Common use of EPC and Construction Contracts Clause in Contracts

EPC and Construction Contracts. The Borrower shall not: (a) except for Change Orders specified in Schedule 7.13 of the Common Terms Agreement, initiate or consent to (without the consent of the Required Senior Lenders in consultation with the Independent Engineer) any Change Order that: (i) on or after the Fifth Omnibus Amendment Effective Date, increases the contract price of any of the EPC Contracts as of the Closing Date; provided, that: (A) the Borrower may, without the consent of the Required Senior Lenders and subject to clauses (ii) through (xi) of this Section 2.13(a), enter into any Change Order or make payment of any claim under any of the EPC Contracts, if (aa) the amount of any such Change Order or payment is less than twenty-five million Dollars ($25,000,000) and the aggregate of all such Change Orders or payments with respect to such EPC Contract (together with any Change Orders under the EPC Contracts entered into after the Closing Date) is less than one hundred million Dollars ($100,000,000) and (bb) the Senior Facility Agent has received an IE Confirming Certificate; (B) if an event of Force Majeure or Change in Law (as each such term is described in the respective EPC Contract) prompts the EPC Contractor to request a Change Order to which it is entitled under the terms of the applicable EPC Contract, the Borrower shall be entitled to authorize such change without first obtaining the consent of the Required Senior Lenders if the amount of such change is within the remaining Contingency set forth in the Construction Budget, or to the extent that such amount exceeds the remaining Contingency, the Borrower has an additional source of funds for such excess amount in addition to any equity funds received on or prior to the Closing Date on terms reasonably satisfactory to the Common Security Trustee, provided, further, that any such change shall be subject to clauses (ii) through (xi) of this Section 2.13(a); (C) the Borrower may enter into any Change Order under any of the EPC Contracts for amounts in excess of the amounts specified in clause (a)(i)(A) above but subject to clauses (ii) through (xi) of this Section 2.13(a); provided, that with respect to this clause (C): (1) the Borrower or any other Person on behalf of the Borrower shall have transferred to the Common Security Trustee for deposit into the Construction Account equity funds provided by the Pledgor or the Sponsor in an amount that is in addition to any equity funds provided to the Borrower on or prior to the Closing Date and otherwise sufficient to pay the maximum amount that may become due and payable pursuant to such Change Order, provided further, that no such deposit shall be required in connection with any such Change Order, the amount and subject matter of which is included as an unallocated Contingency line item or which constitutes a utilization of any portion of the unallocated Contingency reflected in the Construction Budget; and (2) the Common Security Trustee shall have received an IE Confirming Certificate; and (D) the Borrower may, without the consent of the Required Senior Lenders, enter into any Change Order, make payment of any claim under any of the EPC Contracts and/or modify the Construction Budget to the extent the Borrower has certified in writing to the Senior Facility Agent that such amounts are paid for using Distributable Cash; (ii) extends the Guaranteed Substantial Completion Date for any train of the Project (except as permitted by clause (b) of the definition of the Guaranteed Substantial Completion Date) or could reasonably be expected to materially adversely affect the likelihood of achieving Substantial Completion for any train of the Project by such date; (iii) except as a result of a buydown of the Performance Guarantees pursuant to Section 11.4 (Minimum Acceptance Criteria and Performance Liquidated Damages) of the relevant EPC Contract which is otherwise permitted pursuant to the terms hereof or as a result of a Change Order to which the EPC Contractor is entitled under such EPC Contract for a Change in Law (as defined in such EPC Contract) (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such EPC Contract), modifies the Performance Guarantees, any other performance guarantee of the EPC Contractor or the criteria or procedures for the conduct or measuring the results of the Performance Tests (as each capitalized term used in this clause and not otherwise defined in this Agreement is defined in such EPC Contract); (iv) adjusts the Payment Schedules (other than as a result of a Change Order permitted by Section 2.13(a)(i) above or as otherwise permitted by this Agreement), adjusts the amount of or timing (including, without limitation, any adjustment of the Schedule Bonus Date for SP1, the Schedule Bonus Date for SP2, the Schedule Bonus Date for SP3 or the Schedule Bonus Date for SP4, but excluding the Schedule Bonus Date for SP6 under Section 13.2.C (Schedule Bonus) of the applicable EPC Contract) for payment of the Schedule Bonus (as each such term is defined in the applicable EPC Contract), or otherwise agree to any additional bonus to be paid to the EPC Contractor (excluding the Schedule Bonus Date for SP6 under Section 13.2.C (Schedule Bonus) of the Xxxxx 0 XXX Xxxxxxxx); provided, that any adjustment of the Schedule Bonus Date for SP5 shall be permitted without the consent of the Required Senior Lenders if the revenues received by the Borrower from the operation of the first four trains or five trains, respectively, of the Project prior to Substantial Completion of the fifth train or sixth train, respectively, of the Project are equal to or greater than the revenues projected to be received during such period under the Construction Budget (in each case, after giving effect to the payment of such additional bonus which shall be paid solely from such revenues); (v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the relevant EPC Contract (other than as the result of a Change Order which is permitted by Section 2.13(a)(i) above or otherwise permitted by this Agreement); (vi) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of the EPC Contract), diminishes or otherwise alters in any material respect the EPC Contractor’s liquidated damages obligations under the EPC Contract; (vii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of such EPC Contract), waives or alters the provisions under the relevant EPC Contract relating to default, termination or suspension or the waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate such EPC Contract, provided that the Independent Engineer’s consent shall not be required for any waiver by the EPC Contractor of any termination right arising from such force majeure; (viii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract), adversely modifies or impairs the enforceability of any warranty under such EPC Contract; provided, that this clause shall not

