    (f) the final Facility Manual related to the applicable Unit and all other Submittals required
to be submitted prior to or as a condition of Substantial Completion of a Unit have been provided.



                    (g) Contractor has completed all Work on or with respect to such Unit so that the Unit is
capable of being operated in the normal course of business in accordance with the operating
procedures set forth in the Facility Manual and Prudent Industry Practices, except for any
remaining items set forth in the Unit 1 Punch List or Unit 2 Punch List (as applicable);



                    (h) Contractor has obtained all Contractor Permits required for Substantial Completion; and



                    (i) Contractor has completed the training of PSGC-provided personnel pursuant to Appendix A.



          6.2.2 Notice and Report of Substantial Completion. When Contractor determines that it
has satisfied the conditions for Substantial Completion of a Unit in accordance with Section 6.2.1,
Contractor shall deliver a Notice of such determination (“Notice of Substantial Completion”) to
PSGC in the form set forth in Appendix R-4. The Notice of Substantial Completion will contain a
certification by Contractor that it has satisfied all of the conditions for Substantial Completion
for the Unit pursuant to this Section 6.2 and a report with sufficient detail (including
preliminary laboratory results sufficient for a reasonable person to conclude that there is a high
probability that the final laboratory results will confirm that the applicable conditions of
Substantial Completion have been
achieved) to enable PSGC to determine whether Contractor has achieved such requirements with
respect to such Unit.




          6.2.3 Achievement of Substantial Completion. Within five (5) Business Days of receipt
by PSGC and the PSGC Engineer of the Notice of Substantial Completion with respect to a Unit, PSGC
shall inspect such Unit, and/or cause such Unit to be inspected by the PSGC Engineer and/or the
Financing Engineer, and PSGC shall either: (a) deliver to Contractor a written acceptance of
Contractor’s Notice of Substantial Completion in the form set forth in Appendix R-3 (the
“Certificate of Substantial Completion”), or (b) notify Contractor in writing that it disputes
Contractor’s certification that the conditions for Substantial Completion have been met, stating
the reasons therefor. If PSGC delivers the Certificate of Substantial Completion, the date of the
Certificate of Substantial Completion will be deemed the “Substantial Completion Date” of such
Unit; provided, however, for purposes of Sections 8.2.3 and 8.3.2 only, the Substantial Completion
Date of a Unit will be deemed to be the date on which PSGC received Contractor’s Notice of
Substantial Completion. If PSGC notifies Contractor that it disputes satisfaction of the
conditions for Substantial Completion, then Contractor shall either promptly undertake such action
or Work as is necessary to meet such




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conditions and issue another Notice of Substantial Completion
to PSGC or refer the matter to dispute resolution in accordance with Article 17. In the event
Contractor prevails in the Dispute, the date of PSGC’s receipt of the then applicable Notice of
Substantial Completion will be deemed the Substantial Completion Date of such Unit.




     If PSGC fails to respond to a Certificate of Substantial Completion within such five (5)
Business Day period and subsequently disputes that Substantial Completion has been achieved, PSGC
shall waive any Late Completion Damages, if any, that would have otherwise accrued for the number
of days equal to the number of days by which PSGC’s response was delayed.



          6.2.4 Care, Custody and Control of the Unit During a Dispute Regarding Substantial
Completion. In the event of a Dispute regarding whether Substantial Completion of a Unit has
been achieved, Contractor shall maintain care, custody and control of the Unit. If the Dispute is
resolved in favor of Contractor determining that Substantial Completion was achieved, then
Substantial Completion will be deemed to have occurred on the date on which PSGC received
Contractor’s then applicable Notice of Substantial Completion; provided, however, (a) turnover of
the care, custody and control of the Unit to PSGC will occur on the Business Day following the Day
on which the Dispute is resolved, and (b) for purposes of Sections 8.2.3 and 8.3.2 only, the
Substantial Completion Date will be deemed to be the date on which Contractor’s then applicable
Notice of Substantial Completion was received by
PSGC. If the Dispute is resolved in favor of PSGC, Contractor shall (i) provide PSGC with a
Recovery Plan for achievement of Substantial Completion of such Unit, and (ii) maintain care,
custody and control of such Unit until it satisfies the conditions for Substantial Completion and
PSGC issues the Certificate of Substantial Completion for such Unit in accordance with Section
6.2.3.




     6.3 Creation of Punch Lists.



          6.3.1 Unit 1 Punch List. When Contractor believes that a system or Unit is ready for
commissioning and startup, Contractor shall prepare and deliver to PSGC an initial list setting
forth (a) all those certain minor, non-safety items that do not impact the performance (including
availability, output or heat rate, operability, safety or mechanical or electrical integrity) of
the Unit or compliance with Applicable Legal Requirements, including Permits, and which remain to
be performed to complete the Work related to Unit 1, (b) the proposed time limits within which
Contractor will complete such remaining Work, and (c) Contractor’s plan to complete such Work on or
before the Target Final Completion Date. Upon its receipt of such list, PSGC shall review the same
and notify Contractor of any proposed revisions thereto. Such list shall be subject to additions
and deletions as systems are completed. PSGC’s Authorized Representative and Contractor’s
Authorized Representative shall then meet, consult in good faith and, prior to the




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Substantial
Completion Date of Unit 1, agree upon the final list and plan, including the approved time limits
within which Contractor shall perform such remaining Work and the resources to be utilized to
complete such Work (the “Unit 1 Punch List”). Once the items on the Unit 1 Punch List have been
identified, Contractor shall promptly begin working on the items thereon. The plan for completing
the Work specified in the Unit 1 Punch List may be amended by Contractor at any time prior to Final
Completion upon Notice to PSGC to reflect the progress of completing such Work; provided, however,
any such amendment to the plan must reasonably provide for the completion of all such Work by the
Target Final Completion Date. The review and comment by PSGC or its representatives of any matter
relating to a Unit 1 Punch List will not relieve Contractor of its obligations under this
Agreement.




          6.3.2 Unit 2 Punch List. When Contractor believes that a system or Unit is ready for
commissioning and startup, Contractor shall prepare and deliver to PSGC an initial list setting
forth (a) all those certain minor, non-safety, items that do not impact the performance (including
availability, output or heat rate, operability, safety or mechanical or electrical integrity) of
the Unit or compliance with requirements of
Applicable Legal Requirements including Permits that remain to be performed to complete the
Work related to Unit 2 and the remainder of the Facility (excluding Unit 1), (b) the proposed time
limits within which Contractor shall complete such remaining Work, and (c) Contractor’s plan to
complete such Work by the Target Final Completion Date. Upon its receipt of such list, PSGC shall
review the same and notify Contractor of any proposed revisions thereto. Such list shall be
subject to additions and deletions as systems are completed. PSGC’s Authorized Representative and
Contractor’s Authorized Representative shall then meet, consult in good faith and, prior to the
Substantial Completion Date of Unit 2, agree upon the final list and plan, including the approved
time limits within which Contractor shall perform such remaining Work and the resources to be
utilized to complete such Work (the “Unit 2 Punch List”). Once the items on the Unit 2 Punch List
have been identified, Contractor shall promptly begin working on the items thereon. The plan for
completing the Work specified in the Unit 2 Punch List may be amended by Contractor at any time
prior to Final Completion upon Notice to PSGC to reflect the progress of completing such Work;
provided, however, any such amendment to the plan must reasonably provide for the completion of all
such Work by the Target Final Completion Date. The review and comment by PSGC or its
representatives of any matter relating to the Unit 2 Punch List will not relieve Contractor of its
obligations under this Agreement.




     6.4 Transfer of Possession and Control of each Unit to PSGC.



          6.4.1 Possession and Control. On or before the Substantial Completion Date for each
Unit, Contractor and PSGC shall agree upon a schedule of the dates and times when Contractor will
require a partial or complete shut down of the Unit or the imposition of operating restrictions on
the Unit in order to complete




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the Work (other than the Unit 1 Punch List or Unit 2 Punch List)
under this Agreement; provided, however, such schedule will (a) provide for such partial or
complete shutdown of, or the imposition of operating restrictions on, such Unit only during a
scheduled outage, if any, or off-peak hours so as to accommodate Owners’ reliance on the electrical
output from the Facility, and (b) be subject to the dispatch requirements of the Midwest
Independent System Operator, Inc. Subject to Section 6.2.4, on the Substantial Completion Date for
each Unit or the date of termination of this Agreement in accordance with Article 13 (as the case
may be), PSGC shall take and thereafter be solely responsible for the care, custody, control,
operation, and maintenance of such Unit. Following transfer of possession and control of a Unit to
PSGC, Contractor (and its Subcontractors and the Owner Suppliers) will have reasonable access to
such Unit consistent with the schedule established in accordance with, and the other requirements
of, this Section 6.4 and the cooperation of PSGC as necessary for Contractor to complete any Work
still remaining to be performed hereunder,
including the Unit 1 Punch List items and the Unit 2 Punch List items. More particularly,
PSGC shall (a) provide for full or partial shutdown of, or the imposition of operating restrictions
on, a Unit’s operation as provided in the schedule agreed to by Contractor and PSGC, pursuant to
this Section 6.4 and (b) provide the supplies required to be provided by PSGC pursuant to Appendix
C in support of Unit operations. Following issuance of the Certificate of Substantial Completion
for a Unit to PSGC, Contractor shall comply with health, safety and security rules of PSGC supplied
reasonably in advance (including permit-to-work procedures and requirements), which will be
consistent with Prudent Industry Practices, regarding activities at the portion of the Facility and
the Facility Site so transferred and shall coordinate its activities at such portion of the
Facility and the Facility Site with any other Person performing work, operation, maintenance or
other activities at such location.




          6.4.2 Common Facilities Support. PSGC understands that completion of Unit 2 requires
that the Common Facilities turned over to PSGC at Substantial Completion of Unit 1 must be operated
by PSGC as reasonably required by Contractor. Contractor understands that operation of such Common
Facilities is also necessary for the operation of Unit 1 in the normal course of business. PSGC
agrees to operate and maintain (including the performance of warranty work) such Common Facilities
from and after turnover of care, custody and control of such facilities to PSGC in accordance with
Prudent Industry Practices and, consistent therewith, both Parties agree to cooperate and support
the objectives of the other to the maximum extent practicable. The Parties will work together to
create a workable advance plan as a basis to allow achievement of their respective objectives.




     6.5 Final Completion.



          6.5.1 Criteria for Final Completion of the Facility. Each of the following conditions
must be met for “Final Completion” to occur:





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                    (a) the Substantial Completion Dates for both Units have occurred;



                    (b) the Completed Equivalent Availability Test for each Unit demonstrates that the Unit
Equivalent Availability Target has been achieved in accordance with the requirements of Appendix E
and Applicable Legal Requirements or, to the extent that there is a deficiency in achieving the
Unit Equivalent Availability Target, the applicable **** have been **** the ****;



                    (c) the Completed Performance Test for each Unit demonstrates that each Unit has achieved each
Performance Target set forth in Sections 8.1.1.1, 8.1.1.2, and 8.1.1.3 of Appendix Z, while in
compliance with the Environmental Compliance Target and Applicable Legal Requirements;
provided, however, to the extent that there is a deficiency in achieving a
Performance Target set forth in Sections 8.1.1.1, 8.1.1.2, and/or 8.1.1.3 of Appendix Z, all
applicable **** in respect thereof have been **** the ****;



                    (d) all Late Completion Damages and Limestone Interim Damages which have been **** have been
**** the ****;



                    (e) during the most recent Completed Performance Test, the Unit, its individual components,
systems, subsystem and Equipment were not operated outside their respective manufacturer’s designed
continuous rated limits;



                    (f) Contractor has completed all Work and other obligations (except obligations requiring
future performance (e.g., warranty Work)), including all Unit 1 Punch List items and all Unit 2
Punch List items in accordance with this Agreement;



                    (g) Contractor has provided all Submittals as required under this Agreement;



                    (h) Each Owner will have good and undefeasible title to its Proportionate Share of each
portion of the Work free and clear of all Contractor Liens; provided, that PSGC has paid
the amount properly due to Contractor for such portion of the Work and PSGC has deposited the
amount properly due into the Owner Supplier Payment Account in accordance with Appendix W;
provided, further, that, with respect to any Contractor Lien which is filed,
Contractor may satisfy such requirement by delivering Contractor Lien Security in respect thereof;.



          6.5.2 Notice and Report of Final Completion. When Contractor determines that it has
satisfied the conditions for Final Completion in accordance with Section 6.5.1, Contractor shall
deliver a Notice of such determination (“Notice of Final Completion”) to PSGC in the form set forth
in Appendix R-4.




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The Notice of Final Completion will contain a certification by Contractor that it
has satisfied all of the conditions for Final Completion pursuant to this Section 6.5 and a report
with sufficient detail to enable PSGC to determine whether Contractor has achieved such
requirements with respect to the Facility.




          6.5.3 Achievement of Final Completion. Within five (5) Business Days of receipt of the Notice of Final Completion by PSGC and the
PSGC Engineer, PSGC shall inspect the Facility and/or cause the Facility to be inspected by the
PSGC Engineer and/or the Financing Engineer and PSGC shall either: (a) deliver to Contractor a
written acceptance of Contractor’s Notice of Final Completion in the form set forth in Appendix R-3
(the “Certificate of Final Completion”), or (b) notify Contractor in writing that it disputes
Contractor’s certification that the conditions for Final Completion have been met, stating with
specificity the reasons therefor. If PSGC issues the Certificate of Final Completion, the date of
PSGC’s receipt of the Notice of Final Completion will be deemed the “Final Completion Date.” If
PSGC notifies Contractor that it disputes satisfaction of the conditions for Final Completion, then
Contractor shall either promptly undertake such action or Work as necessary to meet such conditions
and issue another Notice of Final Completion to PSGC or refer the matter to dispute resolution in
accordance with Article 17. In the event Contractor prevails in the Dispute, the date of PSGC’s
receipt of the then applicable Notice of Final Completion shall be deemed the Final Completion
Date.




ARTICLE 7

PERFORMANCE TESTING




     7.1 Performance Tests. After the Mechanical Completion of a Unit, Contractor shall perform,
and re-perform if necessary, the Performance Tests. In the event the Parties do not agree that
Contractor has achieved Mechanical Completion, Contractor may undertake the Performance Tests at
any date not earlier than one hundred twenty (120) Days prior to the Contractual Target Substantial
Completion Date, subject to certifying in writing to PSGC of Contractor’s good faith belief
(including providing detailed reasons therefor) that Mechanical Completion has been achieved;
provided, further, in such event, Contractor shall also commence and diligently
carry out such Work as PSGC has specified in a Notice to Contractor to achieve Mechanical
Completion. The commencement of Performance Tests pursuant to this Section 7.1 shall, however, in
no way limit Contractor’s obligation to achieve Mechanical Completion. In the event Contractor
commences the Performance Tests while PSGC continues to dispute the achievement of Mechanical
Completion, and it is subsequently determined by agreement or through the procedures set forth in
Article 27 that Mechanical Completion had not been achieved, PSGC may require Contractor to
re-perform the Performance Tests. Notwithstanding the foregoing, Contractor may not proceed to
perform the Performance Tests if a dispute exists as to whether Mechanical Completion has been
achieved and PSGC gives notice to Contractor in



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writing that in PSGC’s good faith belief (including
providing detailed reasons therefor), that proceeding with the Performance Tests poses undue risk
to the safety of individuals or the risk of material damage to property and/or would not otherwise
be consistent with Prudent Industry Practices. At such time as the Parties agree that such risks
have been abated, without regard to any continuing
dispute as to the achievement of Mechanical Completion, Contractor may proceed to perform the
Performance Tests. All Performance Tests will be conducted in accordance with the requirements of
this Agreement and the applicable testing requirements specified in Appendix E. Notwithstanding
anything to the contrary contained herein, Contractor, may request PSGC to timely approve
Contractor’s use of temporary equipment, systems or operating practices for purposes of commencing
and executing the Performance Tests to satisfy the requirements of Substantial Completion;
provided, that: (a) the Unit can be operated in a safe and prudent manner based on such
use; (b) all components and systems that are directly related to the production and delivery of
electrical energy to the high side of the main step-up transformer are mechanically complete; (c)
any temporary equipment, system or operating practice used to sustain operation shall be replaced
with the permanent equipment, system or operating practice prior to Final Completion; (d) the
absence of any such permanent equipment, system, or operating practice neither will, nor could be
expected to, have any material adverse impact on the accuracy or reliability of the test data; and
(e) such use neither will nor could be expected to adversely affect the commercial operation of the
Unit.



     7.2 Notice to PSGC. Contractor shall give PSGC and the PSGC Engineer at least ten (10)
Business Days’ advance Notice of the date on which Contractor intends to commence the initial
Performance Tests on each Unit to determine Substantial Completion of that Unit. Thereafter,
Contractor shall give PSGC and the PSGC Engineer at least three (3) Business Days’ advance Notice
of all subsequent Performance Tests (other than a Unit Equivalent Availability Test), unless a
shorter notice period is agreed to in advance and in writing by PSGC. Contractor shall notify PSGC
and the PSGC Engineer of such Performance Tests so that they may be present or represented to
witness and monitor all aspects of such tests.



     7.3 Completed Performance Test.



          7.3.1 Certain Performance Tests. After Contractor has completed Performance Tests
demonstrating Unit performance necessary to achieve Substantial Completion of a Unit or Final
Completion, it shall give Notice to PSGC and the PSGC Engineer that it nominates such Performance
Tests as a “Completed Performance Test.” Each such Notice will be accompanied by a preliminary
test report for such Completed Performance Test as soon as reasonably practicable but in no event
more than twenty-four (24) hours after the completion of such Completed Performance Test (or as
soon thereafter as such reports are first available to Contractor) providing a summary of the
Performance Tests on which it


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is based and including all raw data taken during
such Performance Tests, and a final test report within thirty (30) Days thereafter. A Final
Completed Performance Test report must be delivered to PSGC in accordance with Appendix E.
Contractor shall include sufficient results of testing in the preliminary test report to allow PSGC
to reasonably determine that there is a high probability that the final test results will confirm
that the applicable conditions of Substantial Completion or Final Completion have been achieved.
As soon as practicable, but in any event within five (5) Business Days after receipt of Notice by
PSGC and the PSGC Engineer, PSGC shall give Notice to Contractor either concurring with, or
rejecting, the Completed Performance Test report and stating its reasons for rejection of such
Notice, as the case may be. Such procedure shall be repeated until Contractor submits a Notice
demonstrating Unit performance necessary to achieve Substantial Completion or Final Completion, as
applicable. Subject to Article 17, if Contractor’s Notice of a Completed Performance Test is
rejected by PSGC, such test shall not constitute a Completed Performance Test.




