Exhibit 10.1

Execution Version

LUMP SUM TURNKEY AGREEMENT

for the

ENGINEERING, PROCUREMENT AND CONSTRUCTION

of the

SABINE PASS LNG STAGE 4 LIQUEFACTION FACILITY

by and between

SABINE PASS LIQUEFACTION, LLC

as Owner

and

BECHTEL OIL, GAS AND CHEMICALS, INC.

as Contractor

Dated as of the 7th Day of November, 2018

 

TABLE OF CONTENTS

 

RECITALS					1
ARTICLE 1		DEFINITIONS			2
ARTICLE 2		RELATIONSHIP OF OWNER, CONTRACTOR AND SUBCONTRACTORS			23
2.1		Status of Contractor			23
2.2		Key Personnel, Organization Chart and Contractor Representative			24
2.3		Subcontractors and Sub-subcontractors			24
2.4		Subcontracts and Sub-subcontracts			25
2.5		Contractor Acknowledgements			26
ARTICLE 3		CONTRACTOR’S RESPONSIBILITIES			28
3.1		Scope of Work			28
3.2		Specific Obligations			29
3.3		Design and Engineering Work			30
3.4		Spare Parts			31
3.5		Training Program in General			32
3.6		Environmental Regulations and Environmental Compliance			32
3.7		Construction Equipment			32
3.8		Employment of Personnel			33
3.9		Clean-Up			34
3.10		HSE Plan; Security			34
3.11		Emergencies			35
3.12		Contractor Permits			35
3.13		Books, Records and Audits			36
3.14		Tax Accounting			37
3.15		Temporary Utilities, Roads, Facilities and Storage			37
3.16		Subordination of Liens			37
3.17		Hazardous Materials			38
3.18		Quality Control			38
3.19		Reports			38
3.20		Payment			39
3.21		Commercial Activities			39
3.22		Title to Materials Found			39
3.23		Survey Control Points and Layout			39
3.24		Cooperation with Others at the Site			39
3.25		Integration with Existing Facility, Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, Stage 3 Liquefaction Facility, and Stage 4 Liquefaction Facility			40
3.26		Responsibility for Property			44
3.27		Explosives			44
3.28		Taxes			44
3.29		Equipment Quality			44

3.30		Loss of LNG or Natural Gas			45
ARTICLE 4		OWNER’S RESPONSIBILITIES			45
4.1		Payment and Financing			45
4.2		Owner Permits			46
4.3		Access to the Site, Laydown Areas and Off-Site Rights of Way and Easements			46
4.4		Operation Personnel			47
4.5		Sales and Use Tax Matters			48
4.6		Metes and Bounds Description and Survey			49
4.7		Hazardous Materials			49
4.8		Owner-Provided Items			50
4.9		Owner Representative			50
4.10		Owner’s Options			50
ARTICLE 5		COMMENCEMENT OF WORK, PROJECT SCHEDULE, AND SCHEDULING OBLIGATIONS			51
5.1		Limited Notice to Proceed			51
5.2		Notices to Proceed			54
5.3		Project Schedule			59
5.4		CPM Schedule Submissions			59
5.5		Recovery and Recovery Schedule			60
5.6		Acceleration and Acceleration Schedule			61
ARTICLE 6		CHANGES; FORCE MAJEURE; AND OWNER-CAUSED DELAY			62
6.1		Change Orders Requested by Owner			62
6.2		Change Orders Requested by Contractor			64
6.3		Contract Price Adjustment; Contractor Documentation			66
6.4		Change Orders Act as Accord and Satisfaction			66
6.5		Timing Requirements for Notifications and Change Order Requests by Contractor			66
6.6		Evidence of Funds			67
6.7		Adjustment Only Through Change Order			67
6.8		Force Majeure			68
6.9		Extensions of Time and Adjustment of Compensation			69
6.10		Delay			69
6.11		Contractor Obligation to Mitigate Delay			70
ARTICLE 7		CONTRACT PRICE AND PAYMENTS TO CONTRACTOR			70
7.1		Contract Price			70
7.2		Interim Payments			70
7.3		Final Completion and Final Payment			74
7.4		Payments Not Acceptance of Work			74
7.5		Payments Withheld			75
7.6		Interest on Late Payments and Improper Collection			76
7.7		Offset			76

 

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7.8		Procedure for Withholding, Offset and Collection on the Letter of Credit			76
7.9		Payment Error			76
ARTICLE 8		TITLE AND RISK OF LOSS			77
8.1		Title			77
8.2		Risk of Loss			77
ARTICLE 9		INSURANCE AND LETTER OF CREDIT			79
9.1		Insurance			79
9.2		Irrevocable Standby Letter of Credit			80
9.3		DSU Insurance			83
ARTICLE 10		OWNERSHIP OF DOCUMENTATION			83
10.1		Work Product			83
10.2		Owner Provided Documents			85
10.3		License to Use Liquefaction Facility			86
ARTICLE 11		COMPLETION			86
11.1		Notice of RFSU, Delivery of Feed Gas for Commissioning, Start Up and Performance Testing, LNG Production and Ready for Ship Loading Time Test			86
11.2		Notice and Requirements for Substantial Completion			89
11.3		Owner Acceptance of Substantial Completion			90
11.4		Minimum Acceptance Criteria and Performance Liquidated Damages			91
11.5		Punchlist			93
11.6		Notice and Requirements for Final Completion			93
11.7		Operations Activities			94
11.8		Partial Occupancy and Use			94
ARTICLE 12		WARRANTY AND CORRECTION OF WORK			95
12.1		Warranty			95
12.2		Correction of Work Prior to Substantial Completion			96
12.3		Correction of Work After Substantial Completion			97
12.4		Assignability of Warranties			99
12.5		Waiver of Implied Warranties			99
ARTICLE 13		DELAY LIQUIDATED DAMAGES AND SCHEDULE BONUS			99
13.1		Delay Liquidated Damages			99
13.2		Schedule Bonus			99
ARTICLE 14		CONTRACTOR’S REPRESENTATIONS			100
14.1		Corporate Standing			100
14.2		No Violation of Law; Litigation			100
14.3		Licenses			100
14.4		No Breach			100
14.5		Corporate Action			101

 

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14.6		Financial Solvency			101
ARTICLE 15		OWNER’S REPRESENTATIONS			101
15.1		Standing			101
15.2		No Violation of Law; Litigation			101
15.3		Licenses			101
15.4		No Breach			101
15.5		Corporate Action			101
15.6		Financial Solvency			102
ARTICLE 16		DEFAULT, TERMINATION AND SUSPENSION			102
16.1		Default by Contractor			102
16.2		Termination for Convenience by Owner			104
16.3		Suspension of Work			105
16.4		Suspension by Contractor			105
16.5		Termination by Contractor			106
16.6		Termination in the Event of an Extended Force Majeure			107
16.7		Termination in the Event of Delayed Notice to Proceed			107
16.8		Contractor’s Right to Terminate			107
ARTICLE 17		RELEASES AND INDEMNITIES			107
17.1		General Indemnification			107
17.2		Injuries to Contractor’s Employees and Damage to Contractor’s Property			109
17.3		Injuries to Owner’s Employees and Damage to Owner’s Property			110
17.4		Patent and Copyright Indemnification Procedure			112
17.5		Lien Indemnification			113
17.6		Owner’s Failure to Comply with Applicable Law			113
17.7		Landowner Claims			114
17.8		Legal Defense			114
17.9		Enforceability			115
ARTICLE 18		DISPUTE RESOLUTION			115
18.1		Negotiation			115
18.2		Arbitration			116
18.3		Continuation of Work During Dispute			117
18.4		Escrow of Certain Disputed Amounts By Owner			117
ARTICLE 19		CONFIDENTIALITY			117
19.1		Contractor’s Obligations			117
19.2		Owner’s Obligations			118
19.3		Definitions			118
19.4		Exceptions			118
19.5		Equitable Relief			118
19.6		Term			119

 

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ARTICLE 20		LIMITATION OF LIABILITY			119
20.1		Contractor Aggregate Liability			119
20.2		Limitation on Contractor’s Liability for Liquidated Damages			121
20.3		Liquidated Damages In General			121
20.4		Consequential Damages			122
20.5		Exclusive Remedies			123
20.6		Applicability			123
20.7		Term Limit			123
ARTICLE 21		MISCELLANEOUS PROVISIONS			123
21.1		Entire Agreement			123
21.2		Amendments			124
21.3		Joint Effort			124
21.4		Captions			124
21.5		Notice			124
21.6		Severability			125
21.7		Assignment			125
21.8		No Waiver			125
21.9		Governing Law			125
21.10		Successors and Assigns			126
21.11		Attachments and Schedules			126
21.12		Obligations			126
21.13		Further Assurances			126
21.14		Priority			126
21.15		Restrictions on Public Announcements			126
21.16		Potential Lenders, Potential Equity Investors and Equity Participants			127
21.17		Foreign Corrupt Practices Act			127
21.18		Parent Guarantee			128
21.19		Language			128
21.20		Counterparts			128
21.21		Federal Energy Regulatory Commission Approval			128
21.22		Owner’s Lender			128
21.23		Independent Engineer			128
21.24		Liquefaction Facility			128
21.25		Survival			129

 

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LIST OF ATTACHMENTS AND SCHEDULES

 

ATTACHMENT A		Scope of Work and Basis of Design
SCHEDULE A-1		Scope of Subproject 6
SCHEDULE A-2		FEED Documents
ATTACHMENT B		Contractor Deliverables
ATTACHMENT C		Payment Schedule
SCHEDULE C-1		Milestone Payment Schedule
SCHEDULE C-2		Monthly Payment Schedule
ATTACHMENT D		Form of Change Order
SCHEDULE D-1		Change Order Form
SCHEDULE D-2		Unilateral Change Order Form
SCHEDULE D-3		Contractor’s Change Order Request Form/Contractor’s Response to a Change Order Proposed by Owner
SCHEDULE D-4		Unit Rates for Change Orders Performed on a Time and Material Basis
SCHEDULE D-5		Existing & Stage 1, 2 and 3 Liquefaction Facility Labor Unit Rates
ATTACHMENT E		Project Schedule
ATTACHMENT F		Key Personnel and Contractor’s Organization
ATTACHMENT G		Approved Subcontractors and Sub-subcontractors and List of Major Equipment
ATTACHMENT H		Form of Limited Notices to Proceed and Notices to Proceeds
SCHEDULE H-1		Form of Limited Notice to Proceed
SCHEDULE H-2		Form of Notice to Proceed for Subproject 6(a)
SCHEDULE H-3		Form of Notice to Proceed for Subproject 6(b)
SCHEDULE H-4		Form of Limited Notice to Proceed No. 1

 

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SCHEDULE H-5		Form of Limited Notice to Proceed No. 2
SCHEDULE H-6		Form of Limited Notice to Proceed No. 3
ATTACHMENT I		Form of Contractor’s Invoices
SCHEDULE I-1		Form of Contractor’s Interim Invoice
SCHEDULE I-2		Form of Contractor’s Final Invoice
ATTACHMENT J		HSE Plan Requirements
ATTACHMENT K		Form of Lien and Claim Waivers
SCHEDULE K-1		Contractor’s Interim Conditional Lien Waiver
SCHEDULE K-2		Contractor’s Interim Unconditional Lien Waiver
SCHEDULE K-3		Subcontractor’s Interim Conditional Lien Waiver
SCHEDULE K-4		Subcontractor’s Interim Unconditional Lien Waiver
SCHEDULE K-5		Contractor’s Final Conditional Lien and Claim Waiver
SCHEDULE K-6		Contractor’s Final Unconditional Lien and Claim Waiver
SCHEDULE K-7		Subcontractor’s Final Conditional Lien and Claim Waiver
SCHEDULE K-8		Subcontractor’s Final Unconditional Lien and Claim Waiver
ATTACHMENT L		[Intentionally Not Used]
ATTACHMENT M		Form of Substantial Completion Certificate
SCHEDULE M-1		Form of Substantial Completion Certificate for Subproject 6(a)
SCHEDULE M-2		Form of Substantial Completion Certificate for Subproject 6(b)
ATTACHMENT N		Form of Final Completion Certificate
ATTACHMENT O		Insurance
SCHEDULE O-1		Insurance Requirements
SCHEDULE O-2		Form of Umbrella Agreement
ATTACHMENT P		Contractor Permits

 

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ATTACHMENT Q		Owner Permits
ATTACHMENT R		Form of Irrevocable, Standby Letter of Credit
SCHEDULE R-1		Form of Irrevocable, Standby Letter of Credit for Subproject 6(a)
SCHEDULE R-2		Form of Irrevocable, Standby Letter of Credit for Subproject 6(b)
ATTACHMENT S		Performance Tests and Commissioning Tests
ATTACHMENT T		Performance Guarantee, Performance Liquidated Damages, Minimum Acceptance Criteria, and Delay Liquidated Damages
ATTACHMENT U		Owner Provided Items and Responsibility
ATTACHMENT V		Pre-Commissioning, Commissioning, Start-Up, and Training
ATTACHMENT W		Form of Operating Spare Parts List
ATTACHMENT X		Work in Existing Facility, Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, and Stage 3 Liquefaction Facility
ATTACHMENT Y		Site and Off-Site Rights of Way and Easements
ATTACHMENT Z		Landowner Access
ATTACHMENT AA		Form of Acknowledgement and Consent Agreement
ATTACHMENT BB		Form of Owner Confirmation
ATTACHMENT CC		Independent Engineer Activities
ATTACHMENT DD		Form of Escrow Agreement
ATTACHMENT EE		Provisional Sums
ATTACHMENT FF		Form of Parent Guarantee

 

 

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SABINE PASS LNG STAGE 4 LIQUEFACTION FACILITY

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (this “Agreement”), dated as of the 7th Day of November, 2018 (the “Contract Date”), is entered into by and between SABINE PASS LIQUEFACTION, LLC, a Delaware limited liability company, having its principal place of business at 700 Milam, Suite 1900, Houston, Texas 77002 (“Owner”), and BECHTEL OIL, GAS AND CHEMICALS, INC., a Delaware corporation, having an address at 3000 Post Oak Boulevard, Houston, Texas 77056 (“Contractor” and, together with Owner, each a “Party” and together the “Parties”).

RECITALS

WHEREAS, Owner desires to enter into an agreement with Contractor to provide services for the following:

(a) the engineering, procurement and construction of:

 

i.

a turnkey LNG liquefaction facility comprised of (i) one LNG train with a nominal production capacity of approximately 4.5 mtpa to be owned by Owner, located at the Stage 4 Site (as defined below); and (ii) at Owner’s election, one LNG marine berth, and all related appurtenances thereto (as more fully described below, the “Stage 4 Liquefaction Facility”);

 

ii.

certain modifications and improvements to Subproject 1, Subproject 2, Subproject 3, Subproject 4, and Subproject 5 (as defined below and collectively, with Subproject 6, the “Liquefaction Facility”), such Subproject 1 and Subproject 2 being engineered, procured, constructed, commissioned, started-up and tested pursuant to the engineering, procurement and construction agreement between Owner and Contractor dated November 11, 2011 (“Stage 1 EPC Agreement”) and which are located at the Stage 1 Site (as defined below), and such Subproject 3 and Subproject 4 being engineered, procured, constructed, commissioned, started-up and tested pursuant to the engineering, procurement and construction agreement between Owner and Contractor dated December 20, 2012 (“Stage 2 EPC Agreement”) and which are located at the Stage 2 Site (as defined below), and such Subproject 5 being engineered, procured, constructed, commissioned, started-up and tested pursuant to the engineering, procurement and construction agreement between Owner and Contractor dated May 4, 2015 (“Stage 3 EPC Agreement”) and which is located at the Stage 3 Site (as defined below and collectively, with the Stage 1 Site, the Stage 2 Site and the Stage 4 Site the “Liquefaction Facility Site”);

 

iii

certain modifications and improvements to the existing LNG receiving, storage and regasification facilities (as more fully described below, the “Existing Facility”) located at the Existing Facility Site (as defined below); and

 

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(b) the commissioning, start-up and testing of the Stage 4 Liquefaction Facility, all as further described herein (collectively, the “Project”); and

WHEREAS, Contractor, itself or through its vendors, suppliers, and subcontractors, desires to provide the foregoing engineering, procurement, construction, commissioning, start-up and testing services on a turnkey lump sum basis;

NOW THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE 1

DEFINITIONS

1.1 In addition to other defined terms used throughout this Agreement, when used herein, the following capitalized terms have the meanings specified in this Section 1.1.

“AAA” has the meaning set forth in Section 18.2.

“AAA Rules” has the meaning set forth in Section 18.2.

“Acceleration Schedule” has the meaning set forth in Section 5.6A.

“Affiliate” means any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with a Party. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or otherwise.

“Aggregate Cap” has the meaning set forth in Section 20.1A.

“Aggregate Provisional Sum” has the meaning set forth in Section 7.1A.

“Agreement” means this Agreement for the performance of the Work (including all Attachments and Schedules attached hereto), as it may be amended from time to time in accordance with this Agreement.

“Applicable Codes and Standards” means any and all codes, standards or requirements applicable to the Work set forth or listed in Attachment A, in any Applicable Law (subject to an adjustment by Change Order in accordance with Section 6.2A.1), or which are set forth or listed in any document or Drawing listed in Attachment A, which codes, standards and requirements shall govern Contractor’s performance of the Work, as provided herein, provided that, with respect to Applicable Codes and Standards which are not set forth in any Applicable Law, any reference herein to such Applicable Codes and Standards shall refer to those Applicable Codes and Standards set forth or listed in any document or Drawing listed in Attachment A.

 

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“Applicable Law” means all laws, statutes, ordinances, orders, proclamations, decrees, injunctions, licenses, Permits, approvals, rules and regulations, including any conditions thereto, of any Governmental Instrumentality having jurisdiction over all or any portion of the Site, the Off-Site Rights of Way and Easements or the Project or performance of all or any portion of the Work or the operation of the Project, or other legislative or administrative action of a Governmental Instrumentality, or a final decree, judgment or order of a court which relates to the performance of Work hereunder, including U.S. Import Laws.

“Books and Records” has the meaning set forth in Section 3.13A.

“Bulk Order Subcontractors” means the Subcontractors listed as such in Attachment G.

“Business Day” means every Day other than a Saturday, a Sunday or a Day that is an official holiday for employees of the federal government of the United States of America.

“CAD” has the meaning set forth in Section 3.3E.

“Carve-Outs” has the meaning set forth in Section 20.1.

“Change in Law” means any amendment, modification, superseding act, deletion, addition or change in or to Applicable Law (excluding changes to tax laws where such taxes are based upon Contractor’s income or profits/losses) that occurs and takes effect after June 23, 2017. A Change in Law shall include any official change in the interpretation or application of Applicable Law (including Applicable Codes and Standards set forth in Applicable Law), provided that such change is expressed in writing by the applicable Governmental Instrumentality.

“Change Order” means, after the execution of this Agreement, any of the following: (i) a written order issued by Owner to Contractor, in the form of Schedule D-2, (ii) a written instrument signed by both Parties in the form of Schedule D-1, in each case executed pursuant to the applicable provisions of Article 6, or (iii) a determination issued pursuant to Article 18, that authorizes an addition to, deletion from, suspension of, or any other modification or adjustment to the requirements of this Agreement, including the Work or any Changed Criteria.

“Changed Criteria” has the meaning set forth in Section 6.1A.

“Cheniere” means Cheniere Energy, Inc.

“Collateral Agent” means the collateral agent under the credit agreement for the financing of the Project.

“Commissioning Feed Gas” has the meaning set forth in Section 4.8C.

“Commissioning LNG” has the meaning set forth in Section 11.1C.

“Commissioning Period” has the meaning set forth in Attachment T.

 

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“Confidential Information” has the meaning set forth in Section 19.3.

“Confirmed Acceleration Directive” has the meaning set forth in Section 5.6A.

“ConocoPhillips Intellectual Property” has the meaning set forth in Section 10.1D.

“ConocoPhillips License Agreement” means the license agreement between ConocoPhillips Company and Owner relating to the Optimized Cascade Process for Subproject 6(a).

“ConocoPhillips Work Product” has the meaning set forth in Section 10.1D.

“Consequential Damages” has the meaning set forth in Section 20.4.

“Construction Equipment” means the equipment, machinery, structures, scaffolding, materials, tools, supplies and systems owned, rented or leased by Contractor or its Subcontractors or Sub-subcontractors for use in accomplishing the Work, but not intended for incorporation into the Project.

“Construction Equipment Lessor” means the Subcontractor or Sub-subcontractor, as the case may be, who rents or leases Construction Equipment.

“Contract Date” has the meaning set forth in the preamble.

“Contract Price” has the meaning set forth in Section 7.1, as may be adjusted by Change Order in accordance with the terms of this Agreement. For the avoidance of doubt, the term Contract Price includes (i) the Contract Price Applicable to Subproject 6(a), and (ii) if Owner elects to exercise the LNG Berth 3 Option pursuant to Section 4.10A and enters into a Change Order for the LNG Berth 3 Option, the Contract Price Applicable to Subproject 6(b).

“Contract Price Applicable to Subproject 6(a)” means the Contract Price, as adjusted by Change Order, excluding the Change Order for LNG Berth 3 or any other Change Orders for LNG Berth 3.

“Contract Price Applicable to Subproject 6(b)” means, if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, the amount of the adjustment to the Contract Price to add the LNG Berth 3 to the Work, plus any other Change Orders for LNG Berth 3.

“Contractor” has the meaning set forth in the preamble hereto.

“Contractor Existing Intellectual Assets” has the meaning set forth in Section 10.1A.

“Contractor Group” means (i) Contractor and its Affiliates and (ii) the respective directors, officers, agents, employees, and representatives of each Person specified in clause (i) above.

 

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“Contractor Permits” means the Permits listed in Attachment P and any other Permits (not listed in either Attachment P or Attachment Q) necessary for performance of the Work which are required to be obtained in Contractor’s name pursuant to Applicable Law.

“Contractor Representative” means that Person or Persons designated by Contractor in a written notice to Owner specifying any and all limitations of such Person’s authority, and acceptable to Owner, who shall have complete authority to act on behalf of Contractor on all matters pertaining to this Agreement or the Work including giving instructions and making changes in the Work. The Contractor Representative as of the Contract Date is designated in Section 2.2B.

“Contractor’s Confidential Information” has the meaning set forth in Section 19.2.

“Cool Down” means the controlled process by which a process system is taken from its ambient condition (purged and cleaned of air, moisture and debris, etc.) and cooled down to its cryogenic temperature (at or below—260°F) through the use of LNG, which shall be set forth in the Project Commissioning Plan. A system has achieved “Cool Down” when it has reached its cryogenic temperature in a stable condition.

“Corrective Work” has the meaning set forth in Section 12.3.

“CPM Schedule” has the meaning set forth in Section 5.4.

“Currency Provisional Sum” has the meaning set forth in Attachment EE.

“Daily Quantities” has the meaning set forth in Section 11.1B.

“Day” means a calendar day.

“Default” has the meaning set forth in Section 16.1A.

“Defect” or “Defective” has the meaning set forth in Section 12.1A.

“Defect Correction Period” means, with respect to each Subproject, the period commencing upon Substantial Completion thereof and ending eighteen (18) months thereafter as extended pursuant to Section 12.3B for Corrective Work, provided that the Defect Correction Period for certain portions of the Work may commence earlier in accordance with Section 8.2C or Section 11.8. For the avoidance of doubt, there shall be a separate Defect Correction Period for each of Subproject 6(a) and Subproject 6(b) if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A.

“Delay Liquidated Damages” has the meaning set forth in Section 13.1.

“Design Basis” means the basis of design and technical limits and parameters of the Stage 4 Liquefaction Facility and the modifications and improvements to the Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, Stage 3 Liquefaction Facility, and the Existing Facility as set forth in Attachment A.

 

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“Disclosing Party” has the meaning set forth in Section 19.3.

“Dispute” has the meaning set forth in Section 18.1.

“Dispute Notice” has the meaning set forth in Section 18.1.

“Drawings” means the graphic and pictorial documents showing the design, location and dimensions of the Stage 4 Liquefaction Facility and the modifications and improvements to the Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, Stage 3 Liquefaction Facility, and the Existing Facility, generally including plans, elevations, sections, details, schedules and diagrams, which are prepared as a part of and during the performance of the Work.

“Duck Blind Road” is the road as identified as such in Attachment Y.

“Effective Date” means the earlier of the date on which Owner issues a (i) Limited Notice to Proceed in accordance with Section 5.1 or (ii) NTP for Subproject 6(a) in accordance with Section 5.2A.

“Equipment” means all equipment, materials, supplies, software, licenses and systems required for the completion of and incorporation into the Stage 4 Liquefaction Facility, the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, Stage 3 Liquefaction Facility, and the Existing Facility. Notwithstanding the foregoing, equipment required to be engineered, procured or constructed under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement and the Stage 3 EPC Agreement shall not be considered Equipment under this Agreement.

“Escrow Agent” means the escrow agent under the Escrow Agreement.

“Escrow Agreement” means the escrow agreement between Owner, Escrow Agent and Contractor, which shall be in the form attached hereto as Attachment DD.

“Escrowed Amounts” has the meaning set forth in Section 18.4.

“Excessive Monthly Precipitation” means that the total precipitation measured at the Site for the Month that the event in question occurred has exceeded the following selected probability levels for such Month for Weather Station 417174 BPT, Port Arthur AP Beaumont TX, as specified in the National Oceanic and Atmospheric Administration publication titled “Climatography of the U.S. No. 81, Supplement No. 1, Monthly Precipitation Probabilities and Quintiles, 1971-2000”:

 

(1)

For Subproject 6(a), the period from Contractor’s mobilization to the Site until twenty-five (25) Months after NTP for Subproject 6(a), the selected probability level of 0.6 shall apply;

 

(2)

For Subproject 6(b), the period from Contractor’s mobilization to the Site until twenty-five (25) Months after NTP for Subproject 6(b), the selected probability level of 0.6 shall apply; and

 

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(3)

For all other periods after Contractor’s mobilization to the Site, the selected probability level of 0.8 shall apply.

The Parties recognize that the assessment as to whether or not total precipitation measured at the Site for a given Month constitutes Excessive Monthly Precipitation can only be made after the end of the Month in question.

“Existing Facility” means the existing LNG receiving, storage and regasification facilities located at the Existing Facility Site which is adjacent to the Liquefaction Facility Site. For the avoidance of doubt, the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 3 Liquefaction Facility and the Stage 4 Liquefaction Facility shall not be considered part of the Existing Facility.

“Existing Facility Site” means those areas where the Existing Facility is located as shown in Attachment Y.

“FEED Document” has the meaning set forth in Attachment A.

“Feed Gas” means the Natural Gas that is to be used as feed stock for the Stage 4 Liquefaction Facility.

“FERC” means the Federal Energy Regulatory Commission.

“FERC Authorization” means the authorization by the FERC granting to Owner the approvals requested for Subproject 6(a) in that certain application filed by Owner with the FERC on September 30, 2013, in Docket No. CP13-552-000 (as may be amended from time to time) pursuant to Section 3(a) of the Natural Gas Act and the corresponding regulations of the FERC.

“FERC Authorization for Commissioning” has the meaning set forth in Section 11.1A.

“FERC Authorization for LNG Berth 3” means, if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, the authorization by the FERC granting to Owner the approvals requested for Subproject 6(b) in that certain application filed by Owner with the FERC pursuant to Section 3(a) of the Natural Gas Act and the corresponding regulations of the FERC.

“Final Completion” means that all Work and all other obligations under this Agreement (except for that Work and obligations that survive the termination or expiration of this Agreement, including obligations for Warranties and correction of Defective Work pursuant to Section 12.3 and any other obligations covered under Section 11.6), are fully and completely performed in accordance with the terms of this Agreement, including: (i) the achievement of Substantial Completion of Subproject 6; (ii) the completion of all Punchlist items; (iii) delivery by Contractor to Owner of a fully executed Final Conditional Lien and Claim Waiver in the form of Schedule K-5; (iv) delivery by Contractor to Owner of all documentation required to be delivered under this Agreement as a prerequisite of achievement of Final Completion, including Record Drawings; (v) removal from the Site of all of Contractor’s, Subcontractors’ and Sub-subcontractors’ personnel, supplies, waste,

 

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materials, rubbish, and temporary facilities; (vi) delivery by Contractor to Owner of fully executed Final Conditional Lien and Claim Waivers from all Lien Waiver Subcontractors in the form of Schedule K-7; (vii) fully executed Final Conditional Lien and Claim Waivers from Major Sub-subcontractors in a form substantially similar to the form of Schedule K-7; (viii) delivery by Contractor to Owner of a Final Completion Certificate in the form of Attachment N and as required under Section 11.6; (ix) Contractor has, pursuant to Section 3.4, delivered to the Project all Operating Spare Parts required by the Operating Spare Parts List to be delivered to the Project prior to Final Completion; and (x) if pursuant to Section 11.4A Substantial Completion was achieved without Contractor having achieved the Performance Guarantee, Contractor has achieved the Performance Guarantee or has paid the applicable Performance Liquidated Damages.

“Final Completion Certificate” has the meaning set forth in Section 11.6.

“Final Conditional Lien and Claim Waiver” means the waiver and release provided to Owner by Contractor, Lien Waiver Subcontractors and Major Sub-subcontractors in accordance with the requirements of Section 7.3, which shall be in the form of Attachment K, Schedules K-5 and K-7.

“Final Unconditional Lien and Claim Waiver” means the waiver and release provided to Owner by Contractor, Lien Waiver Subcontractors and Major Sub-subcontractors in accordance with the requirements of Section 7.3, which shall be in the form of Attachment K, Schedules K-6 and K-8.

“Force Majeure” means any act or event that (i) prevents or delays the affected Party’s performance of its obligations in accordance with the terms of this Agreement, (ii) is beyond the reasonable control of the affected Party, not due to its fault or negligence and (iii) could not have been prevented or avoided by the affected Party through the exercise of due diligence. Force Majeure may include catastrophic storms or floods, Excessive Monthly Precipitation, lightning, tornadoes, hurricanes, a named tropical storm, earthquakes and other acts of God, wars, civil disturbances, revolution, acts of public enemy, acts of terrorism, credible threats of terrorism, revolts, insurrections, sabotage, riot, plague, epidemic, commercial embargoes, expropriation or confiscation of the Project, epidemics, fires, explosions, industrial action or strike (except as excluded below), and actions of a Governmental Instrumentality that were not requested, promoted, or caused by the affected Party. For avoidance of doubt, Force Majeure shall not include any of the following: (i) economic hardship unless such economic hardship was otherwise caused by Force Majeure; (ii) changes in market conditions unless any such change in market conditions was otherwise caused by Force Majeure; (iii) industrial actions and strikes involving only the employees of Contractor or any of its Subcontractors; or (iv) nonperformance or delay by Contractor or its Subcontractors or Sub-subcontractors, unless such nonperformance or delay was otherwise caused by Force Majeure.

“Fuel Provisional Sum” has the meaning set forth in Attachment EE.

“GAAP” means generally accepted accounting principles in the United States of America.

 

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“Geotechnical Reports” means the following reports, each prepared by Tolunay-Wong Engineers, Inc. and provided by Owner to Contractor prior to the Contract Date:

 

(i)

Geotechnical Data Report Cheniere Liquefaction Expansion Project Trains 1 And 2 Cameron Parish, Louisiana—Prepared for Cheniere Energy Houston, Texas—April, 2011—Project No. 10.14.071;

 

(ii)

Geotechnical Recommendations Report Cheniere Liquefaction Expansion Project Trains 1 And 2 Cameron Parish, Louisiana—Prepared for Cheniere Energy Houston, Texas—April, 2011—Project No. 10.14.071;

 

(iii)

Geotechnical Data Report Sabine Pass Liquefaction Project Trains 3 And 4 Cameron Parish, Louisiana—Prepared for Cheniere Energy Houston, Texas—May, 2011—Project No. 11.14.005;

 

(iv)

Geotechnical Recommendations Report Sabine Pass Liquefaction Project Trains 3 And 4 Cameron Parish, Louisiana—Prepared for Cheniere Energy Houston, Texas—June, 2011—Project No. 11.14.005;

 

(v)

Geotechnical Data Report Sabine Pass Liquefaction Project Trains 5 and 6 Cameron Parish, Louisiana, Prepared for Cheniere Energy Houston, Texas – September 2013 – Project No. 12.14.123.004;

 

(vi)

Geotechnical Recommendations Report Sabine Pass Liquefaction Project Trains 5 and 6 Cameron Parish, Louisiana, Prepared for Cheniere Energy Houston, Texas – September 2013 – Project No. 12.13.123.004; and

 

(vii)

Final Report Supplement Geotechnical Exploration Heavy Haul Road, Flare Pipe Rack, GTG and Existing Dike Area, Sabine Pass LNG, Cameron Parish, LA. – April 13, 2015.

“Good Engineering and Construction Practices” or “GECP” means the generally accepted practices, skill, care, methods, techniques and standards employed by the international LNG industry at the time of the Contract Date that are commonly used in prudent engineering, procurement and construction to safely design, construct, pre-commission, commission, start-up and test LNG export, liquefaction and send-out terminal facilities of similar size and type as the Project, in accordance with Applicable Law and Applicable Codes and Standards.

“Governmental Instrumentality” means any federal, state or local department, office, instrumentality, agency, board or commission having jurisdiction over a Party or any portion of the Work, the Project, the Site or the Off-Site Rights of Way and Easements.

“Guarantee Conditions” means the LNG Production Rate Guarantee Conditions.

“Guaranteed Substantial Completion Date” or “Guaranteed Substantial Completion Dates” has the meaning set forth in Section 5.3B.

 

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“Guaranteed Substantial Completion Date for Subproject 6(a)” has the meaning set forth in Section 5.3B as may be adjusted by Change Order in accordance with the terms of this Agreement.

“Guaranteed Substantial Completion Date for Subproject 6(b)” has the meaning set forth in Section 5.3B as may be adjusted by Change Order in accordance with the terms of this Agreement.

“Guarantor” means Bechtel Global Energy, Inc., a Delaware corporation.

“Hazardous Materials” means any substance that under Applicable Law is considered to be hazardous or toxic or that is or may be required to be remediated, including (i) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing polychlorinated biphenyls and processes and certain cooling systems that use chlorofluorocarbons, (ii) any chemicals, materials or substances which are now or hereafter become defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” or any words of similar import pursuant to Applicable Law, or (iii) any other chemical, material, substance or waste, exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Instrumentality, or which may be the subject of liability for damages, costs or remediation.

“Heavy Haul Road” has the meaning set forth in Attachment Y.

“HSE Plan” has the meaning set forth in Section 3.10A.

“Indemnified Party” means any member of the Owner Group or the Contractor Group, as the context requires.

“Indemnifying Party” means Owner or Contractor, as the context requires.

“Independent Engineer” means the engineer(s) employed by Lender.

“Insolvency Event” in relation to any Party or Guarantor means the bankruptcy, insolvency, liquidation, administration, administrative or other receivership or dissolution of such Party or Guarantor, and any equivalent or analogous proceedings by whatever name known and in whatever jurisdiction, and any step taken (including the presentation of a petition or the passing of a resolution or making a general assignment or filing for the benefit of its creditors) for or with a view toward any of the foregoing.

“Insurance Provisional Sum” has the meaning set forth in Attachment EE.

“Intellectual Property” has the meaning set forth in Section 10.1A.

 

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“Interim Conditional Lien Waiver” means the conditional waiver and release provided to Owner by Contractor, Lien Waiver Subcontractors and Major Sub-subcontractors in accordance with the requirements of Section 7.2D, which shall be in the form of Attachment K, Schedules K-1 and K-3.

“Interim Unconditional Lien Waiver” means the unconditional waiver and release provided to Owner by Contractor, Lien Waiver Subcontractors, Major Sub-subcontractors and Bulk Order Subcontractors in accordance with the requirements of Section 7.2D, which shall be in the form of Attachment K, Schedules K-2 and K-4.

“Invoice” means Contractor’s request for a payment pursuant to Section 7.2, which invoice shall be in the form of Attachment I.

“Key Personnel” or “Key Persons” has the meaning set forth in Section 2.2A.

“Landowner” means any landowner that (i) has leased land or provided a right of way or easement to Owner in connection with the Project, (ii) is the grantee of an easement on the Site or (iii) owns land contiguous to the Site and who requires access to that land through the Site.

“Laydown Areas” means areas of the Site shown as such in Attachment Y where Contractor may locate Equipment, materials, utilities, buildings, and other temporary facilities for use during the Work.

“Lender” means any entity or entities providing temporary or permanent debt financing to Owner for the Project.

“Letter of Credit” means, as applicable, the Letter of Credit for Subproject 6(a) or the Letter of Credit for Subproject 6(b), or both.

“Letter of Credit for Subproject 6(a)” has the meaning set forth in Section 9.2A.

“Letter of Credit for Subproject 6(b)” has the meaning set forth in Section 9.2A.

“Level II” means a level of detail in the CPM Schedule that has three hundred (300) to four hundred (400) activities and has logical relationships at a summary level. The work breakdown structure in the Level II CPM Schedule is by Project phase (engineering, procurement, construction, startup and commissioning) and discipline/commodity (process engineering, mechanical engineering, etc. for engineering disciplines and Site work, concrete, steel, piping, etc. for construction). Critical Major Equipment (including bulk material requirements) and Subcontract procurement and deliveries are captured in the Level II CPM Schedule. All major schedule milestones are shown. The Level II CPM Schedule may be resource loaded to check staffing levels or installation rates.

“Level III” means a level of detail in the CPM Schedule which is an implementation (control) schedule used to direct the Work by providing schedule parameters to the more detailed implementation level, identify and resolve schedule problems, status progress in terms of Milestones, measure the impact of scope changes and delays, develop recovery plans, and support schedule-related contractual action. The work breakdown structure in the Level III CPM Schedule is at an area level, and shall involve over two thousand (2,000)

 

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activities. The Level III CPM Schedule is developed with the assistance of and accepted by Contractor’s Key Personnel. All Major Equipment (including bulk material requirements) are scheduled at area level and detailed construction activities at each commodity level follow the same area concept. The Subcontract schedules are similarly developed for each area, as applicable.

“Lien Waiver Subcontract” means any Subcontract either (i) having an aggregate value in excess of *** U.S. Dollars (U.S.$ ***), (ii) multiple Subcontracts with one Subcontractor that have an aggregate value in excess of *** U.S. Dollars (U.S.$ ***), or (iii) entered into with a Major Subcontractor.

“Lien Waiver Subcontractor” is any Subcontractor who has entered into a Lien Waiver Subcontract.

“Limited Notice to Proceed” or “LNTP” has the meaning set forth in Section 5.1.

“Liquefaction Facility” means collectively Subproject 1, Subproject 2, Subproject 3, Subproject 4, Subproject 5, and Subproject 6.

