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Statement of Qualifications for EPC Contracting Services for Coleto Creek Phase II

March 2009

Atlanta | Charlotte | Dallas | Los Angeles | New York | Research Triangle | Silicon Valley | Ventura County | Washington, D.C.

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Table of Contents

Oglethorpe Power Briefs 1

About Alston & Bird 2

Energy Practice 3

International Construction and EPC Contracting 4

Services

Claims & Disputes on Power Projects 5

Delivery System Risk Curve 6

Target Price Contract 7

Hypothetical Schedule for Parallel Negotiations 8

Risk Multiplier Evaluation System 9

Flow Chart illustrating payment application process 10

Flow Chart illustrating Change Order Notice 11

issued by contractor

Flow Chart for Change Order Request issued 12

by Owner

Form for Owner’s Response to Contractor’s Change 13Order Notice/Owner’s Supplement to Owner’sChange Order Request

Form for Owner’s Notice of Withholding 14

Work Sheet for EPC Quarterly Reconciliation 15

Work Sheet

Illustration of contingency draw process 16

Selected Attorney Biographies 17

Table of Contents

ALSTON&BIRD LLPOne Atlantic Center

1201 West Peachtree Street

Atlanta, GA 30309-3424

404-881-7000

Fax:404-881-7777

www.alston.com

Atlanta • Charlotte • Dallas • Los Angeles • New York • Research Triangle • Silicon Valley • Ventura County • Washington, D.C.

William H. Hughes, Jr. Direct Dial: 404-881-7273 E-mail: bill.hughes@alston.com

March 7, 2009

David T. Musselman, Esq.Vice President and General CounselInternational Power America, Inc.62 Forest Street, Suite 102Marlborough, MA 01752

Aaron Bullwinkel, Esq.Senior CounselInternational Power America, Inc.62 Forest Street, Suite 102Marlborough, MA 01752

Re: EPC Contracting Services for IPA Coleto Creek Phase II

Dear David and Aaron:

Thank you for inviting us to submit a proposal in connection with Phase II of theColeto Creek Power Station (the “Project”). We have been pleased to have InternationalPower America, Inc. (“IPA”) as a long-standing client. In particular, I enjoyed workingwith American National Power in the high-stakes case of Oglethorpe Power Corporationv. Hartwell Energy Limited Partnership, in which we obtained a complete summaryjudgment for ANP that was upheld on appeal.1 We welcome this opportunity to build onour past relationship.

As you requested, this proposal will focus on the services we can offer relative tothe EPC contract for the Project, and the approaches that can be used to pursue andconclude the EPC negotiations successfully and cost-effectively.

1In this 1998 suit Oglethorpe Power claimed, based on a right of first refusal contained in the PowerPurchase Agreement between HELP and Oglethorpe, that it was entitled to purchase ANP’s interest in theHartwell power station at an extreme bargain price. After we presented a summary judgment argument thatthe trial court judge described as “about the best presentation I have ever seen”, the trial court enteredsummary judgment in favor of ANP and HELP on all counts. We represented ANP and HELP in a hard-fought appeal that resulted in affirmation of the summary judgment. Several pages of our summaryjudgment brief in the Oglethorpe Power case are attached under Tab 1.

March 7, 2009Page 2

I. OUR FIRM

Alston & Bird is one of the most respected law firms in the United States. Withover 800 lawyers in nine major markets across the country, we have the capacity and skillto serve the needs of industry-leading clients from around the world. Some introductoryinformation concerning our firm and the accolades we have earned can be found underTab 2, and even more information can be found on our website at www.alston.com.

As can be seen from the materials attached under Tab 3, we have a broad range ofexperience in matters involving the electric power industry, including experiencedeveloping a wide variety of conventional and alternative power generation facilities.

II. OUR EPC TEAM

The experience and qualifications of the Alston & Bird EPC team are summarizedin the materials attached under Tab 4. We believe the blend of legal skills andexperience we can bring to the Project are the best available, and are particularly well-suited to the needs of IPA and its partner, South Texas Electric Cooperative (“STEC”).Some of the qualities we offer are:

Experience representing IPP’s and Coops. We have negotiated EPCcontracts for independent power producers as well as electrical coops. Weknow how the different business models and forms of ownership andgovernance affect the decision-making processes of each. We alsounderstand the special needs, motivations, of pressures of both.

Focus on EPC. In our view, an EPC contract is not a mere appendage to aproject finance transaction that ends at financial close. Rather, the EPCcontract sets the ground rules for a relationship between an owner and acontractor that must be sustained for several years. The test of ourhandiwork is in how the contract bears the inevitable stresses of thatrelationship over time.

Long-term view. We measure our success by the level of client satisfactionon the date the contractor’s final warranties expire. Our job is not complete,and our duties to our client are not discharged, until the project is completedand is performing according to our client’s expectations. From day one, weare laser-focused on the nuts and bolts of getting the project designed andbuilt properly and on schedule. Everything we do is focused on this long-term objective.

Construction orientation. While the members of our team bring manyspecialized skills and perspectives to the performance of their tasks, we areoriented toward the construction process. I serve as team leader and am a

March 7, 2009Page 3

construction lawyer at heart. In addition to negotiating EPC contracts, I alsolitigate and arbitrate disputes on large power projects. Our team brings toits work an understanding that construction is a complicated processinvolving a myriad of different players and resources. We know what cango wrong with this process and are dedicated to smoothing out bumps andhelping our clients avoid costly mistakes and bad surprises.

Practical approach. We know negotiation of an EPC contract involvescompromises and tradeoffs by both parties. We help our clients make theseinevitable tradeoffs and compromises in the way least likely to have amaterial adverse impact on their essential interests.

Follow-through. We know the best contract language is of little value if it isnot understood and implemented by the project team. We will write acontract that can be understood and applied by the project personnel for boththe owner and the contractor. We will help teach the owner’s project teamwhy the contract processes are important, and how to use them.

Record of success. Our team has a strong record of success. While we havenegotiated close to $10 billion in EPC contracts (and litigated tens ofmillions of dollars in disputes arising out of EPC contracts drafted byothers), no EPC contract we have drafted and negotiated has ever led to adispute in court or arbitration. This is not to say that there have been nodisagreements -- there have been disputes, sometimes involving tens ofmillions of dollars. However, our EPC contracts have always been completeenough, and the language contained in them has always been preciseenough, to enable the parties to reach a resolution without resorting tolitigation or arbitration.

We are extremely proud of our team and our record. We will bring all of ourskills and experience to bear to make your Project successful.

III. OWNER OBJECTIVES

Based on the information we have received concerning the Project, we haveidentified the following as the major objectives of IPA and STEC in the EPC contractingprocess:

A. To attract the largest possible pool of qualified proposers, who are willing and able to design and build the Project, in a manner meeting all legal and regulatory requirements on terms acceptable to IPA, STEC and their lender.

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B. To engage in a process that is efficient and cost-effective, and that allows IPA and STEC to identify the EPC contractor who

offers the best combination of quality, price, and price certainty.

C. To execute an EPC contract that clearly and accurately memorializes the risk allocation agreed upon

by the parties, promotes the free flow of information and use of good

management practices by both parties throughout the Project, results in the lowest practicable cost for design and construction, minimizes the likelihood of delays and cost overruns, and maximizes the probability that the Project’s performance and life

cycle costs will meet the expectations of IPA and STEC.

To achieve these goals will require careful planning, as well as commitment tofollow the plan through to completion. As illustrated by the graph attached under Tab 5,the ability of an owner to influence the final cost of a construction project is greatest atthe very beginning, and dissipates as the project continues. A proper planning processbegins with careful consideration of the contents of the Request For Proposals (“RFP”)and does not end until the project is operating and all warranties have expired.

IV. THE REQUEST FOR PROPOSALS

The bulk of the RFP will be devoted to setting out the technical requirements forthe Project, as well as the schedule and any physical constraints. We understand theProject will utilize proven supercritical pulverized coal technology, so that the mostsignificant technical challenge will be in meeting any requirements for carbon capture-readiness imposed by law. There is ample real estate available at the site, so there shouldbe no extraordinary physical or logistical obstacles to overcome during construction. Theschedule for completion appears to be somewhat flexible, in that there are no externalagreements or other factors imposing a hard-and-fast completion deadline.

A well-planned RFP will also include a proposed EPC contract which is as closeas possible to the final terms and conditions the owner expects to obtain. The RFPshould make it clear that the number and significance of the proposer’s commercialexceptions to the RFP draft of the EPC contract will be considered in evaluating andshort-listing the proposers. By making this clear at the outset and by including areasonably balanced EPC contract in the RFP, an owner can hope to minimize thenumber and magnitude of commercial exceptions included in the proposals.

Owners can be tempted to include in the RFP either an “ideal” EPC contractwhich is very pro-owner, or a “generic” contract which has not been adjusted to theProject. An unrealistically pro-owner EPC contract in the RFP can discourage otherwise

March 7, 2009Page 5

qualified proposers. A generic contract can lead to unnecessarily voluminous commentson the commercial terms. Neither of these approaches will help to achieve the objectivesdescribed in Part III above, and both can lead to protracted negotiations and difficulties inmaking apples-to-apples comparisons among the proposers.

For these reasons, we suggest IPA and STEC carefully consider the contractualrequirements of the EPC prior to issuing the RFP. To formulate the RFP version of theEPC contract for the Project will require a good bit of advanced thought, includingthinking around the topic of financeability.

V. REQUIREMENTS FOR A FINANCEABLE EPC CONTRACT

The EPC contract for the Project will need to be financeable, and thus will need tohave a significant degree of price certainty. As in most other parts of the EPC contract,however, the goal of obtaining price certainty needs to be carefully measured andbalanced against the cost of obtaining such certainty.

Attached under Tab 6 is a chart we have developed to illustrate the relationshipbetween final cost and price certainty under a number of different project delivery andpricing methodologies. In this chart, contracts described in the lower left corner havelower initial prices but a greater probability of cost overruns, while contracts in the upperright corner have higher initial prices but a lower likelihood of cost overruns.

In the chart attached under Tab 6, each type of contract is described by an ovalwhich encompasses a range of points along the sloping curve. An oval is used rather thana single point because the risk of price increases under different types of contracts canvary greatly depending on the terms and conditions of the contracts. Depending on thespecific language used, the risk profiles of different types of contracts can overlap. Totake just one example, a project using a tightly-written target or hybrid contract couldhave a lesser probability of experiencing cost overruns than a project using a loosely-written lump sum contract.

As can also be seen from the chart under Tab 6, several different types ofcontracts and pricing methodologies may satisfy the requirements for financeability.Whether a contract is financeable will depend not only on the type of contract and pricingmethodology, but also on the specific terms and conditions of the contract and otherfactors such as the amount of equity provided by the owner and the willingness andability of owner to provide financial backstops such as completion guarantees.

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VI. METHOD OF PRICING – LUMP SUM TURN KEY OPTION

The first pricing method that comes to mind for a project-financed undertaking isthe method providing, theoretically at least, the highest degree of price certainty. This isthe lump sum turn-key (“LSTK”) full-wrap contract, which appears in the upper rightcorner of the chart attached under Tab 6. LSTK contracts have been used on manydifferent kinds of power projects in the United States, including many gas-fired plantsand some coal-fired power stations. There are a number of reasons, however, why anLSTK contract may not be available, or IPA and STEC may choose not to use an LSTKcontract, on this Project.

In contrast to a gas-fired plant where a substantial percentage of the total cost isattributable to equipment manufactured off-site, a coal-fired power plant involvesmassive amounts of labor and materials consumed on-site. For a prudent and responsiblecontractor to give a lump sum price for such a project, the contractor must either reservea very large contingency fund, or build a significant degree of price flexibility into thecontract. In addition, the opaqueness implicit in a lump sum contract can make itdifficult for the owner to manage the project and to anticipate and prevent problems, costoverruns and delays. Some of the drawbacks to an LSTK contract can include:

Large contingency. The principal drawback of the large contractorcontingency that goes with an LSTK contract is its effect on the lump sumprice. A large contingency necessarily inflates the lump sum price and canresult in a price 25% to 30% higher than the contractor’s budgeted cost.Once an owner agrees to a lump sum price, the contingency belongs to thecontractor. If the project goes well and the entire contingency is not used,the owner has no right to share in the saved contingency.

Liberal escalation and change order provisions. To induce a contractor tohold its contingency to a reasonable level, the owner may be required tobuild liberal escalation and change order clauses into the contract. Under alump sum contract, however, the owner has very little access to informationconcerning the subcontracts, supply contracts, and other financialarrangements of the contractor. Without such information, it is difficult foran owner to verify the contractor’s actual costs and make sure any escalationand changes are used to offset actual cost increases, not merely accrued aswindfalls.

Front-loading progress payments. Typical methods of making progresspayments under lump sum contracts can give a contractor the opportunity tofront-load the project. The owner under a lump sum contract cannot readilyidentify or control such front-loading. The result may be an unbalancedcash position that costs the owner money out-of-pocket and also gives the

March 7, 2009Page 7

contractor inordinate bargaining power in the event of a disagreement ordispute.

Lack of transparency. The lack of transparency implicit in a lump sumcontract can have an adverse effect on the owner’s efforts to manage theproject. Under a lump sum contract, the contractor does not provide pricingor expense information to the owner. If there are problems that drive pricesup, the owner may not know about them until a claim is presented by thecontractor. This can lead to reactive, rather than proactive, management bythe owner’s project team.

VII. METHOD OF PRICING – TARGET PRICE OPTION

For all of the reasons noted above, true LSTK contracts are rare on large coal-fired projects. Instead, owners often decide it is in their best interest to use a form ofcontract (such as a fair and tight target price contract) providing the owner with morevisibility into the project and more ability to influence proactively cost and schedule. Anillustration showing a typical price and cost structure for a target price contract isattached under Tab 7.

We can help you select the best pricing mechanism for the Project. If you dochoose target pricing, we can help you build into the contract the terms and provisionsthat will make it work, and prevent it from becoming the equivalent of an unlimited cost-plus contract.

Some of the issues that should be addressed in a target price contract include:

Contingencies. Contingency is the cushion between expected costs andbudget overruns, and thus plays an essential role in large constructionprojects. In a target price contract, the contingencies held by both thecontractor and the owner can be open and exposed, rather than buried in lineitems of the schedule of values. This enables the owner to monitor and evenregulate the use of contingency as the project progresses. Both thecontractor and the owner have a legitimate interest in how contingency isspent, and these interests can be protected with processes built into acarefully-crafted target price contract.