EPC and Construction Contracts. The Borrower shall not: (a) except for Change Orders specified in Schedule 7.13 of the Common Terms Agreement7.13, initiate or consent to (without the consent of the Required Senior Lenders Secured Parties in consultation with the Independent Engineer) any Change Order that: (i) on or after the Fifth Omnibus Amendment Effective Date, increases the contract price of any either of the EPC Contracts as of the Closing Date; provided, that: (A) the Borrower may, without the consent of the Required Senior Lenders Secured Parties and subject to clauses (ii) through (xi) of this Section 2.13(a7.13(a), enter into any Change Order or make payment of any claim under any either of the EPC Contracts, if (aa) the amount of any such Change Order or payment is less than twenty-five million Dollars ($25,000,000) and the aggregate of all such Change Orders or payments with respect to such EPC Contract (together with any Change Orders under the Stage 1 EPC Contracts entered into Contract not listed in Schedule 7.13 (Change Orders) to the Original Common Terms Agreement and any payments for claims under the Stage 1 EPC Contract made after the Closing DateDate (as defined in the Original Common Terms Agreement)) is less than one hundred million Dollars ($100,000,000) and (bb) the Senior Facility Agent Common Security Trustee and each Secured Debt Holder Group Representative has received an IE Confirming Certificate; (B) if an event of Force Majeure or Change in Law (as each such term is described in the respective EPC Contract) prompts the EPC Contractor to request a Change Order to which it is entitled under the terms of the applicable EPC Contract, the Borrower shall be entitled to authorize such change without first obtaining the consent of the Required Senior Lenders Secured Parties if the amount of such change is within the remaining Contingency set forth in the Construction BudgetBudget and Schedule, or to the extent that such amount exceeds the remaining Contingency, the Borrower has an additional source of funds for such excess amount in addition to any equity funds received on or prior to the Closing Date on terms reasonably satisfactory to the Common Security Trustee, provided, further, that any such change shall be subject to clauses (ii) through (xi) of this Section 2.13(a7.13(a);; and (C) the Borrower may enter into any Change Order under any either of the EPC Contracts for amounts in excess of the amounts specified in clause (a)(i)(A) above but subject to clauses (ii) through (xi) of this Section 2.13(a7.13(a); provided, that with respect to this clause (C): (1) the Borrower or any other Person on behalf of the Borrower shall have transferred to the Common Security Trustee for deposit into the Construction Account equity funds provided by the Pledgor or the Sponsor in an amount that is in addition to any equity funds provided to the Borrower on or prior to the Closing Date and otherwise sufficient to pay the maximum amount that may become due and payable pursuant to such Change Order, provided further, that no such deposit shall be required in connection with any such Change Order, the amount and subject matter of which is included as an unallocated Contingency line item or which constitutes a utilization of any portion of the unallocated Contingency reflected in the Construction BudgetBudget and Schedule; and (2) the Common Security Trustee shall have received an IE Confirming Certificate; and (D) the Borrower may, without the consent of the Required Senior Lenders, enter into any Change Order, make payment of any claim under any of the EPC Contracts and/or modify the Construction Budget to the extent the Borrower has certified in writing to the Senior Facility Agent that such amounts are paid for using Distributable Cash; (ii) extends the Guaranteed Substantial Completion Date for any train of the Project (except as permitted by clause (b) of the definition of the Guaranteed Substantial Completion Date) or could reasonably be expected to materially adversely affect the likelihood of achieving Substantial Completion for any train of the Project by such date; (iii) except as a result of a buydown of the Performance Guarantees pursuant to Section 11.4 (Minimum Acceptance Criteria and Performance Liquidated Damages) of the relevant EPC Contract which is otherwise permitted pursuant to the terms hereof or as a result of a Change Order to which the EPC Contractor is entitled under such EPC Contract for a Change in Law (as defined in such EPC Contract) (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such EPC Contract), modifies the Performance Guarantees, any other performance guarantee of the EPC Contractor or the criteria or procedures for the conduct or measuring the results of the Performance Tests (as each capitalized term used in this clause and not otherwise defined in this Agreement is defined in such EPC Contract); (iv) adjusts the Payment Schedules (other than as a result of a Change Order permitted by Section 2.13(a)(i7.13(a)(i) above or as otherwise permitted by this Agreement), adjusts the amount of or timing (including, without limitation, any adjustment of the Schedule Bonus Date for SP1, the Schedule Bonus Date for SP2, the Schedule Bonus Date for SP3 SP2 or the Schedule Bonus Date for SP4SP3, but excluding the Schedule Bonus Date for SP6 SP4 under Section 13.2.C (Schedule Bonus) of the applicable Stage 1 EPC Contract or the Stage 2 EPC Contract, as applicable) for payment of the Schedule Bonus (as each such term is defined in the applicable EPC Contract), or otherwise agree to any additional bonus to be paid to the EPC Contractor (but excluding the Schedule Bonus Date for SP6 SP4 under Section 13.2.C (Schedule Bonus) of the Xxxxx 0 XXX Xxxxxxxx); provided, that any adjustment of the Schedule Bonus Date for SP5 SP3 shall be permitted without the consent of the Required Senior Lenders Secured Parties if the revenues received by the Borrower from the operation of the first four three trains or five trains, respectively, of the Project prior to Substantial Completion of the fifth fourth train or sixth train, respectively, of the Project are equal to or greater than the revenues projected to be received during such period under the Construction Budget and