“Liquefaction Facility Site” means collectively Stage 1 Site, Stage 2 Site, Stage 3 Site and Stage 4 Site.

“Liquidated Damages” means Performance Liquidated Damages and Delay Liquidated Damages.

“LNG” means liquefied Natural Gas.

“LNG Berth 3” has the meaning set forth in Attachment A.

“LNG Berth 3 Change Order” has the meaning set forth in Section 4.10A.

“LNG Berth 3 Option” has the meaning set forth in Section 4.10A.

“LNG Berth 3 Option Date” has the meaning set forth in Section 4.10A.

“LNG Production Rate” has the meaning set forth in Attachment T.

“LNG Production Rate Guarantee Conditions” has the meaning set forth in Attachment S.

“LNG Production Rate MAC” has the meaning set forth in Attachment T.

“LNG Production Rate Performance Guarantee” has the meaning set forth in Attachment T.

“LNG Production Rate Performance Test” has the meaning set forth in Attachment T.

“LNG Tanker” means any ocean-going vessel used by Owner or its designee for the transportation of LNG produced at the Liquefaction Facility.

 

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“LNG Train” means LNG Train 6.

“LNG Train 1” has the meaning set forth in the Stage 1 EPC Agreement.

“LNG Train 2” has the meaning set forth in the Stage 1 EPC Agreement.

“LNG Train 3” has the meaning set forth in the Stage 2 EPC Agreement.

“LNG Train 4” has the meaning set forth in the Stage 2 EPC Agreement.

“LNG Train 5” has the meaning set forth in the Stage 3 EPC Agreement.

“LNG Train 6” is a portion of Subproject 6(a) and has the meaning set forth in Attachment A.

“LNTP No. 1” has the meaning specified in Section 5.1A.1.

“LNTP No. 2” has the meaning specified in Section 5.1A.2.

“LNTP No. 3” has the meaning specified in Section 5.1A.3.

“LNTP Work” means the Work, if any, defined by the Parties by Change Order which shall be performed upon issuance of any LNTP (including LNTP No.1, LNTP No. 2 and LNTP No. 3).

“Louisiana Sales and Use Tax” means Louisiana state, parish and local-option sales and use tax.

“Louisiana Sales and Use Tax Provisional Sum” has the meaning set forth in Attachment EE.

“Major Equipment” means the items of Equipment listed as such in Attachment G.

“Major Subcontract” means any Subcontract with a Subcontractor for those portions of the Work listed in Section 1.3 of Attachment G.

“Major Subcontractor” means a Subcontractor who enters into a Major Subcontract.

“Major Sub-subcontract” means any Sub-subcontract with a Sub-subcontractor for those portions of the Work listed in Section 1.4 of Attachment G.

“Major Sub-subcontractor” means a Sub-subcontractor who enters into a Major Sub-subcontract.

“Milestone” means a designated portion of the Work, as shown in Attachment C, Schedule C-1.

“Minimum Acceptance Criteria” or “MAC” means the LNG Production Rate MAC for Subproject 6(a).

 

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“Minimum Acceptance Criteria Correction Period” has the meaning set forth in Section 11.4B.

“MMBtu” means million British thermal units.

“MMSCF” means million SCF.

“MMSCFD” means million SCFD.

“Mobilization Payment” shall mean the Mobilization Payment for Subproject 6(a), and if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, it shall mean the Mobilization Payment for Subproject 6(a) or the Mobilization Payment for Subproject 6(b), as applicable.

“Mobilization Payment for Subproject 6(a)” has the meaning set forth in Section 7.2A.1

“Mobilization Payment for Subproject 6(b)” has the meaning set forth in Section 7.2A.2.

“Month” means a Gregorian calendar month; “month” means any period of thirty (30) consecutive Days.

“Monthly” means an event occurring or an action taken once every Month.

“Monthly Payments” has the meaning set forth in Section 7.2B.

“Monthly Progress Reports” has the meaning set forth in Section 3.19A.3.

“Month N” has the meaning set forth in Section 7.2C.

“Month N-1” means the Month prior to Month N.

“Month N-2” means the Month prior to Month N-1.

“Month N-3” means the Month prior to Month N-2.

“Month N+1” has the meaning set forth in Section 7.2C.1.

“Natural Gas” means combustible gas consisting primarily of methane.

“Notice to Proceed” or “NTP” means Notice to Proceed for Subproject 6(a) or Notice to Proceed for Subproject 6(b), as applicable.

“Notice to Proceed for Subproject 6(a)” or “NTP for Subproject 6(a)” has the meaning set forth in Section 5.2A.

“Notice to Proceed for Subproject 6(b)” or “NTP for Subproject 6(b)” has the meaning set forth in Section 5.2B.

 

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“Off-Site Rights of Way and Easements” means those off-Site rights of way and easements listed in Attachment Y.

“Operating Spare Parts” has the meaning set forth in Section 3.4.

“Operating Spare Parts List” has the meaning set forth in Section 3.4.

“Operations Activity” or “Operations Activities” has the meaning set forth in Section 11.7.

“Optimized Cascade Process” means ConocoPhillips Company’s natural gas cascade liquefaction process for transforming a methane-rich gas stream from the gas state to the liquid state wherein refrigerative cooling is provided by three cascaded refrigeration cycles which employ predominantly pure refrigerants and wherein the final refrigerant is either methane or predominantly methane in an open or closed cycle configuration.

“OSBL Facilities” has the meaning specified in the Scope of Facilities.

“Outstanding Claims” has the meaning set forth in Section 20.1B.

“Outstanding Claims Amount” has the meaning set forth in Section 20.1B.

“Owner” has the meaning set forth in the preamble hereto.

“Owner Default” has the meaning set forth in Section 16.5.

“Owner Group” means (i) Owner, its parent, Lender, and each of their respective Affiliates and (ii) the respective directors, officers, agents, employees and representatives of each Person specified in clause (i) above.

“Owner Permits” means the Permits listed in Attachment Q and any other Permits (not listed in either Attachment P or Attachment Q) necessary for performance of the Work or the operation of the Liquefaction Facility and which are required to be obtained in Owner’s name pursuant to Applicable Law.

“Owner Confirmation” has the meaning set forth in Section 4.1A.

“Owner Representative” means that Person or Persons designated by Owner in a written notice to Contractor who shall have complete authority to act on behalf of Owner on all matters pertaining to the Work, including giving instructions and making changes in the Work. The Owner Representative as of the Contract Date is designated in Section 4.9.

“Owner’s Confidential Information” has the meaning set forth in Section 19.1.

“P&ID’s” means piping and instrumentation diagrams.

“Parent Guarantee” has the meaning set forth in Section 21.18.

“Party” or “Parties” means Owner and/or Contractor and their successors and permitted assigns.

 

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“Payment Schedule” means the schedule of Milestone payments as set forth in Attachment C, Schedule C-1, and the schedule of Monthly Payments set forth in Attachment C, Schedule C-2.

“Performance and Attendance Bonus Provisional Sum” has the meaning set forth in Attachment EE.

“Performance Guarantee” means the LNG Production Rate Performance Guarantee for Subproject 6(a).

“Performance LD Exposure” has the meaning set forth in Section 20.1B.

“Performance Liquidated Damages” has the meaning set forth in Attachment T.

“Performance Test Procedures” has the meaning set forth in Section 11.1D.

“Performance Tests” means the tests performed (including any repetition thereof) to determine whether Subproject 6(a) meets the Performance Guarantee and/or Minimum Acceptance Criteria set forth in Attachment T, which tests shall be as specified in and consistent with Attachment S.

“Permit” means any valid waiver, certificate, approval (including FERC Authorization and FERC Authorization for LNG Berth 3), consent, license, exemption, variance, franchise, permit, authorization or similar order or authorization from any Governmental Instrumentality required to be obtained or maintained in connection with the Project, the Site, the Work or the Off-Site Rights of Way and Easements, including any condition or requirement imposed under any of the foregoing.

“Person” means any individual, company, joint venture, corporation, partnership, association, joint stock company, limited liability company, trust, estate, unincorporated organization, Governmental Instrumentality or other entity having legal capacity.

“Potential Lender” has the meaning set forth in Section 21.16A.

“Pre-Subproject 6(a) Substantial Completion Liabilities” has the meaning set forth in Section 20.1B.

“Project” has the meaning set forth in the recitals hereto.

“Project Commissioning Plan” means the detailed plan which shall be provided by Contractor to Owner in accordance with Attachment V.

“Project Insurances” has the meaning set forth in Attachment EE.

“Project Schedule” means the schedule for performance of the Work, including the date(s) for NTP, Target Substantial Completion Date(s), and the Guaranteed Substantial Completion Date(s) as more particularly described in Attachment E.

 

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“Provisional Sum” means, collectively or individually, the Louisiana Sales and Use Tax Provisional Sum, the Insurance Provisional Sum, the Currency Provisional Sum, the Fuel Provisional Sum, the Performance and Attendance Bonus Provisional Sum and any provisional sums applicable to Subproject 6(b) if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A.

“PSIG” means pounds per square inch, gauge.

“Punchlist” means a list of those finishing items required to complete the Work, the completion of which shall not materially interrupt nor affect the safe operation of all or any part of the Project after Substantial Completion of a Subproject, as more fully described in Section 11.5 of this Agreement.

“Qualified Research Expenditures” means the costs funded by Owner under this Agreement that are incurred in connection with Work performed by Contractor, its Subcontractors and Sub-subcontractors which meet all of the requirements of Section 41(d)(1) of the Internal Revenue Code of 1986, as amended, and which are related to the development or improvement of a business component of the Project.

“Ready for Performance Testing” means that all of the following have occurred with respect to Subproject 6(a): (i) the Subproject has started operation and successfully produced LNG; (ii) all OSBL Facilities and modifications and improvements to the Existing Facility, Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, and Stage 3 Liquefaction Facility required for the Subproject to start operation and successfully produce LNG are operational sufficiently to start the Performance Test; (iii) Contractor has completed all procurement, fabrication, assembly, erection, installation and pre-commissioning checks and tests of the Project to ensure that the entire Work, and each component thereof, of such Subproject was sufficiently fabricated, assembled, erected and installed so as to be capable of being operated safely within the requirements contained in this Agreement; and (iv) all portions of the Project have attained the state of completion necessary for commencement of the LNG Production Rate Performance Test for such Subproject.

“Ready for Start Up” or “RFSU” means that Contractor has completed all applicable Work in accordance with the requirements contained in this Agreement to ensure that Subproject 6(a) is ready to receive Commissioning Feed Gas in those quantities requested by Contractor pursuant to Section 11.1B to begin commissioning of the gas treatment portions of LNG Train 6.

“Rebatable Louisiana Sales and Use Tax” has the meaning set forth in Section 4.5A.

“Receiving Party” has the meaning set forth in Section 19.3.

“Record Drawings and Specifications” means final, record Drawings and Specifications of the Project showing the “as-built” conditions of the completed Project, as required under Attachment B. The foregoing record Drawings are also referred to herein as “Record Drawings”.

 

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“Recovery Schedule” has the meaning set forth in Section 5.5.

“Reduction” has the meaning set forth in Section 20.1B.

“Reduction Date” has the meaning set forth in Section 20.1B.

“Safety Standards” has the meaning set forth in Section 3.10A.

“SCF” means standard cubic feet.

“SCFD” means standard cubic feet per Day.

“Schedule Bonus Date for SP6(a)” has the meaning specified in Section 13.2A.

“Schedule Bonus Date for SP6(b)” has the meaning specified in Section 13.2C.

“Schedule Bonus for SP6(a)” has the meaning specified in Section 13.2A.

“Schedule Bonus for SP6(b)” has the meaning set forth in Section 13.2C.

“Scope of Facilities” has the meaning set forth in Attachment A.

“Scope of Work” means the description of Work to be performed by Contractor as set forth in this Agreement, including as more specifically set forth in Attachment A.

“SEC” means the Securities and Exchange Commission or any successor entity thereto.

“Ship Loading Time Test” means the commissioning test performed to measure LNG Tanker loading time, which test shall be as specified in and consistent with Attachment S.

“Site” means the Liquefaction Facility Site, the Laydown Areas, Heavy Haul Road, and the Existing Facility Site together.

“Specifications” means those documents consisting of the written requirements for Equipment, standards and workmanship for the Work, which are prepared as a part of and during the performance of the Work.

“Stage 1 EPC Agreement” has the meaning specified in the preamble.

“Stage 1 Liquefaction Facility” means the facilities that are engineered, procured and constructed pursuant to the Stage 1 EPC Agreement, including LNG Train 1, LNG Train 2 and related facilities to be engineered, procured, constructed, pre-commissioned, commissioned and tested by Contractor under the Stage 1 EPC Agreement, as further described in the Stage 1 EPC Agreement.

“Stage 1 Site” means those areas where the Stage 1 Liquefaction Facility is located as further described in the Stage 1 EPC Agreement and Attachment Y.

“Stage 2 EPC Agreement” has the meaning specified in the preamble.

 

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“Stage 2 Liquefaction Facility” means the facilities that are engineered, procured and constructed pursuant to the Stage 2 EPC Agreement, including LNG Train 3, LNG Train 4 and related facilities to be engineered, procured, constructed, pre-commissioned, commissioned and tested by Contractor under the Stage 2 EPC Agreement, as further described in the Stage 2 EPC Agreement.

“Stage 2 Site” means those areas where the Stage 2 Liquefaction Facility is located as further described in the Stage 2 EPC Agreement and Attachment Y.

“Stage 3 EPC Agreement” has the meaning specified in the preamble.

“Stage 3 Liquefaction Facility” means the facilities that are engineered, procured and constructed pursuant to the Stage 3 EPC Agreement, including LNG Train 5 and related facilities to be engineered, procured, constructed, pre-commissioned, commissioned and tested by Contractor under the Stage 3 EPC Agreement, as further described in the Stage 3 EPC Agreement.

“Stage 3 Site” means those areas where the Stage 3 Liquefaction Facility is located as further described in the Stage 3 EPC Agreement and Attachment Y.

“Stage 4 Liquefaction Facility” means the facilities contemplated in this Agreement (including the Scope of Work), including LNG Train 6, LNG Berth 3 (if elected by Owner under the LNG Berth 3 Option pursuant to Section 4.10A herein), and related facilities to be engineered, procured, constructed, pre-commissioned, commissioned and tested by Contractor under this Agreement.

“Stage 4 Site” means the Train 6 Site, the Laydown Areas, the Heavy Haul Road and Duck Blind Road, and if Owner elects to exercise the LNG Berth 3 Option pursuant to Section 4.10A, the site for the LNG Berth 3, as shown in Attachment Y.

“Start Up” means the start-up of a Subproject or portion thereof as described in Attachment V.

“Subcontract” means an agreement by Contractor with a Subcontractor for the performance of any portion of the Work.

“Subcontractor” means any Person, including an Equipment supplier or vendor, who has a direct contract with Contractor to manufacture or supply Equipment which is a portion of the Work, to lease Construction Equipment to Contractor in connection with the Work, or to otherwise perform a portion of the Work.

“Subproject” means, unless otherwise expressly stated in this Agreement, individually Subproject 6(a) or Subproject 6(b) which constitutes the entire Project.

“Subproject 1” has the meaning set forth in the Stage 1 EPC Agreement.

“Subproject 2” has the meaning set forth in the Stage 1 EPC Agreement.

 

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“Subproject 3” has the meaning set forth in the Stage 2 EPC Agreement.

“Subproject 4” has the meaning set forth in the Stage 2 EPC Agreement.

“Subproject 5” has the meaning set forth in the Stage 3 EPC Agreement.

“Subproject 6” means Subproject 6(a) and, if Owner elects to exercise the LNG Berth 3 Option pursuant to Section 4.10A , Subproject 6(b).

“Subproject 6(a)” means the Stage 4 Liquefaction Facility, including LNG Train 6, and all OSBL Facilities and modifications and improvements to the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 3 Liquefaction Facility and the Existing Facility required for LNG Train 6 to receive Natural Gas, produce LNG, and transfer LNG to all Tanks.

“Subproject 6(b)” means LNG Berth 3.

“Subproject 6(a) Delay Liquidated Damages” has the meaning set forth in Section 13.1.

“Subproject 6(b) Delay Liquidated Damages” has the meaning set forth in Section 13.1.

“Substantial Completion” means: (i) Substantial Completion of Subproject 6(a), or (ii) if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, Substantial Completion of Subproject 6(a) or Substantial Completion of Subproject 6(b), as applicable.

“Substantial Completion of Subproject 6” means (i) Substantial Completion of Subproject 6(a), if Owner does not exercise the LNG Berth 3 Option pursuant to Section 4.10A; or (ii) Substantial Completion of both Subproject 6(a) and 6(b), if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A.

“Substantial Completion of Subproject 6(a)” means that all of the following have occurred with respect to a Subproject 6(a): (i) the Minimum Acceptance Criteria set forth in Attachment T has been achieved; (ii) the Performance Guarantee set forth in Attachment T has been achieved, or if the Performance Guarantee has not been achieved but the MAC has been achieved, Contractor either (A) has paid the applicable Performance Liquidated Damages, or (B) elects or is directed to take corrective actions to achieve the Performance Guarantee pursuant to Section 11.4A(ii); (iii) all Work (including training in accordance with Section 3.5 and the delivery of all documentation required as a condition of Substantial Completion under this Agreement (including documentation required for operation, including test reports)) has been completed in accordance with the requirements of this Agreement other than any Work which meets the definition of Punchlist and other than the Work for Subproject 6(b) (if Owner elects to exercise the LNG Berth 3 Option); (iv) Contractor has delivered to Owner the Substantial Completion Certificate in the form of Attachment M as required under Section 11.1D; (v) Contractor has obtained all Contractor Permits for such Subproject; and (vi) Contractor has, pursuant to Section 3.4, delivered to the Site all Operating Spare Parts required by the Operating Spare Parts List to be delivered to the Site prior to Substantial Completion of Subproject 6(a).

 

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“Substantial Completion of Subproject 6(b)” means, if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, that all of the following have occurred with respect to a Subproject 6(b): (i) all Work (including training in accordance with Section 3.5 and the delivery of all documentation required as a condition of Substantial Completion under this Agreement (including documentation required for operation, including test reports)) for Subproject 6(b) has been completed in accordance with the requirements of this Agreement other than any Work which meets the definition of Punchlist; (ii) Contractor has delivered to Owner the Substantial Completion Certificate in the form of Attachment M as required under Section 11.1D; (iii) Contractor has obtained all Contractor Permits for such Subproject; and (iv) Contractor has, pursuant to Section 3.4, delivered to the Site all Operating Spare Parts required by the Operating Spare Parts List to be delivered to the Site prior to Substantial Completion of Subproject 6(b).

“Substantial Completion Certificate” has the meaning set forth in Section 11.2A.

“Sub-subcontract” means any agreement by a Subcontractor with a Sub-subcontractor or by a Sub-subcontractor with another Sub-subcontractor for the performance of any portion of the Work.

“Sub-subcontractor” means any Person, including an Equipment supplier or vendor, who has a direct or indirect contract with a Subcontractor or another Sub-subcontractor to manufacture or supply Equipment which comprises a portion of the Work, to lease Construction Equipment to Subcontractor or another Sub-subcontractor in connection with the Work, to perform a portion of the Work or to otherwise furnish labor or materials.

“Subsurface Soil Conditions” means subsurface conditions at the Site.

“Tank” means any of the existing LNG tanks S101, S102, S103, S104 or S105 of the Existing Facility and located at the Existing Facility Site.

“Target Substantial Completion Date” means the Target Substantial Completion Date for Subproject 6(a) and, if elected by Owner under the LNG Berth 3 Option pursuant to Section 4.10A herein, the Target Substantial Completion Date for Subproject 6(b), and “Target Substantial Completion Dates” means collectively the Target Substantial Completion Date for Subproject 6(a) and Target Substantial Completion Date for Subproject 6(b).

“Target Substantial Completion Date for Subproject 6(a)” means the date specified in Attachment E, which represents the target date for achieving Substantial Completion for Subproject 6(a).

“Target Substantial Completion Date for Subproject 6(b)” means the date specified in Attachment E, which represents the target date for achieving Substantial Completion for Subproject 6(b).

“Taxes” means any and all taxes, assessments, levies, duties, fees, charges and withholdings of any kind or nature whatsoever and howsoever described, including Louisiana Sales and Use Taxes, value-added, sales, use, gross receipts, license, payroll,

 

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federal, state, local or foreign income, environmental, profits, premium, franchise, property, excise, capital stock, import, stamp, transfer, employment, occupation, generation, privilege, utility, regulatory, energy, consumption, lease, filing, recording and activity taxes, levies, duties, fees, charges, imposts and withholding, together with any and all penalties, interest and additions thereto.

“Technical Services Agreements” means collectively, the Technical Services Agreement between Sabine Pass Liquefaction, LLC and Contractor, dated May 3, 2013 (“2013 Technical Services Agreement”), and the Technical Services Agreement between Sabine Pass Liquefaction, LLC and Contractor, dated February 28, 2018 and any amendments thereto (“2018 Technical Services Agreement”).

“Texas Construction Anti-Indemnity Statute” means Texas Statutes and Codes Annotated, Insurance Code § 151.

“Third Party” means any Person other than a member of (i) the Contractor Group, (ii) the Owner Group, or (iii) any Subcontractor or Sub-subcontractor or any employee, officer or director of such Subcontractor or Sub-subcontractor.

“Train 6 Site” has the meaning set forth in Attachment Y.

“Unit Rates” has the meaning set forth in Section 6.1C.

“USACE” means the United States Army Corps of Engineers.

“U.S. Dollars” or “U.S.$” means the legal tender of the United States of America.

“U.S. Import Laws” means all U.S. import laws, regulations, tariffs, duties and restrictions. Such laws, regulations, tariffs, duties and restrictions include ordinary customs duties, antidumping duties, countervailing duties, quotas, tariff-rate quotas, quantitative restrictions, and other tariffs, duties, or restrictions imposed under any statutory authority, including but not limited to Section 232 of the Trade Expansion Act of 1962 (as amended), Section 301 of the Trade Act of 1974 (as amended), and Section 201 of the Trade Act of 1974 (as amended), and any proclamations or orders by the President of the United States of America that imposed additional or different tariffs or quotas on certain imported materials, and all other such measures whether by legislation, executive order, proclamation agency action, or otherwise.

“Warranty” or “Warranties” has the meaning set forth in Section 12.1A.

“Windstorms” has the meaning set forth in Section 8.2.

“Work” means the work obligations, duties and responsibilities to be performed by or on behalf of Contractor under this Agreement in connection with the procurement, engineering, design, fabrication, erection, installation, manufacture, inspection, repair (including Corrective Work), testing (including the Performance Tests), training, pre-commissioning, commissioning and placing into service of the Stage 4 Liquefaction Facility and the related component Equipment and Subproject 6 (including the

 

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modifications and improvements to the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 3 Liquefaction Facility, and the Existing Facility), and the required related labor and materials, all in accordance with the terms of this Agreement and the various Attachments, including Attachment A. For the avoidance of doubt, the Work will include all of the above obligations, duties and responsibilities specified above for Subproject 6(b) if the LNG Berth 3 Option is elected by Owner pursuant to Section 4.10.

“Work Product” has the meaning set forth in Section 10.1A.

1.2 The meanings specified in this Article 1 are applicable to both the singular and plural. As used in this Agreement, the terms “herein,” “herewith,” “hereunder” and “hereof” are references to this Agreement taken as a whole, and the terms “include,” “includes” and “including” mean “including, without limitation,” or variant thereof. Reference in this Agreement to an Article or Section shall be a reference to an Article or Section contained in this Agreement (and not in any Attachments or Schedules to this Agreement) unless expressly stated otherwise, and a reference in this Agreement to an Attachment or Schedule shall be a reference to an Attachment or Schedule attached to this Agreement unless expressly stated otherwise.

1.3 In this Agreement, wherever the terms “LNG Berth” or “Subproject 6(b)” are used, such shall be read as having “(if elected by Owner under the LNG Berth 3 Option pursuant to Section 4.10A herein)” following immediately thereafter.

ARTICLE 2

RELATIONSHIP OF OWNER, CONTRACTOR AND SUBCONTRACTORS

2.1 Status of Contractor. The relationship of Contractor to Owner shall be that of an independent contractor. Any provisions of this Agreement which may appear to give Owner or the Owner Representative the right to direct or control Contractor as to details of performing the Work, or to exercise any measure of control over the Work, shall be deemed to mean that Contractor shall follow the desires of Owner or the Owner Representative in the results of the Work only and not in the means by which the Work is to be accomplished, and Contractor shall have the complete right, obligation and authoritative control over the Work as to the manner, means or details as to how to perform the Work. Nothing herein shall be interpreted to create a master-servant or principal-agent relationship between Contractor, or any of its Subcontractors or Sub-subcontractors, and Owner. Nevertheless, Contractor shall comply with all provisions, terms and conditions of this Agreement, and the fact that Contractor is an independent contractor does not relieve it from its responsibility to fully, completely, timely and safely perform the Work in compliance with this Agreement. Except to the extent set forth in this Agreement, including Sections 6.1C, 6.2D, 11.7 and 16.3, and subject at all times to Section 6.7, Owner shall not be entitled to issue any instruction or directive to Contractor or any of its Subcontractors or Sub-subcontractors in connection with performance of the Work. Owner shall provide a copy to Contractor of any written communication from Owner to any Subcontractor or Sub-subcontractor that relates to Contractor’s performance of the Work.

 

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2.2 Key Personnel, Organization Chart and Contractor Representative.

A. Key Personnel and Organization Chart. Attachment F sets forth Contractor’s organizational chart to be implemented for the Work and also contains a list of key personnel (“Key Personnel” or “Key Persons”) from Contractor’s organization who will be assigned to the Work. Key Personnel shall, unless otherwise expressly stated in Attachment F, be devoted full-time to the Work until Substantial Completion of Subproject 6 and Key Personnel shall not be removed or reassigned without Owner’s prior written approval (such approval not to be unreasonably withheld); provided, however, Owner’s prior written approval shall not be required in the event Contractor removes or reassigns a Key Person at any time prior to Owner’s issuance of the NTP for Subproject 6(a). All requests for the substitution of Key Personnel shall include a detailed explanation and reason for the request and the resumes of professional education and experience for a minimum of two (2) candidates of equal or greater qualifications and experience. Should Owner approve of the replacement of a Key Person, Contractor shall, so far as reasonably practicable, allow for an overlap of at least two (2) weeks during which both the Key Person to be replaced and the Owner-approved new Key Person shall work together full time. The additional cost of any replacement of such Key Personnel and overlap time shall be entirely at Contractor’s expense. Owner shall have the right, but not the obligation, at any time to reasonably request that Contractor replace any Key Person with another employee acceptable to Owner. In such event, Contractor shall reasonably consider Owner’s request that Contractor replace such Key Person.

B. Contractor Representative. Contractor designates *** as the Contractor Representative. Notification of a change in Contractor Representative shall be provided in advance, in writing, to Owner. The Contractor Representative is a Key Person.

2.3 Subcontractors and Sub-subcontractors. Owner acknowledges and agrees that Contractor intends to have portions of the Work accomplished by Subcontractors pursuant to written Subcontracts between Contractor and such Subcontractors, and that such Subcontractors may have certain portions of the Work performed by Sub-subcontractors. All Subcontracts shall, so far as reasonably practicable, be consistent with the terms or provisions of this Agreement. No Subcontractor or Sub-subcontractor is intended to be or shall be deemed a third-party beneficiary of this Agreement. Contractor shall be fully responsible to Owner for the acts and omissions of Subcontractors and Sub-subcontractors and of Persons directly or indirectly employed by either of them in the performance of the Work, as it is for the acts or omissions of Persons directly employed by Contractor. The work of any Subcontractor or Sub-subcontractor shall be subject to inspection by Owner to the same extent as the Work of Contractor. All Subcontractors and Sub-subcontractors and their respective personnel on Site or who may come on the Site or the Off-Site Rights of Way and Easements are to be instructed by Contractor in the terms and requirements of Contractor’s safety and environmental protection regulations and policies and shall be expected to comply with such regulations. In the event that any personnel are not adhering to such regulations and policies, such personnel shall be removed by Contractor. In no event shall Contractor be entitled to any adjustment of the Contract Price or Project Schedule as a result of compliance with such regulations and policies set forth in the HSE Plan, or any removal of personnel necessitated by non-compliance. Nothing contained herein shall (i) create any contractual relationship between any Subcontractor and Owner, or between any Sub-subcontractor and Owner, or (ii) obligate Owner to pay or cause the payment of any amounts to Subcontractor or Sub-subcontractor.

 

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2.4 Subcontracts and Sub-subcontracts.

A. Approved List. Section 1.7 of Attachment G sets forth a list of contractors and suppliers that Contractor and Owner have agreed are approved for selection as Subcontractors for the performance of that portion of the Work specified in Attachment G. Approval by Owner of any Subcontractors or Sub-subcontractors does not relieve Contractor of any responsibilities under this Agreement.

B. Additional Proposed Major Subcontractors. In the event that Contractor is considering the selection of a Subcontractor not listed in Section 1.7 of Attachment G for a Major Subcontract, Contractor shall (i) notify Owner of such proposed Subcontractor as soon as reasonably practicable during the selection process and furnish to Owner all information reasonably requested by Owner with respect to Contractor’s selection criteria, and (ii) notify Owner no less than ten (10) Business Days prior to the execution of the Subcontract with such Subcontractor not listed in Attachment G. Owner shall have the discretion, not to be unreasonably exercised, to reject any such proposed Subcontractor. Contractor shall not enter into any Subcontract with a proposed Subcontractor that is rejected by Owner in accordance with the preceding sentence. Owner shall undertake in good faith to review the information provided by Contractor pursuant to this Section 2.4B expeditiously and shall notify Contractor of its decision to accept or reject a proposed Major Subcontractor as soon as practicable after such decision is made. Failure of Owner to accept or reject a proposed Major Subcontractor within ten (10) Business Days shall be deemed to be an acceptance of such Subcontractor, but Owner’s acceptance of a proposed Major Subcontractor shall in no way relieve Contractor of its responsibility for performing the Work in compliance with this Agreement. After execution of such Subcontract, the Subcontract shall be considered a Major Subcontract and the Subcontractor shall be considered a Major Subcontractor.

C. Other Additional Proposed Subcontractors. For any Subcontractor not covered by Section 2.4A or 2.4B and which would be entering into either (a) a Subcontract having an aggregate value in excess of *** U.S. Dollars (U.S.$***), or (b) multiple Subcontracts having an aggregate value in excess of *** U.S. Dollars (U.S.$***), Contractor shall, within fifteen (15) Business Days after the execution of any such Subcontract, notify Owner in writing of the selection of such Subcontractor and inform Owner generally what portion of the Work such Subcontractor is performing.

D. Delivery of Subcontracts. Within ten (10) Days of Owner’s request, Contractor shall furnish Owner with a copy of any Subcontract, excluding provisions regarding pricing, discount or credit information, payment terms, payment schedules, retention, performance security, bid or proposal data, and any other information which Contractor or any Subcontractor reasonably considers to be commercially sensitive information.

 

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E. Terms of Major Subcontracts and Major Sub-subcontracts. In addition to the requirements in Section 2.3 and without in any way relieving Contractor of its full responsibility to Owner for the acts and omissions of Subcontractors and Sub-subcontractors, each Major Subcontract and each Major Sub-subcontract shall contain the following provisions:

1. the Major Subcontract and the Major Sub-subcontract may be assigned to Owner without the consent of the respective Major Subcontractor or Major Sub-subcontractor; provided, however, with respect to each Construction Equipment rental or lease agreement that falls within the definition of Major Subcontract or Major Sub-subcontract, Contractor shall only be obligated to use its best efforts to include a provision that such agreement may be assigned to Owner without the consent of the respective Construction Equipment Lessor; and

2. so far as reasonably practicable, the Major Subcontractor and the Major Sub-subcontractor shall comply with all requirements and obligations of Contractor to Owner under this Agreement, as such requirements and obligations are applicable to the performance of the work under the respective Major Subcontract or Major Sub-subcontract.

F. Contractor’s Affiliates. If Contractor subcontracts with an Affiliate of Contractor for certain Work, and such Affiliate subcontracts with any entities for a portion of the Work undertaken by such Affiliate, such entities shall be treated as a Subcontractor under this Agreement.

2.5 Contractor Acknowledgements.

A. The Agreement. Prior to the execution of this Agreement, under the Technical Services Agreements, Contractor performed engineering, cost estimating and related services and developed, provided or verified all of the information that forms the Scope of Work and Design Basis (subject to Section 4.8) listed in Attachment A, for the purpose of determining that such information is adequate and sufficiently complete for Contractor to engineer, procure, construct, pre-commission, commission, start-up and test a fully operational LNG export, liquefaction and send-out terminal facility and to engineer, procure and construct certain improvements and modifications to the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 3 Liquefaction Facility, and the Existing Facility for the Contract Price, within the required times set forth in the Project Schedule, and in accordance with all requirements of this Agreement, including Applicable Codes and Standards, Applicable Law, Warranties, Minimum Acceptance Criteria and Performance Guarantee. Further, Contractor and its Affiliates originally engineered and constructed the Existing Facility pursuant to separate agreements entered into with Owner’s Affiliates and have engineered, procured and constructed, or are in the process of engineering, procuring and constructing, the Stage 1 Liquefaction Facility pursuant to the Stage 1 EPC Agreement, the Stage 2 Liquefaction Facility pursuant to the Stage 2 EPC Agreement, and the Stage 3 Liquefaction Facility pursuant to the Stage 3 EPC Agreement. Accordingly, subject to Section 4.8 and Section 3.1 of Attachment A, Contractor (i) hereby agrees that it shall have no right to claim or seek an increase in the Contract Price or an

 

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adjustment to the Project Schedule with respect to any incomplete, inaccurate or inadequate information that may be contained or referenced in Attachment A, (ii) hereby waives and releases Owner from and against any such claims, and (iii) shall not be relieved of its responsibility to achieve all requirements under this Agreement (including meeting Applicable Codes and Standards, Applicable Law, Minimum Acceptance Criteria and Performance Guarantee) due to any such incomplete, inaccurate or inadequate information. Subject to Section 4.8, Owner makes no guaranty or warranty, express or implied, as to the accuracy, adequacy or completeness of any information that is contained in or referenced in Attachment A.

B. Conditions of the Site.

1. Subject to adjustment as appropriate pursuant to Section 4.3, Contractor agrees and acknowledges that it is sufficiently familiar with the Liquefaction Facility Site, the Laydown Areas, the Existing Facility Site (to the extent related to the Work) and the Off-Site Rights of Way and Easements to perform the Work in accordance with the Project Schedule, and understands the climate, terrain, logistics, and other difficulties that it may encounter in performing the Work in accordance with the Project Schedule. Except as otherwise provided in this Agreement, including Contractor’s rights pursuant to Section 6.8A, Contractor waives any right to claim an adjustment in the Contract Price or the Project Schedule in respect of any failure to timely perform the Work in accordance with the Project Schedule as a result of any of the following conditions at the Site: (i) river levels; (ii) climatic conditions, tides, and seasons; (iii) availability of laborers, Subcontractors, Sub-subcontractors, Construction Equipment or any other items or supplies; (iv) adequate availability and transportation of Equipment; and (v) breakdown or other failure of Construction Equipment; provided, however, that Contractor does not assume the risk or waive its rights with respect to those conditions in Section 2.5B.2. This Section 2.5B.1 shall not affect the rights of Contractor with respect to Change Orders in accordance with Section 4.3.

2. If Contractor encounters Subsurface Soil Conditions (including any subsurface man-made objects, e.g. below grade tanks, vaults or pipelines) that (i) are materially different from the information regarding such Subsurface Soil Conditions as provided in the Geotechnical Reports (including the encountering of Subsurface Soil Conditions that could not reasonably be anticipated by Contractor using GECP based on the information provided in the Geotechnical Reports) and (ii) adversely affects (a) Contractor’s costs of performance of the Work, (b) Contractor’s ability to perform the Work in accordance with the Project Schedule or (c) Contractor’s ability to perform any material obligation under this Agreement, Contractor shall be entitled to a Change Order; provided that Contractor complies with the requirements set forth in Sections 6.2, 6.5 and 6.9.

C. Applicable Law and Applicable Codes and Standards. Contractor has investigated to its satisfaction Applicable Law in existence as of June 23, 2017 and Applicable Codes and Standards set forth or listed in any document or Drawing listed in Attachment A, and warrants that it can perform the Work at the Contract Price and within

 

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the Project Schedule in accordance with such Applicable Law and such Applicable Codes and Standards. Contractor shall perform the Work in accordance with Applicable Law and such Applicable Codes and Standards; provided, however, Contractor shall be entitled to a Change Order for any Change in Law to the extent allowed under Section 6.2A.1. Contractor shall advise Owner of any change in Applicable Codes and Standards which does not constitute a Change in Law and, upon such advisement, Owner may elect, at its sole option, to implement a change in accordance with Section 6.1D.

ARTICLE 3

CONTRACTOR’S RESPONSIBILITIES

3.1 Scope of Work.

A. Generally. Subject to Section 3.1B, the Work shall be performed on a turnkey basis and shall include all of the Work required to achieve RFSU of Subproject 6(a), Substantial Completion of Subproject 6, and Final Completion in accordance with the requirements of this Agreement, including achieving the Minimum Acceptance Criteria and Performance Guarantee. Contractor shall be required to integrate and use Owner’s operations personnel in its pre-commissioning, commissioning, testing, and start-up efforts, subject to Owner’s obligations under Section 4.4. Contractor shall perform the Work in accordance with GECP, Applicable Law, Applicable Codes and Standards, and all other terms and provisions of this Agreement, with the explicit understanding that: (i) the Stage 4 Liquefaction Facility will operate as an LNG export, liquefaction and send-out terminal facility meeting all requirements and specifications of this Agreement, (ii) that the Existing Facility will continue to operate as an LNG receiving, storage and regasification facility; (iii) the Stage 1 Liquefaction Facility will continue to operate as an LNG export, liquefaction and send-out terminal facility; (iv) the Stage 2 Liquefaction Facility will continue to operate as an LNG export, liquefaction and send-out terminal facility; and (v) once completed pursuant to the Stage 3 EPC Agreement, the Stage 3 Liquefaction Facility will continue to operate as an LNG export, liquefaction and send-out terminal facility. It is understood and agreed that the Work shall include any incidental work that can reasonably be inferred as necessary to complete the Project in accordance with GECP, Applicable Law, Applicable Codes and Standards, and all other terms and provisions of this Agreement, excluding only those items which Owner has specifically agreed to provide under the terms of this Agreement. Without limiting the generality of the foregoing, the Work is more specifically described in Attachment A.