Progress payments. Whether the contract utilizes milestone, manifestbilling, earned value, or a hybrid approach for calculating the amount ofprogress payments, it is important for the owner to have the managementtools necessary to keep project payments in balance. While it is not cost-effective to require a contractor to finance a project, excessive overpaymentsare not only costly to the owner, but can skew the negotiating power andleverage of the parties in the event of a dispute or disagreement.

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Quarterly reconciliation. A quarterly reconciliation of actual costs can helpan owner impose discipline on the contractor’s scheduling and sequencing,and make sure the contractor is pursuing policies which benefit the project,and not just the contractor. Quarterly true-up processes can be complicated,and the concept may be resisted by the contractor. Such a process does,however, help to keep information about costs flowing between the partiesand can be a valuable tool for the owner as it attempts to manage monthlyexpenditures.

Open book accountability. A major advantage of target pricing is the fullaccess the owner gains to the contractor’s records, including up-to-the-minute cost and schedule information. These rights should be clearly laidout in the contract, so that the owner will be able to use this information toeffectively manage the project.

Shared savings. By including provisions for shared cost savings, both theowner and the contractor can be incentivized to minimize costs where doingso is beneficial to the project.

Not-to-Exceed Price. IPA and STEC may wish to ask to the proposers toprovide not-to-exceed prices, above which the proposers would beresponsible for all costs. While IPA and STEC might conclude the premiumrequired for such a price assurance is too high to pay, not-to-exceed pricescan help to indicate the degree of confidence of the proposers in theirbudgets as well as their willingness to assume risk in the contract.

Cash curve. Owners often find it helpful to subject progress payments to thediscipline of a cash curve, with prescribed maximum expenditures for eachtime period during design and construction.

Definition of reimbursable costs. The components of reimbursable costsshould be carefully defined in the contract and should exclude costs that arenot necessary for proper performance of the contractor’s work.

Warranty and liquidated damage costs. Costs incurred by a contractor toperform warranty work or to pay liquidated damages are typicallyreimbursable by the owner under a target price contract. To maintain properalignment of interests, these costs should be treated differently from othertypes of costs. Disincentives should be included in the contract todiscourage the contractor from incurring warranty or delay costs.

Fixed-price or limited-cost components. Certain supply and subcontractcosts may be fixed. Limits also may be placed on specific cost items such

March 7, 2009Page 9

as engineering hours. If used liberally, this type of provision can result in ahybrid lump-sum/target-price contract.

Incentive payments. In addition to reimbursement for costs incurred, atarget price contract can include financial incentives for achieving desirablegoals, such as job site safety, or minimizing interference with the owner’songoing operations. Such incentives could be used by IPA and STEC tohelp ensure that any interruptions to the operation of Phase I of the ColetoCreek Power Station are minimal.

VIII. GENERAL DRAFTING PRINCIPLES FOR EPC CONTRACTS

Regardless of the type of contract and pricing used, we have developed coreprinciples which we believe should apply to all EPC contracts, including the versionincluded in the RFP. Some of these core principles are listed below.

Focus on the interfaces. Despite the goal of creating single-point turnkeyresponsibility, certain responsibilities will remain with the owner in all EPCcontracts. Experience has taught us that disputes and claims will clusteraround these areas of owner responsibility, including owner responsibilityfor obtaining permits, supplying items of equipment, or retaining othercontractors to perform related scopes of work. For this reason, theinterfaces between the owner’s responsibility and the contractor’s scope ofwork must be managed carefully in both the contract and projectimplementation.

Key personnel provisions. EPC contractors, like all other businessorganizations, have “A”, “B”, and “C” project teams. No matter the nameor company-wide experience of the EPC contractor, its performance will beno better than the quality of the team assigned by it to the project. The EPCcontract should include strong, enforceable provisions to make sure the teamoriginally assigned to the project stays with the project through completion,and any substitutions are approved by the owner.

Problem-solving procedures. Problem-solving processes in the EPC contractshould be complete, thorough and consistent. Disputes and disagreementsare bound to crop up during the multi-year process of design andconstruction. The true test of an EPC contract is in the way it assists theparties in solving these problems. The problem-solving provisions of theEPC contract should be well thought-out and user-friendly, so the solutionto any problems that arise can be found within the contract without resort tojudges or arbitrators.

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Changes and claims. All provisions relating to changes and claims of anynature, including force majeure, should be channeled through a single,comprehensive changes clause. This provision should set out a clear processwhich makes it possible for the parties to immediately recognize andidentify changes and claims relating to the project, and to resolve questionsand disagreements at the earliest opportunity.

Labor and commodity escalation. Labor and commodity escalation (or de-escalation) can and should be treated as any other change order. In the caseof escalation or de-escalation, the change order process is triggered bymovement in a price index, but the other requirements for entry of a changeorder still apply. Mandatory escalation which is tied mechanically tochanges in indexes, without consideration for actual impact to the project,can lead to price distortions, misaligned interests and other unintendedconsequences.

Owner and contractor security packages. The amount and type of financialinstruments included in the owner and contractor security packages areclosely related to the anticipated cash flow provided through progresspayments. These areas of the contract should be coordinated so the ownerand the contractor are adequately protected.

Stop-work clauses. A contractor’s most powerful weapon is its ability tothreaten to shut down a project. To keep relatively minor disputes fromescalating to stop-work threats, the contract should contain disputeresolution processes that disengage payment from performance, and enablethe project to proceed on schedule even if there is a dispute about paymentapplications or progress payments. Our experience litigating and arbitratingconstruction disputes has provided valuable insights into the properstructuring of dispute resolution provisions that work.

Limits of liability. Limits and sub-limits of liability can be used to fine-tunethe risk allocation between an owner and contractor, so the owner does notpay the contractor to assume more risks than is necessary. These provisionsshould be carefully coordinated with the provisions relating to changes,reimbursement of warranty and liquidated damage costs, progress paymentand security package provisions to achieve an optimum balance.

Clear and precise contract provisions. In every part of the contract, clarityand precision benefits the project. We do not agree that a tight and precisecontract is necessarily “onerous”, while a loose and flexible contract is“balanced”. A contractor should be able to obtain fair treatment throughmeans other than asserting claims and exerting leverage. Clear and precisecontract terms and conditions, when linked with a free exchange of

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information and the use of good management practices by both all parties,are the best way to minimize or eliminate disagreements and disputes.

IX. PARALLEL NEGOTIATIONS

To identify the EPC contractor offering the best combination of ability, price andprice certainty, and to reach the optimum commercial terms with that contractor, IPA andSTEC may want to pursue parallel negotiations with two or more EPC contractors. Ahypothetical schedule and program for parallel negotiations is attached under Tab 8. Ascan be seen from this hypothetical schedule, responses to the RFP could be used to cullthe initial pool of contractors to a short list of two or three. Negotiations would thenensue with the short-listed contractors. The purpose of parallel negotiations would be tomaintain a competitive atmosphere until final terms and conditions could be agreed uponand an EPC contract executed.

We have extensive experience in parallel negotiations, and have developedmethods and practices to manage this process efficiently and cost-effectively. Some ofthese methods and practices include:

Risk Multiplier Evaluation System. An important component of ourservices, and one that sets us apart from many other firms, is our use of aformal system to track and compare the relative positions of contractors. Asample Risk Multiplier Evaluation System form is attached under Tab 9.To implement this system for the Project, we would work with IPA andSTEC at the RFP stage to develop a list of priorities for the EPC contract.We would then assign weights to the different provisions of the RFP versionof the EPC contract based on the priorities of IPA and STEC. Whenproposals are received, we would review the various proposers’ respectivepositions on the contract provisions and assign scores based on the degree ofdeviation from RFP version of the EPC contract. These scores, whenmultiplied by the pre-assigned weights, yield individual and aggregatescores that can be of great utility in evaluating the relative positions of thecontractors. Once the field was thinned and parallel negotiationscommenced with the short-listed contractors, the Risk Multiplier EvaluationSystem would continue to fill a valuable role in comparing the relativepositions of the contractors in making a final selection. Finally, the RiskMultiplier Evaluation System serves as a powerful quality-control andverification tool for senior executives of IPA and STEC, since it provides aclear record of the competitive pressures and business judgments leading toany compromises or trade-offs included in the final EPC contract.

Portable Technology. We also take full advantage of portable technology totrack and manage multiple parallel negotiations. Our attorneys areaccustomed to using their laptop computers to make real-time modifications

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to contract drafts during negotiations, with or without the use of a projectorand screen. We are dedicated to the timely and accurate turning of blacklinedrafts for the benefit of everyone engaged in the negotiations.

X. SELECTION OF CONTRACTOR AND EXECUTION OF EPCCONTRACT

If IPA and STEC choose to use parallel negotiations, two or more contractors willremain in contention for the Project until the time for selection. This will enable IPA andSTEC to choose the best contractor and contract based on all of the relevant criteria,including information derived from the Risk Multiplier Evaluation System.

At the time of execution of the EPC contract, all of the exhibits should bethoroughly scrubbed and care should be taken to make sure all information contained inthe exhibits is properly coordinated with the terms and conditions of the contract.Disagreement and lack of coordination between exhibits and the contract is a recurringproblem and can only be eliminated by careful attention to and scrubbing of the exhibitsthroughout the negotiation process and at contract execution.

XI. OWNER PROJECT TEAM ORIENTATION SERVICES

As part of our EPC negotiation services, we routinely prepare flow charts andforms to guide the project team in implementing the contract. Samples of some of theforms and flow charts prepared for previous target price contracts are attached under Tab10 through Tab 16, including:

Flow chart illustrating payment application process (Tab 10)

Flow chart for Change Order Notice issued by Contractor (Tab 11)

Flow chart for Change Order Request issued by Owner (Tab 12)

Form for Owner’s Response to Contractor’s Change Order Notice/Owner’sSupplement to Owner’s Change Order Request (Tab 13)

Form for Owner’s Notice of Withholding (Tab 14)

Work Sheet for EPC Quarterly Reconciliation Work Sheet (Tab 15)

Illustration of contingency draw process (Tab 16)

We typically conduct at least one training session with the project team to makesure they understand the EPC contract and the way it is supposed to work, and arefamiliar with the forms and flow charts available for use in interpreting and applying the

March 7, 2009Page 13

contract. Appropriate forms also may be made available on-line by the client, withappropriate technical safeguards to prevent misuse.

XII. PROJECT TEAM SUPPORT SERVICES

After the EPC contract is negotiated and signed and the project team has receiveda thorough orientation, we continue to provide support as issues arise during design andconstruction. As noted in Part II of this letter, we are proud of the record we havecompiled in resolving issues relating to our EPC contracts outside litigation or arbitration.

The support that we provide during project implementation is generally behind-the-scenes and may involve tasks such as:

Helping the client work through issues relating to progress paymentswithheld or contingency draws denied.

Assisting with analysis and evaluation of change order requests.

Assisting with formal communications between the client and the contractorto ensure compliance with notice and dispute resolution provisions.

Negotiating and drafting comprehensive change orders to addressextraordinary situations and events. We have helped draft and negotiateomnibus change orders to adjust the contract to changed conditions and to“reset” the schedule and cost thresholds to modified benchmarks.

XIII. CONCLUSION

Biographical summaries for key members of our EPC team, as well as a numberof supporting attorneys with related skills, are attached under Tab 17. As a group, we arehonored to be considered by International Power America for this exciting project. Weare dedicated to your success and to fulfilling your expectations, and pledge to alwaysconduct ourselves in a manner that is efficient, effective, responsible and reflective of thehighest standards of professional performance. Please let us answer any questions youmay have and again, thank you.

Very truly yours,

William H. Hughes, Jr.WHH/knwLEGAL02/31181453v1

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diminished the rights available to OPC under the ROFR, until very few transactions could

trigger a ROFR under the ownership structure that existed in 1997.

G. Application of the Definitions Used in the ROFR to the Original Ownership Structure of the Partnership.

The entities involved in the ownership structure of the Partnership at the time that

the PPA was executed fit within the definitions used in the ROFR as follows:

1 %g e n e r a l p a r t n e rin t e r e s t

9 9 % l im i t e d p a r t n e rin t e r e s t

1 0 0 %s t o c k

1 0 0 %s t o c k

1 0 0 %s t o c k

1 0 0 %s t o c k

F A C I L I T Y

1 0 0 %o w n e r

T r a n s c o E n e r g y C o r p .

T r a n s c o E n e r g y V e n t u r e s C o .

T r a n s c o H a r t w e l l E n e r g y C o .

T E V C O C o g e n e r a t i o n C o .

T r a n s c o P o w e r C o .

H a r t w e l l E n e r g yL i m i t e d

P a r t n e r s h i p

S e l le r

A f f i l i a t e o f S e l le r

G e n e r a l P a r t n e r

S h a r e h o ld e r

G e n e r a l P a r t n e r H o ld in g C o m p a n y

T r a n s c o E n e r g y

A f f i l i a t e o f T r a n s c o E n e r g y

L e g e n d :

As is apparent from the above diagram, the ownership structure at the time the

PPA was signed included Transco Energy Company ( ), several Affiliates of

Transco Energy ( ), and two General Partner Holding Companies ( ). All

of these entities could engage in transactions that would trigger the ROFR contained in

Section 13.2 of the PPA. The ownership structure at this time also included the Seller

( ) and several Affiliates of the Seller ( ). Section 13.3 provided a ROFR in

the event of certain transactions involving these entities.

- 9 - LEGAL01/10507374v2

Excerpt from Summary Judgement Brief in Oglethorpe Power v. Hartwell Energy Limited Partnership

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H. Application of the Definitions Used in the ROFR to the Ownership Structure of the Partnership After the 1992 Sale of Fifty Percent of the General and Limited Partnership Interests to Destec.

Within five months after the PPA was executed, the Partnership completed the

"50% transfer" transaction that had been discussed at the meeting with OPC on October

22, 1991. In this transaction, which was completed in September 1992, the Partnership

swapped 50% of the total general and limited partnership interests in the Partnership to a

publicly-traded IPP called Destec Energy Company ("Destec"), in exchange for 50% of

the general and limited partnership interests in another power plant Destec had

developed. This transaction was carefully structured so that neither Destec nor Transco

Energy Company could exercise control over the Partnership, and so that both could

enjoy the accounting benefits of holding non-controlling interests in the Partnership.

