Common use of Independent Engineer Clause in Contracts

Independent Engineer. (a) The Borrower shall (i) permit the Independent Engineer to make an inspection of the Project and the Site at the end of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion), and (ii) deliver to the Administrative Agent and the Loan Insurer within seven (7) days of each such inspection a report, in form and substance satisfactory to the Controlling Party, describing the findings made by the Independent Engineer during such inspection and reflecting any changes since the last prior report. (b) The Administrative Agent, the Loan Insurer and the Independent Engineer have the right to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, fees and expenses of the Independent Engineer in respect of any such Acceptance Tests). The Borrower shall give the Administrative Agent, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance Tests.

Independent Engineer. Contractor acknowledges that an independent engineer or engineering firm (the “Independent Engineer”) may be engaged by Owner for the purpose of providing to Owner or Financing Parties a neutral, third party overview of the Work. The Independent Engineer shall provide independent opinions and determinations, arrived at reasonably and in good faith, with respect to: (a) the status of the Work; (b) the performance of the Project and equipment; (c) invoices submitted by Contractor; (d) Contractor’s quality control procedures for the Work and major components thereof; and (e) the approval of Change Orders. Owner undertakes that it will use reasonable efforts to ensure that the Independent Engineer gives its countersignature or indicates that it is not willing to do so in relation to the relevant matter within the time specified in this Agreement for Owner to respond in relation to such matter; provided that any such unwillingness on the part of the Independent Engineer shall not affect or limit Owner’s obligations hereunder. The Borrower Independent Engineer may, at its option, attend any meetings between Owner and Contractor related to the progress of the Project and shall (i) permit approve all Contractor’s Applications for Payments prior to any payment being made by Owner thereunder; provided that any failure by the Independent Engineer to make an inspection of the Project and the Site at the end of every quarter (prior to Term-Conversion) approve a Contractor’s Application for Payment shall not affect or year (from and after Term-Conversion), and (ii) deliver limit Owner’s obligations hereunder. Notwithstanding anything else to the Administrative Agent and the Loan Insurer within seven (7) days of each such inspection a reportcontrary contained herein, in form and substance satisfactory to the Controlling Party, describing the findings made by the Independent Engineer during shall have no right to direct Contractor or any portion of the Work or to make any Change Order. Contractor shall maintain a complete, accurate and up-to-date log of all Change Orders and, upon request of the Independent Engineer, shall furnish copies of such inspection and reflecting any changes since log to the last prior report. (b) The Administrative Agent, the Loan Insurer and Independent Engineer. Contractor shall afford the Independent Engineer have the right to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, fees and expenses of the Independent Engineer in respect of any such Acceptance Tests). The Borrower shall give the Administrative Agent, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations same rights as Owner with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver access to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance TestsSite.

Independent Engineer. Contractor acknowledges that the Independent Engineer will be engaged by Owner for the purpose of providing to Financing Parties a neutral, third party overview of the Work. The Independent Engineer shall provide Financing Parties with independent opinions and determinations, arrived at reasonably and in good faith, with respect to: (a) the status of the Work; (b) the performance of the Project and equipment and the Functional Tests and Capacity Tests and the results and procedures related thereto; (c) invoices submitted by Contractor; (d) Contractor's quality control procedures for the Work and major components thereof; and (e) the approval of Change Orders. Owner undertakes that it will use reasonable efforts to ensure that the Independent Engineer gives its countersignature or indicates that it is not willing to do so in relation to the relevant matter within the time specified in this Agreement for Owner to respond in relation to such matter; provided that any such unwillingness on the part of the Independent Engineer shall not affect or limit Owner's obligations hereunder. The Borrower Independent Engineer may, at its option, attend any meetings between Owner and Contractor related to the progress of the Project and shall (i) permit approve all Contractor's Applications for Payments prior to any payment being made by Owner thereunder; provided that any failure by the Independent Engineer to make an inspection approve a Contractor's Application for Payment shall not affect or limit Owner's obligations hereunder. Notwithstanding anything else to the contrary contained herein, the Independent Engineer shall have no right to direct Contractor or any portion of the Project Work or to make any Change Order. Contractor shall maintain a complete, accurate and up-to-date log of all Change Orders and, upon request of the Site at the end Independent Engineer, shall furnish copies of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion), and (ii) deliver such log to the Administrative Agent and Independent Engineer. Contractor shall afford the Loan Insurer within seven (7) days of each such inspection a report, in form and substance satisfactory Independent Engineer the same rights as Owner with respect to access to the Controlling Party, describing the findings made Site; provided that Owner shall be liable for any failure by the Independent Engineer during such inspection and reflecting any changes since to maintain the last prior reportconfidentiality of Confidential Information as required by Article 25. (b) The Administrative Agent, the Loan Insurer and the Independent Engineer have the right to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, fees and expenses of the Independent Engineer in respect of any such Acceptance Tests). The Borrower shall give the Administrative Agent, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance Tests.