          7.3.2 Completed Equivalent Availability Test. After Contractor believes that the Unit
Equivalent Availability Target with respect to a Unit has been achieved, it shall give Notice to
PSGC and the PSGC Engineer of its belief and identify the specific
****
(****)  hour
period of Unit performance upon which it bases its belief (such period to constitute the “Completed
Equivalent Availability Test”). Such Notice will be accompanied by a final test report which shall
include both the raw data on which the report is based and Contractor’s analysis of such data. As
soon as practicable, but in any event within five (5) Business Days after receipt of Notice by PSGC
and the PSGC Engineer, PSGC shall give Notice to Contractor either concurring with, or rejecting,
the report and stating its reasons for rejection of such Notice, as the case may be. Such
procedure shall be repeated until Contractor submits a Notice demonstrating Unit performance
necessary to achieve the Unit Equivalent Availability Target. Subject to Article 17, if
Contractor’s Notice of a Completed Equivalent Availability Test is rejected by PSGC, such test
shall not constitute a Completed Equivalent Availability Test.




          7.3.3 Individual Test Reports. After Contractor has completed any Performance Test,
it shall provide to PSGC a preliminary test report for each such test as soon as reasonably
practicable but in no event more that twenty-four (24) hours after the completion of such test (or
as soon thereafter as such reports are first available to Contractor) providing a summary of such
test and including all raw data taken during such test and, if Contractor believes such test has
been passed, a final test report within thirty (30) Days thereafter. If Contractor believes such
test has been passed, Contractor shall include sufficient results of such testing in the
preliminary test report to allow PSGC to determine that there is a high probability that the final
test results will
confirm that such test has been passed. Contractor shall not be required to provide an
individual test report (preliminary or final) pursuant to this Section 7.3.3 if the results of such
test are, at the same




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time, to be included in the reports to be provided by Contractor pursuant to
Section 7.3.1.




     7.4 Repetition of Tests. If a Performance Test fails to demonstrate that a Unit meets or
exceeds the Performance Targets required for Substantial Completion of a Unit, then Contractor
shall, as part of the Work, (a) promptly take all actions necessary to correct any deficiencies in
order to cure such failure, and (b) re-perform the Performance Tests as many times as required
until achievement of the applicable Performance Targets is demonstrated pursuant to this Agreement,
subject, when applicable, to the determination pursuant to Section 8.2.1 to **** the ****.



     7.5 Re-Setting of Facility. Promptly after the completion of any Performance Test on each
Unit, Contractor shall perform whatever Work is necessary, including re-setting of Equipment (to
the extent settings were allowed to be changed during any Performance Test) and repairs of damage
or modifications caused by testing, to ensure that the normal operating control settings and
configurations for the relevant Unit(s) are maintained.



ARTICLE 8

PERFORMANCE AND COMPLETION TARGETS, BUYDOWN AMOUNTS, INTERIM 

AND LATE COMPLETION DAMAGES AND BONUS AMOUNTS




     8.1 Performance and Completion Targets.



          8.1.1 Performance Targets. Each Unit shall meet the Performance Targets described in
Sections 8.1.1.1 through 8.1.1.3 and Section 8.1.1.5 of Appendix Z when tested pursuant to a
Completed Performance Test performed in accordance with the requirements of Appendix E and
Applicable Legal Requirements. In addition to the foregoing, each Unit must meet the target in
Section 8.1.1.4 of Appendix Z while in compliance with the Environmental Compliance Target and all
Applicable Legal Requirements applicable to Contractor under this Agreement and necessary for the
Unit to be capable of operations in compliance therewith and demonstrate its ability to follow load
during the Completed Equivalent Availability Test, as more particularly set forth in Appendix E.
The targets set forth in Sections 8.1.1.1 through 8.1.1.5 of Appendix Z are the “Performance
Targets”.




          8.1.2 Early Target Substantial Completion Date. Contractor shall perform the Work
with the objective that the Substantial Completion Date for each Unit will occur on or before the
Early Target Substantial Completion Date.




          8.1.3 Target Final Completion Date. Contractor shall perform the Work with the
objective that Final Completion of the Facility will occur on or before the Target Final Completion
Date.




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          8.1.4 Sound Level Targets. Contractor shall perform the Work with the objective that
each Unit and the Facility will comply with the Sound Level Targets. It is understood and agreed
that Contractor will not be prevented from achieving Substantial Completion of a Unit or Final
Completion of the Facility, and that no Completed Performance Test or Completed Unit Equivalent
Availability Test will be invalidated, on account of the failure of either Unit or the Facility to
meet the Sound Level Targets, and that the causes of such failure are not to be considered Warranty
Defects. However, if at any time it is determined that a Unit or the Facility does not meet the
Sound Level Targets, then promptly upon PSGC’s direction, Contractor will undertake a detailed
analysis of the causes of such failure and present a plan to correct such failure to PSGC.
Contractor’s analysis, investigation and plan preparation shall be undertaken with dispatch and
presented to PSGC as soon as is practicable. Such plan shall identify Contractor’s good faith
estimate of the cost and timing of implementation. Such analysis and the actual implementation of
any such plan, as it may be modified, shall take place following execution of a Change Order in
accordance with Article 10.




     8.2 Late Completion Damages and Buydown Amounts.



          8.2.1 Substantial Completion Buydown Amounts. Once the Substantial Completion Date
for a Unit has occurred, Contractor, in lieu of achieving each applicable Performance Target set
forth in Sections 8.1.1.1 through 8.1.1.3 of Appendix Z in a Completed Performance Test in
accordance with Appendix E and Applicable Legal Requirements, may elect to have the **** associated
with any such **** the ****; provided, however, that the Parties shall have consulted with each
other as to the comparative advantages and disadvantages of spending additional Reimbursable Costs
in order to achieve improved levels of Facility performance with respect to such Performance Target
and the Parties shall have agreed (each acting reasonably and in good faith) that the **** should
be **** the ****. If the Parties are not in agreement, Contractor
will be entitled to proceed with Work directed at improving Facility performance with respect
to any Performance Target that has not been achieved; provided, that (a) Contractor presents a
reasonably detailed plan, identifying the problems to be corrected and the steps to be undertaken
to address such problems and the timeline associated therewith, and (b) provides to PSGC a weekly
written status report outlining the progress made by Contractor and adjusting, if necessary, the
expected cost and expense of such correction plan. Contractor agrees that it will not withhold its
consent to **** the applicable **** the **** if the **** to be expended to correct the cause(s)
of an **** would not be incurred by a reasonable person objectively considering the circumstances
of the Parties. Notwithstanding anything to the contrary herein, the **** applicable to any ****
will be **** the **** on the Target Final Completion Date (if not
previously so ****), based on
the most recent Completed Performance Test, as follows:





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                    (i) Unit Limestone Consumption Buydown Amount. The “Limestone Consumption
Buydown Amount” for a Unit means the amount determined in accordance with Appendix L for
each **** unit by which the actual limestone Ca/S ratio for the Unit is greater than the
Limestone Consumption Target.




                    (ii) Unit Net Electrical Output Buydown Amount. The “Net Electrical Output
Buydown Amount” for a Unit means the amount determined in accordance with Appendix L per
kilowatt (rounded to the nearest kilowatt) for every kilowatt by which the Net Electrical
Output for the Unit is less than the Net Electrical Output Target.




                    (iii) Unit Net Heat Rate Buydown Amount. The “Net Heat Rate Buydown Amount”
for a Unit means the amount determined in accordance with Appendix L per BTU/kWh (HHV)
(rounded to the nearest tenth of a BTU/kWh) for every BTU/kWh by which the Net Heat Rate for
the Unit is greater than the Net Heat Rate Target.



          8.2.2 Unit Equivalent Availability Buydown Amount. Once Contractor has demonstrated
in a Completed Equivalent Availability Test that a Unit has achieved at least **** percent (****%)
of the **** but less than **** percent (****%) of the **** while in compliance with the
Environmental Compliance Target, Appendix E and all Applicable Legal Requirements applicable to
Contractor under this Agreement and necessary for the Unit to be capable of operations in
compliance therewith, Contractor may elect to have the Unit Equivalent Availability Buydown Amount
**** the **** achieving **** percent (****%) of the ****; provided,
however, that the Parties shall have consulted with each other as to the comparative advantages and
disadvantages of spending additional Reimbursable Costs in order to achieve improved levels of
Facility performance with respect to the Unit Equivalent
Availability Target and the Parties shall have agreed (each acting reasonably and in good
faith) that the **** should be **** the ****. If the Parties are not in agreement, Contractor
will be entitled to proceed with Work directed at improving Unit Equipment Availability; provided,
that (a) Contractor presents a reasonably detailed plan to PSGC, identifying the problems to be
corrected and the steps to be undertaken to address such problems and the timeline associated
therewith, and (b) thereafter provides to PSGC a weekly written status report outlining the
progress made by Contractor and adjusting, if necessary, the expected cost and expense of such
correction plan. Contractor agrees that it will not withhold its consent to **** the applicable
**** the **** if the **** to be expended to **** the cause(s) of the **** would not be
incurred by a reasonable person objectively considering the circumstances of the Parties. PSGC
agrees to operate each Unit from and after Substantial Completion in accordance with the Facility
Manual and, in the absence of specific direction in such Facility Manual, Prudent Industry
Practices. Notwithstanding anything to the contrary herein, the **** applicable to




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an **** will be
**** the  **** on the Target Final Completion Date (if not previously so ****). “Unit Equivalent
Availability Buydown Amount” means an amount determined in accordance with Appendix L for every
**** percent (or portion thereof) by which the Unit Equivalent Availability is less than the Unit
Equivalent Availability Target.




          8.2.3 Late Completion Damages. If the Substantial Completion Date for a Unit occurs
after the applicable Contractual Target Substantial Completion Date therefor, the **** in accordance with Appendix L will be **** the **** for each Day by which the Substantial
Completion Date of the applicable Unit is later than the applicable Contractual Target Substantial
Completion Date (the “Late Completion Damages”). The Parties agree that it would be extremely
difficult and impracticable to determine precisely the amount of actual damages that would be
suffered by PSGC and Owners as a result of Contractor’s failure to achieve the applicable
Contractual Target Substantial Completion Dates. The Parties further agree that the Late
Completion Damages are a fair and reasonable substitute therefor. The Parties agree that each is
estopped to argue the invalidity, unenforceability or otherwise question the reasonableness of the
Late Completion Damages, as they represent the allocation of risk between the Parties and the basis
of the bargain.  **** the **** will not (i) limit Contractor’s liability for its failure
to perform any of its other obligations hereunder, including Defects in the Work, or its
obligations to achieve Mechanical Completion, (ii) affect Contractor’s obligation with respect to
each Unit to achieve Substantial Completion and Final Completion, or (iii) limit PSGC’s remedies
for Contractor’s failure to perform any of its other obligations hereunder.




          8.2.4 Buydown Amounts. The Parties agree that it would be extremely difficult and impracticable to determine
precisely the amount of actual damages that would be suffered by PSGC and Owners as a result of
Contractor’s failure to achieve, as applicable, the Limestone Consumption Target, the Net
Electrical Output Target, the Net Heat Rate Target or the Unit Equivalent Availability Target (as
the case may be). The Parties further agree that once **** of a Unit and **** percent (****%) of
the Unit Equivalent Availability Target has been achieved, the applicable **** are a fair and
reasonable substitute therefor. PSGC and Contractor agree that each is estopped to argue the
invalidity, unenforceability or otherwise question the reasonableness of the Buydown Amount
provisions, as they represent the allocation of risk between the Parties and the basis of the
bargain.  **** the **** will not (a) limit Contractor’s liability for failure to perform
any of its other obligations hereunder, (b) affect Contractor’s obligation to perform the Work with
the objective of causing the Substantial Completion Dates or the Final Completion Date to occur by
the applicable Target Contract Dates, or (c) limit PSGC’s remedies for Contractor’s failure to
perform any of its other obligations hereunder. Buydown Amounts will be determined based on the
last Completed Performance Test or Completed Unit Equivalent Availability Test, as applicable.




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          8.2.5 Minimum Achievement. The **** of any **** the **** with respect to the ****,
the **** and the **** will not be available to Contractor unless and until the Substantial
Completion Date has occurred with respect to a Unit. The **** of any **** the
**** with respect to the **** will not be available to **** unless and until (a)
**** and (b) **** percent (****%) of the **** has been achieved in a Completed Equivalent
Availability Test.




          8.2.6
Buydown Damages. **** and **** the **** will not affect PSGC’s rights to terminate this Agreement pursuant to Article
13 because of reasons other than the events giving rise to Late Completion Damages or Buydown
Amounts.




          8.2.7 Recovery from Owner Suppliers.





          8.2.7.1 Performance Liquidated Damages. In the event that a failure to
achieve a Performance Target is attributable (in whole or in part) to one or more of
the Owner Suppliers, Contractor shall give notice to PSGC to that effect (together
with reasonable supporting documentation) and Contractor shall assist PSGC in
recovering the applicable performance liquidated damages from the responsible Owner
Supplier(s) under the terms of the Owner Contract(s) in question. To the
extent that **** are **** under the Owner
Contract(s) in question, such **** will be **** to **** and **** the ****.




          8.2.7.2 ****. In the event that a failure to achieve Substantial
Completion of a Unit by the Target Substantial Completion Date is attributable (in
whole or in part) to one or more Owner Supplier(s), Contractor shall give notice to
PSGC to that effect (together with reasonable supporting documentation) and Contractor
shall assist PSGC in recovering the applicable late completion damages from the
responsible Owner Supplier(s) under the terms of the Owner Contract(s) in question.
To the extent that **** are **** under the Owner
Contract(s) in question, such **** will be **** the ****.



          8.2.8 Limestone Interim Damages. The Parties agree that, without limiting
Contractor’s obligations under Section 8.2.1, it would be extremely difficult and impracticable
under the presently known and anticipated facts and circumstances to ascertain and fix the actual
damages that PSGC and Owners would incur should Contractor fail to achieve the Limestone
Consumption Target
by the Contractual Target





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Substantial Completion Date. Accordingly, in such
event, as PSGC’s sole and exclusive remedy for such failure, an amount equal to **** dollars
($****) shall be **** the **** as ****, and not as a **** (“Limestone Interim Damages”), for
each Day after the Contractual Target Substantial Completion Date until the Limestone Consumption
Target is achieved in a Completed Performance Test or the Parties have agreed to **** the **** the **** in accordance with Section 8.2.1; provided, that no amount hereunder shall be ****
the **** for any Day on which actual limestone consumption is **** then **** percent (****%) of
the Limestone Consumption Target.




     8.3 Bonus Amounts.



          8.3.1 Performance Bonuses. Bonus Amounts with respect to a Unit pursuant to this
Section 8.3.1 will be earned based on (a) the Completed Performance Test used for purposes of
determining achievement of Final Completion or (b) the Completed Equivalent Availability Test, as
applicable. The Bonus Amounts pursuant to this Section 8.3.1 are as follows:





               (i) Unit Limestone Consumption Bonus Amount. If a Unit’s limestone consumption
performance is better than the Limestone
Consumption Target, the “Limestone Consumption Bonus Amount” equals the amount set
forth therefor in Appendix L for each **** unit (rounded to the nearest **** unit) by which
the actual limestone Ca/S ratio of the Unit is less than the Limestone Consumption Target;




               (ii) Unit Net Electrical Output Bonus Amount. If a Unit’s Net Electrical
Output performance is better than the Net Electrical Output Target, the “Net Electrical
Output Bonus Amount” equals the amount set forth therefor in Appendix L per kilowatt
(rounded to the nearest kilowatt) for every kilowatt by which the Net Electrical Output of
the Unit is better than the Net Electrical Output Target; and




               (iii) Unit Net Heat Rate Bonus Amount. If a Unit’s Net Heat Rate performance
is better than the Net Heat Rate Target, the “Net Heat Rate Bonus Amount” equals the amount
set forth therefor in Appendix L per BTU/kWh (HHV) (rounded to the nearest tenth of a
BTU/kWh) for every BTU/kWh by which the Net Heat Rate of the Unit is less than the Net Heat
Rate Target.



          8.3.2 Early Substantial Completion Bonus Amount and Related Limits. If the
Substantial Completion Date for a Unit occurs before the **** for that Unit, then Contractor will earn a bonus equal to (a) the amount set forth therefor in
Appendix L **** for each **** by which the **** of **** is earlier than the **** of ****, and (b)
the amount set forth therefor in Appendix L **** for each **** by which the **** of **** is earlier
than the **** of **** (in each case, the “****”).




          8.3.3 Earned Bonus Amounts. All Bonus Amounts will be calculated on a Unit basis and
will be **** the **** on the date which




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such Bonus Amount is earned. Bonus
Amounts for Performance Targets will only be **** the **** upon in respect
of Sections 8.3.1(i), (ii) and (iii), the occurrence of the Substantial Completion Date and
demonstration in most recently completed Completed Performance Test that performance better than
the Performance Targets therein tested has been achieved.




     8.3.4 Maximum Amounts. Notwithstanding anything to the contrary in this Agreement,
subject to Section 5.1.4 of this Agreement, the Earned Fee Component will not be **** by ****
than **** dollars ($****).



ARTICLE 9

THE WARRANTY PERIODS




     9.1 General Warranty of Work, Materials and Equipment. Contractor hereby warrants to PSGC
that:



                    (a) the Work will be designed, furnished and performed (i) in accordance with Professional
Standards, and (ii) in compliance with the provisions of this Agreement and all Applicable Legal
Requirements;



                    (b) the Work will be free from Defects in workmanship and material; and



                    (c) all Contractor Equipment and Materials provided by Contractor will be new and unused at
the time of their delivery to the Facility Site, except as provided in Section 6.2.1(e).



