Contract for Engineering Procurement Construction

Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Contract for Engineering Procurement Construction Hợp đồng tổng thầu EPC

CoNrn rcrFoR ENGINEERING PROCUREMENT aNI SUPPT-Y

TABLE oF CoNTENTS

89

SCOPE OF C0NTRACT

RES Po NSIBILITI ES o r O rywnn

PLANT, MATENALS AND IFoRKMAN9HIP

CoNrnIcr Prucn AND PAVMENT

Co a aBNcnarr,tr DATE, D ELAv,

2 7 29

3 7

3 7

J J56 56

SCHEDULE 1 TSCHNIcAL SpBCINCATIoNS oF FACILITY

Centtplcatr

PnocBounr

SCHEDULE 14 Queurv AssuRANcE / Quernv CoNrnor

GOVERNMENTAL AUTHORITIES

SCHEDULE 17 LIST oF AppRovED SuBcol.rrRAcroRs

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CONrnacT FoR ENcrNrrnrNG" PRoCUREMENT INn Suppr,y

This coNrn{cr FoR ENGTNEERTNG, pRocuREMENT AND suppl,y (the contract) is madeand entered into as of this 14'h day of October, 2007 by and between:

MAN DIESEL sE, a company duly organized and existing under the laws of Germany, withoflice located at stadtbachstrasse l, 86153 Augsburg, Germany (the suppty contractor);and

ATLAS PowER LIMITED, a company duly organized and existing under the laws of Pakistanwith office located at 2nd Floor Federation House, Sharae Firdousi, Clifton, Karachi, 75600,Pakistan (the Owner);

(the Supply Contractor and the Owner are hereinafter jointly referred to as the Parties orsingularly as Party)

REcITALS

(a) WHEREAS, owner wishes to have the Supply contractor design, engineer, procure,

manufacture and supply equipment to the Owner for a heavy fuel oil-fired dieselengine generating power facility, with a total capacity of 213.60 MW (neQ;

o) WHEREAS, Supply contractor is inter alia in the business of providing design,

engineenng, equipment procurement and off-shore equipment tuppiies for treavy fueioil-fired diesel engine generating power facility projects;

(c) WHEREAS, Owner wishes to conclude an agreement with Supply Contractor for the

design, engineeing, procurement, supply and delivery of equipment and workshoptesting ofthe afore-mentioned Facility related thereto; and

(d) WHEREAS, the Parties desire to set forth the terms and conditions under which

Supply conhactor will provide and owner will pay for such works and services.No% THEREFonE, in consideration of the mutual covenants herein contained, the receiptand sufficiency of which is hereby acknowledged, intending to be legally bound, the partieshereto agree as follows:

DrrrmnoNs

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capitalized terms used in this contract, including the recital hereto, without otherdefinition shall have the meanings specified hereunder, unless the context requiresotherwise

Applicable Laws shall mean all laws, treaties, ordinances, rules, regulations andorders having force of law, and any authoritative interpretation ofsuch laws, treaties,ordinances, rules, regulations and orders issued by a competent court, arbinal tribunal

or other governmental agency that directly or indirectly apply to the Facility or anysupply, service or work thereof valid on the Effective Date

Applicable Permits shall mean all authorizations, consents, decrees, permits,waivers, privileges or approvals required to be obtained or maintained by the SupplyContractor in connection with Supply Contractor's obligations to be performedhereunder

Approved Design shall mean the design arrived at after the completion of the reviewprocedure provided in Section 5.2 (Constuction Documents) and as per theSpecifications

Business Day(s) shall mean business day(s) in the Country and in Germany

Change in Law shall mean:

(a) the adoption, promulgation, repeal, modification or reinterpretafion after

Effective Date by any Public Sector Entity of any Applicable Law of theCounky (including a final, binding and non-appealable decision ofany PublicSector Entity); or

(b) the imposition by a Relevant Authority of any material term or condition in

connection with the issuance, renewal, extension, replacement ormodification of any Consent and Governmental Authorizatton after theEffective Date: or

(c) the imposition by a Relevant Authority of any additional Conseint,

that in the case of each of the above clauses establishes a change in either cost orrevenue as a consequence of any requirement for the desigr of the Facility that ismaterially more restrictive than the most restrictive requirements (i) in effect as of theEffective Date, (ii) specified in any applications, or other documents filed inconnection with such applications for any Consent filed by any Party on or before theTaking Over, and (iii) agreed to by any Party in any agreement in the ProjectDocuments

Change Ortler shall mean a written order to Supply Contractor pursuart to Sectionl0 hereof authorizing an addition, delehon or re\rslon rn the work any change m theC'ontract Price, and/or any adjustment of the Scheduled Taking Over Date

Commeutement Date shall have the meaning as definbd in Section 9

Completion Cost shall bear the meaning ascribed thereto in Section 15.2.5.1:

Confidential Information shall bear the meaning ascribed thereto in Section 24.1Consent shall mean all approvals, consents, authorisations, notifications,concessions, acknowledgements, licences (including the Generation License),

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pennits, decisions or similar items which is or are issued by a Relevant Authority andwhich the Owner or any of its contractors is required to obtain from any RelevantAuthority.

Construction Contract shall mean the agreement so entitled between the Owner andthe Construction Contractor dated October 14.2007 for the construction, erection,installation, testing and commissioning of the Facility and each of its components.Construction Contractor shall mean Shirazi Trading Company (Private) Limited, acompany duly organized and existing under the laws of Pakistan, with offrce located

at 8th Floor, Adamjee House, I I Chundrigar Road, Karachi, Pakistan

Construction Documents shall mean all drawings, calculation, computer software(programs), samples, pattems, models, operation and maintenance manuals, and othermanuals and information of a similar nature, relating to Works, to be submitted by theSupply Contractor to the Owner as required by the Specifications and Schedule 13(Drawings, Specifications Review Procedure)

Contract shall mean this Engineering, Procurement and Supply Contract, includingall Schedules attached hereto and such further documents as may be expresslyincorporated in the Contract with the consent of the Parties, including any ChangeOrders

Contract Completion Certilicate shall mean the certificate issued by the Owner'sRepresentative under Section 14.10, in the form set out io Schedule 12 (Form ofContract Completion Certificate)

Contract Period shall mean the period commencing from the date of receipt of theDown Payrnent and ending upon the complete performance of the respectiveobligations of each of the Parties under the Contrzct-

Contract Price shall mean the amount payable to the Supply Contractor set forth inSecfion 8 and as adjusted pursuant to the terms ofany Change Order, ifapplicable.Contractor's Representative shall bear the meaning ascribed thereto in Section 4.7.Cost shall mean expenditures properly incurred (or to be incurred) by the SupplyContractor, whether on or ofl the Site, including overheads, insurance and similarcharges also including profit

Country shall mean the Islamic Republic of Pakistan, treing the country in which theSite is located

Defects or Deficiencies shall mean, unless otherwise specifically stated and withoutlimitatisn, any alesigns, engineering, Plant, Materials or suppl ies which fail toconform to the Specifications or the warranties given hereunder or are of improper orinferior workrnanship or are not as explicitly described herein

Disclosing Party shall bear the meaning ascribed thereto in Secfion 24.1

Down Payment shall bear the meaning ascribed thereto in Section 8.3.2

Down Payment Bond shall bear the meaning ascribed thereto in Section 4.2.1, whic\,

shall be in the form set forth in Schedule 8 (Form of Down payment Bond).Down Payment Bond Expiry Date shall bear the meaning ascribed thereto inSection 4.2.2;

Effective Date shall mean the date on which this contract shall be duly signed byboth Parties

EUR shall mean the legal currency of the European Union

Facility shall mean the electricity generating facility, as described in theSpecifications, to be constructed on Owner's Site in the Country

Final EIA Report shall bear the meaning ascribed thereto in Section 4.12.2

Force Majeure Event shall bear the meaning ascribed thereto in Section 19

Fuel Supplier shall mean Pakistan State Oil Company Limited, a companyincorporated under the laws of Pakistan with its resistered office located at pSoHouse, Khayaban-e-Iqbal, Clifton, Karachi.

Fuel supply Agreement shall mean the agreement so entitled entered into betweenthe Fuel supplier and the owner dated 5ft october 200] for the provision offuel forpurposes of testing, commissioning and operating the Facility

GOP shall mean the Government of Islamic Republic of pakistan.