Independent Engineer. For purposes of this Agreement, the "Independent Engineer" shall be X.X. Xxxx, Inc. or such other replacement engineering consulting firm selected in accordance with this Section 10.1. Borrower or the Majority Banks may remove the Independent Engineer in the event that such Independent Engineer (a) The Borrower shall ceases to be a engineering consulting firm of recognized international standing, (ib) permit has become an Affiliate of NEG or (c) has developed a conflict of interest that reasonably calls into question such firm's capacity to exercise independent judgment. If the Independent Engineer is removed or resigns and thereby ceases to make an inspection act as Independent Engineer for purposes of this Agreement, the Majority Banks and Borrower shall, within 30 days of such removal or resignation, jointly designate a replacement engineering consulting firm from the list contained in Exhibit M hereto and, thereafter, Administrative Agent shall promptly notify the Banks and the Lender Group Agents on behalf of their respective Lender Groups of such designation. At any time and from time to time, the Majority Banks shall have the right to add to Exhibit M hereto one or more independent engineering consulting firms and shall notify Borrower, the Banks and the Lender Group Agents on behalf of their respective Lender Groups of any such addition. Exhibit M hereto shall automatically be deemed amended to reflect such addition unless, within 30 days of such notification, Borrower notifies Administrative Agent that it objects, on the basis of the Project and criteria set out in clauses (a) through (c) above for removal of the Site at the end of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion)Independent Engineer, and (ii) deliver to the Administrative Agent and firm or firms so added. At any time while the Loan Insurer within seven (7) days of each such inspection a reportObligations are outstanding, in form and substance satisfactory to the Controlling Party, describing the findings made by the Independent Engineer during such inspection and reflecting any changes since the last prior report. (b) The Administrative Agent, the Loan Insurer Arrangers, the Banks and the Lender Group Members shall have the right, but shall not be obligated (other than as expressly provided herein or in the other Credit Documents), to consult with the Independent Engineer have the right on matters related to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, this Agreement or any other Credit Document. All reasonable fees and expenses of the Independent Engineer in respect of any such Acceptance Tests). The Borrower (whether the original one or replacements) shall give the Administrative Agent, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the be paid by Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance Tests.