Molloy Affidavit, Paragraph 4 and Exhibit "A," Sections 8.1(a), 8.3(a), and 8.5(a);

Gilliland Deposition, pp. 46-47.

After the September 1992 transaction, the entities involved in the ownership

structure of the Partnership fit within the definitions used in the ROFR as follows:

49% lim ited partner in terest

H artw ell EnergyLim ited

P artnersh ip

D e ste c E nergy, Inc.

1%genera l

partner in terest

Transco E nergy Corp.100%stock

100%stock

100%stock

100%stock

80%stock

20%stock

FA CILITY

49% lim ited partner in terest

1%genera lpartnerinterest

100%stock

100%stock

H artCounty

IP P , Inc .

H artw ellIndepende nt P ow er

Partners, Inc.

D ow Che m icalCom pany

IndividualShare ho lders

100%owne r

Transco Energy V entures C o.

Transco P ow e r Co .

TE V C O C oge ne ration Co .

Transco H artw ell Ene rgy C o.

Seller

Affiliate of Seller

General Partner

Shareholder

General Partner Holding Company

Transco Energy

Affiliate of Transco Energy

Legend:

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Excerpt from Summary Judgement Brief in Oglethorpe Power v. Hartwell Energy Limited Partnership

WWW.ALSTON.COM

As the above diagram shows, after the September 1992 transaction, the ownership

structure no longer included any Affiliates of the Seller ( ) as that term is used in

Section 13.3. Stair Deposition, p. 81; Taylor Deposition, pp. 131-132. Accordingly,

after September 1992, the Partnership itself ( ) was the only entity that could engage

in a transaction that would trigger the ROFR contained in Section 13.3. Transco Energy

( ), its Affiliates ( ), and the General Partner Holding Companies ( )

could all trigger the ROFR contained in Section 13.2 by engaging in certain transactions.

I. Application of the Definitions Used in the ROFR to the Ownership Structure of the Partnership After the 1993 Sale of Transco Power Company to National Power of America, Inc.

In September 1993, Transco Energy Company announced that it wished to sell

Transco Energy Ventures Co. ("TEVCO") to National Power of America, Inc., a

subsidiary of the British energy company National Power PLC. Once acquired by

National Power of America, Inc., TEVCO would change its name to American National

Power, Inc., and begin operating as a wholly-owned subsidiary of National Power of

America, Inc.

OPC and the Partnership recognized that TEVCO was one of the entities defined

in the PPA as a General Partner Holding Company ( ), and that its sale by Transco

Energy Corporation2 afforded OPC a right under Section 13.2.2 to buy all of the equity

that TEVCO Cogeneration Company held in Transco Hartwell Energy Company.3 At

2 Under Section 13.2.2, a sale "by Transco Energy...of more than fifty percent (50%) of the outstanding stock of a General Partner Holding Company" is a triggering event.

3 Under Section 13.2.2, the occurrence of a triggering event gives OPC the right to purchase, at fair market value, "all of the equity in a General Partner held by Transco Energy or its Affiliates." As can be seen from the ownership diagram, TEVCO Cogeneration Company was the Affiliate of Transco

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Excerpt from Summary Judgement Brief in Oglethorpe Power v. Hartwell Energy Limited Partnership

WWW.ALSTON.COM

this point, OPC was faced with a choice: it could elect to purchase the equity that

TEVCO Cogeneration Company held in Transco Hartwell Energy Company and thereby

obtain a one percent (1%) general partnership interest in the Partnership, or it could

forego that opportunity and consent to the proposed sale to National Power of America,

Inc. If it chose the latter course, then Transco Energy Company and all of its Affiliates

and subsidiaries would be removed entirely from the ownership structure of the

Partnership. Emery Deposition, pp. 199, 284-285; Stair Deposition, pp. 78-79; Taylor

Deposition, pp. 123-126. After carefully weighing the pros and cons, OPC agreed to the

sale of Transco Power Company to National Power of America, Inc. and executed a

written consent and waiver of its rights under the PPA. Kilgore Deposition, p. 111;

Martin Deposition, pp. 25-34, 40-48, 56-63; Deposition Exhibit 37.

After the September 1993 transaction between Transco Energy Corporation and

National Power of America, Inc., the ownership structure of the Partnership was as

follows:

Energy that held an equity interest in a General Partner, and Transco Hartwell Energy Company was the General Partner in which TEVCO Cogeneration Company held an interest.

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Excerpt from Summary Judgement Brief in Oglethorpe Power v. Hartwell Energy Limited Partnership

WWW.ALSTON.COM

1%general

partner interest

National Pow er, PLC

National Pow erInternational B.V.

National Pow er ofAm erica, Inc.

100%stock

Hartw ell EnergyLim ited

Partnership

100%owner

FACILITY

49% lim ited partner interest

Dow Chem icalCom pany

IndividualShareholders

Destec Energy, Inc.

49% lim ited partner interest

HartCounty

IPP, Inc.

80%stock

20%stock

Hartw ellIndependent Pow er

Partners, Inc.

1%generalpartnerinterest

100%stock

ANP Pow er Co.

Am erican NationalPow er, Inc.

100%stock

100%stock

100%stock

100%stock

TEVCO Cogeneration Co.

Transco Hartw ell Energy Co.

100%stock

100%stock

After the September 1993 transaction, neither Transco ( ), nor any of its

Affiliates ( ) nor any General Partner Holding Companies ( ), remained in

the ownership structure of the Partnership. Martin Deposition, pp. 33-34; Emery

Deposition, pp. 199, 284-285; Stair Deposition, pp. 78-79; Taylor Deposition, pp. 123-

126. Since the ROFR in Section 13.2 applies only to these entities, that Section could not

be triggered by any transaction engaged in by any of the entities involved in the

ownership structure of the Partnership after September 1993.

J. The 1997 Sale of Destec Stock by Dow Chemical Company.

In early 1997, gas–marketing giant NGC Corporation ("NGC") announced that it

intended to merge with Destec. At the time of the merger, Destec owned or had interests

in twenty power generation facilities in the United States, and five more projects in the

United Kingdom, the Dominican Republic, the Netherlands, Australia, and Canada. To

effect the merger, NGC would purchase all of the 58.6 million shares of publicly–traded

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Excerpt from Summary Judgement Brief in Oglethorpe Power v. Hartwell Energy Limited Partnership

Our CredentialsOur 900 attorneys are in nine major markets, representing world-class companies including UPS, The Dow Chemical Company, ▪Wachovia Corporation, Delta Air Lines, Inc., Aflac Incorporated, Nokia and The Prudential Insurance Company of America.

The ▪ Best Lawyers in America 2009 features 114 of our attorneys.

Chambers USA: America’s Leading Lawyers for Business ▪ (2008) recognizes nine Alston & Bird practices in its national rankings. They are Climate Change, Energy, ERISA Litigation, Financial Services Regulation: Banking & Securities (Regulatory Compliance), Food & Beverages, Government: Government Relations, Outsourcing, Privacy & Data Security, and Tax: Controversy & Fraud. Seventy-four of our attorneys are included in the rankings.

Corporate Counsel ▪ ’s 2008 list of “Who Represents America’s Biggest Companies,” recognized Alston & Bird among the top 10 law firms in the country.

The BTI Consulting Group ranked Alston & Bird 5th in the U.S. on its first “Masters of the Deal” list. The ranking resulted from ▪a survey of 150 major corporations about the law firms they use for corporate transactions.

In ▪ The American Lawyer’s 2007 “Corporate Scorecard,” Alston & Bird ranked 11th by number of deals and 14th by value of deals in the “mergers and acquisitions — counsel to investment advisors” category, among other rankings.

In Mergerstat’s and Thomson Financial’s 2007 year-end rankings, Alston & Bird ranked 14th and 12th, respectively, among ▪U.S. law firms based on U.S. deals closed.

Our 330 litigators have handled cases in all 50 states and include an attorney named among ▪ The National Law Journal’s “Ten of the Top Litigators in America.”

A team of Alston & Bird litigators joined Oregon counsel to represent MAN AG of Munich, Germany, in an international fraud ▪case that resulted in The National Law Journal’s largest verdict of 2006 — $850 million.

In 2008, ▪ Corporate Counsel recognized the intellectual property practice at Alston & Bird as a leader in corporate IP law. Dubbed the “Brains of the Operation,” Alston & Bird is 5th among the top 12 firms receiving mentions on this prestigious list.

IP Law & Business ▪ recognized Alston & Bird as having one of the top practices in the nation for handling U.S. International Trade Commission (ITC) Section 337 claims.

International Tax Review ▪ described our tax practice as being “one of the best in North America.” Its “World Tax 2007” lists Alston & Bird as a leading tax firm in both New York and Washington, DC.

In their most recent survey, ▪ AmLaw Tech ranked Alston & Bird 4th among large national law firms in the quality, use and deployment of technology on behalf of clients.

Our CultureAlston & Bird has been ranked on FORTUNE’s “100 Best Companies to Work For” list for nine consecutive years, including ▪placement in the top 25 for seven consecutive years, four of which were in the top 10.

Alston & Bird ranked 7th in BTI’s national survey of 250 corporate counsels at Fortune 1000 companies and large organizations. ▪These in-house attorneys identified 17 key activities that drive client service and the law firms they consider the absolute best at each activity. The survey included 200 law firms with the top 30 making BTI’s Client Service A-Team for 2008.

The 2008 Vault Guide to Top 100 Law Firms ranked Alston & Bird 5th in the Best 20 Law Firms for Diversity, 5th in ▪Diversity for Minorities, 3rd in Diversity for Gays and Lesbians and 18th in Diversity for Women, according to a national survey of more than 18,000 associates at 167 major law firms.

n n n Atlanta • Charlotte • Dallas • Los Angeles • New York • Research Triangle • Silicon Valley • Ventura County • Washington, DC

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One of the Nation’s Most Respected Law Firms

CorporateThe industry knowledge and regulatory capacity of the 345 corporate attorneys bring critical value to client relationships. Our practices include:

� Banking and Finance Regulation � Credit Cards and Payment Systems � Debt Finance � Derivatives � Energy and Utilities � Food, Drug and Device � Financial Services and Products � Global Security � Health Care � Hedge Funds � Investment Products � Legislative and Public Policy � Media and Digital Commerce � Mergers and Acquisitions � Privacy and Data Management � Private Equity � Project Finance � Public Finance � Real Estate Finance and Investment � REITs � Securities � Sourcing � Subprime Mortgage Markets � Technology and Telecommunications

Intellectual Property The IP practices include 175 lawyers with dedicated IP practices—120 of whom are registered with the U.S. Patent and Trademark Office. Our practices include:

� Biotechnology Patents � Business Method Patents � Chemical and Pharmaceutical Patents � Electrical and Computer Science Patents � IP and Technology Transactions � Life Sciences � Litigation � Marketing and Advertising � Mechanical Patents � Trademarks and Copyrights

LitigationOur 330 litigators are handling major cases all across the country for corporate America, serving as national and regional counsel on high-visibility, landmark litigation. Our practices include:

� Antitrust � Appellate � Bankruptcy, Workouts and Reorganization � Climate Change/Carbon Management � Construction � Corporate and Commercial � Environmental and Land Use � Government Contracts � Government Investigations � Immigration � Internal Investigations � International Trade and Regulatory � Intellectual Property � Labor and Employment � Mass Torts � Products Liability � Securities � Toxic Tort � White Collar Crime

TaxOur 75 tax attorneys comprise one of the largest law-firm-based tax practices in the country. Our practices include:

� Employee Benefits and Executive Compensation

� ERISA Litigation � Exempt Organizations � Federal Income Tax � International Tax � Litigation and Controversy � State and Local Tax � Tax Legislative and Regulatory

Advocacy � Transfer Pricing � Wealth Planning

Highlights

� Alston & Bird has been ranked by FORTUNE as one of the “100 Best Companies to Work For” ten years in a row.

� The BTI Consulting Group ranked Alston & Bird 5th in the U.S. on its first-ever “Masters of the Deal” list. The ranking resulted from a survey of 150 major corporations about the law firms they use for corporate transactions.

� Our 330 litigators have handled cases in each of the 50 U.S. states, as well as in multiple international jurisdictions, including complex arbitrations in international forums.

� International Tax Review described our practice as being “one of the best in North America,” and lists Alston & Bird as a leading tax firm in both New York and Washington, DC.

� On an annual basis, our patent prosecution attorneys file over 1,200 U.S. and 1,000 foreign applications, and our trademark and copyright attorneys file over 1,200 trademark applications in the U.S. and foreign jurisdictions.

Alston & Bird provides legal counsel and services on a global basis to domestic and multinational clients across a broad range of industries. Our mission is to provide the highest quality legal advice and responsiveness by assembling and nurturing the strongest array of legal talent and expertise to meet the challenges our clients face today. A critical component of ensuring that we provide effective and integrated services is our unique culture, which has been repeatedly recognized for fostering teamwork among our 900 lawyers and with our clients.

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Energy Practice —Representative Transactions

Project and Acquisition Financings

Topaz Power Group, LLC (a portfolio company of Riverstone Holdings LLC) in a

$740,000,000 project financing (including commodity hedging arrangements) for

the Nueces Bay, Barney Davis and Laredo re-powering projects.

Babcock & Brown as lead investor in the Myria consortium in the $800 million

financing (HoldCo and OpCo) for its acquisition of an 80 percent interest in MidCon

Corp. and National Gas Pipeline Co. of America (NGPL) from Knight Inc. (formerly

Kinder Morgan).

Babcock & Brown in the negotiation of the bank commitments for the acquisition

financing for Babcock’s proposed acquisition of NorthWestern Corp.

American Ref-Fuel Company and its subsidiaries in numerous project financings,

bond and note financings, holding company financings and restructurings relating

to each of its six waste-to-energy facilities.

Branson Ventures in the development and financing of a 200 million gallon ethanol

plant.

New England Electric System (NEES) in its acquisition by National Grid Group for

$3.2 billion.

Portfolio company of private equity sponsor in project financing of an ethanol

production facility.

Commercial bank in a $200 million syndicated senior credit facility for a leading

provider of fossil fuel products.

