As confidentially submitted to the Securities and Exchange Commission on November 7, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Confidential Draft Submission No. 4
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NFE Financial Holdings LLC
(Exact Name of Registrant as Specified in Its Charter)
Delaware
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4924
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83-1482060
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(State or Other Jurisdiction of
Incorporation or Organization) |
(Primary Standard Industrial
Classification Code Number) |
(IRS Employer
Identification Number) |
111 W. 19th Street, 8th Floor
New York, NY 10011
(516) 268-7400
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant’s Principal Executive Offices)
Cameron D. MacDougall, Esq.
111 W. 19th Street, 8th Floor
New York, NY 10011
(516) 268-7400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
David P. Oelman
E. Ramey Layne James R. Brown Vinson & Elkins L.L.P. 1001 Fannin, Suite 2500 Houston, Texas 77002 (713) 758-2222 |
Michael J. Schwartz
Michael J. Zeidel Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036-6522 (212) 735-3000 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. o
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer ☒
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Smaller reporting company o
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Emerging growth company ☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transaction period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered |
Proposed Maximum Aggregate Offering Price(1)(2) |
Amount of Registration Fee(3) |
||||
Class A shares representing limited liability company interests |
$ | $ |
(1) | Includes Class A shares issuable upon exercise of the underwriters’ option to purchase additional Class A shares. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to rule 457(o) under the Securities Act of 1933, as amended. |
(3) | To be paid in connection with the initial filing of the registration statement. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
This Confidential Draft Submission No. 4 on Form S-1 is being confidentially submitted solely to amend Item 16 of Part II of the Registration Statement and to transmit certain exhibits thereto. This Confidential Draft Submission No. 4 does not modify any provision of the preliminary prospectus contained in Part I or Items 13, 14, 15 or 17 of Part II of the Registration Statement. Accordingly, this Confidential Draft Submission No. 4 does not include a copy of the preliminary prospectus.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below are the expenses (other than underwriting discounts) expected to be incurred in connection with the issuance and distribution of the securities registered hereby. With the exception of the Securities and Exchange Commission registration fee, the FINRA filing fee and NASDAQ listing fee the amounts set forth below are estimates.
SEC registration fee |
$ | * |
|
FINRA filing fee |
* |
||
Printing and engraving expenses |
* |
||
Fees and expenses of legal counsel |
* |
||
Accounting fees and expenses |
* |
||
Transfer agent and registrar fees |
* |
||
NASDAQ listing fee |
* |
||
Miscellaneous |
* |
||
Total |
$ | * |
* | To be completed by amendment |
ITEM 14. INDEMNIFICATION OF OFFICERS AND MEMBERS OF OUR BOARD OF DIRECTORS.
Our operating agreement provides that we will indemnify, to the fullest extent permitted by the Delaware LLC Act, each person who was or is made a party or is threatened to be made a party in any legal proceeding by reason of the fact that he or she is or was our or our subsidiarys director or officer. However, such indemnification is permitted only if such person acted in good faith and lawfully. Indemnification is authorized on a case-by-case basis by (1) our board of directors by a majority vote of disinterested directors, (2) a committee of the disinterested directors, (3) independent legal counsel in a written opinion if (1) and (2) are not available, or if disinterested directors so direct, or (4) the shareholders. Indemnification of former directors or officers shall be determined by any person authorized to act on the matter on our behalf. Expenses incurred by a director or officer in defending against such legal proceedings are payable before the final disposition of the action, provided that the director or officer undertakes to repay us if it is later determined that he or she is not entitled to indemnification.
Our operating agreement provides that we may indemnify any person who is or was a director, officer, employee or agent of us to the fullest extent permitted by Delaware law. The indemnification provisions contained in our operating agreement are not exclusive of any other rights to which a person may be entitled by law, agreement, vote of shareholders or disinterested directors or otherwise. In addition, we have entered into separate indemnification agreements with each of our directors and executive officers, which are broader than the specific indemnification provisions contained in the Delaware LLC Act. These indemnification agreements require us, among other things, to indemnify our directors and officers against liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising from willful misconduct.
We will purchase insurance covering our officers and directors against liabilities asserted and expenses incurred in connection with their activities as our officers and directors or any of our direct or indirect subsidiaries.
The underwriting agreement to be entered into in connection with the sale of the securities offered pursuant to this registration statement, the form of which will be filed as an exhibit to this registration statement, provides for indemnification of New Fortress Energy Holdings, their officers and directors, and any person who controls New Fortress Energy Holdings, including indemnification for liabilities under the Securities Act.
II-1
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On August 6, 2018, in connection with the formation of NFE Financial Holdings LLC, we issued the 100.0% limited liability company interest in us to New Fortress Energy Holdings LLC. The issuance was exempt from registration under Section 4(a)(2) of the Securities Act. There have been no other sales of unregistered securities within the past three years.
In connection with the formation transactions described herein, we will issue Class B shares, representing an aggregate % non-economic limited liability company interest in us, to New Fortress Energy Holdings.
ITEM 16. | EXHIBITS. |
Exhibit
Number |
Description
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1.1*
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—
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Form of Underwriting Agreement
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3.1*
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—
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Certificate of Formation of NFE Financial Holdings LLC
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3.2*
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—
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Form of Operating Agreement of NFE Financial Holdings LLC
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5.1*
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—
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Opinion of Vinson & Elkins L.L.P. as to the legality of the securities being registered
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10.1*
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—
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Form of Amended and Restated Limited Liability Company Agreement of New Fortress Intermediate LLC
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10.2*
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—
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Form of Contribution Agreement
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10.3*
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—
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Form of NFE Financial Holdings LLC 2018 Omnibus Incentive Plan
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10.4*
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—
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Form of Restricted Share Unit Award Agreement
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10.5*
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—
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Offer Letter, dated March 14, 2017, by and between NFE Management, LLC and Christopher Guinta
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10.6*
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—
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Offer Letter, dated as of August 30, 2018, by and between NFE Management, LLC and Michael J. Utsler
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10.7*
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—
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Separation Letter Agreement, dated February 26, 2017, by and between NFE Management, LLC and Christopher Carey
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10.8*
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—
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Form of Shareholders’ Agreement
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10.9***
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—
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Credit Agreement, dated November 21, 2014, by and among LNG Holdings (Florida) LLC, Morgan Stanley Senior Funding, Inc., as administrative agent and the lenders party thereto.
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10.10***
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—
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Syndicated Loan Agreement, dated June 3, 2016, by and among NFE North Holdings Limited, National Commercial Bank Jamaica Limited, as arranger, JCSD Trustee Services Limited, as agent and the lenders party thereto.
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10.11*
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—
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Credit Agreement, dated August 15, 2018, by and between New Fortress Energy Holdings LLC, NFE Atlantic Holdings LLC, Morgan Stanley Senior Funding, Inc., as administrative agent and the subsidiary guarantors and lenders parties thereto.
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—
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Gas Sales Agreement, dated August 5, 2015, by and between New Fortress Energy LLC and Jamaica Public Service Company Limited
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—
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First Amendment to Gas Sales Agreement, dated May 23, 2016, by and between NFE North Holdings Limited and Jamaica Public Service Company Limited
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10.14*
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—
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Management Services Agreement, dated May 31, 2016, by and between New Fortress Energy Holdings LLC and FIG LLC
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21.1*
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—
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List of Subsidiaries of NFE Financial Holdings LLC
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23.1*
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—
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Consent of Ernst & Young L.L.P.
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23.2*
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—
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Consent of Vinson & Elkins L.L.P. (contained in Exhibits 5.1)
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24.1*
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—
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Powers of Attorney (contained on signature page)
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99.1*
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—
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Consent of C. William Griffin, as Director Nominee
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99.2*
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—
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Consent of John J. Mack, as Director Nominee
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99.3*
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—
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Consent of Matthew Wilkinson, as Director Nominee
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* | To be filed by amendment. |
** | Provided herewith. |
*** | Previously filed. |
‡ | Confidential treatment requested with respect to certain portions of this exhibit. Omitted portions have been filed separately with the SEC. |
II-2
ITEM 17. | UNDERTAKINGS. |
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) | For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on , 2018.
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NFE Financial Holdings LLC
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By:
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Name:
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Christopher S. Guinta
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Title:
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Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below appoints , and , and each of them, any of whom may act without the joinder of the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them of their or his or her substitute and substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and the dates indicated.
Name
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Title
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Date
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Wesley R. Edens, Chief Executive Officer and Director
(Principal Executive Officer) |
, 2018
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Christopher S. Guinta, Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
, 2018
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Randal A. Nardone
Director |
, 2018
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II-4
1
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Definitions and Interpretation
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2
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1.1
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Definitions
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2
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1.2
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Interpretation
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11
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1.3
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Indices No Longer Available
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14
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2.
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Effective Date and Activities Prior to the Full Supply Period
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14
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2.1
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Effective Date
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14
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2.2
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Authorizations
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14
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2.3
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Seller’s Obligations
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15
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2.4
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Buyer’s Obligations
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16
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2.5
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Cooperation
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16
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2.6
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Status Reports
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17
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2.7
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Coordination
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17
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2.8
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Personnel
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17
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2.9
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Bogue On-Site Activities
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17
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2.10
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Insurance
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18
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2.11
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Grace Period and Delay Damages
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20
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2.12
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Commissioning Period
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20
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3.
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Contract Period
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21
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4.
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Contract Quantities
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21
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5.
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Delivery Point, Title and Risk
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21
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5.1
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Delivery Point
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21
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5.2
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Title and Risk
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21
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6.
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Quality, Delivery Pressure, Measurement and Inspections
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22
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6.1
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Quality, Temperature and Pressure
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22
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6.2
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Measurement
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22
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6.3
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Off-Spec Gas
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22
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6.4
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Inspection of Facilities
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23
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7.
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Nominations and Scheduling
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23
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7.1
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Timely Nominations
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23
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7.2
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Nomination Adjustments
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24
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7.3
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Excess Quantities
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25
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8.
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Failure to Take and Failure to Deliver
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25
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8.1
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Buyer’s Failure to Take
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25
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8.2
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Seller’s Failure to Deliver
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26
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9.
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Gas Price
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26
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9.1
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Gas Price
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26
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9.2
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Demand Charge
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26
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9.3
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Variable Charge
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26
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9.4
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Excess Gas Charge
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27
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9.5
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Governmental Charge
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27
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9.6
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Guaranteed Throughput
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27
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9.7
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Change in Law
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27
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10.
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Payment Terms
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28
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10.1
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Invoices
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28
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10.2
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Buyer Invoices
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28
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10.3
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Payment
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28
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10.4
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Disputes and Audit Rights
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28
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10.5
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Suspension of Deliveries
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29 |
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11.
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Credit Support
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30
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11.1
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Buyer Credit Support
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30
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11.2
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Seller Credit Support
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32
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12.