Governmental Authorities shall mean any local or national agency, authority,departments, inspectorate, ministry, official court, tribunal, or public or statutory(whether autonomous or not) which has jurisdiction over the parties or all or anyaspect of the subject matter of the Fro.lect

Governmental Authorization(s) and/or Governmental Approval(s) shall mean allpermits' licenses, authorizations, consents, decrees, waivers, privileges, approvals,authorizations or exemptions frorn, and all filings with, and notices- io, uttyGovernmental Authority required in order for the Facility to be engineered, procured,conskucted and operated lawfully

Grid shall mean the electrical grid of the power purchaser

Hazardous l,taterials shall mean any toxic or hazardous- substance or wasteregulated by Applicable Laws in the corurtry or in Supply contractor's country orstated as hazardous by the Governmental Authoritics.

Implementation Agrcemcnt shall mcan means the asreenrent so entitled entered intobetween the government ofthe country and the ownir dated lgft september 2007.L/c shall mean the irrevocable letter of credit, issued by the rJC Issuing Banlg to beestablished by the owner in favour of the supply contractor in accordance withSection 8.3.5, in the form set our in Schedule 6 @orm of L/C\

as approved bv the'L/C Issuing Bank shall mean the National Bank of pakistan,

Supply Contra ctor for issuance of the UC.

Lapse of Consent shall mean any Consent (a) ceasing to remain in full force andeffect and not being renewed or replaced within the time period prescribed by theApplicable Laws of the Country or (b) (other than a Specified Consent) not beingissued upon application having been properly and timely made and diligentlypursued, or (c) being made subject, upon renewal or otherwise, to any terms orconditions that materially and adversely affect a Party's ability to perform itsobligations under any document included within the Project Documents, in each ofthe above instances despite such Party's compliance with the applicable proceduraland substantive requirements as applied in a "non-discriminatory" (as explained inSection 12.4 of the Implementation Agreement) manner

Latent Defect shall mean any defect in any section of the works which did not orcould not have become apparent upon a diligent and careful examination or testing bythe Owner

Latent Defects Notification Period shall mean in respect of any section of theworks, the period commencing on the date of expiry of the warranty period for anysection of the works and continuing until the date which is 24 months thereafter, asmay be extended under Section 14.13

Lender(s) shall mean the financial institutions extending financing to the owner inrelation to the financing (including any refinancing) of the project (or any partthereof), together with their respective successors and assigns

Lenders' Representative shall mean any person engaged by any Lender inconnection with the transactions contemplated hereby whose duties may include: (a)examination of the design and engineering of the equipment to be supplied to thecountry and (b) co" nfirmation of the information contained in each of the proeressReports and any Payment Documentation and the Taking Over Certificate.

Major Equipment shall mean the portion of the Works, as described in theSpecifications as major equipment

Materials shall mean things of all kinds (other than plant) to be provided andinc.rporatcd in thc works by the Supply contractor, including thc supply-only items(if any), which are to be supplied by the Supply Contractor as specified in theContract-

Notice to commence shall mean the written notice issued to the Supply contractor

by I'hc (Jwncr's ltcprcscn laLi vc as scl lirr11 lu Scction 9.:1, , in thc lirrnr scl lirlh inSchedule 11 (Form of Notice to Commence)

o&M contract shall mctm lhe agreement so entitled to te entered into between theOwner and the Operator for the operation and maintenance of the Facility

operator shall mean the contractor appointed pursuant to the o&M contract for theoperation and maintenznce of the Facililr

ownerf s Documents shall mean all documents issued by the owner to othercontractors, or documents submitted by those contractors to the owner, or the proiectDocuments, which pertain to the execution of the works under the project.

Owner's Representative shall have the meaning as per Section 3.4.

Parties shall mean collectively the Owner and the Supply Contractor

Party shall mean the Owner or the Supply Contractor, as the case may be

Payment Documentation shall bear the meaning ascribed thereto in section g.3.3.Person shall mean any individual, corporation, company, partnership joint venture,association, trust, unincorporated organization or Government Authority.

Plant shall mean new and clean machinery and apparafus intended to form orforming part of the works including the supply-only items (if any), which are to besupplied by the Supply Contractor as specified in the Contract

Power Purchaser shall mean National rransmission & Despatch company (Throughcentral Power Purchasing Agency) on behalf of Ex-wApDA Distributioncompanies), a public limited company incorporated under the laws of pakistan, withits principal offrce at WAPDA House, Shahrah-e-euaid-e-Azam, Lahore, pakistan.Power Purchaser's Interconnection Facilities shall mean the facilities to beprovided by the Power Purchaser for receiving power produced by the Facility.

PPA Relevant Provisions or Power purchase Agreement shall mean the relevantprovisions of the power purchase agreement dated 66 september 2007 entered intobetween the owner and the Power purchaier, as may be amended from time to time,which are contained in Schedule 7 (ppA Relevant provisions).

Programme shall bear the meaning ascribed thereto in Section 4.14

Progress Reports shall mean the progress reports to be delivered by SupplyContractor on a monthly basis as set forth in Seution 4.4 antt in {.hc lorm sct forth irrSchedule 9 @orm of Progress Reports)

F'ject shall mean the Facility tq be constl'lrcted on the Site in thc country.

h'oJcct Docurucuts shall ritcult dre; PPA Rclcvaul Provisions, thu O&Iv{ Conlr:aut alilthe Fuel Supply Agreement

Project schedule shall mean the time frame as per schedulo 3 (projoct schodulo).Prudent Electrical Practices shall mean the use of equipment, practices or methods,

as required to comply with applicable industry cooeq s-tandards, and regulations inthe Country: (a) to protect Power purchaser's system, employees, agents, andcustomers from malfunction occurring at the project and (b) to protect the Frolect ano

ffiflH:r;

":H*.#?;:T:T.^,

rrnders and agents at the project r,o,q.

malfunctions occurring on the Grid

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Prudent Utility Practices shall mean those practices, methods, and equipment, ineffect at the time of performance of the Works, that are commonly used on aninternational basis by the electric utility industry having regard to engineering andoperational considerations in the country to engineer, design and manufacture,operate and maintain electric power generating equipment lawfully and with safety,dependability, efficiency and economy.

Public Sector Entity shall mean (a) the federal government, the provincial

govemment, any subdivision of either, or any local govemmental authority with

jurisdiction over the owner, the Project, or any part thereof, or (b) any depanment,

authority, instrumentality, agency, or judicial body of the federal govemment, theprovincial govemment or any such local govemmental authority, (c) courts andtribunals in the country, and (d) any commission or independent regulatory agency or

body havingjurisdiction over the Owner, the project or any part thereof

Receiving Party shall bear the meaning ascribed thereto in Section 24.1

Relevant Authority shall mean the department, authority, instrumentality, agency or

other relevant entity from which a consent is to be obtained and any authority, body

or other Person having jurisdiction under the Applicable Laws of the country with

respect to the Project, as the case may be

Scheduled raking over Date shall mean March 3l't, 2009, as may be modified in

accordance with this Contract

site shall mean the area of land provided by owner, on which the Facility is to be

built and installed, as clearly described and outlined in Schedule 4 (Site Details)

specifications shall mean the specifications for the design, engineering, manufacture,

piocurcmcnt and supply of the Facility set forth in Schedule I (Technical

Specilications of Facility) and Schedule 2 (Technical Specifications)

Specified Consent shall bear the meaning ascribed thereto in the Implementation

Agreement

Subcontractor shall mean any subcontractor of the Supply contractor, manufacturer

or supplier for a part of the works or any person to whom a part of the works has

been subcontracted in accordance with Section 20.2, and the legal successors in title

to such Person, but not anv assignee of such person

supply contractor shall bear thc nrcani.g ascribetl tleretu in the Re.:itals

supply contractorrs Documents shall mean all project documents, which pertain to

the desipgr, engineering, procurcment, rnanufacture and supply of equipment for the

Project

supply contractor's Equipment shall mean all machinery apparatus and other

things required for the execution and completion of the Works and the remedying of

any Defects or Deficiencies, but does not include plant, Materiiti, Major Equipment

or other things intended to form or forming part of the project +"

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Taking over shall bear the meaning ascribed thereto in the construction contract.Taking Over Certificate shall bear the meaning ascribed thereto in the ConstructionContract

Taking over Date shall mean the date of Taking over, as stated in the Taking overCertificate

Temporary works shall mean all temporary works of every kind required for theexecution and completion of the Work and the remedying of any defects

Time for completion shall mean the time permitted herein for achieving the Takingover which raking over shall be achieved on or prior to the Scheduled iaking overDate

Warranty shall mean the warranty set forth in Section 14

Warranty Period shall mean the period commencing on Taking Over Date 1asprovided for in the Taking over cerrificate) and shall tirminate twilve (12) monthsthereafter The warranty Period for subsequent adjustments and replacement partsshall sfart anew for a 12 months In any event the warranfy period shall end latestforty two (42) months after Commencement Date.