Independent Engineer. As soon as practicable following the Parties’ execution and delivery of this Tolling Services Agreement, and in any event no later than 6 months thereafter, the Parties shall engage an independent third party engineering firm (athe “Independent Engineer”) The Borrower shall (i) permit to provide the services that this Tolling Services Agreement states are to be provided by the Independent Engineer. The Independent Engineer shall have at least ten years’ experience in the provision of services that are the same as those contemplated to make an inspection of the Project and the Site at the end of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion), and (ii) deliver to the Administrative Agent and the Loan Insurer within seven (7) days of each such inspection a report, in form and substance satisfactory to the Controlling Party, describing the findings made be provided by the Independent Engineer during such inspection hereunder. The Parties shall engage the Independent Engineer pursuant to a three-party agreement among, and reflecting any changes since the last prior report. (b) The Administrative Agentcontaining terms and conditions reasonably acceptable to, the Loan Insurer Developer, TxDOT and the Independent Engineer have (the “Independent Engineer Agreement”), which Independent Engineer Agreement shall provide for, among other things, the right by each Party to witness and verify unilaterally remove the Acceptance Tests then acting Independent Engineer (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the Borrower removal and replacement of the Independent Engineer without cause, the Party effecting the removal shall only be required bear the costs and expenses of both Parties that are related to pay the engagement of a successor Independent Engineer. The Independent Engineer Agreement shall include provision for the costsequal allocation, fees between Developer and TxDOT, of the costs and expenses of the Independent Engineer in respect the performance of its services under the Independent Engineer Agreement [(and TxDOT shall include its portion of such costs and expenses in the calculation of the Cost of TxDOT’s Services hereunder, except to the extent any such Acceptance Testscosts and expenses are incurred as a result of a breach or default under this Tolling Services Agreement or in connection with the imposition of Non-Compliance Points)] [include bracketed provision if cost plus pricing is selected]. The Borrower Independent Engineer engaged by the Parties pursuant to the terms hereof may be, but shall give the Administrative Agentnot be required to be, the Loan Insurer same Person engaged as the Independent Engineer (as defined in the Agreement) under the Agreement. The Independent Engineer is to perform the functions provided for under this Tolling Services Agreement and the Independent Engineer notice regarding Agreement and to assist and advise the Parties concerning its findings and recommendations. The Independent Engineer’s determinations are not final and binding. If there is a continuing disagreement between the Parties concerning any proposed Acceptance Test promptly matter subject to review by the Independent Engineer following the BorrowerIndependent Engineer’s receipt review and recommendation in respect thereof, such disagreement shall be resolved pursuant to Section 20 hereof. 31. Independent Auditor [include this Section 31 if cost plus pricing is selected.] On or before the first day of such notice. Ifthe ninth full calendar month before the end of the tenth Service Year (or, upon completion if this Tolling Services Agreement is executed thereafter, then within 90 days after the date of any Acceptance Testexecution), the Borrower is Parties shall mutually select and engage the Independent Auditor for purposes of providing the belief that such Acceptance Test has been satisfiedservices described in Section 6(d)(iv). The Independent Auditor shall have the qualifications set forth in Section 6(d)(iv). The Parties shall engage the Independent Auditor pursuant to a three-party agreement among, it shall so notify the Administrative Agentand containing terms and conditions reasonably acceptable to, the Loan Insurer Developer, TxDOT and the Independent Engineer Auditor (the “Independent Auditor Agreement”), which Independent Auditor Agreement shall provide for, among other things, the right by each Party to unilaterally remove the then acting Independent Auditor (i) for cause or (ii) once every five years without cause; provided, however, that in connection with the removal and replacement of the Independent Auditor without cause, the Party effecting the removal shall deliver bear the costs and expenses of both Parties that are related to the engagement of a copy successor Independent Auditor. The Independent Auditor Agreement shall include provision for the equal allocation, between Developer and TxDOT, of all test results supporting the costs and expenses of the Independent Auditor in the performance of its services under the Independent Auditor Agreement [(and TxDOT shall include its portion of such conclusioncosts and expenses in the calculation of the Cost of TxDOT’s Services hereunder, accompanied by supporting data except to the extent any such costs and calculations, evidencing expenses are incurred as a result of a breach or default under this Tolling Services Agreement or in connection with the belief that the Borrower imposition of Non-Compliance Points)] [include bracketed provision if cost plus pricing is selected]. The Independent Auditor’s determinations are not final and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Testbinding. If there is a continuing disagreement between the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver Parties concerning any matter subject to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and review by the Independent Engineer willAuditor following the Independent Auditor’s review in respect thereof, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing disagreement shall be resolved pursuant to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance TestsSection 20 hereof.