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Force Majeure
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35
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12.1
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Force Majeure
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35
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12.2
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Performing Obligations
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36
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12.3
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Suspension of Obligations
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36
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12.4
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Events that are not Force Majeure
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37
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12.5
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Consequences of Force Majeure
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38
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13.
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Liabilities
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38
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13.1
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No Consequential Damages
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38
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13.2
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Express Remedies
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38
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13.3
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Liquidated Damages
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39 |
13.4
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Damages Only in Contract
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39 |
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13.5
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No Warranties
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39 |
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13.6
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Standard of Performance
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40
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14.
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Mutual Representations and Warranties
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40
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15.
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Indemnification
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41
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15.1
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Indemnity
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41
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15.2
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Notice and Legal Defense.
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42
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16.
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Assignment and Security
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42
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16.1
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Consent to Assignment
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42
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16.2
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Undertakings
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42
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16.3
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Assignment as Security
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42
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16.4
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Assignments to Affiliates
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43
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17.
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Governing Law
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43
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18.
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Termination
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43
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18.1
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Buyer’s Right to Terminate
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43
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18.2
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Seller’s Right to Terminate
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44
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18.3
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Deadline to Exercise Termination Right
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45
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18.4
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Buyer’s Option to Purchase Seller’s Facilities
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45
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18.5
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Cessation of Rights and Obligations
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45
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19.
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Buyer Covenants
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45
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20.
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Exclusivity
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45
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21.
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Notices
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46
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21.1
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Form of Notice
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46
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21.2
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Effective Time of Notice
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47
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22.
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Confidentiality
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47
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22.1
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Confidentiality Undertaking
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47
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22.2
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Permitted Disclosure
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47
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22.3
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Duration
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49 |
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22.4
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Press Release
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49 |
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23.
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Dispute Resolution
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49 |
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23.1
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Executive Resolution
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49 |
23.2
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Submission to Arbitration
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50
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23.3
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Appointment of the Arbitrators
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50
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23.4
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Consolidation
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51
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23.5
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Conduct of the Arbitration
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51
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23.6
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Scope of the Tribunal’s Authority
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52
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23.7
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Enforcement of Award
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52
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24.
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Miscellaneous Provisions
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52
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24.1
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Compliance with Law
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52
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24.2
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No Waiver
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52
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24.3
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Amendments
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53
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24.4
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Benefit of this Agreement
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53
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24.5
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Void or Illegal Provisions
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53
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24.6
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No Agency
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53
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24.7
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Entire Agreement
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54
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24.8
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Counterparts
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54
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24.9
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No Partnership
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54
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24.10
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Foreign Practices
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54
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24.11
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Sovereign Immunity
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54
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(1) |
New Fortress Energy LLC, a limited liability company organized under the laws of Delaware (hereinafter known as “Seller”); and
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(2) |
Jamaica Public Service Company Limited, a company organized under the laws of Jamaica with its registered address at 6 Knutsford Boulevard, Kingston 5, Jamaica (hereinafter
known as “Buyer”).
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(A) |
Fortress Investment Group LLC (NYSE: “FIG”) is a leading, highly diversified global
investment manager with approximately $72 billion of assets under management and, together with its affiliates, has a long history of owning and operating transportation and infrastructure assets throughout the world;
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(B) |
Seller, an affiliate of FIG, is in the business of supplying energy, logistical services, and financing to customers in the transportation and power sectors who desire to
convert their assets from using diesel or heavy fuel oil to natural gas as a fuel source in order to reduce operating costs, increase equipment availability, and enhance their environmental stewardship;
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(C) |
Buyer is Jamaica’s sole electric utility with nearly 603,350 customers, 16,000 kilometers of distribution and transmission lines, and over 620 megawatts of generation
capacity comprised of steam (oil-fired), gas turbines, combined cycle, diesel, and hydroelectric technologies;
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(D) |
Buyer desires to convert a 2 x 1 combined cycle unit consisting of 2 x 40MW GE Frame 6B turbines (“Turbines”) located at the Bogue Power Station situated in Bogue Industrial Estate, Montego Bay, in the parish of St. James Jamaica (“Bogue”)
to be capable of burning natural gas as well as Diesel Fuel by March 31, 2016, which will require a reliable, long-term supply of natural gas;
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(E) |
Seller is developing natural gas liquefaction and storage facilities in the United States, including the State of Florida, and will produce and transport LNG to be re-gassed
and delivered as natural gas to delivery points designated by its customers in the United States and throughout the Caribbean; and
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(F) |
Seller desires to supply Gas to Buyer for use in the Turbines and to design, build, own, and operate the Seller’s Facilities, which are necessary to deliver such Gas to the
Delivery Point under the terms and conditions described herein,
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1. |
Definitions and Interpretation
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1.1 |
Definitions
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1.2 |
Interpretation
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1.2.1 |
references to a statute, treaty, or legislative provision or to a provision of it shall be construed, at any particular time, as including a reference to any modification,
extension or re-enactment at any time then in force;
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1.2.2 |
references to this Agreement include its Schedules, and references in this Agreement to Articles, Sections, Sub-sections, Paragraphs, Schedules or Recitals are to the
Articles, Sections, Sub-sections, Paragraphs, Schedules or Recitals of this Agreement, unless otherwise stated;
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1.2.3 |
the meaning ascribed to the terms or expressions defined in Section 1.1 or elsewhere herein shall be equally applicable to the plural and singular forms thereof where the
context permits;
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1.2.4 |
references to a Person shall include that Person’s successors and permitted assigns, and words denoting natural persons shall include any other Persons;
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1.2.5 |
recitals and headings shall be ignored in the construction and interpretation of this Agreement;
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1.2.6 |
no Authorization shall be treated as having been granted for the purposes of this Agreement unless such Authorization has been finally granted or issued by the relevant
Competent Authority without such grant or issue being subject to any appeal or any condition as to its effectiveness but the possibility of proceedings for judicial review of such Authorization being instituted shall not prevent an
Authorization from being treated as granted unless such judicial review proceedings have, in fact, been instituted;
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1.2.7 |
references to an agreement, deed, instrument, license, code or other document (including this Agreement), or to a provision contained in any of these, shall be construed, at
the particular time, as a reference to it as it may then have been amended, varied, supplemented, modified, suspended, assigned or novated, except as otherwise provided;
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1.2.8 |
the words “include” and “including” are to be construed to mean “include without limitation”, “including without limitation”, and “including, but not limited to”;
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1.2.9 |
references to times of day are to the time in Jamaica. In computing any period of time under this Agreement, the day of the act, event or default from which such period
begins to run shall not be included;
|
1.2.10 |
unless this Agreement provides otherwise, any payment falling due on a non-Business Day shall be deemed to be due and payable on the Business Day immediately following;
|
1.2.11 |
the language which governs the interpretation of this Agreement is the English language. All notices to be given by any Party and all other communications and documentation
which are in any way relevant to this Agreement or the performance or termination of this Agreement, including any dispute resolution proceedings, shall be in the English language;
|
1.2.12 |
a reference to “conduct” includes an omission, statement or undertaking, whether or not in writing;
|
1.2.13 |
a reference to “writing” includes a facsimile transmission, electronic mail and any means of reproducing words in a tangible and permanently visible form;
|
1.2.14 |
a reference to “judgment” includes any order, injunction, determination, award or other judicial or arbitral measure in any jurisdiction;
|
1.2.15 |
a reference to “law” includes common or customary law and any constitution, decree, judgment, legislation, order, ordinance, regulation, statute, treaty or other legislative
measure, in each case of any jurisdiction whatever (and “lawful” and “unlawful” shall be construed accordingly);
|
1.2.16 |
units of measurement defined in The International System of Units (and not otherwise defined herein) shall have the respective meanings set forth therein;
|
1.2.17 |
each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed and revised this Agreement and that any rule
of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement;
|
1.2.18 |
a reference to payments, costs, or any other monetary amounts shall be to such amounts in United States Dollars — the symbol “$” shall mean United States Dollars — unless
explicitly stated otherwise;
|
1.2.19 |
a company is a “Subsidiary” of another company, its “Holding Company”, if that other company:
|
(i) |
holds a majority of the voting or management rights in it,
|
(ii) |
is a member of it and has the right to appoint or remove a majority of its board of directors,
|
(iii) |
is a member of it and controls alone, or pursuant to an agreement with other shareholders or members, a majority of the voting or management rights in it, or
|
(iv) |
if it is a Subsidiary of a company which itself is a Subsidiary of that other company; and
|
1.2.20 |
this Agreement and the Schedules are intended to be interpreted consistently to the maximum extent possible.
|
1.3 |
Indices No Longer Available
|
1.3.1 |
If (i) a publication which contains a rate or index used in this Agreement ceases to be published for any reason or (ii) such a rate or index ceases to exist for any reason,
the Parties shall select a comparable rate or index, with adjustments as necessary or appropriate, to be used in place of such rate or index that maintains the intent and economic effect of the original rate or index. If the Parties fail
to agree on such a rate or index, the issue shall be resolved in accordance with Article 23, and the relevant arbitral tribunal shall select the published rate or index, or a combination of rates or indices, with adjustments as necessary
or appropriate, that most nearly preserves the original economic balance established by the Parties.
|
1.3.2 |
If any rate or index used in this Agreement is not published for a particular date, but the publication containing such rate or index continues to be published and the rate
or index itself continues to exist, then the Parties shall use the published rate or index in effect for the date such rate or index was most recently published as the rate or index prior to such date unless otherwise provided in this
Agreement.
|
1.3.3 |
If an incorrect value is published for any rate or index used in this Agreement and such error is corrected and published within one year of the date of the publication of
such incorrect rate or index, then such corrected rate or index will be substituted for the incorrect rate or index and any calculations involving such rate or index will be recalculated. Buyer and Seller will take any necessary actions
based upon these revised calculations, including adjustments of amounts previously invoiced and/or paid.
|
2. |
Effective Date and Activities Prior to the Full Supply Period
|
2.1 |
Effective Date
|
2.2 |
Authorizations
|
2.2.1 |
On or prior to the Submission Date, Seller shall submit the applicable documentation for all Authorizations listed on Schedule 4.
|
2.2.2 |
Seller shall provide to Buyer prompt written notice upon the receipt of (a) all Authorizations necessary or required for Seller to perform its obligations hereunder and (b)
the execution of all Seller’s Required Contracts, in each case in form and substance acceptable to Seller and Buyer, each acting reasonably (such notice, the “Authorization Notice”, and such Authorizations, collectively, “Necessary Approvals”).
|
2.2.3 |
Seller shall provide copies of all Authorizations necessary or required for Seller to perform its obligations hereunder to Buyer.