Works shall mean design, engineering, procurement, manufacturing, factory testing,supply and delivery of Plant, Materials, equipment (including Major Equipment), andother services to be provided by the Supply contractor in accordance with thisContract

Scopn OF CoNTRAcT

For and in consideration of the amounts to be paid to Supply contractor by owner ashereinafter set forth, and subject to the terms and conditions contained heriin, supplycontractor agrees to provide, furnish and perform the worh as required uy aJ inaccordance with the following documents which have been concurrently identified bythe Parties hereto and made part hereof as if fully set forth herein:

(a) This Contract including any amendments or Change Orders hereto; and

O) Tiie Scirerjtiies atlacired hereto.

Tlte docutticrrls lorrlilg lhr: Currtract arc tu bc kkcn as rnutually explanalory gf orrcanother If there is an ambiguity or discrepancy, the owner's Repiesentative shallissue the oecessary clarifications or instructions to the supply contractor and theabovementioned order of the documents shall also be the oiiei of their precedence-The foregoing documents shall not be altered without the prio-nut,ul *.itt*

3 Rnspot{srnrr,lTlEs oF OwNER

3.1 OwNER'sGENERALRESPoNSTBTLTTTE

The Owner shall pay the Supply Contractor for the Contract Price and provide therelevant payment security in accordance with Section 8 The Owner recognizes andaclcnowledges the duty to co-operate with the Supply contractor, and agrees not tounreasonably interfere with the Supply contractor's agent, employees orSubcontractors during the performance ofthis Contract except as provided herein andnot to unreasonably withhold documents necessary for payments

3.2 PERMITS LICENSES oR APPROVALS

The Owner shall obtain all necessary Consents, permits, licenses or approvals as perSchedule 16 (Permits and Consents from Relevant Governmental Authorities)attached hereto The Supply Contractor shall, at the request and cost of the Owner,provide reasonable assistance in applying for Consents, permits, licenses or approvalswhich are required for any part of the Works and required to be obtained by and areapplicable to the Owner for delivery of Plant, Materials and the Supply Contractor'sEquipment, and for the completion of the works as specifically set out in thisContract Such requests may also include requests for ihe Ownlr's assistance inappllng for any necessary govemment consent to the re_export of the SupplyContractor's Equipment when it is removed from the Site It is ttre sole responsibiiity

of the Supply Contractor to timely request such assistance and to provide allnecessary documentation and other information to facilitate the orovision of suchassistance The Supply Contractor shall be responsible for all permits, licenses,approvals and consents outside the county, if any, relating to the works, equipment(including Major Equipment), plant and Materials

3.4.1 Appointment of Owner,s Representative

' The Owner will appoint a representative (the Owner's Representative) that shallserve as the Owner's interface with the Supply Contractor with respect to all aspects

of the performance of the work under the contract The ownei may replaci theOwner's Representative at any time (and from time to time) with prior written notice

to the Supply Ccntnctcr

3.4.2 Duty of Owner's Representative

inspection, examination, testing, consent, approval or similar act by the Owner'sRepresentative (including the absence of disapproval) shall not relieve the SupplyContractor from any duty, responsibility or obligation, including responsibility for hisacts, errors, omissions, discrepancies and noncompliance with Section 5.3, 5.4 andother terms of this Contract The Owner's Representative is the Supply Contractor'spnmary point of contact with the Owner in relation to performance of the Works,under the Contract.

The Owner's Representative shall copy to the Owner all communications given orreceived by him in accordance with the Contract

3.4.3 Owner's Representative Authorify to Delegate

The Owner's Representative may from time to time delegate any of his duties toassistants, and may at any time revoke such delegation Any such delegation orrevocation shall be in writing and shall not take effect until it has been delivered tothe Supply Contractor and to the Owner Any determination, instruction, inspection,examination, testing, consent, approval or similar act to any such assistant of theOwner's Representative shall have the same effect as though it had been the act oftheOwner' s Representative, however:

(a) any failure to disapprove any Plant, Materials, design or worknanship shall

not prejudice the right of the Owner's Representativ€ to reject such Plant,Materials, design or workmanship; and

O) if the Supply Contractor quesfions any determination or instruction of an

assistant of the Owner's Representative, the Supply Contractor may refer thematter to the Owner's Representative who shall confirm, reverse or vary suchdetermination or instruction

3.4.4 Owner's Responsibility

The Owner shall cause the Owner's Representative to perform every act requiredunder the Contract to be performed by the Owner's Representative, and any obligationstated under the Contract to be an obligation of the Owner's Representative is deemed

to be an obligation of the Owner The Owner is responsible to the Supply Contractorfor any act, error or omission of the Owner's Representative in the performance ofhis/her duties under the Contract as if they were an act enor or omission of theOwner

3.4.5 Owner's ltcpresentative's Instructions

The Supply Contractor shall comply with instructions givcn by thc Owner'sRepresentative in accordance with the Contract

3.4.6 Owner's Representative to Attempt Agreement

When the Owner's Representative is required to determine value, Cost or extension ofTime for Completion, he shall consult with the Supply Contractor in an endeavor to

reach agreement If agreement is not achieved, the Owner's Representative shall determine the matter, subject to the right of either Party to seek recourse pursuant to

Section 23

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Owner's Representative's Discretion

Whenever, under the Contract, the Owner's Representative is required to exercisediscretion by: (a) giving a decision, opinion or consent; (b) expressing a satisfaction

or approval; (c) determining value; or (d) otherwise taking action which may affectthe rights and obligations of the Supply Contractor or the Owner, the Owner'sRepresentative shall exercise such discretion fairly and reasonably within the terms ofthe Contract and having regard to all the circumstances

NoTUSED

SUPPLY CONTRACTOR'S GENERAL RESPONSIBILITIES

Supply Contractor shall perform the Works in conformity with the requirements setforth in the Contract, including the Specifications, and in compliance with allApplicable Laws and Applicable Permits and intemationally recognized professionaland industry standards (including Prudent Utility Practices and Prudent ElectricalPractices), as defined in the Contract and the hoject Documents The SupplyContractor shall further design, engineer, manufacture and supply the equipment andcomplete the Works in a manner consistent with the requirements of, and so as toenable the Owner to comply with its obligations under, the Power PurchaseAgreement The Owner is relying upon the experfise of the Supply Contractor todesign, engineer, manufacture and supply the equipment and complete the Works forthe Project in accordance with the terms of this Contract The Supply Contractoracknowledges the Owner's reliance upon the expertise of the Supply Contractor as setforth in this Section

The Works as completed by the Supply Contractor shall be wholly in accordancewith the Contract and generally recognized professional and industry standards(including Prudent Utility Practices and Prudent Electrical Practices), as defined inthe Contract and the Project Documents The Works shall include any work which isnecessary to satisf' the Specifications provided herein and the Schedule attached, or

is implied W the Confo:act, or arises from any obligation of the Supply Contractor,and all Works not mentioned in the Contract but which may be infened from theConffact to be necessary for stability, completion, and the safe, reliable and efficient

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opciation of the Works and tlie F.,.iiiiy

The Supply Contractol shall desigri, cxcsute urrtl currrplete l"hc Works, irrclurlirrgproviding Construction Documents, within the Time for Completion, and shallremedy any Defects or Deficiencies that may arise wiftin tle Warranty Periodirrcspcctive of whether such Def€cts or Deficiencies catl be remedied dur-ing theWarranty Period The Supply Contractor shall provide Plant, Materials, SupplyContractor's Equipment and all other things, whether of a temporary or permanentnahre, required in and for such design, execution, completion and remedfng ofDefects or Deficiencies