Independent Engineer. Contractor acknowledges that an independent engineer or engineering firm (the “Independent Engineer”) may be engaged by Owner for the purpose of providing to Owner or Financing Parties a neutral, third party overview of the Work. The Independent Engineer shall provide independent opinions and determinations, arrived at reasonably and in good faith, with respect to: (a) the status of the Work; (b) the performance of the Facility and equipment and the Facility Tests and the results and procedures related thereto; (c) invoices submitted by Contractor; (d) Contractor’s quality control procedures for the Work and major components thereof; and (e) the approval of Change Orders. Owner undertakes that it will use reasonable efforts to ensure that the Independent Engineer gives its countersignature or indicates that it is not willing to do so in relation to the relevant matter within the time specified in this Agreement for Owner to respond in relation to such matter; provided that any such unwillingness on the part of the Independent Engineer shall not affect or limit Owner’s obligations hereunder. The Borrower Independent Engineer may, at its option, attend any meetings between Owner and Contractor related to the progress of the Facility and shall (i) permit approve all Contractor’s Applications for Payments prior to any payment being made by Owner thereunder; provided that any failure by the Independent Engineer to make an inspection of the Project and the Site at the end of every quarter (prior to Term-Conversion) approve a Contractor’s Application for Payment shall not affect or year (from and after Term-Conversion), and (ii) deliver limit Owner’s obligations hereunder. Notwithstanding anything else to the Administrative Agent and the Loan Insurer within seven (7) days of each such inspection a reportcontrary contained herein, in form and substance satisfactory to the Controlling Party, describing the findings made by the Independent Engineer during shall have no right to direct Contractor or any portion of the Work or to make any Change Order. Contractor shall maintain a complete, accurate and up-to-date log of all Change Orders and, upon request of the Independent Engineer, shall furnish copies of such inspection and reflecting any changes since log to the last prior report. (b) The Administrative Agent, the Loan Insurer and Independent Engineer. Contractor shall afford the Independent Engineer have the right to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, fees and expenses of the Independent Engineer in respect of any such Acceptance Tests). The Borrower shall give the Administrative Agent, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations same rights as Owner with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver access to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance TestsSite.

Independent Engineer. Contractor acknowledges that the Independent Engineer will be engaged by Owner for the purpose of providing to Financing Parties a neutral, third party overview of the Work. The Independent Engineer shall provide Financing Parties with independent opinions and determinations, arrived at reasonably and in good faith, with respect to: (a) the status of the Work; (b) the performance of the Project and equipment and the Functional Tests and Capacity Tests and the results and procedures related thereto; (c) invoices submitted by Contractor; (d) Contractor's quality control procedures for the Work and major components thereof; and (e) the approval of Change Orders. Owner undertakes that it will use reasonable efforts to ensure that the Independent Engineer gives its countersignature or indicates that it is not willing to do so in relation to the relevant matter within the time specified in this Agreement for Owner to respond in relation to such matter; provided that any such unwillingness on the part of the Independent Engineer shall not affect or limit Owner's obligations hereunder. The Borrower Independent Engineer may, at its option, attend any meetings between Owner and Contractor related to the progress of the Project and shall (i) permit approve all Contractor's Applications *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. for Payments prior to any payment being made by Owner thereunder; provided that any failure by the Independent Engineer to make an inspection approve a Contractor's Application for Payment shall not affect or limit Owner's obligations hereunder. Notwithstanding anything else to the contrary contained herein, the Independent Engineer shall have no right to direct Contractor or any portion of the Project Work or to make any Change Order. Contractor shall maintain a complete, accurate and up-to-date log of all Change Orders and, upon request of the Site at the end Independent Engineer, shall furnish copies of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion), and (ii) deliver such log to the Administrative Agent and Independent Engineer. Contractor shall afford the Loan Insurer within seven (7) days of each such inspection a report, in form and substance satisfactory Independent Engineer the same rights as Owner with respect to access to the Controlling Party, describing the findings made Site; provided that Owner shall be liable for any failure by the Independent Engineer during such inspection and reflecting any changes since to maintain the last prior reportconfidentiality of Confidential Information as required by Article 25. (b) The Administrative Agent, the Loan Insurer and the Independent Engineer have the right to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, fees and expenses of the Independent Engineer in respect of any such Acceptance Tests). The Borrower shall give the Administrative Agent, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance Tests.