|
2.2.4 |
If Seller has not received the Necessary Approvals, executed all Seller’s Required Contracts, and issued the Authorization Notice by October 31, 2015, Seller shall promptly
notify Buyer of the reason for the delay and if such delay has the potential to result in any change to the Seller In-Service Date, the Demand Charge, or other requirements of this Agreement, then Seller shall initiate Mitigation
Measures.
|
2.2.5 |
The obligation to undertake “Mitigation Measures” means that Seller (i) shall notify
Buyer in writing of what requirements remain to be satisfied in order for Seller to be able to issue the Authorization Notice and (ii) may propose a new Demand Charge and Seller In-Service Date which Seller believes are required as a
direct result of the delay in issuing the Authorization Notice which is the subject of Mitigation Measures, and provide evidence to support such notice and proposals.
|
2.3 |
Seller’s Obligations
|
2.4 |
Buyer’s Obligations
|
2.4.1 |
Buyer shall proceed diligently to construct the Buyer’s Facilities and perform all operations necessary to receive Gas at the Delivery Point no later than the Buyer
In-Service Date and utilize such Gas as the fuel feedstock for the Turbines.
|
2.4.2 |
Buyer shall use commercially reasonable efforts to assist and cooperate with Seller’s efforts to obtain the Necessary Approvals.
|
2.5 |
Cooperation
|
2.5.1 |
Each Party shall use commercially reasonable efforts to cooperate with the other to give full effect to this Agreement and to assist the other Party in doing the same.
|
2.5.2 |
Seller and Buyer shall jointly develop and agree on written operating procedures for Seller’s Facilities and Buyer’s Facilities no later than sixty (60) days prior to the
Service Commencement Date (the “Operating Procedures”). Such Operating Procedures shall be based on, but not limited to, the designs of each Party’s
facilities and on the procedures as may be required by each Party’s facilities which shall deal with all operational interfaces between Seller and Buyer, including the method of day-to-day communication, key personnel lists, outage
scheduling, and operations log.
|
2.5.3 |
The Parties shall establish a committee (the “Operating Committee”) comprising four
(4) members. Seller and Buyer shall each appoint two (2) of the four (4) members. Each chairman shall serve for a term of twelve (12) months, with the first term commencing on the Service Commencement Date. Seller and Buyer shall jointly
develop and agree on the obligations and responsibilities of the Operating Committee and the rules governing meetings of the Operating Committee no later than sixty (60) days prior to the Commercial Operation Date.
|
2.5.4 |
Each Party shall ensure that qualified personnel operate and monitor the its facilities and coordinate operations with the other Party so as to ensure that qualified
personnel are on duty at each Party’s facilities at all times, seven (7) days a week commencing on the date fourteen (14) days prior to the Service Commencement Date. Seller shall ensure that at all times during the operation of the
Seller’s Facilities all skilled and unskilled labourers operate under the direct supervision of qualified and experienced personnel.
|
2.6 |
Status Reports
|
2.7 |
Coordination
|
2.8 |
Personnel
|
2.9 |
Bogue On-Site Activities
|
2.10 |
Insurance
|
2.10.1 |
From the Effective Date to the end of the Contract Period, or for a period as otherwise stated below, Seller shall obtain and maintain, or cause to be obtained and
maintained, the following types of insurance covering the Seller’s Facilities, proof of the existence of which shall be submitted to Buyer:
|
(i) |
At least twenty-four (24) hours prior to initiating any shipment of plant and equipment for the Seller’s Facilities, and until such shipments have been delivered, marine
cargo insurance in an amount sufficient to cover the replacement cost of all such plant and equipment included in such shipment on a warehouse-to-warehouse basis and subject to deductibles of no more than US$250,000 (or the Jamaican
Dollar equivalent);
|
(ii) |
Builder’s all-risk (construction) insurance on the Seller’s Facilities in an amount sufficient to cover the replacement cost of the Seller’s Facilities, including
construction equipment and transit coverage for plant purchased within Jamaica and not subject to the insurance described in subsection (i) above and subject to deductibles of no more than (a) two and five tenths percent (2.5%) of the
coverage amount in the case of wind, flood and earthquake, and (b) an amount up to US$1,000,000 (or the Jamaican Dollar equivalent) for all other perils;
|
(iii) |
At least thirty (30) days prior to the Seller Completion Date and until the end of the Contract Period, all risks (property damage and machinery break down) / operational
insurance in an amount sufficient to cover the replacement cost of the Seller’s Facilities and transit coverage for plant purchased within Jamaica and not subject to the insurance described in subsection (i) above and subject to
deductibles of no more than (a) two and five tenths percent (2.5%) of the coverage amount in the case of wind, flood and earthquake, and (b) an amount up to US$1,000,000 (or the Jamaican Dollar equivalent) for all other perils;
|
(iv) |
At least thirty (30) days prior to the employment by Seller of any person and until the end of the Contract Period, Employer’s Liability insurance complying with the Laws of
Jamaica or any other applicable jurisdiction with limits of at least US$1,000,000 (or the Jamaican Dollar equivalent) per occurrence and subject to deductibles of no more than US$50,000 (or the Jamaican Dollar equivalent);
|
(v) |
Within ninety (90) days after the Effective Date and until the end of the Contract Period, Comprehensive or Commercial General Liability insurance with bodily injury and
property damage limits of at least US$2,000,000 (or the Jamaican Dollar equivalent) per occurrence and US$3,000,000 (or the Jamaican Dollar equivalent) in the aggregate and subject to deductibles of no more than US$50,000 (or the Jamaican
Dollar equivalent). Such insurance shall include, but not necessarily be limited to, specific coverage for contractual liability encompassing the indemnification provisions in Section 15.1, broad form property damage liability, personal
injury liability, pollution liability, professional indemnity, explosion, collapse, and underground (XCU) hazard coverage, products/completed operations liability, and where applicable, watercraft protection and indemnity liability;
|
(vi) |
Upon Seller acquiring or hiring any vehicle and until the end of the Contract Period, Comprehensive Automobile Liability insurance with bodily injury and property damage
combined single limits of at least US$500,000 (or the Jamaican Dollar equivalent) per occurrence covering vehicles owned, hired or non-owned and subject to deductibles of no more than US$500 (or the Jamaican Dollar equivalent);
|
(vii) |
Within ninety (90) days of the Effective Date and until the end of the Contract period, Excess Umbrella Liability Insurance with a single limit of at least US$35,000,000 (or
the Jamaican Dollar equivalent) per occurrence in excess of the limits of insurance provided in subsections (iv), (v) and (vi) above and subject to deductibles of no more than US$5,000 (or the Jamaican Dollar equivalent).
|
2.10.2 |
Not later than ninety (90) days after the Effective Date and thereafter not later than forty-five (45) days prior to the commencement of each Contract Year, Seller shall
provide to Buyer an insurance schedule stating the coverage, coverage level, deductible and premium for each insurance policy required pursuant to Section 2.10.1.
|
2.10.3 |
The coverage required pursuant to Section 2.10.1 and any umbrella or excess coverage shall be “occurrence” form policies.
|
2.10.4 |
Seller shall cause its insurers or agents to provide Buyer with certificates of insurance evidencing the policies and endorsements listed above. Failure of Buyer to receive
certificates of insurance does not relieve Seller of the insurance requirements set forth herein. Failure to obtain the insurance coverage required under this Agreement shall in no way relieve or limit Seller’s obligations and liabilities
under other provisions of this Agreement.
|
2.10.5 |
In the event that the policies, deductibles or coverage limitations required for the insurance coverage provided in this Section 2.10 are not available at commercially
reasonable rates, Buyer shall not unreasonably withhold its consent to Seller’s obtaining such policies, deductibles or coverage limitations as are available at commercially reasonable rates.
|
2.10.6 |
Seller shall bear responsibility for any and all premiums or deductibles incurred or required under the insurance described in this Section 2.10 except as set forth in
Section 2.10.7.
|
2.10.7 |
From the Effective Date to the end of the Contract Period, or for a period as otherwise stated below, Buyer shall obtain and maintain, or cause to be obtained and maintained,
customary insurance coverage for the Buyer’s Facilities, proof of the existence of which shall be submitted to Seller. Buyer shall bear responsibility for any and all premiums or deductibles incurred or required under the insurance
maintained by Buyer.
|
2.10.8 |
All insurance required under this Section 2.10 shall be obtained and maintained from insurers rated at least “A” by S&P, “A2” by Moody’s or an equivalent rating from
another international credit ratings agency acceptable to the other Party.
|
2.11 |
Grace Period and Delay Damages
|
2.11.1 |
In the event that (i) the Buyer Completion Date has occurred and (ii) the Seller Completion Date is delayed beyond the Seller In-Service Date, except to the extent
attributable to a Force Majeure event, then Seller shall have a [**] grace period immediately following the later of [**] and [**]. [**].
|
2.11.2 |
In the event that (i) the Seller Completion Date has occurred and (ii) the Buyer Completion Date is delayed beyond the Buyer In-Service Date, except to the extent
attributable to a Force Majeure event, then Buyer shall have an initial [**] grace period immediately following the later of [**] and [**]. After the [**] grace period, Buyer shall pay to Seller [**] per day until the Buyer Completion
Date is achieved.
|
2.12 |
Commissioning Period
|
3. |
Contract Period
|
(i) |
at a Demand Charge of $0.00, in which case Buyer shall bear all costs associated with operating and maintaining Seller’s Facilities, or alternatively
|
(ii) |
at a Demand Charge to be agreed, in which case Seller shall bear all costs associated with operating and maintaining Seller’s Facilities
|
4. |
Contract Quantities
|
5. |
Delivery Point, Title and Risk
|
5.1 |
Delivery Point
|
5.2 |
Title and Risk
|
6. |
Quality, Delivery Pressure, Measurement and Inspections
|
6.1 |
Quality, Temperature and Pressure
|
6.2 |
Measurement
|
6.3 |
Off-Spec Gas
|
6.3.1 |
If at any time Seller becomes aware that Gas that has been or will be delivered fails to meet the Gas Quality Specifications (“Off-Spec Gas”), then Seller shall promptly notify Buyer. In the case of future deliveries, Buyer may elect in writing to accept delivery of such Off-Spec Gas or may refuse delivery of
Off-Spec Gas, provided that Buyer’s failure to respond in writing shall be deemed a refusal to accept delivery of Off-Spec Gas. If Buyer elects to refuse delivery of such Off-Spec Gas, Seller shall be deemed to have failed to deliver such
Gas for purposes of Section 8.2.
|
6.3.2 |
Unless Buyer has elected to accept delivery of Off-Spec Gas in accordance with Section 6.3.1, Seller shall indemnify Buyer for any direct, out-of-pocket, costs, claims or
expenses incurred by Buyer directly resulting from Seller’s delivery of such Off-Spec Gas, including any physical damage caused to the Turbines and loss in efficiency, but only to the extent that GE determines that such Off-Spec Gas was
the major cause of such efficiency loss and quantifies such loss, arising directly from such Gas having failed to meet the Gas Quality Specifications at the Delivery Point.