     9.2 Owner Supplier Work. During the applicable Warranty Period, at PSGC’s written request,
Contractor shall:



                    (a) assist PSGC in enforcing PSGC’s warranty rights under Owner Contracts and managing the
warranty response by Owner Suppliers; and



                    (b) perform such construction, disassembly and testing and related services as are necessary
to complete warranty repairs or corrections of defects manifest in Owner Suppliers’ Scope under the
Owner Contracts.


The services to be provided by Contractor under this Section 9.2 are Reimbursable Costs.
Notwithstanding anything to the contrary in this Agreement, Contractor has no warranty obligation
under this Agreement in respect of any defect in Owner Equipment and Materials or in work performed
pursuant to Owner Contracts.




     9.3 Nonconforming Work. During the applicable Warranty Period, PSGC, PSGC’s Authorized
Representative, and/or other Persons that PSGC has given Contractor Notice that such Persons are
authorized by PSGC to act on its



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behalf (“PSGC Authorized Parties”), to the extent of their
authority, shall have the authority to require Contractor to reperform, repair or replace any Work
(including Contractor Equipment and Materials) that does not conform to the requirements of Section
9.1 (“Warranty Defect”), including the obligation to perform any Work or activity necessary to
access the Work to be reperformed, repaired or replaced and any Work
or activity necessary to recover, finish or otherwise cover and return to full operating
status the Work to be reperformed, repaired or replaced; provided, however, neither
the identification of a Warranty Defect nor any decision made by PSGC in good faith either to
exercise or not to exercise their rights under this Article 9, will give rise to any duty or
responsibility of PSGC. Defects that are known to the PSGC Project Manager or the PSGC Engineer
prior to Substantial Completion are not Warranty Defects.



     9.4 Contractor’s Warranty Work. If PSGC gives Contractor Notice of a Warranty Defect during
the applicable Warranty Period, Contractor shall, at its sole expense, promptly (consistent with
the access provided by PSGC) correct such Warranty Defect by repair or replacement at Contractor’s
sole option, which repair or replacement will include all access and restoration Work associated
therewith. To the extent that correction of the Warranty Defect involves the reperformance,
repair, resupply or replacement of any item supplied or performed pursuant to an Owner Contract,
Contractor shall assist PSGC in procuring such reperformance, repair, resupply or replacement by
the Owner Supplier and the **** by PSGC on account thereof to **** such Warranty
Defect will be **** the ****. The plan for the repair or replacement of a
Warranty Defect shall be made in consultation with PSGC and Contractor shall schedule any Work in
respect of the Warranty Defect during off-peak hours consistent with (a) PSGC’s operating
requirements so as to minimize, to the maximum possible extent, loss of production or use of any
portion of the Facility, and (b) Midwest Independent System Operator, Inc.’s dispatch requirements.
Contractor shall use reasonable commercial efforts to conduct its Work associated with a Warranty
Defect on a timely basis (with overtime if appropriate) if PSGC reasonably determines that an
expedited schedule is necessary to avoid or minimize the effects of an outage or load reduction.
Except as provided above and subject to Section 9.13, Contractor shall bear all costs and expenses
associated with correction of any Warranty Defect notified to Contractor during the applicable
Warranty Period, which amounts do not constitute Reimbursable Costs. Such costs shall include the
costs of necessary disassembly, transportation, reassembly, retesting, reworking, repair, or
replacement of such Warranty Defect, engineering, and the costs of testing reasonably required to
verify that the repaired or replaced Work conforms to the applicable Warranties and the
requirements of this Agreement. Contractor shall collect and assemble all warranty documents and
deliver them to PSGC prior to the expiration of the applicable Warranty Period or termination of
this Agreement, whichever is earlier. Any repair and replacement performed by Contractor pursuant
to this Article 9 shall constitute Work and the provisions of this Article 9 apply to such Work.



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     9.5 Warranty Periods.



          9.5.1 Duration. The “Warranty Period” for each Unit commences on the Substantial
Completion Date and expires on the first anniversary thereof. If any Work is required to be
repaired, replaced, or otherwise corrected pursuant to this Article 9, the Warranty Period for such
repaired, replaced or corrected Work will be one year from the date that such repair, replacement,
or correction is completed; provided, however, in no case will the Warranty Period for such
repaired, replaced or corrected Work extend beyond the second (2nd) anniversary of the
Substantial Completion Date of the applicable Unit.




          9.5.2 Transfer. Upon the earlier of (a) the termination of this Agreement, or (b) the
end of the Warranty Period, Contractor shall, promptly and without any other obligation on the part
of PSGC, transfer to PSGC all Subcontractor warranties that extend beyond the applicable Warranty
Period under this Article 9. Prior to transferring the extended warranties to PSGC, Contractor
shall maintain and enforce such warranties and shall not materially modify or amend such warranties
without the prior written consent of PSGC, which may be withheld for any reason.




     9.6 Subcontractor Warranties. Contractor shall use its commercially reasonable efforts to
obtain other warranties, including additional and extended warranties, for the benefit of
Contractor, PSGC and Owners from Subcontractors in relation to their respective portions of the
Work. Copies of all such warranties obtained by Contractor shall be provided to PSGC promptly upon
execution of the applicable Contractor Subcontract by Contractor. Such warranties will be written
to survive Contractor’s tests, inspections and approvals and will be assignable, as provided in the
next sentence, to PSGC and/or Owners without Subcontractor’s consent. On the earlier of (a)
expiration of the Warranty Period or (b) the termination of this Agreement, Contractor shall assign
to PSGC and/or Owners any Subcontractor warranty for Work or Equipment provided by Contractor
hereunder.



     9.7 Root Cause Repairs. If there are two (2) or more failures of any component (whether or
not the failure occurs in components of the same Unit or different Units) during the Warranty
Period (either original or as may be extended as a result of failures during the original Warranty
Period), then, at the request of PSGC, Contractor shall perform a root cause analysis investigation
of such failures and, if such investigation (a) reveals a Warranty Defect, make such repairs,
replacements or adjustments necessary to correct the Warranty Defect; or (b) reveals a defect in
Owner Suppliers’ Scope (“Owner Supplier Defect”), provide the assistance described in Section 9.2
in respect thereof if requested by PSGC. As requested by PSGC,
Contractor shall submit, as part of its root cause analysis investigation and report, all
design and performance calculations related to such component failure. The cost of the root cause
analysis investigation performed by Contractor pursuant to this Section 9.7 shall be treated as a
Reimbursable Cost,



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irrespective as to whether or not the investigation reveals the existence of a
Warranty Defect.



     9.8 Cure Rights of PSGC for Breach of Warranty. Within ten (10) Days of receipt by Contractor
of Notice from PSGC identifying a Warranty Defect (which period will be as short as possible, but
in no event longer than two (2) Business Days if a Unit is forced out of service or is operating on
a restricted basis), Contractor shall give notice to PSGC of its approach for when and how such
Warranty Defect will be remedied; provided, however, such approach shall provide
for Contractor to conduct its cure activities in a commercially reasonable and prompt manner;
provided, further, in cases of imminent danger to life or property or forced outage
of a Unit, Contractor shall remedy such Warranty Defect as soon as possible, taking into
consideration mobilization to the Facility Site and availability of Contractor Personnel. If
Contractor does not begin and diligently proceed to complete said remedy within the time period
specified in the corrective approach, PSGC after Notice to Contractor, shall have the right to
perform or to have performed by third parties the necessary remedy, and the costs thereof
(including a warranty thereon) shall be borne by Contractor; provided, that any such
warranty Work performed by a third party shall no longer be subject to the provisions of Section
9.1.



     9.9 Title to Warranty Work. Title to all Contractor Equipment and Materials provided in
performing warranty Work, including all repairs, replacements and corrections, will pass to PSGC
immediately upon the inclusion thereof into the Facility and otherwise will be subject to the
provisions of Section 2.5.1.



     9.10 Exclusions. The warranty set forth in Section 9.1 will not apply to Defects in, damage
to or breakdown of the Facility after care, custody and control has been turned over to PSGC in
accordance with this Agreement to the extent such Defect, damage or breakdown is caused by:



                    (a) PSGC’s failure to operate or maintain the Facility in accordance with the Facility Manual
or, in the absence thereof, with Prudent Industry Practices;



                    (b) PSGC’s failure to give Contractor Notice of a Warranty Defect actually known to PSGC
promptly after its discovery by PSGC;



                    (c) continued operation of the Facility following identification of the Defect, to the extent
such continued operation exacerbates the Defect or creates additional Defects that require warranty
Work;



                    (d) normal wear and tear; or




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               (e) PSGC’s denial of Contractor’s reasonable request for access to the Defect for the
performance of Contractor’s warranty obligations, such access to be consistent with Facility
operations and Prudent Industry Practices.



     9.11 Primary Liability. Contractor has primary liability with respect to the warranties set
forth in Sections 9.1 and 9.4 of this Agreement, whether or not any Defect or other matter is also
covered by a warranty of a Subcontractor, and PSGC needs only look to Contractor for corrective
action. The refusal of a Subcontractor or other third party to correct defective Work will not
excuse Contractor from its liability as to the warranties provided herein.



     9.12 General Limitations on Warranties and Remedies. THE REMEDIES PROVIDED IN THIS ARTICLE 9
ARE THE EXCLUSIVE REMEDIES OF PSGC AND OWNERS AND THE SOLE OBLIGATION AND LIABILITY OF CONTRACTOR
ARISING OUT OF CLAIMS FOR WARRANTY DEFECTS OR DEFECTS IN THE WORK IDENTIFIED AFTER THE SUBSTANTIAL
COMPLETION DATE FOR THE APPLICABLE UNIT. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS
ARTICLE 9, CONTRACTOR DOES NOT MAKE ANY OTHER EXPRESS WARRANTIES, OR ANY IMPLIED WARRANTIES, OF ANY
KIND WHATEVER RELATING TO THE WORK TO BE SUPPLIED BY CONTRACTOR UNDER THIS AGREEMENT OR TO THE
FACILITY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE,
CUSTOM OR USAGE OR OTHERWISE.



     9.13 Warranty Cap. Notwithstanding anything to the contrary in this Agreement, Contractor’s
liability pursuant to this Article 9, **** (a) the costs of **** of ****, and (b) costs which are
****, will be limited in the ****to **** dollars ($****), which amount shall not be **** amounts
**** by **** from **** with respect to the **** of **** (the “Warranty Cap”). Except as provided
in clauses (a) and (b) above, the performance of Contractor’s Work in connection with Warranty
Defects pursuant to Section 9.3 or 9.4 shall be borne by Contractor up to the Warranty Cap, which
amounts will not be **** the ****. Any costs incurred in connection with such
Work in excess of the **** will constitute ****.



ARTICLE 10

CHANGES




     10.1 Changes. Without invalidating this Agreement, by issuance of a written order, in the
form set forth in Appendix R-5, (each such order, a “Change Order”) (a) changes to the Work or the
Facility may be made, including any addition to, deletion from, suspension of or other modification
to the quality, function or intent of the Work or the Facility, and (b) to the extent specifically



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provided for in this Article 10, adjustments may be made to the Project Schedule (including the
Target Contract Dates), Performance Targets, the Target Price, the Milestone Values, the Cash Flow
Cap Curve, the Fee (as provided in Section 5.1.4) or the other obligations or liabilities of the
Parties under this Agreement (all of the foregoing, “Changes”). Changes may only be authorized by
Change Orders issued in accordance with this Article 10; provided, however,
Contractor shall not be required to make any Change that (i) requires it to perform Work that is
not rationally or functionally related to the Work described in this Agreement on the Effective
Date, or (ii) requires Contractor to transport and dispose of PSGC Hazardous Substances for which
PSGC is responsible under this Agreement. Except for an emergency in which imminent harm to
Persons or damage to property can only be avoided by proceeding with a Change without approval by
PSGC, in no event shall Contractor unilaterally undertake a Change until (x) a Change Order has
been approved by PSGC, or (y) if a disagreement exists as described in Section 10.2.2, Contractor
has received Notice from PSGC to proceed under protest.



     10.2 Procedure for Changes.



          10.2.1 Changes Initiated by Contractor. Within five (5) Business Days after Contractor becomes aware of any circumstances,
including Change Events, which Contractor has reason to believe may necessitate a Change, but in no
event later than forty-five (45) Days following the act, occurrence or condition giving rise to a
Change, Contractor shall issue to PSGC a “Change Order Request.” All Change Order Requests will
include, to the extent then reasonably available (and thereafter promptly updated as information
becomes available) to provide, documentation sufficient to enable PSGC to determine: (a) the
factors necessitating the possibility of a Change, (b) the impact the Change is likely to have on
the Target Price, (c) the impact the Change is likely to have on the timely achievement of the
Project Schedule (including the Target Contract Dates, as applicable), (d) the impact the Change is
likely to have on any of the other obligations or liabilities of the Parties under this Agreement,
and (e) such other information which PSGC may reasonably request in connection with such Change;
provided, that the information required by clause (a) is the only essential element to be provided
within the initial five-day period. PSGC may, but except as provided in Section 10.3 below will
not be obligated to, issue a Change Order pursuant to a Change Order Request. PSGC must provide
its response to Contractor’s Change Order Request within ten (10) Business Days after receipt
thereof. Unless otherwise stated by PSGC in writing or in the case of an emergency in which
imminent harm to Persons or damage to property can only be avoided by proceeding with work outside
the Work, any work outside the Work described in this Agreement performed by Contractor prior to
its having received an executed Change Order from PSGC will be considered unauthorized work and
will be at Contractor’s sole risk and expense. In no event will a Recovery Plan or other document
or Submittal constitute a Change Order

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under this Agreement, unless such document is clearly titled
a "Change Order” and otherwise satisfies all of the requirements of a Change Order under this
Article 10.




     10.2.2 Changes Initiated by PSGC. If PSGC desires to make a Change constituting a
modification to the quality, schedule, execution, function, intent or scope of the Work (including
aspects of the Work relating to the operation or care, custody and control of the Facility), it
shall submit a “Change Order Notice” to Contractor. Contractor shall promptly review the Change
Order Notice and provide Notice to PSGC of the estimated cost to develop the Change Order, which
Notice will be accompanied with reasonable supporting documentation. Within ten (10) Business Days
(or if ten (10) Business Days is not reasonably adequate, then as promptly thereafter as
practicable) after PSGC and Contractor agree to the cost of developing the Change Order estimate,
Contractor shall provide PSGC with Notice of the options for implementing the proposed Change
(including, if possible, any option that does not involve an extension of time or additional cost)
and the estimated effect(s), if any, that each such option would have on the Performance Targets,
Target Price, the Milestone Values, the Cash Flow
Cap Curve, the Fee (as provided in Section 5.1.4), the Project Schedule (including the Target
Contract Dates), and any of the other obligations or liabilities of the Parties under this
Agreement. The timing of Work to be performed pursuant to a Change directed by PSGC must be
consistent with resources available to Contractor. Based upon such information, PSGC may, but will
not be obligated to, issue a Change Order making a Change based upon such Change Order Notice. If
PSGC and Contractor cannot promptly reach agreement on the matters listed in the Change Order
Notice, or cannot agree that the matters under discussion constitute a Change, PSGC may, at its
sole discretion, order Contractor by Notice to promptly proceed to complete the Change in
accordance with PSGC’s interpretation of the matter under Dispute. Contractor may refuse to
implement a Change ordered pursuant to this Section 10.2, only if such Change (a) would constitute
a violation of Applicable Legal Requirements, (b) requires Contractor to perform Work that is not
rationally or functionally related to the Work, or (c) requires Contractor to transport and dispose
of Hazardous Substances for which PSGC is responsible under this Agreement.



     10.3 Specified Change Events. Except as otherwise provided herein, if and to the extent that:



               (a) a Force Majeure event or Change of Law (other than any Excluded Change of Law);



               (b) a suspension of the Work in accordance with Section 13.5, 4.4, or 4.6 (for an improperly
issued stop work order);



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               (c) adverse impact on the Work pursuant to Section 2.2.13.3 or Section 3.9, other than for a
Hazardous Substance for which Contractor is responsible;



               (d) a delay or other adverse impact arising from a discovery pursuant to Section 2.5.5 or a
deviation relating to subsurface conditions as provided in Section 2.6;



               (e) a delay or failure of PSGC to perform its obligations in accordance with this Agreement
(except to the extent such delay or failure is attributable to Contractor or Subcontractors);



               (f) a change in PSGC’s policies and procedures after Substantial Completion that adversely
affect the performance of the Work;



               (g) any Separate Contractor of PSGC, any of the Engineers, or any other designee or invitee of
PSGC performing work on the Facility Site fails to comply with the reasonable coordination
requirements Contractor is entitled to impose under this Agreement, causing a material
interference with the performance of the Work, except to the extent such interference results
from the fault of Contractor or its Subcontractors;



               (h) PSGC’s direction to Contractor to make an award to a local supplier pursuant to Section
2.8.7 which award causes (i) a delay or (ii) a cost differential when compared to the cost that
would have been incurred had the award been made to the supplier recommended by Contractor;



               (i) delay in issuance of the Full Notice to Proceed after ****;



               (j) a delay or other net impact on Contractor resulting from a change order executed or option
exercised under an Owner Contract, except to the extent arising from failure of Contractor (or its
Subcontractors) to perform obligations in accordance with this Agreement;



               (k) a delay or other adverse impact on Contractor resulting from PSGC’s exercise of its right
to (i) require Contractor to withdraw or retract Contractor’s exercise of authority under Appendix
W, or (ii) supersede Contractor’s exercise of authority under Appendix W, except to the extent
attributable to the fault of Contractor or its Subcontractors;



               (l) an **** occurs;



               (m) labor disturbances delay or adversely impact the Work as set forth in the last sentence of
Section 2.17;



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               (n) the impact of the Tax Increase Prevention and Reconciliation Act of 2005 (Public Law No.
109-222);



               (o) costs are incurred as provided in Section 1.2.1.8 of Appendix I (subject to the proviso
set forth in such Section 1.2.1.8);



               (p) the cost differential resulting from a disagreement between PSGC and Contractor as to the
award of an Owner Contract where the contract price offered by the Owner Supplier under such Owner
Contract selected by PSGC is greater than the contract price offered by the bidder recommended by
Contractor, assuming similar scope;



               (q) the failure of the **** to achieve any of the **** for **** and **** as set forth in the
**** for the ****, except to the extent that such failure is attributable to the **** of **** or
its ****;



               (r) a Target Assumption proves inaccurate, except to the extent caused by the failure of
Contractor or its Subcontractors to perform the Work in accordance with this Agreement; and



               (s) a PSGC Test Interruption occurs.