Schedule (in each case, after giving effect to the payment of such additional bonus which shall be paid solely from such revenues); (v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the relevant EPC Contract (other than as the result of a Change Order which is permitted by Section 2.13(a)(i7.13(a)(i) above or otherwise permitted by this Agreement); (vi) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of the EPC Contract), diminishes or otherwise alters in any material respect the EPC Contractor’s liquidated damages obligations under the EPC Contract; (vii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of such EPC Contract), waives or alters the provisions under the relevant EPC Contract relating to default, termination or suspension or the waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate such EPC Contract, provided that the Independent Engineer’s consent shall not be required for any waiver by the EPC Contractor of any termination right arising from such force majeure; (viii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract), adversely modifies or impairs the enforceability of any warranty under such EPC Contract; provided, that this clause shall notnot preclude the Borrower from waiving warranties with respect to immaterial items comprising the Work under such EPC Contract; (ix) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such EPC Contract), impairs the ability of the Project to satisfy the Performance Tests; (x) results in the revocation or adverse modification of any material Government Approval; or (xi) causes the Project not to comply in all material respects with applicable Government Rule or Borrower’s Contractual Obligations; (b) approve any plan under Section 11 (Completion) of either of the EPC Contracts without the consent of the Common Security Trustee (in consultation with the Independent Engineer); provided, however, that the Common Security Trustee shall use reasonable efforts to promptly review all relevant documentation provided to it by the Borrower (and shall request the Independent Engineer to do the same); (c) certify to, consent to or otherwise request or permit through a Change Order or otherwise without the consent of the Common Security Trustee (in consultation with the Independent Engineer) the occurrence of Substantial Completion or Ready for Start Up with respect to each train of the Project, or make any election to take care, custody and control of the Project (or any portion thereof) pursuant to Section 11.4.B (Minimum Acceptance Criteria and Performance Liquidated Damages) (or any other provision thereof) of either of the EPC Contracts; provided, however, that the Common Security Trustee shall use reasonable efforts to promptly review all relevant documentation provided to it (directly or indirectly) by the Borrower; (d) collect on an EPC Letter of Credit under Section 7.8 (

EPC and Construction Contracts. The Borrower shall not: (a) except for Change Orders specified in Schedule 7.13 of the Common Terms Agreement7.13, initiate or consent to (without the consent of the Required Senior Lenders Secured Parties in consultation with the Independent Engineer) any Change Order that: (i) on or after the Fifth Omnibus Amendment Effective Date, increases the contract price of any of the EPC Contracts Contract as of the Closing Date; provided, that: (A) the Borrower may, without the consent of the Required Senior Lenders Secured Parties and subject to clauses (ii) through (xi) of this Section 2.13(a)7.13, enter into any Change Order or make payment of any claim under any of the EPC ContractsContract, if (aa) the amount of any such Change Order or payment is less than twenty-five million Dollars ($25,000,000) and the aggregate of all such Change Orders or payments with respect to such EPC Contract (together with any Change Orders under the EPC Contracts entered into after the Closing Date) is less than one hundred million Dollars ($100,000,000) and (bb) the Senior Facility Agent Common Security Trustee and each Secured Debt Holder Group Representative has received an IE Confirming Certificate; (B) if an event of Force Majeure or Change in Law (as each such term is described in the respective EPC Contract) prompts the EPC Contractor to request a Change Order to which it is entitled under the terms of the applicable EPC Contract, the Borrower shall be entitled to authorize such change without first obtaining the consent of the Required Senior Lenders Secured Parties if the amount of such change is within the remaining Contingency set forth in the Construction BudgetBudget and Schedule, or to the extent that such amount exceeds the remaining Contingency, the Borrower has an additional source of funds for such excess amount in addition to any equity funds received on or prior to the Closing Date Equity Contribution Amount on terms reasonably satisfactory to the Common Security Trustee, provided, further, that any such change shall be subject to clauses (ii) through (xi) of this Section 2.13(a7.13(a);; and (C) the Borrower may enter into any Change Order under any of the EPC Contracts Contract for amounts in excess of the amounts specified in clause (a)(i)(A) above but subject to clauses (ii) through (xi) of this Section 2.13(a)7.13; provided, that with respect to this clause (C): (1) the Borrower or any other Person on behalf of the Borrower shall have transferred to the Common Security Trustee for deposit into the Construction Account equity funds provided by the Pledgor or the Sponsor in an amount that is in addition to any equity funds provided to the Borrower on or prior to the Closing Date Equity Contribution Amount and otherwise sufficient to pay the maximum amount that may become due and payable pursuant to such Change Order, provided provided, further, that no such deposit shall be required in connection with any such Change Order, the amount and subject matter of which is included as an unallocated Contingency line item or which constitutes a utilization of any portion of the unallocated Contingency reflected in the Construction BudgetBudget and Schedule; and (2) the Common Security Trustee shall have received an IE Confirming Certificate; and (D) the Borrower may, without the consent of the Required Senior Lenders, enter into any Change Order, make payment of any claim under any of the EPC Contracts and/or modify the Construction Budget to the extent the Borrower has certified in writing to the Senior Facility Agent that such amounts are paid for using Distributable Cash; (ii) extends the Guaranteed Substantial Completion Date for any train of the Project (except as permitted