|
6.4 |
Inspection of Facilities
|
6.4.1 |
On prior reasonable notice to Seller, Buyer may, at its sole risk, send its representatives to inspect during normal working hours Seller’s Facilities up to one (1) time per
calendar month prior to the Seller Completion Date and two (2) times per calendar month after the Seller Completion Date. Buyer shall bear the costs and expenses in connection with any inspection performed hereunder.
|
6.4.2 |
Buyer shall indemnify and hold Seller and its Affiliates harmless from all losses, liabilities, damages, costs, judgments, settlements and expenses arising at any time
resulting from the negligence or willful misconduct of Buyer during any inspection by Buyer pursuant to Section 6.4.1.
|
6.4.3 |
On prior reasonable notice to Buyer, Seller may, at its sole risk, send its representatives to inspect during normal working hours Buyer’s Facilities up to one (1) time per
calendar month prior to the Buyer Completion Date and two (2) times per calendar month after the Buyer Completion Date. Seller shall bear the costs and expenses in connection with any inspection performed hereunder.
|
6.4.4 |
Seller shall indemnify and hold Buyer and its Affiliates harmless from all losses, liabilities, damages, costs, judgments, settlements and expenses arising at any time
resulting from the negligence or willful misconduct of Seller during any inspection by Seller pursuant to Section 6.4.3.
|
7. |
Nominations and Scheduling
|
7.1 |
Timely Nominations
|
7.2 |
Nomination Adjustments
|
7.2.1 |
From the Nomination Deadline until [**] (“First Adjustment Window”), Buyer may
provide written notice to Seller if Buyer’s Nominated Quantity for a Billing Period during such Contract Quarter has decreased. Subject to the Buyer Nomination Adjustment Allocation, Seller shall reduce the Scheduled Weekly Quantity for
such Billing Period to the updated Buyer’s Nominated Quantity. Buyer shall have no obligation to pay the Variable Charge with respect to any reduction in the Scheduled Weekly Quantity pursuant to this Section 7.2.1. Buyer shall reimburse
Seller for Breakage Costs directly incurred as a result of a schedule adjustment to the Scheduled Weekly Quantity pursuant to this Section 7.2.1.
|
7.2.2 |
From [**] (“Second Adjustment Window”), Buyer may provide written notice to Seller if
Buyer’s Nominated Quantity for a Billing Period has decreased.Subject to the Buyer Nomination Adjustment Allocation, Seller shall reduce the Scheduled Weekly Quantity for the Billing Period to the updated Buyer’s Nominated Quantity. Buyer
shall reimburse Seller for Net Gas Costs, or shall receive a credit from Seller for Net Gas Costs, as appropriate, incurred as a result of an adjustment to the Scheduled Weekly Quantity pursuant to this Section 7.2.2. Buyer shall have no
obligation to pay the Variable Charge or Breakage Costs with respect to any reduction in the Scheduled Weekly Quantity pursuant to this Section 7.2.2.
|
7.2.3 |
Buyer is permitted to change the Buyer’s Nominated Quantity (a) pursuant to Sections 7.2.1 and 7.2.2 for a total of no more than [**] and no more than [**] and (b) pursuant
to Section 7.2.2 only no more than [**] and no more than [**] (the “Buyer Nomination Adjustment Allocation”). Seller shall have no obligation to
adjust the Scheduled Weekly Quantity on the basis of a request from Buyer to adjust the Buyer’s Nominated Quantity in excess of the Buyer Nomination Adjustment Allocation.
|
7.2.4 |
During the Second Adjustment Window, Seller may reduce the Scheduled Weekly Quantity for a Billing Period by providing written notice to Buyer; provided that Seller is permitted to change the Scheduled Weekly Quantity pursuant to this Section 7.2.4 in a manner that affects no more than [**] and no more than [**]. Seller shall bear
any negative Net Gas Costs, or retain any positive Net Gas Costs, incurred as a result of a schedule adjustment pursuant to this Section 7.2.4.
|
7.2.5 |
On or prior to the last day of the Second Adjustment Window, Buyer shall provide written notice to Seller of Buyer’s estimated daily takes for each Day of the relevant
Billing Period for informational purposes only.
|
7.2.6 |
After each Contract Year, the Parties shall discuss in good faith the potential to increase the Buyer Nomination Adjustment Allocation.
|
7.3 |
Excess Quantities
|
8. |
Failure to Take and Failure to Deliver
|
8.1 |
Buyer’s Failure to Take
|
8.1.1 |
In the event that, during any Billing Period beginning on the Commercial Operation Date, Buyer fails to take the Scheduled Weekly Quantity or any Excess Gas, reduced by any
quantity of Gas that Seller failed to deliver whether due to Force Majeure affecting Seller or a Supply Outage, Buyer shall remain obligated to pay Seller the Variable Charge, Excess Gas Charge, and Governmental Charge with respect to
such quantities.
|
8.1.2 |
[**].
|
8.2 |
Seller’s Failure to Deliver
|
9. |
Gas Price
|
9.1 |
Gas Price
|
9.2 |
Demand Charge
|
9.3 |
Variable Charge
|
9.4 |
Excess Gas Charge
|
9.5 |
Governmental Charge
|
9.6 |
Guaranteed Throughput
|
9.6.1 |
At the end of each Contract Quarter during a Contract Year, Buyer shall pay to Seller an amount, if positive, equal to the Contract Quarter Shortfall Payment.
|
9.6.2 |
[**].
|
9.6.3 |
Seller shall provide to Buyer a notice detailing the calculations pursuant to this Section 9.6 within [**].
|
9.6.4 |
[**].
|
9.7 |
Change in Law
|
10. |
Payment Terms
|
10.1 |
Invoices
|
10.2 |
Buyer Invoices
|
10.3 |
Payment
|
10.4 |
Disputes and Audit Rights
|
10.4.1 |
Subject to the correction of any manifest errors, notwithstanding the existence of any bona-fide dispute, both the disputed and the undisputed portion of any Invoice, invoice
or notice, as applicable shall be paid on the appropriate Due Date and the Party owing money shall give written notice to the other Party of any (except to the extent of any manifest error) portion of an Invoice, invoice or notice that is
disputed and the reasons for such dispute. The Party who invoiced and received payment of a sum, subsequently determined not to have been payable under this Agreement to such Party, shall pay interest to the other Party on such amount, at
the Default Rate on and from the day when such sum was originally paid until the date of its repayment.
|
10.4.2 |
All overdue amounts under this Agreement shall be subject to interest at the Default Rate and on the basis of a 360 calendar day year from the original Due Date until the
date such payment is made.
|
10.4.3 |
Buyer and Seller shall have a right (using auditors or professional advisers if desired), subject to the consent of the other, such consent not to be unreasonably withheld,
at reasonable hours to examine and take notes of (but not copy or otherwise reproduce in any form) each other’s books, records, charts and any other information concerning charges to be made pursuant to this Agreement to the extent
necessary to verify the accuracy of any statement, charge, computation or Invoice made pursuant to this Agreement. If any such examination reveals any inaccuracy in any billing previously made, the necessary adjustments in such billing
and payments shall be made promptly including interest at LIBOR.
|
10.5 |
Suspension of Deliveries
|
10.5.1 |
If Buyer has not paid in full any Invoice by the relevant Due Date, Seller shall deliver a notice to Buyer requesting payment (such notice a “Payment Notice”). If any amount(s) due to Seller hereunder, are not paid within [**], then Seller may, without prejudice to its rights under Article 18, draw on the Letter of
Credit procured by Buyer in accordance with and subject to the provisions of Section 11.1.
|
10.5.2 |
If at any time the Credit Exposure exceeds [**] of the amount available for drawing under all existing Letters of Credit plus the value of the Letter of Credit Proceeds Account, then, subject to Section 10.5.3, Seller may, without prejudice to its rights under Article 18, after giving Buyer [**] prior written notice, suspend the
subsequent delivery of Gas under this Agreement.
|
10.5.3 |
If prior to the expiry of any such notice period referred to in this Section 10.5, or at any time thereafter, the relevant payment has been made by Buyer or the value of any
Letters of Credit has been increased such that the conditions permitting suspension pursuant to Section 10.5.2 no longer exist, the notice of suspension shall be deemed withdrawn and the full performance of the terms of this Agreement by
both Parties shall resume as soon as operationally feasible following such date.