     (each, a “Change Event”), causes Contractor to suffer a delay in the critical path of the
Work, increases Contractor’s costs in performing the Work or otherwise increases the costs of the
Facility, impacts the ability of the Facility to achieve the Performance Targets, or adversely
impacts Contractor’s ability to perform any of its other material obligations under this Agreement,
then PSGC shall, by Change Order, equitably adjust the Target Contract Dates in accordance with
Section 10.4, equitably increase the Target Price in accordance with Section 10.5, equitably adjust
the Milestone Values, equitably adjust the Cash Flow Cap Curve, equitably increase the Fee (to the
extent permitted by Section 5.1.4), and/or equitably adjust the Performance Targets or other
obligations of Contractor so adversely impacted.



     10.4 Changes Involving Schedule Extensions. To the extent that Contractor demonstrates that a
Change (or the Change Event necessitating a Change) as described in Section 10.2.2 or Section 10.3
will delay the achievement of the Target Completion Dates, then PSGC shall cause a Change Order
directing such Change (or resulting from such Change Event) to equitably extend the Target Contract
Dates to account for the delay in the critical path of the Work. The Parties agree that the
measure of leeway in starting or completing an activity without affecting the duration of time
between Contractor’s Base Target Substantial Completion Date for each Unit and the Contractual
Target Substantial Completion Date for each such Unit belongs to Contractor when determining
whether there has been an impact to the critical path for which Contractor may be entitled to
schedule relief under this Agreement.



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     10.5 Changes to the Target Price. In the event a Change Order or Change Event under Article
10 increases or decreases the cost of the Work or the cost of the Facility, subject to Contractor’s
reasonable efforts to mitigate the impact of such event, an equitable adjustment shall be made to
the Target Price.



     10.6 Continued Performance Pending Resolution of Disputes. Notwithstanding and pending
resolution of any Dispute with respect to a Change, Contractor shall proceed on a Reimbursable Cost
basis in accordance with Appendix I, upon Notice from PSGC, with the performance of any Change
Order issued by PSGC. If PSGC and Contractor cannot reach agreement on the schedule adjustment or
estimated cost of the Change within
a reasonable period (not to exceed fifteen (15) Days after Contractor is ordered to proceed
under protest) either Party may submit the matter for dispute resolution pursuant to Article 17.



     10.7 Options for Implementing Changes. Whenever there are different possible Changes that can
be made in response to a Change Event and those Changes have different effects on the Project
Schedule (including the Target Contract Dates), Target Price, Performance Targets or other
obligations or liabilities of the Parties under this Agreement, then PSGC may in its sole
discretion (but consistent with the objective of achieving the lowest Total Installed Cost) select
from among such Changes, with the concomitant adjustments to the Project Schedule (including the
Target Contract Dates), Target Price, and Performance Targets and other obligations or liabilities
of the Parties under this Agreement in accordance with this Article 10.



     10.8 Remedy. Except as otherwise provided in this Agreement, Contractor shall not be entitled
to adjustment of the Targets under this Agreement for changes of any kind (whether arising because
of hindrance or delay or any other cause whatsoever), whether such hindrances or delays be
reasonable or unreasonable, foreseeable or unforeseeable, contemplated or not contemplated, or
avoidable or unavoidable. Contractor shall be entitled to extensions in the Project Schedule only
as specifically provided in this Article 10.



     10.9 Documentation. All claims by Contractor for adjustments to the Target Price, the Fee,
Performance Targets, Project Schedule (including the Target Contract Dates) and/or other
obligations or liabilities of the Parties under this Agreement as a result of any Change shall be
supported by verifiable detailed documentation provided to PSGC.



     10.10 Insurance. If, by July 1, 2007, PSGC believes that it will not be able to obtain
insurance which satisfies its obligations under Appendix Q, PSGC shall give notice to Contractor to
that effect, with relevant details, and the Parties shall, in good faith, discuss and seek to reach
agreement upon the equitable adjustment to which Contractor shall be entitled under this Article 10
on account of such failure by PSGC to satisfy its obligations under Appendix Q. Such equitable
adjustment



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may include agreement by PSGC to pay Contractor for the cost of Contractor purchasing
additional primary and excess liability insurance, with corresponding adjustment to the Target
Price.



ARTICLE 11

FORCE MAJEURE




     11.1 Force Majeure Event. As used in this Agreement, an event of “Force Majeure” will mean
any event that: (a) prevents or hinders the affected Party (the “Affected Party”) from performing
its obligations under this Agreement or complying with any conditions required of it under this
Agreement, resulting in an actual delay in the performance of the Work, increases the cost of
performing the Work, or otherwise materially and adversely affects the Affected Party’s performance
hereunder, (b) is beyond the reasonable control of and not the result of the fault or negligence of
the Affected Party (including such Affected Party’s Personnel), and (c) could not have been
prevented by the exercise of reasonable diligence by the Affected Party or its Personnel or
Subcontractors.



     For purposes of clause (b) above, the following events will, by way of example, be considered
to be beyond the reasonable control of an Affected Party: acts of God, war, civil insurrection,
epidemic, earthquake, tornado, quarantine, hurricane and other natural disasters, terrorism and
sabotage (in each case, domestic and foreign) and the threat and results thereof, public disorder,
lightning and other abnormal or severe climatic conditions, national or regional strikes or labor
stoppages, and imminent threat of any of the foregoing that could reasonably affect the safety or
security of individuals on, or damage to, the Facility Site.



     In no instance will the following be considered events beyond Contractor’s reasonable control
or constitute a Force Majeure event: (i) strikes or labor disturbances involving the Personnel of
Contractor or any of its Subcontractors at the Facility Site (unless such strike or labor
disturbance is national or regional in nature or as otherwise provided in Section 2.17 due to
actions of PSGC or entities acting on its behalf), (ii) weather other than as described in the
second paragraph of this Section 11.1, (iii) any delay or failure of Contractor to obtain Equipment
or Materials for the Facility because of the delay or failure of any Subcontractor or Owner
Supplier to perform any obligation to Contractor, unless such delay or failure is caused by an
independent event of Force Majeure, (iv) the failure of or delay in delivery in the issuance of
Contractor’s Permits, unless such delay or failure is caused by an independent event of Force
Majeure, (v) Equipment and Materials failure, unless such failure is caused by an independent event
of Force Majeure, (vi) domestic and/or foreign transportation delays, unless such delays are caused
by an independent event of Force Majeure, or (vii) Excluded Changes in Law.



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     11.2 Burden of Proof . The burden of proof as to whether a Force Majeure event has occurred and the associated
relief will be upon the Party claiming relief from such event.



          11.2.1 Excused Performance. The Affected Party will not be held in default or be
liable for delay or failure in performing its obligations hereunder because of a Force Majeure
event if, and to the extent that (a) the Affected Party has taken reasonable alternative measures
to mitigate the consequences thereof, and (b) such Force Majeure event is not the result of any
failure of the Affected Party to perform any of its obligations under this Agreement; provided,
however, the Affected Party gives Notice within five (5) Business Days after it became aware of the
occurrence of such Force Majeure event, but in no event later than forty-five (45) Days after the
occurrence of such Force Majeure event. Such Notice will, to the extent practicable, specify the
nature of the occurrence, the reasons why adjustments to this Agreement should be granted, and the
projected length of the delay occasioned by reason of such Force Majeure event. Within ten (10)
Business Days after submission of such Notice, the Affected Party shall provide a more detailed
Notice of the impact of the occurrence, its recovery plan (the “Preliminary Mitigation Plan”) and a
more detailed estimate of the effect on this Agreement. Such Notice will be updated as soon as
possible after additional information becomes available to the Affected Party, but in no event less
frequently than weekly. Strict compliance with this Section 11.2.1 is required.




          11.2.2 Scope of Excused Performance. The suspension of performance resulting from
such Force Majeure event will be of no greater scope and of no longer duration than is reasonably
required by the Force Majeure event.




          11.2.3 Prior Obligations and Liabilities. No obligations or liability under this
Agreement that arose before the occurrence of the Force Majeure event will be excused (except to
the extent adversely impacted by the Force Majeure event) as a result of the occurrence of such
Force Majeure event for any period prior to the occurrence of such Force Majeure event.




          11.2.4 Continued Performance. The Affected Party shall continue to perform its
obligations under this Agreement to the maximum extent possible. When the Affected Party is able
to resume performance of its obligations hereunder, the Affected Party shall give Notice to the
other Party to that effect and shall promptly resume such performance.




          11.2.5 No Affect on Payment Obligations. Under no circumstance will an event of
Force Majeure excuse a Party’s obligations to make payments when due under this Agreement, unless
such Force Majeure event results in a failure of the Federal Reserve wire system or other failure
of the banking system that deprives a Party access to otherwise available funds. Payment of
Contractor’s Reimbursable Costs in accordance with Article 5 shall continue during

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the period of
any Force Majeure event. Contractor shall use reasonable efforts to minimize such Reimbursable
Costs, including consultation with PSGC as to potential reassignment of Contractor’s personnel or
suspension of Subcontractors.




ARTICLE 12

INDEMNIFICATION




     12.1 Indemnity. To the fullest extent permitted by Applicable Legal Requirements, Contractor
hereby assumes liability for, and shall indemnify, defend and hold harmless PSGC and each Owner and
their respective shareholders, members, partners, Affiliates, officers, employees, representatives,
agents, the Engineers, as well as the Financing Parties and their employees, officers,
representatives and agents (collectively, the “PSGC Indemnitees”) from and against all liability,
claims, suits, actions, costs (including reasonable attorneys’ fees, charges and disbursements),
expenses, damages, losses, fines, interest, penalties, assessments, judgments, demands, causes of
action, and other litigation of any kind and character (collectively “Claims”) that may be imposed
on, incurred by or asserted against any PSGC Indemnitee arising out of performance of the Work or
otherwise arising under this Agreement and in any way relating to or arising out of:



               (a) any bodily injury (including death) to any of Contractor’s and its Affiliates’ personnel
(but excluding, for this purpose, officers, directors and employees of PSGC, Owners, the Engineers,
the Financing Parties and each of their respective Affiliates);



               (b) any bodily injury (including death) to any third party (excluding, for purposes of this
clause (b), any of Contractor’s or its Affiliates’ Personnel covered by the indemnity set forth in
clause (a) above and PSGC’s, Owners’, the Engineers’, the Financing Parties’ and each of their
respective Affiliates’ Personnel covered by the indemnity set forth in Section 12.4(a)) or any
third party tangible property damage (excluding damage to the Facility or any property of a PSGC
Indemnitee), to the extent resulting from or in connection with the **** or **** of Contractor, any Subcontractor or their respective Personnel or Affiliates;



               (c) fines, penalties, and the cost of any remedial requirements imposed on PSGC or Owners by
any Governmental Authority because of a violation by Contractor or its Personnel of any Applicable
Legal Requirements; provided, however, Contractor will not be responsible for
paying any portion of a fine that is imposed upon PSGC or the Owners as a result of a prior
violation for which Contractor or its Subcontractors were not responsible.



     12.2 Obligations with Respect to Liens. Contractor shall indemnify, save harmless and defend
the PSGC Indemnitees from and against any and all



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Contractor Liens (excepting Liens filed by Owner
Suppliers) filed in connection with the performance of the Work, except to the extent PSGC has
failed to pay the amount due to Contractor in accordance with the terms hereof for such portion of
the Work in respect of which a Lien has been filed, including all costs and expenses and attorneys’
fees, charges and disbursements incurred in discharging or defending such Contractor Liens;
provided, that Contractor shall not be obligated to so indemnify PSGC if Contractor acted
reasonably in not making payment of the amount which is the subject of the Contractor Lien.
Contractor shall cause such Contractor Lien to be canceled or discharged of record or furnish PSGC
with a Contractor Lien Security. If Contractor does not promptly satisfy such Contractor Lien or
fails to provide PSGC with a Contractor Lien Security in lieu thereof within the period specified
in Section 5.6.1(c), then PSGC may, after at least ten (10) Days prior Notice to Contractor, cure
or release such Contractor Lien by payment of money or otherwise, and if PSGC arranges a Contractor
Lien Security with respect to such Contractor Lien, Contractor shall reimburse PSGC for the
reasonable cost of arranging such Contractor Lien Security, within thirty (30) Days after request
therefor by PSGC, if, based on the circumstances at the time, Contractor acted unreasonably in not
making payment of the amount which is the subject of the Contractor Lien. Solely for the purposes
of this Section 12.2, a title insurer providing title insurance to PSGC, an Owner, or Financing
Parties of an Owner with respect to the Facility shall be deemed a PSGC Indemnitee.



     12.3 Obligations with Respect to Intellectual Property. Contractor shall fully indemnify,
save harmless and defend the PSGC Indemnitees from and against any and all Claims for the
infringement (actual or alleged) or misappropriation of any Intellectual Property, proprietary or
confidentiality rights with respect to materials and information designed, specified or used by any
of Contractor or Contractor’s Personnel in performing the Work or in any way incorporated in or
related to the Work, unless the infringing item was specified by PSGC or arises from the
infringement or misappropriation of any Intellectual Property by an Owner Supplier. If, in any
such Claim, a temporary restraining order or preliminary injunction is granted, then Contractor
shall make every reasonable effort, by giving a satisfactory bond or otherwise, to secure the suspension of the injunction or restraining order as soon as
possible. If, in any such Claim, the Facility, or any part, combination or process thereof, is
held to constitute an infringement and its use is enjoined, then Contractor, at Contractor’s sole
option, cost and expense, shall either promptly (a) secure for PSGC and Owners an irrevocable,
royalty free, perpetual, non-exclusive license, at no cost to PSGC or Owners, authorizing continued
use of the infringing process, item or other Work without impairing the performance or operating
cost of the Facility, or (b) either replace the affected Work or portion, combination or process
thereof with non-infringing, without impairing the performance or operating cost of the Facility,
components or parts or modify the same so that they become non-infringing; provided,
however, in connection with any such replacement or modification, Contractor shall be
responsible for any Work necessary to access the item to be



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replaced or modified, and any Work
necessary to recover, finish or otherwise cover and return to full operating status the item to be
replaced or modified and removing the item to be replaced or modified, or reinstalling the item so
replaced or modified, in each case as and to the extent necessary, to fully complete the
replacement or modification of such item into the Facility. Furthermore, if such Claim for
infringement or misappropriation threatens to affect the operation of the Facility or any portion
thereof in the reasonable judgment of PSGC, Contractor shall promptly undertake the obligations set
forth in the previous sentence.



     12.4 PSGC Indemnity. To the fullest extent permitted by Applicable Legal Requirements, PSGC
hereby assumes liability for, and shall indemnify, defend and hold harmless Contractor and its
shareholders, officers, Affiliates, employees, representatives, Subcontractors, and agents
(collectively, the “Contractor Indemnitees”) from and against all Claims that may be imposed on,
incurred by or asserted against any Contractor Indemnitee and in any way relating to or arising out
of:



               (a) any bodily injury (including death) to any of PSGC’s, Owners’, the Engineers’, the
Financing Parties’ and each of the respective Affiliates’ Personnel (but excluding, for this
purpose, any of Contractor’s Personnel;



               (b) any bodily injury (including death) to any third party (excluding, for purposes of this
clause (b), any of PSGC’s, Owners’, the Engineers’, the Financing Parties’ and each of their
respective Affiliates’ Personnel covered by the indemnity set forth in clause (a) above and
Contractor’s and its Affiliates’ Personnel covered by the indemnity set forth in Section 12.1(a))
or any third-party tangible property damage (excluding damage to the Facility or any property of a
Contractor Indemnitee), to the extent resulting from or in connection with the negligence or
intentional misconduct of PSGC or any PSGC Personnel, except to the extent that such Personnel are under
the supervision and technical direction of Contractor and have properly followed Contractor’s
express directions;



               (c) fines or penalties and the cost of any remedial requirements imposed on Contractor or its
Subcontractors by any Governmental Authority because of a violation by PSGC or any PSGC Personnel
of any Applicable Legal Requirements, provided, however, PSGC will not be
responsible for paying any portion of a fine that is imposed upon Contractor or its Subcontractors
as a result of a prior violation for which PSGC was not responsible; or



               (d) the use of Contractor’s Intellectual Property, any Submittals and any Record Documents in
violation of the requirements of Section 2.5.3.5.



     12.5 Notice and Legal Defense. Promptly after receipt by a PSGC Indemnitee or a Contractor
Indemnitee (an “Indemnitee”) of any Claim or notice of



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the commencement of any action, administrative or legal proceeding, or investigation in connection with an actual or potential
Claim as to which any indemnity provided for in this Article 12, Section 2.2.13.2(d) or Section 3.9
may apply, the Indemnitee shall give Contractor or PSGC, as the case may be, Notice of such fact;
provided, however, the failure to give such Notice will not relieve the
indemnifying Party of its obligations to indemnify the Indemnitee, except to the extent that the
indemnifying Party is materially and adversely affected thereby. The indemnifying Party shall
assume on behalf of the Indemnitee, and conduct with due diligence and in good faith, the defense
thereof with counsel reasonably satisfactory to the Indemnitee; provided, further,
the Indemnitee shall have the right to be represented therein by counsel of its own selection and
at its own expense (such expense not to be subject to indemnification hereunder); provided,
further, if the defendants in any such action include both the indemnifying Party and the
Indemnitee, and if the Indemnitee has reasonably concluded that there may be legal defenses
available to it that are different from, additional to or inconsistent with those available to the
indemnifying Party, then the Indemnitee will have the right to select separate counsel to
participate in the defense of such action on its own behalf. The indemnifying Party shall consult
with each Indemnitee throughout the pendency of the Claim regarding the investigation, defense,
settlement, compromise, trial, appeal or other resolution thereof, and without the prior consent of
each Indemnitee, the indemnifying Party shall not enter into any settlement of any Claim that would
lead to liability, constitute an admission of liability, dismiss a Claim without prejudice, or
create any financial or other obligation on the part of any such Indemnitee for which such
Indemnitee is not entitled to indemnification hereunder.