The Supply Contractor shall, upon the Owner's request submit such details of Works

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as reasonably required by the Owner

4.1.5 Any approval or failure by the Owner's Representative to disapprove or object to any

matter or thing shall not prejudice his power subsequently to take action under theContract in connection therewith

4.1.6 The design, scope and specification ofthe Supply Contractor's interconnection works

are set out in Schedule 7 (PpA Relevant provisions)

4'1.7 The Supply contractor shall provide the owner with the data necessary for

construction of the Power Purchaser's lnterconnection Facilities as oer Schedule 7(PPA Relevant Provisions) within thirty (30) days of Commencemint Date Based

on this information, Owner will instruct Power Purchaser to design, construct andcomplete the Power Purchaser's Lnterconnection Facilities Within 12 days of arequest by the Owner, the Supply Conhactor shall provide all additional informationreasonably requested by the Owner or the Power Purchaser in connection with itscompletion of the Power Purchaser's Interconnection Facilities The timely provision

by the Supply Contractor of such supplemental or additional information shall notmodiff the obligation of the Owner and the Power Purchaser to complete the PowerPurchaser's Interconnection Facilities in a timely manner

4.2 DowNPAYMENTBOND

4.2.1 Within 5 Business Days following issuance of Notice to Commence by the Owner in

terms of Section 9.3, the Supply contractor shall provide the owner with a downpayment guarantee from a first-class European bank which is acceptable to the Owner

in the format stipulated in Schedule 8 @orm of Down payment Bond),corresponding to the amount of the Down payment, guaranteeing the repayment ofthe Down Payment in case of non-shipment by the Supply Contractor due to reasonswithin supply contractor's control (the Down payment Bond) The Down paymentBond shall come into force upon the Supply conhactor's receipt of the DownPayment, as notified by the Supply contractor to the bank issuing thi Down paymentBond, with a copy of the same provided to the Owner The Parties hereby agree that itshall be the Supply Contractor's obligation to immediately notif the bank issuing theDown Payment Bond of the receipt of the Down payment

4'2.2 The Down Payment Bond shall be valid until the Down Payment Bond has been

adjusted to a zero balance in accordance with the provisions tf th" Do*t PaymentBond and Section 4.2.3 or turtil 15 days following last scheduled shipmenf date,whichever is later (the Down Payment Bond Expiry Date) The Supply contractorhereby agrees and undertakes

!o keep the Down Piyment Bond valid and enforceable

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untrl the Down Payment Bond Expiry Datc In the evint itr oo*n paymeut Bondexpires prior to the Down payment tsond Expiry Date, the Supply contractor shallc-xtend thc validity of the Down payment Bond, 30 days prior io its expiry, so as tokeep it valid and enforceable until the Dov*zr Pa;rment Bond Expiry Date ln the event

of failurc bv thc Supply Coutraclor to exlend the valiclity of the Down Payment Bond

in accordance with this section 4.2.2, the owner may encash the Down paymentBond to its full outstanding value

4.2.3 The Down Payment Bond shall be reduced in accordance with the terms thereof

4.2.4 upon expiry, the Down Payment Bond shall be null and void and shall

4.3 NoT USED

4.4 MoNTHLYPRoGREssREPoRTs

4.4.1 Monthly progress reports in writing shall be prepared by Supply contractor and

submitted to Owner's Representative in six (6) copies as set out in Schedule 9 (Form

of Progress Reports) The Supply Contractor shall submit a sample progress reporrfor the Owner's review and approval within thirty (30) days after the CommencementDate The first Progress Report, in the form and manner approved by the owner, shallcover the period up to the end of the calendar month after the Commencement Date.Reports shall be submitted on a monthly basis thereafter, within ten (10) BusinessDays of the next month Reporting shall continue until the Supply Conhactor hascompleted all the work which is known to be outstanding at the completion date asstated in the Taking Over Certificate

4.4.2 Monthly progress reports will contain information and data relatine to the resDective

time period (calendar month) and cumulative data covering the tinie period up to thelast day of the respective month as well as main activifies forecast for the subsequentmonth

4.4,3 Supply contractor will also give access to owner to the followine information:

a) copies of quality assurance documents, test results and certificates of

Materials and Major Equipment, established for the Facility and held by theSupply Contractor;

b) safety statistics, including details of any hazardous incidents and activities

relating to environmental aspects and public relations;

c) comparisons of actual and planned progress of the works, with details of any

aspects which may jeopardize the completion in accordance with thlProgramme and the Contract, and the measures being (or to be) adopted toovercome such aspects;

d) survey of the unsolved claims or disputes that involve requests for extension

to the Time for completion or adjustment to any other date or milestone setforth in this contract or increase in the contract price includine chaneeOrders;

e) actual prqiect :if.raticn, descirptions of progress, including each stage of

design, procurement manufacture testing and delivery;

D charts showing the stafus of construction Documents, purchase orders and

manufacture:

g) for the manufacture of each Major Equipment, the name of manufacturer

manufacfurer's location, percentage progress and the actual or expected dates

of commencement of manufacture, the supply contractor's inspections, testsand delivery; and

h) any supporting information and documentary evidence in respect of any

requests for owner's consent for extension to the Time for completion or

adjustment to any other date or milestone set forth in this Contract or increase

in the Contract Price

4 5 1 The Supply Contractor shall after sixty (60) days following the Effective Date submit

a report to the Owner detailing the consents required pursuant to the Project

Documents which are applicable to the Supply Contractor and which have been

obtained or which have been applied for but not yet issued along with a plan

reasonably acceptable to the owner for obtaining such consents and an estimate of

the time within which such consents may be obtained,

The Supply contractor shall assist the owner and provide all such information to the

owner, to the extent it is available with the Supply contractor, which the owner

requires for obtaining consents (including consents) relating to the works and this

contract The Supply contractor shall promptly notifu the owner in a timely manner

upon becoming aware of any changes in the information to be provided to the owner

pursuant to this Contract

SUPPLY CONTRACTOR'S LICENSES

Supply contractor shall be responsible for obtaining all Govemmental Approvals

required to perform any portion of the Work to be performed outside of Country

4.5.2

4.7 CoNTRAcToR's REPRESENTATIIT

Supply contractor shall appoint and maintain with the consent of the owner, within

fourteen (14) days of the Effective Date, a representative (the contractor's

Representative), that shall serve as the supply contractor's interface with the owner

with respect to all aspects of the performance of the work under this contract Supply

Contractor sball not replace contractor's Representative without the prior written

consent of the Owner

The contractor's Representative shall be an experienced and capable person and a full

time employee of the Supply contractor dedicated to directing the preparation of the

Constuction Docunents and the execution of the Works

The contractor's Representative will be the owner's primary point of contact with

Supply contractor in relation to performance of the work under this contract

'l)rc

Supply contractor is fulty and solely responsibli'to the owner for any acr,omission or crror of the Contractor's Representative as if they were an act, errr.n or

omission ol'the Supply Contractor

Exccpt to the extent otherwise notified by the Supply contractor from time to time,

the Contactor's Representative has fuIl authority to act on behalf of the Supply

contractor for all purposes in connection with the contract, including, inter iiia,

review and approval of drawing and invoices, requests for change orders, issuance

of certificates, decisions, instructions and orders, reporting and advisory matters

specified in the contract to be carried out by the supply contractor, prorrided

however, the contractor's Representative has no authority to amend ot rnodig, th"

provisions of the contract unless the Supply contractor has given written notice to

the owner of the contractor's Representative express authority Except as otn"*, l,

stated in the Contract, the Contractor's Representative shall receive (on behalf of theSupply Contractor) all notices, instructions, consents, approvals, certificates,determinations and other communications under the Contract.