|
11. |
Credit Support
|
11.1 |
Buyer Credit Support
|
(i) |
the Letter of Credit shall not be in lieu of payment of any other amounts due to the Seller, nor shall it operate as a limit or cap on amounts otherwise payable to the
Seller. All costs and charges relating to the issuance, maintenance, replenishment and renewal or replacement (as applicable) of the Letter of Credit, and the remittance of money to the Seller under the Letter of Credit, including
telegraphic transfer charges and all other charges, fees and expenses, shall be borne solely by Buyer;
|
(ii) |
the Letter of Credit, and any renewal or replacement thereof, shall have a period of validity of at least three hundred and sixty-four (364) Days. Not less than thirty (30)
Days prior to the scheduled date of its expiry, Buyer shall cause the Approved Bank issuing such Letter of Credit to confirm to Seller that Buyer has either (a) caused the term of such Letter of Credit to be extended for an additional
three hundred and sixty-four (364) Days, commencing upon the expiration of the preceding Letter of Credit or (b) obtain written confirmation from such Approved Bank that the necessary payments have been made to allow the replacement
Letter of Credit to become effective immediately upon the expiration of the then-current Letter of Credit, in which case, not later than the expiration date of the then-current Letter of Credit, Buyer shall procure, deliver and maintain
(or cause to be procured, delivered and maintained) a Letter of Credit issued to Seller for the Buyer Credit Support Amount;
|
(iii) |
in the event that such replacement or renewal of the Letter of Credit is not timely delivered to the Seller or in the event that the issuer of the Letter of Credit is no
longer an Approved Bank, Seller shall be entitled, without prior notice or demand, to draw the entire amount of the Letter of Credit, and Seller shall deposit and hold all funds so drawn in the Letter of Credit Proceeds Account, with such
funds to be withdrawn from the Letter of Credit Proceeds Account and applied by Seller only against sums due and owing by Buyer under and in accordance with this Agreement as and when such sums become due. Seller shall refund the balance
of the Letter of Credit Proceeds Account to Buyer within five (5) days following the earlier to occur of (i) Buyer’s replacement or renewal of the Letter of Credit or (ii) the date that all sums (including any interest and other costs)
that are due and owing by Buyer to Seller pursuant to this Agreement have been irrevocably and indefeasibly paid in full;
|
(iv) |
except as provided in subsection (iii), Seller shall have the right to draw the Letter of Credit, or to withdraw funds from the Letter of Credit Proceeds Account (as
applicable), only to fulfill any of the payment obligations of Buyer under this Agreement in the event that Buyer fails to pay such obligations within [**], provided
that Seller must provide written notice to Buyer at least [**]. In the event that any payment is made to Seller pursuant to a draw on the Letter of Credit or a withdrawal from the Letter of Credit Proceeds Account (as applicable), Seller
may cause such funds to be deposited or transferred to Seller, and the receipt of funds by Seller pursuant to such drawing or withdrawal shall, to that extent, satisfy and discharge Buyer’s obligation to make such payment under this
Agreement, but shall be without prejudice to Buyer’s rights to make any claim in relation to the matter giving rise to such payment or otherwise pursue any other right or remedy under this Agreement, at law or in equity, and shall further
be without prejudice to Seller’s rights to make further draws on the Letter of Credit or further withdrawals from the Letter of Credit Proceeds Account (as applicable), or to otherwise pursue any other right or remedy under this
Agreement, at law or in equity;
|
(v) |
notwithstanding any other provision of this Section 11.1, Seller may not draw on the Letter of Credit or withdraw from the Letter of Credit Proceeds Account to fulfill any
obligation of Buyer under this Agreement to pay the Governmental Charge;
|
(vi) |
upon the occurrence of any draw on the Letter of Credit or any withdrawal from the Letter of Credit Proceeds Account (as applicable), Buyer shall, at its sole expense, within
[**], procure the renewal, reissuance or reinstatement of the Letter of Credit or the replenishment of funds in the Letter of Credit Proceeds Account, such that the amount of the Letter of Credit or the Letter of Credit Proceeds Account
(as applicable) is increased to, and at all times remains equal to, the total face amount required by this Section 11.1;
|
(vii) |
Buyer shall maintain the Letter of Credit in effect to comply with its obligations under this Agreement (notwithstanding the expiry or termination of this Agreement) until
payment has been irrevocably and indefeasibly made for all amounts which have accrued as of the expiry or termination of this Agreement, and in respect of which a draw can be made under the Letter of Credit pursuant to this Agreement; provided, however, that subject to Seller’s right to draw and retain the Letter of
Credit pursuant to this subsection (vii), the Letter of Credit which is valid on the date of expiry or termination of this Agreement shall be cancelled and such Letter of Credit shall be returned by Seller to Buyer after payment has been
irrevocably and indefeasibly made of such amounts which have accrued as of and including the date of such expiry or termination; and
|
(viii) |
notwithstanding anything in this Section 11.1 to the contrary, Seller’s right to draw funds under the Letter of Credit, or to withdraw funds from the Letter of Credit
Proceeds Account (as applicable), and to retain and apply such funds in accordance with this Section 11.1, shall not be deemed to be a claim or Dispute such that Seller would be required to first comply with the provisions of Article 23
prior to drawing and retaining the Letter of Credit, or withdrawing and retaining sums from the Letter of Credit Proceeds Account (as applicable).
|
11.2 |
Seller Credit Support
|
(i) |
the Letter of Credit shall not be in lieu of payment of any other amounts due to the Buyer, nor shall it operate as a limit or cap on amounts otherwise payable to the Buyer.
All costs and charges relating to the issuance, maintenance, replenishment and renewal or replacement (as applicable) of the Letter of Credit, and the remittance of money to the Buyer under the Letter of Credit, including telegraphic
transfer charges and all other charges, fees and expenses, shall be borne solely by Seller;
|
(ii) |
the Letter of Credit, and any renewal or replacement thereof, shall have a period of validity of at least three hundred and sixty-four (364) Days. Not less than thirty (30)
Days prior to the scheduled date of its expiry, Seller shall cause the Approved Bank issuing such Letter of Credit to confirm to Buyer that Seller has either (a) caused the term of such Letter of Credit to be extended for an additional
three hundred and sixty-four (364) Days, commencing upon the expiration of the preceding Letter of Credit or (b) obtain written confirmation from such Approved Bank that the necessary payments have been made to allow the replacement
Letter of Credit to become effective immediately upon the expiration of the then-current Letter of Credit, in which case, not later than the expiration date of the then-current Letter of Credit, Seller shall procure, deliver and maintain
(or cause to be procured, delivered and maintained) a Letter of Credit issued to Buyer for the Seller Credit Support Amount;
|
(iii) |
in the event that such replacement or renewal of the Letter of Credit is not timely delivered to the Buyer or in the event that the issuer of the Letter of Credit is no
longer an Approved Bank, Buyer shall be entitled, without prior notice or demand, to draw the entire amount of the Letter of Credit, and Buyer shall deposit and hold all funds so drawn in the Letter of Credit Proceeds Account, with such
funds to be withdrawn from the Letter of Credit Proceeds Account and applied by Buyer only against sums due and owing by Seller under and in accordance with this Agreement as and when such sums become due. Buyer shall refund the balance
of the Letter of Credit Proceeds Account to Seller within five (5) days following the earlier to occur of (i) Seller’s replacement or renewal of the Letter of Credit or (ii) the date that all sums (including any interest and other costs)
that are due and owing by Seller to Buyer pursuant to this Agreement have been irrevocably and indefeasibly paid in full;
|
(iv) |
except as provided in subsection (iii), Buyer shall have the right to draw the Letter of Credit, or to withdraw funds from the Letter of Credit Proceeds Account (as
applicable), only to fulfill any of the payment obligations of Seller under this Agreement in the event that Seller fails to pay such obligations within [**], provided
that Buyer must provide written notice to Seller at least [**]. In the event that any payment is made to Buyer pursuant to a draw on the Letter of Credit or a withdrawal from the Letter of Credit Proceeds Account (as applicable), Buyer
may cause such funds to be deposited or transferred to Buyer, and the receipt of funds by Buyer pursuant to such drawing or withdrawal shall, to that extent, satisfy
and discharge Seller’s obligation to make such payment under this Agreement, but shall be without prejudice to Seller’s rights to make any claim in relation to the matter giving rise to such payment or otherwise pursue any other right or
remedy under this Agreement, at law or in equity, and shall further be without prejudice to Buyer’s rights to make further draws on the Letter of Credit or further withdrawals from the Letter of Credit Proceeds Account (as applicable), or
to otherwise pursue any other right or remedy under this Agreement, at law or in equity;
|
(v) |
upon the occurrence of any draw on the Letter of Credit or any withdrawal from the Letter of Credit Proceeds Account (as applicable), Seller shall, at its sole expense,
within [**], procure the renewal, reissuance or reinstatement of the Letter of Credit or the replenishment of funds in the Letter of Credit Proceeds Account, such that the amount of the Letter of Credit or the Letter of Credit Proceeds
Account (as applicable) is increased to, and at all times remains equal to, the total face amount required by this Section 11.2;
|
(vi) |
Seller shall maintain the Letter of Credit in effect to comply with its obligations under this Agreement (notwithstanding the expiry or termination of this Agreement) until
payment has been irrevocably and indefeasibly made for all amounts which have accrued as of the expiry or termination of this Agreement, and in respect of which a draw can be made under the Letter of Credit pursuant to this Agreement; provided, however, that subject to Buyer’s right to draw and retain the Letter of
Credit pursuant to this subsection (vi), the Letter of Credit which is valid on the date of expiry or termination of this Agreement shall be cancelled and such Letter of Credit shall be returned by Buyer to Seller after payment has been
irrevocably and indefeasibly made of such amounts which have accrued as of and including the date of such expiry or termination; and
|
(vii) |
notwithstanding anything in this Section 11.2 to the contrary, Buyer’s right to draw funds under the Letter of Credit, or to withdraw funds from the Letter of Credit Proceeds
Account (as applicable), and to retain and apply such funds in accordance with this Section 11.2, shall not be deemed to be a claim or Dispute such that Buyer would be required to first comply with the provisions of Article 23 prior to
drawing and retaining the Letter of Credit, or withdrawing and retaining sums from the Letter of Credit Proceeds Account (as applicable).
|
12. |
Force Majeure
|
12.1 |
Force Majeure
|
(i) |
fire, flood, natural disasters or acts of God including lightning storm, hurricane, cyclone, typhoon, tidal wave, tornado, earthquake, volcanic eruption, landslide, perils of
the sea, soil erosion, subsidence, washout, or epidemic;
|
(ii) |
acts of war (whether declared or undeclared), invasion, armed conflict, embargo, revolution, rebellion, sabotage, acts of terrorism or threat thereof, riot, civil war,
blockade, insurrection, acts of public enemies, civil disturbances, sanctions on the import or export of goods, services or technology;
|
(iii) |
ionizing radiation or contamination, or radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear waste or from the combustion of
nuclear, radioactive, toxic, explosive or other hazardous properties of any explosive assembly or nuclear component;
|
(iv) |
strike, lockout or other industrial disturbances or labor dispute;
|
(v) |
inability to obtain, or suspension, termination, adverse modification, interruption, or inability to renew, any servitude, right of way, easement, or Authorization of any
governmental entity, agency, national, port or other local authority within Jamaica having or asserting jurisdiction; and
|
(vi) |
in respect of Seller, acts of God affecting Seller’s Facilities, the Supply Source, or the transportation of LNG from the Supply Source to Seller’s Facilities.
|
12.2 |
Performing Obligations
|
12.3 |
Suspension of Obligations
|
12.3.1 |
In order to ensure resumption of normal performance of this Agreement within the shortest practicable time, the Affected Party shall take all measures which are commercially
reasonable in the circumstances to mitigate and eliminate the effects of the relevant event of Force Majeure, taking into account the consequences resulting from such event of Force Majeure. Prior to resumption of normal performance, the
Parties shall continue to perform their obligations under this Agreement to the extent not prevented by such event of Force Majeure.
|
12.3.2 |
Upon request of the non-affected Party, given no sooner than the second Business Day after the Affected Party’s notice of Force Majeure, the Affected Party shall forthwith
use all commercially reasonable efforts to give or procure access for representatives of the non-affected Party to examine the scene of the event which gave rise to the claim of Force Majeure, and such access shall be at the expense of
the non-affected Party. The non-affected Party shall indemnify and hold the Affected Party and its Affiliates harmless from all losses, liabilities, damages, costs, judgments, settlements and expenses arising at any time resulting from
the negligence or willful misconduct of the non-affected Party during any examination of the scene of the event which gave rise to the claim of Force Majeure pursuant to this Section 12.3.2.