HGC Holdings, LLC, The Gas Company LLC and Macquarie Gas Holdings, LLC in a

$180 million syndicated financing for Macquarie’s acquisition of a Hawaiian gas

distribution company. The loans included both holding company and project

company level debt.

Project sponsor in a U.S. $200 million project financing of certain mining

operations in the Amazon Basin; coordinated complex debt and equity

participations from U.S., French, German, Japanese and Brazilian investors.

Project sponsor in a $155 million financing for acquisition of a gas-fired power

plant in Florida. The credit facility was structured as a project financing and

included an expansion facility.

Sea Launch Limited Partnership in numerous financings for its sea-based satellite

launch system.

Joint venture of two steel companies in a $200 million project financing for a direct

reduced iron facility in Convent, Louisiana, including the negotiation of the

financing documents and several key supply agreements.

Entergy Corporation in the acquisition financing of the 80 megawatt Top of Iowa

energy facility.

Iberdrola Renewables in the tax equity monetization financing of a national wind

farm portfolio.

Mosbacher Power Group in the development and financing of a 110 megawatt

power project in Israel.

Nations Energy in the acquisition and financing of a 340 megawatt power project

in Kladno, Czech Republic.

Overseas Private Investment Corporation in the financing of the purchase of

privatized oil and gas concessions in Pakistan.

Pipeline company in a $550,000,000 credit facility.

Sponsor in the negotiation of a syndicated loan financing package in support of a

bid for Centrais Geradoras do Sul Brasil S.A., a major Brazilian electric distribution

company.

Subordinated lender in a $100 million subordinated loan to a biomass–fired power

project.

Subordinated lender in a $125 million financing of ethanol facility located in

California.

TM Power Ventures LLC in the development and project financing of facilities in

Colombia, Cote d’Ivoire, Czech Republic, India and Madagascar.

Conventional and Renewable Energy

AE Investor, LLC in a 1000 megawatt gas-fired merchant generator, located in

Queens, New York. The representation included its $900 million initial investment,

construction financing and subsequent refinancing.

Alliant Energy Corporate Services, MidAmerican Energy Service, Xcel Energy

Services, Nebraska Public Power District, Omaha Public Power District, Corn Belt

Cooperative, and TRANSLink Transmission Company, LLC as FERC regulatory

counsel in connection with the formation of a for-profit independent transmission

company.

Hunt Oil Company in the development of an LNG facility in Peru, including the sale

of LNG.

Iberdrola Renewables (formerly PPM Energy, Inc.) in its acquisition of the Klamath

Cogeneration Facility. The project was purchased from the City of Klamath Falls,

Oregon.

Iberdrola Renewables (formerly PPM Energy, Inc.) in the sale of the West Valley

Project, a peaker facility located in Utah.

Credit Suisse Securities (USA) LLC in connection with the proposed $2.2 billion

acquisition of NorthWestern Corporation by Babcock and Brown.

Credit Suisse Securities (USA) LLC in connection with the oil sands joint venture

between EnCana and ConocoPhillips.

Private equity sponsor in the negotiation of a joint venture undertaking with

respect to a potential acquisition of a gas-fired power project in Washington state.

Joint venture in its bid (auction process) of a gas-fired combined cycle electric

generation facility in Massachusetts.

Private equity sponsor in its proposed purchase of a combined cycle gas fired

power plant in Nevada.

Private equity sponsor in the proposed acquisition of development rights with

respect to the construction of an underwater transmission line from a generating

station in northern New Jersey to New York City.

Private equity sponsor in the proposed acquisition of a gas-fired power plant in

New Mexico.

Marathon Oil Company in the development of an LNG facility and expansion of

methanol, natural gas liquids, and condensate facilities in Equatorial Guinea,

including sale of LNG.

Petronet LNG Ltd. in the development of two LNG receiving terminals in India.

AES Corp. in a $1.4 billion LNG facility in the Bahamas.

U.S.-based independent power producer in its negotiation of $1.6 billion EPC and

related contracts for electric power plants in Maryland.

U.S. independent power developer in the purchase of a Caribbean electric utility.

Acquiring company in its successful $2.75 billion acquisition of an 80 percent

interest in the largest independent power company in Asia.

Asia-Pacific infrastructure developer in a proposed purchase of inside-the-fence

power facilities at three pulp and paper facilities in Indonesia.

BASF Corporation in its acquisition of a petrochemical pipeline with two other

partners.

U.S. independent power developer in the development of a 600 megawatt

combined cycle power plant in Georgia.

U.S. utility in the sale of a nuclear power plant in Illinois.

U.S. utility in the sale of minority interests in a nuclear plant in Georgia.

U.S. utility holding company in the sale of an affiliate transmission company to

private equity investors.

U.S. Developer in the negotiation of joint-venture with major European financial

investor to support development of 1,000+ megawatt wind energy portfolio and

related wind turbine acquisitions.

CSFB Private Equity, Inc., AIG Highstar and American Ref-Fuel Company in the

$1.94 billion acquisition of American Ref-Fuel Holdings Corp. by Covanta Energy

Corporation.

Babcock & Brown/Bluewater Wind in the negotiation of the nation’s first offshore

wind power purchase agreement and related permitting and regulation support in

connection with a proposed 450 megawatt Atlantic ocean wind farm.

Private equity sponsor in its proposed purchase of an ownership interest in a

geothermal facility located in the Northwest.

Iberdrola Renewables in the acquisition and development of a pipeline of 2,100

megawatts of wind power projects in the Northeastern United States; development

activities related to such projects.

Mesa Power in policy representation with respect to the transmission aspects of

the Pickens Plan.

Iberdrola Renewables in the acquisition of 1500+ megawatts of wind energy

turbines.

Iberdrola Renewables in back-to-back PPA’s for the purchase and re-sale of up to

200 megawatt of energy and RECs to and from a wind energy generating facility

located in Illinois.

Iberdrola Renewables in the sale of 30 megawatts of energy and RECs from a wind

energy facility in New York to a utility in Massachusetts.

Solar CSP technology company with respect to DOE energy loan program.

U.S. Solar developer with respect to an RFP for a CSP prospect to supply power to

utilities in Colorado, Arizona and California.

U.S. wind power developer in the prospective purchase of a wind power project

located in the mid–Atlantic U.S.

WTE developer in the development of a waste-to-energy plant in Mexico.

Major United States wind energy developer in negotiation in REC sales agreement

in connection with projects in the mid-Atlantic and New England.

Major United States solar developer in connection with REC sales agreements in

Pennsylvania and New Jersey.

Iberdrola Renewables in the acquisition and development of 200 megawatt wind

energy generation facility located on Native American tribal land in South Dakota.

Energy investment company in the acquisition of 35% of the stock of U.S. based

fuel cell manufacturer.

Horizon Wind Energy Company in the acquisition of development rights for wind

power projects in Montana and Oregon.

Horizon Wind Energy Company (pursuant to a secondment) in the development

and construction of various wind power projects throughout the U.S.

Acquirer in the acquisition and development of an 80 megawatt wind energy

generation facility in Iowa.

Major international minerals corporation in the negotiation of agreements

pertaining to the acquisition and use of landfill gas as industrial fuel.

Major US airline with respect to the inclusion of aviation emissions in the European

Union Emissions Trading Scheme for greenhouse gases.

Major US retail corporation with respect to structuring and implementation of a

green energy initiative.

Private equity sponsor in the establishment of a portfolio company established to

develop, construct, operate and acquire facilities which collect, process and

transform certain waste streams into renewable energy.

Sponsor in the development and financing of a 40 megawatt run–of–the-river

hydroelectric project in Peru (CDM).

U.S. independent power developer in the development of geothermal power

project in Java and Sumatra.

U.S. independent power developer in the proposed sale of gas turbine and

hydroelectric generation assets located in New York State.

Carbon-Specific

Acquirer in a share-for-share offer for AIM-listed carbon project developer.

Clean energy investment vehicle in a methane capture project in eastern Europe.

Clean energy investment vehicle in a two-stage investment in US-based ERC

aggregator and market maker.

Manufacturer of all-natural plant growth enhancer on opportunities for carbon

credit generation in international and domestic voluntary carbon markets and

strategic legal and market analysis of such markets.

Developer in the development of a voluntary offsets program in the United Nations

Collaborative Programme on Reducing Emissions from Deforestation and Forest

Degradation in Developing Countries.

Orange County, North Carolina in a landfill gas-to-energy project with the

University of North Carolina, Chapel Hill. The project was designed to generate

voluntary carbon credits to be used by the University to satisfy a portion of the

University’s American College and University President's Climate Commitment.

Augusta-Richmond County, Georgia in the purchase of a landfill gas collection and

conversion system and regulatory issues associated with the operation of the

system.

Major international minerals corporation in the negotiation of agreements

pertaining to the acquisition and use of landfill gas as industrial fuel.

Major international paper company in the acquisition and use of landfill gas as

industrial fuel.

International clean energy fund in the formation and related matters for a U.S.

clean-energy fund designed to fund domestic projects to generate carbon credits,

and then trade any credits generated in the voluntary market.

Clean energy fund in drafting and negotiation with respect to the formation of and

the private placement memorandum and subscription agreement for a U.S. fund

taking positions in North American emission reduction credit markets.

Major international minerals corporation relating to opportunities for carbon credit

generation in international and domestic voluntary carbon markets.

Major international diversified chemical company relating to opportunities for

carbon credit generation in international and domestic voluntary carbon markets.

Clean energy investment vehicle in its participation in World Bank’s Umbrella

Carbon Facility.

Clean energy investment vehicle in its investment in 120 MW Vietnamese wind

farm (CDM).

Clean energy investment vehicle in its investment in Israeli clean energy developer

(CDM).

Clean energy investment vehicle in the formation of a joint venture with a Chinese

partner for clean energy investments (2.8M renminbi) (CDM).

Clean energy investment vehicle in the formation of a joint venture with a Chinese

partner for waste heat recovery projects (CDM).

Interstate compact organization in connection with the advice regarding large-

scale CCS demonstration project.

EEA Fund Management Ltd as its general counsel.

Landowner in the creation of first pore-space carbon storage property rights in the

United States (in the context of the largest real estate transaction since the

Louisiana Purchase).

Project developer in a $4B gasification plant with CO2-EOR.

Project developer in a 10,000 BPD CTL facility with CO2-EOR (CO2 offtake

agreement only).

Project developer in a $500K certified emission reduction project credit agreement,

Mexico (CDM).

Project developer in a coal mine methane project, Ukraine (CDM).

Project developer in an emission reduction purchase agreement, hydropower

project, Mexico (CDM).

Project developer in an emission reduction purchase agreement, LFG project,

South Africa (CDM).

Project developer in an emission reduction purchase agreement, CCGT project,

Jordan (CDM).

Trading Emissions plc in the development of 275 MW run-of-the-river hydropower

project in Peru (including EPC) (CDM).

U.S. investor in its investment management agreement for investment in CDM

CERs, renewable energy certificates or credits, emission reduction units and other

tradable commodities relating to environmental attributes.

U.S. and offshore investors in a highly structured investment in alternative

investment fund for purchase of certified emission reductions created by CDM

projects under the Kyoto protocol.

Various U.S. and European energy companies in the negotiation, drafting, and

placement of (1) ISDA, EEI, GISB/NAESB master agreements, EU carbon

emissions allowance trading agreements, and related collateral documentation in

support of energy forward, carbon trading and derivative transactions; (2) various

multimillion–dollar guarantees and letters of credit backing physically– and

financially–settled gas, electricity, and oil trades and associated derivative

transactions; (3) broker agreements covering NYMEX and other exchange–based

trading; and (4) advice on CFTC regulatory oversight and enforcement.

Largest brick manufacturer in North America in connection with the development,

acquisition and use of landfill gas as industrial fuel.

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CO2 clients include:

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� Bechtel Corporation � Black & Veatch � Burns and Rowe � Burns & McDonnell � Foster Wheeler Corporation � GE Power SystemsFluor Corporation � Kellogg Brown and Root

� Mitsubishi Power Systems � Mott MacDonald Group � Shaw Group/Stone & Webster � Washington Group International � Siemens-Westinghouse � Suzlon Wind Energy

For questions, please contact the following attorney:Bill Hughes | 404.881.7273 | bill.hughes@alston.com

BackgroundMost of the world’s large industrial, infrastructure and power projects are built using design-build or EPC (engineer-procure-construct) contracts. Because of our extensive experience with international construction and the EPC process, Alston & Bird is highly qualified to assist companies in negotiating or litigating international and EPC contracts.

Contract Forms and Pricing MethodsWe are well versed in all of the major design-build and EPC form agreements, including the FIDIC Silver Book, Orange Book, Red Book and White Book. We also draft and negotiate manuscript EPC and construction contracts for many of our clients. We regularly negotiate EPC and construction contracts using numerous different kinds of pricing, including lump sum, cost-plus, guaranteed maximum price (GMP), and target pricing, as well as hybrid methods utilizing various elements of each.

International Construction and EPC Contracting Services

International and EPC Contractors Representative ExperienceIn our negotiations, we have worked with some of the world’s largest and most sophisticated engineering firms and EPC contractors, such as:

� Representation of part owner in negotiating a $6 billion EPC contract for a nuclear power project in the United States.

� A $1.6 billion Alliance Agreement and EPC contract for power projects in the United States.

� EPC contracts for new construction or major additions to seven different coal, gas or dual-fuel electric power plants in the United States.

� EPC contracts for numerous industrial, process and manufacturing plants located across the United States, including California, Georgia, Indiana, Louisiana, New Jersey, North Carolina and Ohio.

� Design-build-own-operate-transfer (DBOOT) contracts for privatized municipal wastewater treatment facilities in Hawaii, California, Florida and Illinois.

Atlanta | Charlotte | Dallas | Los Angeles | New York | Research Triangle | Silicon Valley | Ventura County | Washington, D.C.

About Alston & BirdWith 900 attorneys, Alston & Bird is a leading national AmLaw 100 firm. The firm’s core practice areas are intellectual property, complex litigation, corporate and tax, with national industry focuses in real estate, health care, energy, financial services and public policy. The firm has built a reputation as one of the country’s best employers, appearing on FORTUNE magazine’s ranking of the “100 Best Companies to Work For” 10 years in a row, more often than any other law firm in the United States. The firm has offices in Atlanta, Charlotte, Dallas, Los Angeles, New York, Research Triangle, Silicon Valley, Ventura County and Washington, D.C.