     12.6 Failure to Defend Action. If any Claim arises as to which any indemnity provided for in
this Article 12, Section 2.2.13.2(d) or Section 3.9 may apply, and the indemnifying Party fails to
assume the defense of such Claim promptly after the receipt by the indemnifying Party of
notification thereof, then the Indemnitee against which the Claim is made, instituted or commenced
may, at the indemnifying Party’s expense, contest, or settle, such Claim, providing the
indemnifying party with reasonable advance notice of any settlement decision. All costs and
expenses incurred by the Indemnitee in connection with any such contest, settlement or payment may
be deducted from any amounts due to the indemnifying Party under this Agreement, with all such
costs in excess of the amount deducted to be reimbursed by the indemnifying Party to the Indemnitee
promptly following, but not later than fifteen (15) Days following, the demand therefor.



     12.7 No Limitation to Workers’ Benefits. In any and all Claims against any Indemnitee by any
employee of a Party or its Personnel, the indemnification obligations under Article 12 (except
Sections 12.1(a) and 12.4(a)) shall not be limited in any way by any limitation on the amount or
type of damages, compensation or benefits payable by or for the Party under workers’ or workmen’s
compensation acts, disability benefit acts or other employee benefit acts.



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     12.8 Limitation on Indemnification. In no event shall the indemnification provisions of this
Article 12, Section 2.2.13.2(d) or Section 3.9 require an indemnifying Party to provide
indemnification under this Agreement for any Claim, loss, liability or other damage incurred by an
Indemnitee to the extent caused by the **** or **** of such Indemnitee or to the extent
such indemnification is prohibited under Applicable Legal Requirements.



ARTICLE 13

REMEDIES AND TERMINATION




     13.1 Termination for Convenience. PSGC shall have the right, in its sole discretion, to
terminate this Agreement, including portions of the Work to be performed by Contractor hereunder,
in each case for its sole convenience (without necessity of giving a reason to Contractor), at any
time upon two (2) Business Days’ prior written Notice thereof to Contractor. In the event of any
termination for convenience by PSGC pursuant to this Section 13.1 and compliance by Contractor of
its obligations under Sections 13.1.2, 13.4.1 (as applicable) and 13.4.3 in connection with such
termination, Contractor shall be relieved of its obligations
and liability under this Agreement with respect to the portion of this Agreement or Work so
terminated from and after the date of such termination.



     13.1.1 Termination Payment. If this Agreement is terminated under Section 13.1,
then, subject to Sections 13.1.1, 13.1.2, 13.4.1 (as applicable) and 13.4.3, as Contractor’s sole
and exclusive remedy hereunder, (a) Contractor will be entitled to payment of (i) the Reimbursable
Costs incurred through the effective date of termination, (ii) Fee amounts and Bonus Amounts as
determined in accordance with Section 5.0 of Appendix T-3, (iii) all cancellation charges
necessarily incurred by Contractor in relation to its Subcontractors, (iv) an amount equal to other
reasonable termination-related actual costs necessarily incurred by Contractor, including its
obligations under this Article 13, (v) reasonably incurred actual costs of demobilization, and (vi)
Sales Taxes properly paid by Contractor for which it has not been reimbursed (the “Termination
Payment”). The Acceptable Letter of Credit provided to PSGC pursuant to Section 5.2.7 shall be
released by PSGC on or before the fifth (5th) Day following the effective date of the
termination (to include a termination under Section 13.5). Contractor shall calculate amounts due
pursuant to clause (iii) of this Section 13.1.1, which amounts will be subject to audit by PSGC.
Notwithstanding a termination hereunder, the Parties shall remain liable to each other for
liabilities that have accrued under other provisions of this Agreement prior to such termination,
and provided, further, the Parties shall remain obligated and liable for obligations under this
Agreement that by their express terms survive termination. The Parties recognize, agree and
acknowledge that PSGC’s termination right hereunder is a permitted action under this Agreement and
not a breach hereof or a default hereunder. Payment of the Termination Payment (or any portion
thereof) will be made by PSGC within



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thirty (30) Days following an invoice therefor accompanied by
reasonable documentation in support thereof.



          13.1.2 Termination Obligations. The following shall be obligations of Contractor in
connection with any full or partial termination of this Agreement: (a) Contractor’s execution and
delivery of all documents and taking reasonable steps, including the assignment of Contractor’s
contractual rights, as PSGC may require, for the purpose of fully vesting in PSGC (or Owners, as
directed by PSGC) all right, title and interest of Contractor in and to all Subcontracts which PSGC
elects to assume, warranties, guarantees, Work and other agreements pertaining to the Work that
PSGC elects to assume; provided, however, such Work, upon transfer, will not be subject to Article
9, (b) Contractor’s execution and delivery (and using reasonable commercial efforts to cause
Subcontractors and Owner Suppliers to execute and deliver) to PSGC of all waivers and releases, in
form and substance reasonably acceptable to PSGC, required to establish that the
Facility and the Facility Site, and any and all interests, estates or improvements related
thereto, are free from any and all Liens arising out of or in connection with performance by
Contractor, any Subcontractor or any Owner Supplier so terminated, but only to the extent that (i)
Contractor (or, in the case of any Owner Contract, an Owner Supplier) has been paid for such work
in accordance with the terms of this Agreement or with respect to Owner Suppliers, funds to enable
Contractor to make payments to such Owner Suppliers have been deposited into the Owner Supplier
Payment Account as required hereunder, and (ii) only with respect to the portion of the work so
terminated, (c) Contractor’s prompt delivery to PSGC of any other information reasonably requested
by PSGC, and (d) Contractor’s removal from the Facility Site of all of Contractor’s waste, debris,
Personnel and property of Contractor (except as provided in Section 13.4.1).




          13.1.3 Termination Due to Force Majeure. Either Party shall have the right to
terminate this Agreement at any time by giving Notice thereof to the other Party if the Work is
suspended for more than three hundred sixty (360) Days due to Force Majeure, with such termination
being handled under this Section 13.1.




     13.2 Termination Upon Contractor Event of Default. If a Contractor Event of Default occurs,
then PSGC may, without prejudice to any other right or remedy PSGC may have under this Agreement,
at any time terminate this Agreement, such termination becoming effective as provided in Section
13.4.3. For purposes hereof, a “Contractor Event of Default” shall occur if:



               (a) Contractor abandons or suspends progress of the Work for more than ten (10) Days for any
reason other than Force Majeure or as otherwise permitted by this Agreement;



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               (b) Contractor assigns or attempts to assign its rights or obligations under this Agreement or
any part thereof to any Person without the prior written consent of PSGC;



               (c) a Contractor Act of Bankruptcy occurs;



               (d) Contractor does not perform any of its material obligations under this Agreement;



               (e) Contractor fails or refuses to comply with any Applicable Legal Requirements applicable to
Contractor under this Agreement, which failure or refusal could result in a material adverse effect
on Owners, PSGC, the Work or the Facility;



               (f) any representation or warranty made by Contractor herein or in any Application for Payment
or Reconciled Application for Payment or other document submitted to PSGC under this Agreement is
false in any material respect when made;



               (g) Contractor fails or refuses to pay any amount that is due to PSGC under this Agreement
within thirty (30) Days after receipt by Contractor of Notice from PSGC stating that unless the
delinquent amount is paid within thirty (30) Days after this demand the failure will constitute a
Contractor Event of Default;



               (h) Contractor does not obtain and maintain the insurance required of it pursuant to Section
2.9; provided, however, if Contractor’s failure to maintain such insurance is
caused by the bankruptcy of a carrier providing its insurance, without limiting PSGC’s rights to
procure insurance pursuant to Section 2.9, a Contractor Event of Default pursuant to this clause
will not occur if Contractor’s failure is rectified within seven (7) Business Days of such failure;
or



               (i) Contractor fails or refuses or is unable at any time during the course of the Work, except
in the event of Force Majeure event or during a suspension of the Work for reasons that give
Contractor the right under this Agreement to so suspend the Work, to provide or implement a
Recovery Plan required hereunder to the reasonable satisfaction of PSGC;



     Notwithstanding anything in this Agreement to the contrary, the events described in this
Section 13.2 will not constitute a Contractor Event of Default unless and until: (i) PSGC has given
Notice to Contractor specifying with particularity the existence of such default which, unless
cured (if a cure period applies), constitutes a Contractor Event of Default that gives PSGC a right
to terminate its obligations to Contractor for cause under this Section 13.2, and (ii) in the case
of Sections 13.2(a), 13.2(d), 13.2(e), 13.2(f), or 13.2(i) only, Contractor



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has failed to cure such default within thirty (30) Days after receipt of such Notice, or in the case such default cannot be
cured within thirty (30) Days, has failed within thirty (30) Days to initiate and thereafter
diligently and continuously pursue actions reasonably likely to cure such default within an
additional ninety (90) Days.



     13.3 Termination for Agreed Circumstances. PSGC has the right, in its sole discretion, to
terminate this Agreement or any portion hereof at any time by giving Notice thereof to Contractor
upon the occurrence of any of the following events:



               (a) **** does not occur within **** (****) Days following the ****; provided,
however, that such **** (****) Day period will be
reduced on a **** basis (but no lower than ****) for the number of **** that **** of ****
occurred after the **** for ****; or



               (b) **** of either Unit does not occur within **** (****) months following the **** for such
****.



     13.4 Consequences of Termination; Actions upon Termination.



          13.4.1 Assumption and Succession. Upon any termination pursuant to this Article 13,
in addition to any other rights or remedies that PSGC may have under this Agreement, PSGC may at
its option elect to: (a) assume responsibility for and take title to and possession of the Facility
and any or all work, Materials or Equipment remaining at the Facility Site that are part of the
Work, Construction Aids (other than construction equipment), and Incidental Equipment, and any and
all other Materials or Equipment located outside the Facility Site that are part of the Work, with
suitable compensation therefor; provided, however, such Work, upon transfer, will not be subject to
Article 9, and (b) succeed to the interests of Contractor in any or all Subcontracts (including
leases). Upon termination of this Agreement by PSGC in accordance with Article 13, if requested by
PSGC, Contractor shall (a) withdraw from the Facility Site, and (b) as requested by PSGC in
writing, assign one or more of its Subcontracts to PSGC or any designee of PSGC; provided, however,
such assignee assumes the obligations of Contractor thereunder and Contractor is relieved of
liability thereunder for work performed, services rendered and obligations incurred after the date
of assumption of such subcontract by PSGC, and (c) turn over to PSGC any Submittals prepared prior
to such termination and any Materials, Equipment, Construction Aids (other than construction
equipment), and Incidental Equipment and any other designs, purchase orders prepared or ordered
prior to such termination, and any tools, schedules, computer files and drawings (in native or
original format) that are part of the Work, with suitable compensation therefor (to the extent not
previously paid but subject to Section 13.4.2). PSGC may employ any other Person (hereinafter, a
"Replacement Contractor”) to finish the Work in accordance with the terms of this Agreement by
whatever method that PSGC may deem expedient. In addition,

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Contractor shall not remove any
Equipment, Materials or tools that (a) have been fabricated especially for or are unique to the
Facility, (b) are incorporated in or are attached to, or are intended to be incorporated in or
attached to, the Facility, (c) constitute temporary or permanent scaffolding or supporting elements
for the construction of the Facility, or (d) the removal of which could damage the Facility or any
portion thereof then constructed, or otherwise materially adversely affect or delay the
construction, use or maintenance of the Facility, with suitable compensation therefor (to the
extent not previously paid but subject to Section 13.4.2). Contractor shall not have any further
responsibility therefor upon such termination.




          13.4.2 Completion of the Work. In the event of any termination for a Contractor
Event of Default, PSGC may, at its option and at its expense, finish the Work by whatever method
PSGC reasonably deems expedient, provided that, as Contractor’s sole liability on account of such
termination, Contractor shall be liable to PSGC for the reasonable costs of cover and transitioning
the Work to the Replacement Contractor up to an amount equal to the Earned Fee Component previously
paid to Contractor. PSGC shall be entitled to withhold payments which Contractor determines are
due to it prior to the date of termination, along with other amounts for which Contractor is
entitled to compensation under Section 13.4.1, until completion of the Work and determination by
PSGC that Contractor is entitled to such payments. Any amounts not paid hereunder if ultimately
due shall bear interest at the Late Payment Rate. PSGC may in its discretion employ the
Replacement Contractor to finish the Work by whatever method or means PSGC in its discretion may
deem expeditious; provided, however, the balance of Work will be completed utilizing reasonable
methods of construction management and construction consistent, to the maximum feasible extent,
with the Project Schedule and as otherwise provided herein. In the event that any termination of
this Agreement by PSGC because of a Contractor Event of Default pursuant to Section 13.2 is later
adjudicated to have been improper, then Contractor shall be entitled to recover such amounts as
Contractor is entitled to under Section 13.1.




          13.4.3 Actions Upon Termination. Upon receipt of Notice from PSGC of termination of
this Agreement pursuant to either Section 13.1, Section 13.2 or Section 13.3, Contractor shall: (a)
cease performance of the Work to the extent directed by PSGC in the Notice and complete necessary
demobilization in connection with such termination, (b) take all actions that PSGC may direct, for
the protection and preservation of the Work and the Facility (in whatever stage of completion), (c)
transition the administration of the Owner Contracts to PSGC, (d) enter into no further
Subcontracts related to the Facility or the Work, and (e) at PSGC’s instruction, assign its rights
under any or all Subcontracts to PSGC or PSGC’s designee. In addition, upon any such termination
of this Agreement, Contractor shall be relieved of its obligation for performance under any
Subcontracts assigned to PSGC or its designee for work performed, services

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rendered or materials or
equipment supplied after the effective date of such assumption. The effective date of any
termination of this Agreement pursuant to this Article 13 shall be the date established in the
Notice of such termination delivered by the Party exercising its termination right hereunder.




     13.5 PSGC Monetary and Non Monetary Defaults.



          13.5.1 Non-Payment. If Contractor has not received any undisputed payment due it
hereunder within ten (10) Days after Contractor has provided Notice to PSGC of its failure to make
the specified payment when due and owing or if a PSGC Act of Bankruptcy occurs, then Contractor may
stop Work until such PSGC default is cured, at which time Contractor shall re-commence performance
of the Work in a timely fashion. If Contractor has not received any undisputed payment within
thirty (30) Days after the date such payment is due or if a PSGC Act of Bankruptcy continues for
more than thirty (30) Days, then Contractor may terminate this Agreement upon providing Notice of
termination to PSGC. In the event of such termination, Contractor shall receive compensation in
accordance with Section 13.1.1 (together with any payment that has accrued but has not been paid to
it under this Agreement as of the date of such termination) as its sole remedy and the exclusive
damages resulting from such termination. In the event that the cumulative total of invoiced
amounts of Reimbursable Costs which have been disputed or otherwise withheld by PSGC exceeds ****
dollars ($****), such amounts shall either be paid into an escrow account in accordance with
Appendix M or a letter of credit (in a form and from a bank reasonably acceptable to Contractor)
for such amounts shall be delivered to an escrow agent jointly selected by the Parties and held as
security for the payment of such amounts upon final resolution of the dispute. The Parties will
resolve such dispute or disputes by agreement or through the adjudication process described in
Appendix M. Upon a resolution of any such dispute, either the monies in the escrow account shall be
released as appropriate, along with any interest earned thereon, or a draw (to include interest at
the Late Payment Rate in respect of the amount due) may be made on, a reduction of the stated
amount of, or a surrender of such letter of credit, as appropriate, shall be effected in accordance
with the terms of such resolution.




          13.5.2 Non-Monetary Default. If any PSGC Event of Default (other than a payment
default as described in Section 13.5.1 above) occurs, then (a) to the extent such PSGC Event of
Default materially and adversely affects Contractor’s ability to achieve any of the Target Contract
Dates, increases Contractor’s cost to perform the Work or otherwise adversely affects the
provisions of this Agreement, Contractor, if it so requests, shall be entitled, and PSGC shall
execute, a Change Order as provided in Section 10.3, (b) Contractor shall be entitled to any other
right or remedy permitted under this Agreement (other than termination if such PSGC Event of
Default can be fully cured by a Change
Order issued in accordance with Article 10 and in compliance with Applicable Legal
Requirements) as a result of such PSGC Event of Default, and (c) Contractor shall

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be entitled to
suspend its performance of the Work, such suspension to become effective upon PSGC’s receipt of
Notice thereof from Contractor. “PSGC Events of Default” shall occur if:




               (a) PSGC or Owners fail or refuse to comply with any Applicable Legal Requirements under this
Contract, which failure or refusal results in a material adverse effect on Contractor;



               (b) any representation or warranty made by PSGC or any Owner herein or in any other document
submitted to Contractor under this Agreement is false in any material respect when made;



               (c) PSGC or any Owner fails to perform any of its material obligations under this Agreement;



               (d) the occurrence of (i) a PSGC Act of Bankruptcy, (ii) one or more Owner Acts of Bankruptcy
or (iii) one or more similar acts of bankruptcy of Persons providing Qualified Backup Guaranties,
where, in the case of clause (ii) and (iii), one or more Owners having Proportionate Shares equal
to or exceeding twenty-five percent (25%) of all Proportionate Shares is involved, occurs;



               (e) PSGC fails to maintain insurance required hereunder;



               (f) PSGC or any Owner makes an assignment in violation of the provisions hereof;



               (g) any Owner Guaranty fails to be in full force and effect or any Peabody Guaranty or
Qualified Backup Guaranty fails to be in full force and effect for the period required under this
Agreement; or



               (h) any one or more of the Owners having aggregate Proportionate Shares equal to or exceeding
twenty-five percent (25%) is in default under its or their respective Financing and PSGC has not
provided reasonable evidence to Contractor of PSGC’s ability to pay the balance of the Compensation
payable to Contractor for performance of the Work.