|
12.4 |
Events that are not Force Majeure
|
(i) |
the non-availability or lack of funds or failure to pay money when due;
|
(ii) |
economic hardship, to include, without limitation, Seller’s ability to sell Gas at a higher or more advantageous price than the price for Gas sold under this Agreement, or
Buyer’s ability to purchase Gas or alternative fuels at a lower or more advantageous price than the price for Gas purchased under this Agreement;
|
(iii) |
any strike or other industrial action that occurs as a result of actions taken by Seller or Buyer;
|
(iv) |
in respect of Buyer only, Force Majeure described in Section 12.1(v) or otherwise attributable to the actions or inactions of the Government of Jamaica or any agency or
department thereof;
|
(v) |
storms or weather conditions expected for Jamaica, which are below a category 5 hurricane provided, however, that if Seller demonstrates that Seller’s Facilities were
constructed to withstand a category 4 hurricane, then, notwithstanding the storm or weather condition causing the event or circumstance, such event or circumstance shall qualify as Force Majeure
|
(vi) |
shortages or price fluctuations with respect to materials, supplies or components of Seller’s Facilities or the Supply Source; or
|
(vii) |
shortages of manpower.
|
12.5 |
Consequences of Force Majeure
|
12.5.1 |
Regardless of whether Seller is the Affected Party or Buyer is the Affected Party, Buyer shall continue to pay all amounts due and owing under this Agreement, including any
applicable Demand Charge.
|
12.5.2 |
To the extent Seller receives compensation from any third party as a result of Force Majeure, Seller shall pay to Buyer a pro rata share of such amounts based on the quantity
not delivered to Buyer compared to all quantities of Gas or LNG Seller was not able to deliver to all other recipients of Gas or LNG from Seller, up to the full amount of the Demand Charge paid by Buyer with respect to such period of
Force Majeure.
|
12.5.3 |
If Force Majeure affecting Seller continues one hundred fifty (150) consecutive days, Buyer shall be relieved of its obligation to pay the Demand Charge with respect to that
portion of the Scheduled Weekly Quantity that Seller is unable to deliver due to such Force Majeure until such time as Seller is able to deliver the Scheduled Weekly Quantity.
|
12.5.4 |
Seller shall apply insurance proceeds in a commercially reasonable manner to the repair or replacement of Seller’s Facilities when Seller’s Facilities are affected by Force
Majeure.
|
13. |
Liabilities
|
13.1 |
No Consequential Damages
|
13.2 |
Express Remedies
|
13.3 |
Liquidated Damages
|
13.4 |
Damages Only in Contract
|
13.5 |
No Warranties
|
13.6 |
Standard of Performance
|
14. |
Mutual Representations and Warranties
|
(i) |
such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is in good standing in each other jurisdiction
where the failure to so qualify would have a material adverse effect upon the business or financial condition of such Party;
|
(ii) |
the execution, delivery and performance of this Agreement are within such Party’s organizational powers, have been duly authorized by all necessary organizational action and
do not violate any of the terms and conditions in such Party’s governing documents, any contracts to which such Party is a party, or with the exception of the Necessary Approvals, any law, rule, regulation, order or the like applicable to
such Party;
|
(iii) |
subject to receipt of the Necessary Approvals, this Agreement, and each other document executed and delivered in accordance with this Agreement, constitute the legally valid
and binding obligations of such Party enforceable against it in accordance with such agreement’s terms; but subject to any bankruptcy, insolvency, reorganization and other laws affecting creditors’ rights generally, and with regard to
equitable remedies, the discretion of the court or regulatory body before which proceedings to obtain same may be pending;
|
(iv) |
to such Party’s knowledge, there is not pending or threatened against it or any of its affiliates any legal proceedings that could materially adversely affect such Party’s
ability to perform its obligations under this Agreement or materially and adversely affect the financial condition or operations of such Party or that purports to affect the legality, validity or enforceability of this Agreement or would
otherwise hinder or prevent performance hereunder; and
|
(v) |
the execution, delivery and performance of this Agreement by such Party does not and will not require the consent of any trustee or holder of any indebtedness that has not
been obtained or will be obtained in due course, or be subject to or inconsistent with other obligations of such Party under any other agreement.
|
15. |
Indemnification
|
15.1 |
Indemnity
|
(i) |
any personal injury (including death) or any property damage, to the extent that the same arises out of the negligence or willful misconduct of the indemnifying Party or the
indemnifying Party’s personnel;
|
(ii) |
claims by any Competent Authority for any Taxes which the indemnifying Party has agreed to reimburse the other Party for in accordance with this Agreement;
|
(iii) |
the release of any Hazardous Substances on or from any of the indemnifying Party’s facilities except to the extent that the same arises out of the negligence or willful
misconduct of the other Party or such other Party’s personnel;
|
(iv) |
the violation by the indemnifying Party or any of its personnel of any applicable laws;
|
(v) |
any claims with respect to employer’s liability or worker’s compensation filed by any employee of the indemnifying Party or any of its personnel; or
|
(vi) |
any claim that any of the indemnifying Party’s facilities constitutes an infringement of any patent, trade secret, trademark, copyright or other proprietary rights of any
third party or any information provided by such Party constitutes the unauthorized disclosure of a third party’s confidential information.
|
15.2 |
Notice and Legal Defense.
|
16. |
Assignment and Security
|
16.1 |
Consent to Assignment
|
16.2 |
Undertakings
|
16.2.1 |
if relevant, the Assigning Party has procured that the proposed transferee provides to the Non-Assigning Party a direct covenant (in favor of the Non-Assigning Party and in a
form acceptable to the Non-Assigning Party, such acceptance not to be unreasonably withheld) that the transferee will observe and perform the obligations under this Agreement which are being transferred to it; and
|
16.2.2 |
a certified copy of the assignment (excluding terms relating to the consideration paid or payable) has been delivered to the Non-Assigning Party by the Assigning Party.
|
16.3 |
Assignment as Security
|
16.3.1 |
Each Party consents to the pledge or assignment by the other Party of any or all of the other Party’s rights hereunder as security for its obligations to Lenders.
|
16.3.2 |
The provisions of Section 16.2 shall not apply to any assignment contemplated by this Section 16.3.
|
16.3.3 |
Buyer further agrees to enter into a direct agreement with Seller’s Lenders in the form attached hereto as Schedule
8, with such changes as Seller’s Lenders may reasonably request.
|
16.4 |
Assignments to Affiliates
|
17. |
Governing Law
|
18. |
Termination
|
18.1 |
Buyer’s Right to Terminate
|
(i) |
Seller has not obtained the Non-FTA Authorization by the end September 30, 2015;
|
(ii) |
Seller has not obtained all of the Necessary Approvals by September 30, 2015;
|
(iii) |
Seller fails to achieve the Seller Completion Date within [**], as adjusted pursuant to the Mitigation Measures, such deadline to be extended day for day for Force Majeure
affecting the construction of Seller’s Facilities or any Dispute resulting from the Mitigation Measures;
|
(iv) |
Seller is unable to deliver any portion of the Scheduled Weekly Quantity due to Force Majeure for [**], other than Force Majeure attributable to the actions or inactions of
the Government of Jamaica or any agency or department thereof;
|
(v) |
after the Seller Completion Date, for reasons other than Force Majeure, Seller (A) for more than [**], delivers less than [**] of the Scheduled Weekly Quantity (as such
amount may be adjusted pursuant to Section 7.2) over such period or (B) for more than [**], delivers less than [**] of the Scheduled Weekly Quantity over such period;
|
(vi) |
an Insolvency Event occurs with respect to Seller; or
|
(vii) |
Seller is in default of any other material provision of this Agreement (not set forth in sub-clauses (i) through (vi) above) and has not cured such default within [**], or if
such default is not capable of cure within such [**], Seller has not (a) promptly commenced and continued diligent efforts to cure such default within [**] or (b) ultimately cured such default within [**], (or such longer periods as
reasonably agreed to by Buyer),
|
18.2 |
Seller’s Right to Terminate
|
(i) |
the Necessary Approvals have not been received and the Seller’s Required Contracts have not been executed by September 30, 2015;
|
(ii) |
any suspension pursuant to Section 10.5.2 continues for [**];
|
(iii) |
an Insolvency Event occurs with respect to Buyer; or
|
(iv) |
Buyer is in default of any other material provision of this Agreement (not set forth in sub-clauses (i) through (iii) above) and has not cured such default within [**], or if
such default is not capable of cure within such [**], Buyer has not (a) promptly commenced and continued diligent efforts to cure such default within [**] or (b) ultimately cured such default within [**], (or such longer period as
reasonably agreed to by Seller),
|
18.3 |
Deadline to Exercise Termination Right
|
18.4 |
Buyer’s Option to Purchase Seller’s Facilities
|
18.5 |
Cessation of Rights and Obligations
|
18.5.1 |
All rights and obligations of the Parties shall cease to have effect immediately upon termination of this Agreement except that termination shall not affect:
|
(i) |
the accrued rights and obligations of the Parties at or prior to the date of termination; and
|
(ii) |
the continued existence and validity of, and the continuing rights and obligations of the Parties under this Section 18.5 and Articles 13, 17 and 21 through 24 of this
Agreement which shall continue to apply.
|
18.5.2 |
The only rights of the Parties to terminate this Agreement are as set forth in this Article 18.
|
19. |
Buyer Covenants
|
20. |
Exclusivity
|
21. |
Notices
|
21.1 |
Form of Notice
|
21.1.1 |
Any notice or other communication from one of the Parties to the other Party, which is required or permitted to be made by the provisions of this Agreement, shall be:
|
(i) |
made in the English language;
|
(ii) |
made in writing;
|
(iii) |
delivered personally (by hand or by courier) to the address of the other Party which is shown below or to such other address as the other Party shall by notice require, or
sent by facsimile transmission (with receipt of transmission confirmation) to the facsimile number of the other Party which is shown below or to such other facsimile number as the other Party shall by notice require, or sent by electronic
mail to the electronic mail address of the other Party which is shown below or to such other electronic mail address as the other Party shall by notice require; and
|
(iv) |
marked for the attention of the person(s) referred to below or to such other person(s) as the other Party shall by notice require.
|
21.1.2 |
The addresses of the Parties for service of notices are as follows:
|
21.1.3 |
Any Party may designate additional addresses for particular communications as required from time to time and may change any addresses or other details, by notice given thirty
(30) days in advance of such additions or changes.
|
21.1.4 |
Any notice of breach of this Agreement, failure to make due payment, or failure to post credit support shall not be effective if sent by electronic mail. The recipient may
request, and the sender shall comply with such request, that the original sender of such email promptly provide a certified copy of the notice sent via electronic mail by courier or registered post delivery confirmed.
|
21.2 |
Effective Time of Notice
|
21.2.1 |
Any notice or other communication made by one Party to the other Party in accordance with the foregoing provisions of this Article 21 shall be deemed to be received by the
other Party, if delivered by hand or by courier, on the day on which it is left at that Party’s address, or, if sent by facsimile transmission or electronic mail, on the next Business Day following the day on which it is sent to that
Party’s address.