� EPC contracts for solar energy projects located throughout the United States.

� An EPC contract for a chemical plant in Trinidad and Tobago.

� An EPC contract based on the FIDIC Silver Book for a power project in Peru.

� An EPC contract based on the FIDIC Orange Book for the electromechanical scope of a hydroelectric power project in South America.

� EPC contracts for additions and improvements to pulp and chemical plants across the United States.

� EPC contracts based on the FIDIC Silver Book for manufacturing facilities in the People’s Republic of China.

Litigation and ArbitrationWe are actively involved in the resolution of disputes arising out of EPC and international construction contracts. The same attorneys who negotiate the contracts also handle these disputes, such as:

ProjectsIn the past six years we have negotiated more than 20 EPC and construction contracts for energy and non-U.S. projects, including:

� Construction contracts based on the FIDIC Red Book for hydroelectric power in South America.

� EPC contract for solar energy project in South Africa. � Assisting U.S. contractor on an infrastructure project in

Dubai and a desalination project in Qatar. � Finance-design-build-own-operate-transfer (FDBOOT)

contracts for privatized state government office buildings in the United States.

� Wind turbine supply and installation contracts totaling over $3 billion.

� Procurement and construction contracts for wind energy projects located throughout the United States.

� Representation of one of Germany’s largest EPC contractors in ICC arbitration involving $35 million in claims on a chemical process plant in Trinidad and Tobago.

� Representation of Central American power company in ICC arbitration with a large multinational supplier of combustion turbine generators.

� Representation of a Fortune 500 independent power producer in litigating $40 million in claims on an EPC power plant project in the United States.

� Representation of Austrian EPC contractor in litigation involving an EPC municipal wastewater treatment plant in the United States.

� Representation of contractor in litigation involving the design-build construction of a municipal fluidized-bed incinerator in the United States.

ConclusionBecause we have extensive experience negotiating and litigating international construction and EPC contracts, we bring a unique and valuable perspective to the representation of our clients. We understand, when immersed in negotiations, how contract provisions are likely to be used in the event of a dispute. This enables us to provide seasoned advice to our clients so they can avoid contract language that is likely to lead to claims. At the same time, we are able to bring our experience and deep understanding of international construction and EPC contracts to bear, for our clients’ advantage, in disputes that arise on large infrastructure projects around the world.

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Planning Design/ Procurement Construction Operation

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LOW

MITIGATION

Planning Design/ Procurement Construction Operation

TIME

CO

ST

PREVENTION

AB

ILIT

Y T

O IN

FLU

EN

CE

CO

ST

HIGH

LOW

MITIGATION

Claims and Disputes on Power Projects

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Range of Financeable Contracts on Delivery System Risk Curve

Initial Contract Price

Assurances Against Price Increases

Highest

Highest

EPC Lump Sum

EPC Hybrid

EPC Target Price

Lowest

Lowest

Owner-Designed Lump Sum

Owner-Designed Unit Price

Owner-Designed Cost-Plus

Initial Contract Price

Assurances Against Price Increases

Highest

Highest

EPC Lump Sum

EPC Hybrid

EPC Target Price

Lowest

Lowest

Owner-Designed Lump Sum

Owner-Designed Unit Price

Owner-Designed Cost-Plus

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Target Price Contract

Contract Values as Defined by Agreement

and Change Orders

Warranty/LD Cost

Actual CostTarget Cost

Contingency

Target FeeContract Price

Target Price

Actual Amounts as Determined by Final

Accounting

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Proposer #3 Evaluate Proposals and select finalists

Finalist BSimultaneous negotiations with Finalists

Select Contractor

and Execute

EPC contract

Proposer #2

Proposer #1

Proposer #6

Proposer #5

Proposer #4

Finalist A

Finalist C

• Technical proposal (equipment & general arrangement drawings)

• Pricing proposal

• Preliminary schedule

• Clarifications & assumptions

• Proposed key personnel

• Proposed subcontractors

• Relevant experience

• Comments to EPC terms and conditions

• Final terms and conditions

• Key personnel

• Approved schedule

• Approved price

March April May June July Aug Sept

RFP with form EPC contract

Hypothetical Schedule for Parallel Negotiations

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Section 2.22.46.58.1

12.212.8

308Proposer #6

Section 1.92.16.3

11.412.6

351Proposer #5

Section 2.12.46.57.3

10.212.6

386Proposer #4

Section 1.43.66.5

452Proposer #3

Section 2.14.26.59.1

463Proposer #2

Section 2.13.8

487Proposer #1

Red Flag ProvisionsRisk Adjusted ScoreProposer

Risk Multiplier Evaluation System

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PAYMENT APPLICATIONS

ProgressMilestoneachieved

or partially achievedby The

Contractor

THE CONTRACTORSUBMITS REQUEST FOR

PAYMENT

Corresponding Incremental Payment Amount

+Target Fee (5% of payment)

+Applicable Safety, Schedule

and Quality incentives

MINIMUM EVIDENCE REQUIRED WITH REQUEST FOR PAYMENT

Documentary evidence of Milestone reached Corresponding Incremental Payment Amount The Owner entitled to deduct, set

off, or withhold, if any Tax identification number and other relevant

tax information of The Owner and The Contractor

Total amount claimed by The Contractor for payment

Partial lien waivers attached Calculations supporting percentage of

milestone achieved if Milestone only partially achieved

Within 15businessdays The

Owneridentifies any

missinginformation

and/orgrounds for withholding payment on

FORM PF-1

The Contractor may resubmit request for

payment

If cumulative total to date exceeds Cash

Curve, issue FORMPF-1 denying

payment

The Owner reviews

compliance with Cash Curve at Exhibit 9

PAYMENT APPLICATIONS

ProgressMilestoneachieved

or partially achievedby The

Contractor

THE CONTRACTORSUBMITS REQUEST FOR

PAYMENT

Corresponding Incremental Payment Amount

+Target Fee (5% of payment)

+Applicable Safety, Schedule

and Quality incentives

MINIMUM EVIDENCE REQUIRED WITH REQUEST FOR PAYMENT

Documentary evidence of Milestone reached Corresponding Incremental Payment Amount The Owner entitled to deduct, set

off, or withhold, if any Tax identification number and other relevant

tax information of The Owner and The Contractor

Total amount claimed by The Contractor for payment

Partial lien waivers attached Calculations supporting percentage of

milestone achieved if Milestone only partially achieved

Within 15businessdays The

Owneridentifies any

missinginformation

and/orgrounds for withholding payment on

FORM PF-1

The Contractor may resubmit request for

payment

If cumulative total to date exceeds Cash

Curve, issue FORMPF-1 denying

payment

The Owner reviews

compliance with Cash Curve at Exhibit 9

Within 10 days The Owner provides

payment of withheld amounts

No grounds for withholding payment

identified by The

GROUNDS FOR WITHHOLDING PAYMENT

1. Contractor has failed to file necessary Progress Reports required under Section 8.2.2.1. 2. Contractor has failed to provide the necessary partial lien waivers and releases in the form attached as Exhibit 16

to the Agreement. 3. Contractor has failed to maintain the insurance required by Section 25.1. 4. Owner has identified defective, incomplete, and/or non-conforming Work performed by Contractor or its

Subcontractors. 5. Contractor has failed to pay its Subcontractor(s). 6. Owner has reasonable evidence that a System will not be completed by the Guaranteed Substantial Completion

Date.7. Owner has incurred damages caused by the Contractor and/or its Subcontractor(s) for which Contractor has an

indemnity or other obligation under the Agreement. 8. Liens have been filed against a System, Facility, Site, or other property of Owner by Subcontractor(s), and

Contractor has failed to remove, discharge, or bond over said liens. 9. Continued safety violations by Contractor constitute a material breach of the Agreement. 10. Owner has performed the Work in lieu of the Contractor. 11. Owner is entitled to a setoff for the Contractor’s failure to make payments to the Owner.12. Contractor has otherwise materially breached its obligations under the Agreement.

Relevant forms: FORM PF-1

The Owner submits FORM PF-1

identifying grounds cured by Contractor

The Contractor submits evidence of cure or completion

Relevant contract provisions: 12.2.2 – 12.2.6, 12.10.3.3, Exhibit 9

The Owner makes

paymentwithin 30 days

of original application but

withholds some funds

No grounds for withholding payment

identified by The Owner

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CHANGE ORDER NOTICE ISSUED BY THE CONTRACTOR

Issue Form CO-2;The Contractor may

resubmit Change Order Notice

The Contractor requests change in compensation or

schedule

Was the Contractor’s request submitted within 15 business days after

the Contractor knew about the first occurrence or

circumstance resulting in the possibility of this

Change?

Does the Contractor’srequest show: - factors necessitatingChange?- likely impact on Contract Price?

NO

Relevant Contract Provisions: 19.2.1 and 19.14

YES YES

NO

Review FORM CO-6to determine if

Change is mandatory This is a

mandatoryChange

Beforeissuing

Form CO-4, if

Changevalue over $1 million contactAttorney

YES

This is a discretionary

Change

NO

ApproveChange by

issuingForm CO-4

DenyChange by

issuingForm CO-5

Relevant Forms: CO-2, CO-4, CO-5, and CO-6

- likely impact on Project Schedule?

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CHANGE ORDER REQUEST ISSUED BY THE OWNER

The Owner submits FormCO-1 to The

TheContractor

mustrespond in 5

business

The Owner reviews the Contractor’s

analysis

The Owner decides to approve Change and issues Form

CO-4; consultattorney before

issuing if impact on Contract Price is

more than $1 million

THE CONTRACTOR’S RESPONSE

Options listed for change requested

Likely impact on Contract price indicated

Likely impact on Project Schedule indicated

TheContractor’sanalysis not

complete

Issue FormCO-2

requestingmore

information

Issue FormCO-2 and evaluate

TheContractor’s

analysiscomplete

THE OWNER’S REQUEST INCLUDES:

Description of addition, deletion, suspension, or other change requested

Sufficient detail for the Contractor to create proposal

TheContractorimplements

No change implemented

The Owner decides not to approve Change and

withdraws Change Order Request with

Form CO-3

The Owner may withdraw Change Order Request at any time with Form CO-3

Relevant Forms: CO-1, CO-2, CO-3, and CO-4

Relevant Contract Provisions: 1.20, 19.2.2

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OWNER’S RESPONSE TO CONTRACTOR’S CHANGE ORDER NOTICE/ OWNER’S SUPPLEMENT TO OWNER’S CHANGE ORDER REQUEST

Sent by Federal Express Overnight Delivery Service

TO:

FROM:

RE:

DATE:

Owner received Contractor’s Change Order Notice No. ____ dated ___________ ____, 20____.

Pursuant to Section 19.2.1 of the Agreement, you are required to submit to Owner a Change Order Notice within fifteen (15) business days of any knowledge of the first occurrence or circumstance resulting in the possibility of a Change. Your Change Order Notice referenced herein WAS / WAS NOT received within the required fifteen (15) business days.

Pursuant to Section 19.14 of the Agreement, you are required to submit to Owner an analysis of the impact of the Change on the Cost of the Project within five (5) business days of submitting a Change Order Notice. An impact analysis WAS / WAS NOT received within the required five (5) business days.

Pursuant to Section 19.2.1 of the Agreement, your Change Order Notice should contain the factors necessitating the possibility of a Change, the impact the Change is likely to have on the Contract Price based on the time and materials rate charges in effect at the time of the Change, and the impact which the Change is likely to have on Contractor’s compliance with the Approved Project Schedule. This information WAS / WAS NOT received to the satisfaction of Owner.

Owner submitted a Change Order Request dated ___________ ____, 20____.

Pursuant to Section 19.14 of the Agreement, you are required to submit to Owner an analysis of the impact of the Change on the Cost of the Project within ten (10) business days of receipt of a Change Order Request. An impact analysis WAS / WAS NOT received within the required ten (10) business days.

Pursuant to Section 1.93 of the Agreement, Owner is entitled to review on an Open Book basis all books, records, schedules, logs and electronic communications and data related to the Work, including Changes, to substantiate and document the design, pricing, progress and sequencing of the Work and other expenses incurred or expected to be incurred in connection with performing the Work. Consistent with Section 1.93 of the Agreement, Owner requests the following additional documentation in order to evaluate this proposed Change:(attach additional documentation if necessary)

This Owner’s Response to Contractor’s Change Order Notice/Owner’s Supplement to Owner’s Change Order Request signed by Owner’s duly authorized representative.

Owner

Name

Title

Date of Signing

LEGAL02/31184733v1

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OWNER’S NOTICE OF WITHHOLDING PAYMENT Sent by Federal Express Overnight Delivery Service

within fifteen days after receipt of the Milestone Payment Application referred to below

TO:

FROM:

RE:

DATE:

Owner has received Contractor’s Milestone Progress Payment Application No. ___________

dated ___________ ____, 20____ for payment of $____________________ for work related to

achievement of the following Milestone:

Pursuant to Section 12.2.6 of the Agreement, Owner is entitled to review each request for payment and make any necessary exceptions within fifteen (15) days.

After review of the Milestone Payment Application referenced herein, Owner has determined that payment should be withheld for the following reason(s): (indicate all that apply)

Contractor has failed to file necessary Progress Reports required under Section 8.2.2.1.

Contractor has failed to maintain the insurance required by Section 25.1.

Contractor has failed to provide the necessary partial lien waivers and releases in the form attached as Exhibit 16 to the Agreement.