4.7.6 Whenever the Supply Contractor's Representative is to be absent (provided that such

absence shall not exceed 45 days), a suitable replacement person shall be appointed

as the Supply Contractor's Representative with the prior approval of the Owner'sRepresentative

4.7.7 Subject to the Owner's consent, the Contractor's Representative may from time to

time delegate any of his duties, powers, functions and authorities to any competentperson, and may at any time revoke such delegation Any such delegation orrevocation shall be in writing and shall not take effect until the Owner has receivedprior notice signed by the Contractor's Representative, speci$ing the powers,functions, duties and authorities being delegated or revoked Any determination,instruction, inspecfion., examination, testing, consent, approval or similar act to anysuch assistant of the Contractor's Representative shall have the same effect as though

it had been the act of the Contrector's Representative The Contractor'sRepresentative and such persons shall be fluent in the language, written and verbal,for day-to-day communications

The Construction Documents shall be in the custody and care of the SupplyContractor The Supply Contractor shall provide sufficient number of copies ofConstruction Documents for the use of the Owner's Representative, ConstructionContractor or as specified in the Specifications

4.9 1 The Supply Contractor shall be responsible for the coordination and proper execution

of the Works ensuring that such Work is proceeding according Jo thb Contract TheSupply Contractor shall also be responsible for coordination with other contractors tothe extent specified in the Specifications

4.9.2 The Supply Contractor shall obtain coordinate and submit to the Owner's

Representative for his information all details from Subcontractors and suppliers ofMajor Equipment

4.10 Serrruc Our

'l'he Supply (,)ontractor

shall set out the Works in relation to original points, lines andlevels of reference specified in the Specifications or, if not specified, given by theOwner's Representative in writing The Supply Contractor shall correct, at his cost,any ernrr in the positions, Ievels, dimensions or aligrrment oi the Works

4.IL OUALITYASSURANCE AND OUALITY CONTRoL (OI,/OC)

4.ll.l Unless otherwise stated in this Contract, the Supply Contractor shall institute a

quality assurance system to demonskate compliance with the requirements of theContract Such system shall be in accordance with the details stated in the Contractincluding, without limitation, as provided in the Specifications and Schedule 14

\,- ;

(Quality Assurance / Quality Control) Compliance with the quality assurancesystem shall not relieve the Supply Contractor of his duties, obligations orresponsibilities provided hereunder.

4.11.2 Subject to the more particular requirements of as provided in the Specifications,

details of all QA/QC proce&res and compliance documents shall be submitted to theOwner's Representative for his information before each design and execution stage iscommenced When any QA/QC document is issued to the Owner's Representative, itshall be accompanied by the signed qualify statements for such document, inaccordance with the details stated in the Contract The Owner's Representative shall

be entitled to audit any aspect of the system and require corrective action to be taken.4.12 SITE Der.q,

A l \ 1

4 Lz.- | The owner shall have made available to the supply contractor prior to the Effective

Date, the data available to the Owner on hydrological and sub-surface conditions at,under and around the Site, and studies on environmental impact which have beenobtained by or on behalf of the Owner from investigations of the Works, whichinformation is described in Schedule l8 (Technical Studies) The Supply Contractorshall be solely responsible for interpreting all data, and the Owner makes no warranty

or representation that the information described in Schedule 18 (Technical studies)

is complete or exhaustive

The Supply Contractor shall be deemed to have obtained all necessary information as

to risks, contingencies and all other circumstances, which may influence or affect theContract Price or the Programme beforehand It is hereby acknowledged by theSupply Contractor that the Owner has already submitted to the Supply Contractor thefinal environmental impact assessment (Final EIA Report) prepared by NESPAK, asreferred in Schedule 18 (Iechnical Studies) [n the event the Final EIA Report is'significantly approved'

by the Relevant Authority, the Supply Contractor shall not

be entitled to any Change Oidei' llowever, if the Final ELA Report id disapproved or

is 'significantly amended'by the Relevant Authority, the Supply Contractor shall beentitled to a Change Order in accordance with Section 10 For the purposes of thisSection 4.12.2, the Parties shall consult each other and mutually agree on whether theFinal EIA Report has been 'significantly approved' or 'significantly amended' by the4.12.2

Relevant Authority

4.I3 MATTERS AFFECTING THE EXTENSIoN oF THE woRK

The Supply pgntractor shall be dpemed to bave satisfied himself as to the correctnessand sufficiency of the Contract Price Unless otherwise stated in the Contract, theContract Price shall cover all his obligations under the Contract and all thingsn€ccssary for the proper design, execution and completion of the Works and theremedying of any Defects or Deficiencies as required by the Contract

4.14.1 Within forty five (45) days after Effective Date the Supply Contractor shall prepare

and submit to the Owner for his approval a programme of work (the programme)setting out in such manner and detail as the owner may reasonably require, thesequence in which and dates, by which the supply contractor proposes to perform hisobligations under this contract and the date by which the supply contractor

reasonably requires that the Owner should have provided any further drawings orinformation or taken any other action to permit the Supply Contractor to perform hisobligations, however, such dates shall not deviate from the durations and milestonesestablished in the preliminary programme set out in Schedule 3 (Project Schedule)attached hereto and shall be in accordance with the Specifications provided howeverthat minor deviations from the milestones and durations stated in the preliminaryprogramme shall be permitted at the Owner's consent, to the extent that such minordeviations in no manner effect the Scheduled Taking Over Date or the Contract Price.4.14.2 If the Programme so submitted by the Supply Contractor adheres to the dates and

periods specified in this Contract and is otherwise reasonable, the Owner shallapprove it

4.14.3 The Programme shall include the following:

(a) the order in which the Supply Contractor proposes to carry out the Works

(including each stage ofdesign, procurement, manufacture, testing anddeliveryto the Country); and

(b) the times when submissions and approvals or consents by the Owner's

Representative are required, as indicated in the Specification

4.14'4 T\e Programme shall include all major events and activities in the production of

Construction Documents and the periods for the pre-construction reviews underSection 5.2

4.14.5 T"l'te Supply contractor shall, whenever required by the ouner's Representative,

provide in writing, for information, a general description of the arrangements andmethods which the supply contractor proposes to adopt for the execution of theworks No significant alteration to the programme, or to such arrangements andmethods, shall' be made vrithout intorming the Owner's Representative' and ariy 'alterations made shall reflect the requirement for coordination of the Works with theactions and obligations of the owner and the works to be carried out by othercontractors of the Owner pertaining to the Project If any alteration affects any suchactions, obligations or the works, it shall not be made without the prior approval ofthe Owner's Representative If the progress of the Works does not conform to theProgramme, the Owner's Representative may instruct the Supply Contractor to revisethe Programme, showing the modifications necessary to achieve completion withinthe Time for Completion

4.14.6 Progress reports coverirrg the execution of the Supply Contractor's obligations under

this Contract shall be submitted on a monthly basis to the Owner according to aprocedure to be agreed upon such reports shall emphasize any delay in theProgramme

4.I5 NoT USED

4.16 SAFETYPRECAUTIoNS

The Supply Contractor shall comply with all applicable safegr laws and regulations inhis design, manufacture and procurement of the Works, including, without limitation,Applicable Laws and Applicable Permits and the most recent revisions of standards

published by the lntemational Organization for Standardization for the protection ofthe environment and human health and safetv.

4.I7 SUPPLYCONTRACTOR'SEoUIPMENT

Unless otherwise stated, the Supply Contractor shall provide highly specializedequipments, if any, as are required to complete the Works and upon completion of therelevant part of the Works, the Supply Contractor shall be entitled to remove all theSupply Contractor's Equipment necessary to complete such part of the Works

4.T8 NoTUSED

4.I9 DOCUMENTATION AND RIGHT oF AUDIT

4.19.1 Where the Supply Contractor is required to perform any work outside the scope of

works, on a unit price, cost plus or time and material basis, the supply contractorshall prove the prices, expenses, costs etc for the purpose of the Owner,s auditingand veri$ing

4.19.2 The Supply Contractor shall provide the Owner with the above-mentioned documents

in computer readable format, if available, as well as an original hard copy TheOwner's Representative shall have the right to reproduce any of the aforesaiddocuments, shall be allowed to interview any of the Supply contractor's employeesand shall be provided adequate and appropriate work space in order to conduct audits

in compliance with this audit provision Any adjustrnents and,/or payments whichmust be made as a result of any such audit or inspection of the Supply Contractor'sinvoices and./or records shall be made within a reasonable amount of time (not toexceed thirfy (30) days) from presentation of the owner's findings to the supplyContractor The Supply Contractor will not charge for its costs incurred by it which_ are associated with the audit,

4.20 LENDERREoUIREMENTS

4.20.1 Amendment

The supply contractor shall cooperate with the owner in the negotiation andexecution of any reasonable amendment to or modification of the contact required

by any Lenders or other entity providing financing for the Contract, Works, project

or Plant Save and except that neither the Supply contractor's financial interest nort}e Sche.duled ralcing ovcr Date shall t'e in:pacted by the Lencers asking for furtherrequirements over and abovc those specified by the Contract

4.20.2 Not Used

4,20.3 Cooperation

The Supply contractor shall also cooperate with the owner in the negotiation andexecution with any Lenders or other entity providing financing for the contracqworks, Project or Plant, of a reasonable consent to assignment of the contract (whichmay' among other things, contain notice requirements and extended cure provisionsfor such Lenders or other entity in the event of the owner default) and will provide areasonable opinion ofcounsel, in each case, to the extent required by such Lenders or

other entity There will be no separate costs claimed for the aforesaid cooperation bythe Supply Contractor and./or for extending the cure period.