by clause (b) of the definition of the Guaranteed Substantial Completion Datethereof) or could reasonably be expected to materially adversely affect the likelihood of achieving Substantial Completion for any train of the Project by such date; (iii) except as a result of a buydown of the Performance Guarantees pursuant to Section 11.4 (Minimum Acceptance Criteria and Performance Liquidated Damages) of the relevant EPC Contract which is otherwise permitted pursuant to the terms hereof or as a result of a Change Order to which the EPC Contractor is entitled under such the EPC Contract for a Change in Law (as defined in such the EPC Contract) (and provided that the Independent Engineer consents (which consent shall not to be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such the EPC Contract), modifies the Performance Guarantees, any other performance guarantee of the EPC Contractor or the criteria or procedures for the conduct or measuring the results of the Performance Tests (as each capitalized term used in this clause and not otherwise defined in this Agreement is defined in such the EPC Contract); (iv) adjusts the Payment Schedules (other than as a result of a Change Order permitted by Section 2.13(a)(i7.13(a)(i) above or as otherwise permitted by this Agreement), adjusts the amount of or timing (including, without limitation, any adjustment of the Schedule Bonus Date for SP1, the Schedule Bonus Date for SP2, the Schedule Bonus Date for SP3 or the Schedule Bonus Date for SP4, SP1 but excluding the Schedule Bonus Date for SP6 SP2 under Section 13.2.C (Schedule Bonus) of the applicable EPC Contract) for payment of the Schedule Bonus (as each such term is defined in the applicable EPC Contract), or otherwise agree to any additional bonus to be paid to the EPC Contractor (but excluding the Schedule Bonus Date for SP6 SP2 under Section 13.2.C (Schedule Bonus) of the Xxxxx 0 XXX XxxxxxxxEPC Contract); provided, that any adjustment of the Schedule Bonus Date for SP5 SP1 shall be permitted without the consent of the Required Senior Lenders Secured Parties if the revenues received by the Borrower from the operation of the first four trains or five trains, respectively, train of the Project prior to Substantial Completion of the fifth second train or sixth train, respectively, of the Project are equal to or greater than the revenues projected to be received during such period under the Construction Budget and Schedule (in each case, after giving effect to the payment of such additional bonus which shall be paid solely from such revenues); (v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the relevant EPC Contract (other than as the result of a Change Order which is permitted by Section 2.13(a)(i7.13(a)(i) above or otherwise permitted by this Agreement); (vi) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such the EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not to be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of the EPC Contract), diminishes or otherwise alters in any material respect the EPC Contractor’s liquidated damages obligations under the EPC Contract; (vii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such the EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not to be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of such the EPC Contract), waives or alters the provisions under the relevant EPC Contract relating to default, termination or suspension or the waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate such the EPC Contract, provided that the Independent Engineer’s consent shall not be required for any waiver by the EPC Contractor of any termination right arising from such force majeure; (viii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such the EPC Contract), adversely modifies or impairs the enforceability of any warranty under such the EPC Contract; provided, that this clause shall notnot preclude the Borrower from waiving warranties with respect to immaterial items comprising the Work under the EPC Contract; (ix) except as a result of a Change Order to which the EPC Contractor is entitled under the EPC Contract for a Change in Law (as defined in the EPC Contract) (and provided that the Independent Engineer consents (which consent shall not to be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of the EPC Contract), impairs the ability of the Project to satisfy the Performance Tests; (x) results in the revocation or adverse modification of any material Government Approval; or (xi) causes the Project not to comply in all material respects with applicable Government Rule or Borrower’s Contractual Obligations; (b) approve any plan under Section 11 (Completion) of the EPC Contract without the consent of the Common Security Trustee (in consultation with the Independent Engineer); provided, however, that the Common Security Trustee shall use reasonable efforts to promptly review all relevant documentation provided to it by the Borrower (and shall request the Independent Engineer to do the same); (c) certify to, consent to or otherwise request or permit through a Change Order or otherwise without the consent of the Common Security Trustee (in consultation with the Independent Engineer) the occurrence of Substantial Completion or Ready for Start Up with respect to each train of the Project, or make any election to take care, custody and control of the Project (or any portion thereof) pursuant to Section 11.4B (Minimum Acceptance Criteria and Performance Liquidated Damages) (or any other provision thereof) of the EPC Contract; provided, however, that the Common Security Trustee shall use reasonable efforts to promptly review all relevant documentation provided to them (directly or indirectly) by the Borrower; (d) collect on the EPC Letter of Credit under Section 7.8 (