B. Exception to Scope of Work. Contractor shall not be responsible for providing (i) the Owner Permits; (ii) LNG; (iii) those requirements set forth under Sections 4.3, 4.4 and 4.8; (iv) metes and bounds description of the Site and a survey of the Site showing the boundaries of the Site and one survey control point pursuant to Section 4.6; and (v) any other obligations or requirements set forth in this Agreement as required to be performed by Owner.

 

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3.2 Specific Obligations. Without limiting the generality of Section 3.1 or the requirements of any other provision of this Agreement, Contractor shall:

A. procure, supply, transport, handle, properly store, assemble, erect and install all Equipment;

B. provide construction, construction management (including the furnishing of all Construction Equipment used in the field, and all Site supervision and craft labor), inspection and quality control services required to ensure that the Work is performed in accordance herewith;

C. negotiate all guarantees, warranties, delivery schedules and performance requirements with all Subcontractors so that all Subcontracts are, so far as reasonably practicable, consistent with this Agreement, as set forth in Sections 2.3 and 2.4;

D. perform shop and other inspections of the work of Subcontractors and Sub-subcontractors as required by Contractor to ensure that such work meets all of the requirements of this Agreement;

E. ensure that the Work is performed in accordance with the Project Schedule;

F. until Substantial Completion of Subproject 6(a), conduct and manage all pre-commissioning, start-up, operations, commissioning, and Performance Testing of such Subproject, while supervising and directing operating personnel provided by Owner;

G. until Substantial Completion of Subproject 6(b), conduct and manage all pre-commissioning, start-up, operations, and commissioning of such Subproject, while supervising and directing operating personnel provided by Owner;

H. obtain all Contractor Permits;

I. provide assistance, information and documentation as reasonably requested by Owner to enable Owner to obtain the Owner Permits; provided that such assistance, information and documentation shall not include Contractor’s provision of information, testimony, documents or data by Contractor’s employees under oath (unless specifically authorized by Contractor) and activities outside the field of Contractor’s expertise, training or experience of personnel assigned to the performance of the Work under this Agreement (except to the extent provided for by Change Order issued pursuant to Section 6.1 and agreed by Contractor);

J. provide training for Owner’s operating and maintenance personnel per Section 3.5;

K. cooperate with and respond promptly to reasonable inquiries from Owner; provided that such cooperation shall not include Contractor’s provision of information, testimony, documents or data by Contractor’s employees under oath (unless specifically authorized by Contractor) and activities outside the field of Contractor’s expertise, training or experience of personnel assigned to the performance of the Work under this Agreement (except to the extent provided for by Change Order issued pursuant to Section 6.1 and agreed by Contractor);

 

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L. be responsible for connecting the Stage 4 Liquefaction Facility to the permanent utilities to the extent set forth in Attachment A;

M. be responsible for connecting the Stage 4 Liquefaction Facility to the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, and the Stage 3 Liquefaction Facility;

N. supply all initial fills, excluding LNG and Feed Gas; and

O. perform all design and engineering Work in accordance with this Agreement, including that specified in Section 3.3.

3.3 Design and Engineering Work.

A. General. Contractor shall, as part of the Work, perform all design and engineering Work in accordance with this Agreement and cause the Work to meet and achieve the requirements of this Agreement, including achieving the Minimum Acceptance Criteria and Performance Guarantee.

B. Drawings and Specifications. Upon receipt of a Limited Notice to Proceed or Notices to Proceed issued in accordance with Sections 5.1 and 5.2, Contractor shall commence the preparation of the Drawings and Specifications for all Work relating to such LNTP or NTP. The Drawings and Specifications shall be based on the requirements of this Agreement, including the Scope of Work, Design Basis, GECP, Applicable Codes and Standards and Applicable Law.

C. Review Process.

1. Submission by Contractor. Contractor shall submit copies of the Drawings and Specifications specified in Attachment B to Owner for formal review, comment or disapproval in accordance with Attachment B.

2. Review Periods. Owner shall have up to ten (10) Business Days from its receipt of Drawings and Specifications submitted in accordance with Section 3.3C.1 to issue to Contractor written comments, proposed changes and/or written disapprovals of the submission of such Drawings and Specifications to Contractor.

If Owner does not issue any comments, proposed changes or written disapprovals within such time periods, Contractor may proceed with the development of such Drawings and Specifications and any construction relating thereto, but Owner’s lack of comments or disapproval, if applicable, shall in no event constitute an approval of the matters received by Owner.

In the event that Owner disapproves the Drawings or Specifications submitted in accordance with Section 3.3C.1 (which disapproval shall not be unreasonably issued), Owner shall provide Contractor with a written statement of the reasons for such rejection within the time period required for Owner’s response, and Contractor shall provide Owner

 

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with revised and corrected Drawings and Specifications as soon as possible thereafter. In the event Owner unreasonably disapproves such Drawings and Specifications and such unreasonable disapproval adversely impacts Contractor’s costs or ability to perform the Work in accordance with the Project Schedule, Contractor shall be entitled to a Change Order; provided that Contractor complies with the requirements set forth in Sections 6.2, 6.5 and 6.9.

Provided that Owner has not disapproved of the Drawings and Specifications submitted in accordance with Section 3.3C.1, such Drawings and Specifications shall be the Drawings and Specifications that Contractor shall use to construct the Work; provided that Owner’s lack of disapproval of or comments on, or any approval by Owner of, any Drawings and Specifications shall not in any way be deemed to limit or in any way alter Contractor’s responsibility to perform and complete the Work in accordance with the requirements of this Agreement.

D. Design Licenses. Contractor shall perform all design and engineering Work in accordance with Applicable Law, and all Drawings and Specifications shall be signed and stamped by design professionals licensed in accordance with Applicable Law.

E. CAD Drawings. Those Drawings and Record Drawings specified in Attachment A and Attachment B and prepared by Contractor or its Subcontractors or Sub-subcontractors under this Agreement shall be prepared using computer aided design (“CAD”). Contractor shall provide Drawings, including Record Drawings, in their native formats as set forth in Attachment B along with six (6) hard copies.

F. Progress P&ID’s. During the Project, Contractor shall maintain and provide Owner with access to a marked, up-to-date set of P&ID’s maintained for and by Contractor.

G. Record Drawings and Specifications. As a condition precedent to Final Completion, Contractor shall deliver to Owner the Record Drawings and Specifications in accordance with Attachment A and Attachment B.

H. Other Information. Contractor shall deliver copies of all other documents required to be delivered pursuant to Attachment B within and in accordance with the requirements and timing set forth in Attachment B.

3.4 Spare Parts.

A. Operating Spare Parts. No later than twenty-four (24) months prior to the Guaranteed Substantial Completion Date for Subproject 6(a) and no later than twenty-four (24) months prior to the Guaranteed Substantial Completion Date for Subproject 6(b) (if Owner elects to exercise the LNG Berth Option pursuant to 4.10A), Contractor shall deliver to Owner a detailed list of all manufacturer and Contractor-recommended spare parts and special tools necessary for operating and maintaining all Equipment (including components and systems of such Equipment) for two (2) years following Substantial Completion of the applicable Subproject (each hereinafter referred to as “Operating Spare Parts”). Within thirty (30) Days thereafter, Owner shall specify in writing which items on

 

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the list it wishes Contractor to purchase and whether such items are requested to be delivered to the Site prior to Substantial Completion of the applicable Subproject or Final Completion. Within a further thirty (30) Days, Contractor shall confirm the extent to which it is able to comply with Owner’s request and shall submit to Owner the final list of Operating Spare Parts to be purchased. The list of Operating Spare Parts to be procured by Contractor and delivered to Owner (“Operating Spare Parts List”) shall be mutually agreed upon via a Change Order. Prior to and as a condition precedent to Substantial Completion of a Subproject, Contractor shall deliver to the Site all Operating Spare Parts required by the above referenced Change Order to be delivered to the Site prior to Substantial Completion of such Subproject as set forth in the Operating Spare Parts List. Prior to and as a condition to achieving Final Completion, Contractor shall deliver to the Site all Operating Spare Parts required to be delivered to the Site prior to Final Completion as set forth in the Operating Spare Parts List. The Operating Spare Parts List shall include all information specified in Attachment W.

3.5 Training Program in General. As part of the Work, a reasonable number of personnel designated by Owner in its sole discretion (but not to exceed the number of Persons listed in Attachment V) shall be given a training course designed and administered by Contractor, which shall be based on the outline of the program contained in Attachment V and shall cover at a minimum the following topics: (i) the testing of each item of Equipment; (ii) the start-up, operation and shut-down of each item of Equipment; (iii) the performance of routine, preventative and emergency maintenance for each item of Equipment; and (iv) spare parts to be maintained for each item of Equipment, and their installation and removal. Training shall be provided by personnel selected by Contractor who, in Contractor’s and the Equipment Subcontractor’s or Sub-subcontractor’s judgment, are qualified to provide such training, and shall take place at such locations and at such times as agreed upon by the Parties. Contractor shall provide trainees with materials described in Attachment V. Contractor shall also provide to Owner all training materials and aids developed to conduct such training in order to facilitate future training by Owner of additional personnel.

3.6 Environmental Regulations and Environmental Compliance. Without limitation of Section 3.1, Contractor shall perform the Work and shall design, construct, pre-commission, commission, start-up and test the Stage 4 Liquefaction Facility and, as applicable, the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 3 Liquefaction Facility, and the Existing Facility, in compliance with Contractor’s HSE Plan. Contractor shall dispose of all non-hazardous wastes and Hazardous Materials brought onto the Site by Contractor or any of its Subcontractors or Sub-subcontractors or generated during performance of the Work, all of which shall be disposed in off-Site locations permitted to receive such non-hazardous wastes and Hazardous Materials. Contractor shall deliver to Owner (i) notice of any pending or threatened material environmental claim with respect to the Project, and (ii) promptly upon their becoming available, copies of written communications with any Governmental Instrumentality relating to any such material environmental claim.

3.7 Construction Equipment. Contractor shall furnish all Construction Equipment necessary and appropriate for the timely and safe completion of the Work in compliance with this Agreement. Notwithstanding anything to the contrary contained in this Agreement, Contractor shall be responsible for damage to or destruction or loss of, from any cause whatsoever, all such

 

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Construction Equipment. Contractor shall require all insurance policies (including policies of Contractor and all Subcontractors and Sub-subcontractors) in any way relating to such Construction Equipment to include clauses stating that each underwriter will waive all rights of recovery, under subrogation or otherwise, against Owner, Lender and any Owner Affiliates.

3.8 Employment of Personnel.

A. Contractor shall not employ, or permit any Subcontractor or Sub-subcontractor to employ, at the Site, in connection with its performance under this Agreement, any Person who is demonstrably not skilled or qualified in the work assigned to such Person. Contractor agrees to promptly remove (or to require any Subcontractor to remove) from its services in connection with the Work any Person who does not meet the foregoing requirements. In addition, Contractor agrees that, after receipt of written notice from Owner, it shall promptly remove from the Work any employee or agent of Contractor or of Contractor’s Subcontractors or Sub-subcontractors who, in Owner’s reasonable opinion, is unsafe, incompetent, careless, unqualified to perform the Work assigned to such Person, creates an unsafe work environment, disregards the terms and conditions of this Agreement, or is interrupting, interfering with or impeding the timely and proper completion of the Work. NOTWITHSTANDING THE FOREGOING, OWNER SHALL HAVE NO LIABILITY AND CONTRACTOR AGREES TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER GROUP FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DAMAGES, LOSSES, COST AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES AND LITIGATION OR ARBITRATION EXPENSES) AND LIABILITIES, OF WHATSOEVER KIND OR NATURE, WHICH MAY DIRECTLY OR INDIRECTLY ARISE OR RESULT FROM CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR CHOOSING TO TERMINATE THE EMPLOYMENT OF ANY SUCH EMPLOYEE (INCLUDING ANY KEY PERSONS) OR REMOVE SUCH EMPLOYEE FROM THE PROJECT WHO FAILS TO MEET THE FOREGOING REQUIREMENTS FOLLOWING A REQUEST BY OWNER TO HAVE SUCH EMPLOYEE REMOVED FROM THE WORK. Any such employee shall be replaced at the cost and expense of Contractor or the relevant Subcontractor, as appropriate; provided, however, that should (i) Contractor disagree with Owner’s identification of an individual for removal from the performance of services under this Section 3.8A, (ii) Owner not retract its request for removal upon being advised of such disagreement, and (iii) such individual does not in fact conform to the foregoing criteria for removal, CONTRACTOR SHALL BE ENTITLED TO A RECIPROCAL INDEMNITY FROM OWNER IN RESPECT TO ANY CLAIMS, CAUSES OF ACTION, DAMAGES, LOSSES, COST AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES AND LITIGATION OR ARBITRATION EXPENSES) AND LIABILITIES OF WHATEVER KIND OR NATURE, WHICH MAY DIRECTLY OR INDIRECTLY ARISE FROM CONTRACTOR’S REMOVAL OF ANY SUCH EMPLOYEE (INCLUDING ANY KEY PERSONS) FROM THE PROJECT.

B. Contractor is responsible for maintaining labor relations in such manner that, so far as reasonably practicable, there is harmony among workers. Contractor and its Subcontractors and Sub-subcontractors shall conduct their labor relations in accordance with the recognized prevailing local area practices. Contractor shall inform Owner promptly of any labor dispute, anticipated labor dispute, request or demand by a labor organization, its representatives or members which may reasonably be expected to affect the Work. Contractor further agrees to inform Owner, before any commitments are made, during the negotiations of any agreements or understandings with local or national labor organizations.

 

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3.9 Clean-Up. Contractor shall, to Owner’s reasonable satisfaction, at all reasonable times keep the Site free from all waste materials or rubbish caused by the activities of Contractor or any of its Subcontractors or Sub-subcontractors. As soon as practicable after the completion of all Punchlist items, Contractor shall remove, at its own cost, all of its Construction Equipment and remove from the Site all waste material and rubbish that was generated or brought on to the Site by Contractor or any of its Subcontractors or Sub-subcontractors. The Site shall be restored to the extent, if any, required by Attachment A. In the event of Contractor’s failure to comply with any of the foregoing, Owner may accomplish the same; provided, however, that Contractor shall be responsible for all reasonable costs associated with such removal and/or restoration, including costs associated with permitting and transportation.

3.10 HSE Plan; Security.

A. Contractor recognizes and agrees that safety and physical security are of paramount importance in the performance of the Work and that Contractor is responsible for performing the Work in a safe and physically secure manner. No later than sixty (60) Days after Owner’s issuance of the earlier of LNTP or NTP for Subproject 6(a), Contractor shall submit to Owner for its review a health, safety and environmental plan (including a drug testing program) meeting the requirements set forth in Attachment J (the “HSE Plan”). Contractor further agrees to perform the Work in accordance with the health, safety and environmental rules and standards of Applicable Law, GECP and the HSE Plan (collectively, the “Safety Standards”), and Contractor shall assume all costs associated with compliance therewith. Owner’s review of the HSE Plan shall not in any way relieve Contractor of its obligations under this Agreement (including Contractor’s obligations to conduct the Work in accordance with the health, safety and environmental rules of Applicable Law and GECP). Contractor shall appoint one or more (as appropriate) safety representative(s) reasonably acceptable to Owner who shall be resident at the Liquefaction Facility Site, have responsibility to correct unsafe conditions or unsafe acts associated with the Work and the Project, act on behalf of Contractor on health, safety and environmental matters, and participate in periodic safety meetings with Owner. Contractor further agrees to provide or cause to be provided necessary training and safety equipment to its employees, Subcontractors and Sub-subcontractors and to Owner personnel temporarily visiting the Site to ensure their compliance with the foregoing Safety Standards and enforce the use of such training and safety equipment. Contractor shall maintain all accident, injury and any other records required by Applicable Law or by Permit and shall furnish Owner a Monthly summary of injuries and labor hours lost due to injuries. Should Owner at any time observe Contractor, or any of its Subcontractors or Sub-subcontractors, performing the Work at the Site in violation of the Safety Standards or in an unsafe manner, or in a manner that would, if continued, violate the Safety Standards or become unsafe, then Owner shall have the right (but not the obligation) to require Contractor to stop the affected Work until such time as the manner of performing such Work has been rendered safe; provided, however, that at no time shall Contractor be entitled to an adjustment of the Contract Price or Project Schedule based on such Work stoppage. Contractor shall be responsible for the security, fencing, guarding, lighting, and supervision of the Stage 4

 

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Liquefaction Facility until all of the requirements of Substantial Completion of the applicable Subproject have been satisfied. With respect to all Work within the Existing Facility Site, the applicable portions of the Stage 1 Site after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, the applicable portions of the Stage 2 Site after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, the applicable portions of the Stage 3 Site after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, and the applicable portions of the Stage 4 Site after Substantial Completion of Subproject 6(a) or Subproject 6(b), Contractor shall comply, and cause its Subcontractors and Sub-subcontractors to comply, with Owner’s health, safety, security and environmental policies governing the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) after Substantial Completion of Subproject 6(a) or Subproject 6(b).

B. All Work performed hereunder, as applicable, shall comply with the minimum federal safety standards for the design, installation, inspection, testing, construction, extension, operation, replacement, and maintenance of facilities contained in Title 49, Code of Federal Regulations, Parts 192 (to the extent applicable) and 193 and in Title 33 C.F.R. Part 127. Contractor shall comply with requirements of the Operator Qualification Program that are outlined in Sub-Part H of 49 C.F.R. Part 193 and Sub-Part G of C.F.R. Part 195, where applicable, in connection with the Work. The term “pipeline facilities” shall include new and existing pipe, rights-of-way, and any equipment, facility, or building used in the transportation of gas, including LNG, or treatment of gas during the course of transportation. The term “transportation of gas” shall include the gathering, transmission, or distribution of gas by pipeline or the storage of gas.

3.11 Emergencies. In the event of any emergency endangering life or property in any way relating to the Work, whether on the Site or otherwise, Contractor shall take such action as may be reasonable and necessary to prevent, avoid or mitigate injury, damage, or loss and shall, as soon as reasonably possible, report any such incidents, including Contractor’s response thereto, to Owner. If Contractor fails to take such action and the emergency requires immediate action, then Owner, with or without notice to Contractor may, but shall be under no obligation to, take reasonable action as required to address such emergency. The taking of any such action by Owner, or Owner’s failure to take any action, shall not limit Contractor’s liability. Contractor shall reimburse Owner in an amount equal to the reasonable costs incurred by Owner in taking such action.

3.12 Contractor Permits. Contractor shall be responsible for obtaining the Contractor Permits. Contractor shall provide Owner with copies of such Contractor Permits as soon as reasonably practicable after they are obtained. Contractor shall provide information, assistance and documentation to Owner as reasonably requested in connection with the Owner Permits; provided that such information, assistance and documentation shall not include Contractor’s provision of information, testimony, documents or data by Contractor’s employees under oath (unless specifically authorized by Contractor) and activities outside the field of Contractor’s expertise, training or experience of personnel assigned to the performance of the Work under this Agreement (except to the extent provided for by Change Order issued pursuant to Section 6.1 and agreed by Contractor).

 

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3.13 Books, Records and Audits.

A. Contractor shall keep full and detailed books, construction logs, records, daily reports, schedules, accounts, payroll records, receipts, statements, electronic files, correspondence and other pertinent documents as may be necessary for proper management under this Agreement, as required under Applicable Law or this Agreement, and in any way relating to this Agreement (“Books and Records”). Contractor shall maintain all such Books and Records in accordance with GAAP and shall retain all such Books and Records for a minimum period of three (3) years after Final Completion, or such greater period of time as may be required under Applicable Law.

B. Upon reasonable notice, Owner shall have the right to have audited Contractor’s Books and Records by Owner’s third party auditors but only to the extent necessary to validate payments made to Contractor or invoiced by Contractor for any Change Orders based on a time and materials basis, for any costs paid with respect to any Provisional Sums and as permitted under Section 4.5; except that these rights shall not extend to lump sums, or the composition of fixed unit rates or percentages. When requested by Owner, Contractor shall provide Owner’s third party auditors with reasonable access to all such relevant Books and Records, and Contractor’s personnel shall cooperate with such third party auditors to effectuate the audit or audits hereunder. Owner shall have the right upon consent of Contractor (such consent not to be unreasonably withheld or delayed) to have the third party auditors copy all such Books and Records. Contractor shall bear all costs incurred by it in assisting with audits performed pursuant to this Section 3.13 except that copying of Contractor’s Books and Records shall be at Owner’s expense. Contractor shall include audit provisions identical to this Section 3.13 in all Major Subcontracts. No access to Books and Records shall be granted to any of Owner’s third party auditors until such third party auditor has signed a confidentiality agreement with Contractor in accordance with the standard practice in the auditing industry for audits of this kind. The restrictions in this Section 3.13B to the audit rights of Owner shall not be used by Contractor to avoid any obligations Contractor might have to produce documents under Applicable Law or in any litigation or arbitration against Contractor or against Guarantor under the Parent Guarantee.

C. Contractor shall not, and shall provide that its Subcontractors, Sub-subcontractors and agents or employees of any of them shall not, without Owner’s prior written approval, (i) pay any commissions or fees, or grant any rebates, to any employee or officer of Owner or its Affiliates, (ii) favor employees or officers of same with gifts or entertainment of a significant cost or value, or (iii) enter into any business arrangements with employees or officers of same.

 

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3.14 Tax Accounting.

A. Subject to Section 3.14B, within a reasonable period of time following a request thereof by Owner, subject to Section 4.5C, Contractor shall provide Owner’s tax consultant with any information (including Books and Records) regarding quantities and descriptions of any Equipment installed on or ordered for the Project and any other information as Owner’s tax consultant may deem reasonably necessary in connection with the preparation of Owner’s tax returns (including information reasonably required to determine the amount of Qualified Research Expenditures incurred in connection with the Work) or other tax documentation in connection with the Project; provided, however, if, in connection with such preparation, Owner’s tax consultant requests information relating to the actual cost for any item of Work and such item of Work is included in the Contract Price or in any lump sum Change Order, Contractor shall provide such information to Owner’s tax consultant as provided in Section 4.5C. No access to the aforementioned information (including Books and Records) shall be granted to Owner’s tax consultant until such tax consultant has signed a confidentiality agreement with Contractor in accordance with the standard practice in the auditing industry for audits of this kind.

B. With respect to Equipment that (i) Owner has title to, and (ii) is not located at the Site or in the Off-Site Rights of Way and Easements, Contractor shall establish a system for reporting the locations of such Equipment as of the Day on which the applicable Governmental Instrumentality assesses property tax on such Equipment (i.e., January 1), and shall notify Owner of the location of each such Equipment within thirty (30) Days after such applicable property tax Day.

3.15 Temporary Utilities, Roads, Facilities and Storage. Until Substantial Completion of the applicable Subproject , Contractor shall provide and pay for all temporary utilities (i.e., electricity, water (other than the water provided by Owner for the hydrotest in accordance with Attachment U), communication, cable, telephone, waste and sewer) necessary for the performance of the Work for that Subproject, including installation and usage costs. Subject to Section 4.3, Contractor shall construct and maintain temporary access and haul roads as may be necessary for the proper performance of this Agreement. Contractor shall provide Owner with sufficient office space at the time of Contractor’s mobilization at the Site to accommodate Owner’s Site representative and support staff at the Site. Contractor shall provide Owner with all office space, construction trailers, utilities, storage and warehousing, security, telephones, furnishings, and other temporary facilities required for their oversight of the Work, as set forth in more detail in Attachment A. Once title to Equipment has passed to Owner as set forth in Section 8.1B, such Equipment shall, if stored at a location other than on the Site, be segregated from other goods, and shall be clearly marked as “Property of Sabine Pass Liquefaction, LLC”.

3.16 Subordination of Liens. Contractor hereby subordinates any mechanics’ and materialmen’s liens or other claims or encumbrances that may be brought by Contractor against any or all of the Work, the Site or the Project to any liens granted in favor of Lender, whether such lien in favor of Lender is created, attached or perfected prior to or after any such liens, claims or encumbrances, and shall require its Subcontractors and Sub-subcontractors to similarly subordinate their lien, claim and encumbrance rights. Contractor agrees to comply with reasonable requests of Owner for supporting documentation required by Lender in connection

 

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with such subordination, including any necessary lien subordination agreements by Contractor. Nothing in this Section 3.16 shall be construed as a limitation on or waiver by Contractor of any of its rights under Applicable Law to file a lien or claim or otherwise encumber the Project as security for any undisputed payments owed to it by Owner hereunder which are past due; provided that such lien, claim or encumbrance shall be subordinate to any liens granted in favor of Lenders.

3.17 Hazardous Materials. Contractor shall not, nor shall it permit or allow any Subcontractor or Sub-subcontractor to, bring any Hazardous Materials on the Site or the Off-Site Rights of Way and Easements and shall bear all responsibility and liability for such materials; provided, however, that Contractor may bring onto the Site or the Off-Site Rights of Way and Easements such Hazardous Materials as are necessary to perform the Work so long as the same is done in compliance with Applicable Law, Applicable Codes and Standards, and the HSE Plan, and Contractor shall remain responsible and liable for all such Hazardous Materials. If Contractor or any Subcontractor or Sub-subcontractor encounter pre-existing Hazardous Materials at the Site or the Off-Site Rights of Way and Easements, and Contractor or any Subcontractor or Sub-subcontractor knows or suspects that such material is Hazardous Material, Contractor and its Subcontractors and Sub-subcontractors shall promptly stop Work in the affected area and notify Owner. If under such circumstances Contractor or any of its Subcontractors or Sub-subcontractors fail to stop Work and notify Owner, Contractor shall be responsible and liable to Owner for all damages, costs, losses and expenses to the extent such failure increases the damages, costs, losses and expenses with respect to such pre-existing Hazardous Materials at the Site; provided that Contractor’s liability to Owner for such failure shall not exceed *** Million U.S. Dollars (U.S.$ ***) in the aggregate.

3.18 Quality Control. No later than sixty (60) Days after the date Owner issues the NTP for Subproject 6(a), Contractor shall submit to Owner for its written approval (which approval shall not be unreasonably withheld), a Project-specific quality control plan and an inspection plan, including witness points, but excluding tests and inspections relating to commissioning. No later than one hundred twenty (120) Days after the date Owner issues the NTP for Subproject 6(a), Contractor shall submit to Owner for its review detailed inspection procedures. Contractor’s quality control plan shall provide for a quality control individual to be present at the Site to supervise the implementation of the quality control plan, the inspection plan, and the inspection procedures. Owner’s review and/or approval of Contractor’s quality control plan, inspection plan and inspection procedure shall in no way relieve Contractor of its responsibility for performing the Work in compliance with this Agreement.

3.19 Reports.

A. Contractor shall provide Owner with an electronic copy of the following reports and other documentation:

1. minutes for all weekly status and other Project-related meetings with Owner within five (5) Business Days following such meeting;

 

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2. safety incident reports within three (3) Business Days of the occurrence of any such incident; except for any safety incident involving a significant non-scheduled event such as LNG or Natural Gas releases, fires, explosions, mechanical failures, unusual over-pressurizations or major injuries which shall be provided to Owner within eight (8) hours of the occurrence of such incident; provided, however, notification shall be provided to Owner immediately if the incident is of significant magnitude to threaten public or employee safety, cause significant property damage or interrupt the Work; and

3. Monthly progress reports (“Monthly Progress Reports”) with the information specified in Attachment A and Attachment B.

B. At Owner’s request and after Contractor’s agreement, Contractor shall consolidate any or all reports and other documentation required under this Section 3.19 (or other provisions under this Agreement) for Subproject 6 with the reports required under similar provisions for Subproject 1 and Subproject 2 in the Stage 1 EPC Agreement, Subproject 3 and Subproject 4 in the Stage 2 EPC Agreement, and Subproject 6 in this Agreement.

3.20 Payment. Contractor shall timely make all payments required to be paid to Owner pursuant to the terms of this Agreement.

3.21 Commercial Activities. Neither Contractor nor its employees shall establish any commercial activity or issue concessions or permits of any kind to Third Parties for establishing commercial activities on the Site or any other lands owned or controlled by Owner.

3.22 Title to Materials Found. As between Owner and Contractor, the title to water, soil, rock, gravel, sand, minerals, timber, and any other materials developed or obtained in the excavation or other operations of Contractor, any Subcontractor or Sub-subcontractor and the right to use said materials or dispose of same is hereby expressly reserved by Owner. Notwithstanding the foregoing, Contractor shall be permitted, without charge, to use in the Work any such materials that comply with the requirements of this Agreement.

3.23 Survey Control Points and Layout. Contractor shall establish all survey control points and layout the entire Work in accordance with the requirements of this Agreement, which shall be based on the survey control point established by Owner pursuant to this Agreement. If Contractor or any of its Subcontractors, Sub-subcontractors or any of the representatives or employees of any of them move or destroy or render inaccurate the survey control point provided by Owner, such control point shall be replaced by Contractor at Contractor’s own expense.

3.24 Cooperation with Others at the Site.

A. Subject to the provisions of this Agreement, including Section 4.3, Contractor acknowledges that Landowners and their representatives, Owner and Owner’s other contractors or subcontractors may be performing certain activities at the Site during the performance of this Agreement, and that Contractor’s Work or use of certain facilities may be interfered with as a result of such concurrent activities. Owner shall provide Contractor with reasonable notice of any request for access to the Stage 4 Site by (i) any of Owner’s other contractors or subcontractors seeking to perform work at the Stage 4 Site (except with respect to Contractor’s work performed under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement) or (ii) any Landowner.

 

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Subject to Section 4.3, Contractor agrees to use reasonable efforts to accommodate such request and to coordinate the performance of the Work with those certain activities to be performed by Landowners or any of Owner’s other contractors or subcontractors at the Stage 4 Site so as not to materially interfere with the performance of such activities at the Stage 4 Site. Owner hereby notifies Contractor that Affiliates of Owner Group will need access to the Stage 4 Site. Contractor hereby acknowledges such notice and agrees that no further notices are required in connection with any Affiliates of Owner Group accessing the Stage 4 Site. Contractor shall provide Owner access to the Stage 4 Site at all times.

B. Cooperation Within the Off-Site Rights of Way and Easements. Owner shall provide Contractor with reasonable prior notice of access to the Off-Site Rights of Way and Easements by (i) any of Owner’s other contractors or subcontractors seeking to perform work within such Off-Site Rights of Way and Easements (except with respect to Contractor’s work performed under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement), and (ii) any Landowner. Likewise, Contractor shall provide Owner with reasonable prior notice of any access to the Off-Site Rights of Way and Easements by Contractor or any of its Subcontractors or Sub-subcontractors. Owner hereby notifies Contractor that Affiliates of Owner Group will need access to the Off-Site Rights of Way and Easements. Contractor hereby acknowledges such notice and agrees that no further notices are required in connection with any Affiliates of Owner Group accessing the Off-Site Rights of Way and Easements. Subject to the provisions of this Agreement, including Section 4.3, Contractor acknowledges that Owner or Owner’s other contractors or subcontractors may be working within the Off-Site Rights of Way and Easements and that other Persons (including any Landowner) may be on or using the Off-Site Rights of Way and Easements during the performance of this Agreement and Contractor’s Work or use of certain facilities may be interfered with as a result of such concurrent activities. Subject to Section 4.3, Contractor agrees to use reasonable efforts to coordinate the performance of the Work with such other contractors or subcontractors performing work within the Off-Site Rights of Way and Easements so as not to materially interfere with any of Owner’s other contractors or subcontractors performing work within the Off-Site Rights of Way and Easements; provided, however, Contractor shall in all cases coordinate the Work with any Persons (other than Owner or Owner’s other contractors or subcontractors, which shall not be deemed to include the Contractor or its subcontractors performing work under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement) on or using the Off-Site Rights of Way and Easements pursuant to Attachment Z. All coordination required of Contractor in this Section 3.24B with other Persons shall be done through Owner.

3.25 Integration with Existing Facility, Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, Stage 3 Liquefaction Facility, and Stage 4 Liquefaction Facility.

A. No Interference with Existing Facility, Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, Stage 3 Liquefaction Facility, or Stage 4 Liquefaction Facility. Performance of the Work shall at no time cause a suspension of operation of the Existing Facility (or any portion thereof), Subproject 1 or Subproject 2 (or any portion thereof) after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, Subproject 3 or Subproject 4 (or any portion thereof) after

 

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substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 (or any portion thereof) after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, Subproject 6(a) or Subproject 6(b) (or any portion thereof) after Substantial Completion of Subproject 6(a) or Subproject 6(b), or cause a delay in any of the target substantial completion dates or guaranteed substantial completion dates under the Stage 1 EPC Agreement, Stage 2 EPC Agreement or the Stage 3 EPC Agreement, except to the extent agreed by the Owner Representative in writing. Notwithstanding the foregoing, under no circumstance shall any Work that is permitted to interfere with the operation of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, or Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) (or any portion thereof) after Substantial Completion of Subproject 6(a) or Subproject 6(b), as described in the immediately preceding sentence be scheduled or performed by Contractor where: (i) more than one (1) marine berth is unavailable at any given time; (ii) more than one (1) Tank is unavailable at any given time; or (iii) the time to perform any individual service outage required to accommodate tie-ins of the modified facilities for the Existing Facility, the Stage 1 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 3 Liquefaction Facility, or the Stage 4 Liquefaction Facility exceeds forty eight (48) consecutive hours, or the cumulative time to perform any combination of service outages during any given calendar year exceeds ten (10) Days aggregate in such given calendar year. For purposes of this Section 3.25, “individual service outage” means that by action of the Contractor, any of the following are not possible: (a) berthing, loading, and unloading LNG from an LNG tanker at any marine berth; (b) loading, storing, and sending out LNG from at least three Tanks; (c) with respect to the Existing Facility, vaporizing LNG at a constant rate of 2000 MMSCFD and sending the resultant Natural Gas to the export pipeline; (d) with respect to Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2, as applicable, producing LNG at a rate of at least 100% of capacity; (e) with respect to Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4, as applicable, producing LNG at a rate of at least 100% of capacity; (f) with respect to Subproject 5 after substantial completion of Subproject 5 producing LNG at a rate of at least 100% of capacity; (g) with respect to Subproject 6(a) after Substantial Completion of Subproject 6(a), producing LNG at a rate of at least 100% of capacity, or (h) providing sufficient electrical power, control systems, safety systems, utilities, and other equipment, infrastructure, facilities, and systems needed for any of the above actions.

B. Scheduled Activities. No later than thirty (30) Days prior to performing any Work that may interfere with the operation of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, or Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) (or any portion thereof) after Substantial Completion of Subproject 6(a) or Subproject 6(b), or that may delay any of the target substantial completion dates or guaranteed substantial completion dates under the

 

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Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement (whether specified in Attachment X or agreed by Owner Representative in writing), Contractor shall provide Owner with a written integration plan listing the scheduled, interfering Work and proposing in detail how Contractor intends that such Work will be performed to minimize, to the greatest extent reasonably possible, interference with the operation of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, or Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, and Subproject 6(a) or Subproject 6(b) (or any portion thereof) after Substantial Completion of Subproject 6(a) or Subproject 6(b), and delay of any target substantial completion dates or guaranteed substantial completion dates under the Stage 1 EPC Agreement, Stage 2 EPC Agreement or the Stage 3 EPC Agreement. Such proposed plan shall (i) comply with the requirements of Section 3.25A, (ii) be scheduled so that it is not on the critical path, and (iii) at a minimum, address each of the activities identified in Attachment X and list (a) the component of the Existing Facility, the Stage 1 Liquefaction Facility, Stage 2 Liquefaction Facility, the Stage 3 Liquefaction Facility, or the Stage 4 Liquefaction Facility or the target substantial completion dates or guaranteed substantial completion dates under the Stage 1 EPC Agreement, Stage 2 EPC Agreement or the Stage 3 EPC Agreement that will be impacted by such activity, (b) how such component or work will be impacted, and (c) the duration of such impact. If the plan proposed by Contractor does not meet any of the requirements in the immediately preceding sentence, or if Owner reasonably believes that the plan proposed by Contractor has not been developed to reasonably minimize the impact on the operations of the Existing Facility, Subproject 6(a) or Subproject 6(b) after Substantial Completion of Subproject 6(a) or Subproject 6(b) under this Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, or Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement or the delay of any target substantial completion dates or guaranteed substantial completion dates under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement, then Owner may, not later than fourteen (14) Days following receipt of the proposed plan, instruct Contractor in writing to modify the proposed plan. If Owner’s instruction restricts the duration or extent of the Work covered in the plan more than what is required by Section 3.25A(i)-(iii), then Contractor shall be entitled to a Change Order to the extent permitted under Section 6.9. Contractor shall proceed to execute such Work in accordance with the mutually agreed plan; provided that, if Owner does not respond and comment upon the Contractor’s proposed plan within fourteen (14) Days following receipt of Contractor’s proposed plan, then Contractor shall proceed to execute such Work in accordance with Contractor’s proposed plan as long as it complies with the limitations specified in Section 3.25A. Notwithstanding Owner’s agreement (or failure to agree) to the schedule and the plan for the performance of such Work, Owner may, in its sole discretion, subsequently prohibit the performance of such Work occurring on the scheduled date, but in such case Contractor shall be entitled to a Change Order to the extent permitted under Section 6.9. If Owner fails to provide Contractor with access when

 

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and for the duration required by Contractor for the Work, other than for non-compliance with Section 3.25A(i)-(iii), Applicable Law, Owner Permits relating to safety, or Owner’s reasonable security requirements, then, Contractor shall be entitled to a Change Order to the extent permitted under Section 6.9.

C. Unscheduled Activities. It is the Parties’ intent that except for the activities (if any) listed in Attachment X, the performance of the Work and Contractor’s other obligations under this Agreement will not interfere with the operation of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, or Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) after Substantial Completion of Subproject 6(a) or Subproject 6(b), or cause a delay in any of the target substantial completion dates or guaranteed substantial completion dates under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement. During the performance of the Work, should a situation arise that Contractor reasonably believes has the potential of interfering with the operation of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) after Substantial Completion of Subproject 6(a) or Subproject 6(b), or cause a delay in any of the target substantial completion dates or guaranteed substantial completion dates under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement, Contractor shall, except in an emergency endangering property or any Persons, give Owner written notice as soon as possible but no later than fourteen (14) Days prior to the time that Contractor plans to perform such Work, detailing a plan that is least disruptive, to the greatest extent reasonably possible, to operations of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, or Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) after Substantial Completion of Subproject 6(a) or Subproject 6(b), or to the target substantial completion dates or guaranteed substantial completion dates under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or the Stage 3 EPC Agreement. Emergency actions are governed by Section 3.11. Prior to performing such Work, Owner and Contractor shall mutually agree on a proposed plan for Contractor to execute such Work; provided that, if Owner fails to provide Contractor with access when and for the duration required by Contractor for the Work, other than for non-compliance with Section 3.25A(i)-(iii), Applicable Law, Owner Permits relating to safety, or Owner’s reasonable security requirements, then Contractor shall be entitled to a Change Order to the extent permitted under Section 6.9. Notwithstanding Owner’s agreement to the schedule and the plan for the performance of such Work, Owner may, in its sole discretion, subsequently prohibit the performance of such Work on such scheduled date, and Contractor shall work with Owner to develop a new plan and date for performing such Work in accordance with this Section 3.25C, and in such case Contractor shall be entitled to a Change Order to the extent permitted under Section 6.9.