Owner has identified defective, incomplete, and/or non-conforming Work performed by Contractor or its Subcontractors, as summarized below: (attach additional documentation if necessary)

Contractor has failed to pay its Subcontractor(s) as summarized below: (attach additional documentation if necessary)

Owner has reasonable evidence that a System will not be completed by the Guaranteed Substantial Completion Date as summarized below: (attach additional documentation if necessary)

Owner has incurred damages caused by the Contractor and/or its Subcontractor(s) for which Contractor has an indemnity or other obligation under the Agreement, as summarized: (attach additional documentation if necessary)

LEGAL02/31184726v1

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Liens have been filed against a System, Facility, Site, or other property of Owner by Subcontractor(s) as summarized below, and Contractor has failed to remove, discharge, or bond over said liens: (attach additional documentation if necessary)

Continued safety violations by Contractor, as summarized below, constitute a material breach of the Agreement: (attach additional documentation if necessary)

Owner has performed the Work in lieu of the Contractor, as summarized below: (attachadditional documentation if necessary)

Owner is entitled to a setoff for the Contractor’s failure to make payments to the Owner: as summarized below: (attach additional documentation if necessary)

Contractor has otherwise materially breached its obligations under the Agreement as summarized below: (attach additional documentation if necessary)

Pursuant to Section 12.10.3 of the Agreement, Owner is entitled to withhold all or a portion of the payment requested by Contractor to such extent as may be reasonably necessary to protect Owner from loss. Owner has determined that withholding of the following amount is reasonably

- 2 - LEGAL02/31184726v1

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necessary to protect Owner from loss based on the events, circumstances or conditions described above:

TOTAL AMOUNT WITHHELD: $______________________

Pursuant to Section 12.10.3.3 of the Agreement, Owner requests that Contractor provide to Owner satisfactory evidence that the cause(s) noted above have been remedied.

This Owner’s Notice of Withholding Payment is signed by Owner’s duly authorized representative.

Owner

Name

Title

Date of Signing

- 3 - LEGAL02/31184726v1

EPC Quarterly Reconciliation

Instructions: Use the Quarterly Reconciliation Worksheet to calculate the values to be inserted inthe blanks provided below:

Compare the Reconcilable Cost to the Quarterly Milestone Payment Cost:

Reconcilable Cost $_____________________

(insert from #7on worksheet)

Quarterly Milestone Payment Cost $______________________(insert from #10

on worksheet)

(i) If the Milestone Quarterly Payment Cost (# 10) exceeds the Reconcilable Cost (# 7), then thedifference is an Excess Payment. Any Excess Payment should be deducted from the nextpayment request submitted by the Contractor.

(ii) If the Reconcilable Cost (# 7) exceeds the Quarterly Milestone Payment Cost (# 10), thenthe difference is a Payable Cost. Any Payable Cost should be added to the next paymentrequest submitted by the Contractor.

Amount of Excess Payment $ __________________

or Amount of Payable Cost $ __________________

Compare the Reconcilable Cost to the Quarterly Benchmark Cost:

Reconcilable Cost $ __________________

(insert from #7on worksheet)

Quarterly Milestone Payment Cost $ __________________(insert from #12

on worksheet)

If the Reconcilable Cost (#7) is greater than the Quarterly Benchmark Cost (#12), then:

(i) The Contractor must submit a supplemental Contingency Draw Request to support thedifference between the Reconcilable Cost (#7) and the Quarterly Benchmark Cost (#12); and

(ii) The difference between the Quarterly Milestone Payment Cost (#10) and the Quarterly BenchmarkCost (#12) should be included by the Contractor in a subsequent payment request submitted to theOwner.

If the Quarterly Benchmark Cost (#12) is greater than the Reconcilable Cost (#7), then no adjustment isrequired.

1

2

Quarterly Reconciliation Worksheet

Instructions: Items 1-12 of this Reconciliation Worksheet are to be used in the EPC QuarterlyReconciliation. Items 13-15 involve Incomplete Milestones and will be necessary to completequarterly reconciliations in future quarters.

Based on the Approved Milestone Schedule: (a) List the Scheduled Milestones which were to be completedduring the Calendar Quarter or which were re-sequenced by Contractor from prior or subsequent calendarquarters and (b) list the Incremental Payment Amounts associated with each Scheduled Milestone. Total theIncremental Payment Amounts.

MilestoneNumber

DescriptionIncremental PaymentAmount

$

$

$

Total Incremental Payment Amounts for Scheduled Milestones: $

List the Incremental Payment Amounts of the Scheduled Milestones listed in #1 above, that wereactually completed during the Calendar Quarter. Total the Incremental Payment Amounts for thesecompleted Milestones.

MilestoneNumber

DescriptionIncremental PaymentAmount

$

$

$

Total Incremental Payment Amounts for Completed Milestones: $

1

2

Calculate the "Quarterly Reconciliation Ratio" by dividing the amount identified in #2 by the amountidentified in #1 and convert the quotient to a percentage.

+ =amount from #2 amount from #1

The "Quarterly Reconciliation Ratio": %

Determine the "Quarterly Actual Cost" as follows:

(i) Obtain the Contractor's records to verify the amount of all costs incurred by the Contractor or paidby the Contractor to third parties.

(ii) Determine whether any of these costs were not "necessary" or were not incurred in "properperformance of the Work" as required by Sections 10.2.2, 10.2.3, 10.2.4 and 10.2.5. Any coststhat were not both "necessary" and "proper" are Disputed Costs.

(iii) Subtract any Disputed Costs from the total cost as follows:

=total cost Disputed Cost

The "Quarterly Actual Cost": $

List the Incomplete Milestones from previous quarters above that were completed in the Calendar Quarter.List the amount of Carryover Cost allocated to each such Incomplete Milestone (see Incomplete Milestones andallocated Carryover Costs identified in #15 of Reconciliation Worksheets for previous Calendar Quarters).

MilestoneNumber

DescriptionAllocated Carryover

Amount

$

$

$

$

Determine the “Carryover Cost.”

(i) Total the Allocated Carryover Amounts.

Total "Carryover Cost" from previous Calendar Quarters: $

3

4

5

6

Calculate the "Reconcilable Cost" using the following formula:

"Quarterly Actual Cost" "Quarterly Reconciliation Ratio" Total Carryover Cost fromprevious Calendar Quarters

•

amount from #4 amount from #3 amount from #6

The "Reconcilable Cost": $

List the Milestone Progress Payments made by the Owner to the Contractor during the Calendar Quarter.Total the amounts.

Date Paid Description Payment Amount

$

$

$

Total Milestone Progress Payments: $

List the Target Fee and Safety, Quality and Schedule Incentives contained in Milestone Progress Paymentslisted in #8. Total the amounts.

Date Paid DescriptionAmount of Feesand Incentives

$

$

$

Total Target Fee and Safety, Quality and Schedule Incentives: $

x( ) =+

7

8

9

Calculate the "Quarterly Milestone Payment Cost" as follows:

"Milestone Progress Payments" "Total Target Fee and Safety, Quality and Schedule Incentives"

amount from #8 amount from #9

The "Quarterly Milestone Payment Cost" $

List any "Approved Contingency Draw Requests" approved by the Owner for the Calendar Quarter and total.

Date of Approvalby Owner

DescriptionAmount of ApprovedContingency Request

$

$

$

Total "Approved Contingency Draw Requests": $

Calculate the "Quarterly Benchmark Cost" as follows:

"Quarterly Milestone Payment Cost" "Quarterly Contingency Allowance" "Approved Contingency Draw Requests"

amount from #10 amount from #11

The "Quarterly Benchmark Cost" $________________________

=

+ $1,500,000.00 +

12

10

11

List the Incremental Payment Amounts for Scheduled Milestones listed in #1 above, that were not completedduring the Calendar Quarter. These are "Incomplete Milestones."

Date to beCompleted

Description Incremental PaymentAmount

$

$

$

Total Incremental Payment Amounts for Incomplete Milestones $______________________

Calculate "Carryover Cost" using the following formula:

"Quarterly Reconciliation Ratio" "Quarterly Actual Cost"

(1 -

Amount from #3 amount from #4

The "Carryover Cost": $________________________

Allocate and assign the carryover Costs to the Incomplete Milestones as follows:

(i) If there is one Incomplete Milestone, then the entire Carryover Cost is allocated to that IncompleteMilestone

MilestoneNumber

Description Allocated CarryoverCost

$

(ii) If there are more than one Incomplete Milestone, then the Carryover Cost is assigned and allocated tothe Incomplete Milestone in amounts proportional to the Incremental Payment Amounts associatedwith each Incomplete Milestone.

For each Incomplete Milestone perform the following calculation:

13

14

x =

Incremental Payment Amount Carryover Cost (amount from #14) =

Total from #13

15

MilestoneNumber

Description Allocated CarryoverCost

$

$

$

$

$

$

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Case 4: Reconcilable Cost > Quarterly Benchmark Cost

Required Variables:Milestone Progress Payments (12.2.2) =(Incremental Payment Amounts (12.2.1)) +(Target Fee  + Applicable Safety, Schedule and Quality Incentives)

Quarterly Reconciliation Ratio (12.3.4) =(Sum of Incremental Payment Amounts completed during the quarter) ÷(Total of all Incremental Payment Amounts scheduled for the quarter)

Reconcilable Cost (12.3.6) = (Quarterly Actual Cost (12.3.5) multiplied by the Quarterly Reconciliation Ratio) +(Carryover Cost (12.3.11) for Incomplete Milestones of prior quarters completed during the current quarter)

Quarterly Milestone Payment Cost (12.3.7) =(Milestone Progress Payments) –(Target Fee) –(Applicable Safety, Schedule and Quality Incentives)

Quarterly Benchmark Cost (12.3.8) =(Quarterly Milestone Payment Cost) +(Quarterly Contingency Allowance (12.6.1)) +(Approved Contingency Draw Request (12.6.2))

Quarterly Milestone Payment Cost

Quarterly Milestone Payment Cost

Quarterly Contingency Allowance

Quarterly Contingency Allowance

Total of Approved Contingency Draw 

Requests

Total of Approved Contingency Draw 

Requests

Quarterly Benchmark Cost

Reconcilable Cost

12.3.9.3The Reconcilable Cost is greater than theQuarterly Benchmark Cost.  In this case, the “Payable Cost” is limited to the difference between the Quarterly Benchmark Cost and the Quarterly Milestone Payment Cost(i.e., the sum of the Approved Contingency Draw Requests and the Quarterly Contingency Allowance.)

The amount of Reconcilable Cost that exceeds the Quarterly Benchmark Cost is not PayableCost.  the Contractor may submit a supplemental Contingency Draw Request which, if granted by the Owner, could move the Quarterly Benchmark Cost up to a higher level that would allow more of the Reconcilable Cost to qualify asPayable Cost.

To the extent that Reconcilable Cost does not qualify as Payable Cost (i.e., the amount abovethe Quarterly Benchmark Cost), the Contractor must carry this cost until the time of the final accounting and Target Final Payment (12.11.2).

William H. Hughes, Jr.

Alston & Bird LLPOne Atlantic Center1201 West Peachtree Street

Atlanta, GA 30309-3424404-881-7273bill.hughes@alston.com

ServicesConstruction

LitigationEnergy & Project FinanceADR/Arbitration

Climate Change & CarbonManagement

Energy, Environmental & Land

Development

Education

University of Virginia(J.D., 1983)

The University of North Carolinaat Chapel Hill(B.A., 1980)

Admitted to PracticeGeorgia

William H. Hughes, Jr.

Bill Hughes is recognized for his “birth to earth” construction law practice

that includes drafting and negotiating design and construction agreements

before construction begins; counseling project participants as construction

proceeds; and mediating, arbitrating, and litigating disputes after

construction is complete. Mr. Hughes’ practice is international in scope,

and has included projects throughout the United States, the Caribbean,

Central and South America, Asia and Europe.

Mr. Hughes is a founding partner of Alston & Bird’s Construction and

Government Contracts Group. With over 20 years of experience in the

field, he is a perennial member of every major published list of America’s

leading construction attorneys, including The Best Lawyers in America;

Chambers USA: America’s Leading Lawyers for Business and Super

Lawyers magazine. Mr. Hughes has been described by Chambers as "an

exceptionally straight-up guy" who is “extremely bright,” "an expert in

representing energy companies," "extraordinarily comprehensive in

negotiating contracts" and "does a marvelous job of navigating the

construction maze."

On the transactional side of his practice, Mr. Hughes works with

companies in the energy sector to structure, negotiate and draft the

complex multi-party agreements needed for large-scale coal, gas, nuclear

and hydroelectric power projects. Since 2000, Mr. Hughes has negotiated

agreements for over $3.5 billion in construction work.

On the adversarial side of his practice, Mr. Hughes successfully litigates,

mediates and arbitrates construction disputes involving numerous parties

and multi million-dollar claims. He tries construction cases before

arbitrators, judges and juries, and has served as lead attorney in more

than a dozen precedent-setting appellate court cases involving

construction delays, liquidated damages, surety bonds, arbitration

agreements, lien rights, exclusive warranties, tortious interference, rights

of first refusal, claims for attorney fees and bid protests. He obtained, on

behalf of an energy client, the fourth-largest arbitration award ever

confirmed by the Georgia Court of Appeals. In the past six years, Mr.

Hughes has litigated or arbitrated over $150 million in claims.

Mr. Hughes is a frequent author and speaker on construction topics. He

has served as Chair of the Construction Law Section of the Atlanta Bar

Association, as a member of the American Bar Association’s Forum on the

Construction Industry, and on the drafting committee for the AOD 2000

form construction contract documents. He is a regular speaker at the

national Power-Gen and Coal-Gen conferences. He was asked to assist in

drafting Georgia’s public works procurement statute, and has twice been

awarded the Georgia Supreme Court’s “Amicus Curiae” award for his

outstanding contributions to the legal profession.

Mr. Hughes is admitted to practice before the United States Supreme

Court, as well as the state courts of Georgia and numerous federal trial

and appellate courts across the United States.

Representative Experience

Represented U.S. - based independent power producer in

negotiation of $1.6 billion engineer/procure/construct (EPC) and

related contracts for coal-fired electric power plants in Maryland.

Represented London-based owner in negotiation of multiple EPC

and other contracts for $400 million tunneling and hydroelectric

power project in the Peruvian Andes.

Represented U.S. energy company in multi-jurisdictional litigation

involving $40 million in delay and defect claims on EPC electric

power plant project in Massachusetts.

Represented Austrian company in negotiation of EPC and

design/build/own/operate/transfer (DBOOT) contracts and related

agreements for privatized waste water treatment facilities in

California, Florida, Hawaii, and Illinois.

Represented a group of electrical cooperatives in parallel

negotiations of EPC contracts for three combined-cycle electric

power plants.

Represented international hospitality company in negotiation of

construction contract for $500 million hotel/residential/retail

project in Florida.

Represented leading U.S. research university in seven-party multi-

jurisdictional litigation involving $20 million in design and

construction defects and related claims.