|
21.2.2 |
Immediately upon receiving communication by facsimile transmission or electronic mail, a Party shall acknowledge receipt by the same means if requested in the communication,
and may request a repeat transmittal of the entire communication or confirmation of particular matters.
|
21.2.3 |
Any notice given by facsimile or electronic mail shall be subsequently confirmed by letter, unless otherwise agreed.
|
22. |
Confidentiality
|
22.1 |
Confidentiality Undertaking
|
22.2 |
Permitted Disclosure
|
22.2.1 |
Notwithstanding Section 22.1, each Party may disclose Confidential Information without the other Party’s consent to:
|
(i) |
the Party’s Affiliates and employees;
|
(ii) |
Lenders and prospective Lenders, provided that the identities of such Lenders and prospective
Lenders have been disclosed to the other Party;
|
(iii) |
advisors and consultants, including counsel, accountants and other agents of the Party, each of which have been disclosed to the other Party;
|
(iv) |
third parties to the extent such information is delivered to such third party on an aggregated basis for the sole purpose of calculating a published index;
|
(v) |
Competent Authorities;
|
(vi) |
arbitrators, experts and any court in connection with the resolution of a Dispute;
|
(vii) |
any bona fide intended assignees of a Party’s interests under this Agreement, provided, however, that:
|
(a) |
such intended assignee has entered into a confidentiality agreement with the intended assignor incorporating terms to restrict disclosure of the Confidential Information on
an “as needed” basis and solely for the purpose of the proposed assignment;
|
(b) |
a copy of that confidentiality agreement has been provided to the Non-Assigning Party; and
|
(c) |
such confidentiality agreement expressly states that the Non-Assigning Party is an intended third party beneficiary of such agreement with respect to disclosure of
Confidential Information, capable of independently enforcing the provisions therein protecting disclosure of such Confidential Information;
|
(viii) |
shareholders and partners in upstream or downstream projects; and
|
(ix) |
to regulators or financial markets to the extent required or advisable in connection with any future financing activity related to Seller.
|
22.2.2 |
The Party disclosing Confidential Information shall ensure that any Person listed in Sections 22.2.10) to 22.2.1(vi) and Section 22.2.1(viii) above to which it makes the
disclosure provides an undertaking equivalent to that set forth in Section 22.2.1(vii) above (excluding legal counsel). In the case of disclosure to an employee made in accordance with Section 22.2.1(i) above, the undertaking is to be
given by the Party on its own behalf and in respect of all its employees.
|
22.2.3 |
In the event that disclosure is required by any Competent Authority or applicable law, the Party subject to such requirement may disclose the Confidential Information of the
other Party to the extent so required, but shall as soon as reasonably practicable notify the other Party prior to disclosure (if not prohibited) and shall cooperate (consistent with the disclosing Party’s legal obligations) with the
other Party’s efforts to obtain protective orders or similar restraints with respect to such disclosure at the expense of the other Party.
|
22.2.4 |
The Parties shall be entitled to all remedies available at law or in equity to enforce or seek relief in connection with this confidentiality obligation.
|
22.3 |
Duration
|
22.4 |
Press Release
|
23. |
Dispute Resolution
|
23.1 |
Executive Resolution
|
23.2 |
Submission to Arbitration
|
23.2.1 |
All Disputes not resolved using the procedures set forth in Section 23.1 will be exclusively and definitively resolved through final and binding arbitration conducted in
accordance with the Arbitration Rules of the International Chamber of Commerce (“ICC”, the “Rules”) (as in effect on the date on which the claimant files its demand for arbitration). The Parties intend that this provision is a broad form arbitration agreement designed to encompass all
possible controversies, claims and disputes under this Agreement.
|
23.2.2 |
Any Party may apply to a court in the Southern District of New York for interim measures (A) prior to the constitution of the arbitral tribunal (and thereafter as necessary
to enforce the arbitral tribunal’s rulings), or (B) to rule on interim measures in the absence of the jurisdiction of the arbitral tribunal in a given jurisdiction. Seeking and obtaining such interim measures do not waive the right to
arbitration.
|
23.2.3 |
Buyer agrees not to exercise its termination right in respect of Section 18.1(ii) if there is a Dispute related to the Necessary Approvals pending under this Article 23.
|
23.3 |
Appointment of the Arbitrators
|
23.3.1 |
The arbitration is to be conducted before a panel of three arbitrators, each of whom will be selected in the manner set forth in this Section 23.3.1.
|
(i) |
The claimant shall appoint an arbitrator when it files its demand for arbitration, and the respondent shall appoint an arbitrator when it files its answering statement. The
two party-appointed arbitrators shall select the presiding arbitrator within 30 Days after the latter of the two arbitrators has been appointed by the Parties to the Dispute.
|
(ii) |
If (A) a Party fails to appoint an arbitrator or (B) the party-appointed arbitrators cannot reach an agreement on the presiding arbitrator within the applicable time period,
then the remainder of the three arbitrators shall be appointed pursuant to the Rules.
|
(iii) |
For the purposes of appointing arbitrators under this Section 23.3.1, (I) Seller and all persons whose interest in this Agreement derives from Seller are considered as one
party, and (II) Buyer and all persons whose interest in this Agreement derives from Buyer are considered as one party.
|
(iv) |
Each arbitrator must be fluent in the English language.
|
(v) |
The tribunal will endeavor to complete the final hearing in the arbitration within six (6) months after the appointment of the last arbitrator.
|
23.4 |
Consolidation
|
23.5 |
Conduct of the Arbitration
|
23.5.1 |
The seat of arbitration will be New York, New York.
|
23.5.2 |
Any substantive hearing will be held in New York, New York.
|
23.5.3 |
The arbitration proceedings will be conducted in the English language.
|
23.5.4 |
Each arbitrator will be and remain at all times wholly impartial and independent. Once appointed, no arbitrator may have any ex parte communications with any of the Parties
concerning the arbitration or the underlying Dispute other than communications directly concerning the selection of the presiding arbitrator, where applicable.
|
23.5.5 |
Any arbitration or expert determination relating to a Dispute (including a settlement resulting from an arbitral award, documents exchanged or produced during an arbitration
proceeding, witness statements, expert reports, transcripts, and memorials, briefs or other documents prepared for the arbitration) will be confidential and may not be disclosed by the Parties, their employees, officers, directors,
counsel, consultants, and expert witnesses, except to the extent necessary to enforce this Article 23 or any arbitration award, to enforce other rights of a Party, or as required by law; provided, however, that breach of this confidentiality provision will not void any settlement, expert determination or award.
|
23.6 |
Scope of the Tribunal’s Authority
|
23.7 |
Enforcement of Award
|
23.7.1 |
The tribunal’s award shall be final and binding, and it may be enforced by any court of competent jurisdiction. The Parties agree to waive any objections they may have to
personal jurisdiction, venue or inconvenient forum for an action to enforce the award in a jurisdiction where the party against whom the award is sought to be enforced has assets to satisfy the award. The Parties agree that service of
process for any action to enforce an award may be accomplished according to the procedures of Article 21, as well as any other procedure authorized by applicable law.
|
23.7.2 |
The arbitral award will be made and payable in US$, free of any tax or other deduction.
|
23.7.3 |
The costs of the arbitration shall be split equally between the Parties or as otherwise determined by the tribunal.
|
23.7.4 |
The tribunal is authorized to award pre-award interest at LIBOR, from the date of any default or other breach of this Agreement until the arbitral award is paid in full.
Interest on the award accrues at the LIBOR on and from the day when such award was issued until the date it is paid in full. In the event judgment is entered on the award, post-judgment interest shall accrue at the higher of the LIBOR and
the applicable statutory rate until the date the judgment is paid in full.
|
24. |
Miscellaneous Provisions
|
24.1 |
Compliance with Law
|
24.2 |
No Waiver
|
24.2.1 |
The failure to exercise, or any delay in exercising, any right, power or remedy under this Agreement shall not operate as a waiver of any such power or remedy, nor shall any
single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or
remedies (provided by law).
|
24.2.2 |
The failure of any Party at any time to require performance or partial performance of any provision of this Agreement shall not affect its right to require subsequent
performance of such provision. Waiver by any Party of any breach of any provision hereof shall not constitute the waiver of any subsequent breach of such provision. Performance or partial performance of any condition or obligation to be
performed hereunder shall not be deemed to have been waived or postponed except by an instrument in writing signed by the Party who is claimed to have granted such waiver or postponement.
|
24.3 |
Amendments
|
24.4 |
Benefit of this Agreement
|
24.5 |
Void or Illegal Provisions
|
24.6 |
No Agency
|
24.7 |
Entire Agreement
|
24.8 |
Counterparts
|
24.9 |
No Partnership
|
24.10 |
Foreign Practices
|
24.11 |
Sovereign Immunity
|
/s/ Ken Nicholson
|
|
Ken Nicholson, Managing Director
|
|
Chief Operating Officer
|
|
on behalf of:
|
|
New Fortress Energy LLC
|
/s/ Kelly Tomblin
|
|
Kelly Tomblin, President & CEO
|
|
on behalf of:
|
|
Jamaica Public Service Company Limited
|
1. |
Micro-LNG Terminal located at Berth 411 at the Port at Montego Bay, Jamaica
|
2. |
Natural gas supply pipeline beginning at the Micro-LNG Terminal located at Berth #1, Montego Bay, Jamaica and terminating at the Delivery Point
|
3. |
Metering and other measurement equipment (such as for Gas quality and composition) located at the origin of the natural gas supply pipeline and the Seller’s side of the
Delivery Point
|
1. |
All licences and permits required under the Natural Resources Conservation Authority Act and Regulations;
|
2. |
All approvals required under the Factories Act , if any;
|
3. |
All licences to construct or conduct operations on the shore or foreshore under the Beach Control Act, if any;
|
4. |
All licences or approvals required for the import of motor vehicles or other equipment required for the business;
|
5. |
Any approvals as may be required under the Town and Country Planning Act
|
6. |
Any approvals as may be required from the Ministry of Labor as it relates to taxes and other governmental charges (including taxes on labor);
|
7. |
Any approvals as may be required from the Ministry of Finance as it relates to taxes and other governmental charges (including import duties or other charges on imported
equipment); and
|
8. |
All licenses or approvals required from the Parish Council and other planning and regulatory agencies that relate to construction permits and waste disposal.
|
1. |
An agreement between Seller and UDC (and any other holders of applicable land rights) authorizing Seller to construct and operate a Gas pipeline connecting Seller’s
facilities at Montego Freeport, Montego Bay to the Delivery Point;
|
2. |
A Lease Agreement between Seller and the Port Authority related to Seller’s Facilities at Montego Freeport, Montego Bay;
|
3. |
Agreements between Seller and Port Authority and any other person authorized to conduct berthing and unloading of vessels at Montego Freeport as it relates to Seller’s
operations in Jamaica at Montego Freeport, Montego Bay, and
|
4. |
Port stevedore and logistics agreements sufficient to provide for the unloading of vessels at Montego Freeport.