     Notwithstanding anything in this Agreement to the contrary, the events described in the
definition of an PSGC Event of Default will not constitute a PSGC Event of Default, unless and
until: (i) Contractor has given Notice to PSGC specifying with particularity the existence of such
default that, unless corrected (if a cure period applies), constitutes an PSGC Event of Default,
and (ii) in the case of Section 13.5.2(g), such default has not been cured within thirty (30) Days
after receipt of such Notice, and (iii) in the case of
Sections 13.5.2(a), (b), (c), or (h), such default has not been cured within thirty (30) Days
after receipt of such Notice, or in the case that such default cannot be cured within thirty (30)
Days, PSGC has



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not within thirty (30) Days initiated or caused to be initiated and thereafter
diligently pursued actions reasonably likely to cure such default within an additional ninety (90)
Days; provided, however, if the event described in Section 13.5.2(h) occurs and
PSGC has not provided the reasonable evidence therein required within ten (10) Days of Notice by
Contractor, Contractor may suspend performance of the Work until such evidence is provided or it
has the right to terminate upon PSGC’s failure to cure as hereinbefore provided.



     13.6 Duty to Mitigate Damages. Each Party shall have the duty to mitigate damages to it
arising from any default hereunder by the other Party.



ARTICLE 14

SECURITY




     14.1 Owner Guaranties. PSGC shall furnish to Contractor the Initial Guaranty on the Effective
Date. Each Owner identified as an “Owner” in accordance with the Notice given to Contractor
pursuant to Section 2.0 of Appendix X (as such list of Owners may be amended pursuant to Section
20.1) shall furnish to Contractor, at such time as it becomes an Owner, a guaranty for its
Proportionate Share as shown in Appendix X (as such Proportionate Share may be amended pursuant to
Section 20.1) (each an “Owner Guaranty”) substantially in the form set forth in Appendix R-9.



ARTICLE 15

REPRESENTATIONS AND WARRANTIES




     15.1 Representations and Warranties of Contractor. Contractor hereby represents and warrants
to PSGC as follows:



               (a) Due Organization of Contractor. Contractor is duly organized, validly existing
and in good standing under the laws of the State of its incorporation or organization, as
applicable, and has all requisite corporate power and authority to own and operate its business and
properties and to carry on its business as such business is now being conducted and is duly
qualified to do business in the State of Illinois and in any other jurisdiction in which the
transaction of its business makes such qualification necessary;



               (b) Due Authorization of Contractor; Binding Obligation. Contractor has full power
and authority to execute and deliver this Agreement and to perform its obligations hereunder, and
the execution, delivery and performance of this Agreement by Contractor have been duly authorized
by all necessary action on the part of Contractor. This Agreement has been duly and validly
executed and delivered by Contractor and, assuming due execution and delivery by PSGC, constitutes
the legal, valid and binding obligation of Contractor enforceable against Contractor in accordance
with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization,



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moratorium or other similar laws relating to or affecting the enforcement of
creditors’ rights in an action (whether considered in an action at law or in equity) generally, or
(ii) general equitable principles (whether considered in any action at law or in equity);




               (c) Non-Contravention. The execution, delivery and performance of this Agreement by
Contractor and the consummation of the transactions contemplated hereby do not and shall not
contravene the governing documents of Contractor and do not and shall not conflict with or result
in a breach of or default under any indenture, mortgage, lease, agreement, instrument, judgment,
decree, order or ruling to which Contractor is a party or by which it or any of its properties is
bound or affected;




               (d) Regulatory Approvals. All governmental or other authorizations, approvals, orders
or consents required in connection with the execution, delivery and performance of this Agreement
by Contractor have been obtained or shall be obtained in due course; and




               (e) Intellectual Property. Contractor has the right to grant all of the Intellectual
Property rights it has purported to grant under this Agreement.




     15.2 Representation and Warranties of PSGC. PSGC hereby represents and warrants to Contractor
as follows:



               (a) Due Organization of PSGC. PSGC is a limited liability company duly organized and
validly existing and in good standing under the laws of the State of Delaware and has all requisite
power and authority to own and operate its business and properties and to carry on its business as
such business is now being conducted and is duly qualified to do business in the State of Illinois;



               (b) Due Authorization of PSGC; Binding Obligation. PSGC has full power and authority
to execute and deliver this Agreement and to perform its obligations hereunder and the execution,
delivery and performance of this Agreement by PSGC have been duly authorized by all necessary
limited liability company action on the part of PSGC. This
Agreement has been duly and validly executed and delivered by PSGC and, assuming due execution
and delivery by Contractor, constitutes the legal, valid and binding obligation of PSGC enforceable
against PSGC in accordance with its terms, except as such enforcement may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
the enforcement of creditors’ rights in an action (whether considered in an action at law or in
equity) generally, or (ii) general equitable principles (whether considered in any action at law or
in equity);



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               (c) Regulatory Approvals. All governmental or other authorizations, approvals, orders
or consents required in connection with the execution or delivery of this Agreement by PSGC have
been obtained; and



               (d) Non-Contravention. The execution, delivery and performance of this Agreement by
PSGC and the consummation of the transactions contemplated hereby do not and shall not contravene
the certificate of formation or limited liability company agreement of PSGC and do not and shall
not conflict with or result in a breach of or default under any indenture, mortgage, lease,
agreement, instrument, judgment, decree, order or ruling to which PSGC is a party or by which it or
any of its properties is bound or affected.



ARTICLE 16

LIMITATIONS OF LIABILITY




     16.1 Aggregate Limitation of Contractor’s Liability. To the fullest extent permitted by
Applicable Legal Requirements, Contractor’s and its Affiliates’ overall cumulative monetary
liability to PSGC and Owners arising under or in relation to this Agreement will in no event exceed
(a) an amount equal to the **** to **** but in no event more than **** dollars ($****), as such
amount may be increased in accordance with Section ****and ****, and (b) with respect to
Contractor’s obligations under Article 9, the amount of the Warranty Cap, and PSGC releases
Contractor and its Affiliates from, and waives all right of recovery against Contractor and its
Affiliates for, any recovery of amounts beyond such limit of liability; provided, that (i)
the foregoing limitation shall not limit Contractor’s obligations under Sections 12.1 through 12.3
and Section 2.2.13.2(d), and (ii) the aggregate amount of Contractor’s liability under this
Agreement shall not be reduced by (1) any proceeds of the ****
described in **** that are
received by **** or paid to **** or any **** or (2) the **** of **** of Contractor’s engineering
Work in connection with the correction of a Warranty Defect pursuant to Article 9. The Parties
agree that Contractor’s obligation to refund all or a portion of the Earned Fee Component
previously paid to Contractor shall be treated as a liability of Contractor for the purpose of the
first sentence of this Section 16.1. The foregoing limitation of liability shall be without
prejudice to Contractor’s obligation to be responsible for Non-Reimbursable Costs, without
entitlement to reimbursement for such Non-Reimbursable Costs from PSGC.



     16.2 Consequential Damages. In no event will either Party (or its Affiliates, or any Owner)
be liable to any other Party, Affiliate, or to any Owner or to Contractor’s Subcontractors for any
special, incidental, indirect, exemplary, punitive, or consequential costs or damages of any nature
(including damages from the use of or loss of any facility, equipment or property; loss of
anticipated profits or revenues; loss of opportunity; loss of productivity; loss of shop space;
claims of customers; costs of obtaining or maintaining loans; or loss of goodwill). The foregoing
limitation is not intended to limit a Party’s liability to any Person



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indemnified under this
Agreement. The Parties agree that any Late Completion Damages, Buydown Amounts and Bonus Amounts
as provided under this Agreement or the direct damages of PSGC or any Owner payable by Contractor
in connection with termination of this Agreement because of a Contractor Event of Default will not
be considered "special, incidental, indirect or consequential” costs or damages under this Section
16.2.



     16.3 Application. Limitations and waivers of liability, releases from liability and exclusive
remedies provided for herein will be applicable, valid and enforceable irrespective of whether any
claim or liability is based on breach of contract, breach of warranty, indemnity, tort (including
negligence) or any other legal theory, and benefits thereof will extend to each Party and its
members, officers, directors, Affiliates and Personnel.



     16.4 Sole Remedies. PSGC’s sole remedy and Contractor’s sole liability for overruns of the
Target Price, for delays and for deficiencies in plant performance (whether pertaining to the
Facility, the Equipment or otherwise) arising out of the performance or non-performance of the Work
shall be limited to the loss of all or a portion of the Earned Fee Component in accordance with
Appendix T-3, including the liability to refund all or a portion of the Earned Fee Component to the
extent previously paid to Contractor. The foregoing shall not limit or otherwise prejudice
Contractor’s obligations pursuant to Articles 9 and 12.



     16.5 Time Limit .1



ARTICLE 17

DISPUTE RESOLUTION




     17.1 Dispute Resolution Between the Parties.



          17.1.1 Cooperation. PSGC and Contractor desire that this Agreement operate between
them fairly and reasonably. If any disputes or differences (collectively, “Disputes”) arise
between the Parties in respect of this Agreement or the subject matter hereof, representatives of
the Parties shall cooperate, in good faith, to attempt to amicably resolve the Dispute. If any
Party believes that such representatives will not be able to resolve the Dispute, such Party may
invoke the further dispute resolution procedures of this Section 17.1 and of Section 17.2.




          17.1.2 Management Discussions. If representatives of the Parties cannot resolve a
Dispute within fifteen (15) Days, each Party shall prepare a written statement of its position and
deliver it to the other Party within ten (10)






 




			
	1	 	Time limit on indemnities to be resolved in
conjunction with resolution of insurance issues.





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Days after the expiry of the initial fifteen (15) Day
period, and one or more senior officers from each Party shall meet in person within fifteen (15)
Days in an effort to resolve the Dispute. If the senior officers of either Party determine at any
time that the Dispute cannot be resolved without referral of the Dispute to an independent third
party, such Party shall notify the other Party that it wants to submit the Dispute to mediation or
arbitration in accordance with Sections 17.1.3 or 17.2, respectively; provided, however, no Party
shall seek arbitration of any Dispute until a period of at least twenty (20) Days has elapsed since
the Dispute was referred to such senior officers, without a resolution having been reached. The
pendency of a Dispute shall not delay progress of the Work or relieve either Party from its duty to
perform its obligations under this Agreement.




          17.1.3 Voluntary Mediation. If a Dispute cannot be resolved by the Parties pursuant
to Sections 17.1.1 or 17.1.2, the Parties shall endeavor to resolve such Dispute by mediation
which, unless a Party objects to mediation by giving Notice to the other Party prior to
commencement of the mediation, shall be a condition precedent to arbitration. Unless the Parties
mutually agree otherwise, mediation shall be in accordance with the then-current Construction Industry Mediation Rules
of the American Arbitration Association. Requests for mediation shall be filed in writing with the
other Party and with the American Arbitration Association.




     17.2 Arbitration.



          17.2.1 Rules and Arbitrators. All Disputes that cannot be resolved by the Parties
pursuant to Section 17.1 shall be exclusively and finally settled by self-administered arbitration
with three (3) arbitrators conducted in accordance with the then-current Construction Industry
Arbitration Rules of the American Arbitration Association or any successor thereto (the “Rules”),
except as modified herein. Each Party to the arbitration shall select one arbitrator and the two
(2) arbitrators selected by the Parties shall select a third arbitrator within fifteen (15) Days.
If the two (2) arbitrators fail to reach agreement on the third arbitrator within such time limit,
either Party may initiate the selection of the third arbitrator by resort to the Appointing
Authority. In any proceeding conducted by the Appointing Authority, (a) no discovery shall be
allowed with respect to appointment of an arbitrator and limited discovery shall be allowed with
respect to disqualification of an arbitrator, (b) the arbitration hearing may be scheduled upon not
less than ten (10) Days prior written notice to the Parties and shall not exceed three (3) Days in
length, (c) direct testimony shall be presented by the Parties solely through written submissions,
and (d) the decision of the arbitrator shall be rendered within thirty (30) Days of submission.




          17.2.2 Impartiality, Independence and Qualifications of Arbitrators. Each Person
serving as an arbitrator (including the arbitrators selected by each Party) shall be impartial and
independent third parties, shall

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perform his or her duties with diligence and in good faith, and
have practiced law as a licensed attorney for at least twenty (20) years and have substantial legal
experience in connection with the design, construction and operation of fossil fuel-fired electric
generating facilities. If a person with such expertise is not reasonably available, then an
arbitrator with at least twenty (20) years experience in the design, construction and operation of
equivalent heavy industry experience (e.g. refineries, chemical facilities, etc.) may be selected.
Upon objection of a Party, under the Rules, to the appointment or continued service of an
arbitrator, the Parties shall attempt to reach agreement upon such disqualification and, in the
absence of such agreement, shall submit the matter to the Appointing Authority for resolution. If
a Party-appointed arbitrator is disqualified, his or her replacement shall be selected by the Party appointing
the original arbitrator. If the third arbitrator is disqualified, his or her replacement shall be
selected in accordance with the procedure outlined in Section 17.2.1.




          17.2.3 Costs and Discovery. Subject to the remaining terms of this Agreement, each
Party shall bear the cost of the arbitrator which it selects and the Parties shall equally bear all
other costs of arbitration, including the cost of the third arbitrator. If the arbitrators find
that a frivolous claim has been pursued by a Party or a Party engages in egregious conduct, the
arbitrators may award all (or any portion) of any expenses of arbitration incurred in connection
with the Dispute (including attorney fees, charges, disbursements, expenses of expert witnesses and
fees of the arbitrators) to the Parties in such proportion as may be determined by the arbitrators.
The arbitrators may permit and/or limit the scope of discovery as may be reasonable under the
circumstances. Time is of the essence in any Dispute, and the arbitrators shall be permitted to
issue monetary sanctions against any Party if, upon a showing of good cause, such Party is
unreasonably delaying the proceedings. Except as may be determined by the arbitrators pursuant to
the second sentence of this Article 17.2.3, costs incurred by Contractor in prosecuting a dispute
under this Article 17 do not constitute Reimbursable Costs.




          17.2.4 Limitations. No Party shall submit a Dispute to arbitration when institution
of legal or equitable proceedings based on such Dispute would be barred by the applicable statute
of limitations. The arbitrators may not amend or modify this Agreement, enter an award for damages
that are prohibited hereunder or limit any of the remedies set forth in this Agreement.




          17.2.5 Additional Relief. Nothing in this Article 17 will preclude any Party from
taking (or requesting any judicial or other authority to order) any measure in aid of arbitration
prior to the commencement of or during the arbitration proceedings for the preservation of its
rights and interests.




          17.2.6 Venue and Timing. The arbitration shall take place in Chicago, Illinois, and
shall be conducted in English. The arbitrators shall render their award (the “Award”) within one
hundred eighty (180) Days from submission

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of the Dispute to arbitration. The Award shall be final
and binding on the Parties hereto and non-appealable and may be confirmed and enforced in any court
of competent jurisdiction, unless the Award is procured by corruption or fraud. Except as
provided in this Section 17.2, each Party hereby excludes and waives irrevocably any rights or
application or appeal to the courts of any jurisdiction to the fullest extent permitted by
Applicable Legal Requirements. The court may correct the Award before confirmation, if (a) there
was manifest error in any mathematical calculation or manifest error in the description of any
Person, thing or property referred to in the Award, (b) the arbitrators exceeded their powers by
including in the decision or award a matter not submitted to them and the decision or award may be
corrected without affecting the merits of the decision upon the matter submitted, and (c) the Award
is imperfect in a matter of form, which can be corrected without affecting the substance of the
Award. If an Award is vacated, the matter will be resubmitted for resolution according to the
terms of this Agreement.




          17.2.7 Continued Performance. Unless otherwise agreed in writing, Contractor shall
continue to perform the Work and PSGC shall continue to make payments, both in accordance with this
Agreement, pending the resolution of any Dispute hereunder.




          17.2.8 Consolidation. The Parties agree that if a third party (including an Owner
Supplier or a Subcontractor) is substantially involved in a common question of fact or law or whose
presence is necessary if complete relief is to be afforded and/or inconsistent decisions are to be
avoided, then, the Parties will use their respective reasonable efforts to consolidate such third
party into the dispute resolution process herein contained, making such accommodating adjustments
as are fair and appropriate to accommodate additional parties; provided, however, such third party
has consented to such inclusion and agrees to be bound by the Award of the arbitrators.




          17.2.9 When Inapplicable. The provisions relating to mandatory arbitration will not
be applicable to a claim asserted in an action in court by a person who is under no obligation to
arbitrate such claim with either of the Parties to this Agreement insofar as the Parties to this
Agreement may desire to assert any rights of indemnity or contribution with respect to the subject
matter of such action.




          17.2.10 Cross Examination. Testimony may be admitted by sworn affidavit, provided,
however, the opposing Party must be given the right to cross-examine any witness whose testimony is
so admitted.




          17.2.11 Survival. The provisions of this Article 17 will survive the expiration or earlier termination of
this Agreement.





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ARTICLE 18

CONFIDENTIALITY




     18.1 Confidential Information. The Parties and Owners have a proprietary interest in
information that will be furnished pursuant to this Agreement. The Parties and Owners shall keep
in confidence and will not disclose any such information which in good faith is proprietary and
which is specifically designated in writing as being proprietary (“Confidential Information”)
without the prior written permission of the disclosing Person (the “Disclosing Party”) or use any
such information for other than the purpose for which it is supplied, except as provided herein.
Information relating to commercial terms of this Agreement shall also be treated as Confidential
Information; provided, however, such restriction is intended only to prevent
disclosure of the Compensation terms, the Target Price, specific performance (including emissions)
targets, Unit Equivalent Availability Target provisions, Functional Test provisions, limits of
liability, liquidated damage categories and amounts, warranty provisions, and Intellectual Property
provisions, and is not intended to restrict PSGC or Owners from use of the form of agreement. Each
Party and Owner agrees that the other Party and Owners may disclose any Confidential Information to
its or their consultants, representatives and to such other Persons, including the Financing
Parties and potential Owners or Affiliates, as may be necessary to perform its or their obligations
under this Agreement or any document related to the Facility or the Financing thereof to which it
is a Party or, in the case of Owners, to develop, finance or sell an interest in the Facility or
any entity owning an equity interest directly or indirectly in the Facility, provided that
any disclosure of Confidential Information to the PSGC Engineer shall be limited to the information
contemplated in the separate confidentiality agreement signed between Contractor and the PSGC
Engineer dated October 16, 2006, as amended, provided, further, that any disclosure
of Confidential Information to the Financing Engineer shall be limited to the information
contemplated in the separate confidentiality agreement signed between Contractor and the Financing
Engineer dated April 11, 2007. Each Party shall be responsible for requiring any third party
(excluding such Party’s (or its Affiliates) officers, directors, employees and counsel who, in each
case, will be informed of the requirement to comply with the terms of this Section 18.1) to which
it wishes to disclose Confidential Information to enter into a confidentiality agreement on
substantially the terms of this Article 18 or, in the case of Financing Parties, if a Party or
Owner is unable to get any Financing Party to agree to such terms after expending a reasonable
effort to do so, on reasonable terms and conditions that are customary for confidentiality
agreements for similarly situated parties receiving proprietary information comparable to the
Confidential Information; provided, however, if a third party (a party other
than PSGC, Owners or their Affiliates, officers, directors, employees and counsel) has agreed in a
writing provided to Contractor prior to the Effective Date to maintain the confidentiality of
Confidential Information in connection with the Facility, such third party shall not be required to
enter into another confidentiality agreement pursuant to this



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Article 18. Each Party and Owner
agrees with respect to Confidential Information, to hold the same confidential for the shorter of a
period of five (5) years from receipt or for a period of three (3) years from the earlier to occur
of termination or Final Completion. The provisions of this Article 18 shall not apply



               (a) to information which the receiving Person (the “Receiving Party”) can substantiate:




	 	(i)	 	was in the possession of the Receiving Party at the time it was initially
furnished, without a breach of this provision;
	 
	 	(ii)	 	is or becomes part of the public domain without a breach of this provision;
	 
	 	(iii)	 	is received from a third party who is, as far as reasonably can be determined,
under no limitation or restriction regarding disclosure; or
	 
	 	(iv)	 	information the Disclosing Party authorizes the Receiving Party to describe.