 

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3.26 Responsibility for Property. Except as expressly set forth in Section 3.25, Contractor shall limit its operations to the Stage 4 Site, Laydown Areas, Off-Site Rights of Way and Easements and the Heavy Haul Road. Contractor shall plan and conduct its operations so that neither Contractor nor any of its Subcontractors or Sub-subcontractors shall (i) enter upon lands (other than the Stage 4 Site, Laydown Areas, Off-Site Rights of Way and Easements and the Heavy Haul Road) or waterbodies in their natural state unless authorized by the appropriate owner or entity; (ii) close or obstruct any utility installation, highway, waterway, harbor, road or other property unless Permits are obtained and authorized by the appropriate entity or authority; or (iii) disrupt or otherwise interfere with the operation of any portion of any pipeline, telephone, conduit or electric transmission line, ditch, navigational aid, dock or structure unless otherwise specifically authorized by the appropriate entity or authority. The foregoing includes damage arising from performance of the Work through operation of Construction Equipment or stockpiling of materials. If damage occurs to the Existing Facility, Contractor’s liability for such damage shall be limited as specified in Section 17.1G and if damage occurs to Subproject 1 or Subproject 2 prior to substantial completion of such applicable Subproject 1 or Subproject 2, liability for such damage shall be governed by the Stage 1 EPC Agreement, if damage occurs to Subproject 3 or Subproject 4 prior to substantial completion of such applicable Subproject 3 or Subproject 4, liability for such damage shall be governed by the Stage 2 EPC Agreement, and if damage occurs to Subproject 5 prior to substantial completion of Subproject 5, liability for such damage shall be governed by the Stage 3 EPC Agreement.

3.27 Explosives. Explosives shall be transported to the Site only when required to perform the Work under this Agreement and with abundant, prior notice to and written approval of Owner. Contractor shall be responsible for properly purchasing, transporting, storing, safeguarding, handling and using explosives required to perform the Work under this Agreement. Contractor shall employ competent and qualified personnel for the use of explosives and, notwithstanding any other provision in this Agreement to the contrary, shall assume full responsibility for damages claimed by any Third Party to the extent caused by the improper use of explosives by Contractor or any Subcontractor or Sub-subcontractor. Residual surplus explosives shall be promptly removed from the Site and properly disposed of by Contractor.

3.28 Taxes. Subject to Section 7.1, the Contract Price includes all Taxes imposed on or payable by Contractor, its Subcontractors and Sub-subcontractors in connection with the Work. Contractor shall be responsible for the payment of all Taxes imposed on or payable by Contractor, its Subcontractors and Sub-subcontractors in connection with the Work.

3.29 Equipment Quality. Contractor shall furnish reasonable evidence as to the kind, quality, and quantity of all Major Equipment. Without prior written approval by Owner which specifically waives the requirements of this Agreement, where this Agreement specifies certain Major Equipment be incorporated into the Project, Contractor shall not use any Major Equipment other than as specified in this Agreement. If Contractor wishes to modify the requirements contained herein with respect to Major Equipment, then it shall make written application to Owner for Owner’s approval (such approval not to be unreasonably withheld), prior to performing any such Work. Such application shall (i) identify the requirements being modified, (ii) certify that the

 

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quality of the proposed substitute is equal to or better than that currently specified, and (iii) certify that the substitute is suited to the same use and capable of performing the same function as that specified. If the preceding requirements are not followed, then any substitution shall constitute a material failure by Contractor to comply with its obligations under this Agreement. All Major Equipment shall be fabricated, applied, installed, connected, operated (during start-up and testing), cleaned and conditioned in accordance with the instructions of the applicable Subcontractor or Sub-subcontractor.

3.30 Loss of LNG or Natural Gas. Contractor shall use safe and commercially reasonable efforts during commissioning, testing, and operation of the Stage 4 Liquefaction Facility to minimize the loss of LNG or Natural Gas due to venting, flaring, or unnecessary operation of the refrigerant compressors in recycle.

ARTICLE 4

OWNER’S RESPONSIBILITIES

Owner shall comply with the following provisions in a timely manner in accordance with the Project Schedule at no cost to Contractor:

4.1 Payment and Financing. Owner shall timely pay the Contract Price in accordance with the provisions of Article 7 hereof. As a condition of NTP, Owner shall obtain and maintain funds and financing as required by Sections 4.1B and 4.1C, as applicable for the Project sufficient to make payments to Contractor in accordance with the terms of this Agreement.

A. Owner Confirmation. Owner shall deliver to Contractor a statement in the form of Attachment BB (“Owner Confirmation”) and documentation as described below in Sections 4.1B and 4.1C, confirming that Owner has sufficient funds, in an amount at least equal to the committed fund levels as required by Sections 4.1B and 4.1C, as applicable, through itself and financing to continue to fulfill its payment obligations under this Agreement and confirming that no event has come to the attention of Owner which would materially and adversely affect the continued availability of such funding. Such Owner Confirmation shall be signed by an appropriate senior officer of Owner.

B. Sufficiency of Committed Funds for Subproject 6(a). On the first Day of the sixth (6th) month following the issuance of NTP for Subproject 6(a), Owner shall furnish to Contractor reasonable documentation that demonstrates that Owner continues to have (i) funds through itself and (ii) financing from one or more Lenders that, when combined, are sufficient funds to fulfill Owner’s payment obligations under this Agreement with respect to the remainder of Subproject 6(a). For purposes of this Section 4.1B, “sufficient funds” shall mean that Owner has at month 6 following issuance of NTP for Subproject 6(a) a combination of (i) and (ii) above equal to the lesser of: (y) Four Hundred Million U.S. Dollars (U.S.$400,000,000) or (z) the amount equal to the sum of the remaining payments owed to Contractor at month 6 calculated as the Contract Price less all payments Contractor received as of month 6 with respect to Subproject 6(a).

 

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C. Sufficiency of Committed Funds for Subproject 6(b). On the first Day of the ninth (9th) month following the issuance of NTP for Subproject 6(b), Owner shall furnish to Contractor reasonable documentation which demonstrates that Owner (i) has funds through itself and (ii) has obtained financing from one or more Lenders that, when combined, are sufficient funds to fulfill Owner’s payment obligations under this Agreement with respect to the remainder of Subproject 6(b). For purposes of this Section 4.1C, “sufficient funds” shall mean that Owner has at month 9 following issuance of NTP for Subproject 6(b) a combination of (i) and (ii) above equal to the lesser of (a) One Hundred Sixty Million U.S. Dollars (U.S.$160,000,000) or (b) the amount equal to the sum of remaining payments owed to Contractor at month 9 calculated as the Contract Price Applicable to Subproject 6(b) less all payments Contractor received as of month 9 with respect to Subproject 6(b).

The committed fund levels under this Sections 4.1B and 4.1C, as applicable, are in addition to and exclusive of (a) undisputed amounts owed to Contractor from Owner through the date of the applicable Owner Confirmation, (b) any disputed amounts placed in escrow under Section 18.4, and (c) any funds committed to fulfill Owner’s payment obligations to Contractor under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement, and the Stage 3 EPC Agreement.

4.2 Owner Permits. Owner shall be responsible for obtaining the Owner Permits. Owner shall maintain and, to the extent applicable, renew such Owner Permits. To the extent Owner has already obtained any of the Owner Permits as of the Effective Date of this Agreement, Owner shall provide copies of such Owner Permits to Contractor on or before the Effective Date. To the extent Owner has not obtained any Owner Permits prior to the Effective Date, Owner shall obtain such Owner Permits in accordance with the schedule contained in Attachment Q and Owner shall provide Contractor with complete copies of such Owner Permits within five (5) Business Days after obtaining them. The terms of all such Permits shall be compatible with Contractor’s performance of the Work, and Owner shall promptly notify Contractor of any changes to the terms of any such Owner Permit that impacts Contractor’s performance of the Work under this Agreement. Owner shall provide information, assistance and documentation to Contractor as reasonably requested in connection with the Contractor Permits.

4.3 Access to the Site, Laydown Areas and Off-Site Rights of Way and Easements.

A. Subject to the terms of this Agreement, including Section 3.24, Owner shall, at NTP, provide Contractor with access to and care and custody of that portion of the Stage 4 Site applicable to the Subproject for which NTP has been issued. Such access shall be sufficient to permit Contractor to progress with construction on a continuous basis without material interruption or interference by others. To the extent that (i) any of Owner’s other contractors or subcontractors working at the Stage 4 Site prior to Substantial Completion of a Subproject, (ii) any Landowner accessing the Stage 4 Site prior to Substantial Completion of a Subproject (except as described in Attachment Z), or (iii) the lack of such sufficient access or a Change in Law, in any such case materially interrupts or interferes with Contractor’s performance of the Work applicable to such Subproject and such interruption or interference adversely affects Contractor’s ability to perform the Work applicable to such Subproject in accordance with the Project Schedule or Contractor’s cost of performance of the Work for a Subproject, Contractor shall be entitled to a Change Order; provided that, subject to Section 3.25, Contractor complies with the requirements in

 

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Sections 6.2, 6.5 and 6.9. In addition, Owner shall provide Contractor with reasonable access to the Existing Facility Site, the Stage 1 Site and the Stage 2 Site necessary for the performance of the Work and in accordance with Section 3.25. For the avoidance of doubt, Contractor shall not be entitled to a Change Order pursuant to this Section 4.3 as a result of a Landowner or its representatives accessing the Site in accordance with Attachment Z.

B. The Contract Price is based on Owner providing Contractor with access to the Off-Site Rights of Way and Easements, the Laydown Areas and Heavy Haul Road as described in Attachment Y. The Heavy Haul Road shall be sufficient to permit Contractor to progress with construction without material interruption or interference by others while adhering to the requirements in Attachment Z. To the extent Contractor is not provided with sufficient access to such Laydown Areas, Off-Site Rights of Ways and Easements and Heavy Haul Road to progress with construction without material interruption or interference by others, and such interruption or interference adversely affects Contractor’s cost of performance of the Work or Contractor’s ability to perform the Work in accordance with the Project Schedule, Contractor shall be entitled to a Change Order; provided that (i) Contractor complies with the requirements set forth in Sections 6.2, 6.5 and 6.9, and (ii) at or prior to the Contract Date, Contractor did not know (based on information set forth in Attachment Y or Attachment Z) that its access was or would be restricted.

C. Owner shall, or shall cause its Affiliates to, maintain care, custody and control at all times of the Existing Facility Site, the Existing Facility and, upon transfer of risk of loss from Contractor to Owner under Section 8.2C, the modifications and improvements to the Existing Facility. Owner shall, or shall cause its Affiliates to, be responsible for the security, fencing, guarding and lighting of the Existing Facility. The Parties’ responsibilities for the Stage 1 Site and the Stage 1 Liquefaction Facility are set forth in the Stage 1 EPC Agreement, the Parties’ responsibilities for the Stage 2 Site and the Stage 2 Liquefaction Facility are set forth in the Stage 2 EPC Agreement and the Parties’ responsibilities for the Stage 3 Site and the Stage 3 Liquefaction Facility are set forth in the Stage 3 EPC Agreement.

4.4 Operation Personnel. Owner shall provide to Contractor a minimum of sixty (60) qualified and competent operating and maintenance personnel sufficient to commission and test the Project under the supervision of Contractor as set forth in Attachment V. Until Substantial Completion of Subproject 6(a) and Subproject 6(b) (as applicable), such personnel shall be under the direction and control of and supervised by Contractor. Such operating and maintenance personnel shall be available for training as required pursuant to Section 3.5. To the extent not set forth in Attachment V, Contractor shall prepare for Owner’s review a Project Commissioning Plan regarding the utilization of Owner’s operation and maintenance personnel and Contractor’s personnel during commissioning and for the conduct of Performance Tests. Such Project Commissioning Plan shall be mutually agreed-upon by the Parties, each acting reasonably, no later than forty-five (45) Days after Owner’s receipt of Contractor’s proposed Project Commissioning Plan. Without in any way limiting Contractor’s obligation to provide forces and labor during commissioning and Performance Testing, Contractor agrees that if any activity during commissioning and Performance Testing requires direct supervision by Contractor, such supervision shall be performed by Contractor or a Subcontractor or Sub-subcontractor. Owner shall remain responsible for all costs associated with Owner’s operation and maintenance personnel, including salaries, travel and expenses.

 

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4.5 Sales and Use Tax Matters.

A. Owner shall participate in the Louisiana Enterprise Zone Program or Louisiana Quality Jobs Program, which shall allow Owner to receive a rebate directly from the State of Louisiana Department of Revenue of the rebatable portion of Louisiana state, parish and local-option sales and use tax (“Rebatable Louisiana Sales and Use Tax”) incurred and paid by Contractor and its Subcontractors or Sub-subcontractors in connection with performance of the Work. Contractor shall provide to Owner, for itself and its Subcontractors and Sub-subcontractors, all documentation as may be reasonably requested by Owner or Owner’s tax consultant and available to Contractor and its Subcontractors and Sub-subcontractors in order to allow Owner to secure such rebate. Such documentation shall include submitted and signed Forms R-1029 (Louisiana Department of Revenue Sales Tax Return) and invoice documentation supporting all Louisiana Sales and Use Taxes paid by Contractor and its Subcontractors and Sub-subcontractors for the purchase of Equipment, including purchases of Equipment made under lump sum contract agreements. Such Forms R-1029 (Louisiana Department of Revenue Sales Tax Return) shall be provided to Owner within thirty (30) Days after submission, by the Contractor or its Subcontractor or Sub-subcontractors, of the Form R-1029 (Louisiana Department of Revenue Sales Tax Return) to the Governmental Instrumentality. Such invoice documentation shall be provided to Owner within ninety (90) Days after receipt of such invoice documentation by Contractor or its Subcontractors or Sub-subcontractors. The invoice documentation shall clearly identify (i) the item of Equipment purchased, (ii) the amounts of itemized Louisiana Sales and Use Tax paid, and (iii) all information (including Owner’s name, the taxpayer’s name, the Project name and the Project address) to properly establish that the Equipment was used in connection with or incorporated into the Liquefaction Facility. If the Equipment was taken from Contractor’s, Subcontractor’s or Sub-subcontractor’s inventory, subject to Section 4.5C, Contractor shall provide Owner with an invoice, journal vouchers or other similar documentation as may be required to evidence that the applicable Louisiana Sales and Use Tax was paid by Contractor, Subcontractor or Sub-subcontractor on such inventory. Owner’s tax consultant (as notified by Owner to Contractor) shall assist Owner to secure all available rebates of Rebatable Louisiana Sales and Use Taxes and is authorized to request and receive information directly from Contractor and its Subcontractors and Sub-subcontractors on behalf of Owner. No information shall be provided to Owner’s tax consultant until such tax consultant has signed a confidentiality agreement with Contractor and any applicable Subcontractor and Sub-subcontractor with terms customary in the audit industry for audits of this kind.

B. Contractor and Owner shall reasonably cooperate with each other to minimize any and all Taxes relating to the Project. If Contractor or any Subcontractor or Sub-subcontractor incurs any sales and use taxes on any items of Equipment for which Owner has previously provided Contractor with an applicable sales and use tax exemption certificate, Contractor shall be responsible for the payment of such sales and use taxes without any reimbursement from Owner; provided, however, the foregoing provision shall not affect Contractor’s right to a Change Order in accordance with Section 7.1.

 

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C. Pursuant to Section 3.14 and Section 7.1, Owner shall have the right to have its tax consultant audit the Books and Records of Contractor and its Sub-contractors or Sub-subcontractors to confirm that all Louisiana Sales and Use Taxes paid by Contractor and its Subcontractors and Sub-subcontractors in connection with the Work are properly owed under Applicable Law; provided, however, if the determination of the proper amount of such Louisiana Sales and Use Tax assessed on any one or more items of Equipment is dependent upon knowing the actual cost incurred by Contractor or its Sub-contractors or Sub-subcontractors for such item of Equipment and the compensation of such item of Equipment is included in the Contract Price or in any lump sum Change Order, that portion of the audit devoted to reviewing the actual cost incurred by Contractor or its Sub-contractors or Sub-subcontractors for such item of Equipment shall be performed by Owner’s tax consultant, which shall be retained by Owner at Owner’s sole expense. The Parties agree that (unless the amount of Louisiana Sales and Use Tax properly payable for an item of Equipment is subject to audit, litigation, arbitration, subpoena or summons issued by a Governmental Instrumentality ) such tax consultant shall not disclose to Owner the actual cost incurred by Contractor or its Sub-contractors or Sub-subcontractors for any item of Equipment included in the Contract Price, but the Parties agree that such tax consultant may report to Owner the proper Louisiana Sales and Use Taxes properly payable under Applicable Law. No access to Books and Records shall be granted to Owner’s tax consultant until such tax consultant has signed a confidentiality agreement with Contractor and any applicable Subcontractor or Sub-subcontractor with terms customary in the audit industry for audits of this kind.

4.6 Metes and Bounds Description and Survey. Prior to NTP (or prior to any LNTP Work where applicable), Owner shall provide to Contractor (i) a metes and bounds description of the Site as set forth in Attachment Y, but only for those portions of the Site that the Parties have specified in Attachment Y that a metes and bounds description will be provided and (ii) a survey of the Site showing the boundaries of the Site and one survey control point. Contractor shall be entitled to rely upon the accuracy of this information. To the extent any existing structures or utilities are shown in the survey, Contractor shall independently verify the locations of such existing structures and utilities.

4.7 Hazardous Materials. Owner shall, or shall cause its Affiliates to, remove, transport and, as appropriate, dispose of any Hazardous Materials discovered or released at the Site, including any Hazardous Materials brought on the Site or generated by Third Parties, but excluding any Hazardous Materials brought on to the Site or generated by Contractor or any of its Subcontractors or Sub-subcontractors. In addition, as between Owner and Contractor, Owner shall be responsible for any Hazardous Materials discovered or released within the Off-Site Rights of Way and Easements, including any Hazardous Materials brought on the Off-Site Rights of Way and Easements or generated by Third Parties but excluding any Hazardous Materials brought on the Off-Site Rights of Way and Easements by Contractor or any of its Subcontractors or Sub-subcontractors. Owner shall defend, indemnify and hold harmless Contractor Group and its Subcontractors and Sub-subcontractors from and against all damages, losses, costs and expenses (including all reasonable attorneys’ fees and litigation or arbitration expenses) incurred by Contractor Group or its Subcontractors and Sub-subcontractors to the extent arising from any contamination or pollution resulting from any Hazardous Materials for which Owner is responsible under this Section 4.7.

 

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4.8 Owner-Provided Items.

A. Owner shall be responsible for those items of information so identified in Attachment A, including information defined as “Rely Upon” in the Design Basis included in Attachment A, and for providing to Contractor the information specified in Attachment U. Contractor shall not be required to examine or be deemed to have examined any such information and Owner shall remain fully responsible for the accuracy, completeness and sufficiency of such information. If Owner makes a change to any such information, or if Contractor discovers an error in such information or non-compliance of such information with Applicable Law or Applicable Codes and Standards, Contractor shall be entitled to a Change Order; provided that Contractor complies with the requirements set forth in Sections 6.2, 6.5 and 6.9. All other information in the Design Basis shall be the responsibility of Contractor.

B. Owner shall provide those items in Attachment A which are expressly listed as being the obligation of Owner and the items listed in Attachment U (within the times listed in Attachment U). The items already provided by Owner are listed in Attachment U.

C. Owner shall supply Feed Gas for use during commissioning, Start Up and Performance Tests and as necessary to demonstrate achievement of RFSU and Substantial Completion of Subproject 6(a) (“Commissioning Feed Gas”) in accordance with the notice procedures specified in Section 11.1.

D. Owner shall provide storage, through Tanks, tankers or otherwise, for Commissioning LNG in accordance with the notice procedures specified in Section 11.1.

4.9 Owner Representative. Owner designates *** as the Owner Representative. Notification of a change in Owner Representative shall be provided in advance, in writing, to Contractor.

4.10 Owner’s Option.

A. Owner may desire Contractor to perform under this Agreement the engineering, procurement, construction, pre-commissioning, commissioning, testing and startup of the LNG Berth 3, as set forth in Section Table A-2 of Schedule A-2. Contractor estimates that contract price for the performance of the engineering, procurement, construction, pre-commissioning, commissioning, testing and startup of the LNG Berth 3 is Four Hundred Ninety Million U.S. Dollars (U.S.$490,000,000). Within sixty (60) Days after the Contract Date, Contractor shall submit to Owner for its review a proposed contract price and schedule for the performance of the Work for the LNG Berth 3, including documentation reasonably requested by Owner to evaluate such proposed contract price and schedule. If and when the Parties agree upon the price and schedule for the performance of the Work for the LNG Berth 3, the Parties shall enter into a Change Order for the LNG Berth 3, recording in such Change Order the Contract Price Applicable to

 

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Subproject 6(b), the Guaranteed Substantial Completion Date for Subproject 6(b), Schedule Bonus Date for SP6(b), Schedule Bonus for SP6(b), Subproject 6(b) Delay Liquidated Damages, any provisional sums applicable to Subproject 6(b), and the Payment Schedule for Subproject 6(b) (such Change Order hereinafter “LNG Berth 3 Change Order”). The validity of the Contract Price Applicable to Subproject 6(b) shall be three hundred sixty-five (365) Days from the signing of the LNG Berth 3 Change Order (“LNG Berth 3 Option Date”). Such LNG Berth 3 Change Order, if and when executed by the Parties, represents Owner’s option for Contractor to perform the Work for the LNG Berth 3 (the “LNG Berth 3 Option”). Notwithstanding anything to the contrary in this Agreement, Contractor shall not be required to perform any portion of the Subproject 6(b) unless and until Owner issues an LNTP or NTP for Subproject 6(b) in accordance with this Agreement, nor shall Owner have any obligations with respect to Subproject 6(b) unless and until Owner issues an LNTP or NTP for Subproject 6(b) in accordance with this Agreement.

B. If Owner desires to elect the LNG Berth 3 Option, Owner may do so by issuing an NTP for Subproject 6(b) by the LNG Berth 3 Option Date.

C. If Owner does not issue an NTP for Subproject 6(b) by the LNG Berth 3 Option Date, and Owner desires to proceed with the LNG Berth 3 Option, the Parties shall negotiate a Change Order for Subproject 6(b) pursuant to Section 4.10D to adjust the Contract Price Applicable to Subproject 6(b) and the Project Schedule for Subproject 6(b).

D. In the event Owner does not issue an NTP for Subproject 6(b) by the LNG Berth 3 Option Date, then Contractor shall, at the end of every three Month period thereafter, notify Owner in writing of any impacts such delay has on Contractor’s costs of performance of the Work for Subproject 6(b) in the event such option is subsequently exercised by Owner, including Subcontractor prices, Contractor’s ability to perform the Work in accordance with the Agreement, the Project Schedule, and other Changed Criteria. For the avoidance of doubt, Contractor shall be entitled to a Change Order to the extent Owner’s exercise of the LNG Berth 3 Option after the LNG Berth 3 Option Date adversely affects Contractor’s ability to perform the Work in accordance with Project Schedule for Subproject 6(b). If Owner elects to exercise the LNG Berth 3 Option after the LNG Berth 3 Option Date, the Parties shall negotiate a Change Order for Subproject 6(b) pursuant to Section 5.2C.2.

ARTICLE 5

COMMENCEMENT OF WORK, PROJECT SCHEDULE, AND SCHEDULING OBLIGATIONS

5.1 Limited Notice to Proceed.

A. Commencement of LNTP Work. Upon Contractor’s receipt from Owner of LNTP No. 1, LNTP No. 2, LNTP No. 3, or any other the limited notice to proceed executed pursuant to Section 5.1A.4 (individually or collectively “Limited Notice to Proceed” or “LNTP”), Contractor shall promptly commence with the performance of the portion of the Work specified in such LNTP. The LNTP shall be issued in the applicable form attached hereto as Attachment H, Schedule H-1, Schedule H-4, Schedule H-5 or Schedule H-6 as further described below. Contractor shall not, and shall not be obligated to, commence performance of such Work until receipt from Owner of such LNTP.

 

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1. Limited Notice to Proceed No. 1. Owner shall issue LNTP No. 1 in the form attached hereto as Schedule H-4 (“LNTP No. 1”), authorizing and requiring Contractor commence performance of the Work as described in Schedule H-4. All Work performed under LNTP No. 1 shall be performed in accordance with the terms and conditions of this Agreement, and all payment for Work under LNTP No. 1 shall be credited against the Contract Price and the first payments to become due hereunder if NTP for Subproject 6(a) is issued. The portion of the Contract Price payable for Work under LNTP No. 1 shall be made in accordance with the Payment Schedule set forth in Attachment H-4 (as may be amended by Change Order) and the applicable provisions of Article 7. For the avoidance of doubt, in the event LNTP No. 1 is not issued by Owner pursuant to this Agreement, the Work included in Schedule H-4 remains part of the Work required to be performed by Contractor after issuance of NTP for Subproject 6(a) pursuant to this Agreement.

2. Limited Notice to Proceed No. 2. Owner may issue LNTP No. 2, which if issued shall be in the form attached hereto as Schedule H-5 (“LNTP No. 2”), authorizing and requiring Contractor to commence performance of the Work as described in Schedule H-5. All Work performed under LNTP No. 2 shall be performed in accordance with the terms and conditions of this Agreement, and all payments for Work under LNTP No. 2 shall be credited against the Contract Price and the first payments to become due hereunder if NTP for Subproject 6(a) is issued. The portion of the Contract Price payable for Work under LNTP No. 2 shall be made in accordance with the Payment Schedule set forth in Schedule H-5 (as may be amended by Change Order) and the applicable provisions of Article 7. For the avoidance of doubt, in the event LNTP No. 2 is not issued by Owner pursuant to this Agreement, the Work included in Schedule H-5 remains part of the Work required to be performed by Contractor after issuance of NTP for Subproject 6(a) pursuant to this Agreement.

3. Limited Notice to Proceed No. 3. Owner may issue LNTP No. 3, which if issued shall be in the form attached hereto as Schedule H-6 (“LNTP No. 3”), authorizing and requiring Contractor to commence performance of the Work as described in Schedule H-6. All Work performed under LNTP No. 3 shall be performed in accordance with the terms and conditions of this Agreement, and all payments for Work under LNTP No. 3 shall be credited against the Contract Price and the first payments to become due hereunder if NTP for Subproject 6(a) is issued. The portion of the Contract Price payable for Work under LNTP No. 3 shall be made in accordance with the Payment Schedule set forth in Schedule H-6 (as may be amended by Change Order) and the applicable provisions of Article 7. For the avoidance of doubt, in the event LNTP No. 3 is not issued by Owner pursuant to this Agreement, the Work included in Schedule H-6 remains part of the Work required to be performed by Contractor after issuance of NTP for Subproject 6(a) pursuant to this Agreement.

 

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4. Other Limited Notices to Proceed. At any time prior to the date of issuance of NTP for Subproject 6(a) or NTP for Subproject 6(b), if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, Owner may issue other LNTPs (including a LNTP for Subproject 6(b)) which, if issued, shall authorize and require Contractor to commence performance of a specified portion of the Work; provided that the Parties have executed a Change Order for such other LNTP Work. Each other LNTP, if any, shall specify the Work to be performed under the LNTP and the cost of such specified Work, and Contractor shall be paid for such specified Work pursuant to the terms and conditions of such other LNTP and this Agreement, with all such payments credited against the Contract Price if NTP is issued. Such LNTP shall be issued in the form attached hereto as Schedule H-1. The portion of the Contract Price payable for the LNTP Work shall be made in accordance with the Payment Schedule set forth in Attachment C (as may be amended by the applicable LNTP or by Change Order) and the applicable provisions of Article 7.

B. Conditions of Issuance of LNTP. Owner shall not issue any LNTP (including LNTP No. 1, LNTP No. 2 and LNTP No. 3) until the following conditions have been met (or waived in writing by Contractor):

1. Owner has furnished to Contractor documentation which demonstrates that Owner has sufficient funds to fulfill its payment obligations, including all cancellation costs associated with LNTP Work, in connection with Contractor’s performance of the LNTP Work, or that Owner has obtained financing from one or more Lenders to fulfill its payment obligations in connection with such LNTP Work;

2. Owner has obtained all Owner Permits that are necessary for performance of the LNTP Work, or if Owner has not obtained all such Owner Permits at the commencement of such LNTP Work, by issuance of the LNTP, Owner commits to obtain any such remaining Owner Permits in such time so as to not delay the performance of such LNTP Work;

3. Owner shall be in compliance with its other obligations set forth in Article 4 as necessary for the performance of the LNTP Work.

4. Owner has made payment to Contractor of all undisputed amounts owed as of the date of the LNTP that were earned in connection with Contractor’s performance of Request for Services No. 1 issued under the 2018 Technical Services Agreement, and Contractor’s performance of such Requests for Service has not been cancelled or suspended by Owner;

5. If Owner fails to issue LNTP No. 1 on or before November 15, 2018, the Parties have agreed to the adjustments to the Contract Price and Project Schedule as provided in Section 5.2C below as a condition of Owner issuance LNTP No. 1 after November 15, 2018;

 

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6. If Owner fails to issue LNTP No. 2 on or before February 15, 2019 and Owner has not issued NTP for Subproject 6(a) on or before February 15, 2019, the Parties have agreed to the adjustments to the Contract Price and Project Schedule as provided in Section 5.2C below as a condition of Owner issuing LNTP No. 2 after February 15, 2019; and

7. If Owner fails to issue LNTP No. 3 on or before May 15, 2019 and Owner has not issued NTP for Subproject 6(a) on or before May 15, 2019, the Parties have agreed to the adjustments to the Contract Price and Project Schedule as provided in Section 5.2C below as a condition of Owner issuing LNTP No. 3 after May 15, 2019.

5.2 Notices to Proceed.

A. Notice to Proceed for Subproject 6(a). Contractor shall not, and shall not be obligated to, commence performance of the Work for Subproject 6(a) (other than the LNTP Work) until Owner issues the full notice to proceed (“Notice to Proceed for Subproject 6(a)” or “NTP for Subproject 6(a)”) authorizing the same pursuant to the terms and conditions of this Agreement. Upon Contractor’s receipt from Owner of the NTP for Subproject 6(a), Contractor shall promptly commence with the performance of the Work. The NTP for Subproject 6(a) shall be issued in the form attached hereto as Attachment H, Schedule H-2. Contractor shall timely file in the required superior court and post at the Site a notice of commencement as required under La. Rev. Stat. §9:4801, et. seq. and shall provide copies of such notice of commencement to Subcontractors and Sub-subcontractors as required under La. Rev. Stat. §9:4801, et. seq.

1. Conditions of Issuance of NTP for Subproject 6(a). Owner shall not issue NTP for Subproject 6(a) until the following conditions have been met (or waived in writing by Contractor):

a. Owner has furnished to Contractor reasonable documentation which demonstrates that Owner (i) has funds through itself and (ii) has obtained financing from one or more Lenders, which combined are sufficient to fulfill Owner’s payment obligations under this Agreement with respect to Subproject 6(a), including (a) satisfaction, or waiver by Lenders, of all applicable conditions precedent to the occurrence of the closing date of the financing, which shall be prior to or contemporaneous with the issuance of the Notice to Proceed for Subproject 6(a), and (b) evidence of the execution of the credit agreement with respect to such financing by Owner and Lenders (including a copy of such executed credit agreement).

 

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For purposes of this Section 5.2A.1.a, funds and financing “sufficient to fulfill Owner’s payment obligations” shall mean that Owner has at NTP for Subproject 6(a) Eight Hundred Million U.S. Dollars (U.S.$800,000,000) committed to fulfill Owner’s payment obligations to Contractor under this Agreement with respect to Subproject 6(a). This committed fund amount is in addition to and exclusive of the (a) Mobilization Payment for Subproject 6(a), and (b) any funds committed to fulfill Owner’s payment obligations to Contractor under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement and the Stage 3 EPC Agreement;

b. Owner has obtained all Owner Permits (including the FERC Authorization for Subproject 6(a)) which are shown in Attachment Q as required to be obtained prior to the issuance of the NTP for Subproject 6(a);

c. Owner has issued Request for Services No. 1 issued under the 2018 Technical Services Agreement and Contractor’s performance of such Requests for Services has not been cancelled or suspended by Owner;

d. Owner has issued LNTP No. 1, and Contractor’s performance of such LNTP has not been cancelled or suspended by Owner;

e. Owner has made payment to Contractor of all undisputed amounts owed, if due, as of the date of the NTP for Subproject 6(a) that were earned in connection with Contractor’s performance of the LNTP Work;

f. The Mobilization Payment for Subproject 6(a) has been received by Contractor in cleared funds;

g. Owner shall be in compliance with its other obligations set forth in Article 4 as necessary for the commencement of the Work;

h. Owner has executed the ConocoPhillips License Agreement;

i. Owner has delivered to Contractor a release from Sabine Pass LNG, L.P. releasing Contractor Group and its Subcontractors and Sub-subcontractors: (a) from and against all damages, losses, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses) resulting from or related to damage to or destruction of the Existing Facility (excluding the Work related thereto) but only to the extent such damages, losses, costs and expenses exceed the lesser of (i) *** Million U.S. Dollars (U.S.$ ***) per occurrence or (ii) the actual amounts of insurance

 

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proceeds paid per such occurrence under the policies of insurance required to be provided by Contractor under this Agreement, however caused and even if caused by Contractor Group or its Subcontractors or Sub-subcontractors; and (b) Consequential Damages for which Contractor is released under Section 20.4 and arising out of or relating to such damage to or destruction of the Existing Facility. Such release shall be binding on and extend to any Affiliate of Owner that takes equity ownership in the Existing Facility; and

j. Owner has executed the Umbrella Agreement as set forth in Section 9.1; and

k. If Owner fails to do any of the following: (i) issue NTP for Subproject 6(a) on or before November 15, 2018 and Owner has not issued LNTP No. 1 on or before November 15, 2018, (ii) issue NTP for Subproject 6(a) on or before February 15, 2019 and Owner has not issued LNTP No. 2 on or before February 15, 2019, (iii) issue NTP for Subproject 6(a) on or before by May 15, 2019 and Owner has not issued LNTP No. 3 on or before May 15, 2019, or (iv) issue NTP for Subproject 6(a) on or before July 1, 2019 despite Owner having issued LNTP No. 1 on or before November 15, 2018, LNTP No. 2 on or before February 15, 2019 and LNTP No. 3 on or before May 15, 2019, the Parties have agreed to the adjustments to the Contract Price and Project Schedule as provided in Section 5.2C.

B. NTP for Subproject 6(b). Contractor shall not, and shall not be obligated to, commence performance of the Work for Subproject 6(b) (other than the LNTP Work for Subproject 6(b), if any) until Owner issues the full notice to proceed for Subproject 6(b) (“Notice to Proceed for Subproject 6(b)” or “NTP for Subproject 6(b)”) authorizing the same pursuant to the terms and conditions of this Agreement. Upon Contractor’s receipt from Owner of the NTP for Subproject 6(b), Contractor shall promptly commence with the performance of the Work for Subproject 6(b). The NTP for Subproject 6(b) shall be issued in the form attached hereto as Attachment H, Schedule H-3.

1. Conditions of Issuance of NTP for Subproject 6(b). Owner shall not issue the NTP for Subproject 6(b) until the following conditions have been met (or waived in writing by Contractor):

a. The Parties have executed the LNG Berth 3 Change Order pursuant to Section 4.10A;

b. Owner has issued NTP for Subproject 6(a);

c. Owner has obtained all Owner Permits (including the FERC Authorization for Subproject 6(b)) which are shown in Attachment Q as required to be obtained prior to the issuance of the NTP for Subproject 6(b);

 

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d. Owner has furnished to Contractor reasonable documentation which demonstrates that Owner (i) has funds through itself and (ii) has obtained financing from one or more Lenders, which combined are sufficient to fulfill Owner’s payment obligations under this Agreement with respect to Subproject 6(b), including (a) satisfaction, or waiver by Lenders, of all applicable conditions precedent to the occurrence of the closing date of the financing, which shall be prior to or contemporaneous with the issuance of the Notice to Proceed for Subproject 6(b), and (b) evidence of the execution of the credit agreement with respect to such financing by Owner and Lenders (including a copy of such executed credit agreement).

For purposes of this Section 5.2B.1.d, funds and financing “sufficient to fulfill Owner’s payment obligations” shall mean that Owner has at NTP for Subproject 6(b) Two Hundred Million U.S. Dollars (U.S.$200,000,000) committed to fulfill Owner’s payment obligations to Contractor under this Agreement with respect to Subproject 6(b). This committed fund amount is in addition to and exclusive of the (a) Mobilization Payment for Subproject 6(b), and (b) any funds committed to fulfill Owner’s payment obligations to Contractor under the Stage 1 EPC Agreement, the Stage 2 EPC Agreement and Stage 3 EPC Agreement;

e. The Mobilization Payment for Subproject 6(b) has been received by Contractor in cleared funds;

f. Owner shall remain and be in compliance with its other obligations set forth in Article 4 as necessary for the commencement of the Work; and

g. If Owner issues NTP for Subproject 6(b) after the LNG Berth 3 Option Date, the Parties have agreed to the adjustment to the Contract Price Applicable to Subproject 6(b) as provided in Section 5.2C below and the Parties have executed a Change Order for Subproject 6(b) to adjust the Contract Price Applicable to Subproject 6(b) and the Project Schedule for Subproject 6(b).

C. Delayed LNTP No. 1 or NTP.

1. Subproject 6(a). In the event Owner fails to either (i) issue LNTP No. 1 in accordance with Section 5.1 on or before November 15, 2018, (ii) issue NTP for Subproject 6(a) in accordance with Section 5.2 on or before February 15, 2019 and Owner has not issued LNTP No. 2 in accordance with Section 5.1 on or

 

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before February 15, 2019, (iii) issue NTP for Subproject 6(a) in accordance with Section 5.2 on or before May 15, 2019 and Owner has not issued LNTP No. 3 in accordance with Section 5.1 on or before May 15, 2019, or (iv) issue NTP for Subproject 6(a) in accordance with Section 5.2 on or before July 5, 2019 despite Owner having issued LNTP No. 3. in accordance with Section 5.1 on or before May 15, 2019, then Contractor shall be entitled to an adjustment to the Contract Price and the Project Schedule if and to the extent caused by such delayed issuance of LNTP No. 1, LNTP No. 2, LNTP No. 3, or NTP for Subproject 6(a), as applicable. Such adjustment shall include cost and schedule impacts caused by, for example, closing of vendor shops, unavailability of materials, labor unavailability, impacts on ability to attract and/or retain qualified labor, as well as escalation and loss of synergies with Contractor’s work under the Stage 3 EPC Agreement. For the avoidance of doubt, any adjustment to the Contract Price or Project Schedule shall not be based on Contractor’s errors or omissions, a change in technology, or a change in material or Equipment quantities (except where the unavailability of materials, vendors or labor caused by such delayed issuance of LNTP No. 1 or NTP for Subproject 6(a) results in necessary changes to Equipment specifications). Contractor shall use commercially reasonable efforts and GECP to mitigate the increase to the Contract Price and the Project Schedule. Such agreed-upon adjustment will be set forth in a Change Order.