4.20.4 Information for Lenders and Lenders Representative

The Supply contractor shall provide at the owner's or Lenders, expense suchdocuments and other technical assistance as Lenders may reasonably request inconnection with obtaining financing for the Project During the performance of theWorks, the Supply Contractor shall make available to ihe Linders informationrelating to the status of the Works including information relating to the design,engineering and supply of equipment for the Project and such other matters as the

I enders may reasonably request The Lenders and their engineers and consultants,including the Lenders' Representative, shall have the right to participate in allinspections conducted by the Owner under this Contract The Owner shall cause allsuch persons to observe the Supply Contractor's security and safefy regulations at allapplicable locations and to refrain from interfering with the Supply Contractor'sperformance of the Works

4.20.5 Direct Agreement with Lenders

The Supply Contractor acknowledges that the Owner will finance the development ofthe works by way ofproject financing techniques supported by various Lenders TheSupply Confactor will consent to the assignment of ihe Ownels rights under variousagreements, including this Contract and the Down Payment Bond and enter into thedirect agreement which will include cure, step-in and novation rights and any otherprovisions reasonably required by any Lender in relation to a projeit of this type.The Parties agree that, subject to the foregoing, such direct agreement will in nomanner alter, amend or modifr the Supply Contractor's rights and obligations underthis Contract without the Supply Conhactor's consent

4.20.6 Security over Insurance proceeds

The Supply contractor acknowledges that the owner may, at the owner's solediscretion, enter into security arrangements with any Lender in respect of theproceeds payable under policies of insurance required to be obtained and maintained

by the Owner under the Power Purchase Agreement including arranglng for proceeds

of such policies of insurance to be paid into accounts secured to the Lenders as

collateral for the owner's indebtedness The supply contractor hereby consents tosuch arrangements

4.20.7 Cooperation with the Lenders and their advisers

(a) The Supply Contractor shall, if required by the Lenders, liaise and co_

operate with any Lender (and its representatives and advisers) and provide itwith copies of all notices, reports and other documents it providis to theowner hereunder, together with all information in connection with the workswhich it may reasonably require

In addirion, the Supply Contractor shall permit any Irnder and itsrepresentatives and advisers access to any part of the Site in the same manner

as if the Lender and its representatives and advisers were part of the owner's

(b)

personnel under this Contract.

4.2I OTHER SUPPLY CoNTRACTOR'S oBLIGATIONS

4.21.1 ln performing its obligations under the Contract, the Supply Contractor shall establish

and maintain good, prudent and intemationally acceptable financial andadministrative practices, standards, procedures and controls

4.21.2 Supply Contractor shall perform all of its other obligations under the Contract The

Supply Contractor shall perform all such work not specifically mentioned in theContract but which can be reasonably inferred from the Contract as being required forthe proper performance of the Work as if performance of such work were ixpresslymentioned in the Conhact

4.21.3 supply contractor shall be solely and fully responsible for all acts, deeds and

omissions of its representatives, employees, Subcontractors, vendors, suppliers andother personnel engaged by the Supply contractor for the performance of work.4.21.4 Supply Contractor shall procure and transfer to the Owner rights to all patents,

copyrights, licenses, trademarks, and all such other similar rights which are required

by the owner for operating and using various tecbnologies, which have beenprovided by the Supply Contractor as part of Works, in the project

4.21.5 Supply Contractor shall provide operating manuals, user guides and other relevant

information in relation to equipment supplied and work performed in respect of theProject in accordance with Schedule 15 (Final Documentation)

5.1 DESIGN oF THE WoRKS

5 1 1 The supply contractor shall obtain the approval of the owner and the Lenders on the

design of the works but shall remain liable and be responsible for the design of theworks The design of the works shall be prepared by qualified designers-who areengineers or other professionals who satis$r the criteria (if any) stated in thespecifications and Schedules For each part of the works, the prior approval of theOwner's Representative shall be obtained as to the designer and design Subcontractor,

if they are not named as such in the Contract Nothing contained in ihe Contract shallcr.'aLc arry suniracluai relationship or professional obirgations behi.een any desrgnerand/or a design Subcontractor and the Owner

5.1.2 The Supply Conbactor holds himself, his dcsigners and design Subconrractors as

having the experiance and capability necessary for the design of the works TheSupply Contractor undertakes that t}e designers shnll he availahle to aftenddiscussions with thc Owner's Representative at all reasonable tirnes dur.ins tfueContract Period

The sup.ply contractor shall lrear rhe cost for modifications or replacements ofequipmcnt that may be necessitated for reasons attributable to the supply contractorand as a result of the supply conhactor deficiency in the totality and-accuracy of

" 5 1 , 3

5.2 CONSTRUCTIONDOCUMENTS

5.2.1 The Supply Contractor shall prepare Construction Documents in suffrcient detail to

satisfu all Applicable Laws, Applicable Permits and all regulatory approvals, toprovide suppliers and Construction Contractor suffrcient instruction to execute,construct and commission the Works, Plant and Project and to describe the operation

of the completed Works, Plant and Project The Owner's Representative shall havethe right to review and inspect all manufacturing documents the Owner'sRepresentative feels necessary provided and to the extent that the manufacturers arewilling to provide the same The Supply Contractor shall make best efforts to obtainall the documents that the Owner's Representative may require It is made clear thatcertain aspects of the manufacfuring documents may be trade secrets and confidential

to the individual component manufacturers and the Owner's Representative shallhave no right to inspect or review the same It is made clear that nothing in the abovewill diminish the Supply Contractor's responsibility to provide the Owner'sRepresentative with sufficient information to enable the Owner's Representative tosatisff themselves regarding the manufacturer's equipment

5.2.2 Each of the construction Documents shall, when considered ready for use, be

submitted to the Owner's Representative for pre-construction review during the

"review period" All such documentation shall be prepared, submitted, reviewed andapproved (where required) in compliance with Specifications

5.2'3 In this Section, "review period" means the period required by the owner's

Representative, which shall not exceed fourteen (14) days, calculated from the date

on which the Owner's Representative receives a proposed Construction Documentand the Supply Contractor's notice that it is considered ready, both for a pre-construction review in accordance with this Section and for use If the Owner'sRepresentative, within such review period, notifies the Supply contractor that aproposed construction Document fails (to the extent stated) to comply with theOwner's Requirements, it shall be rectified resubmitted and reviewed in accordancelrith this Section at the Supply Contractor's Cost tn the event that no consent is given

or objection raised by the owner's Representative within the review period, theSupply Contractor shall notifr the Owner to seek its consent within an additionalperiod of seven (7) days ofreceipt of such notice and upon the expiry of such sevendays, unless an objection is raised by the Owner, the consent shall be deemed to havebeen given

5.2.4 Foi each part of the Works, and except to the exicnt that the prior consent of the

Owner's Representative shall have been obtained if the Construction Contractorwishes to modify any Approved Design or document which has previously beensubmitted for strch pre-constnlction revie% the Construction Contractor shallimmediately notify thc Owner's Representative who shall review snch modificationsand amendments wrthrn l0 lJuslness Days ot therr recerpt and rf aggeed by theOwner's Representative, the Owner's Representative shall subsequently immediatelysubmit the same to the supply contractor's Representative The Supply contractor'sRepresentative shall subsequently submit revised documents to the owner'sRepresentative for pre-construction review

d

-necessary for carrying out the works, the Supply contractor shall upon receiving theowner's Representative's instmctions prepare such construction Documents.