EPC and Construction Contracts. The Borrower shall not: (a) except for Change Orders specified in Schedule 7.13 of the Common Terms Agreement, initiate or consent to (without the consent of the Required Senior Lenders in consultation with the Independent Engineer) any Change Order that: (i) on or after the Fifth Omnibus Amendment Effective Date, increases the contract price of any of the EPC Contracts as of the Closing Date; provided, that: (A) the Borrower may, without the consent of the Required Senior Lenders and subject to clauses (ii) through (xi) of this Section 2.13(a), enter into any Change Order or make payment of any claim under any of the EPC Contracts, if (aa) the amount of any such Change Order or payment is less than twenty-five million Dollars ($25,000,000) and the aggregate of all such Change Orders or payments with respect to such EPC Contract (together with any Change Orders under the EPC Contracts entered into after the Closing Date) is less than one hundred million Dollars ($100,000,000) and (bb) the Senior Facility Agent has received an IE Confirming Certificate; (B) if an event of Force Majeure or Change in Law (as each such term is described in the respective EPC Contract) prompts the EPC Contractor to request a Change Order to which it is entitled under the terms of the applicable EPC Contract, the Borrower shall be entitled to authorize such change without first obtaining the consent of the Required Senior Lenders if the amount of such change is within the remaining Contingency set forth in the Construction Budget, or to the extent that such amount exceeds the remaining Contingency, the Borrower has an additional source of funds for such excess amount in addition to any equity funds received on or prior to the Closing Date on terms reasonably satisfactory to the Common Security Trustee, provided, further, that any such change shall be subject to clauses (ii) through (xi) of this Section 2.13(a);; and (C) the Borrower may enter into any Change Order under any of the EPC Contracts for amounts in excess of the amounts specified in clause (a)(i)(A) above but subject to clauses (ii) through (xi) of this Section 2.13(a); provided, that with respect to this clause (C): (1) the Borrower or any other Person on behalf of the Borrower shall have transferred to the Common Security Trustee for deposit into the Construction Account equity funds provided by the Pledgor or the Sponsor in an amount that is in addition to any equity funds provided to the Borrower on or prior to the Closing Date and otherwise sufficient to pay the maximum amount that may become due and payable pursuant to such Change Order, provided further, that no such deposit shall be required in connection with any such Change Order, the amount and subject matter of which is included as an unallocated Contingency line item or which constitutes a utilization of any portion of the unallocated Contingency reflected in the Construction Budget; and (2) the Common Security Trustee shall have received an IE Confirming Certificate; and (D) the Borrower may, without the consent of the Required Senior Lenders, enter into any Change Order, make payment of any claim under any of the EPC Contracts and/or modify the Construction Budget to the extent the Borrower has certified in writing to the Senior Facility Agent that such amounts are paid for using Distributable Cash; (ii) extends the Guaranteed Substantial Completion Date for any train of the Project (except as permitted by clause (b) of the definition of the Guaranteed Substantial Completion Date) or could reasonably be expected to materially adversely affect the likelihood of achieving Substantial Completion for any train of the Project by such date; (iii) except as a result of a buydown of the Performance Guarantees pursuant to Section 11.4 (Minimum Acceptance Criteria and Performance Liquidated Damages) of the relevant EPC Contract which is otherwise permitted pursuant to the terms hereof or as a result of a Change Order to which the EPC Contractor is entitled under such EPC Contract for a Change in Law (as defined in such EPC Contract) (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such EPC Contract), modifies the Performance Guarantees, any other performance guarantee of the EPC Contractor or the criteria or procedures for the conduct or measuring the results of the Performance Tests (as each capitalized term used in this clause and not otherwise defined in this Agreement is defined in such EPC Contract); (iv) adjusts the Payment Schedules (other than as a result of a Change Order permitted by Section 2.13(a)(i) above or as otherwise permitted by this Agreement), adjusts the amount of or timing (including, without limitation, any adjustment of the Schedule Bonus Date for SP1, the Schedule Bonus Date for SP2, the Schedule Bonus Date for SP3 or the Schedule Bonus Date for SP4, but excluding the Schedule Bonus Date for SP6 under Section 13.2.C (Schedule Bonus) of the applicable EPC Contract) for payment of the Schedule Bonus (as each such term is defined in the applicable EPC Contract), or otherwise agree to any additional bonus to be paid to the EPC Contractor (excluding the Schedule Bonus Date for SP6 under Section 13.2.C (Schedule Bonus) of the Xxxxx 0 XXX Xxxxxxxx); provided, that any adjustment of the Schedule Bonus Date for SP5 shall be permitted without the consent of the Required Senior Lenders if the revenues received by the Borrower from the operation of the first four trains or five trains, respectively, of the Project prior to Substantial Completion of the fifth train or sixth train, respectively, of the Project are equal to or greater than the revenues projected to be received during such period under the Construction Budget (in each case, after giving effect to the payment of such additional bonus which shall be paid solely from such revenues); (v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the relevant EPC Contract (other than as the result of a Change Order which is permitted by Section 2.13(a)(i) above or otherwise permitted by this Agreement); (vi) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of the EPC Contract), diminishes or otherwise alters in any material respect the EPC Contractor’s liquidated damages obligations under the EPC Contract; (vii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of such EPC Contract), waives or alters the provisions under the relevant EPC Contract relating to default, termination or suspension or the waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate such EPC Contract, provided that the Independent Engineer’s consent shall not be required for any waiver by the EPC Contractor of any termination right arising from such force majeure; (viii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract), adversely modifies or impairs the enforceability of any warranty under such EPC Contract; provided, that this clause shall not