2. Subproject 6(b). In the event Owner fails to issue NTP for Subproject 6(b) on or before the LNG Berth 3 Option Date, then Contractor shall be entitled to an adjustment to the Contract Price Applicable to Subproject 6(b) and the Project Schedule for Subproject 6(b) if and to the extent caused by such delayed issuance of NTP for Subproject 6(b). Such adjustment shall include cost impacts caused by, for example, closing of vendor shops, unavailability of materials, labor unavailability, impacts on ability to attract and/or retain qualified labor, as well as escalation and loss of synergies with Contractor’s performance of Work for Subproject 6(a). For the avoidance of doubt, any adjustment to the Contract Price Applicable to Subproject 6(b) or the Project Schedule for Subproject 6(b) shall not be based on Contractor’s errors or omissions, a change in technology, or a change in material or Equipment quantities (except where the unavailability of materials, vendors or labor caused by such delayed issuance of NTP for Subproject 6(b) results in necessary changes to Equipment specifications). Contractor shall use commercially reasonable efforts and GECP to mitigate (i) the increase to the Contract Price Applicable to Subproject 6(b) and (ii) any adverse impact to the Project Schedule for Subproject 6(b). Such agreed-upon adjustment will be set forth in a Change Order.

3. Contractor shall, at the end of every three Month period thereafter until the applicable NTP (if any) is issued by Owner, notify Owner in writing of any impacts such delay has on Contractor’s costs of performance of the Work, including Subcontractor prices, and Contractor’s ability to perform the Work in accordance with the Agreement, including the Project Schedule and other Changed Criteria. Contractor shall not be entitled to the relief in this Section 5.2C to the extent the reason for Owner failing to issue the applicable NTP is because Contractor failed to provide the Letter of Credit in accordance with Section 9.2A.

 

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5.3 Project Schedule. Contractor shall perform the Work in accordance with the Project Schedule.

A. Target Substantial Completion Dates. Listed in Attachment E is the Target Substantial Completion Date for Subproject 6(a). If Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, the Target Substantial Completion Date for Subproject 6(b) will be specified in the LNG Berth 3 Change Order. The Target Substantial Completion Dates shall only be adjusted by Change Order as provided under this Agreement.

B. Guaranteed Substantial Completion Dates. Contractor shall achieve Substantial Completion of Subproject 6(a) no later than the date specified in Attachment E (“Guaranteed Substantial Completion Date for Subproject 6(a)”) and Substantial Completion of Subproject 6(b) no later than the date specified in the LNG Berth 3 Change Order (“Guaranteed Substantial Completion Date for Subproject 6(b)”) (each a “Guaranteed Substantial Completion Date” and collectively, the “Guaranteed Substantial Completion Dates”). The Guaranteed Substantial Completion Dates shall only be adjusted by Change Order as provided under this Agreement.

C. Final Completion. Contractor shall achieve Final Completion no later than (i) *** (***) Days after achieving Substantial Completion of the later of Subproject 6(a) and Subproject 6(b), or as soon as reasonably practicable thereafter if the Parties mutually agree (both acting reasonably).

5.4 CPM Schedule Submissions. Within fifteen (15) Days after NTP for Subproject 6(a) is issued in accordance with Section 5.2A, Contractor shall prepare and submit to Owner for its review a critical path method schedule (“CPM Schedule”) for the Work identifying a critical path for Subproject 6(a) (which CPM Schedule shall be amended to include Subproject 6(b) if Owner exercises the LNG Berth 3 Option pursuant to Section 4.10A herein), which shall be detailed at a Level II for all activities for the Project (including engineering, procurement, construction, pre-commissioning, commissioning, testing and startup). In addition, no later than one hundred and twenty (120) Days after NTP for Subproject 6(a) is issued in accordance with Section 5.2A, Contractor shall submit to Owner for its review a revised CPM Schedule, which shall be detailed at a Level III for all activities for the Project (including engineering, procurement, construction, pre-commissioning, commissioning, testing and startup), which revised CPM Schedule shall be amended to include Subproject 6(b) if Owner exercises the LNG Berth 3 Option pursuant to Section 4.10A herein. The initial CPM Schedule shall govern Contractor’s Work until the revised CPM Schedule is prepared and reviewed by Owner. Each of the initial and revised CPM Schedules shall be referred to as the “CPM Schedule,” and each shall comply with the requirements of this Section 5.4 and shall be provided to Owner in its native electronic format. The CPM Schedules shall be prepared by Contractor using Primavera Project Planner version 15.1 or a more recent version of such software. Without limitation of the foregoing, the CPM Schedules shall include the information and meet the requirements set forth in Section 8.4 of Attachment A.

 

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5.5 Recovery and Recovery Schedule. If, at any time during the prosecution of the Work, (i) should the Monthly Progress Report show that any activity on the critical path is forty-five (45) or more Days behind schedule, or should Contractor fail to provide a Monthly Progress Report in compliance with the requirements of this Agreement and Owner reasonably determines that any activity on the critical path is forty-five (45) or more Days behind schedule and (ii) Contractor or any of its Subcontractors or Sub-subcontractors are in Owner’s reasonable judgment responsible for such delay, Owner may, in addition to any other remedies that it may have under this Agreement, require that Contractor prepare a schedule to explain and display how it intends to regain compliance with the CPM Schedule (“Recovery Schedule”). Within ten (10) Business Days after the determination by Owner of the requirement for a Recovery Schedule, Contractor shall prepare the Recovery Schedule and submit it to Owner for its review. The Recovery Schedule shall (i) represent Contractor’s best judgment as to how it shall regain compliance with the CPM Schedule, (ii) be prepared in accordance with GECP, (iii) have a level of detail sufficient for Contractor to direct, manage and perform the Work, and (iv) have a maximum duration of sixty (60) Days unless recovery cannot be reasonably achieved in such time, in which case the duration of the Recovery Schedule shall be for that period of time reasonably necessary to regain compliance with the CPM Schedule. Contractor shall address all comments received from Owner during Owner’s review of the Recovery Schedule, and Contractor shall provide a written statement describing why any of Owner’s comments or proposed changes to the Recovery Schedule were not implemented by Contractor. Any of Owner’s comments or proposed changes to the Recovery Schedule that Contractor implements should be reflected in the revised Recovery Schedule. The revised Recovery Schedule shall then be the schedule which Contractor shall use in planning, organizing, directing, coordinating, performing, and executing the Work (including all activities of Subcontractors and Sub-subcontractors) to regain compliance with the CPM Schedule. The cost of preparing and executing the Recovery Schedule shall be at Contractor’s sole cost and expense; provided, however, if the preparation of a Recovery Schedule is combined with a request by Owner for a Change Order and the cost of preparing the Change Order for such request (excluding any costs associated with recovery) exceeds Thirty Thousand U.S. Dollars (U.S.$30,000), then Contractor is entitled to reimbursement for such preparation costs in accordance with Section 6.1A. Owner’s review and comments regarding the Recovery Schedule shall not relieve Contractor of any obligations for performance of the Work, change the Target Substantial Completion Date(s) or Guaranteed Substantial Completion Date(s) or be construed to establish the reasonableness of the Recovery Schedule.

A. If, at any time prior to the applicable Guaranteed Substantial Completion Date, Contractor’s performance of the Work is delayed such that a Subproject is projected to achieve Substantial Completion beyond the applicable Guaranteed Substantial Completion Date (as may be adjusted by Change Order) to such an extent that the Delay Liquidated Damages cap in Section 20.2A would apply, and Contractor fails to provide a Recovery Schedule in accordance with this Section 5.5 or Contractor provides a Recovery Schedule but Contractor fails to materially comply with such Recovery Schedule, then Contractor shall be in Default and Owner shall have the right, prior to the applicable Guaranteed Substantial Completion Date, to terminate Contractor’s performance of the Work in accordance with Section 16.1A. If Owner so terminates, Owner shall have all of the rights under Section 16.1 (including recovering all amounts under Section 16.1A), except that in the case of a termination by Owner pursuant to this Section 5.5A solely for Contractor’s failure to provide a Recovery Schedule and materially comply therewith, Contractor’s liability under Section 16.1 arising out of such termination shall be limited to the applicable cap or caps in Section 20.2A and no Performance Liquidated Damages would be owed.

 

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5.6 Acceleration and Acceleration Schedule.

A. Even if the Work is otherwise in compliance with the CPM Schedule, Owner may, at any time, direct Contractor in writing to advance one or more of the Target Substantial Completion Dates and the Guaranteed Substantial Completion Dates; provided, however, such directive shall be reasonable and Contractor shall have agreed in writing that such acceleration is commercially and technically feasible. In the event of such agreement, the directive shall be termed herein a “Confirmed Acceleration Directive” and shall be set forth in a Change Order. In no event shall Owner have the right to issue a unilateral acceleration directive requiring Contractor to achieve Substantial Completion of a Subproject prior to the original Guaranteed Substantial Completion Date for such Subproject specified in this Agreement as of the Contract Date. In the event of a Confirmed Acceleration Directive, Owner shall pay Contractor for the documented costs plus fees attributable to such acceleration and appropriate incentives, if any, shall be mutually agreed upon by the Parties with respect to such early proposed completion and set forth in the Change Order. Such costs may include any shift differential, premium, or overtime payments to workers or field supervisors and other employees of Contractor dedicated to the Work on a full-time basis actually incurred over and above Contractor’s normal rates, and overtime charges for Construction Equipment. Any adjustment to the Contract Price or any other Changed Criteria necessitated by such acceleration of the Work shall be implemented by Change Order. Upon execution of the Change Order, Contractor shall immediately commence and diligently perform the acceleration of the Work, and shall prepare a schedule to explain and display how it intends to accelerate the Work and how that acceleration will affect the critical path of the CPM Schedule (the “Acceleration Schedule”). With respect to the Acceleration Schedule, Contractor shall do the following:

1. No later than the tenth (10th) Business Day after execution of the Change Order with respect to the Confirmed Acceleration Directive, Contractor shall prepare the Acceleration Schedule and submit it to Owner for its review. The Acceleration Schedule shall represent Contractor’s best judgment as to how it shall satisfy the Confirmed Acceleration Directive. The Acceleration Schedule shall be prepared using GECP and to a similar level of detail as the CPM Schedule.

2. On the tenth (10th) Business Day after execution of the Change Order with respect to the Confirmed Acceleration Directive (or such longer time as specified in writing by Owner), Contractor shall participate in a conference with Owner, and with any other Person (including Subcontractors and Sub-subcontractors) whom Owner reasonably designates to participate, to review and evaluate the Acceleration Schedule. Any revisions to the Acceleration Schedule necessary as a result of this review shall be resubmitted for review by Owner as soon as reasonably practicable or as mutually agreed by the Parties. The revised Acceleration Schedule shall then be the schedule which Contractor shall use in planning, organizing, directing, coordinating, performing, and executing that portion of the Work that is affected by such acceleration, with the CPM Schedule governing the performance of all other Work.

Owner’s review of the Acceleration Schedule shall not constitute an independent evaluation or determination by Owner of the workability, feasibility, or reasonableness of that schedule.

 

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ARTICLE 6

CHANGES; FORCE MAJEURE; AND OWNER-CAUSED DELAY

6.1 Change Orders Requested by Owner. Until Substantial Completion of the applicable Subproject , Owner shall be entitled to a Change Order with respect to such Subproject upon request in accordance with this Section 6.1.

A. If Owner submits to Contractor in writing a duly signed proposed Change Order, Contractor must respond to Owner, to the extent practicable, within thirty (30) Days with a written statement setting forth the effect, if any, which such proposed Change Order would have on the Contract Price, the Project Schedule, the Design Basis, the Payment Schedule, any of the Minimum Acceptance Criteria, Performance Guarantee or Guarantee Conditions, and/or any other obligation or potential liability of Contractor hereunder (collectively or individually, the “Changed Criteria”). The written statement shall be in the form of Schedule D-3, and shall include, to the extent practicable, all information required by Section 6.5B. Owner shall respond to Contractor’s written statement within fourteen (14) Business Days of receipt, responding to Contractor’s statement as to the effects of the proposed Change Order on the Changed Criteria. If it is not practicable for Contractor to provide all of the information required under this Section 6.1A to be submitted with such written statement within such thirty (30) Day period, Contractor shall provide Owner with as much information as practicable as well as a written explanation of the reason additional time is required. To the extent Contractor incurs costs exceeding Thirty Thousand U.S. Dollars (U.S.$30,000) (which costs shall be adequately documented and supported by Contractor) in responding to any one proposed Change Order, Contractor shall be reimbursed for such excess costs in responding to such Change Order within twenty-five (25) Days after Owner’s receipt of Contractor’s invoice therefor; provided that Contractor first gives Owner written notice of the estimate of the cost of such preparation before preparing the response, such estimate is in excess of Thirty Thousand U.S. Dollars (U.S.$30,000), Owner approves in writing the preparation of the response, and such proposed Change Order is not implemented.

B. If the Parties agree on such Changed Criteria of the proposed Change Order (or modify such proposed Change Order so that the Parties agree on such Changed Criteria), the Parties shall execute such Change Order incorporating the Changed Criteria, which shall be in the form of Schedule D-1, and such Change Order shall become binding on the Parties, as part of this Agreement.

 

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C. If the Parties cannot agree on such Changed Criteria of the proposed Change Order within ten (10) Days of Contractor’s receipt of Owner’s response to Contractor’s written statement, or if Owner desires that the proposed changed Work set forth in the proposed Change Order commence immediately without the requirement of a written statement by Contractor as required under Section 6.1A, Owner may (subject to this Section 6.1C), by issuance of a unilateral Change Order in the form attached hereto as Schedule D-2, require Contractor to commence and perform the changed Work specified in the unilateral Change Order on a time and material basis as set forth in Schedule D-4 with the effect of such unilateral Change Order on the Changed Criteria (or if the Parties agree on the effect of such unilateral Change Order for some but not all of the Changed Criteria, the impact of each of the components of the Changed Criteria on which the Parties disagree) to be determined as soon as possible but without prejudice to Contractor’s right to refer any Dispute for resolution in accordance with Article 18. The rates specified in Schedule D-4 are “Unit Rates,” and the Unit Rates shall be used to the extent applicable to the changed Work. The Parties acknowledge and agree that unilateral Change Orders submitted by Owner in accordance with this Section 6.1C shall be limited to additions or modifications to, or deductions from, the Work and that Owner shall not have the unilateral right to change, amend or modify any of the other Changed Criteria or the terms of this Agreement. Pending resolution of the Dispute, Contractor shall perform the Work as specified in such unilateral Change Order and Owner shall continue to pay Contractor in accordance with the terms of this Agreement and any previously agreed Change Orders. When Owner and Contractor agree on the effect of such unilateral Change Order on all of the Changed Criteria, such agreement shall be recorded by execution by the Parties of a Change Order in the form attached hereto as Schedule D-1, which shall supersede the unilateral Change Order previously issued and relating to such changed Work. With the exception of any Contract Price adjustment contemplated under Attachment EE, in no event shall Owner be entitled to issue any unilateral Change Order in accordance with this Section 6.1C where such unilateral Change Order (i) would result in an increase equal to or exceeding Ten Million U.S. Dollars (U.S.$10,000,000), or (ii) in conjunction with other unilateral Change Orders issued by Owner (other than any Contract Price adjustment contemplated under Attachment EE), would in themselves result in an increase equal to or exceeding an amount equal to Thirty Million U.S. Dollars (U.S.$30,000,000); provided that, with respect to unilateral Change Orders requiring Contractor to conduct or develop engineering studies, Contractor shall not be required to incur costs (a) greater than Thirty Thousand U.S. Dollars (U.S.$30,000) for any single Change Order for engineering studies, or (b) in conjunction with other unilateral Change Orders, greater than Three Hundred Thousand (U.S.$300,000) in the aggregate for engineering studies. Notwithstanding the foregoing, in no event shall Owner be entitled to issue any unilateral Change Order directing performance of Work under an LNTP. For the avoidance of doubt, the Parties agree that the adjustments contemplated under Attachment EE do not constitute unilateral Change Orders.

D. In the event of a change in any Applicable Code and Standard which does not constitute a Change in Law, Contractor shall provide written notice to Owner regarding such change. Upon receipt of such notice from Contractor, Owner may submit a proposed Change Order to Contractor in accordance with this Section 6.1 in the event Owner, at its sole option, elects for Contractor to implement such change in Applicable Code and Standard. In the event Owner does not, at its sole option, elect for Contractor to implement such change in Applicable Code and Standard, Contractor shall not be required to perform in accordance with such Applicable Code and Standard. In the event, however, that

 

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compliance with such Applicable Code and Standard is mandatory for Contractor to comply with GECP and Owner does not, at its sole option, after receipt of written notice from Contractor regarding same, elect for Contractor to implement such change in Applicable Code and Standard, then Owner waives its rights to claim a breach of GECP with respect to such change in Applicable Code and Standard.

6.2 Change Orders Requested by Contractor.

A. Contractor shall have the right to a Change Order in the event of any of the following occurrences:

1. Any Change in Law that adversely affects (i) Contractor’s costs of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material obligation under this Agreement;

2. Acts or omissions of any member of Owner Group or any other Person for whom Owner is responsible, including in the case of Owner any failure to perform any obligation under this Agreement, that adversely affects (i) Contractor’s costs of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material obligation under this Agreement; provided that Contractor shall not be entitled to a Change Order to the extent that such acts or omissions of Owner are caused, directly or indirectly, by Contractor’s failure to perform its obligations under this Agreement;

3. Force Majeure to the extent allowed under Section 6.8A;

4. Acceleration of the Work directed by Owner pursuant to Section 5.6;

5. Owner’s request for an increase in coverage under the Letter of Credit pursuant to Section 9.2 to cover any increase in the Contract Price as a result of Change Orders to the extent set forth in Section 9.2;

6. To the extent expressly permitted under Sections 3.3C, 3.4A, 3.25, 4.3, 4.8A, 4.10, 5.2C, 5.6A, 7.1, 8.2A, 8.2D, 11.1A, 11.1B.6, 12.2A, 16.3, 16.4 and Attachment EE;

7. Delay beyond the permissible times specified in Section 1A.9(g)(ii) or Section 1A.11(ii) of Attachment O for the delivery by Owner to Contractor of builder’s risk or marine cargo insurance proceeds received by the Collateral Agent (or if no Collateral Agent, a mutually agreed upon escrow agent) shall relieve Contractor of any obligation under this Agreement to effect repairs or other restoration of the Work affected by the insured occurrence for any costs of repairs or restoration exceeding the sum of the deductible under such insurance and any amounts previously paid to Contractor under such insurance and shall entitle Contractor to a Change Order adjusting the Contract Price and Project Schedule,

 

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but only to the extent such delay adversely affects (i) Contractor’s cost of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule, or (iii) or Contractor’s ability to perform any material obligation under this Agreement; provided that, notwithstanding the foregoing, in no event shall this Section 6.2A.7 in any way relieve Contractor from any obligation to perform any work necessary to maintain the builder’s risk and marine cargo insurance in full force and effect;

8. Suspension in Work ordered by Owner pursuant to Section 16.3;

9. Subsurface Soil Conditions to the extent allowed under Section 2.5B.2; or

10. Discovery of Hazardous Materials at the Site or on the Off-Site Rights of Way and Easements for which Owner is responsible under Section 4.7 that adversely affects (i) Contractor’s costs of performance of the Work, (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material obligation under this Agreement;

B. Should Contractor desire to request a Change Order under this Section 6.2, Contractor shall, pursuant to Section 6.5, notify Owner in writing and issue to Owner, at Contractor’s expense, a request for a proposed Change Order in the form attached hereto as Schedule D-3, a detailed explanation of the proposed change and Contractor’s reasons for proposing the change, documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section 6.5. Any adjustments to the Contract Price shall (unless otherwise agreed) be requested on a lump sum basis and shall be based on the requirements in Schedule D-4 and the Unit Rates specified therein to the extent applicable to the Change Order.

C. Owner shall respond to Contractor’s request for a Change Order within thirty (30) Days of receipt, stating (i) whether Owner agrees that Contractor is entitled to a Change Order and (ii) the extent, if any, to which Owner agrees with Contractor’s statement regarding the effect of the proposed Change Order on the Changed Criteria, including any adjustment to the Contract Price and the estimated costs for each item making up the adjustment to the Contract Price. If Owner agrees that a Change Order is necessary and agrees with Contractor’s statement regarding the effect of the proposed Change Order on the Changed Criteria, including mutual agreement on the costs, then Owner shall issue such Change Order, which shall be in the form of Schedule D-1, and such Change Order shall become binding on the Parties as part of this Agreement upon execution thereof by the Parties. Owner shall be entitled to decline a Change Order with respect to any request by Contractor for a Change Order if the Change Order request, when submitted, is not adequately documented and supported by Contractor as required under this Agreement.

D. If the Parties agree that Contractor is entitled to a Change Order but cannot agree on the effect of the proposed Change Order on the Changed Criteria within thirty (30) Days of Owner’s receipt of Contractor’s written notice and proposed Change Order and all other required information, or if Owner desires that the proposed changed Work set forth in the proposed Change Order commence immediately, the rights, obligations and procedures set forth in Section 6.1C are applicable.

 

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E. If the Parties cannot agree upon whether Contractor is entitled to a Change Order within thirty (30) Business Days of Owner’s receipt of Contractor’s written notice and proposed Change Order, then the Dispute shall be resolved as provided in Article 18. Pending resolution of the Dispute, Contractor shall continue to perform the Work required under this Agreement, and Owner shall continue to pay Contractor in accordance with the terms of this Agreement, any Change Orders and any previously agreed or unilateral Change Orders.

6.3 Contract Price Adjustment; Contractor Documentation. If a Change Order is executed on a time and material basis pursuant to Section 6.1C or 6.2D, then the Contract Price shall be adjusted as set forth in Schedule D-4. Contractor shall use reasonable efforts to minimize such costs (consistent with the requirements of this Agreement).

6.4 Change Orders Act as Accord and Satisfaction. Unless otherwise expressly stated in the Change Order, Change Orders agreed pursuant to Section 6.1B or 6.2C by the Parties shall constitute a full and final settlement and accord and satisfaction of all effects of the change reflected in the subject Change Order and shall be deemed to compensate Contractor fully for such change. Accordingly, unless otherwise expressly stated in such Change Order, Contractor expressly waives and releases any and all right to make a claim or demand or to take any action or proceeding against Owner for any consequences arising out of, relating to or resulting from such change reflected in the subject Change Order. If Contractor expressly reserves its right in a Change Order to maintain a claim arising out of the change in the Change Order, then Contractor shall provide Owner with notice every ninety (90) Days setting forth the then known impact of the reserved claim in the Change Order.

6.5 Timing Requirements for Notifications and Change Order Requests by Contractor. Should Contractor desire to seek an adjustment to the Contract Price, the Project Schedule, the Payment Schedule, any of the Minimum Acceptance Criteria or Performance Guarantee or any other modification to any other obligation of Contractor under this Agreement for any circumstance that Contractor has reason to believe may give rise to a right to request the issuance of a Change Order, Contractor shall, with respect to each such circumstance:

A. notify Owner in writing of the existence of such circumstance within twenty (20) Days of the date that Contractor knew of the first occurrence or beginning of such circumstance; provided, however, if such circumstance is an emergency, notice shall be given as soon as reasonably practicable. In such notice, Contractor shall state in detail all known and presumed facts upon which its claim is based, including the character, duration and extent of such circumstance, the date Contractor first knew of such circumstance, any activities impacted by such circumstance, a good faith estimate of the cost (which such costs shall be adequately documented and supported by Contractor) and time consequences of such circumstance (including showing a good faith estimate of the impact of such circumstance, if any, on the critical path of the CPM Schedule) and any other details or information that are expressly required under this Agreement. Contractor shall only be required to comply with the notice requirements of this Section 6.5A once for continuing circumstances, provided that the notice expressly states that the circumstance is continuing and includes Contractor’s best estimate of the time and cost consequences of such circumstance; and

 

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B. submit to Owner a request for a Change Order as soon as reasonably practicable after giving Owner written notice but in no event later than forty-five (45) Days after the completion of each such circumstance, together with a written statement with all information currently available (i) detailing why Contractor believes that a Change Order should be issued, plus all documentation reasonably requested by Owner, including information and details expressly required under this Agreement (including the information required by Schedule D-4, applicable detailed estimates and cost records and a graphic demonstration using the CPM Schedule and Monthly Progress Reports showing Contractor’s entitlement to a time extension to the Project Schedule pursuant to the terms of this Agreement); and (ii) setting forth the effect, if any, which such proposed Change Order has or would have for the Work on any of the Changed Criteria. Contractor shall promptly supplement its request for a Change Order with additional information as such additional information (if any) becomes available.

If Contractor fails to provide the notice as required under this Section 6.5, and if Owner demonstrates that it has been prejudiced on account of such failure to provide notice, then, to the extent that Owner is so prejudiced, Contractor waives its right for, and releases Owner from and against any claims for, adjustments in the Contract Price, the Project Schedule, Payment Schedule, any Work, any of the Minimum Acceptance Criteria or Performance Guarantee or any other modification to any other obligation of Contractor under this Agreement. Oral notice, shortness of time, or Owner’s actual knowledge of a particular circumstance shall not waive, satisfy, discharge or otherwise excuse Contractor’s strict compliance with this Section 6.5. Contractor shall have the burden of proof with respect to any claim made by it.

6.6 Evidence of Funds. With the exception of any Contract Price adjustment contemplated under Attachment EE, Contractor shall not be obligated to proceed with any Change Order that, alone or in conjunction with other Change Orders, would result in an increase in the Contract Price, as of the Contract Date, in excess of Fifty Million U.S. Dollars (U.S.$50,000,000) and thereafter would result in an increase in the Contract Price in excess of additional Five Million U.S. Dollars (U.S.$5,000,000) increments, unless Owner furnishes, to Contractor’s reasonable satisfaction, documentation which demonstrates either that Owner has (i) sufficient funds to pay for such Change Order, or (ii) obtained financing from one or more Lenders in sufficient funds to pay for such Change Order.

6.7 Adjustment Only Through Change Order. Unless otherwise provided in this Agreement, no change in the requirements of this Agreement, whether an addition to, deletion from, suspension of or modification to this Agreement, including any Work, shall be the basis for an adjustment for any change in the Contract Price, the Project Schedule, Payment Schedule, any Work, any of the Minimum Acceptance Criteria or Performance Guarantee or any other obligations of Contractor or right of Owner under this Agreement unless and until such addition, deletion, suspension or modification has been authorized by a Change Order executed and issued

 

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in accordance with and in strict compliance with the requirements of this Section 6.7. Contractor shall not perform any change in the Work unless and until such change is authorized pursuant to this Section 6.7, and should Contractor perform or claim to perform any changes in the Work prior to authorization by Change Order, all such costs and expenses incurred by Contractor shall be for Contractor’s account. No course of conduct or dealings between the Parties, nor implied acceptance of additions, deletions, suspensions or modifications to this Agreement, including any Work, and no claim that Owner has been unjustly enriched by any such addition, deletion, suspension or modification to this Agreement, whether or not there is in fact any such unjust enrichment, shall be the basis for any claim for an adjustment in the Contract Price, the Project Schedule, the Payment Schedule, any Work, any of the Minimum Acceptance Criteria or Performance Guarantee or any other obligations of Contractor under this Agreement.

6.8 Force Majeure.

A. Contractor Relief. If the commencement, prosecution or completion of the Work is prevented or delayed by Force Majeure (including the effects of such Force Majeure), then Contractor shall be entitled to an extension to the Target Substantial Completion Date(s) and/or Guaranteed Substantial Completion Date(s) to the extent, if any, permitted under Section 6.8A.1 and an adjustment to the Contract Price to the extent, if any, permitted under Section 6.8A.1, provided that Contractor has complied with the notice and Change Order requirements in Section 6.5 and the mitigation requirements in Section 6.11. In addition, if Force Majeure (including the effects of such Force Majeure) prevents Contractor’s performance with respect to any portion of the Work, Contractor shall, subject to Section 6.11, be relieved from performance of such portion of the Work for the time period that such Force Majeure, or the effects of such Force Majeure, are continuing. All time extensions to the Project Schedule and adjustments to the Contract Price for such delays or preventions shall be by Change Order implemented and documented as required under this Article 6.

1. Time Extension. Contractor shall be entitled to an extension to the Target Substantial Completion Date(s) and/or Guaranteed Substantial Completion Date(s) for delay or prevention that meets the requirements of this Section 6.8A, if and to the extent such delay or prevention causes a delay in the critical path of the Work. Contractor shall demonstrate to Owner its entitlement to relief under this Section by providing to Owner an updated CPM Schedule using Primavera Project Planner version 15.1 (or a more recent version of such software) in its native electronic format with actual durations entered for all activities on the critical path and re-forecasted clearly to indicate Contractor’s entitlement to a time extension under this Section 6.8A. Notwithstanding the foregoing, any adjustment to the Target Substantial Completion Date(s) shall extend the Guaranteed Substantial Completion Dates in the same amounts so that the Guaranteed Substantial Completion Date for a Subproject is always fifty nine (59) Days after the Target Substantial Completion Date for such Subproject, regardless of whether the delay impacts only the critical path of the Work to achieve the Target Substantial Completion Date and not the Guaranteed Substantial Completion Date.

 

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2. Compensation. Contractor shall be entitled to an adjustment to the Contract Price for any delay or prevention that meets the requirements of this Section 6.8A, if such delay or prevention, alone or in conjunction with other Force Majeure Events, continues for a period of at least thirty (30) Days, in the aggregate. Any such Contract Price adjustment shall be for reasonable costs necessarily incurred by Contractor for delay or prevention occurring after the expiration of such thirty (30) Day period; provided that Owner’s total liability under this Agreement for any such Contract Price adjustment(s) for all such events occurring during the term of this Agreement shall not exceed Fifty Million U.S. Dollars (U.S.$50,000,000) in the aggregate.

B. Owner Relief. Subject to Section 6.8C, Owner’s obligations under this Agreement shall be suspended to the extent that performance of such obligations is delayed or prevented by Force Majeure, but without prejudice to Contractor’s entitlement to a Change Order to the extent set forth in Section 6.2A.

C. Payment Obligations. No obligation of a Party to pay moneys under or pursuant to this Agreement shall be excused by reason of Force Majeure.

6.9 Extensions of Time and Adjustment of Compensation. With respect to any of the circumstances set forth in Section 6.2A which cause delay of the commencement, prosecution or completion of the Work for which Contractor is entitled to a Change Order (with the exception of delay resulting from an event of Force Majeure, which shall be governed in accordance with Section 6.8), Contractor shall be entitled to an extension to the applicable Target Substantial Completion Date and Guaranteed Substantial Completion Date if and to the extent: (i) such delay causes a delay in the critical path of the Work; (ii) Contractor has complied with the notice and Change Order requirements in Section 6.5 and the mitigation requirements of Section 6.11; and (iii) such delay is not attributable to Contractor or any of its Subcontractors or Sub-subcontractors. Contractor shall demonstrate to Owner its entitlement to relief under this Section by providing to Owner an updated CPM Schedule using Primavera Project Planner version 15.1 (or a more recent version of such software) in its native electronic format with actual durations entered for all activities on the critical path and re-forecasted clearly to indicate Contractor’s entitlement to a time extension under this Section 6.9. Notwithstanding the foregoing, any adjustment to the Target Substantial Completion Date(s) shall extend the Guaranteed Substantial Completion Dates in the same amounts so that the Guaranteed Substantial Completion Date for a Subproject is always fifty nine (59) Days after the Target Substantial Completion Date for such Subproject, regardless of whether the delay impacts only the critical path of the Work to achieve the Target Substantial Completion Date and not the Guaranteed Substantial Completion Date. Contractor shall be entitled to an adjustment to the Contract Price for reasonable, additional costs incurred by Contractor for delay or in mitigation or avoidance of a delay which would otherwise meet such requirements of this Section 6.9. For the avoidance of doubt, this Section 6.9 shall govern the determination of any right of Contractor to an adjustment to the Target Substantial Completion Date(s) and Guaranteed Substantial Completion Date(s) for delay unless such delay is caused by Force Majeure.

6.10 Delay. For the purposes of this Agreement, the term “delay” shall include hindrances, disruptions or obstructions, or any other similar term in the industry and the resulting impact from such hindrances, disruptions or obstructions, including inefficiency, impact, ripple or lost production.

 

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6.11 Contractor Obligation to Mitigate Delay. Contractor shall not be entitled to any adjustment to the Project Schedule or adjustment to the Contract Price for any portion of delay to the extent Contractor could have taken, but failed to take, reasonable actions to mitigate such delay.

ARTICLE 7

CONTRACT PRICE AND PAYMENTS TO CONTRACTOR

7.1 Contract Price. As compensation in full to Contractor for the full and complete performance of the Work and all of Contractor’s other obligations under this Agreement, Owner shall pay and Contractor shall accept Two Billion Sixteen Million Eight Hundred Ninety Two Thousand Five Hundred Seventy Three U.S. Dollars (U.S.$2,016,892,573) (the “Contract Price”). The Contract Price is subject to adjustment only by Change Order as provided in Article 6, and includes all Taxes payable by Contractor and its Subcontractors and Sub-subcontractors in connection with the Work, the Louisiana Sales and Use Tax Provisional Sum, the Insurance Provisional Sum, the Currency Provisional Sum, the Fuel Provisional Sum and the Performance, Attendance Bonus Provisional Sum and any provisional sums applicable to Subproject 6(b) if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A and all costs, charges, and expenses of whatever nature necessary for performance of the Work.

A. Aggregate Provisional Sum. The Contract Price includes an aggregate amount of Three Hundred Thirty Million Two Hundred Forty Three Thousand Five U.S. Dollars (U.S.$330,243,005) (the “Aggregate Provisional Sum”) for the Provisional Sums. The scope and values of each Provisional Sum comprising the Aggregate Provisional Sum amount are included in Attachment EE.

7.2 Interim Payments.

A. Mobilization Payment.

1. On or before and as a condition precedent to the issuance of the Notice to Proceed for Subproject 6(a) in accordance with Section 5.2A and upon Owner’s receipt of an Invoice from Contractor, Owner shall pay Contractor a lump sum equal to ten percent (10%) of the Contract Price attributable to Subproject 6(a) (the “Mobilization Payment for Subproject 6(a)”).

2. On or before and as a condition precedent to the issuance of the Notice to Proceed for Subproject 6(b) in accordance with Section 5.2 and upon Owner’s receipt of an Invoice from Contractor, Owner shall pay Contractor a lump sum equal to ten percent (10%) of the Contract Price attributable to Subproject 6(b) (the “Mobilization Payment for Subproject 6(b)”).

 

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B. Payments. Subject to Section 5.1A, with the exception of the Mobilization Payment, payments shall be made by Owner to Contractor in accordance with the Payment Schedule set forth in Attachment C (as may be amended by Change Order), which allocates (i) seventy percent (70%) of the Contract Price to be paid based on completion of the Milestones set forth in Attachment C, Schedule C-1, and (ii) thirty percent (30%) of the Contract Price to be paid based on the Monthly payments set forth in Attachment C, Schedule C-2 (the “Monthly Payments”), as adjusted pursuant to Section 7.2F. Owner shall also make payments to Contractor for Work performed in accordance with Change Orders to be paid on a time and material basis and any unilateral Change Orders issued in accordance with Section 6.1C or 6.2D. Each payment shall be subject to Owner’s right to withhold payments under this Agreement as set forth in Section 7.5 and Section 20.3. Payments shall be made in U.S. Dollars to an account designated by Contractor. The Payment Schedule, including Milestones and Monthly Payments, shall be amended only by Change Order pursuant to this Agreement.

C. Invoices. On the first (1st) Day of each Month (“Month N”), Contractor shall submit to Owner an Invoice, supported by information and documentation required under this Agreement, for the following:

1. amounts for Milestones Contractor plans to fully complete during the next Month (“Month N+1”), as supported by the sixty (60) Day look-ahead schedule submitted with such Invoice. Contractor shall not include any amounts for any Milestones that will only be partially completed at the end of Month N+1;

2. plus the Monthly Payment for Month N+1;

3. plus (i) allowable costs and expenses Contractor plans to incur during Month N+1 for Work performed in accordance with Change Orders to be paid on a time and material basis, and (ii) allowable costs and expenses Contractor plans to incur during Month N+1 for Work covered by a Provisional Sum, all as supported by the sixty (60) Day look-ahead schedule and other information required herein;

4. less amounts for any Milestones Invoiced in Month N-2 that Contractor did not complete during Month N-1; and

5. less amounts Invoiced in Month N-3 for (i) time and material Change Orders, and (ii) Provisional Sums that Contractor did not incur in Month N-2.

If Owner pays Contractor for the completion of a Milestone in Month N+1, but Contractor does not complete such Milestone during such Month N+1, and Owner exercises its right to withhold payment in accordance with Section 7.2 for such uncompleted Milestone, Contractor shall not be entitled to Invoice for the amount withheld by Owner for such Milestone until the Month after Contractor completes such Milestone.

Contractor shall include with such Invoice a sixty (60) Day look-ahead schedule, prepared by Contractor, for such Month N and Month N+1 that shows, among other requirements, Contractor’s schedule for (i) completing such Milestones in Month N+1 and (ii) incurring such allowable costs and expenses for time and materials Change Orders and Provisional Sums during such Month N+1. All Invoices, other than the Invoice for final payment under this Agreement, shall be in the form of Schedule I-1.