Independent Engineer. Contractor acknowledges that the Independent Engineer will be engaged by Owner for the purpose of providing to Financing Parties a neutral, third party overview of the Work. The Independent Engineer shall provide Financing Parties with independent opinions and determinations, arrived at reasonably and in good faith, with respect to: (a) the status of the Work; (b) the performance of the Project and equipment and the Functional Tests and Capacity Tests and the results and procedures related *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. thereto; (c) invoices submitted by Contractor; (d) Contractor's quality control procedures for the Work and major components thereof; and (e) the approval of Change Orders. Owner undertakes that it will use reasonable efforts to ensure that the Independent Engineer gives its countersignature or indicates that it is not willing to do so in relation to the relevant matter within the time specified in this Agreement for Owner to respond in relation to such matter; provided that any such unwillingness on the part of the Independent Engineer shall not affect or limit Owner's obligations hereunder. The Borrower Independent Engineer may, at its option, attend any meetings between Owner and Contractor related to the progress of the Project and shall (i) permit approve all Contractor's Applications for Payments prior to any payment being made by Owner thereunder; provided that any failure by the Independent Engineer to make an inspection approve a Contractor's Application for Payment shall not affect or limit Owner's obligations hereunder. Notwithstanding anything else to the contrary contained herein, the Independent Engineer shall have no right to direct Contractor or any portion of the Project Work or to make any Change Order. Contractor shall maintain a complete, accurate and up-to-date log of all Change Orders and, upon request of the Site at the end Independent Engineer, shall furnish copies of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion), and (ii) deliver such log to the Administrative Agent and Independent Engineer. Contractor shall afford the Loan Insurer within seven (7) days of each such inspection a report, in form and substance satisfactory Independent Engineer the same rights as Owner with respect to access to the Controlling Party, describing the findings made Site; provided that Owner shall be liable for any failure by the Independent Engineer during such inspection and reflecting any changes since to maintain the last prior reportconfidentiality of Confidential Information as required by Article 25. (b) The Administrative Agent, the Loan Insurer and the Independent Engineer have the right to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, fees and expenses of the Independent Engineer in respect of any such Acceptance Tests). The Borrower shall give the Administrative Agent, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance Tests.

Independent Engineer. (a) The Borrower shall (i) permit Finance Parties hereby confirm any appointment which is made by the Facility Agent of an Independent Engineer, upon the terms and subject to the conditions to be separately agreed between the Facility Agent and the Independent Engineer to make an inspection of (the Project and the Site at the end of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion"Engagement Letter"), and (ii) deliver to the Administrative Agent and the Loan Insurer within seven (7) days of each such inspection a report, in form and substance satisfactory to the Controlling Party, describing the findings made by the Independent Engineer during such inspection and reflecting any changes since the last prior report. (b) The Administrative Agent, the Loan Insurer and Each party to this Agreement acknowledges that the Independent Engineer have will be appointed to act as consultant and adviser to the right Finance Parties in relation to witness technical matters relating to the Project within its own sphere of competence. The terms of its appointment will be set out in Engagement Letter, a copy of which will be given to, and verify acknowledged by, the Acceptance Tests Borrower. The Facility Agent may, acting reasonably and consistently with the agreed scope of work for the Independent Engineer, will request it to provide advice or services in relation to the Project. All reports and other material prepared by the Independent Engineer shall be provided to the Borrower or KKM at or about the same time as they are provided to the Facility Agent provided that there shall be excluded from any such material distributed to the Borrower and KKM any portions reasonably determined by the Facility Agent in its discretion to constitute advice to the Finance Parties in the context of negotiations or disputes relating to the financing of the Project. (providedc) Save as referred to in Clause 26.6 (b) and save in the case of any breach by the Independent Engineer of its duty of confidentiality or