EPC and Construction Contracts. The Borrower shall not: (a) except for Change Orders specified in Schedule 7.13 of the Common Terms Agreement7.13, initiate or consent to (without the consent of the Required Senior Lenders Secured Parties in consultation with the Independent Engineer) any Change Order that: (i) on or after the Fifth Omnibus Amendment Effective Date, increases the contract price of any of the EPC Contracts as of the Closing Date; provided, that: (A) the Borrower may, without the consent of the Required Senior Lenders Secured Parties and subject to clauses (ii) through (xi) of this Section 2.13(a7.13(a), enter into any Change Order or make payment of any claim under any of the EPC Contracts, if (aa) the amount of any such Change Order or payment is less than twenty-five million Dollars ($25,000,000) and the aggregate of all such Change Orders or payments with respect to such EPC Contract (together with any Change Orders under the EPC Contracts entered into after the Closing Date) is less than one hundred million Dollars ($100,000,000) and (bb) the Senior Facility Agent Common Security Trustee and each Secured Debt Holder Group Representative has received an IE Confirming Certificate; (B) if an event of Force Majeure or Change in Law (as each such term is described in the respective EPC Contract) prompts the EPC Contractor to request a Change Order to which it is entitled under the terms of the applicable EPC Contract, the Borrower shall be entitled to authorize such change without first obtaining the consent of the Required Senior Lenders Secured Parties if the amount of such change is within the remaining Contingency set forth in the Construction Budget, or to the extent that such amount exceeds the remaining Contingency, the Borrower has an additional source of funds for such excess amount in addition to any equity funds received on or prior to the Closing Date on terms reasonably satisfactory to the Common Security Trustee, provided, further, that any such change shall be subject to clauses (ii) through (xi) of this Section 2.13(a7.13(a);; and (C) the Borrower may enter into any Change Order under any of the EPC Contracts for amounts in excess of the amounts specified in clause (a)(i)(A) above but subject to clauses (ii) through (xi) of this Section 2.13(a7.13(a); provided, that with respect to this clause (C): (1) the Borrower or any other Person on behalf of the Borrower shall have transferred to the Common Security Trustee for deposit into the Construction Account equity funds provided by the Pledgor or the Sponsor in an amount that is in addition to any equity funds provided to the Borrower on or prior to the Closing Date and otherwise sufficient to pay the maximum amount that may become due and payable pursuant to such Change Order, provided further, that no such deposit shall be required in connection with any such Change Order, the amount and subject matter of which is included as an unallocated Contingency line item or which constitutes a utilization of any portion of the unallocated Contingency reflected in the Construction Budget; and (2) the Common Security Trustee shall have received an IE Confirming Certificate; and (D) the Borrower may, without the consent of the Required Senior Lenders, enter into any Change Order, make payment of any claim under any of the EPC Contracts and/or modify the Construction Budget to the extent the Borrower has certified in writing to the Senior Facility Agent that such amounts are paid for using Distributable Cash; (ii) extends the Guaranteed Substantial Completion Date for any train of the Project (except as permitted by clause (b) of the definition of the Guaranteed Substantial Completion Date) or could reasonably be expected to materially adversely affect the likelihood of achieving Substantial Completion for any train of the Project by such date; (iii) except as a result of a buydown of the Performance Guarantees pursuant to Section 11.4 (Minimum Acceptance Criteria and Performance Liquidated Damages) of the relevant EPC Contract which is otherwise permitted pursuant to the terms hereof or as a result of a Change Order to which the EPC Contractor is entitled under such EPC Contract for a Change in Law (as defined in such EPC Contract) (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such EPC Contract), modifies the Performance Guarantees, any other performance guarantee of the EPC Contractor or the criteria or procedures for the conduct or measuring the results of the Performance Tests (as each capitalized term used in this clause and not otherwise defined in this Agreement is defined in such EPC Contract); (iv) adjusts the Payment Schedules (other than as a result of a Change Order permitted by Section 2.13(a)(i7.13(a)(i) above or as otherwise permitted by this Agreement), adjusts the amount of or timing (including, without limitation, any adjustment of the Schedule Bonus Date for SP1, the Schedule Bonus Date for SP2, the Schedule Bonus Date for SP3 or the Schedule Bonus Date for SP4, but but, unless and until Train 6 Debt has been incurred, excluding the Schedule Bonus Date for SP5 and, after the incurrence of Train 6 Debt, excluding the Schedule Bonus Date for SP6 under Section 13.2.C 13.2 (Schedule Bonus) of the applicable EPC Contract) for payment of the Schedule Bonus (as each such term is defined in the applicable EPC Contract), or otherwise agree to any additional bonus to be paid to the EPC Contractor (but, unless and until Train 6 Debt has been incurred, excluding the Schedule Bonus Date for SP5 under Section 13.2.B (Schedule Bonus) of the Stage 3 EPC Contract, and after the incurrence of Train 6 Debt, excluding the Schedule Bonus Date for SP6 under Section 13.2.C 13.2 (Schedule Bonus) of the Xxxxx 0 XXX Xxxxxxxx); provided, that any adjustment of the Schedule Bonus Date for for, prior to the incurrence of Train 6 Debt, SP4 and, from and after the incurrence of Train 6 Debt, SP5 shall be permitted without the consent of the Required Senior Lenders Secured Parties if the revenues received by the Borrower from the operation of the first four trains or five trains, respectively, of the Project prior to Substantial Completion of the fifth train or sixth train, respectively, of the Project are equal to or greater than the revenues projected to be received during such period under the Construction Budget (in each case, after giving effect to the payment of such additional bonus which shall be paid solely from such revenues); (v) causes any material component or material design feature or aspect of the Project to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the relevant EPC Contract (other than as the result of a Change Order which is permitted by Section 2.13(a)(i7.13(a)(i) above or otherwise permitted by this Agreement); (vi) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of the such EPC Contract), diminishes or otherwise alters in any material respect the EPC Contractor’s liquidated damages obligations under the EPC Contract; (vii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of such EPC Contract), waives or alters the provisions under the relevant EPC Contract