 

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D. Interim Lien Waivers. As a condition of payment, each Invoice received by Owner prior to Final Completion shall be accompanied by a fully executed (i) Interim Conditional Lien Waiver from Contractor in the form of Schedule K-1 for all Work performed through the end of the Month preceding the Month of the date of the Invoice (i.e., Month N-1) and (ii) Interim Unconditional Lien Waiver from Contractor in the form of Schedule K-2 for all Work performed through the end of the Month preceding the Month of the date of the last Invoice submitted by Contractor (i.e., Month N-2). In addition, as a condition of payment, Contractor shall also provide, subject to Section 7.2D.1, (i) fully executed Interim Conditional Lien Waivers in the form of Schedule K-3 from each Lien Waiver Subcontractor whose invoice is received by Contractor in the Month covered by Contractor’s Invoice (with each such Interim Conditional Lien Waiver covering all Work performed by each such Lien Waiver Subcontractor through the end of the Month preceding the Month of the date of such Lien Waiver Subcontractor’s invoice (i.e., Month N-1)), together with fully executed Interim Unconditional Lien Waivers from each Lien Waiver Subcontractor for all Work performed by such Lien Waiver Subcontractor through the end of the Month preceding the Month of the date of each such Lien Waiver Subcontractor’s preceding invoice (i.e., Month N-2); (ii) fully executed Interim Conditional Lien Waivers in substantially the form of Schedule K-3 from each Major Sub-subcontractor whose invoice is received by Contractor in the Month covered by Contractor’s Invoice (with each such Interim Conditional Lien Waiver covering all Work performed by each such Major Sub-subcontractor through the end of the Month preceding the Month of the date of such Major Sub-subcontractor’s invoice (i.e., Month N-1)), together with fully executed Interim Unconditional Lien Waivers from each Major Sub-subcontractor in substantially the form set forth in Schedule K-4 for all Work performed by such Major Sub-subcontractor through the end of the Month preceding the Month of the date of each such Major Sub-subcontractor’s preceding invoice (i.e., Month N-2); provided that if Contractor fails to provide to Owner an Interim Conditional Lien Waiver or Interim Unconditional Lien Waiver from a Lien Waiver Subcontractor or Major Sub-subcontractor as required in this Section 7.2D, Owner’s right to withhold payment for the failure to provide any such Interim Conditional Lien Waiver or Interim Unconditional Lien Waiver shall be limited to the amount that should have been reflected in such Interim Conditional Lien Waiver or Interim Unconditional Lien Waiver. In addition, if and to the extent that Contractor obtains any lien or claim waivers from any Subcontractors or Sub-subcontractors which are not a Lien Waiver Subcontractor or Major Sub-subcontractor, Contractor shall provide to Owner such lien or claim waivers with the next Invoice following Contractor’s receipt of each such lien or claim waiver.

1. For Bulk Order Subcontractors only, as a condition of payment, every third (3^rd) Invoice received by Owner prior to Final Completion shall be accompanied by fully executed Interim Unconditional Lien Waivers from each Bulk Order Subcontractor in substantially the form set forth in Schedule K-4 for all Work performed by such Bulk Order Subcontractor through the end of the period ending four (4) Months prior to such Invoice (i.e. Month N-4); provided that if Contractor fails to provide to Owner an Interim Unconditional Lien Waiver from a

 

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Bulk Order Subcontractor as required in this Section 7.2D.1, Owner’s right to withhold payment for the failure to provide such Interim Unconditional Lien Waiver shall be limited to the amount that should have been reflected in such Interim Unconditional Lien Waiver; provided further, if Contractor fails to provide an Interim Unconditional Lien Waiver from a Bulk Order Subcontractor but Contractor provides an Interim Conditional Lien Waiver (in substantially the form set forth in Schedule K-3 for all Work performed by such Bulk Order Subcontractor) and evidence to Owner that such Bulk Order Subcontractor has been paid (as shown in a check that has been properly endorsed and has been paid by the bank on which it is drawn, or evidence the wire transfer payment is received by such Bulk Order Subcontractor), then Owner shall not withhold payment of such amount and Contractor’s obligation to deliver an Interim Unconditional Lien Waiver from such Bulk Order Subcontractor as required by this Section 7.2D.1. shall be deemed satisfied. Except as provided in the preceding sentence, Bulk Order Subcontractors are not required to provide Interim Conditional Lien Waivers. For the purposes of Interim Conditional Lien Waivers and Interim Unconditional Lien Waivers, Bulk Order Subcontractors shall not be considered a Lien Waiver Subcontractor.

E. Review and Payment. Each Invoice shall be reviewed by Owner and, upon Owner’s reasonable request, Contractor shall furnish such supporting documentation and certificates and provide such further information as may be reasonably requested by Owner. Within thirty (30) Days after receipt of any Invoice, Owner shall provide notice to Contractor of any disputed amount set forth in such Invoice, including an explanation of why such amount is disputed. Unless so disputed by Owner, each Invoice (less any withholdings allowed under this Agreement) shall be due and paid no later than thirty (30) Days after it, and all applicable documentation required under this Agreement, including Attachment I, is received by Owner. If an Invoice is disputed by Owner, then payment shall be made within the thirty (30) Day period for all undisputed amounts and the Dispute shall be resolved pursuant to Article 18. Payment on disputed amounts shall be made as soon as such Dispute is resolved. Without limiting the foregoing, Owner shall not be required to pay, and shall be entitled to withhold payment from Contractor for any amounts otherwise due Contractor, for:

1. any amounts for (i) Milestones Invoiced in Month N-2 that Contractor did not complete during Month N-1, (ii) Milestones Invoiced in Month N-1 that Contractor did not complete in Month N, (iii) Milestones Invoiced in Month N that Contractor did not complete prior to payment by Owner or is not projected (in accordance with the current sixty (60) Day look-ahead schedule) to complete in Month N+1;

2. any amounts Invoiced in Month N-3 for (i) time and material Change Orders, and (ii) Provisional Sums that Contractor did not incur in Month N-2; and

3. any amounts Invoiced in Month N for (i) time and material Change Orders, and (ii) Provisional Sums that Contractor has not incurred prior to payment by Owner or is not projected to incur (in accordance with the current sixty (60) Day look-ahead schedule and other required documentation) in Month N+1.

 

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F. Reconciliation of Monthly Payments. If at any time during the course of the Project: (i) the Monthly Progress Reports show that any activity on the critical path is ninety (90) Days or more behind schedule; and (ii) Contractor or any of its Subcontractors or Sub-subcontractors are not excused under the terms of this Agreement for such delay, then the date for payment of the last Monthly Payment as shown in the Payment Schedule shall be revised to a later date according to the number of Days that the activity is behind schedule and the remaining Monthly Payments not yet disbursed to Contractor under this Agreement shall be readjusted and spread out proportionately through the remainder of the period, ending upon the revised date for payment of the last Monthly Payment; provided that, in the event that Contractor recovers the delay such that the activity in question ceases to be behind schedule, the Monthly Payments shall be recalculated so that such Monthly Payments shall be due in accordance with the original Payment Schedule as of the Contract Date.

7.3 Final Completion and Final Payment. Upon Final Completion, Contractor shall, in addition to any other requirements in this Agreement for achieving Final Completion, including those requirements set forth in Section 1.1 for the definition of Final Completion, submit a fully executed final Invoice in the form attached hereto as Schedule I-2, along with (i) a statement summarizing and reconciling all previous Invoices, payments and Change Orders; (ii) an affidavit that all payrolls, Taxes, bills for Equipment, and any other indebtedness connected with the Work for which Contractor and its Subcontractors and Sub-subcontractors are liable (excluding Corrective Work) have been paid; (iii) fully executed Final Conditional Lien and Claim Waivers from Contractor in the form of Schedule K-5; (iv) fully executed Final Conditional Lien and Claim Waivers from each Lien Waiver Subcontractor in the form set forth in Schedule K-7; and (v) fully executed Final Conditional Lien and Claim Waivers from each Major Sub-subcontractor in substantially the form set forth in Schedule K-7. No later than twenty-five (25) Days after receipt by Owner of such final Invoice and all reasonably requested documentation and achieving Final Completion, Owner shall, subject to its rights to withhold payment under this Agreement, pay Contractor the balance of the Contract Price, provided that Contractor provides to Owner at or before the time of such payment the following: (x) fully executed Final Unconditional Lien and Claim Waiver from Contractor in the form of Schedule K-6; and (y) fully executed Final Unconditional Lien and Claim Waivers from each Lien Waiver Subcontractor and Major Sub-subcontractor in substantially the form of Schedule K-8; provided that the Parties agree that “substantially” means that the same protections shall be provided to Owner as set forth in Schedule K-8. In addition, if and to the extent that Contractor obtains any final lien or claim waivers from any Subcontractors or Sub-subcontractors which are not a Lien Waiver Subcontractor or Major Sub-subcontractor, Contractor shall provide to Owner such final lien or claim waivers following Contractor’s receipt of each such lien or claim waiver.

7.4 Payments Not Acceptance of Work. No payment made hereunder by Owner shall be considered as approval or acceptance of any Work by Owner or a waiver of any claim or right Owner may have hereunder. All payments shall be subject to correction in subsequent payments.

 

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7.5 Payments Withheld. In addition to disputed amounts set forth in an Invoice, Owner may, in addition to any other rights under this Agreement, and upon giving Contractor ten (10) Days’ prior written notice referenced in Section 7.8, withhold payment on an Invoice or a portion thereof, or collect on the Letter of Credit, in an amount and to such extent as may be reasonably necessary to protect Owner from loss due to:

A. Defective Work that Contractor is required to correct under Section 12.2A or 12.3, unless Contractor has, within fourteen (14) Days of a separate written notice given prior to the ten (10) Day notice referenced in Section 7.8, either (i) remedied, or commenced to remedy, as applicable, such Defective Work in accordance with Section 12.2A or 12.3 or (ii) if such Defective Work cannot be remedied in accordance with Section 12.2A or 12.3 by the exercise of reasonable diligence within such fourteen (14) Day period, provide Owner with a written plan, reasonably acceptable to Owner, to remedy such Defective Work and commenced the remedy of such Defective Work;

B. liens or other encumbrances on all or a portion of the Site, the Work or the Project, which are filed by any Subcontractor, any Sub-subcontractor or any other Person acting through or under any of them unless Contractor has, within fourteen (14) Days of a separate written notice given prior to the ten (10) Day notice referenced in Section 7.8, taken any of the following actions: (i) paid, satisfied or discharged the applicable liability, (ii) removed the lien or other encumbrance, or (iii) provided Owner with a letter of credit or bond reasonably satisfactory to Owner and Lender in the applicable amount;

C. any material breach by Contractor of any term or provision of this Agreement; unless Contractor has, within fourteen (14) Days of a separate written notice given prior to the ten (10) Day notice referenced in Section 7.8, either (i) cured such breach or (ii) if such breach cannot be cured by the exercise of reasonable diligence within such fourteen (14) Day period, Contractor has commenced corrective action and is diligently exercising all commercially practicable efforts to cure such breach;

D. the assessment of any fines or penalties against Owner as a result of Contractor’s failure to comply with Applicable Law or Applicable Codes and Standards;

E. amounts paid by Owner to Contractor in a preceding Month incorrectly (in which case, Section 7.9 shall apply);

F. Liquidated Damages which Contractor owes under the terms of this Agreement; or

G. any other costs or liabilities which Owner has incurred for which Contractor is responsible under this Agreement.

Owner shall pay Contractor the amount withheld or collected on the Letter of Credit as soon as practicable, but in no event later than fifteen (15) Business Days after Owner’s receipt of an Invoice from Contractor, if Contractor, as appropriate, (i) pays, satisfies or discharges the applicable liability and provides Owner with reasonable evidence of such payment, satisfaction or discharge, (ii) removes the lien or other encumbrance, (iii) cures the breach in question, (iv) remedies the Defective Work in question, or (v) provides Owner with a letter of credit reasonably satisfactory to Owner and Lender in the amount of the withheld payment.

 

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7.6 Interest on Late Payments and Improper Collection. Any amounts due but not paid hereunder, any amounts withheld from Contractor but later finally determined in accordance with the dispute resolution procedure set forth in Article 18 to have been improperly withheld, or any amounts collected by Owner on the Letter of Credit but later finally determined in accordance with the dispute resolution procedure set forth in Article 18 to have been improperly collected, shall bear interest at the lesser of (i) an annual rate equal to the prime rate set from time to time by Citibank, N.A. plus three percent (3%), or (ii) the maximum rate permitted under Applicable Law.

7.7 Offset. Owner may, in accordance with Section 7.8B, offset any amount due and payable from Contractor to Owner under this Agreement against any amount due and payable to Contractor hereunder.

7.8 Procedure for Withholding, Offset and Collection on the Letter of Credit. Except as provided in Sections 16.1B and 20.3C (in which case, Owner shall follow the procedure set forth in Section 16.1B or Section 20.3C, as applicable), Owner shall:

A. prior to exercising its right to withhold payment in accordance with this Agreement, provide Contractor with ten (10) Days’ written notice stating Owner’s intent to withhold and the amount to be withheld;

B. prior to exercising its right to offset in accordance with this Agreement, provide Contractor with ten (10) Days’ prior written notice stating Owner’s intent to offset and the amount to be offset; and

C. prior to exercising its right to collect on the Letter of Credit in accordance with this Agreement, provide Contractor with ten (10) Days’ written notice (i) specifying the nature of Contractor’s breach and the liabilities, damages, losses, costs or expenses owed to Owner; (ii) stating Owner’s intent to draw against the Letter of Credit; and (iii) specifying the amount to be drawn.

Notwithstanding the foregoing, should any payment under any Invoice become due before the expiration of any notice period specified in this Section 7.8, Owner shall nevertheless be entitled to withhold from such Invoice amounts equal to the amounts specified in Owner’s notice, but Owner shall promptly pay such withheld amounts to Contractor if Contractor cures the cause for such withholding or offset.

7.9 Payment Error. If an error is made in connection with a payment, and such payment is an overpayment, the Party receiving the payment in error shall immediately refund the mistaken amount to the paying Party. Without limiting the preceding sentence, and in addition to any other remedy available to Owner under this Agreement, if Owner discovers that any amount paid by it to Contractor in a preceding Month was incorrect, then Owner may, at its sole discretion, upon giving Contractor ten (10) Days’ prior written notice in accordance with Section 7.8, either: (i) offset such amount against future payments, or (ii) in the event that (A) the amount in question exceeds Thirty Million U.S. Dollars (U.S.$30,000,000) or (B) less than Thirty Million U.S. Dollars (U.S.$30,000,000) remains payable to Contractor under this Agreement, or amounts are due to Owner in connection with the final Invoice issued in accordance with Section 7.3, collect on the Letter of Credit for such amounts until sufficient and accurate supporting information is provided pursuant to Section 7.2. The foregoing provision shall not apply during the Defect Correction Periods.

 

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ARTICLE 8

TITLE AND RISK OF LOSS

8.1 Title.

A. Clear Title.

1. Contractor warrants and guarantees that Owner shall have legal title to and ownership of all or any portion of the Work (other than Work Product) and the Project upon payment therefor.

2. Contractor warrants and guarantees that legal title to and ownership of the Work and the Project shall be free and clear of any and all liens, claims, security interests or other encumbrances arising out of the Work when title thereto passes to Owner, and if any such warranty or guarantee is breached, Contractor shall have the liability and obligations set forth in Section 17.5.

B. Title to Work. Title to all or any portion of the Work (other than Work Product) shall pass to Owner upon payment by Owner therefor; provided that, title to all portions of Subproject 6(b), if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, shall pass directly to Sabine Pass LNG, L.P. upon payment by Owner therefor. Transfer of title to Work shall be without prejudice to Owner’s right to reject Defective Work, or any other right in this Agreement.

8.2 Risk of Loss.

A. Notwithstanding passage of title as provided in Section 8.1 of this Agreement, Contractor shall bear the risk of physical loss and damage with respect to a Subproject until the earlier of (i) Substantial Completion of such Subproject and Owner taking care, custody, and control of such Subproject (which such transfer of care, custody and control of such Subproject shall occur no more than one (1) Day following Owner’s execution of the Substantial Completion Certificate accepting Substantial Completion); or (ii) termination of this Agreement; provided that Owner shall at all times bear the risk of physical loss and damage if and to the extent arising from (i) war (whether declared or undeclared), civil war, act of terrorism, sabotage, blockade, insurrection; or (ii) ionizing radiation, or contamination by radioactivity from nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel properties of any explosive nuclear assembly or nuclear component thereof; or (iii) an atmospheric disturbance marked by high winds, with or without precipitation, including such events as hurricane, typhoon, monsoon, cyclone, rainstorm, tempest, hailstorm, tornado, or any combination of the foregoing events, including any resulting flood, tidal or wave action (such clause (iii) events collectively, “Windstorms”) to the extent that Windstorms result in loss or damage in excess of Five Hundred Million U.S. Dollars (U.S.$500,000,000) in the cumulative aggregate with

 

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respect to the Work, the Project, Subproject 1, Subproject 2, Subproject 3, Subproject 4, Subproject 5, and Subproject 6, collectively. The full amount of Five Hundred Million U.S. Dollars (U.S.$500,000,000) may be satisfied under either the Stage 1 EPC Agreement, the Stage 2 EPC Agreement or this Agreement. In the event that any physical loss or damage to the Stage 4 Liquefaction Facility or the Work arises from one or more of the events set forth in the first sentence of this Section 8.2A, and Owner elects to rebuild such physical loss or damage, Contractor shall be entitled to a Change Order to the extent such event adversely affects (i) Contractor’s costs of performance of the Work; (ii) Contractor’s ability to perform the Work in accordance with the Project Schedule or (iii) Contractor’s ability to perform any material obligation under this Agreement; provided that Contractor complies with the requirements set forth in Sections 6.2, 6.5 and 6.9.

B. Subject to Section 8.2C, upon and from the earlier of (i) the occurrence of Substantial Completion of a Subproject and Owner taking care, custody, and control of a Subproject (which such transfer of care, custody and control of such Subproject shall occur no more than one (1) Day following Owner’s execution of the Substantial Completion Certificate accepting Substantial Completion); or (ii) termination of this Agreement, Owner shall bear the full risk of physical loss and damage to such Subproject; provided, however, notwithstanding the foregoing, Contractor shall remain fully responsible and liable to Owner for its Warranty and Corrective Work obligations under this Agreement.

C. Subject at all times to Section 3.25A and Section 4.3C, upon successful completion of the applicable commissioning test(s) (in accordance with the Project Commissioning Plan and Attachments S and V) for modification or improvement Work to the Existing Facility performed pursuant to this Agreement, Contractor shall certify to Owner in writing that the applicable modification or improvement is complete and has successfully completed the applicable commissioning test and Owner shall notify Contractor whether it accepts or rejects the certification within seventy-two (72) hours following Owner’s receipt thereof. Upon Owner’s acceptance of the applicable modification or improvement, Owner shall bear the full risk of physical loss and damage to the modifications or improvements to the Existing Facility specified in the notice, the Defect Correction Period shall commence for such Work, and Contractor shall remain fully responsible and liable to Owner for its Warranty and Corrective Work obligations under this Agreement. Owner’s acceptance of the applicable modification or improvement Work shall not relieve Contractor of any of its obligations to perform the Work in accordance with the requirements of this Agreement, including achievement of Substantial Completion.

D. With respect to any physical loss or physical damage to a Subproject caused by (i) Force Majeure, (ii) any member of Owner Group or any other Person for whom Owner is responsible, or (iii) any Third Party over whom neither Contractor nor Owner are responsible and such Third Party is beyond the reasonable control of Contractor and such loss or damage was not due to Contractor’s fault or negligence and could not have been prevented or avoided by Contractor through the exercise of due diligence, Contractor shall be entitled to a Change Order adjusting the applicable Guaranteed Substantial Completion Date if and to the extent permitted under (a) Section 6.8A.1 if caused by Force Majeure or such Third Party meeting the requirements set forth herein and (b) Section 6.9 if caused by any member of Owner Group or any other person for whom Owner is responsible.

 

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E. For the avoidance of doubt, this Section 8.2 shall apply to any loss or damage to the Work caused by, arising out of or resulting from, any activities, events or omissions occurring in connection with the Stage 1 EPC Agreement, Stage 2 EPC Agreement, or Stage 3 EPC Agreement. Similarly for the avoidance of doubt, (a) the risk of loss and damage to the Stage 1 Liquefaction Facility shall be determined in accordance with Section 8.2 of the Stage 1 EPC Agreement, notwithstanding that such loss or damage to the Stage 1 Liquefaction Facility was caused by, arose out of or resulted from activities or events occurring during the performance of this Agreement (b) the risk of loss and damage to the Stage 2 Liquefaction Facility shall be determined in accordance with Section 8.2 of the Stage 2 EPC Agreement, notwithstanding that such loss or damage to the Stage 2 Liquefaction Facility was caused by, arose out of or resulted from activities or events occurring during the performance of this Agreement and (c) the risk of loss and damage to the Stage 3 Liquefaction Facility shall be determined in accordance with Section 8.2 of the Stage 3 EPC Agreement, notwithstanding that such loss or damage to the Stage 3 Liquefaction Facility was caused by, arose out of or resulted from activities or events occurring during the performance of this Agreement.

ARTICLE 9

INSURANCE AND LETTER OF CREDIT

9.1 Insurance.

A. Provision of Insurance. The Parties shall provide the insurance as specified in Attachment O on terms and conditions stated therein. On or before the Contract Date, Contractor shall execute the umbrella agreement set forth in Schedule O-2 and deliver it into escrow with an escrow agent suitable to Owner, which escrow agent shall release the umbrella agreement from escrow upon Owner’s issuance of NTP for Subproject 6(a). Contemporaneous with, and as a condition of, Owner’s issuance of NTP for Subproject 6(a), Owner will execute the umbrella agreement set forth in Schedule O-2. Prior to NTP for Subproject 6(a), references in this Agreement, including all Attachments, to Attachment O shall mean Schedule O-1; after NTP for Subproject 6(a) and the execution of the umbrella agreement, references in this Agreement, including all Attachments, to Attachment O shall mean the executed umbrella agreement.

B. No Cancellation. All policies providing coverage hereunder shall contain a provision that at least thirty (30) Days’ prior written notice shall be given to the non-procuring Parties and additional insureds prior to cancellation, non-renewal or material change in the coverage.

C. Obligations Not Relieved. Anything in this Agreement to the contrary notwithstanding, the occurrence of any of the following shall in no way relieve Contractor from any of its obligations under this Agreement: (i) failure by Contractor to secure or maintain the insurance coverage required hereunder; (ii) failure by Contractor to comply fully with any of the insurance provisions of this Agreement; (iii) failure by Contractor to

 

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secure such endorsements on the policies as may be necessary to carry out the terms and provisions of this Agreement; (iv) the insolvency, bankruptcy or failure of any insurance company providing insurance to Contractor; or (v) failure of any insurance company to pay any claim accruing under its policy.

D. Failure to Provide Insurance. If any Party fails to provide or maintain insurance as required herein, and fails to cure such failure within fourteen (14) Days of receiving notice of such failure (provided that such fourteen (14) Day cure period falls within the applicable sixty (60) Day notice period required under Section 2 of Attachment O), the other Party shall have the right but not the obligation to purchase such insurance and shall be entitled to recover the insurance premium reasonably paid in respect of such insurance from the other Party in accordance with this Agreement; provided that, prior to execution of a Change Order in accordance with Attachment EE for any additional amounts owed for the Project Insurances, Owner shall not be entitled to recover from Contractor any insurance premiums paid by Owner with respect to any amounts in excess of the Insurance Provisional Sum for Project Insurances.

E. Unavailable Insurance. If any insurance (including the limits or deductibles thereof) hereby required to be maintained, other than insurance required by Applicable Law to be maintained, shall not be reasonably available in the commercial insurance market, Owner and Contractor shall not unreasonably withhold their agreement to waive such requirement to the extent that maintenance thereof is not so available; provided, however, that the Party shall first request any such waiver in writing from the other Party, which request shall be accompanied by written reports prepared by two (2) independent advisers, including insurance brokers, of recognized international standing certifying that such insurance is not reasonably available in the commercial insurance market (and, in any case where the required amount is not so available, explaining in detail the basis for such conclusions), such insurance advisers and the form and substance of such reports to be reasonably acceptable to the other Party. Any such waiver shall be effective only so long as such insurance shall not be available and commercially feasible in the commercial insurance market.

9.2 Irrevocable Standby Letter of Credit.

A. On or before the issuance of the Notice to Proceed for Subproject 6(a) in accordance with Section 5.2A, Contractor shall deliver to Owner an irrevocable standby letter of credit in the amount of ten percent (10%) of the Contract Price Applicable to Subproject 6(a) (“Letter of Credit for Subproject 6(a)”). On or before the issuance of the Notice to Proceed for Subproject 6(b) in accordance with Section 5.2A, Contractor shall deliver to Owner an irrevocable standby letter of credit in the amount of ten percent (10%) of the Contract Price Applicable Subproject 6(b) (“Letter of Credit for Subproject 6(b)”). Each Letter of Credit shall name Owner as beneficiary, shall be issued and confirmed by a commercial bank in the United States of America with a long-term rating of at least A- by Standard & Poor’s and at least A3 by Moody’s Investors Service, and shall be in the relevant form set forth in Attachment R; provided, however, if the issuing bank requires certain changes to the Letter of Credit form, such changes shall be subject to Owner’s written approval (not to be unreasonably withheld). If at any time the rating of the

 

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commercial bank that issued the applicable Letter of Credit falls below either of such ratings, Contractor shall replace such Letter of Credit within ten (10) Days with an equivalent instrument issued by a commercial bank in the United States of America meeting such rating requirements. Owner shall have the right to draw down on or collect against any or both Letter of Credits upon Owner’s demand in the event of the following: (i) the owing by Contractor to Owner under this Agreement for Liquidated Damages or any other liabilities, damages, losses, costs or expenses for which Contractor is liable under this Agreement; and (ii) Owner has provided notice to Contractor in accordance with Section 7.8C, except such notice is not required where Contractor does not pay Liquidated Damages as set forth in Section 20.3C. For the avoidance of doubt, Owner may draw down or collect against either Letter of Credit or both Letters of Credit for any Liquidated Damages or any other liabilities, damages, losses, costs or expenses for which Contractor is liable under this Agreement, regardless whether the Liquidated Damages, liabilities, damages, losses, costs or expenses relate only to one Subproject or both Subprojects. The amount drawn on a Letter of Credit shall not be greater than the amount that Owner, at the time of the drawing, reasonably estimates is owed it under this Agreement for Liquidated Damages, liabilities, damages, losses, costs or expenses or is necessary to remedy the breach of this Agreement. In addition, should the issuing commercial bank notify Owner and Contractor pursuant to the terms of a Letter of Credit that it has decided not to extend such Letter of Credit beyond the then current expiration date, Owner shall also have the right to draw down on or collect against any or both Letters of Credit for all remaining funds available under such Letters of Credit upon Owner’s demand if Contractor has not, prior to thirty (30) Days before the then current expiration date, delivered to Owner a replacement letter of credit substantially identical to such Letter of Credit and from a commercial bank meeting the requirements in this Section 9.2.

B. Reduction in Subproject 6(a) Letter of Credit. The amount of the Letter of Credit for Subproject 6(a) shall decrease to an aggregate amount of:

1. four percent (4%) of the Contract Price Applicable to Subproject 6(a) within thirty (30) Days after the issuing commercial bank’s receipt from Owner of a written notice that (i) Substantial Completion of Subproject 6(a) has occurred, (ii) Contractor has paid all Delay Liquidated Damages due and owing under the Agreement for Subproject 6(a), and (iii) Contractor has achieved the Performance Guarantee for Subproject 6(a) or paid all Performance Liquidated Damages due and owing under the Agreement for Subproject 6(a);

2. zero percent (0%) of the Contract Price Applicable to Subproject 6(a) within thirty (30) Days after the issuing commercial bank’s receipt from Owner of a written notice of the expiration of the Defect Correction Period for Subproject 6(a).

No later than thirty (30) Days after the latest of (i) Owner’s acceptance of the Substantial Completion Certificate for Subproject 6(a), (ii) Contractor has paid all Delay Liquidated Damages due and owing under this Agreement with respect to Subproject 6(a), and (iii) Contractor has achieved the Performance Guarantee or paid all Performance Liquidated Damages due and owing under this Agreement with respect to Subproject 6(a),

 

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Owner shall provide the commercial bank that issued the Letter of Credit for Subproject 6(a) with the written notice as specified in Section 9.2B.1. No later than thirty (30) Days after expiration of the Defect Correction Period for Subproject 6(a), Owner shall provide the commercial bank that issued the Letter of Credit for Subproject 6(a) with written notice of the expiration of such period. The Letter of Credit for Subproject 6(a) shall remain in full force and effect from the issuance of such Letter of Credit through the expiration of the Defect Correction Period for Subproject 6(a), at which time the Letter of Credit will be returned to Contractor. Partial drawings are permitted under the Subproject 6(a) Letter of Credit.

C. Reduction in Subproject 6(b) Letter of Credit. In the event Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, the amount of the Letter of Credit for Subproject 6(b) shall decrease to an aggregate amount of:

1. four percent (4%) of the Contract Price Applicable to Subproject 6(b) within thirty (30) Days after the issuing commercial bank’s receipt from Owner of a written notice that (i) Substantial Completion of Subproject 6(b) has occurred and (ii) Contractor has paid all Delay Liquidated Damages due and owing under the Agreement for Subproject 6(b)

2. zero percent (0%) of the Contract Price Applicable to Subproject 6(b) within thirty (30) Days after the issuing commercial bank’s receipt from Owner of a written notice of the expiration of the Defect Correction Period for Subproject 6(b).

No later than thirty (30) Days after the latest of (i) Owner’s acceptance of the Substantial Completion Certificate for Subproject 6(b) or (ii) Contractor has paid all Delay Liquidated Damages due and owing under this Agreement for Subproject 6(b), Owner shall provide the commercial bank that issued the Subproject 6(b) Letter of Credit with the written notice as specified in Section 9.2C.1. No later than thirty (30) Days after expiration of the Defect Correction Period of Subproject 6(b), Owner shall provide the commercial bank that issued the Letter of Credit for Subproject 6(b) with written notice of the expiration of such period. The Letter of Credit for Subproject 6(b) shall remain in full force and effect from the issuance of such Letter of Credit through the expiration of the Defect Correction Period for Subproject 6(b), at which time such Letter of Credit will be returned to Contractor. Partial drawings are permitted under the Letter of Credit.

D. In the event the Contract Price Applicable to Subproject 6(a) is increased by one or more Change Orders in accordance with the terms of this Agreement, by a cumulative amount of five percent (5%) of such Contract Price or more, Contractor shall, upon Owner’s request, increase the amount of the Letter of Credit for Subproject 6(a) to reflect the corresponding increase in such Contract Price by ten percent (10%) of such increase. Such increase in such Letter of Credit shall be reflected in a Change Order mutually agreed upon by the Parties. In the event the Contract Price Applicable to Subproject 6(b) is increased by one or more Change Orders in accordance with the terms of this Agreement, by a cumulative amount of five percent (5%) of such Contract Price or more, Contractor shall, upon Owner’s request, increase the amount of the Letter of Credit for Subproject 6(b) to reflect the corresponding increase in such Contract Price by ten percent (10%) of such increase. Such increase in such Letter of Credit shall be reflected in a Change Order mutually agreed upon by the Parties.

 

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9.3 DSU Insurance.

A. If an event or events occur that may be covered by the Builder’s Risk Delayed Startup Insurance or Marine Cargo Delayed Startup Insurance described in Attachment O, it shall be Owner’s sole option to decide whether or not a claim under such Delayed Startup Insurance is filed. If Owner gives notice to Contractor to file a claim under such Delayed Startup Insurance, Contractor shall promptly file and diligently pursue the collection of such claim on behalf of Owner, and in such case Owner shall provide to Contractor such information and assistance reasonably required for Contractor to file and pursue such claim. Contractor shall not be relieved of any Delay Liquidated Damages owed by Contractor to Owner if Owner does not elect to file a claim on such Delayed Startup Insurance, if Owner does not provide the information or assistance referenced above, or the prosecution of such claim is unsuccessful.

B. Regardless whether an event or events occur that may be covered by such Delayed Startup Insurance, Contractor shall pay any Delay Liquidated Damages owed by Contractor to Owner within the time required in Section 20.3C, even if a claim has been asserted under such Delayed Startup Insurance.

C. If Owner or any Lender receive proceeds under such Delayed Startup Insurance in respect to any event or events which give rise to Contractor’s delay in achieving Substantial Completion of a Subproject by the applicable Guaranteed Substantial Completion Date, Owner shall pay back to Contractor Delay Liquidated Damages previously paid by Contractor to Owner for such event or events (or in the case that the Delay Liquidated Damages have not yet been paid at the time of receipt of such proceeds, Owner shall reduce Contractor’s liability for Delay Liquidated Damages for such event or events), but only to the extent that such recovery of insurance proceeds and Delay Liquidated Damages would result in a double recovery of amounts for the same loss and same time period. If any such Delay Liquidated Damages are paid back to Contractor, the amount of such Delay Liquidated Damages paid back to Contractor shall not be counted against the cap on Delay Liquidated Damages in Section 20.2.

ARTICLE 10

OWNERSHIP OF DOCUMENTATION

10.1 Work Product.

A. Ownership of Work Product. Owner and Contractor acknowledge that during the course of, and as a result of, the performance of the Work, Contractor or its Subcontractors or Sub-subcontractors will create for this Project and will deliver to Owner, certain written materials, plans, Drawings (including P&IDs), Specifications, or other tangible results of performance of the Work under this Agreement or performance of work under the Technical Services Agreements (hereinafter individually or collectively referred

 

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to as “Work Product”). Subject to this Section 10.1, as between Contractor and Owner, Contractor shall own all rights, title and interest to the Work Product and any and all Intellectual Property embedded in the Work Product (including all patents and applications therefor, all inventions, trade secrets, know-how, technology, technical data, customer lists, copyrights and all registrations and applications therefor, and all industrial designs (“Intellectual Property”)). Notwithstanding anything to the contrary in this Agreement, all Contractor Existing Intellectual Assets, including Intellectual Property embedded therein, remains vested in Contractor. For the purposes of this Agreement, “Contractor Existing Intellectual Assets” means Intellectual Property and written materials, plans, drafts, specifications, or computer files or other documents, owned by Contractor or its Affiliates prior to the Contract Date or developed or acquired by Contractor or its Affiliates independently of this Agreement, but Owner receives a license in accordance with Section 10.1B to such Contractor Existing Intellectual Assets, including Intellectual Property embedded therein, to the extent the same is incorporated into the Work Product.

B. License and Use of the Work Product. Subject to Section 10.1D, Owner shall be entitled to use the Work Product and Contractor hereby grants Owner a fully-paid up, irrevocable (subject to Section 10.1E), non-exclusive and royalty-free license to use the Work Product and the Intellectual Property embedded in the Work Product and (subject to Section 10.1C) modify the Work Product, in each case solely for the purpose of: (i) operating and maintaining the Stage 4 Liquefaction Facility or the Existing Facility (to the extent the Work Product is for the Scope of Work for the Existing Facility under this Agreement), (ii) training operators for the Stage 4 Liquefaction Facility or the Existing Facility (to the extent the Work Product is for the Scope of Work for the Existing Facility under this Agreement); (iii) repairing, replacing, expanding, completing or modifying any part of the Stage 4 Liquefaction Facility, provided that such repair, replacement, expansion, completion or modification shall not include the addition of an additional liquefaction train (e.g., a train other than LNG Train 1, LNG Train 2, LNG Train 3, LNG Train 4, LNG Train 5, or LNG Train 6) or the Existing Facility (to the extent the Work Product is for the Scope of Work for the Existing Facility under this Agreement); and (iv) connecting the Liquefaction Facility to any other facility or project. Owner shall be entitled to assign its rights in the Work Product and in such license; provided that such assignee shall only be entitled to use the Work Product and Intellectual Property which is embedded in the Work Product for the purposes specified in clauses (i) through (iii) above, which licenses shall in all respects remain limited by and subject to the terms of this Agreement and as agreed to in writing by Owner and any such assignees. Notwithstanding anything to the contrary in this Agreement, no license is granted to Owner with respect to the use of any of Contractor’s proprietary software or systems.

C. Modification of Work Product or Intellectual Property. Subject to Sections 10.1D and 10.1E, after Substantial Completion of a Subproject or earlier termination of this Agreement, Owner or its contractors shall be entitled to modify the Work Product licensed to Owner in accordance with Section 10.1B for the purposes set forth in clauses (i) through (iii) in Section 10.1B; provided that Owner shall first remove, or cause to be removed, all references to Contractor from the Work Product. OWNER SHALL DEFEND, INDEMNIFY AND HOLD THE CONTRACTOR GROUP HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’

 

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FEES AND LITIGATION OR ARBITRATION EXPENSES) INCURRED BY ANY MEMBER OF THE CONTRACTOR GROUP OR A SUBCONTRACTOR OR SUB-SUBCONTRACTOR AND CAUSED BY (I) ANY MODIFICATIONS TO THE WORK PRODUCT OR INTELLECTUAL PROPERTY, OR (II) USE OF ANY WORK PRODUCT OR INTELLECTUAL PROPERTY EMBEDDED IN THE WORK PRODUCT, TO THE EXTENT SUCH MODIFICATIONS OR USE TAKES PLACE WITHOUT THE PRIOR WRITTEN CONSENT OR INVOLVEMENT OF ANY MEMBER OF CONTRACTOR GROUP OR SUBCONTRACTOR OR SUB-SUBCONTRACTOR, INCLUDING USE OF THE WORK PRODUCT OR ANY INTELLECTUAL PROPERTY EMBEDDED IN THE WORK PRODUCT ON ANY PROJECT OTHER THAN THE PROJECT.

D. ConocoPhillips Work Product and ConocoPhillips Intellectual Property. Notwithstanding anything to the contrary herein, the ConocoPhillips License Agreement is the exclusive document governing the licensing to Owner of Intellectual Property concerning the Optimized Cascade Process. All Work Product directly related to the liquefaction units employing Optimized Cascade Process and the Optimized Cascade Process that is generated by or for Contractor in the performance of the Work (the “ConocoPhillips Work Product”) shall vest, as between ConocoPhillips and Owner, in accordance with and be exclusively governed by the ConocoPhillips License Agreement. All Intellectual Property rights in and resulting from the ConocoPhillips Work Product (hereinafter “ConocoPhillips Intellectual Property”) shall vest, as between ConocoPhillips and Owner, in accordance with and be exclusively governed by the ConocoPhillips License Agreement. Access to and any use of the ConocoPhillips Work Product and ConocoPhillips Intellectual Property shall be subject to the terms and conditions set forth in the ConocoPhillips License Agreement. Owner acknowledges that license and use of the Optimized Cascade Process is not authorized by this Agreement.

E. Revocation of License to Use the Work Product. If the Agreement is terminated by the Contractor under Section 16.5 (but only if the termination under Section 16.5 is for the failure to pay undisputed amounts exceeding Fifty Million U.S. Dollars (U.S.$50,000,000)) or Section 16.7 or by Owner under Section 16.2, 16.6 or 16.7, then the license granted under Section 10.1B to Owner to modify the Work Product and use the Work Product and Intellectual Property embedded in the Work Product shall be deemed revoked and Owner shall return the Work Product to Contractor, except that under no circumstances shall the license to the Work Product (and Intellectual Property embedded in such Work Product) be revoked or be required to be returned by Owner: (i) for Work in connection with the Existing Facility; or (ii) for the OSBL Facilities if Contractor terminates under Section 16.5. After such termination, if Owner requests, then Owner and Contractor will with respect to such Work Product revoked (and the Intellectual Property embedded in such Work Product) meet to negotiate in good faith to agree to the terms of a contract to complete the Work that remains incomplete after termination.