|
x
|
LNG PRODUCT:
|
||
Composition
|
Mole % Design
|
||
Hydrogen
|
0.000
|
||
Helium
|
0.000
|
||
Oxygen
|
0.000
|
||
Nitrogen
|
0.306
|
||
Carbon Dioxide
|
0.005
|
||
Hydrogen Sulfide
|
0.000
|
||
Methane
|
97.660
|
||
Ethane
|
1.821
|
||
Propane
|
0.155
|
||
Iso-Butane
|
0.022
|
||
N-Butane
|
0.021
|
||
Iso-Pentane
|
0.005
|
||
N-Pentane
|
0.003
|
||
Neo-pentane
|
0.000
|
||
Benzene
|
0.000
|
||
Toluene
|
0.000
|
||
o-Xylene
|
0.000
|
||
N-Hexane
|
0.003
|
||
N-Heptane
|
0.000
|
||
N-Octane
|
0.000
|
||
N-Nonane
|
0.000
|
||
Total
|
100.000
|
||
GHV (BTU/scf)
|
1024
|
||
LHV (BTU/scf)
|
923
|
x
|
LNG PRODUCT CONDITIONS:
|
||||
Units
|
Design
|
Mechanical Design
|
|||
Pressure
|
psig
|
1.0
|
TBD
|
||
Temperature
|
°F
|
-258.5
|
150 / -320
|
||
Liquid
|
|||||
Product
|
MMgpd
|
1.00
|
-
|
||
Equivalent Gas
|
|||||
Product
|
MMscfd
|
83.2
|
-
|
x
|
TYPICAL LNG PRODUCT QUALITY:
|
|||
Parameter
|
Units
|
Spec
|
||
Methane Number
|
> 80
|
|||
Wobbe Index
|
BTU/scf
|
1361
|
||
Methane
|
mole %
|
> 88
|
||
C4s
|
mole %
|
< 1.50
|
||
C5+
|
mole %
|
< 0.10
|
||
C6+
|
mole %
|
< 0.01
|
||
CO2
|
ppmv
|
< 50
|
||
H2S
|
ppmv
|
< 5
|
||
Total Sulfur
|
ppmv
|
< 20
|
||
Water
|
ppmv
|
< 0.1
|
||
Mercury (Hg)
|
ug/m3
|
< 0.01
|
||
Export Pressure at Bubble Point Temp
|
psig
|
1.0
|
||
Export Bubble Point Temperature
|
°F
|
-258.5
|
1. |
On Seller’s side of the Delivery Point, Seller will provide pay and check meters that will use telemetry and real time measurement; such measurements shall be recorded and
made available to Buyer and Seller. Seller will provide Buyer a check meter for Buyer to install and maintain custody of on Buyer’s side of the Delivery Point.
|
2. |
Seller shall operate and maintain pressure control devices on Seller’s side of the Delivery Point in accordance with agreed on specifications.
|
3. |
Gas shall be measured in accordance with agreed on specifications.
|
4. |
MMBtus shall be measured in accordance with agreed on specifications.
|
5. |
Seller shall be responsible for initially calibrating the measurement equipment on Seller’s side of the Delivery Point and shall have the obligation to provide Buyer
documentation evidencing the accuracy of both the “pay” and “check” meter and the differential between these meters will be not greater than 1%.
|
6. |
All measurement methodologies will be in accordance with the latest edition of GPA2172/GPA 2145.
|
7. |
All measurements shall be based on the Gas as delivered at the Delivery Point.
|
8. |
Billing will be based on Seller’s measurements at the Seller’s “pay” meter as installed by the Seller.
|
9. |
If it is established that any instrument comprising any of the Seller’s measuring equipment is not capable of the correct operation then the Seller shall either repair or
replace such instrument.
|
10. |
Seller shall be responsible for system losses of Gas from Seller’s Facilities to the Delivery Point (“Seller Losses”).
|
11. |
Buyer shall be responsible for system losses of Gas from the Delivery Point to Buyer’s Facilities (“Buyer Losses”).
|
Jamaica Public Service Company Limited
|
||
By:
|
||
[Collateral Agent]
|
||
By:
|
||
[Borrower]
|
||
By: |
(1) |
NFE North Holdings Limited, a Bermuda exempted limited liability company, with its registered address at Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda (“Seller”), as the assignee of New Fortress Energy LLC pursuant to the Deed of Assignment dated April 29, 2016; and
|
(2) |
Jamaica Public Service Company Limited, a company organized under the laws of Jamaica with its registered address at 6 Knutsford Boulevard, Kingston 5, Jamaica (“Buyer”).
|
(A) |
Seller and Buyer are parties to that certain Gas Sales Agreement dated August 5, 2015 (“Bogue
GSA”) pursuant to which Seller agreed to sell and make available and Buyer agreed to pay for and take, or pay for if not taken, natural gas as Fuel for Buyer’s 2 x 1 combined cycle unit consisting of 2 x 40MW GE Frame 6B
turbines (“Turbines”) located at the Bogue Power Station situated in Bogue Industrial Estate, Montego Bay, in the parish of St. James Jamaica (“Bogue”);
|
(B) |
NFE South Holdings Limited, as Affiliate of Seller, and South Jamaica Power Company Limited, an Affiliate of Buyer, are parties to that certain Gas Sales Agreement dated
February 29, 2016 (“Old Harbour GSA”) pursuant to which Seller agreed to sell and make available and Buyer agreed to pay for and take, or pay for
if not taken, natural gas from a new LNG receiving and regasification terminal to be constructed by Buyer in Old Harbour, Jamaica;
|
(C) |
Seller and Buyer executed a First Amendment to Gas Sales Agreement on February 29, 2016, and again on April 29, 2016, which amendments were rejected by the OUR and are void
ab initio; and
|
(D) |
Seller and Buyer desire to and do hereby amend the Bogue GSA to reflect new and revised terms and conditions in connection with the execution of the Old Harbour GSA and
consistent with communications with the OUR.
|
2.1 |
From the Amendment Effective Date until [**], the maximum “Breakage Costs” [**].
|
2.2 |
Effective on [**], the maximum
“Breakage Costs” [**].
|
2.3 |
The definition of “Gas Price Index” in the Bogue GSA shall be deleted and replaced with the following:
|
2.4 |
The definition of “Guaranteed Throughput Amount” shall be deleted and replaced with the following:
|
2.5 |
The definition of “Net Gas Costs” in the Bogue GSA shall be deleted and replaced with the following:
|
2.6 |
The definition of “Taxes” in the Bogue GSA shall be deleted and replaced with the following:
|
2.7 |
The definition of “Variable Rate” shall be deleted and replaced with the following:
|
2.8 |
A definition of “Licence” shall be inserted in the Bogue GSA as follows:
|
2.9 |
A definition of “Month” shall be inserted in the Bogue GSA as follows:
|
2.10 |
A definition of “Old Harbour Commercial Operations Date” shall be inserted in the Bogue GSA as follows:
|
2.11 |
A definition of “Take-or-Pay Contract” shall be inserted in the Bogue GSA as follows:
|
4.1 |
From the Amendment Effective Date until [**], the “Nomination Deadline” in Section 7.1 shall be [**] to [**].
|
4.2 |
Effective on [**], the
“Nomination Deadline” in Section 7.1 shall be [**] to [**].
|
4.3 |
Effective on [**], the phrase “[**]” in Section 7.2.1 shall be replaced with the phrase “[**]” and all instances of the phrase “[**]” in Section 7.2.1 shall be
replaced with “[**]”.
|
5.1 |
The first sentence of Section 9.2 of the Bogue GSA shall be deleted and replaced with the following:
|
5.2 |
The text of Section 9.5 of the Bogue GSA shall be deleted and replaced with the following:
|
6.1 |
The text “Except as provided in Section 16.3 or 16.4” of Section 16.1 of the Bogue GSA shall be deleted and replaced with the following:
|
6.2 |
The text of Section 16.4 of the Bogue GSA shall be deleted and replaced with the following:
|
6.3 |
The following shall be added as Section 16.5 of the Bogue GSA:
|
6.4 |
For the avoidance of doubt, nothing in this Amendment shall require Seller to construct additional facilities, or modify the facilities, at or around the Delivery Point.
|
7.1 |
The heading of Article 19 shall be changed from “Buyer Covenants” to “Buyer and Seller Covenants”. The current text of Article 19 shall be renumbered as Section 19.1 with
the heading “Buyer Covenants”.
|
7.2 |
A new Section 19.2 shall be added with the heading “Seller Covenants on Additional Customers”, the text of which shall read:
|
7.3 |
A new Section 19.3 shall be added with the heading “Seller Covenants on Additional Uses”, the text of which shall read:
|
7.4 |
A new Section 19.3 shall be added with the heading “Gas Supply Source”, the text of which shall read:
|
8.1 |
An updated Schedule 2, which includes examples of the Gas Index Price calculations based on the revisions in this Amendment, is attached hereto and shall replace Schedule 2
of the Bogue GSA.
|
8.2 |
Updated versions of Schedule 3, Schedule 5, and Schedule 6 are attached hereto and shall replace Schedule
3, Schedule 5, and Schedule 6 of the Bogue GSA
|
8.3 |
Schedule 11 attached hereto shall become Schedule 11 to the Bogue GSA.
|
9.1 |
This Amendment shall be read as one with the Bogue GSA and all these agreements shall be read and construed and operate as if they were one agreement and shall continue in
full force and effect as the legal, valid and binding obligations of the parties hereto.
|
9.2 |
This Amendment may be executed in multiple identical counterparts, each of which shall have the force and effect of an original and all of which shall constitute but one
and the same agreement.
|
/s/ Ken Nicholson | |
Ken Nicholson, Managing Director
|
|
Director
|
|
on behalf of:
|
|
NFE North Holdings Limited
|
/s/ Kelly Tomblin | |
Kelly Tomblin, President & CEO
|
|
on behalf of:
|
|
Jamaica Public Service Company Limited
|
1. |
Micro-LNG Terminal located at Berth #1 at the Port at Montego Bay, Jamaica
|
2. |
Natural gas supply pipeline beginning at the Micro-LNG Terminal located at Berth #1, Montego Bay, Jamaica and terminating at the Delivery Point
|
3. |
Metering and other measurement equipment (such as for Gas quality and composition)located at the origin of the natural gas supply pipeline and the Seller’s side of the
Delivery Point
|
4. |
Marine LNG carriers
|
1. |
Pressure of at least 300 psig
|
2. |
Temperature of at least 50°F
|
3. |
See “Specification for Fuel Gases for Combustion in Heavy-Dusty Gas Turbines” GEI 41040m, Revised, January 2011, attached.
|