Such information shall not be deemed to be within one of the foregoing exceptions if it is merely
embraced by more general information available on a non-confidential basis to the Receiving Party;




               (b) to the extent that a Receiving Party is required to disclose Confidential Information
pursuant to Applicable Legal Requirements (including in connection with a Financing), or uses
information in connection with any legal proceeding or Dispute under Article 17 hereof;
provided, however, promptly upon a Receiving Party or any Owner, as applicable,
becoming aware that Confidential Information may be required to be disclosed pursuant to Applicable
Legal Requirements, the Receiving Party or Owner gives notice to the other Party and, in
consultation with the Disclosing Party, takes reasonable steps to make the Disclosing Party’s
Confidential Information subject to reasonably available procedures for maintaining its
confidentiality; or



               (c) to any Record Documents or other Submittals related to the Facility to the extent
disclosure thereof is reasonably necessary in connection with the design, engineering,
construction, operation, maintenance, improvement, modification, expansion or other activity
related to the Facility; provided, however, PSGC shall require the recipient of
Confidential Information contained therein to maintain the confidentiality of such Confidential
Information on terms substantially similar to the terms of this Article 18 and to limit use of such
Confidential Information to the Facility.



     18.2 Publicity. Contractor agrees that all public relation matters arising out of or in
connection with the Work will be the sole responsibility of PSGC.



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Therefore, Contractor shall
obtain PSGC’s prior written approval of the text of any announcement, publication, technical
report, article, photograph or any other media release, or general public communication concerning
the Work that specifically mentions PSGC or any of its Affiliates or the Facility or the Facility
Site or any of the Financing Parties which Contractor or its Subcontractors or vendors or any of
their respective Affiliates wish to release for publication. Contractor shall include in each
Contractor Subcontract a provision requiring each Subcontractor to adhere to the requirements of
this Section 18.2. PSGC shall obtain Contractor’s prior written approval of the text of any
announcement, publication, technical report, article, photograph or any other media release or
general public communication concerning the Work that specifically mentions Contractor or any of
its Affiliates which PSGC wishes to release for publication.



     18.3 Prior Confidentiality Agreements. The provisions of this Article 18 supersede all prior
agreements (including confidentiality obligations under the Letter of Intent) between Contractor
and PSGC and/or Owners regarding the confidentiality of any information or documents regarding the
Facility or the matters described in this Agreement; provided, however, with
respect to Permitted Owners identified in Appendix X, PSGC may provide Confidential Information to
Permitted Owners and the confidentiality provisions of the Letter of Intent (as if it remained in
effect) will continue to apply to such Confidential Information to and until any such Permitted
Owner becomes an Owner. Any such prior agreements between either of the Parties or any Owner or
their respective predecessors or Affiliates shall have no force or affect on or after the Effective
Date; provided, however, the provisions of this Article 18 shall also apply to all
information shared under the prior confidentiality agreements and/or the Letter of Intent.



     18.4 Injunctive Relief. The Parties agree that both injunctive relief and monetary damages,
alone or in combination, are appropriate remedies for any breach of this Agreement by the other
Party, its partners, parents, subsidiaries or affiliates, or the employees, agents or consultants
of any of them.



ARTICLE 19

COST RECORDS




     19.1 Records. Contractor shall maintain fiscal records, books and accounts pertaining to the
Project in accordance with generally accepted accounting principles consistently applied.



     19.2 Inspection of Books, Records and Audit Rights. Contractor shall keep and maintain (a)
full, complete and detailed records, books, accounts and invoices of all of its costs and expenses
relating to any Application for Payment, Reconciled Application for Payment, Recommendation for
Funding of Owner Supplier Payment Account, Owner Supplier Reconciliation Reports, allowances
provided in Section 5.1.5 and Termination Payment, (b) Subcontracts, tax records



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and other
documents relevant to the Work, (c) books, records and invoices relating to its administration of
the Owner Contracts, and (d) the Target Price Estimate. At all times during the progress of the
Work and for a period of two (2) years after the Final Completion Date, or, if the Final Completion
Date does not occur, for two (2) years after the termination of this Agreement, Contractor shall
afford PSGC and Owners, and their respective auditors and counsel, access at reasonable times to
any of the above relative to the Reimbursable Costs, Applications for Payment, Reconciled
Applications for Payment, Statements of Owner Supplier Costs, Owner Supplier Reconciliation
Reports, and any Termination Payment or other amounts paid to Contractor on the basis of its costs
or damages (including indemnifications) in order to inspect, copy and audit the same or to verify
compliance by Contractor with all of the terms and conditions of this Agreement; provided,
however, the right to inspect, access, copy and/or audit Contractor’s books, records,
invoices, and accounts shall not extend to agreed rates, agreed lump sum amounts, agreed allowances
or to amounts expressed as a percentage of other costs.



ARTICLE 20

MISCELLANEOUS




     20.1 Change in Owners.



          20.1.1 Initial Ownership Transfers. Contractor agrees that on or after the
Effective Date, Peabody Energy Corporation (which at the Effective Date is the parent of PSGC) has
the right to take such actions as are necessary to allow the Persons set forth in Tables A and C of
Appendix X, together with other Eligible Persons, to become Owners.




          20.1.2 Subsequent Ownership Transfers. Owners have the right to change, increase
the number of, or substitute any one or more of the Persons that constitute Owners hereunder or to
change the respective Proportionate Share percentages of existing Owners, as reflected from time to
time in Table B as referenced in Appendix X (any such change an “Owner Change”); provided,
however, that any Owner Change which would increase the Proportionate Share percentage of
any existing Owner in excess of such Owner’s Maximum Permitted Proportionate Share set forth in
Appendix X or that would transfer an interest in the Facility to a new Owner must at the time of
such transfer be to an Eligible Person.




          20.1.3 Transfer Deliveries. Subject to the foregoing requirements, in the event of
any Owner Change in the identity or Proportionate Share percentages of Owners, such Owner Change
will be effective hereunder upon delivery to Contractor of (a) in connection with the addition of a
new Owner (i) an agreement of assumption by the new Owner of all of the rights and obligations
acquired by such new Owner under this Agreement, to include agreement to be bound by the releases
and limitations of liability set forth herein, (ii) a revised Table

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B as referenced in Appendix X
dated and revised to reflect the Proportionate Shares of the Owners, (iii) an Owner Guaranty
executed by such new Owner, and, (iv) where the Owner is an Eligible Person defined in clause (d)
of such term, a Qualified Backup Guaranty; and, (b) in connection with the change of the
Proportionate Share percentages held by all or a portion of Owners, (i) a certificate executed by
each Owner whose Proportionate Share is changing certifying the percentage of its Proportionate
Share, and (ii) a revised Table B as referenced in Appendix X dated and revised to reflect the
revised Proportionate Shares of the Owners. An Owner Change shall be effective and this Agreement
deemed amended as of the date specified in the documents required to be provided to Contractor
under this Section 20.1.




          20.1.4 Security Release.





          20.1.4.1 If any Owner’s Proportionate Share is reduced to zero, Contractor will,
subject to Section 20.24, return its Owner Guaranty to such Owner for cancellation within
five (5) Business Days upon its receipt of one or more Owner Guaranties in substitution
thereof.




          20.1.4.2 If at any time an Owner that has furnished a Qualified Backup Guaranty to the
Contractor (a) has closed on a Financing, the proceeds of which are sufficient (taking into
account any equity contributions required by such Financing) to pay its Proportionate Share
of the unpaid balance of the Compensation payable to Contractor
for performance of the Work; or (b) reduces its Proportionate Share to zero in
accordance with the provisions of this Section 20.1 and furnishes to Contractor the Owner
Guaranties and/or Qualified Backup Guaranties required by this Section 20.1, or (c) provides
to the Contractor a substitute Qualified Backup Guaranty, then, Contractor shall, subject to
Section 20.24, surrender the applicable guaranty to Peabody Energy Corporation or other
issuer of the Qualified Backup Guaranty for cancellation within five (5) Business Days.



     20.2 Authorized Representatives. In order to secure effective cooperation and to deal on a
prompt and orderly basis with the various scheduling and administrative issues that may arise in
connection with the rights and obligations of the Parties hereunder, each Party shall appoint its
own authorized representative (“Authorized Representative”) and notify the other Party in writing
of such representative’s name, address, facsimile and telephone number within ten (10) Days after
the execution of this Agreement. Either Party may, at any time, change the designation of its
Authorized Representative; provided, however, such Party shall promptly notify the
other Party in writing of such change. Each Party’s Authorized Representative shall be authorized
to amend this Agreement (including the execution of Change Orders) on behalf of the designating



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Party and agree upon procedures and provide such information as is necessary for coordinating the
efforts of the Parties.



     20.3 Assignment/Delegation.



          20.3.1 Assignment/Delegation by Contractor. Except as provided in Sections 20.1,
20.3.2 or 20.18, it is expressly understood and agreed that this Agreement is personal to each of
the Parties hereto, and that neither Party shall have the right, power or authority to assign or
delegate its rights or obligations under this Agreement or any portion thereof, either voluntarily
or involuntarily, or by operation of law without the written consent of the other Party, except
that a Party’s rights to payments hereunder may be assigned without the other Party’s consent and
except as provided in Section 20.18(a)(iii). Notwithstanding the above, Contractor may have
portions of the Work performed by its Affiliates or their Personnel, in which event Contractor
shall be responsible for such portions of the Work, such portions of the Work shall be deemed to
have been performed by Contractor for all purposes under this Agreement, and PSGC will look solely
to Contractor in connection with such portions of the Work.




          20.3.2 Assignment/Delegation by PSGC.





          20.3.2.1 Affiliates. PSGC reserves the right, in its sole discretion and
without the prior consent of Contractor, to assign all or any of its rights and/or to
delegate all or any of its obligations under this Agreement to one or more of its
Affiliates. PSGC shall give Contractor Notice of such assignment and/or delegation. Upon
its receipt of Notice of a delegation or assignment of PSGC’s obligations under this
Agreement, Contractor shall be deemed to have released PSGC from all of the obligations so
delegated or assigned so long as the assignee/delegate of such obligations assumes the
obligations so assigned or delegated and each Owner either reissues or affirms the continued
effectiveness of its Owner Guaranty. If PSGC or Contractor so requests, then Contractor or
PSGC (as the case may be) shall, without delay or conditions, execute a written release that
confirms PSGC’s release from such obligations or such assignee’s/ delegate’s assumption of
such obligations (as the case may be).




          20.3.2.2 Third Parties. PSGC may assign any or all of its rights and/or
delegate any or all of its obligations under this Agreement to any Person other than an
Affiliate; provided, however, PSGC will not be relieved of its obligations
hereunder so assigned or delegated, unless Contractor consents to such assignment or
delegation; provided, further, such consent will not be unreasonably
withheld, unreasonably conditioned or unreasonably delayed. If, upon its request for such
consent, Contractor has concerns that may lead to its withholding such consent, then
Contractor shall promptly identify such concerns to PSGC, meet and in good faith discuss
with



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PSGC appropriate steps that may be taken to address and resolve such concerns so as to
allow for such consent to be granted. If Contractor consents to such assignment, Contractor
shall be deemed to have released PSGC from all of the obligations so delegated or assigned
so long as the assignee/delegate of such obligations assumes the obligation so assigned or
delegated; provided, that each Owner either reissues or affirms the continued
effectiveness of its Owner Guaranty. If Contractor has consented to the delegation of
PSGC’s obligations as provided above, then, if PSGC so requests, Contractor shall execute
documentation evidencing such consent and releasing PSGC from such delegated obligations.
Contractor shall be entitled to reject any such assignment and/or delegation where such
assignment and /or delegation would be to one of Contractor’s competitors in the engineering
and construction business.



          20.3.3 Successors and Assigns. Subject to Sections 20.3.1 and 20.3.2, the provisions of this Agreement shall extend to the
benefit of and will be binding upon the successors and assigns of the Parties.




     20.4 Reviews, Inspections, Approvals by PSGC. The inspection, review, and/or comment by PSGC,
PSGC Project Manager, the PSGC Engineer, any Financing Party or the Financing Engineer of any
drawing, document, or any other Work or services performed by Contractor, any Subcontractor or
Owner Supplier will not (a) alter, amend, waive or relieve any obligation of Contractor under this
Agreement, other than the obligation to have allowed such inspection, review and/or comment, (b)
impose any liability on PSGC, PSGC Project Manager, the PSGC Engineer, any Financing Party or the
Financing Engineer under this Agreement or (c) result in any adjustment of the Target Price,
Project Schedule, Performance Targets or other obligations or liabilities of the Parties under this
Agreement. Notwithstanding the foregoing, Contractor will be entitled to rely upon any fully
executed Change Order or fully executed amendment to this Agreement.



     20.5 Governing Law; Choice of Forum. This Agreement will in all respects be governed by and
construed in accordance with the laws of the State of Illinois, without giving effect to any choice
of law rules thereof, which may direct the application of the laws of another jurisdiction. For
purposes of resolving any Dispute arising under this Agreement, and subject to Article 17, the
Parties hereby submit to the non-exclusive jurisdiction of the courts of the State of Illinois and
the federal district courts, in each case located in Springfield, Illinois.



     20.6 Surviving Obligations. The provisions of Article 20, the indemnification provisions set
forth in this Agreement, and other provisions of this Agreement that are by their nature intended
to survive termination, cancellation, completion, or expiration of this Agreement, and any
expressed limitations or releases from liability, will continue as valid and enforceable
obligations of the Parties, notwithstanding any such termination, cancellation, completion, or



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expiration. Further, termination of this Agreement will not relieve either Party of any obligation
hereunder which expressly or by implication survives termination hereof and, except as expressly
provided in Article 13 or this Article 20, will not relieve either Party of any obligations or
liabilities for loss or damage to the other Party arising out of or caused by acts or omissions of
such Party prior to the effectiveness of such termination or arising out of such termination.



     20.7 Severability. If any provision of this Agreement is held void, voidable, invalid or inoperative, no other
provision of this Agreement will be affected as a result thereof, and, accordingly, the remaining
provisions of this Agreement will remain in full force and effect as though such void, voidable,
invalid or inoperative provision had not been contained herein. To the extent that any provision
is held void, voidable, invalid or inoperative, the Parties shall negotiate an equitable adjustment
in the provisions of this Agreement with a view toward effecting the purpose of this Agreement, and
the validity and enforceability of the remaining provisions, or portions or applications thereof,
will not be affected thereby.



     20.8 Notices. All Notices permitted or required to be given under this Agreement will be in
writing and will be deemed duly given when received: (a) when sent by telefacsimile transmission;
provided, however, the sender has received electronic or voice confirmation of the
recipient’s receipt of such transmission; (b) when confirmation of receipt by the recipient is
confirmed by the delivery service, if sent by overnight (or next Business Day) or international
courier service; or (c) when received by the recipient, if delivered by personal delivery or mail.
All Notices must be in English. Notices will not be effective if given by electronic mail. All
Notices shall be delivered or sent to the Parties at their respective address(es) or number(s)
shown below or to such other address(es) or number(s) as a Party may designate by prior Notice
given in accordance with this provision to the other Party:


If to PSGC:



Prairie State Generating Company, LLC

c/o Peabody Energy Corporation

701 Market Street

St. Louis, Missouri 63101

Attention: ****

Telefacsimile Number: (314) 342-7602

Telephone Number: ****



and copies to:



[to be specified by PSGC after the Effective Date]


and,


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****

Attention: ****

Telefacsimile Number: ****

Telephone Number: ****



If to Contractor:



Bechtel Power Corporation

5275 Westview Drive

Frederick, MD 21703

Attention: ****

Telefacsimile Number: ****

Telephone Number: ****



and



Bechtel Power Corporation

5275 Westview Drive

Frederick, MD 21703

Attention: ****

Telefacsimile Number: ****

Telephone Number: ****



and copy to:



Bechtel Power Corporation

5275 Westview Drive

Frederick, MD 21703

Attention: ****

Telefacsimile Number: ****

Telephone Number: ****




     20.9 Article and Section Headings. The Article and Section headings herein have been inserted
for convenience of reference only and will not in any manner affect the construction, meaning or
effect of anything herein contained nor govern the rights and liabilities of the Parties.
References to “Articles” and “Sections” in this Agreement shall mean the Articles and Sections of
this Agreement unless otherwise expressly noted.



     20.10 Duties and Remedies. Except as provided in Article 8, Article 9, Article 16 and any
other provision of this Agreement pursuant to which an exclusive remedy is expressly provided, the
duties and obligations imposed by this Agreement and the rights and remedies available hereunder
will be in addition to



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and not in limitation of
any duties, obligations, rights and remedies otherwise imposed or available at law or in
equity to the Parties.