10.2 Owner Provided Documents. Notwithstanding anything to the contrary in this Agreement, all written materials, plans, drafts, specifications, computer files or other documents (if any) furnished by Owner or any of Owner’s other consultants or contractors to Contractor under this Agreement shall at all times remain the property of Owner, and Contractor shall not make use of any such documents or other media for any other project or for any other purpose than required to perform Contractor’s obligations under this Agreement. All such documents and other media, including all copies thereof, shall be returned to Owner upon the earlier of expiration of the Defect

 

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Correction Period for Subproject 6(a), Subproject 6(b) (if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A), and termination of this Agreement, except that Contractor may, subject to its confidentiality obligations as set forth in Article 19, retain one record set of such documents or other media. Owner hereby grants to Contractor Group and Subcontractors and Sub-subcontractors of any of the foregoing with respect to the Work a non-exclusive, royalty-free, revocable, non-transferable license to use and modify Owner Proprietary Work Product (and all Intellectual Property existing or referenced therein) to the extent required to perform Contractor’s obligations under this Agreement. For the purposes of this Agreement, “Owner Proprietary Work Product” means Intellectual Property and written materials, plans, drafts, specifications, or computer files or other documents, owned by Owner or its Affiliates prior to the Contract Date or developed or acquired by Owner or its Affiliates independently of this Agreement.

10.3 License to Use Liquefaction Facility. Subject to Section 10.1D, and to the extent not covered by Section 10.1B or a separate sub-license between Owner and Contractor, Contractor shall obtain and provide to Owner a fully-paid up, irrevocable, non-exclusive and royalty-free license (including process licenses other than the Optimized Cascade Process license) from its Subcontractors and Sub-subcontractors to allow Owner to operate and maintain the Stage 4 Liquefaction Facility, the Existing Facility (to the extent necessary to operate and maintain the Stage 4 Liquefaction Facility), the Stage 1 Liquefaction Facility (to the extent necessary to operate and maintain the Stage 4 Liquefaction Facility), the Stage 2 Liquefaction Facility (to the extent necessary to operate and maintain the Stage 4 Liquefaction Facility), and the Stage 3 Liquefaction Facility (to the extent necessary to operate and maintain the Stage 4 Liquefaction Facility) for the purposes intended under this Agreement, including producing LNG. Upon Substantial Completion of a Subproject or earlier termination, Contractor shall, to the extent not covered by Section 10.1B or a separate sub-license between Owner and Contractor, assign to Owner all licenses provided by any Subcontractor or Sub-subcontractor to Contractor (other than any license provided by ConocoPhillips). Owner shall be entitled to assign its rights in the licenses; provided that such assignee shall only be entitled to use such licenses for the purposes specified herein, which licenses shall in all respects remain limited by and subject to the terms of this Agreement.

ARTICLE 11

COMPLETION

11.1 Notice of RFSU, Delivery of Feed Gas for Commissioning, Start Up and Performance Testing, LNG Production and Ready for Ship Loading Time Test.

A. Notice of RFSU.

1. Without limitation of any scheduling requirements contained in this Agreement, Contractor shall give Owner one hundred twenty (120) Days’ prior written notice with respect to a Subproject of the thirty (30) Day period during which Contractor expects to achieve RFSU of Subproject 6(a). Sixty (60) Days after such initial notice, Contractor shall give Owner a second written notice specifying the seven (7) Day period during which Contractor expects to achieve RFSU of Subproject 6(a).

 

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2. Owner shall notify FERC within three (3) Days of the second written notice issued in accordance with Section 11.1A.1 that RFSU is scheduled to occur during the period specified in the second written notice so that a letter authorizing Owner to introduce Natural Gas for commissioning of Subproject 6(a) (“FERC Authorization for Commissioning”) can be obtained from FERC.

3. At such time Subproject 6(a) has achieved RFSU, Contractor shall notify Owner in writing that all requirements under this Agreement for RFSU for Subproject 6(a) have occurred.

4. If Contractor achieves RFSU during the period specified in the second notice issued in accordance with Section 11.1A.1, Owner shall provide the FERC Authorization for Commissioning of the Subproject within seven (7) Days after the date that RFSU is achieved. In the event Owner fails to provide the FERC Authorization for Commissioning within the period specified in the preceding sentence, Contractor shall be entitled to a Change Order to the extent allowed under Section 6.9 of the Agreement.

B. Notice of Delivery of Feed Gas for Commissioning, Start Up and Performance Testing. Contractor shall provide to Owner a schedule of the quantities of Commissioning Feed Gas, in MMBtu, that Contractor anticipates it will need for Subproject 6(a) in accordance with the following Commissioning Feed Gas forward plan:

1. No later than the twentieth (20^th) Day of the Month occurring three (3) Months prior to the Month Contractor first needs Commissioning Feed Gas for Subproject 6(a), Contractor shall give written notice to Owner of the total quantity of Commissioning Feed Gas required for the Month Commissioning Feed Gas is first needed and for each of the following two (2) Months (e.g., if the Contractor’s first need of Commissioning Feed Gas for Subproject 6(a) is anticipated to be in June, Contractor shall give written notice to Owner by March 20^th of the anticipated total quantity of Commissioning Feed Gas required in the Months of June, July and August).

2. No later than the twentieth (20^th) Day of the Month occurring two (2) Months prior to the Month Contractor first needs Commissioning Feed Gas for Subproject 6(a), Contractor shall give written notice to Owner of (i) the quantities of Commissioning Feed Gas for each twenty-four (24) hour period between the hours of 9:00 AM of one Day to 9:00 AM the next Day, (“Daily Quantities”) for the Month Commissioning Feed Gas is first needed and (ii) any revisions to the total Month’s quantities required for each of the following two (2) Months (e.g., if the Contractor’s first need of Commissioning Feed Gas for Subproject 6(a) is anticipated to be in June, Contractor shall give notice to Owner by April 20^th of the Daily Quantities for June, and revisions, if any, to the total quantity of Commissioning Feed Gas required in the Months of July and August).

 

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3. No later than the twentieth (20^th) Day of the Month prior to the Month Contractor first needs Commissioning Feed Gas for Subproject 6(a) and no later than the twentieth (20^th) Day of each following Month, Contractor shall give written notice to Owner of the Daily Quantities for the next three (3) Months.

4. During each Month that Contractor requires Commissioning Feed Gas, Contractor will give Owner written notice of Daily Quantities as follows: (i) every Thursday by 5:00 PM of the Daily Quantities Contractor anticipates requiring for each Day between and including the following Tuesday through Monday, and (ii) every Day by 3:00 PM of the Daily Quantity for the next two (2) Days.

5. In the event that Contractor at any time becomes aware or has reason to believe that Contractor will require materially less than the previously noticed Daily Quantity for that Day, Contractor shall immediately give Owner written notice of such fact and of the revised Daily Quantity.

6. If, following the twentieth (20^th) Day of each Month, Contractor’s need for Daily Quantities changes materially from the previously noticed Daily Quantities, then Owner shall use commercially reasonable efforts to reschedule the delivery of the Commissioning Feed Gas so as to accommodate the revised Daily Quantities notified by Contractor in writing. Notwithstanding the foregoing, any failure by Owner to supply Commissioning Feed Gas at such time as such Feed Gas is needed in accordance with the periods set forth in the notices delivered during the Month prior to such need, shall entitle Contractor to a Change Order, provided that Contractor complies with the requirements set forth in Sections 6.2, 6.5 and 6.9.

C. Notice of Scheduling of LNG Production Requirement. Contractor shall provide to Owner a schedule of the quantities of LNG Contractor expects to produce from the Commissioning Feed Gas (“Commissioning LNG”) in accordance with the following Commissioning LNG forward plan:

1. In coordination with the Commissioning Feed Gas forward plan in 11.1B, no later than the twentieth (20th) Day of the Month occurring three (3) Months prior to the Month Contractor first expects to produce Commissioning LNG for Subproject 6(a), Contractor shall give written notice to Owner of the quantity, in MMBtu, of the Commissioning LNG expected to be produced in the Month Contractor first expects to produce Commissioning LNG and for each of the following two (2) Months.

2. No later than the twentieth (20th) Day of the Month occurring two (2) Months prior to the Month Contractor first expects to produce Commissioning LNG for Subproject 6(a), Contractor shall give written notice to Owner of (i) Commissioning LNG expected to be produced for each Day for the Month Contractor first expects to produce Commissioning LNG and (ii) any revisions to the total Months quantities of Commissioning LNG expected in the following two (2) Months.

 

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3. No later than the twentieth (20th) Day of the Month prior to the Month Contractor will first produce Commissioning LNG for Subproject 6(a) and no later than the twentieth 20th Day of each following Month, Contractor shall give written notice to Owner of the Commissioning LNG to be produced for each Day for the next three (3) Months.

4. If, following the twentieth (20th) Day of each Month, Contractor’s daily plan for Commissioning LNG production changes materially from the previously noticed daily plan, then Owner shall use commercially reasonable efforts to provide storage for the Commissioning LNG to accommodate the revised plan for Commissioning LNG production as notified by Contractor in writing.

D. Notice of Ready for Ship Loading Time Test. Without limitation of the foregoing or any other scheduling requirements contained in this Agreement, if Owner elects to exercise the LNG Berth 3 Option pursuant to Section 4.10A , Contractor shall give Owner one hundred twenty (120) Days’ prior written notice of the date on which Contractor expects to be ready for the Ship Loading Time Test. Contractor shall give Owner a second written notice specifying the date on which Contractor expects to be ready for the Ship Loading Time Test, which such notices shall be given no later than sixty (60) Days prior to such date. Owner shall provide for an LNG Tanker after the date in such second written notice; provided that Owner is not required to schedule such LNG Tanker until (i) there is sufficient LNG in storage in the Tanks to perform the Ship Loading Time Test and (ii) Owner has an economic reason to export such LNG. Owner shall give Contractor fourteen (14) Days prior written notice of a five (5) Day period in which the LNG Tanker will be available for the Ship Loading Time Test. In the event that Contractor at any time becomes aware or has reason to believe that its ability to be ready for the Ship Loading Time Test will be delayed beyond the last date specified in the second written notice given pursuant to this Section 11.1D or the date(s) specified in Owner’s notice of LNG Tanker availability, Contractor shall immediately give Owner written notice of such fact and of the revised date on which Contractor then expects that it will be ready for the Ship Loading Time Test. Owner shall use commercially reasonable efforts to reschedule the arrival of the LNG Tanker for the Ship Loading Time Test. If the LNG Tanker is not provided within thirty (30) Days after the date requested in Contractor’s second notice, Contractor shall be entitled to a Change Order to the extent permitted under Section 6.9.

11.2 Notice and Requirements for Substantial Completion.

A. Contractor shall give Owner not less than ninety (90) Days’ prior written notice of its intention to commence the Performance Tests, and, on the sixtieth (60th) Day and thirtieth (30th) Day immediately prior to Contractor’s intention to commence such testing activities, Contractor shall provide written notices to Owner. The Parties shall, no later than twenty-four (24) months after Owner’s issuance of the Notice to Proceed for Subproject 6(a), mutually agree upon final test procedures for the conduct of the Performance Tests as specified in and consistent with Attachment S (these test procedures and the test parameters specified in Attachment S hereinafter referred to as “Performance Test Procedures”). Contractor shall provide all labor, equipment, supplies, and all other items necessary for the conduct of the Performance Tests; provided, however, that Owner

 

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shall provide operating personnel for supervision by Contractor in accordance with Section 4.4 and the Commissioning Feed Gas in accordance with Section 11.1B. Contractor shall analyze the data obtained during all Performance Tests, and ensure that such data reflects the performance standards required hereunder. A complete copy of all raw performance data and a detailed listing of all testing instrumentation utilized shall be provided to Owner at the completion of testing. Upon achieving all requirements under this Agreement for Substantial Completion of a Subproject, Contractor shall certify to Owner in the form of Attachment M (“Substantial Completion Certificate”) that all of the requirements under this Agreement for Substantial Completion of such Subproject have occurred, and with respect to Subproject 6(a) shall provide with such Substantial Completion Certificate a Performance Test report and analysis to Owner. At a minimum, the Performance Test report shall include (i) the raw data, (ii) the instrumentation utilized for the Performance Tests, (iii) the procedures utilized during the Performance Tests, (iv) calculations and information, and a full explanation concerning same, for adjustments to the Guarantee Conditions, as and to the extent specified in the Performance Test Procedures, and (v) any other reasonable supporting information used to demonstrate that the Work has met the Minimum Acceptance Criteria or Performance Guarantee, as the case may be. The Substantial Completion Certificate shall be accompanied by all other supporting documentation as may be reasonably required to establish that the requirements for Substantial Completion of the Subproject have been met.

11.3 Owner Acceptance of Substantial Completion. Owner shall notify Contractor whether it accepts or rejects a Substantial Completion Certificate within ten (10) Days following Owner’s receipt thereof. All Work shall continue during pendency of Owner’s review. Acceptance of such Substantial Completion (which such acceptance shall not be unreasonably withheld) shall be evidenced by Owner’s signature on such Substantial Completion Certificate. The date of Substantial Completion of a Subproject shall be based upon, and the date of Owner’s acceptance of Substantial Completion of such Subproject shall be deemed to have occurred on, the date listed on the applicable Substantial Completion Certificate, provided that all requirements under this Agreement for Substantial Completion of a Subproject were achieved on such date listed on the applicable Substantial Completion Certificate except for the payment of any and all Liquidated Damages due and owing to Owner and provided further that the payment to Owner of such Liquidated Damages shall have been made within the time and in accordance with Section 20.3C in order for Substantial Completion of a Subproject to have occurred on the date listed in the applicable Substantial Completion Certificate. If Owner does not agree that Substantial Completion of a Subproject has occurred, then Owner shall state the basis for its rejection in reasonable detail in such notice. If the Parties do not mutually agree on when and if Substantial Completion of a Subproject has occurred, the Parties shall thereupon promptly and in good faith confer and make all reasonable efforts to resolve such issue. In the event such issue is not resolved within ten (10) Days of the delivery by Owner of its notice to Contractor, the Parties shall resolve such Dispute in accordance with Section 18.1A. Owner’s acceptance of Substantial Completion of a Subproject shall not relieve Contractor of any of its obligations to perform the Work in accordance with the requirements of this Agreement. Notwithstanding anything to the contrary in this Section, Owner shall not be required to accept a Substantial Completion Certificate if the requirements under this Agreement for the achievement of Substantial Completion of a Subproject have not been achieved. As used in this Section 11.3, “unreasonably withheld” means that Owner fails to accept a Substantial Completion Certificate even if all of the requirements under this

 

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Agreement for the achievement of Substantial Completion of a Subproject have been achieved. For the avoidance of doubt, “unreasonably withheld,” as used in this Section 11.3, means that Owner cannot fail to accept the applicable Substantial Completion Certificate if all the requirements under this Agreement for the achievement of Substantial Completion of a Subproject have been achieved.

11.4 Minimum Acceptance Criteria and Performance Liquidated Damages.

A. Minimum Acceptance Criteria Achieved. In the event that Subproject 6(a) fails to achieve the Performance Guarantee by the applicable Guaranteed Substantial Completion Date, as evidenced by the Performance Test results, but meets the Minimum Acceptance Criteria and all other requirements for Substantial Completion of such Subproject, then Contractor shall have the right, upon written notice to Owner, to elect one of the following options; provided, however, if the Performance Tests results evidence that the LNG Production Rate does not exceed ninety eight percent (98%) of the Performance Guarantee, then Owner shall have the right, upon written notice, to elect and direct Contractor, within thirty (30) Days after receipt of a notice from Contractor specifying the Performance Test results and requesting Owner’s election to proceed with one of the following options:

(i) Contractor shall transfer care, custody and control of Subproject 6(a) to Owner. Upon such transfer and satisfaction of all other requirements of Substantial Completion, Substantial Completion of such Subproject shall be achieved, and Owner shall sign the applicable Substantial Completion Certificate submitted by Contractor. Contractor shall only be responsible for the payment of applicable Delay Liquidated Damages owing up to the date of Substantial Completion of such Subproject, which shall be paid in accordance with Section 20.3C. Contractor shall pay, as a condition of Substantial Completion, Performance Liquidated Damages to Owner in accordance with Section 20.3C based on the results of the last Performance Test conducted by Contractor prior to issuance of a notice of election by Owner or Contractor pursuant to this Section 11.4; or

(ii) Contractor shall transfer care, custody and control of Subproject 6(a) to Owner and take corrective actions to achieve such Performance Guarantee. Upon such transfer and satisfaction of all other requirements of Substantial Completion, Substantial Completion of such Subproject shall be achieved, and Owner shall sign the applicable Substantial Completion Certificate submitted by Contractor. Contractor shall only be responsible for the payment of the applicable Delay Liquidated Damages owing up to the date of Substantial Completion of such Subproject, which shall be paid in accordance with Section 20.3C. The corrective actions required to be performed by Contractor shall be performed in accordance with Owner’s operation and maintenance schedule so as to not interfere with operation of such Subproject and subject to any security or safety requirements. For the period of time that Contractor is taking corrective action to achieve the Performance Guarantee(s) pursuant to this Section 11.4A(ii), Owner shall provide safe, reasonable access to Contractor for performance of such corrective actions, but at all times performing such Work so as not to interfere with the operation of

 

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such Subproject. Prior to the election of the option under this Section 11.4A(ii), Contractor shall deliver to Owner a detailed corrective action plan and schedule to achieve the Performance Guarantee. If the Subproject has not achieved the Performance Guarantee within one hundred and eighty (180) Days after the Guaranteed Substantial Completion Date (or such later date as may be mutually agreed in writing), then Contractor shall cease taking corrective actions to achieve the Performance Guarantee, and in that event, Contractor shall pay to Owner the applicable Performance Liquidated Damages for such Performance Guarantee in accordance with Section 20.3C based on the results of the last Performance Test conducted by Contractor. On the other hand, if such Performance Guarantee is achieved within the prescribed period, Contractor shall owe no Performance Liquidated Damages for such Subproject. Notwithstanding the foregoing, in the event that the Owner directed Contractor or Contractor elected to proceed with the option under this Section 11.4A(ii) and Contractor achieves an LNG Production Rate that exceeds ninety eight percent (98%) of the Performance Guarantee, Contractor shall have the right to cease taking corrective actions to achieve the Performance Guarantee, and Contractor shall pay to Owner the applicable Performance Liquidated Damages for such Performance Guarantee in accordance with Section 20.3C based on the results of the last Performance Test conducted by Contractor.

B. Minimum Acceptance Criteria Not Achieved. In the event that Subproject 6(a) fails to achieve the Minimum Acceptance Criteria, as evidenced by the Performance Test results, by the Guaranteed Substantial Completion Date for Subproject 6(a), as such date may be extended by Change Order as provided herein, then (i) Substantial Completion of such Subproject shall not occur and (ii) the provisions of Section 13.1 shall apply. In addition to the foregoing, Contractor shall attempt for a period of ten (10) months after the Guaranteed Substantial Completion Date for Subproject 6(a) (“Minimum Acceptance Criteria Correction Period”) to correct the Work to enable the Subproject to achieve the Minimum Acceptance Criteria and otherwise achieve Substantial Completion of such Subproject. If the Subproject has not achieved the Minimum Acceptance Criteria and Substantial Completion upon the termination of the Minimum Acceptance Criteria Correction Period, then Owner shall have, in its sole discretion, the option of either (a) granting Contractor up to an additional ten (10) month Minimum Acceptance Criteria Correction Period under the same terms and conditions as the first, including the application of Section 13.1 (subject to Section 20.2A); or (b) declaring Contractor Default pursuant to Article 16, in which case Owner shall be entitled to immediately (and without any cure period allowed) terminate Contractor’s performance of the Work in accordance with Section 16.1A, and Owner shall have all of the rights under Section 16.1, including all Delay Liquidated Damages owed but subject to Section 20.2A, provided that Owner shall not be entitled to any Performance Liquidated Damages with respect to Subproject 6(a). If, on the other hand, Subproject 6(a) has achieved the Minimum Acceptance Criteria and Substantial Completion during the Minimum Acceptance Criteria Correction Period (or during the second ten (10) month period, should Owner elect that option), then Contractor shall be liable to Owner for applicable Delay Liquidated Damages up to the date of Substantial Completion of Subproject 6(a) (subject to Section 20.2A) and all Performance Liquidated Damages owed (subject to Section 20.2B).

 

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11.5 Punchlist. Prior to Substantial Completion of each Subproject, Owner and Contractor shall jointly inspect such Subproject, and Contractor shall prepare a proposed Punchlist of items identified as needing to be completed or corrected as a result of such joint inspection. Contractor shall promptly provide the proposed Punchlist to Owner for its review, together with an estimate of the time and cost necessary to complete or correct each Punchlist item. Contractor shall immediately initiate measures to complete or correct, as appropriate, any item on Contractor’s proposed Punchlist that are not of a Punchlist nature. Notwithstanding anything to the contrary in this Agreement, Contractor and Owner are not required as a condition of Substantial Completion of a Subproject to agree upon and identify every Punchlist item and include it on the Punchlist, but Contractor is required to complete as a condition of Substantial Completion of a Subproject all Work that does not meet the definition of Punchlist as provided in Section 1.1. In the event of a Dispute regarding whether a specific item of Work meets the definition of Punchlist under Section 1.1, the Parties shall resolve such Dispute in accordance with Section 18.1A. Owner shall provide Contractor with access to the Work after Substantial Completion of a Subproject sufficient to enable Contractor to complete all Punchlist items, so long as such access does not unreasonably interfere with operation of any Subproject after substantial completion of that Subproject under its applicable EPC Agreement or the Existing Facility and subject to any reasonable security or safety requirements of Owner. Upon Contractor’s completion or correction of any items necessary to achieve Substantial Completion of the applicable Subproject, such Punchlist shall govern Contractor’s performance of the Punchlist items up to Final Completion. All Work on the Punchlist shall be completed by the date required for Final Completion, as specified in Section 5.3C, or Owner may, in addition to any other rights that it may have under this Agreement, complete such Punchlist Work at the expense of Contractor. In the event Owner elects to complete such Punchlist Work, Contractor shall pay Owner, within ten (10) Days after receipt of written notice from Owner, all reasonable costs and expenses incurred by Owner in performing such Punchlist Work, or, at Owner’s sole discretion, Owner may withhold or offset amounts owed to Contractor or collect on the Letter of Credit in accordance with Section 7.8 in the amount of such costs and expenses. Any Defective Work identified after agreement between the Parties of the Punchlist shall be corrected by Contractor as a Warranty item under Article 12.

11.6 Notice and Requirements for Final Completion. Final Completion shall be achieved when all requirements for Final Completion set forth in the definition of Final Completion under Section 1.1 have been satisfied. Upon Final Completion, Contractor shall certify to Owner in the form of Attachment N (“Final Completion Certificate”) that all of such requirements have occurred. Owner shall notify Contractor whether it accepts or rejects the Final Completion Certificate within ten (10) Days following Owner’s receipt thereof. Acceptance of Final Completion (which such acceptance shall not be unreasonably withheld) shall be evidenced by Owner’s signature on such certificate, which shall be forwarded to Contractor with such notice. The date of Final Completion shall be based upon, and the date of Owner’s acceptance of Final Completion shall be deemed to have occurred on, the date listed on the Final Completion Certificate; provided that all requirements under this Agreement for Final Completion were achieved on such date listed on the Final Completion Certificate. If Owner does not agree that

 

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Final Completion has occurred, then Owner shall state the basis for its rejection in such notice. If the Parties do not mutually agree on when and if Final Completion has occurred, the Parties shall thereupon promptly and in good faith confer and make all reasonable efforts to resolve such issue. In the event such issue is not resolved within ten (10) Days of the delivery by Owner of its notice, the Parties shall resolve such Dispute in accordance with Section 18.1A. Owner’s acceptance of Final Completion shall not relieve Contractor of any of its remaining obligations in accordance with the requirements of this Agreement. Notwithstanding anything to the contrary in this Section, Owner shall not be required to accept the Final Completion Certificate if the requirements under this Agreement for the achievement of Final Completion have not been achieved. As used in this Section 11.6, “unreasonably withheld” means that Owner fails to accept the Final Completion Certificate even if all of the requirements under this Agreement for the achievement of Final Completion have been achieved. For the avoidance of doubt, “unreasonably withheld,” as used in this Section 11.6, means that Owner cannot fail to accept the Final Completion Certificate if all the requirements under this Agreement for the achievement of Final Completion have been achieved.

11.7 Operations Activities.

A. Operation by Contractor. Prior to Substantial Completion of a Subproject and after RFSU of Subproject 6(a) , to the extent Contractor has care, custody and control of the Stage 4 Liquefaction Facility, Contractor shall, to the extent reasonably possible, operate the Stage 4 Liquefaction Facility in accordance with Owner’s reasonable instructions and all Permits (“Operations Activity” or collectively “Operations Activities”). Contractor shall not have the obligation to follow Owner’s instructions for any Operations Activity if such Operations Activity in Contractor’s reasonable opinion has more than a minimal impact on Contractor’s cost of performance of the Work or Contractor’s ability to perform the Work in accordance with the Project Schedule or Contractor’s ability to perform any other obligation under this Agreement, the intent of this Section 11.7A being that Contractor’s performance of the Work shall have priority over the operation of the Stage 4 Liquefaction Facility; provided, however, notwithstanding the foregoing, Owner shall be entitled to direct Contractor to stop, or cause to be stopped, all or any portion of the Work if the continuance of such Work would, in Owner’s reasonable opinion, be unsafe or cause damage to the Project or the Liquefaction Facility. Within twelve (12) hours of receipt of Owner’s instructions regarding such Operations Activity, Contractor shall provide notice to Owner informing Owner whether it can comply with Owner’s instructions and the reason if it cannot so comply. Contractor’s performance of the Operations Activities shall not in any way release Contractor or any surety of Contractor from any obligations or liabilities pursuant to this Agreement.

B. Operation by Owner. Upon Owner’s election to take care, custody and control of a Subproject in accordance with Section 11.4, Owner has the right to operate such Subproject. Owner shall bear the risk of physical loss and damage to the Work and the Project as provided in Article 8.

11.8 Partial Occupancy and Use. Prior to Contractor achieving Substantial Completion of a Subproject, Owner may, upon written notice to Contractor and upon the Parties’ mutual agreement, take care, custody and control of and use each of the BOG Compressor and the Instrument Air Compressor when each such Equipment is capable of functioning safely, provided that such use is authorized by the Governmental Instrumentality and Owner’s insurance company or companies providing property insurance and builder’s risk coverage have consented to such partial use and Owner shall insure the BOG Compressor and the Instrument Air Compressor immediately upon taking care, custody and control. Contractor shall assist Owner and take reasonable steps in obtaining consent of the insurance company or companies and applicable

 

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Governmental Instrumentalities. Immediately prior to such transfer of care, custody and control and use, Owner and Contractor shall jointly inspect the applicable BOG Compressor and Instrument Air Compressor to be used in order to determine and record the condition of the applicable BOG Compressor and the Instrument Air Compressor and all personnel and environmental safety aspects of the applicable BOG Compressor and the Instrument Air Compressor. Upon such transfer of care, custody and control to Owner, Owner shall bear the full risk of physical loss and damage to the applicable BOG Compressor and Instrument Air Compressor transferred to Owner; provided, however, notwithstanding the foregoing, Contractor shall remain fully responsible and liable to Owner for its Warranty and Corrective Work obligations under this Agreement. The Defect Correction Period for the applicable BOG Compressor and Instrument Air Compressor shall commence upon Owner taking care, custody and control of the applicable BOG Compressor and Instrument Air Compressor and end eighteen (18) months thereafter (subject to Section 12.3B). Contractor’s agreement to transfer care, custody and control of the BOG Compressor and the Instrument Air Compressor does not prejudice Contractor’s right to a Change Order in accordance with Section 6.2A.2 and 8.2D.

ARTICLE 12

WARRANTY AND CORRECTION OF WORK

12.1 Warranty.

A. General. The warranties set forth in this Article 12 (collectively, the “Warranty” or “Warranties”) are in addition to any of the Minimum Acceptance Criteria or the Performance Guarantee set forth in this Agreement. Any Work, or component thereof, that is not in conformity with any Warranty is defective (“Defective”) and contains a defect (“Defect”).

B. Warranty of Work. Contractor hereby warrants that:

1. the Equipment, and each component thereof, shall be new (unless otherwise specified in this Agreement) and of good quality;

2. the Work (including the Equipment) shall be in accordance with all of the requirements of this Agreement, including in accordance with GECP, Applicable Law and Applicable Codes and Standards; and

3. the Work (including the Equipment) shall be free from encumbrances to title, as set forth in greater detail in Section 8.1.

C. Documentation Warranty. Contractor warrants that the written instructions regarding the use of Equipment, including those instructions in operation and maintenance manuals, shall conform to this Agreement and GECP as of the time such instructions are prepared. If any non-conformance with the Warranty specified in this Section 12.1C occurs or is discovered at any time prior to or during the applicable Defect Correction Period, Contractor shall, at its sole expense, furnish Owner with corrected instructions.

 

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D. Assignment and Enforcement of Subcontractor Warranties. Contractor shall be fully responsible and liable to Owner for its Warranty and Corrective Work obligations and liability under this Agreement for all Work, including Work performed by its Subcontractors and Sub-subcontractors. Without limiting the foregoing, all warranties obtained by Contractor from Subcontractors shall run to the benefit of Contractor but shall permit Contractor, prior to assignment to Owner, the right (upon mutual agreement of the Parties), to authorize Owner to deal with Subcontractor on Contractor’s behalf. Such warranties, with duly executed instruments assigning the warranties shall be delivered to Owner concurrent with the end of the applicable Defect Correction Period. This Section 12.1D shall not in any way be construed to limit Contractor’s liability under this Agreement for the entire Work or its obligation to enforce Subcontractor warranties.

E. Exceptions to Warranty. The Warranty excludes remedy (and Contractor shall have no liability to Owner) for any damage or defect to the extent caused by: (i) improper repairs or alterations, misuse, neglect or accident by Owner; (ii) operation, maintenance or use of the Project, Work or any component thereof in a manner not in compliance with a material requirement of operation and maintenance manuals delivered by Contractor to Owner; (iii) normal wear and tear; (iv) normal corrosion or (v) an event of Force Majeure (but only, with respect to obligations under this Article 12, to the extent such event of Force Majeure occurs after Substantial Completion of the Subproject).

12.2 Correction of Work Prior to Substantial Completion.

A. General Rights. All Work shall be subject to inspection by Owner at all reasonable times to determine whether the Work conforms to the requirements of this Agreement. Upon Owner giving reasonable prior notice, Contractor shall furnish Owner with access to all locations where Work is in progress on the Site and at the offices of Contractor and its Major Subcontractors. Owner shall be entitled to provide Contractor with written notice of any Work which Owner believes does not conform to the requirements of this Agreement. After Contractor becomes aware of a Defect in the Work prior to Substantial Completion of the Subproject containing the Defect, Contractor will provide Owner with a general plan that provides for Contractor to investigate and, if necessary, correct (whether by repair, replacement or otherwise) the Defect (having regard to the nature of the Defect, the Project Schedule, safety, insurance and any adverse impact on the operation of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement, Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) after Substantial Completion of Subproject 6(a) or Subproject 6(b)), which plan may need to be updated based upon the Contractor’s investigation or further development or implementation of the plan. Contractor will carry out and complete the necessary work at its own cost and expense in order to remedy the Defect prior to Substantial Completion of the Subproject containing the Defect, unless: (i) otherwise provided in the plan for earlier correction; or (ii) such Defect materially impacts the operation of the Existing Facility, Subproject 1 or Subproject 2 after substantial completion of Subproject 1 or Subproject 2 (as applicable) under the Stage 1 EPC Agreement,

 

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Subproject 3 or Subproject 4 after substantial completion of Subproject 3 or Subproject 4 (as applicable) under the Stage 2 EPC Agreement, Subproject 5 after substantial completion of Subproject 5 under the Stage 3 EPC Agreement, or Subproject 6(a) or Subproject 6(b) after Substantial Completion of Subproject 6(a) or Subproject 6(b), in which case Contractor shall immediately commence to correct the Defect and complete the remedy as expeditiously as possible. The cost of disassembling, dismantling or making safe finished Work for the purpose of inspection, and reassembling such portions (and any delay associated therewith) shall be borne by (i) Contractor, if such Work is found not to conform with the requirements of this Agreement, and (ii) by Owner, if such Work is found to conform with the requirements of this Agreement, and Contractor shall be entitled to a Change Order in such event; provided that Contractor complies with the requirements set forth in Sections 6.2 and 6.5.

B. Witness Points. Contractor shall provide Owner with a list of witness points for all Major Equipment no later than thirty (30) Days after execution of the relevant Subcontract and Owner shall notify Contractor which of the witness points it wishes its personnel to witness. Contractor shall provide Owner with at least fifteen (15) Days’ prior written notice of the actual scheduled date of each of the tests Owner has indicated it wishes to witness. Contractor shall cooperate with Owner if Owner elects to witness any additional tests, and Contractor acknowledges that Owner shall have the right to witness all tests being performed in connection with the Work. Notwithstanding Owner’s rights to witness tests, Owner shall not interrupt or interfere with any test or require changes while witnessing such tests; provided however, if Owner observes testing that, in Owner’s reasonable opinion, raises a safety concern or could cause damage to Major Equipment, then Owner has the right (but not the obligation) to notify Contractor and Contractor shall promptly respond after such notification to rectify any issues.

C. No Obligation to Inspect. Owner’s right to conduct inspections under Sections 12.2A and 12.2B shall not obligate Owner to do so. Neither the exercise of Owner of any such right, nor any failure on the part of Owner to discover or reject Defective Work shall be construed to imply an acceptance of such Defective Work or a waiver of such Defect. In addition, Owner’s acceptance of any Work which is later determined to be Defective shall not in any way relieve Contractor from its obligations under this Article 12.

12.3 Correction of Work After Substantial Completion. If, during the applicable Defect Correction Period, any Work or component thereof is found to be Defective, and Owner provides written notice to Contractor within such Defect Correction Period regarding such Defect, Contractor shall, at its sole cost and expense, promptly correct (whether by repair, replacement or otherwise) such Defective Work, including all obligations in connection with such correction, such as in and out costs, storage, labor, Taxes, transportation and expediting costs and any other costs necessary to fully correct the Work (such correction of the Defective Work is hereby defined as the “Corrective Work”). Any such notice from Owner shall state with reasonable specificity the date of occurrence or observation of the alleged Defect and the reasons supporting Owner’s belief that Contractor is responsible for performing Corrective Work. Owner shall provide Contractor with access to the Stage 4 Liquefaction Facility, Stage 3 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 1 Liquefaction Facility and/or the Existing Facility sufficient to perform its Corrective Work, so long as such access does not unreasonably interfere with operation of the

 

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Stage 4 Liquefaction Facility, the Stage 3 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 1 Liquefaction Facility or the Existing Facility and subject to any reasonable security or safety requirements of Owner. In the event Contractor utilizes spare parts owned by Owner in the course of performing the Corrective Work, Contractor shall supply Owner free of charge with new spare parts equivalent in quality and quantity to all such spare parts used by Contractor as soon as possible following the utilization of such spare parts.

A. Owner Right to Perform Corrective Work. If Contractor fails to commence the Corrective Work during the Defect Correction Period within a reasonable period of time not to exceed ten (10) Business Days, or does not complete such Corrective Work promptly (and provided that Owner provides Contractor access to the Stage 4 Liquefaction Facility, the Stage 3 Liquefaction Facility, the Stage 2 Liquefaction Facility, the Stage 1 Liquefaction Facility and/or the Existing Facility in accordance with this Section 12.3), then Owner, as its sole and exclusive remedy for the Defect (except for its right to enforce the indemnification, defense and hold harmless obligations of Contractor pursuant to Sections 17.1A, 17.1F, 17.1G and 17.2), upon providing prior written notice to Contractor, may perform such Corrective Work, and Contractor shall be liable to Owner for the reasonable costs incurred by Owner in connection with performing such Corrective Work, and shall pay Owner, within ten (10) Days after receipt of written notice from Owner, an amount equal to such costs (or, at Owner’s sole discretion, Owner may withhold or offset amounts owed to Contractor or collect on the Letter of Credit in accordance with Section 7.8 in the amount of such costs and expenses); provided, however, if Defective Work discovered during the Defect Correction Period presents an imminent threat to the safety or health of any Person and Owner knows of such Defective Work, Owner may perform such Corrective Work in order to correct such Defective Work without giving prior written notice to Contractor. In such event, Contractor shall be liable to Owner for the reasonable costs incurred by Owner in connection with performing such Corrective Work, and shall pay Owner, after receipt of written notice from Owner, an amount equal to such costs (or, at Owner’s sole discretion, Owner may withhold or offset amounts owed to Contractor or collect on the Letter of Credit in accordance with Section 7.8 in the amount of such costs). To the extent any Corrective Work is performed by or on behalf of Owner, Contractor’s obligations with respect to such Defective Work that is corrected by or on behalf of Owner shall be relieved, with the exception of Contractor’s obligation to pay Owner the reasonable costs incurred by Owner in connection with performing such Corrective Work.

B. Extended Defect Correction Period for Corrective Work. With respect to any Corrective Work performed by Contractor, the Defect Correction Period for such Corrective Work shall be extended for an additional one (1) year from the date of the completion of such Corrective Work; provided, however, in no event shall the Defect Correction Period for any Work (including Corrective Work) be less than the original Defect Correction Period or extend beyond thirty-six (36) Months after Contractor’s achievement of Substantial Completion for such Subproject.

C. Standards for Corrective Work. All Corrective Work shall be performed subject to the same terms and conditions under this Agreement as the original Work is required to be performed. In connection with the Corrective Work, any change to Equipment that would alter the requirements of this Agreement may be made only with prior written approval of Owner in accordance with Section 3.29.

 

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D. Expiration of Defect Correction Period. Contractor shall not be liable to Owner for any Defective Work discovered after the expiration of the applicable Defect Correction Period (as may be extended pursuant to Section 12.3B), except for any liability of Contractor pursuant to its indemnification, defense and hold harmless obligations under this Agreement.

12.4 Assignability of Warranties. The Warranties made in this Agreement shall be for the benefit of Owner and its successors and permitted assigns and the respective successors and permitted assigns of any of them, and are fully transferable and assignable.