any undertaking of confidentiality, the Obligors acknowledge that the Borrower Independent Engineer shall only be required responsible solely to pay for the costsFinance Parties and has no obligations, fees and expenses responsibility or liability towards or in favour of the Obligors. (d) The Facility Agent may at any time terminate the appointment of the Independent Engineer if it considers it necessary or appropriate to do so, and shall promptly give notice of any such termination to the Borrower. If the Facility Agent terminates the appointment of the Independent Engineer it may appoint as a replacement Independent Engineer, on such reasonable terms as it sees fit, any person approved (which approval shall include an approval of the fees and expenses to be payable to that person by the Borrower) for this purpose by the Borrower (which approval may not be unreasonably withheld or delayed). The terms of any such appointment shall be set out in an engagement letter between such replacement Independent Engineer and the Facility Agent. The termination of the Independent Engineer's or additional Independent Engineer's appointment shall not in any way limit or affect the Borrower's obligations under Clause 24.6 (Transaction Costs) above in respect of any such Acceptance Tests). The Borrower shall give the Administrative Agent, the Loan Insurer and the fees or expenses levied or incurred by Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the or additional Independent Engineer and shall deliver a copy of all test results supporting on or before such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, within five (5) Business Days of the receipt of such Preliminary Acceptance Test Results, the satisfactory achievement of the Acceptance Teststermination.

Independent Engineer. (a) The Borrower shall Administrative Agent (iat the direction of the Blackstone Representative) permit in its reasonable discretion, may remove from time to time, the Independent Engineer to make an inspection and appoint a replacement on behalf of the Project and Lenders reasonably acceptable to the Site at the end Borrower. Notice of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion), and (ii) deliver to any replacement Independent Engineer shall be given by the Administrative Agent and the Loan Insurer within seven (7) days of each such inspection a report, in form and substance satisfactory to the Controlling PartyBorrower, describing the findings made by Lenders and to the Independent Engineer during such inspection and reflecting any changes since the last prior report. (b) The Administrative Agent, the Loan Insurer and the Independent Engineer have the right to witness and verify the Acceptance Tests (provided, that the Borrower shall only be required to pay for the costs, being replaced. All reasonable fees and expenses of the Independent Engineer in respect (whether the original Independent Engineer or replacements) shall be paid by the Borrower; provided, however, that unless an Event of any such Acceptance Tests). The Borrower Default shall give have occurred and be continuing, the Administrative Agent, Agent (at the Loan Insurer and direction of the Blackstone Representative) shall request that the Independent Engineer notice regarding provide the Borrower with its proposed scope of work and proposed budget therefor, and the Blackstone Representative shall consult with the Borrower with regard to the matters contained therein. (b) The Independent Engineer (other than any proposed Acceptance Test promptly following Independent Engineer hired directly by the Borrower’s receipt of such notice. If, upon completion of any Acceptance Test, the Borrower is of the belief that such Acceptance Test has been satisfied, it ) shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver be contractually obligated to the Administrative Agent (on behalf of the Lenders) to carry out the activities required of it in this Agreement and as otherwise requested by the Loan Insurer Administrative Agent (at the Preliminary Acceptance Test Results direction of the Blackstone Representative) and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing shall be responsible solely to the Administrative Agent, the Lenders and the Loan Insurer, within five Agent (5) Business Days on behalf of the receipt Lenders) for these activities. The Borrower acknowledges that it shall not have any cause of action or claim against any Independent Engineer resulting from any decision made or not made, any action taken or not taken or any advice given by such Preliminary Acceptance Test Results, Independent Engineer in the satisfactory achievement due performance in good faith of its duties to the Acceptance Tests.Administrative Agent hereunder. The Administrative Agent shall have no obligation to monitor the performance of duties of an Independent Engineer or otherwise verify any information provided thereby. 124