     20.11 No Waiver of Rights. Except as may be specifically agreed in writing, the failure of
PSGC or Contractor to insist in any one or more instances upon the strict performance of any one or
more of the provisions of this Agreement or to exercise any right herein contained or provided by
law or equity, will not be construed as, or constitute in any way, a waiver, modification or
relinquishment of the performance of such provision or right(s), or of the right to subsequently
demand such strict performance or exercise such right(s), and all such rights will continue
unchanged and remain in full force and effect. No payment to Contractor by PSGC will constitute an
acceptance of any Work furnished by Contractor or shall relieve Contractor of any of its
obligations or liabilities with respect thereto.



     20.12 Entire Agreement. This Agreement contains the entire agreement between the Parties with
respect to the subject matter hereof, and supersedes any and all prior and contemporaneous written
and oral agreements, proposals, negotiations, warranties, guarantees, understandings and
representations pertaining to the subject matter hereof, except to the extent provided in Section
18.3 with respect to the confidentiality provisions of the Letter of Intent and that certain letter
dated the date hereof from Peabody Energy Corporation to Contractor, and as acknowledged by
Contractor.



     20.13 Amendments. Except as provided in Section 10.2, no amendments or modifications of this
Agreement will be valid unless evidenced in writing and signed by both Parties.



     20.14 No Third Party Rights. Except as expressly provided herein, this Agreement and all
rights hereunder are intended for the sole benefit of the Parties and, to the extent expressly
provided, for the benefit of the Parties, Owners and the Indemnitees, and will not imply or create
any rights on the part of, or obligations to, any other Person.



     20.15 Obligations Non-recourse. Each Party acknowledges that it will not have any recourse
against any Affiliates, members, partners, joint venturers, officers, directors, employees of the
other Party, Owners, or the Engineers, except that the foregoing shall not
prejudice Contractor’s rights pursuant to any Owner Guaranty, the Initial Guaranty or any
Peabody Guaranty.



     20.16 Relationship of the Parties. Except with respect to the administration of Owner
Contracts pursuant to Appendix W as indicated in Section 2.2.20, Contractor will be an independent
contractor with respect to the Facility, each part thereof, and the Work, and neither Contractor
nor its Subcontractors nor the Personnel of either will be deemed to be agents, representatives,
employees or servants of PSGC in the performance of the Work, or



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any part thereof, or in any manner
dealt with in this Agreement. PSGC shall neither have the right to control, nor have any actual,
potential or other control over, the methods and means by which Contractor or any of its Personnel
or Subcontractors conducts their respective independent business operations. Except with respect
to the administration of Owner Contracts in accordance with Appendix W, Contractor shall not
perform any act or make any representation to any Person to the effect that Contractor, or any of
its Personnel or Subcontractors, is the agent, representative, employee or servant of PSGC.



     20.17 Counterparts. This Agreement may be executed in two or more counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.



     20.18 Cooperation with Financing Efforts. Contractor shall use reasonable efforts to
cooperate with Owners in connection with their respective efforts to obtain and maintain Financing;
provided, however, PSGC agrees to act as a single point of contact between the
Financing Parties of the respective Owners and Contractor to the maximum extent possible. Without
limiting the generality of the foregoing, Contractor:



               (a) shall execute such documents as reasonably requested in connection with obtaining and
maintaining Financing whereby Contractor (i) certifies to the Financing Parties that this Agreement
is in full force and effect and has not been modified and that there are no defaults under this
Agreement (except, in each case, as specifically stated in such certification), (ii) represents and
warrants to the Financing Parties that this Agreement is enforceable against Contractor, (iii)
consents to the collateral assignment of this Agreement to the Financing Parties as security for
the debt relating to the Financing, (iv) agrees to give the Financing Parties Notice of a PSGC
Event of Default contemporaneously with the Notices provided to PSGC and an opportunity to cure
such defaults, (v) clarifies provisions of this Agreement as reasonably requested by the Financing
Parties, and (vii) agrees to
cooperate with PSGC and Owners in the negotiation of such amendments to this Agreement as the
Financing Parties may reasonably request;



               (b) at PSGC’s reasonable request, shall attend and participate in presentations to potential
Financing Parties;



               (c) hereby authorizes PSGC and any Owner to (i) provide this Agreement to potential Financing
Parties and equity participants (subject to Article 18), and (ii) include a description of the
material provisions of this Agreement in any offering circular required for the Financing and/or,
if the Financing must be registered in accordance with Applicable Legal Requirements, that PSGC
may, after consultation with Contractor, file this Agreement as an



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exhibit to such registration
statement (which filing will include requests for confidentiality with respect to pricing and other
key commercial terms);




               (d) at PSGC’s request, shall reasonably cooperate with the Financing Engineer and any rating
agencies or other credit enhancement entities associated with a Financing;



               (e) at PSGC’s request, shall reasonably cooperate in connection with tax-exempt financing or
any financing or other arrangements effected to reduce Taxes on the Facility or the Work; and



               (f) Contractor shall provide PSGC with legal opinions of counsel to Contractor regarding the
execution, delivery and validity of this Agreement and the status of Contractor as PSGC will
reasonably request in connection with obtaining and maintaining the Financing.



     20.19 Financing Engineer. Contractor acknowledges that the Financing Engineer will be engaged
for the purpose of providing to the Financing Parties a neutral, third party overview of the Work.
The Financing Engineer will be a recognized engineering and consulting firm selected by the
Financing Parties and bound by confidentiality obligations substantially similar to those contained
in Article 18. The Financing Engineer is expected to provide the Financing Parties with
independent opinions with respect to: (a) the status of the Work, (b) the performance of the Work
and associated Equipment, (c) Contractor’s Performance Test procedures, (d) Contractor’s quality
assurance program for the Work and major components thereof, (e) the results of the Performance
Tests, and (f) Applications for Payment, Reconciled Applications for Payment, Recommendations for
Funding of Owner Supplier Costs and Change Orders submitted by Contractor. The Financing Engineer
may attend all monthly meetings. Notwithstanding anything else to the contrary contained herein,
the Financing Engineer will have no right to direct Contractor or any portion of the Work or to
make any changes to the Work.



     20.20 PSGC’s Engineer. PSGC’s Engineer shall act on PSGC’s behalf, subject to Appendix O in
relation to various Facility-related matters, including the review of contract documents, attending
design and progress meeting, carrying out inspections and the review and approval of test results
and most particularly all Performance Test results.



     20.21 Review Committee.



          20.21.1 Formation and Meetings. The Parties recognize that the most efficient and
cost effective implementation of the Work will necessitate continual monitoring of the Labor Plan
and other strategic decisions that may have a material effect on the Total Installed Cost or
Project Schedule that the Parties agree to have considered by the Review Committee. Because the
nature of labor compensation decisions is expected to require the balancing of interests and


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tradeoffs among project objectives, each Party will select two (2) representatives to comprise a
committee (the “Review Committee”) to consider adjustments to the Labor Plan and other Project
execution strategies. The initial members of this Review Committee are to be appointed within
thirty (30) Days of the Effective Date. Each Party may change its representatives on Notice to the
other Party. Each Party shall ensure that its members on the Review Committee act reasonably at
all times. The Review Committee will meet on an as-needed basis, but no less frequently than
quarterly. With respect to each issue considered by the Review Committee, Contractor and PSGC, as
appropriate, shall provide adequate materials and information sufficient to allow a reasonable
basis on which decisions can be made. The Review Committee will meet promptly and work
cooperatively to adopt recommendations that support achievement of the Targets at the lowest Total
Installed Cost, except as they otherwise unanimously agree. The Review Committee shall appoint one
of its members to provide adequate notice of meetings to the other members and to keep and
distribute accurate minutes of its meetings. The PSGC Project Manager and Contractor’s Project
Director (as shown in Appendix H) may be invited to attend meetings of the Review Committee but
will not have any voting rights.




          20.21.2 ****. At such time as Contractor believes that the **** of
**** being **** to **** with respect to a particular **** is or will, in the
foreseeable future, not be sufficient to **** Craft Labor or ****
Craft Labor, in each case in a ****, for the construction of the Facility
to support the ****, Contractor will give Notice to PSGC and
the Parties, acting
through their representatives on the Review Committee, shall take the following actions:





               (a) Contractor will provide a reasonably detailed labor analysis, supported by a reasonable
level of factual compensation information, with respect to the ****
as to which Contractor believes **** are necessary. Such analysis shall
include (i) Contractor’s recommended changes to the **** of  **** to be **** to such
Craft Labor; (ii) a direct comparison with the **** of  **** being ****
to the same **** at the Key Benchmark Projects and the Other Benchmark
Projects; (iii) a forecast as the projected impact on the **** of the Facility
that would result from Contractor’s recommended changes and (iv) an analysis of any reasonably
cost effective alternative to achieve the same goal;




               (b) no later than two (2) Business Days after receipt by the members of the Review Committee
of the labor analysis described in clause (a) above, the members shall consult with each other in
good faith and attempt to reach a unanimous decision as to the **** of **** (or
alternative)



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to be **** to Craft Labor within such  **** and as to when any changes
should be implemented;




               (c) no later than four (4) Business Days after receipt by the members of the Review Committee
of the labor analysis described in clause (a) above, if the members are not able to reach a
unanimous decision, then Contractor may implement its recommended changes, provided, that
the **** of the **** to be **** to Craft Labor within the **** in
question is **** than **** percent (****%) in excess of (i) the
**** of **** to
**** within such **** working on Key Benchmark Projects; or
(ii) the **** of **** to **** within such **** working on Other Benchmark Projects, whichever is
the greater between (i) and (ii); provided further that, notwithstanding the foregoing,
Contractor shall be permitted to **** a **** than such **** percent (****%) **** so long as the **** to be **** to Craft Labor within the ****
in question is **** percent (****%) **** of (x) the **** then being **** with
respect to the Key Benchmark Projects; or (y) the **** with respect to Other
Benchmark Projects, whichever is the **** between (x) and (y). Notwithstanding the foregoing, PSGC
will have the right to prevent the implementation of any such recommended change by exercising its
right to implement Changes in accordance with Section 10.2.2.




               (d)
If such recommended changes would cause the **** of the **** for a specific **** to be **** than **** in ****, then, either the Review Committee must unanimously agree
to make such change or either Party may refer the matter for decision by the senior officers of the
Parties. Each Party shall, through its nominated senior officer, prepare a written statement of
its position and deliver it to the other Party within ten (10) Days after referral of the matter
to the senior officers. The nominated senior officers from each Party shall meet in person within
fifteen (15) Days after the exchange of such written statements in an effort to resolve the
matter.



     20.22 Source Country.



          20.22.1 Articles and Materials. Subject to Sections 20.22.3 and 20.22.4 below,
Contractor agrees that, in the procurement of Equipment, it shall, use commercially reasonable
efforts (taking into account the Targets and the other provisions of this Agreement) to furnish
such manufactured articles, materials, and supplies as have been manufactured in the United States
or in any eligible country substantially all from articles or materials, produced or manufactured,
as the case may be, in the United States or in any eligible country; provided, that
Contractor shall not be required to expend the foregoing commercially reasonable efforts in the
event and to the extent that the Administrator of the Rural Utilities Service shall expressly in
writing authorize such use pursuant to the provisions of the Rural Electrification Act of 1938,
being Title IV of Public Resolution No. 122, 75th


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Congress, approved June 21, 1938. For the
purposes of this Section 20.22, an “eligible country” is any country that applies with respect to
the United States an agreement ensuring reciprocal access for United States products and services
and suppliers to the markets of that country, as determined by the United States Trade
Representative. For the purposes of this Section 20.22, manufactured articles, materials, and
supplies are considered to have been manufactured in the United States or an eligible country if
the cost of the products used therein from the United States or an eligible country constitutes
fifty percent (50%) or more of the cost of all products used therein; provided, that products means
only those components of manufactured articles, materials, and supplies which are directly
incorporated therein but does not include materials used in the manufacture of such components.




          20.22.2 Documentation. Contractor agrees to submit to PSGC such reasonable
documentation which is available to it or which it could reasonably obtain with respect to the
sourcing of Equipment as PSGC may reasonably request in connection with the foregoing provision.




          20.22.3 Other Transactions . Section 20.22.1 shall not apply with respect to (i) items which are proposed by Contractor
to be procured (whether by way of execution of a purchase order, contract or issuance of a letter
of intent) within the period of twelve (12) weeks after the Effective Date of this Agreement; or
(ii) any procurement involving a contract value of less than **** dollars ($****), or (iii) items
for which the procurement activities are proposed by Contractor to be conducted at the Facility
Site.




          20.22.4 Impact. In the event that, on account of the requirements of Section
20.22.1, any item is required to be sourced from a location which is different from the location
from which Contractor would otherwise have sourced or recommended sourcing of such item, the
Parties shall execute a Change Order in accordance with Article 10 prior to the purchase order or
contract for such item being signed, in order to address the impact or impacts arising from such
different sourcing. To the extent that compliance with this Section 20.22 results in any other
cost, schedule or other impact on the performance of the Work, such impact shall be treated as a
Change Event in accordance with Article 10.




     20.23 Equal Opportunity Clause.



          20.23.1 Forms. Contractor represents that it has one hundred (100) or more
employees, and that it has furnished for the current reporting year the Equal Employment
Opportunity Employers Information Report EEO-1, Standard Form 100, required of employers with one
hundred (100) or more employees pursuant to Executive Order 11246 of September 24, 1965, and Title
VII of the Civil Rights Act of 1964. Contractor agrees that it will obtain, upon its execution of
any subcontract for more than ten thousand dollars ($10,000) hereunder to a Subcontractor with one
hundred (100) or more employees and to

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which Equal Employment Opportunity Employers Information
Report EEO-1, Standard Form 100 is otherwise applicable, a statement, signed by such proposed
Subcontractor, that such proposed Subcontractor has filed a current report on Standard Form 100.




          20.23.2 Non-Discrimination. During the performance of the Work, Contractor agrees
as follows:




               (a) Contractor will not discriminate against any employee or applicant for employment because
of race, color, religion, sex or national origin. Contractor will take affirmative action to
ensure that applicants are employed, and that employees are treated during employment
without regard to their race, color, religion, sex or national origin. Such action shall
include, but not be limited to, the following: employment, upgrading, demotions or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection of training, including apprenticeship. Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, notices to be provided
setting forth the provisions of this Equal Opportunity Clause.



               (b) Contractor will, in all solicitations or advertisements for employees placed by or on
behalf of Contractor, state that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex or national origin.



               (c) Contractor will send to each labor union or representative of workers, with which it has a
collective bargaining agreement or other contract or understanding, a notice to be provided
advising the said labor union or workers’ representative of Contractor’s commitments under this
section, and shall post copies of the notice in conspicuous places available to employees and
applicants for employment.



               (d) Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965,
and the rules, regulations and relevant orders of the Secretary of Labor.



               (e) Contractor will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by rules, regulations, and orders of the U.S. Secretary of Labor, or
pursuant thereto, and will permit access to its books, records, and accounts by the administering
agency and the U.S. Secretary of Labor for purposes of investigation to ascertain compliance with
such rules, regulations, and orders.



               (f) In the event of Contractor’s noncompliance with the Equal Opportunity Clause of this
Agreement or with any of the said rules, regulations, or orders, Contractor understands that it may
be declared ineligible for



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Government contracts or federally assisted construction contracts in
accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such
other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of
September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as provided by
law.




               (g) Contractor will include this Equal Opportunity Clause in every subcontract it executes
unless exempted by the rules, regulations, or order of the Secretary of Labor issued pursuant to
Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding
upon each such Subcontractor. Contractor will take such action with respect to any subcontract it
executes as the administering agency may
direct as a means of enforcing such provisions, including sanctions for noncompliance;
provided, however, that in the event Contractor becomes involved in, or is
threatened with, litigation with any such Subcontractor as a result of such direction by the
administering agency, Contractor may request the United States to enter into such litigation to
protect the interests of the United States.



          20.23.3 Non-Segregated Facilities. Contractor certifies that it does not maintain
or provide for its employees any segregated facilities at any of its establishments, and that it
does not permit its employees to perform their services at any location, under its control, where
segregated facilities are maintained. Contractor certifies further that it will not maintain or
provide for its employees any segregated facilities at any of its establishments, and that it will
not permit its employees to perform their services at any location, under its control, where
segregated facilities are maintained. Contractor agrees that a breach of this certification is a
violation of the Equal Opportunity Clause in this Agreement. As used in this certification, the
term “segregated facilities” means any waiting rooms, work areas, restrooms and washrooms,
restaurants and other eating areas, timeclocks, locker rooms and other storage or dressing; areas,
parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing
facilities provided for employees which are segregated by explicit directive or are in fact
segregated on the basis of race, color, religion, or national origin, because of habit, local
custom, or otherwise. Contractor agrees that (except where it has obtained an identical
certification from proposed subcontractors for specific time periods) it will obtain an identical
certification upon its execution of any subcontract exceeding **** dollars (****) which
is not exempt from the provisions of the Equal Opportunity Clause, and that it will retain such
certification in its files.




     20.24 Surrender of Guaranties. If, at the time any guaranty provided in connection with this
Agreement is required to be surrendered, a claim is pending between Contractor and PSGC or between
Contractor and the counterparty to such guaranty, and Contractor has identified such claim in
writing to PSGC or such counterparty then, unless such claim is covered by a substitute guaranty
delivered pursuant to Section 20.1, Contractor shall not be obligated to surrender such



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guaranty
until such claim has been resolved, but Contractor agrees that (a) such guaranty shall be deemed
cancelled in all other respects, and (b) the guarantor under such guaranty is a third party
beneficiary of this Section 20.24.



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     IN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused this
Agreement to be executed by their duly authorized officers as of the date first written above.



BECHTEL POWER CORPORATION




	 	 	 	 	 
	By:

	 	/s/ M. Richard Smith 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Name:
	 	M. Richard Smith	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Title:
	 	SVP	 	 
	 

	 	 	 	 




PRAIRIE STATE GENERATING COMPANY, LLC, for itself, and, effective on and from the Commencement
Date, as agent for Owners




	 	 	 	 	 
	By:

	 	/s/ Colin M. Kelly	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Name:
	 	Colin M. Kelly	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Title:
	 	President