R. Thomas AmisAlston & Bird LLP

The Atlantic Building950 F Street, NWWashington, DC 20004-1404

202-756-3480tom.amis@alston.com

ServicesCorporate & FinanceEnergy, Environmental & Land

DevelopmentGlobal Finance and Debt ProductsCross-Border Matters

Energy & Project FinanceEnergy & SustainabilityClimate Change & Carbon

ManagementRenewable and Alternative Energy

EducationINSEAD, Fontainebleau(M.B.A., 1983)

Columbia University(J.D., 1982)

The London School of Economics(M.S., 1979)

Yale University(B.A., 1978)

Admitted to PracticeDistrict of Columbia

GeorgiaNew York

R. Thomas Amis

Tom Amis is a partner in Alston & Bird’s Washington office where he co-

heads the firm’s Renewable Energy Group. He has developed and financed

projects in a number of industry sectors over the course of his career,

with an emphasis on electric power projects. For the past six years, his

practice has focused on the renewable energy sector.

Mr. Amis leads an integrated renewable energy practice, incorporating

expertise in project development and finance, renewable energy policy,

carbon management and renewable energy technology. This synergistic

approach positions the group to add significant value to renewable energy

transactions.

Acting for both developers and lenders, he has negotiated joint

development agreements; joint venture, partnership, and other ownership

documentation; turbine supply contacts; balance of plant contracts, REC

sales agreements; transmission and interconnection agreements;

operating agreements; financing documents; and land use agreements.

He also is highly experienced in developing projects structured around

CERs generated pursuant to the Kyoto protocol.

Mr. Amis received his J.D., with honors, from Columbia Law School in

1982. He received his M.B.A., also with honors, from INSEAD in

Fontainebleau, France, in 1983. Mr. Amis received his M.S. from The

London School of Economics and Political Science in 1979, and a B.A.,

magna cum laude, from Yale University in 1978. He is listed in The Best

Lawyers in America, 2007 and serves as adjunct professor of project

finance and renewable energy at the McDonough School of Business at

Georgetown University. He lectures widely on topics relevant to the

renewable energy industry.

Representative Experience

Lead counsel in negotiating a series of innovative utility scale solar

projects on commercial warehouses.

Lead counsel in negotiation of $600 million frame turbine purchase

agreement on behalf of a major United States wind energy

developer.

Lead counsel in acquisition of leading eastern United States wind

energy development company.

Lead development counsel in the financing and development of

one of the largest run-of-river hydro projects developed to date

(incorporating Kyoto credits).

Lead counsel in development and financing of coal bed methane

project (incorporating Kyoto credits).

Finance counsel acting on behalf of lenders in connection with

major destination ethanol facility.

Finance counsel acting on behalf of lenders to a major New Jersey

biodiesel facility.

Lead counsel in negotiation of power purchase agreement for 450

MW Atlantic Ocean wind farm.

Britton T. RichardsonAlston & Bird LLP

Chase Tower2200 Ross AvenueDallas, Texas 75201

214-922-3417britt.richardson@alston.com

ServicesTechnologyCorporate & Finance

Energy & Project FinanceMergers & AcquisitionsPrivate Equity

Sourcing & Complex ProcurementEnergy & SustainabilityClimate Change & Carbon

ManagementEnergy, Environmental & Land

Development

EducationUniversity of Kentucky

(J.D., 2001)

Brigham Young University

(B.A., 1997)

Admitted to Practice

GeorgiaTexas

Britton T. Richardson

Britton Richardson is a partner in Alston & Bird’s Energy Infrastructure,

Climate and Technology Group. Mr. Richardson concentrates his practice

on the energy sector and has significant experience representing and

advising clients on complex transactions both in the U.S. and abroad.

Britton has extensive experience structuring and negotiating sophisticated

strategic alliances, targeted acquisitions, joint ventures, project finance,

infrastructure development transactions and engineering, procurement

and construction contracts.

Britton received his J.D. degree, magna cum laude, in 2001 from the

University of Kentucky College of Law where he was a member of the

editorial board of the Kentucky Law Journal, chair of the honor council and

a member of the Order of the Coif. Mr. Richardson received his B.A.

degree in 1997 from Brigham Young University.

Representative Experience

Negotiated engineering, procurement and construction contract on

behalf of project developer in connection with the development of

a 225 megawatt hydropower project in South America.

Negotiated engineering, procurement and construction contract on

behalf of the largest brick manufacturer in North America in

connection with the development of its manufacturing facility in

the Caribbean.

Counsel to Fortune 50 global transportation and logistics company

in connection with over fifty transactions in the United States, Asia

and Europe.

Counsel to leading London-based carbon and renewable energy

investment company.

Brian A. Betancourt

Alston & Bird LLP90 Park AvenueNew York, NY 10016-1387

212-210-9402brian.betancourt@alston.com

ServicesFinancial Services & ProductsEnergy, Environmental & Land

DevelopmentEnergy & Project Finance

EducationNew York Law School(J.D., 1988)

University of Pennsylvania(B.A., 1985)

Admitted to PracticeNew York

Brian A. Betancourt

Mr. Betancourt’s principal areas of practice include energy and

infrastructure project development and financing as well as asset

acquisitions and divestitures in energy and infrastructure facilities. He

routinely represents equity investors, public and private companies,

project developers and banks in development projects and financings. He

has recently represented clients in renewable energy transactions,

including waste-to-energy, biofuel, solar and ethanol projects. He has

also been involved in numerous coal and gas-fired projects over the

course of his career. Such representation has included assisting clients in

the negotiation of development documents in a broad range of electric

power projects.

In addition, Mr. Betancourt regularly represents banks in connection with

liquidity and credit support facilities and loan transactions. Such

transactions are focused on not-for-profit entities.

Mr. Betancourt received his J.D. from New York Law School in 1988 and

his B.A. from the University of Pennsylvania in 1985.

Todd S. McClelland

Alston & Bird LLP950 F Street, NWWashington, DC 20004-1404

202-756-3418todd.mcclelland@alston.com

ServicesEnergy & Project FinanceSourcing & Complex Procurement

Intellectual PropertyIP & Technology TransactionsPatents

Mechanical PatentsTechnologyEnergy & Sustainability

CleanTechEnergy, Environmental & Land

Development

EducationFlorida State University

(J.D., 1998)

Georgia Institute of Technology

(B.ME, 1994)

Admitted to Practice

U.S. Patent and Trademark OfficeGeorgiaDistrict of Columbia (Pending)

Todd S. McClelland

Todd McClelland specializes in strategic projects that include significant

technology, energy infrastructure, and outsourcing components. He has

experience with power plant construction transactions, IT systems

procurement and infrastructure, IT and business process outsourcing, and

energy policy.

Unlike most lawyers, Todd has an engineer’s understanding of the

technologies and processes used to construct power plants. Todd’s

engineering background focused on power plant systems and design.

Within the last few years, Todd has been involved in the negotiation and

administration of EPC contracts valued at over $1B for the retrofit of

multiple coal plants.

Todd is featured in Chambers USA: America's Leading Lawyers for

Business, and is a frequent speaker at professional seminars and author of

articles on such topics as emerging energy technologies, critical

infrastructure protection, and IP protection strategies. Todd received his

J.D. in 1998 from Florida State University where he was a member of the

Florida State University Law Review, and was the executive editor of

Florida State’s Journal of Land Use and Environmental Law. He received a

B.S. in Mechanical Engineering, with high honors, in 1994 from the

Georgia Institute of Technology (Georgia Tech). Prior to attending law

school, Todd worked as an engineer for Factory Automation Systems in

Atlanta, Georgia, where he designed software and hardware automation

systems for companies such as Coca-Cola and the Ford Motor Company.

Publications

“Open Source Basics and a Snapshot of the SCO Litigation,”

Electronic Banking Law and Commerce Report, 2004.

"Open Source Subject to Challenge,” Charlotte Business Journal,

2004.

Geir VollsaeterAlston & Bird LLP

The Atlantic Building950 F Street, NWWashington, DC 20004-1404

202-756-3038geir.vollsaeter@alston.com

ServicesLitigationEnvironmental & Land

DevelopmentClimate Change & Carbon

Management

EducationCalifornia State University,

Sacramento(B.A., 1997)

Geir Vollsaeter

Geir Vollsæter is a policy advisor in Alston & Bird’s Environmental and

Land Development Group. Geir is one of the world’s top experts in energy

and climate related issues, and offers unique non-legal carbon consulting

capabilities, and can function within a team of lawyers offering overall

legal counseling and strategy on energy and carbon issues.

Before joining Alston & Bird, Geir served as the general manager of CO2

at Shell International, where he was responsible for the development of

CO2 demonstration projects involving carbon capture and storage (CCS)

from power plants , oil and gas installations. At Shell, Geir also held

positions as a manager for regulatory affairs and as a commercial advisor

for gas and power. Prior to Shell, Geir worked in the waste-to-energy

industry with business development and regulatory affairs. Geir has

significant experience power, oil and gas contracts.

Among his many successes was the development and management of the

Halten Project, a 860 MW CCGT project with carbon capture and storage

in Norway. Geir also had a significant role in the development of the

Mongstad Refinery combined heat and power project as well as the CCS

Test Center in Norway, the Zerogen IGCC Project in Australia, the Zero

Emission Technology Platform in Europe, the development of the floating

offshore windmill concept SWAY, and several other gas- and coal-based

CCS projects.

Over the years, Geir has served in many government and industry

commissions to develop strategies and white papers for research,

development, deployment and commercialization of technologies within

the energy sector. Geir has held several board positions, most recently as

chairman of Polytec, and is currently a board member of the SWAY

Corporation and Carbon Negative.

Geir works with Alston & Bird’s Climate Change and Carbon Management

practice, which offers unique experience in the development and

implementation of the full range of greenhouse gas risk management and

monetization strategies. The group represents both existing energy

companies as well as new enterprises in a number of carbon-related

services, including project development, carbon finance and trading,

legislative and regulatory advocacy, risk consultation and litigation.

Geir received a B.A. in 1997 in government and continued with advanced

studies in international affairs until 1999 at California State University,

Sacramento. He undertook research for a master’s thesis at Oxford

Brookes University in 1998.

Representative Experience

Developed the Halten Project, the world’s first large-scale

combined cycle gas power carbon capture and storage project in

Norway.

Managed Shell’s participation in the Zerogen project, a coal

gasification and carbon capture and storage project – Queensland,

Australia.

Developed waste-to-energy facilities.

Worked on: Coal and gas to liquids, oil shale and sand,

renewables and hydrogen.

Involved in the regulatory and political landscape for CO2

management, exploration, production and energy use.

Stephanie Smith

Alston & Bird LLPThe Atlantic Building950 F Street, NW

Washington, DC 20004-1404202-756-3487stephanie.smith@alston.com

ServicesEnergy & Project Finance

Mergers & AcquisitionsEnergy & SustainabilityClimate Change & Carbon

ManagementRenewable and Alternative EnergyEnergy, Environmental & Land

Development

Education

Southern Methodist University(J.D., 2002)

Texas Tech University(B.S., 1999)

Admitted to PracticeDistrict of ColumbiaTexas

Stephanie Smith

Stephanie Smith is an associate in the Renewable Energy Group in

Washington, D.C. She concentrates her practice on development of wind,

solar and other renewable energy projects, project finance (including tax

equity financing for wind and solar clients), and international business

transactions and investments including projects structured around CERs

generated pursuant to the Kyoto protocol.

Stephanie received her J.D., cum laude, in 2002 from Southern Methodist

University School of Law where she was the editor of the Corporate

Counsel Symposium and a member of SMU Law Review. She received her

B.S., magna cum laude, in financial planning from Texas Tech University

in 1999. Ms. Smith is an active community volunteer at the National

Museum of Women in the Arts.

Representative Experience

Counsel to a Canadian textile company for its construction of a

coal plant in Honduras and several biomass facilities in South

America.

Counsel to a U.S. clean coal company for the construction of a

clean coal facility in Ohio and the acquisition of coal feedstock.

Counsel to a U.S. power provider for the construction of a biomass

facility in Colorado.

Counsel to several large wind and solar energy developers in the

United States in all aspects of the development of their projects.

Kipp A. CoddingtonAlston & Bird LLP

The Atlantic Building950 F Street, NWWashington, DC 20004-1404

202-756-3408kipp.coddington@alston.com

ServicesCorporate & FinanceEnergy, Environmental & Land

DevelopmentEnergy & Project FinanceEnvironmental

Energy & SustainabilityClimate Change & Carbon

Management

Renewable and Alternative EnergyHazmat Transportation

EducationGeorgetown University(J.D., 1993)

Purdue University(B.S.Ch.E., 1986)

Admitted to PracticeDistrict of Columbia

Virginia

Kipp A. Coddington

Kipp Coddington is a partner in the Energy Infrastructure, Climate Change

and Technology Group. He represents clients in climate change

transactions and provides advice under various carbon dioxide regulatory

schemes in the United States and abroad. He is experienced in the

negotiation of Emission Reduction Purchase Agreements and leads deal

teams on numerous transactions under the Kyoto Protocol’s Clean

Development Mechanism.

Mr. Coddington represents project developers in various major

infrastructure projects involving carbon management (typically the

geologic storage of carbon dioxide), such as coal-to-liquids. He is

frequently asked to advise on issues related to carbon capture and storage

both in the United States and abroad.

He is counsel to the North American Carbon Capture & Storage

Association.

Mr. Coddington is a frequent commentator on climate change and air

quality issues. He is also a frequent speaker at the annual Carbon Flood

Conferences/Carbon Management Workshops in Midland, Texas. In April

2006, he taught a continuing education class on carbon management for

the American Association of Petroleum Geologists. He has testified before

the Metropolitan Washington Air Quality Committee (MWAQC) and

Washington Metropolitan Area Transit Authority on regional air quality

issues, as well as before the legislature and governor’s staff of Montana on

the issue of carbon dioxide capture and sequestration. In April of 2007,

Mr. Coddington also testified before the U.S. Senate Committee on Energy

and Natural Resources regarding bills related to carbon capture and

storage. He chairs the Environmental Subcommittee of the Greater

Washington Board of Trade’s Environment & Transportation Committee

and is a member of MWAQC’s Technical Advisory Committee, the entity

that prepares State Implementation Plans for the Washington, D.C.

metropolitan region (Virginia, Maryland, and Washington, D.C.).