relating to default, termination or suspension or the waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate such EPC Contract, provided that the Independent Engineer’s consent shall not be required for any waiver by the EPC Contractor of any termination right arising from such force majeure; (viii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract), adversely modifies or impairs the enforceability of any warranty under such EPC Contract; provided, that this clause shall notnot preclude the Borrower from waiving warranties with respect to immaterial items comprising the Work under such EPC Contract; (ix) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such EPC Contract), impairs the ability of the Project to satisfy the Performance Tests; (x) results in the revocation or adverse modification of any material Government Approval; or (xi) causes the Project not to comply in all material respects with applicable Government Rule or the Borrower’s Contractual Obligations; (b) approve any plan under Article 11 (Completion) of any of the EPC Contracts without the consent of the Common Security Trustee (in consultation with the Independent Engineer); provided, however, that the Common Security Trustee shall use reasonable efforts to promptly review all relevant documentation provided to it by the Borrower (and shall request the Independent Engineer to do the same); (c) certify to, consent to or otherwise request or permit through a Change Order or otherwise without the consent of the Common Security Trustee (in consultation with the Independent Engineer) the occurrence of Substantial Completion or Ready for Start Up with respect to each train of the Project, or make any election to take care, custody and control of the Project (or any portion thereof) pursuant to Section 11.4.B (Minimum Acceptance Criteria and Performance Liquidated Damages) (or any other provision thereof) of any of the EPC Contracts; provided, however, that the Common Security Trustee shall use reasonable efforts to promptly review all relevant documentation provided to it (directly or indirectly) by the Borrower (and shall request the Independent Engineer to do the same); (d) collect on an EPC Letter of Credit under Section 7.8 (

EPC and Construction Contracts. (a) Phase 1. The Borrower shall not: (ai) except for Change Orders specified in Schedule 7.13 of the Common Terms Agreement, initiate or consent to (without the consent of the Required Senior Majority Lenders in consultation with the Independent Engineer) any Change Order change in the description of work under the Phase 1 EPC Contract that, directly or indirectly, could be reasonably expected to or in fact does: (iA) on or after the Fifth Omnibus Amendment Effective Date, increases increase the contract price of any of the Phase 1 EPC Contracts Contract as of the Closing Effective Date; provided, that: that (A1) the Borrower may, without the consent of the Required Senior Lenders and subject to clauses (ii) through (xi) of this Section 2.13(a)Majority Lenders, enter into any Phase 1 Change Order or make payment of any claim under any of the Phase 1 EPC ContractsContract, if (aa) such increase is with respect to identified and unused allowances under the Phase 1 EPC Contract, or the amount of any such Phase 1 Change Order or payment is less than twenty-five million Dollars ($25,000,000) 5,000,000 and the aggregate of all such Phase 1 Change Orders or payments with respect to such EPC Contract (together with any Change Orders under the EPC Contracts entered into after the Closing Date) is less than one hundred million Dollars ($100,000,000) 15,000,000 and (bb) the Senior Facility Agent has received an IE Confirming Certificate; a certificate of the Independent Engineer confirming that after giving effect to such Phase 1 Change Orders or payments (Bx) the ability of the Borrower to achieve Phase 1 Substantial Completion in accordance with the Phase 1 Construction Budget and Schedule has not been adversely and materially affected and (y) no cost overruns shall have occurred and be continuing which could reasonably be expected to result in Phase 1 Project Costs exceeding the funds then available to pay such Phase 1 Project Costs; (2) if an event of Force Majeure or force majeure, Change in Law or Borrower-Caused Delay (as each such term is described in the respective Phase 1 EPC Contract) prompts the Phase 1 EPC Contractor to request a Phase 1 Change Order to which it is entitled under the terms of the applicable Phase 1 EPC Contract, the Borrower shall be entitled to authorize such change without first obtaining the consent of the Required Senior Lenders if the amount of such change is within the remaining Contingency set forth in the Phase 1 Construction Budget, or to the extent that such amount exceeds the remaining Contingency, the Borrower has an additional source of funds for such excess amount in addition to any equity funds received on or prior to the Closing Date on terms reasonably satisfactory to the Common Security Trustee, provided, further, that any such change shall be subject to clauses Budget and Schedule; and (ii) through (xi) of this Section 2.13(a); (C3) the Borrower may enter into any Phase 1 Change Order under any of the Phase 1 EPC Contracts Contract for amounts in excess of the amounts specified in clause (a)(i)(AA)(1) above but subject to clauses (ii) through (xi) of this Section 2.13(a)above; provided, that with respect to this clause (C): (1I) the Borrower or any other Person on behalf of the Borrower shall have transferred to the Common Security Trustee Collateral Agent for deposit into to the Phase 1 Construction Account equity funds provided by the Pledgor or the Sponsor in an amount that is in addition to any equity funds provided to the Borrower on or prior to the Closing Date and otherwise sufficient to pay the maximum amount that may become due and payable pursuant to such Phase 1 Change Order, provided furtherOrder provided, that no such deposit shall be required in connection with any such Phase 1 Change Order, Order the amount and subject matter of which is included as an unallocated a Contingency line item or which constitutes a utilization of any portion of the unallocated Contingency reflected in the Phase 1 Construction Budget; and Budget and Schedule delivered on the Effective Date and (2II) the Common Security Trustee Agent shall have received an IE Confirming Certificate; and a certificate of the Independent Engineer confirming that after giving effect to such Phase 1 Change Order or payments (DX) the Borrower may, without the consent ability of the Required Senior