12.5 Waiver of Implied Warranties. The express warranties set forth in this Agreement (including Warranties) are exclusive and the Parties hereby disclaim, and Owner hereby waives any and all warranties implied under Applicable Law (including the governing law specified in Section 21.9), including the implied warranty of merchantability and implied warranty of fitness for a particular purpose.

ARTICLE 13

DELAY LIQUIDATED DAMAGES AND SCHEDULE BONUS

13.1 Delay Liquidated Damages. If Substantial Completion of Subproject 6(a) occurs after the Guaranteed Substantial Completion Date for Subproject 6(a), Contractor shall pay to Owner the amounts listed in Attachment T per Day for each Day, or portion thereof, of delay until Substantial Completion of Subproject 6(a) occurs (the “Subproject 6(a) Delay Liquidated Damages”). If Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, and if Substantial Completion of Subproject 6(b) occurs after the Guaranteed Substantial Completion Date for Subproject 6(b), Contractor shall pay to Owner the amounts listed in Attachment T per Day for each Day, or portion thereof, of delay until Substantial Completion of Subproject 6(b) occurs (the “Subproject 6(b) Delay Liquidated Damages”).

13.2 Schedule Bonus.

A. If Substantial Completion of Subproject 6(a) occurs before the date falling *** (***) Days after issuance of NTP for Subproject 6(a) (“Schedule Bonus Date for SP6(a)”), Owner shall pay Contractor a bonus in the amount of *** (U.S.$***) per MMBtu of the LNG that is both (i) produced by Subproject 6(a) between the period of first production of LNG from Subproject 6(a) and the Schedule Bonus Date for SP6(a) and (ii) loaded onto an LNG Tanker for export prior to the Schedule Bonus Date for SP6(a) (“Schedule Bonus for SP6(a)”).

B. For avoidance of doubt, Contractor shall not be entitled to a Schedule Bonus for SP6(a) for any LNG that boils-off or is vaporized and sold into the U.S. market as Natural Gas. The Schedule Bonus Date for SP6(a) shall be subject to adjustment solely at the discretion of the President and Chief Executive Officer of Cheniere and any such adjustment shall be implemented by Change Order. Contractor acknowledges that this Section 13.2 does not impose any obligation whatsoever on Owner to sell any LNG to any customers.

 

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C. If Owner elects the LNG Berth 3 Option pursuant to Section 4.10A, and Substantial Completion of Subproject 6(b) occurs before the Schedule Bonus Date for SP6(b), Owner shall pay Contractor a bonus in amount to be set forth in the LNG Berth 3 Change Order if Owner elects the LNG Berth 3 Option pursuant to Section 4.10A (“Schedule Bonus for SP6(b)”). The Schedule Bonus Date for SP6(b) shall be set forth in the LNG Berth 3 Change Order (“Schedule Bonus Date for SP6(b)”). After the Schedule Bonus Date for SP6(b) is established in the LNG Berth 3 Change Order, the Schedule Bonus Date for SP6(b) shall be subject to adjustment solely at the discretion of the President and Chief Executive Officer of Cheniere and any such adjustment shall be implemented by Change Order.

ARTICLE 14

CONTRACTOR’S REPRESENTATIONS

Contractor represents and warrants as of the Contract Date that:

14.1 Corporate Standing. It is a corporation duly organized, validly existing and in good standing under the laws of Delaware, is authorized and qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify would have a material adverse effect on its financial condition, operations, prospects, taxes or business.

14.2 No Violation of Law; Litigation. It is not in violation of any Applicable Law or judgment entered by any Governmental Instrumentality, which violations, individually or in the aggregate, would affect its performance of any obligations under this Agreement. There are no legal or arbitration proceedings or any proceeding by or before any Governmental Instrumentality, now pending or (to the best knowledge of Contractor) threatened against Contractor that, if adversely determined, could reasonably be expected to have a material adverse effect on the financial condition, operations, prospects or business, as a whole, of Contractor, or its ability to perform under this Agreement.

14.3 Licenses. It is the holder of all licenses required to permit it to operate or conduct its business in Louisiana now and as contemplated by this Agreement.

14.4 No Breach. Neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated or compliance with the terms and provisions hereof will conflict with or result in a breach of, or require any consent under, the charter or by-laws of Contractor, or any Applicable Law or regulation, or any order, writ, injunction or decree of any court, or any agreement or instrument to which Contractor is a party or by which it is bound or to which it or any of its property or assets is subject, or constitute a default under any such agreement or instrument.

 

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14.5 Corporate Action. It has all necessary power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by Contractor of this Agreement has been duly authorized by all necessary action on its part; and this Agreement has been duly and validly executed and delivered by Contractor and constitutes a legal, valid and binding obligation of Contractor enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or moratorium or other similar laws relating to the enforcement of creditors’ rights generally.

14.6 Financial Solvency. It is financially solvent, able to pay all debts as they mature and possesses sufficient working capital to complete the Work and perform its obligations hereunder.

ARTICLE 15

OWNER’S REPRESENTATIONS

Owner represents and warrants as of the Contract Date that:

15.1 Standing. It is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware, is qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify would have a material adverse effect on its financial condition, operations, prospects or business.

15.2 No Violation of Law; Litigation. It is not in violation of any Applicable Law, or judgment entered by any Governmental Instrumentality, which violations, individually or in the aggregate, would affect its performance of any obligations under this Agreement. There are no legal or arbitration proceedings or any proceeding by or before any Governmental Instrumentality, now pending or (to the best knowledge of Owner) threatened against Owner that, if adversely determined, could reasonably be expected to have a material adverse effect on the financial condition, operations, prospects or business, as a whole, of Owner, or its ability to perform under this Agreement.

15.3 Licenses. It is the holder of or will take the necessary action to obtain all Owner Permits under Attachment Q.

15.4 No Breach. Neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated or compliance with the terms and provisions hereof and thereof will conflict with or result in a breach of, or require any consent under, the constituent documents of Owner, any Applicable Law, any order, writ, injunction or decree of any court, or any agreement or instrument to which Owner is a party or by which it is bound or to which it or any of its property or assets is subject, or constitute a default under any such agreement or instrument.

15.5 Corporate Action. It has all necessary power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by Owner of this Agreement has been duly authorized by all necessary action on its part; and this Agreement has been duly and validly executed and delivered by Owner and constitutes a legal, valid and binding obligation of Owner enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or moratorium or other similar laws relating to the enforcement of creditors’ rights generally.

 

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15.6 Financial Solvency. Owner will have sufficient funds (as “sufficient funds” is defined in Sections 4.1B and 4.1C, as applicable), from itself and/or from financing from one or more Lenders, to enable it to fulfill its payment obligations under this Agreement.

ARTICLE 16

DEFAULT, TERMINATION AND SUSPENSION

16.1 Default by Contractor.

A. Owner Rights Upon Contractor Default. If Contractor shall at any time: (i) fail to commence the Work in accordance with the provisions of this Agreement; (ii) abandon the Work; (iii) repudiate or fail to materially comply with any of its material obligations under this Agreement; (iv) be in Default pursuant to Section 21.7; (v) fail to maintain insurance required under this Agreement; (vi) materially disregard Applicable Law or Applicable Standards and Codes; or (vii) itself or the Guarantor experience an Insolvency Event (each of the foregoing being a “Default”) then, Owner has the right (without prejudice to any other rights under the Agreement) to provide written notice to Contractor specifying the nature of the Default and demanding that such Default be cured. If: (a) with respect to any clause above (with the exception of clause (vii), which shall have no cure period in the event of a Contractor Insolvency Event, and with respect to an Insolvency Event for Guarantor, shall have the cure period specified below) (1) Contractor fails to cure such Default within thirty (30) Days after receipt of such notice or, (2) if the Default cannot be cured within such thirty (30) Day period through the diligent exercise of all commercially practicable efforts, Contractor fails to diligently exercise all commercially practicable efforts to cure such condition or fails to cure such condition within ninety (90) Days after receipt of such notice to cure such Default; or (b) Contractor experiences an Insolvency Event, Owner, in the event of (a) or (b), at its sole option and, without prejudice to any other rights that it has under this Agreement and, upon notice to Contractor, may (y) take such steps as are reasonably necessary to overcome the Default condition, in which case Contractor shall be liable to Owner for any and all reasonable costs and expenses incurred by Owner in connection therewith, or (z) terminate for Default Contractor’s performance of all of the Work. If Guarantor experiences an Insolvency Event, Contractor shall within thirty (30) Days after receipt of Owner’s notice provide either (A) a replacement Parent Guarantee by an Affiliate of Contractor, which such form Parent Guarantee shall be in the same form as set forth in Attachment FF and the Affiliate of Contractor being subject to the approval of Owner and Owner’s Lender(s), or (B) security in the form of a surety bond, letter of credit or bank guarantee in a form and amount reasonably required by Lender(s) and Owner, taking into consideration the status of the Project at the time of the Insolvency Event and providing sufficient protection to complete the Work and satisfy all liabilities and obligations of Contractor under this Agreement.

B. Additional Rights of Owner Upon Termination. In the event that Owner terminates this Agreement for Default in accordance with Section 16.1A, then Owner may, at its sole option, (i) enter onto the Site and, for the purpose of completing the Work, take possession of the Project, Equipment, Construction Equipment, Work Product (subject to Section 10.1D), Books and Records and other items thereon owned or rented by Contractor

 

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(subject to the relevant Construction Equipment lease or rental agreements), (ii) take assignment of any or all of the Subcontracts, and/or (iii) either itself or through others complete the Work. If the unpaid balance of the Contract Price shall exceed all actual costs and expenses incurred by Owner on account of the termination for Default (including all costs incurred to complete the Work in accordance with the Project Schedule), then such excess shall be paid by Owner to Contractor, but such amount shall not be paid until after Final Completion has been achieved. If such amount incurred by Owner shall exceed the unpaid balance of the Contract Price, then, at Owner’s sole option, Contractor shall pay Owner the difference within ten (10) Days after receipt of written notice from Owner, or, after the expiration of such ten (10) Day period, Owner shall have the right and authority to offset or draw down on the Letter of Credit in the amount of such difference. For the avoidance of doubt, prior to exercising such right to offset or collect on the Letter of Credit, Owner shall not be required to provide the notice as set forth in Section 7.8. Contractor’s liability under this Section 16.1B is in addition to any other liability provided for under this Agreement and Owner shall have the right and authority to set off against and deduct from any such excess due Contractor by Owner any other liability of Contractor to Owner under this Agreement. Owner agrees to act reasonably to mitigate any costs it might incur in connection with any termination for Default. Subject to the limitation of liability set forth in Section 20.1, in addition to the amounts recoverable above in this Section 16.1B, Owner shall be entitled to delay damages under this Section 16.1B which, for this purpose, means (i) Delay Liquidated Damages owed by Contractor to Owner under this Agreement up to the date of termination, and (ii) during the period commencing after termination and ending on the date Substantial Completion of a Subproject is achieved by a substitute contractor, the costs incurred during this period by such substitute contractor to accelerate the work in order to achieve the applicable Guaranteed Substantial Completion Date (as may have been adjusted by Change Order) contemplated by this Agreement.

C. Obligations Upon Termination. Upon termination for Default in accordance with Section 16.1A, Contractor shall (i) immediately discontinue Work on the date specified in the notice; (ii) place no further orders for Subcontracts, Equipment, or any other items or services; (iii) inventory, maintain and turn over to Owner all Construction Equipment owned by Contractor and (subject to the relevant Construction Equipment lease or rental agreements) all Construction Equipment rented by Contractor and, in each case, present on the Site prior to Contractor’s receipt of the termination notice or provided by Owner for performance of the terminated Work; (iv) promptly make every reasonable effort to procure assignment or cancellation upon terms satisfactory to Owner of all Subcontracts, including rental agreements; (v) cooperate with Owner in the transfer of Work Product (subject to Section 10.1D), including Drawings and Specifications, Permits and any other items or information and disposition of Work in progress so as to mitigate damages; (vi) comply with other reasonable requests from Owner regarding the terminated Work; (vii) thereafter preserve and protect Work already in progress and to protect Equipment at the Site or in transit thereto, and to comply with any Applicable Law and any Applicable Codes and Standards; and (viii) perform all other obligations under Section 16.1B.

 

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16.2 Termination for Convenience by Owner. Owner shall have the right to terminate this Agreement for its convenience by providing Contractor with a written notice of termination, to be effective upon receipt by Contractor. Upon termination for convenience, Contractor shall (i) immediately discontinue the Work on the date of the notice; (ii) place no further orders for Subcontracts, Equipment, or any other items or services; (iii) promptly make every reasonable effort to procure cancellation upon terms satisfactory to Owner and Contractor of all Subcontracts, including rental agreements, unless Owner elects to take assignment of any such Subcontracts; (iv) assist Owner in the maintenance, protection, and disposition of Work in progress, including Equipment at the Site or in transit to the Site; (v) cooperate with Owner for the efficient transition of the Work; and (vi) cooperate with Owner in the transfer of Work Product (subject to Section 10.1D), including Drawings and Specifications, Permits and any other items or information and disposition of Work in progress and Owner may, at its sole option, take assignment of any or all of the Subcontracts. If NTP is not issued, Owner shall not be liable for any termination amounts except for those amounts expressly set forth in a limited notice to proceed which was issued, if any, plus the applicable loss of profit amounts set forth in Section 16.2C.1,16.2C.2 or 16.7. If NTP is issued, Contractor shall be paid the following amounts no later than twenty-five (25) Days after submission of Contractor’s invoice(s) therefor:

A. the portion of the Contract Price for the Work performed prior to termination, less that portion of the Contract Price previously paid to Contractor;

B. actual costs reasonably incurred by Contractor on account of such termination (which costs shall be adequately documented and supported by Contractor), including cancellation charges owed by Contractor to Subcontractors (provided that Owner does not take assignment of such Subcontracts) and costs associated with demobilization of Contractor’s and Subcontractors’ personnel and Construction Equipment; and

C. in respect of loss of profit, Owner shall pay Contractor a lump sum amount in accordance with the following:

1. If the Agreement is terminated (a) prior to issuance of NTP for Subproject 6(a), and (b) prior to or on August 1, 2019, One Million U.S. Dollars (U.S.$1,000,000);

2. If the Agreement is terminated (a) prior to issuance of NTP for Subproject 6(a) and (b) after August 1, 2019, and on or before February 1, 2021, Two Million Five Hundred Thousand U.S. Dollars (U.S.$2,500,000); and

3. If the Agreement is terminated after issuance of NTP for Subproject 6(a), a percentage of the unpaid portion of the Contract Price in accordance with the following schedule; provided that such amount shall not exceed Thirty Million U.S. Dollars (U.S.$30,000,000):

 

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Date of Termination		Amount Based on Unpaid Portion of the Contract Price
1 to 365 Days after issuance of NTP for Subproject 6(a)		One percent (1%)
366 to 730 Days after issuance of NTP for Subproject 6(a)		Two percent (2%)
731 to 1095 Days after issuance of NTP for Subproject 6(a)		Three percent (3%)
1096 to 1460 Days after issuance of NTP for Subproject 6(a)		Four percent (4%)
1461 Days after issuance of NTP for Subproject 6(a) and thereafter		Five percent (5%)

16.3 Suspension of Work. Owner may, for any reason, at any time and from time to time, by giving thirty (30) Days’ prior written notice to Contractor, suspend the carrying out of the Work or any part thereof, whereupon Contractor shall suspend the carrying out of such suspended Work for such time or times as Owner may require and shall take reasonable steps to minimize any costs associated with such suspension. During any such suspension, Contractor shall properly protect and secure such suspended Work in such manner as Owner may reasonably require. Unless otherwise instructed by Owner, Contractor shall during any such suspension maintain its staff and labor on or near the Site and otherwise be ready to proceed expeditiously with the Work as soon as reasonably practicable after receipt of Owner’s further instructions. Except where such suspension ordered by Owner is the result of or due to the fault or negligence of Contractor or any Subcontractor or Sub-subcontractor, Contractor shall be entitled to a Change Order to recover the reasonable costs of such suspension, including demobilization and remobilization costs, if necessary, and a time extension to the Project Schedule if and to the extent permitted under Section 6.9. As soon as reasonably practicable after receipt of notice to resume suspended Work, Contractor shall promptly resume performance of the Work to the extent required in the notice. In no event shall Contractor be entitled to any additional profits or damages due to such suspension. After issuance of NTP for Subproject 6(a), in the event that Owner suspends all of the Work and such suspension (i) continues for an individual period exceeding ninety (90) consecutive Days, or (ii) in the event that one or more suspension periods continue for more than one hundred and twenty (120) Days in the cumulative aggregate, and provided that such suspension is not due to the fault or negligence of Contractor or any Subcontractor or Sub-subcontractor or an event of Force Majeure, then Contractor shall have the right to terminate this Agreement by providing fourteen (14) Days’ written notice to Owner. In the event of such termination, Contractor shall have the rights (and Owner shall make the payments) provided for in Section 16.2.

16.4 Suspension by Contractor.

A. Suspension by Contractor for Owner’s Failure to Pay Undisputed Amounts. If Owner fails to pay any undisputed amount due and owing to Contractor and such failure continues for more than fifteen (15) Days after the due date for such payment, then Contractor may suspend performance of the Work until Contractor receives such undisputed amounts. Prior to any such suspension, Contractor shall provide Owner with at least fourteen (14) Days’ prior written notice of its intent to suspend performance of the Work, which notice may be given before expiration of the above fifteen (15) Day window for non-payment. Contractor shall be entitled to a Change Order on account of any suspension in accordance with this Section 16.4A; provided that Contractor complies with the requirements in Sections 6.2, 6.5 and 6.9.

 

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B. Suspension by Contractor for Owner’s Failure to Fund Escrow Account. If Owner fails, in accordance with Section 18.4, to escrow disputed and unpaid amounts in excess of Ten Million U.S. Dollars (U.S.$10,000,000) and such failure continues for more than fifteen (15) Days after the time by which Owner is required to escrow amounts in accordance with Section 18.4 for such disputed and unpaid amounts, then Contractor may suspend performance of the Work until Owner escrows any disputed and unpaid amounts exceeding Ten Million U.S. Dollars (U.S.$10,000,000). Prior to any such suspension, Contractor shall provide Owner with at least ten (10) Days’ prior written notice of its intent to suspend performance of the Work. Contractor shall be entitled to a Change Order on account of any suspension in accordance with this Section 16.4B; provided that Contractor complies with the requirements in Sections 6.2, 6.5 and 6.9.

C. Undisputed Amounts. An amount shall be considered “undisputed” under Sections 16.4A and 16.5 if the amount invoiced by Contractor is contested in bad faith by Owner or if Owner has failed to give notice of a disputed amount in accordance with Section 7.2E by the due date for payment of the applicable invoiced amount.

D. Suspension by Contractor for Owner’s Failure to Deliver an Owner Confirmation. If Owner fails to deliver an Owner Confirmation in accordance with Section 4.1B for Subproject 6(a) or in accordance with Section 4.1C for Subproject 6(b) (if Owner elects to exercise the LNG Berth Option pursuant to 4.10A) or indicates that either (A) Owner does not have sufficient funds (as “sufficient funds” is defined in Sections 4.1B and 4.1C, as applicable) to continue to fulfill its payment obligations or (B) an event has come to the attention of Owner which would materially and adversely affect the continued availability of such funding then, Contractor may, upon providing thirty (30) Days’ written notice to Owner (and provided that Owner does not cure such circumstance within such thirty (30) Day period), suspend performance of the Work until Owner delivers to Contractor an Owner Confirmation meeting the criteria set forth in Section 4.1B or 4.1C (as applicable). Contractor shall be entitled to a Change Order on account of any suspension in accordance with this Section 16.4D, provided that Contractor complies with the requirements in Sections 6.2, 6.5 and 6.9.

16.5 Termination by Contractor. If Owner shall at any time: (i) fail to pay any undisputed amount; (ii) fail to materially comply with any of its material obligations under this Agreement (but only to the extent such material failure and the impact thereof is not subject to adjustment by Change Order as set forth in Section 6.2); or (iii) experience an Insolvency Event (each of the foregoing being an “Owner Default”) then, Contractor has the right (without prejudice to any other rights under the Agreement) to provide written notice to Owner specifying the nature of the Owner Default and demanding that such Owner Default be cured. If: (a) with respect to clause (i) Owner fails to cure such Owner Default within thirty (30) Days after receipt of such notice; (b) with respect to clause (ii), (1) Owner fails to cure such Owner Default within forty-five (45) Days after receipt of such notice or, (2) if the Owner Default cannot be cured within such forty five (45) Day period through the diligent exercise of all commercially practicable efforts, Owner

 

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fails to diligently exercise all commercially practicable efforts to cure such condition or fails to cure such condition within ninety (90) Days after receipt of such notice to cure such Owner Default; or (c) Owner experiences an Insolvency Event, Contractor may, in the event of (a), (b) or (c), at its sole option and without prejudice to any other rights that it has under this Agreement, and upon notice to Owner, terminate this Agreement. In the event of such termination under this Section 16.5, Contractor shall have the rights (and Owner shall make the payments) provided for in Section 16.2 in the event of an Owner termination for convenience.

16.6 Termination in the Event of an Extended Force Majeure. After issuance of NTP for Subproject 6(a), in the event (i) any one Force Majeure event or the effects thereof causes suspension of a substantial portion of the Work for a period exceeding one hundred (100) consecutive Days or (ii) any one or more Force Majeure events or the effects thereof causes suspension of a substantial portion of the Work for a period exceeding one hundred and eighty (180) Days in the aggregate during any continuous twenty-four (24) month period, then either Party shall have the right to terminate this Agreement by providing fourteen (14) Days’ written notice of termination to the other Party, to be effective upon receipt by such other Party. In the event of such termination, Contractor shall have the rights (and Owner shall make the payments) provided for in Section 16.2.

16.7 Termination in the Event of Delayed Notice to Proceed. In the event Owner fails to issue the NTP for Subproject 6(a) in accordance with Section 5.2A by February 2, 2021 (as may be extended by mutual agreement by the Parties), then either Party shall have the right to terminate this Agreement by providing written notice of termination to the other Party, to be effective upon receipt by the other Party. In the event of such termination, Contractor shall have the rights (and Owner shall make the payments) provided for in Section 16.2, except that, in respect of loss of profit, Contractor shall only be entitled to a lump sum equal to Five Million U.S. Dollars (U.S.$5,000,000).

16.8 Contractor’s Right to Terminate. Contractor’s sole right to terminate this Agreement is specified in Sections 16.3, 16.5, 16.6 and 16.7.

ARTICLE 17

RELEASES AND INDEMNITIES

17.1 General Indemnification. IN ADDITION TO ITS INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS CONTAINED ELSEWHERE IN THIS AGREEMENT, CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE OWNER GROUP FROM ANY AND ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES AND LITIGATION OR ARBITRATION EXPENSES) TO THE EXTENT THAT SUCH DAMAGES, LOSSES, COSTS AND EXPENSES RESULT FROM ANY OF THE FOLLOWING:

A. FAILURE OF CONTRACTOR OR ITS SUBCONTRACTORS OR SUB-SUBCONTRACTORS TO COMPLY WITH APPLICABLE LAW; PROVIDED THAT THIS INDEMNITY SHALL BE LIMITED TO FINES AND PENALTIES IMPOSED ON OWNER GROUP AND RESULTING FROM THE FAILURE OF CONTRACTOR OR ITS SUBCONTRACTORS OR SUB-SUBCONTRACTORS TO COMPLY WITH APPLICABLE LAW EXCEPT ANY PORTION OF THE AMOUNT OF SUCH FINES AND PENALTIES ATTRIBUTABLE TO PRIOR VIOLATIONS BY OWNER OF APPLICABLE LAWS RELATING TO HAZARDOUS MATERIALS FOR WHICH OWNER IS RESPONSIBLE UNDER SECTION 4.7;

 

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B. ANY AND ALL DAMAGES, LOSSES, COSTS AND EXPENSES SUFFERED BY A THIRD PARTY AND RESULTING FROM ACTUAL OR ASSERTED VIOLATION OR INFRINGEMENT OF ANY DOMESTIC OR FOREIGN PATENTS, COPYRIGHTS OR TRADEMARKS OR OTHER INTELLECTUAL PROPERTY OWNED BY A THIRD PARTY TO THE EXTENT THAT SUCH VIOLATION OR INFRINGEMENT RESULTS FROM PERFORMANCE OF THE WORK BY CONTRACTOR OR ANY OF ITS SUBCONTRACTORS OR SUB-SUBCONTRACTORS, OR ANY IMPROPER USE OF THIRD PARTY CONFIDENTIAL INFORMATION OR OTHER THIRD PARTY PROPRIETARY RIGHTS THAT MAY BE ATTRIBUTABLE TO CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR IN CONNECTION WITH THE WORK (BUT EXCLUDING INFRINGEMENT BASED UPON ANY WORK OR DESIGNS RELATING TO THE OPERATION OF THE OPTIMIZED CASCADE PROCESS);

C. CONTAMINATION OR POLLUTION SUFFERED BY A THIRD PARTY TO THE EXTENT RESULTING FROM CONTRACTOR’S OR ANY SUBCONTRACTOR’S OR SUB-SUBCONTRACTOR’S USE, HANDLING OR DISPOSAL OF HAZARDOUS MATERIALS BROUGHT ON THE SITE OR ON THE OFF-SITE RIGHTS OF WAYS AND EASEMENTS BY CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR;

D. FAILURE BY CONTRACTOR OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR TO PAY TAXES FOR WHICH SUCH PERSON IS LIABLE;

E. FAILURE OF CONTRACTOR TO MAKE PAYMENTS TO ANY SUBCONTRACTOR IN ACCORDANCE WITH THE RESPECTIVE SUBCONTRACT, BUT NOT EXTENDING TO ANY SETTLEMENT PAYMENT MADE BY OWNER TO ANY SUBCONTRACTOR AGAINST WHICH CONTRACTOR HAS PENDING OR PROSPECTIVE CLAIMS, UNLESS SUCH SETTLEMENT IS MADE WITH CONTRACTOR’S CONSENT, EXCEPT AFTER ASSUMPTION OF SUCH SUBCONTRACT BY OWNER IN ACCORDANCE WITH SECTION 16.1B;

F. PERSONAL INJURY TO OR DEATH OF ANY PERSON (OTHER THAN EMPLOYEES OF ANY MEMBER OF THE CONTRACTOR GROUP, THE OWNER GROUP OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR), AND DAMAGE TO OR DESTRUCTION OF PROPERTY OF THIRD PARTIES TO THE EXTENT ARISING OUT OF OR RESULTING FROM THE NEGLIGENCE, IN CONNECTION WITH THE WORK, OF ANY MEMBER OF THE CONTRACTOR GROUP OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM; OR

G. DAMAGE TO OR DESTRUCTION OF THE EXISTING FACILITY (EXCLUDING THE WORK RELATED THERETO), SUBPROJECT 1 OR SUBPROJECT 2 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF EACH SUCH SUBPROJECT OR TERMINATION OF THE STAGE 1 EPC AGREEMENT), SUBPROJECT 3 OR SUBPROJECT 4 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF EACH SUBPROJECT OR TERMINATION OF THE STAGE 2 EPC AGREEMENT), SUBPROJECT 5 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF SUBPROJECT 5 OR TERMINATION OF THE STAGE 3 EPC AGREEMENT) OR SUBPROJECT 6(A) OR SUBPROJECT 6(B) (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF EACH SUCH SUBPROJECT OR TERMINATION OF THIS AGREEMENT) TO THE EXTENT ARISING OUT OF OR RESULTING FROM

 

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THE NEGLIGENCE, IN CONNECTION WITH THE WORK, OF ANY MEMBER OF THE CONTRACTOR GROUP OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, PROVIDED THAT CONTRACTOR’S LIABILITY HEREUNDER FOR DAMAGE TO OR DESTRUCTION OF (I) THE EXISTING FACILITY (EXCLUDING THE WORK RELATED THERETO) SHALL NOT EXCEED ONE HUNDRED MILLION U.S. DOLLARS (U.S.$100,000,000) PER OCCURRENCE (PROVIDED, HOWEVER, CONTRACTOR’S AND ITS SUBCONTRACTORS’ AND SUB-SUBCONTRACTORS’ LIABILITY FOR SUCH DAMAGE OR DESTRUCTION TO THE EXISTING FACILITY SHALL BE LIMITED TO THE ACTUAL AMOUNTS OF INSURANCE PROCEEDS PAID FOR SUCH OCCURRENCE UNDER THE POLICIES OF INSURANCE REQUIRED TO BE PROVIDED BY CONTRACTOR UNDER THIS AGREEMENT), (II) SUBPROJECT 1 OR SUBPROJECT 2 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF EACH SUCH SUBPROJECT OR TERMINATION OF THE STAGE 1 EPC AGREEMENT) SHALL NOT EXCEED *** U.S. DOLLARS (U.S.$ ***) PER OCCURRENCE, (III) SUBPROJECT 3 OR SUBPROJECT 4 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF EACH SUCH SUBPROJECT OR TERMINATION OF THE STAGE 2 EPC AGREEMENT) SHALL NOT EXCEED ONE MILLION U.S. DOLLARS (U.S.$1,000,000) PER OCCURRENCE, (IV) SUBPROJECT 5 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF SUBPROJECT 5 OR TERMINATION OF THE STAGE 3 EPC AGREEMENT) SHALL NOT EXCEED ONE MILLION U.S. DOLLARS (U.S.$1,000,000) PER OCCURRENCE, OR (IV) SUBPROJECT 6(A) OR SUBPROJECT 6(B) (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF SUCH SUBPROJECT OR TERMINATION OF THIS AGREEMENT) SHALL NOT EXCEED ONE MILLION U.S. DOLLARS (U.S.$1,000,000) PER OCCURRENCE.

17.2 INJURIES TO CONTRACTOR’S EMPLOYEES AND DAMAGE TO CONTRACTOR’S PROPERTY.

A. NOTWITHSTANDING THE PROVISIONS OF SECTION 17.1F, AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.7, CONTRACTOR SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE OWNER GROUP FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) ARISING OUT OF OR RESULTING FROM OR RELATED TO INJURY TO OR DEATH OF EMPLOYEES, OFFICERS OR DIRECTORS OF ANY MEMBER OF THE CONTRACTOR GROUP OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR OCCURRING IN CONNECTION WITH THE WORK OR THE PROJECT, REGARDLESS OF THE CAUSE OF SUCH INJURY, DEATH, DAMAGE OR DESTRUCTION, INCLUDING THE SOLE OR JOINT NEGLIGENCE, BREACH OF CONTRACT OR OTHER BASIS OF LIABILITY OF ANY MEMBER OF THE OWNER GROUP.

B. NOTWITHSTANDING THE PROVISIONS OF SECTION 17.1F, AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.7, CONTRACTOR SHALL WAIVE AND RELEASE (AND SHALL CAUSE THE CONTRACTOR GROUP AND SUBCONTRACTORS AND SUB-SUBCONTRACTORS TO WAIVE AND RELEASE) THE OWNER GROUP FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) ARISING OUT OF OR RESULTING FROM DAMAGE TO OR DESTRUCTION OF PROPERTY OF ANY MEMBER OF THE CONTRACTOR GROUP OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR OCCURRING IN CONNECTION WITH THE WORK OR THE PROJECT, REGARDLESS OF THE CAUSE OF SUCH DAMAGE OR DESTRUCTION, INCLUDING THE SOLE OR JOINT NEGLIGENCE, BREACH OF CONTRACT OR OTHER BASIS OF LIABILITY OF ANY MEMBER OF THE OWNER GROUP.

 

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C. NOTWITHSTANDING THE PROVISIONS OF SECTION 17.1F, AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.7, CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE OWNER GROUP FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) ARISING OUT OF OR RESULTING FROM DAMAGE TO OR DESTRUCTION OF PROPERTY OF ANY MEMBER OF THE CONTRACTOR GROUP OR ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR OCCURRING IN CONNECTION WITH THE WORK OR THE PROJECT, REGARDLESS OF THE CAUSE OF SUCH DAMAGE OR DESTRUCTION, INCLUDING THE SOLE OR JOINT NEGLIGENCE, BREACH OF CONTRACT OR OTHER BASIS OF LIABILITY OF ANY MEMBER OF THE OWNER GROUP.

17.3 Injuries to Owner’s Employees and Damage to Owner’s Property.

A. EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 3.17 AND 17.1C, OWNER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE CONTRACTOR GROUP AND SUBCONTRACTORS AND SUB-SUBCONTRACTORS FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) RESULTING FROM OR RELATED TO INJURY TO OR DEATH OF ANY MEMBER OF THE OWNER GROUP OR EMPLOYEES OF OWNER’S OTHER CONTRACTORS OCCURRING IN CONNECTION WITH THE PROJECT, REGARDLESS OF THE CAUSE OF SUCH INJURY, DEATH, DAMAGE OR DESTRUCTION, INCLUDING THE SOLE OR JOINT NEGLIGENCE, BREACH OF CONTRACT OR OTHER BASIS OF LIABILITY OF ANY MEMBER OF THE CONTRACTOR GROUP.

B. EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 3.17 AND 17.1C, OWNER SHALL WAIVE AND RELEASE (AND SHALL CAUSE THE OWNER GROUP TO WAIVE AND RELEASE) THE CONTRACTOR GROUP AND SUBCONTRACTORS AND SUB-SUBCONTRACTORS FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) RESULTING FROM OR RELATED TO DAMAGE TO OR DESTRUCTION OF PROPERTY OF OWNER GROUP (EXCLUDING THE WORK, THE STAGE 1 LIQUEFACTION FACILITY, THE STAGE 2 LIQUEFACTION FACILITY, THE STAGE 3 LIQUEFACTION FACILITY, THE STAGE 4 LIQUEFACTION FACILITY, THE EXISTING FACILITY, AND THE PROJECT) OR OF OWNER’S OTHER CONTRACTORS OCCURRING IN CONNECTION WITH THE PROJECT, REGARDLESS OF THE CAUSE OF SUCH DAMAGE OR DESTRUCTION, INCLUDING THE SOLE OR JOINT NEGLIGENCE, BREACH OF CONTRACT OR OTHER BASIS OF LIABILITY OF ANY MEMBER OF THE CONTRACTOR GROUP.

C. EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 3.17 AND 17.1C, OWNER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE CONTRACTOR GROUP AND SUBCONTRACTORS AND SUB-SUBCONTRACTORS FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) RESULTING FROM OR RELATED TO DAMAGE TO OR DESTRUCTION OF PROPERTY OF OWNER GROUP (EXCLUDING THE WORK, THE STAGE 1 LIQUEFACTION FACILITY, THE STAGE 2 LIQUEFACTION FACILITY, THE STAGE 3 LIQUEFACTION FACILITY, THE STAGE 4 LIQUEFACTION FACILITY, THE EXISTING FACILITY, AND THE PROJECT) OR OF OWNER’S OTHER CONTRACTORS OCCURRING IN CONNECTION WITH THE PROJECT, REGARDLESS OF THE CAUSE OF SUCH DAMAGE OR DESTRUCTION, INCLUDING THE SOLE OR JOINT NEGLIGENCE, BREACH OF CONTRACT OR OTHER BASIS OF LIABILITY OF ANY MEMBER OF THE CONTRACTOR GROUP.

 

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D. IN ADDITION TO, AND NOT IN LIEU OF THE FOREGOING, AND REGARDLESS OF THE CAUSE OF ANY SUCH DAMAGE OR DESTRUCTION, INCLUDING THE SOLE OR JOINT NEGLIGENCE, BREACH OF CONTRACT OR OTHER BASIS OF LIABILITY OF ANY MEMBER OF THE CONTRACTOR GROUP, SUBCONTRACTOR OR SUB-SUBCONTRACTOR, OWNER SHALL WAIVE AND RELEASE THE CONTRACTOR GROUP AND ANY SUBCONTRACTOR OR SUB-SUBCONTRACTOR FROM AND AGAINST ALL DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) RESULTING FROM OR RELATED TO: (A) DAMAGE TO OR DESTRUCTION OF THE EXISTING FACILITY (EXCLUDING THE WORK RELATED THERETO) TO THE EXTENT THAT SUCH DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) EXCEED THE LESSER OF (I) ONE HUNDRED MILLION U.S. DOLLARS (U.S.$100,000,000) PER OCCURRENCE OR (II) THE ACTUAL AMOUNTS OF INSURANCE PROCEEDS PAID PER SUCH OCCURRENCE UNDER THE POLICIES OF INSURANCE REQUIRED TO BE PROVIDED BY CONTRACTOR UNDER THIS AGREEMENT; (B) DAMAGE TO OR DESTRUCTION OF SUBPROJECT 5 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF SUBPROJECT 5 OR TERMINATION OF THE STAGE 3 EPC AGREEMENT) TO THE EXTENT THAT SUCH DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) EXCEED ONE MILLION U.S. DOLLARS (U.S.$1,000,000) PER OCCURRENCE; (C) DAMAGE TO OR DESTRUCTION OF SUBPROJECT 6(A) OR SUBPROJECT 6(B) (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF SUCH SUBPROJECT OR TERMINATION OF THIS AGREEMENT) TO THE EXTENT THAT SUCH DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) EXCEED *** U.S. DOLLARS (U.S.$ ***) PER OCCURRENCE; (D) DAMAGE TO OR DESTRUCTION OF SUBPROJECT 3 OR SUBPROJECT 4 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF SUCH SUBPROJECT OR TERMINATION OF THE STAGE 2 EPC AGREEMENT) TO THE EXTENT THAT SUCH DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) EXCEED ONE MILLION U.S. DOLLARS (U.S.$1,000,000) PER OCCURRENCE; (E) DAMAGE TO OR DESTRUCTION OF SUBPROJECT 1 OR SUBPROJECT 2 (AFTER THE EARLIER OF SUBSTANTIAL COMPLETION OF SUCH SUBPROJECT OR TERMINATION OF THE STAGE 1 EPC AGREEMENT) TO THE EXTENT THAT SUCH DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ALL REASONABLE ATTORNEYS’ FEES, AND LITIGATION OR ARBITRATION EXPENSES) EXCEED ONE MILLION U.S. DOLLARS (U.S.$1,000,000) PER OCCURRENCE; OR (F) DAMAGE TO OR DESTRUCTION OF PROPERTY CONSTITUTING, OR TO BE INCORPORATED INTO OR BECOME A PART OF, THE STAGE 3 LIQUEFACTION FACILITY FOR WHICH THE OWNER BEARS THE RISK OF PHYSICAL LOSS OR DAMAGE PURSUANT TO SECTION 8.2A; PROVIDED, HOWEVER, THIS SECTION 17.3D SHALL NOT RELIEVE CONTRACTOR OF ANY OF ITS OBLIGATIONS UNDER SECTION 12.3 OR ANY OF CONTRACTOR’S OBLIGATIONS UNDER SECTION 12.3 OF THE STAGE 1 EPC AGREEMENT, THE STAGE 2 EPC AGREEMENT OR THE STAGE 3 EPC AGREEMENT.

 

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