He has nearly a decade of experience advising mobile and stationary

sources under the Clean Air Act. His mobile source practice focuses on

fleet issues. Mr. Coddington represented the American Automotive Leasing

Association and the National Association of Fleet Administrators, Inc. in

Engine Mfrs. Ass’n v. South Coast Air Quality Management District, 124 S.

Ct. 1756 (2004). His stationary source practice includes compliance and

regulatory issues affecting refiners and utilities. He represented

Midwestern utilities in appellate litigation challenging EPA’s NOx SIP Call

rules, including Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and

Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 2001).

Representative Experience

Counsel to EEA Fund Management Ltd, a leading London-based

carbon and renewable energy investment company.

Counsel to the project developer of a $7 billion alternative fuel

production facility with carbon capture & storage.

Counsel to the project developer of a 225 megawatt hydropower

project in South America, including the generation and sale of

Certified Emission Reductions under the Kyoto Protocol’s Clean

Development Mechanism.

Counsel to the project developer of a coal mine methane capture

project in Eastern Europe, including the generation and sale of

Emission Reduction Units under the Kyoto Protocol’s Joint

Implementation Mechanism.

Counsel to a variety of investors, hedge funds and related entities

on carbon investment transactions.

Publications

"Climate Change: The Commercial Deployment of Carbon Capture

and Storage Technology," Environment Reporter, Vol. 38, No. 37,

BNA, September 21, 2007.

"Carbon Dioxide Poised for a Comeback," American Coal, Issue 2,

2006.

"Homeland Security After Hurricane Katrina: Where Do We Go

From Here?" Natural Resources & Environment, June 6, 2006.

“Is Climate Change A Legally Cognizable Public Nuisance?”

Mealey’s Pollution Liability Reporter, November 2004.

Nikesh R. PatelAlston & Bird LLP

The Atlantic Building950 F Street, NWWashington, DC 20004-1404

202-756-3485nik.patel@alston.com

ServicesCorporate & FinanceEnergy & Project Finance

Mergers & AcquisitionsEnergy & SustainabilityClimate Change & Carbon

ManagementRenewable and Alternative EnergyEnergy Regulatory

Electric IndustryFERC and Other Federal AgenciesOil and Natural Gas Industries

Regulation-Related CourtLitigation

State Regulatory Matters

TransactionsEnergy, Environmental & Land

Development

EducationGeorgetown University

(J.D., 1996)

Florida State University

(B.S., 1993)

Admitted to Practice

District of Columbia

Nikesh R. Patel

Nik Patel is a partner in the Renewable Energy Group in the firm’s

Washington office. For the past six years, Mr. Patel has concentrated his

practice on representing renewable energy clients, with a particular focus

on wind and solar energy. Mr. Patel has assisted clients in structuring and

negotiating the joint venturing/acquisition of individual and portfolio

projects. On the development side, he assists clients in the negotiation of

the suite of development documents, such as power purchase

agreements, renewable energy credit (REC) sales agreements,

transmission and interconnection agreements, equipment procurement

and balance-of-plant (BOP) contracts, PILOT and similar alternative tax

structures and land acquisition agreements. Mr. Patel has also assisted

clients in the development and financing of large infrastructure projects in

the power, oil and gas, liquefied natural gas (LNG), petrochemicals, hotel

and transportation industries.

In the course of his representation of clients in international deals,

Mr. Patel has dealt with bilateral and multilateral financing institutions,

such as the Overseas Private Investment Corporation and the

International Finance Corporation, and with the governments of developed

and developing countries in Africa, Asia, Central and South America,

Europe and the Middle East.

Mr. Patel received his B.S., magna cum laude, in accounting and finance,

from Florida State University in 1993 and his J.D., cum laude, from

Georgetown University Law Center in 1996.

Representative Experience

Lead counsel to one of the largest solar energy developers in the

United States in its operations, including project structuring,

leases and power purchase agreements.

Lead counsel in the negotiation of power purchase and renewable

energy credit agreements and the acquisition and dispensation of

development rights for one of the largest wind energy developers

in the United States.

Lead counsel to major natural gas company regarding domestic

and international gas sales agreements and other development

matters.

Renu GuptaAlston & Bird LLP

The Atlantic Building950 F Street, NWWashington, DC 20004-1404

202-756-3429renu.gupta@alston.com

Practice AreasLitigationEnergy, Environmental & Land

DevelopmentEnvironmentalEnergy & Project Finance

Energy & SustainabilityClimate Change & Carbon

Management

Renewable and Alternative EnergyEnergy RegulatoryElectric Industry

FERC and Other Federal AgenciesOil and Natural Gas IndustriesRegulation-Related Court

LitigationState Regulatory MattersTransactions

EducationUniversity of Houston

(J.D., 1994)

Rice University

(B.A., 1989)

Admitted to Practice

District of ColumbiaTexas

Renu Gupta

Renu Gupta is counsel in the Environmental and Land Development Group

and works closely with the firm’s Renewable Energy Group. Ms. Gupta

has handled environmental review and permitting matters involved in the

siting, construction and operation of energy infrastructure projects, such

as the development of wind and conventional power generation facilities,

LNG import terminals, natural gas pipelines and electric power

transmission lines. Ms. Gupta’s practice involves the negotiation of

renewable energy credit purchase and sale agreements for wind, biomass

and other renewable power generation facilities. She also has extensive

experience with conducting environmental due diligence for mergers,

acquisitions and other commercial transactions, and she routinely advises

clients on environmental compliance matters.

Ms. Gupta has represented clients on matters before the Federal Energy

Regulatory Commission, U.S. Minerals Management Service, U.S.

Environmental Protection Agency, U.S. Army Corp of Engineers and other

federal and state environmental and land use agencies. She has

experience with issues under the National Environmental Policy Act,

Coastal Zone Management Act, Endangered Species Act, Clean Water Act

and Clean Air Act, as well as other federal and state environmental laws

and regulations.

Ms. Gupta received her J.D., magna cum laude, from the University of

Houston in 1994, where she was a member of the Order of the Coif, and

she served as a research editor for the Houston Journal of International

Law. She received her B.A. in 1989 from Rice University. She is admitted

to practice in the District of Columbia and Texas.

Representative Experience

Completed comprehensive environmental review and permitting work

related to the siting, construction and operation of five new LNG

import terminal facilities in Maryland, Massachusetts and Texas, and

new interstate natural gas pipelines in Alabama, Florida, Illinois,

Maryland, Pennsylvania, Texas and Wisconsin, as well as in U.S. and

Bahamian waters.

Completed environmental review and permitting work related to the

development and financing of wind power generation facilities in

California, Maryland, New York, Oklahoma and South Dakota.

Negotiation of REC purchase and sale agreements with respect to

several renewable power generation projects in the northeastern and

western regions of the United States.

Conducted environmental due diligence related to the acquisition of

interests in metals mining and processing operations, ethanol

production facilities, LNG terminal and natural gas pipeline facilities,

and other manufacturing, chemicals processing and energy

infrastructure facilities.

David M. MeezanAlston & Bird LLPOne Atlantic Center

1201 West Peachtree StreetAtlanta, GA 30309-3424404-881-4346

david.meezan@alston.com

Services

Energy & Project FinanceEnergy & SustainabilityCleanTech

Climate Change & CarbonManagement

Litigation

EnvironmentalSourcing & Complex ProcurementEnvironmental & Citizen Suit

LitigationRegulatory Compliance,

Enforcement & Permitting

Energy, Environmental & LandDevelopment

EducationVermont Law School(J.D., 1997)

Vermont Law School(M.S.E.L., 1997)

Emory University(B.A., 1994)

Admitted to PracticeGeorgia

Tennessee

Languages

French

David M. Meezan

David Meezan is a partner in Alston & Bird’s Energy Infrastructure,

Climate Change and Technology Group. His practice concentrates on

complex environmental and energy regulatory, transactional, and litigation

matters. His experience includes representing and counseling one of the

country’s largest public power supply companies as well as independent

power producers. He regularly counsels and advises clients under

greenhouse gas emission regulatory schemes in the United States and

abroad. He is experienced in structuring and drafting Emission Reduction

Purchase Agreements under the Kyoto Protocol’s Clean Development

Mechanism as well as under domestic voluntary carbon credit regimes.

Mr. Meezan also has represented clients in a variety of civil and criminal

environmental litigation matters in both federal and state courts, and in

complex regulatory matters arising under the Resource Conservation and

Recovery Act, the Clean Water Act, the Clean Air Act, and their state law

counterparts.

Chambers USA lists Mr. Meezan in environmental law, and notes his

development of a carbon trading specialty, alongside his existing expertise

in hazardous waste litigation and advice. Chambers USA adds that Mr.

Meezan “is praised by clients for his confident, strategic approach.” He

was also selected by Law & Politics as a Georgia Super Lawyer Rising Star

in Environmental Litigation for 2005, 2007 and 2009.

Mr. Meezan received his J.D., magna cum laude, and his Masters of

Studies in Environmental Law, magna cum laude, from Vermont Law

School in 1997. While in law school, he was a member and assistant

articles editor for the Vermont Law Review. He received his B.A. in

international studies and French from Emory University in 1994. He is a

member of the State Bars of Georgia and Tennessee.

Mr. Meezan is a past chair of the Environmental Law Section for the State

Bar of Georgia. Mr. Meezan frequently speaks about climate change and

environmental litigation topics. Most recently, he presented on “National

and Regional Emissions Management” at Carbon Counting 2008 in Chicago

and on “’Going Green’ Strategies: Legal Considerations for Corporate

Environmental Initiatives” at the 2008 Annual Meeting for the North

Carolina Bar Association’s Business Law and Corporate Counsel Sections.

Representative Experience

Represented country’s largest electric power joint action agency in

negotiation and drafting of long-term power purchase agreements

for sale of output from planned nuclear units.

Counseled Fortune 50 diversified chemical company on Kyoto

Protocol Clean Development Mechanism projects in China and

Brazil.

Represented Fortune 500 supplemental health and life insurance

company in $120 million business process outsourcing

arrangement.

Successfully defended constitutionality of local ordinances

regulating disposal of municipal solid waste. See Quality

Compliance Services, Inc. v. Dougherty County, 553 F. Supp.2d

1374 (M.D. Ga 2008).

Successfully challenged constitutionality of Georgia statute

restricting interstate shipments of waste. See Fulton County v.

City of Atlanta, 280 Ga. 353, 629 S.E.2nd 196 (Ga. 2006).

Successfully defended class-action challenge to presence and use

of fiber optic lines constructed across right-of-way easements.

See Municipal Electric Authority of Georgia v. Gold-Arrow Farms,

Inc., 276 Ga. App. 862, 625 S.E.2d 57 (Ga. Ct. App. 2005).

Recent Publications

"Climate Change: The Commercial Deployment of Carbon Capture

and Storage Technology," Environment Reporter, Vol. 38, No. 37,

BNA, September 21, 2007.

“The Commercial Deployment of Carbon Capture and Storage

Technology,” BNA Daily Environment Report, September 19, 2007.

Peter K. FloydAlston & Bird LLP

One Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424

404-881-4510peter.floyd@alston.com

ServicesPublic FinanceEnergy & Project Finance

Energy, Environmental & LandDevelopment

Corporate & Finance

Financial Services & ProductsDerivatives

EducationGeorgia State University(J.D., 2000)

Georgia State University(B.I.S., 1997)

Admitted to PracticeGeorgia

Peter K. Floyd

Peter Floyd concentrates his practice in energy finance for public gas,

power and other utilities in areas including authority representation and

related corporate, tax and securities matters involving taxable and tax-

exempt financings for facilities and commodities. Mr. Floyd represents

public and private clients respecting energy regulation, energy-related

transactions, economic incentives, interest rate and commodity swaps and

hedges and corporate governance. He is also a member of the firm’s

economic development and corporate trust teams and works extensively

with Public Gas Partners, Inc., the Municipal Electric Authority of Georgia,

the Municipal Gas Authority of Georgia and Main Street Natural Gas, Inc.

Mr. Floyd currently serves as a board member of the Southeastern Energy

Society, Inc., a Georgia non-profit corporation that educates energy

industry professionals on industry developments. He serves on the

Finance and Transactions Committee of the Energy Bar Association, and

as chairman of the Committee to Re-elect Tommy Floyd, District Attorney.

He is also a member of the National Association of Bond Lawyers, the

Government Finance Officers Association, the Georgia Government

Finance Officers Association, and the Georgia Economic Developers

Association. In 2008, Mr. Floyd was named one of Georgia’s “Legal Elite”

by Georgia Trend magazine.

Mr. Floyd earned both his B.I.S. (law and society), cum laude, in 1997,

and his J.D., in 2000, from Georgia State University. He worked with the

firm’s Utilities Group while earning his J.D.

Representative Experience

Working with joint action issuers in pioneering transactions for the

prepayment for long-term natural gas supplies from the proceeds

of tax-exempt bonds, negotiating all necessary gas purchase

agreements, surety arrangements, commodity hedging

arrangements, interest rate swap arrangements and investment

arrangements to achieve a long-term, firm, secure supplies of

natural gas for joint action agencies serving local governments’

and utility districts’ gas distribution systems nationwide.

Assisting joint action issuer in the acquisition, construction and

financing of additional nuclear generation facilities, including

agreements respecting confidentiality, construction, co-ownership,

financing, power purchase and operation thereof.

Assisting issuers throughout the Southern states in joint action

purchases of natural gas reserves and prepaid supplies nationwide

as bond counsel, special tax counsel, gas counsel and issuer’s

counsel.

Advising a multi-state joint action agency comprising seven

individual joint action agencies in five states in its formation, initial

contracting and reserve acquisition financing.

Serving as bond counsel, issuer’s counsel, swap counsel and gas

counsel in a wide range of transactions ranging from GO and

revenue bonds, economic incentives and lease purchase financings

to novel transactions in the public power and gas industry for the

financing of electric generation and transmission facilities and the

acquisition of long-term gas supplies.

Publications and Presentations

“Certain Governmental Issuer’s Tax-Exempt Bonds Questioned by

IRS Regarding Post-Issuance Tax Compliance,” Public Finance

Advisory, January 30, 2009.

“Effect of the Credit Crisis on Public Finance,” presentation at

Tennessee Gas Association Utility Finance & Accounting

Conference, August 18, 2008.

“New Annual Bond Reporting Requirements Signed Into Law,”

Public Finance Alert, May 16, 2006.

"Jurisdiction Over Water Quality Management," Georgia County

Government, August 5, 2002.