Lenders, enter into any Change Order, make payment of any claim under any of the EPC Contracts and/or modify the Construction Budget Borrower to the extent the Borrower has certified in writing to the Senior Facility Agent that such amounts are paid for using Distributable Cash; (ii) extends achieve Phase 1 Substantial Completion by the Guaranteed Substantial Completion Date has not been materially adversely affected and (Y) such Phase 1 Change Order will not result in Phase 1 Project Costs exceeding the funds then available to pay such Phase 1 Project Costs; for avoidance of doubt, nothing contained in this clause 8.20(A)(1) shall be deemed to amend or modify any other requirement contained in this Agreement to obtain the consent of the Lenders, the Agent and/or Independent Engineer for any train increase in Project Costs or use of proceeds of the Project Loans; (except as permitted by clause (bB) of the definition of extend the Guaranteed Substantial Completion Date) Date or could reasonably be expected to materially adversely affect the likelihood of achieving Phase 1 Substantial Completion for any train of the Project by such date; (iiiC) except as a result of a buydown of the Performance Guarantees pursuant to Section 11.4 (Minimum Acceptance Criteria and Performance Liquidated Damages) 11.5 of the relevant Phase 1 EPC Contract which is otherwise permitted pursuant to the terms hereof or as a result of a Change Order to which the EPC Contractor is entitled under such EPC Contract for a Change in Law (as defined in such EPC Contract) (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheldhereof, conditioned or delayed) to the Borrower’s consent to such Change Order pursuant to Section 6.2.C of such EPC Contract), modifies modify the Performance Guarantees, any other performance guarantee of the Phase 1 EPC Contractor or the criteria or procedures for the conduct or measuring the results of the Performance Tests (as each capitalized term used in this clause and not otherwise defined in this Agreement is defined in such the Phase 1 EPC Contract); (ivD) adjusts adjust the Payment Schedules (other than as a result of a Phase 1 Change Order permitted by Section 2.13(a)(i8.20(a)(i) above or as otherwise permitted by this Agreement), adjusts or adjust the amount of or timing (including, without limitation, any adjustment of the Schedule Bonus Date for SP1, the Schedule Bonus Date for SP2, the Schedule Bonus Date for SP3 or the Schedule Bonus Date for SP4, but excluding the Schedule Bonus Date for SP6 under Section 13.2.C (Schedule Bonus) of the applicable EPC Contract) for payment of the Schedule Bonus (as each such term is defined in the applicable Phase 1 EPC Contract), ) (other than in the manner contemplated by the Phase 1 Change Order substantially in the form attached hereto as Exhibit M) or otherwise agree to any additional bonus to be paid to the Phase 1 EPC Contractor (excluding the Schedule Bonus Date for SP6 under Section 13.2.C (Schedule Bonus) of the Xxxxx 0 XXX Xxxxxxxx); provided, that any adjustment of the Schedule Bonus Date for SP5 shall be permitted without the consent of the Required Senior Lenders if the revenues received by the Borrower from the operation of the first four trains or five trains, respectively, of the Project prior to Substantial Completion of the fifth train or sixth train, respectively, of the Project are equal to or greater than the revenues projected to be received during such period under the Construction Budget (in each case, after giving effect to the payment of such additional bonus which shall be paid solely from such revenues)Contractor; (vE) causes cause any material component or material design feature or aspect of the Project Phase 1 to materially deviate in any fundamental manner from the description thereof set forth in the schedules, exhibits, appendices or annexes to the relevant Phase 1 EPC Contract (other than as the result of a Phase 1 Change Order for an amount not greater than $35,000,000 which is permitted by Section 2.13(a)(i8.20(a)(i) above or otherwise permitted by this Agreement); (viF) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of the EPC Contract), diminishes diminish or otherwise alters alter in any material respect the any Phase 1 EPC Contractor’s liquidated damages obligations under the Phase 1 EPC Contract; (viiG) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract) waive or force majeure (and provided that the Independent Engineer consents (which consent shall not be unreasonably withheld, conditioned or delayed) to the Borrower’s consent to such force majeure Change Order pursuant to Section 6.2.C of such EPC Contract), waives or alters alter the provisions under the relevant Phase 1 EPC Contract relating to default, termination or suspension or the waiver by the Borrower of any event that, with the giving of notice or the lapse of time or both, would entitle the Borrower to terminate such the Phase 1 EPC Contract; or (H) otherwise materially diminish, provided that lessen or waive in any manner any material liability, obligation or undertaking of the Phase 1 EPC Contractor under the Phase 1 EPC Contract. (ii) approve any remedial plan under Section 11 of the Phase 1 EPC Contract; (iii) without limiting any restrictions set forth in Section 8.20(a)(i) or (ii) above, issue, direct, authorize, consent to or suffer the occurrence of, any variation, Phase 1 Change Order, amendment or modification or suspension of or to the Phase 1 EPC Contract that, directly or indirectly, constitutes or could reasonably be expected to result in a Material Adverse Effect; and (iv) certify to, consent to or otherwise request or permit through a Phase 1 Change Order or otherwise without the consent of the Majority Lenders (in consultation with the Independent Engineer’s consent shall not be required ) the occurrence of Phase 1 Substantial Completion, Phase 1 Final Completion, Ready for Performance Testing or Ready for Cool Down or make any waiver by election to take care, custody and control of Phase 1 (or any portion thereof) pursuant to Section 11.5B (or any other provision thereof) of the EPC Contractor of any termination right arising from such force majeure; (viii) except as a result of a Change Order to which the EPC Contractor is entitled under the relevant EPC Contract for a Change in Law (as defined in such EPC Contract), adversely modifies or impairs the enforceability of any warranty under such Phase 1 EPC Contract; provided, however, that this clause the Agent shall notuse reasonable efforts to promptly review relevant documentation provided to it by the Borrower.