Independent Engineer. (a) The Borrower Authority shall (i) permit appoint the Independent Engineer to make an inspection in accordance with the Terms of Reference. The Concessionaire shall cooperate with and assist the Authority in the appointment of the Project and the Site at the end of every quarter (prior to Term-Conversion) or year (from and after Term-Conversion), and (ii) deliver to the Administrative Agent and the Loan Insurer within seven (7) days of each such inspection a reportIndependent Engineer, in form and substance satisfactory to the Controlling Party, describing manner specified in the findings made by the Independent Engineer during such inspection and reflecting any changes since the last prior reportTerms of Reference. (b) The Administrative AgentAuthority may, in its discretion, terminate the appointment of the Independent Engineer at any time, but only after the appointment of another Independent Engineer in accordance with the Terms of Reference. (c) If the Concessionaire has reason to believe that the Independent Engineer is not discharging its duties and functions in a fair, efficient and diligent manner, it may make a written representation to the Authority and seek a termination of the appointment of the Independent Engineer. Upon receipt of such representation, the Loan Insurer Authority shall hold a tripartite meeting with the Concessionaire and the Independent Engineer have for an amicable resolution of such dispute, and if any difference or disagreement between the right to witness Authority and verify the Acceptance Tests Concessionaire remains unresolved, the dispute shall be settled in accordance with the Dispute Resolution Procedure. If the appointment of the Independent Engineer is terminated hereunder, the Authority shall appoint forthwith another Independent Engineer in accordance with the Terms of Reference. (providedd) The remuneration, that the Borrower shall only be required to pay for the costs, fees cost and expenses of the Independent Engineer in respect shall be paid by the Authority and subject to the Terms of any such Acceptance Tests). The Borrower shall give the Administrative AgentReference, the Loan Insurer and the Independent Engineer notice regarding any proposed Acceptance Test promptly following the Borrower’s receipt one half of such notice. Ifremuneration, upon completion of any Acceptance Test, costs and expenses shall be reimbursed by the Borrower is of the belief that such Acceptance Test has been satisfied, it shall so notify the Administrative Agent, the Loan Insurer and the Independent Engineer and shall deliver a copy of all test results supporting such conclusion, accompanied by supporting data and calculations, evidencing the belief that the Borrower and the EPC Contractor have satisfied their respective obligations with respect to such Acceptance Test. If the Acceptance Tests have been satisfactorily completed, the Borrower shall deliver Concessionaire to the Administrative Agent and the Loan Insurer the Preliminary Acceptance Test Results and the Independent Engineer will, upon a thorough review of such Preliminary Acceptance Test Results, certify in writing to the Administrative Agent, the Lenders and the Loan Insurer, Authority within five fifteen (515) Business Days days of the receipt of such Preliminary Acceptance Test Resultsa statement of expenditure from the Authority. (e) The Independent Engineer shall discharge the duties and functions substantially in accordance with the Terms of Reference. The Independent Engineer shall submit regular periodic reports to the Authority in respect of its duties and functions specified in the Terms of Reference. (f) The Authority shall require the Independent Engineer to designate and notify to the Authority and the Concessionaire up to two (2) persons employed by it to sign for and on behalf of the Independent Engineer, and any communication or document required to be signed by the Independent Engineer (including the Completion Certificate) shall be valid and effective only if signed by any of the designated persons; provided that the Independent Engineer may, by notice in writing, substitute any of the designated persons with any other of its employees. (g) If either Party disputes any advice, instruction, decision, direction or award of the Independent Engineer, or, as the case may be, the satisfactory achievement assertion or failure to assert jurisdiction, such dispute shall be resolved in accordance with the Dispute Resolution Procedure. (h) No review, observation, comment or approval of the Acceptance TestsAuthority or the Independent Engineer of the Works and/or the failure of the Authority or the Independent Engineer to review, observe, comment on or approve the Works shall relieve the Concessionaire of its obligations and liabilities under this Agreement in any manner whatsoever. Further, neither the Authority nor the Independent Engineer shall be liable to the Concessionaire in any manner for any review, observation, comment or approval made or given by them in respect of the Works.