5.2.6 Errors, omissions, ambiguities, inconsistencies, inadequacies and other defects in the

construction Documents or arising therefrom shall be rectified by the SupplyContractor at his sole cost and risk

NO RELIEF FR0M LIABILITY

Neither:

(a) the examination of or the giving or withholding of consent to any

construction Documents under this section or the making of objections,representations, comments or suggestions, or failure to make the same inrelation to the said construction Documents or any other aspect of the worksunless changes in the Approved Design are imposed on the SupplyContractor by the Owner and/or Lenders; nor

(b) any other act or omission of the owner or the owner's Represenlative or of

any other Person acting or purporting to act on their behalfin relation to anyaspect of the Works (including without limitation the issue of any pal,rnentcertificate or confiact completion certificate or Taking over certificate theissue of any order or instruction pursuant to the Contract)

shall relieve the supply contractor in whole or in part of any duty, obligation orliability undertaken by the Supply contractor in relation to the works whether underthis confact or otherwise, or diminish or vary any such duty, obligation or liability,whether by way of contribution or otherwise Neither the owner nor the owner'sRepresentative shall be under any duty or obligafion to wam or notify the Supplycontractor of the breach of any duty or obligation owed by the Supply contractorhereunder or otherwise in relation to the works of which the ownei oithe owner'sRepresentative are or should be aware

Neither any consent to construction Documents by the owner's Representative underthis _Section nor the imposition pursuant to Section l0 of any modification as acondition ofsuch consent nor the consent to consfouction Documents which does notcomply with or is inconsistent with the specifications shall be capable of constituting

a Change Order pursuant to Section l0 and no additiqnal payment of any lnnd orextension of rime for completion shall be awarded in respsit of the time taken for,

or other circumstances whatsoever surrounding, consent being given or withheld inrelation to construction Documents by the owner's Representative or the subsequentcarrying out of the works, provided that any imposifion pursuant to Section 5.2 ofany modification as a condition of such consent which also modifies thespcr,ificati"s uuy be a ch:urge ordcr pursuant to section l0 with the owner'sconsent

5.5 SUPPLYCoNTRAcToR,sUNDERTAKING

The Supply Contractor hereby undertakes and

Construction Documents, the execution and the warrants that the desigrr, thecompleted Works shall be in

5.3

5.4

accordance with the following, in order of priority:

(a) the Applicable Laws of the Country, and

(b) the documents forming the Contract, as altered or modified by Change

TECHNICAL STANDARDS AND REGULATIONS

The design, the Construction Documents, the execution and the completed Worksshall comply with the country's national specifications, technical standards, building,construction and environmental regulations, regulations applicable to the works andthe product being produced fiom the Works, and the standards specified in theSpecifications and Schedules and as defined by Applicable Laws and ApplicablePermits as well as the technical specification stated in the Power PurchaseAgreement References in the Contract to such specifications and other matters shall

be understood to be references to the edition applicable on the Effective Date, unlessexplicitly stated otherwise herein Ifsubstantially changed or new applicable nationalspecifications, technical standards, or Applicable Laws or Applicable permits thatdirectly affect the supply Contractor's lawful design, manufacture or execution of theworks are promulgated or enacted after the Effective Date, and such changes wouldnot reasonably have been in the contemplation ofan experienced contractor as of theEffective Date, the suppiy contrasior shall submit proposals for'compliahce tb rheOwner's Representative In the event that the Owner's Representative determines thatsuch proposals consfitute a change order, he shall then initiate a change order inaccordance with Section 10

SAMPLES

The conskuction Documents shall include the following samples and any relevantinformation, which the supply contractor shall submit for pre-construction review bythe Owner's Representafive in accordanfe wit.h Section 5.2:

(a) manufacturer's standard samples of Materials and material mill test

cerfificates:

(b) samples (if any) specified in the Specifications; and

(c) additional samples instructed by the owner's Representative under section l0

and any other samples required pursuant to the power purchase Agreement.Each sample shall be labeled as to origin and intended use in the Works

s.6

5.7

5.8 NoTUSED

6

NoTUSED

Sr,q.rn ANt LAson

6.1 ENGAGEMEI.{T oF STAFF AND LABOR

The Supply Contractor shall make his own arrangements for the engagement of all hisstaff and labor

RATES OF WAGES AND CONDITIONS OFLABOR

The Supply Contractor shall pay rates of wages and observe conditions of labor notless favorable than those established for the trade or industry where the Works arebeing carried out Ifno such established rates or conditions are applicable, the SupplyContractor shall pay rates ofwages and observe conditions not less favorable than thegeneral level of wages and conditions observed by others whose trade or industry issimilar to that of the Supply Contractor

PERSONS IN THE SERVICE oF OTHERS

The Supply Contractor shall not recruit, or attempt to recruit, his staff and labor fromamongst persons in the service of the Owner or the Owner's Representative

LABORLAWS

The Supply Contractor shall comply, and shall cause his Subcontractors to comply,with all the relevant labor laws applying to his and their employees, and shall dulypay and afford to them all their legal rights under the laws applicable to the SupplyContractor The Supply Contractor shall require all such employees andSubcontractors to obey all Applicable Laws and regulations conceming safety atwork

6.4

6.5 HEALTHAND SAFETY

Precautions shall be taken by the Supply Contractor to ensure the health and safety ofhis staffand labor The Supply Conaactor agrees to abide by all applicable standardsissued by the World Health Organization

The Supply contractor agrees to comply with any and all safety and healthrequirements established by the Owner and as identified in this Contract

6.6 SUPPLYCONTRACTOR'SSUPERINTENDENCE

The Supply Conkactor shall provide all necessary superintendence during the designand execution of the Works, and as long thereafter as it is necessary for the properfulfilling of the Supply contractor's obligations under the contract Suchsuperintendence shall be given by sufficient and suitably qualified persons havingadequate knowledge of the operations to be carried out (including the methods andtechniques required, the hazards likely to be encountered and methods of preventingaccidents) for the satisfactory and safe execution of the Works i,

I

{

6.7 SUPPLY CONTRACToR'S PERSoNNEL

The Supply contractor shall employ (or cause to be employed) only persons who arecareful and appropriately qualified, skilled and experienced in their respective trades

or occupations The owner's Representative may require the Supply contractor toremove (or cause to be removed) any person employed on the works, including thecontractor's Representative, who in the opinion of the owner's Representative:(a) misconducts andlor persists in any misconduct;

(b) is incompetent or negligent in the performance ofhis duties;

(c) fails to conform with any provisions of the Conract; or

(d) persists in any conduct which is prejudicial to safety, health, or the protection

of the environment

If directed by the owner's Representative, the supply contractor shall then appoint(or cause to be appointed), at the Supply contractor's sole cost, a suitablereplacement person

DrsoRpERLy CoNpucr

The Supply contractor shall at all times take all reasonable precautions to prevent anyunlaw{ul, riotous or disorderly conduct by or amongst his staff and labor ind the staffand labor of his Subcontractors, and to preserve peace and protection of persons andproperfy in the area of the works against such conduct, including offsite locations.Suppl-y CONTRACToR'S ORGANIZATIONAL CHART

None of the individuals identified in the Supply contractor's organizational chart may

be withdrawn from the Project without due notification to the owner and nominatins

All equipment (including Major Equipment) Plant and Materials to be supplied shall

be new and clean and shall be manufactured and all work to be done, includingWorks, shall he executed in the manner set out in the Contract The Works shall beexecuted in a prope.r, workrnanlike and careful manner with properly equippecllacilities and non-hazardous materials, in accordance with internationallyrecognizedgood practice and Prudent Utility Practices and Prudent Electrical Practrces

7.2 DELvERYTERMS

The Supply Contractor shall provide transportation for the all the equipment(including Major Equipment), Plant and Materials relating to Works and shail iimelyarrange and pay for the shipping or other means of transport required for delivery of

- 1 :r-:

I

the equipment (including Major Equipment), plant and Materials relating to works toport of destination in the country which shall be, on a cFR basis as pir Incoterms

2000, such port in the country as determined by the Supply contractor Upondispatch of each shipment of equipment and materiils relating io work, the Supplycontractor shall notifu the owner, within 3 Business Days, of the description of suchequipment and materials, the point and means of dispatch, and the estimated time andpoint of arrival in the country The Supply contractor shall fumish the owner with acopy of all relevant shipping and other documents required for importation of theequipment and materials relating to Work into the Country

!1qq]y coltractor shall provide the documents reasonably required by the owner tofulfill legal requirements of the country in order to assist the owner to expeditiouslyobtain custom clearance and permits, to the extent required for the import andconstruction of the equipment and materials relating to the Works

INSPECTION

The Lenders' Representative, the owner and the owner,s Representative shall beentitled, during manufacture, fabrication and preparation at any places where work isbeing carried out, to inspect, examine and test thi materials ani worlonanship, and tocheck the progress of manufacture, of all the equipment (incruding MajorEquipment), Plant and Materials to be supplied under the iontract provided that thisdoes not interfere or delay with manufacturing or the project Schedule The Supplycontractor shall give them full opportunity to inspect, examine, measure and tesf anywork on Site or wherever carried out The Suppiy contractor shall comply with ttrerequirements of the Specifications

The Supply Contractor shall give due notice to the Owner's Representative wheneversuch work is ready, before packaging The owner's Representative and the Lenders'Representative shall then either carry out the inspection, examination, measurement.,cr testing withcut unreasonable delay, or notify the Supply contractor that it isconsidered unnecess:rrv

The supply contractor shall promptly forward to the owner's Representative dulycertified reports of the tests and copies of the data upon which the reports are basei

when the specified tests have been passed, the owner's Representative shall endorsethe Supply contractor's test certificate or issue a certificate to him to that effect.

REJECTToT

If, as a result of inspection, examination or testing, any plant, Materials, design orworkrnanship has Defects or Deficiencies or otherwise is not in accordance with thecontract, the owner's Representative may reject such plant, Materials, design orworkrnanship and shall notify the supply contractor promptly, stating his "uron The Supply contractor shall then promptly remedy the Defects or Deficiencies andensure that the item complies with the Contract

If the owner's Representative requires such plant, Materials, design or workmanship

to be retested, the tests shall be repeated under the same terms and conditions Ifsuchcorrection and retesting cause the owner to incur additional costs, such costs shall berecoverable- ffom the Supply contractor by the owner, and shall be invoiced by theowner to the Supply contractor who shall pay the invoice within 30 days of itsreceipt

The supply contractor and the owner's Representative shall agree on an appropriatetime to conduct the tests to be repeated.

ln consideration of Contractor's obligations under this Contract, Owner agrees to pay

to Supply Contractor a price of:

EuRo 135,657,400 (One hundred thirty five million, srx hundred fifty seven thousandand four hundred Euro)

(hereinafter referred to as Contract price)

The Contract Price shall be paid in accordance with the regulations in this Sectionand is subject to increases or decreases only for Change Oiders with respect to thework pursuant to section 10 The contract price, idjusted for change orderspursuant to Section l0 hereof- shall be the only and complele compensation for all theWork to be performed by Supply Contractor under this Contract

8.2 TAxEs DUTIES AND FEES

supply contractor shall bear all taxes, duties and fees imposed inside SupplyContractor's country in connection with this Contract Ownei shall bear all other8.

8.3 PAYMENT

8.3.1 ReservationPrice

The reservation price of Euro 1,000,000 (Euro one Million) has been paid by theOwner to the Supply Contractor and shall be adiusted from the Dorvn payment to bepaid to the Supply Contractor by the Owner

8.3.2 l)own Payment

Following issuance of Notice to Commence by the Owner in terms of Section 9.3 andwithin 5 Business Days following the owner's receipt of the Down payment Bondfrom the Supply Contractor,20%o (Twenty Percent) of the Contract Price (the DownPayment) less the reservation price of Euros 1,000,000 (Euros one Million)shall be remitted in Euro to Supply Contractor by telegraphic transfer to the accouni

of Supply Contractor at such bank as Supply Contractor shall designate by writtennotice to Owner

8.3.3 The remaining eighty percent (80%) of the Confract price shall be paid in the

following installments:

(D 75% of the Contract Price shall be payable pro rata shipment against

presentation of the following documents (the payment Documentation):

full set of bill of lading or airway bill;

3 sets of commercial invoices; and

3 sets ofpacking list

(iD

a)b)c)

The last 80% (Eighty Percent) of the contract price shall be payable out of anirrevocable and confirmed sight uc that will be opened by the owner in favor of theSupply contractor within 20 Business Days following issuance of Notice tocommence by the owner, subject to the owner's receipt of the Down payment Bondfrom the supply contractor The uc shall be opened by the rJC Issuing Bank incompliance with schedute 6 @orm of L/c) and shall be confirmed by a first-classluropean bank acceptable to the supply contractor Trans-shipments, partialshipments and shipment of IMDG goods (hazardous goods) on deck shall be allowe$,

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in the L/c Al1 costs in connection with the L/c, including but not limited to, openingand confirming charges shall be to the account of the Owner.

The owner is responsible for the sufficient validitv of the L/c and shall adiust thel-lC in case of any Change Orders or termination

INTEREST

Amounts not paid by either Party to the other when due hereunder shall bear LatePayment Interest" from the date payment was due until the date of payment "LatePayment Interest" shall be a rate per annum equal to four percen t (4%) over therespective one month EuzuBoR starting with the one valid at the due date of thepayment and being renewed every month thereafter until the date ofpaynent

9.1 NoT USED

9.2 NoT USED

9.3 NoTIcEToCOMMENCE

9.3'l The Supply Contractor shall commence the desisn and execution of all Works

immediately after the receipt of a Notice to Coitmence issued bv the Owner's Representative

The commencement date (the Commencement Date) shall be the actual date onwhich each of the following has occurred:

(a) the owner has issued a Notice to commence to the supply conracror;

(b) the Supply contractor has provided to the owner the Down payment Bond

and the Owner has accepted the same;

(c) thc Supply Contractor has received the total amount of the Down Payment;

and

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9.6 EXTENSIoN oF TIME FoR COMPLETION

9.6.1 The Supply Contractor shall use its best efforts to complete the Work on or before the

date or clates, or within the period or periods specified in the project Schedule

9.6-2 Subject to Section 9.8, the matters of delay entitling the Supply contractor to an

extension of the project Schedule under this clause are:

a) the issuance of a change order as defined in Section 10 hereunder bv the

owner which implies additionar works that affect the project Schedure;

b) a Force Majeure event as defined in Section 19 hereunder:

|nY lelay, impediment or prevention caused by or attributable to the Owner,the Owner's personnel, or the Owner's other contractors on the Site:

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(d) the Supply Contractor has received and accepted the L/C

The Parties shall sign a protocol recognizing the occurrence of each of the eventsstated in sub-paragraphs (a) to (d) above and stating the factual commencement Date.From the Commencement Date the Supply Contractor shall proceed with the Workswith due expedition and without delay until completion

9.3.2 If the Commencement Date is not achieved due to:

9.4

9.5

(a) failure by the owner to issue the Notice to commence on or before the

November 30b 2OO7; or(b) failure by the owner to pay the Down payment in terms of this contract,

provided the Supply Contractor has provided the Down pal.rnent Bondacceptable to the owner (which acceptance shall not be unreasonablywithheld); or

(c) failure by the owner to fumish the Suppry contractor with the L/c

acceptable to the Supply Conrractor (which acceptance shall not beunreasonably withheld), provided that the Supply contractor has provided theDown Pa1'rnent Bond to the Owner; or

(d) due to reasons not attributable to the Supply Contractor,

lhen supply contractor's delivery obligations shall be suspended and the contractPrice and the Project schedule shall be reasonably increasid./extended, as mutuallyagreed by the Parties If the Parties do not reach a mutual agreement, either party mayterminate the Contract

NoTUSED

TIME FoR CoMPLETION

fte synqtv contractor guarantees that it shall complete the deliveries and the works

in such time to achieve the Taking-over Date on or prior to the Scheduled rakingOver Date

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