Common use of Project Co's Failure to Make Available Clause in Contracts

Project Co's Failure to Make Available. 11.2.1 In respect of each Diverted Cargo, Project Co shall make available to the Transporter the FOB SCQ set forth in the FOB ADP or FOB Ninety Day Schedule, less: (A) quantities of LNG not taken by the Transporter for any reason attributable to the Transporter (other than quantities for which the Transporter is excused from taking pursuant to this Agreement due to Project Co’s breach of this Agreement), including Diverted Cargo Force Majeure affecting the Transporter; (B) quantities of LNG for which the Transporter has provided a notice of cancellation pursuant to Paragraph 1.4 of Part A of Schedule 2; and (C) quantities of LNG not made available by Project Co due to Diverted Cargo Force Majeure. 11.2.2 Except as otherwise excused pursuant to this Agreement, if for any reason other than those specified in Paragraph 11.2.1, Project Co does not make available the FOB SCQ in respect of any Diverted Cargo identified in Paragraph 11.2.1 then the amount by which the FOB SCQ for such Diverted Cargo exceeds the quantity of LNG made available by Project Co shall be the “Diverted Cargo DoP Quantity”. Project Co shall make a payment to the Transporter for each MMBtu of the Diverted Cargo DoP Quantity in an amount equal to: (a) the actual, documented price incurred by the Transporter for the purchase of a replacement quantity of LNG or Gas (not to exceed the MMBtu equivalent of the Diverted Cargo DoP Quantity), or, in respect of any Diverted Cargo DoP Quantity for which a replacement quantity cannot be purchased, the market price of LNG at such time for delivery FOB in the U.S. Gulf Coast; less (b) the FOB Price; plus (c) any actual, reasonable, and verifiable costs (if any), incurred by Transporter due to such failure, including costs associated with transportation; plus (d) any actual, verifiable costs incurred by the Transporter in respect of idling the LNG Tanker scheduled to load the Diverted Cargo DoP Quantity; less (e) actual, reasonable, and verifiable cost savings realised by the Transporter due to Project Co’s failure to make the FOB SCQ for such Diverted Cargo available (the “Diverted Cargo DoP Payment”). For the purposes of calculating the Diverted Cargo DoP Payment, the FOB Price shall be determined as of the Month in which the applicable FOB Delivery Window begins. 11.2.3 Notwithstanding the foregoing, if the Diverted Cargo DoP Quantity is within the Operational Tolerance (such Operational Tolerance to be exercised by Project Co only with respect to operational matters regarding the Corpus Christi Facility (or Alternate Production Facility, as applicable), and without regard to Gas markets or other commercial considerations), the Diverted Cargo DoP Payment shall be zero USD (US$0.00).

Project Co's Failure to Make Available. 11.2.1 In respect of each Diverted Cargo, Project Co shall make available to the Transporter the FOB SCQ set forth in the FOB ADP or FOB Ninety Day Schedule, less: (A) quantities of LNG not taken by the Transporter for any reason attributable to the Transporter (other than quantities for which the Transporter is excused from taking pursuant to this Agreement due to Project Co’s breach of this Agreement), including Diverted Cargo Force Majeure affecting the Transporter; (B) quantities of LNG for which the Transporter has provided a notice of cancellation pursuant to Paragraph 1.4 of Part A of Schedule 2; and (C) quantities of LNG not made available by Project Co due to Diverted Cargo Force Majeure. 11.2.2 Except as otherwise excused pursuant to this Agreement, if for any reason other than those specified in Paragraph 11.2.1, Project Co does not make available the FOB SCQ in respect of any Diverted Cargo identified in Paragraph 11.2.1 then the amount by which the FOB SCQ for such Diverted Cargo exceeds the quantity of LNG made available by Project Co shall be the “Diverted Cargo DoP Quantity”. Project Co shall make a payment to the Transporter for each MMBtu of the Diverted Cargo DoP Quantity in an amount equal to: (a) the actual, documented price incurred by the Transporter for the purchase of a replacement quantity of LNG or Gas (not to exceed the MMBtu equivalent of the Diverted Cargo DoP Quantity), or, in respect of any Diverted Cargo DoP Quantity for which a replacement quantity cannot be purchased, the market price of LNG at such time for delivery FOB in the U.S. Gulf Coast; less (b) the FOB Price; plus (c) any actual, reasonable, and verifiable costs (if any), incurred by Transporter due to such failure, including costs associated with transportation; plus (d) any actual, verifiable costs incurred by the Transporter in respect of idling the LNG Tanker scheduled to load the Diverted Cargo DoP Quantity; less (e) actual, reasonable, and verifiable cost savings realised by the Transporter due to Project Co’s failure to make the FOB SCQ for such Diverted Cargo available (the “Diverted Cargo DoP Payment”). For the purposes of calculating the Diverted Cargo DoP Payment, the FOB Price shall be determined as of the Month in which the applicable FOB Delivery Window begins. 11.2.3 Notwithstanding the foregoing, if the Diverted Cargo DoP Quantity is within the Operational Tolerance (such Operational Tolerance to be exercised by Project Co only with respect to operational matters regarding the Corpus Christi Facility (or Alternate Production Facility, as applicable), and without regard to Gas markets or other commercial considerations), the Diverted Cargo DoP Payment shall be zero USD (US$0.00). 11.2.4 The Transporter shall use reasonable efforts to mitigate Project Co’s liability to make any payments pursuant to this Paragraph 11.2. 11.2.5 In the event the ability of the Corpus Christi Facility to produce and deliver LNG is impaired due to an unscheduled services interruption that does not constitute Diverted Cargo Force Majeure, then during such event of interruption, Project Co shall comply with the Foundation Customer Priority in allocating the LNG that is available from the Corpus Christi Facility. 11.2.6 If as a result of Project Co’s failure to make available the FOB SCQ in respect of a Diverted Cargo, a partial cargo is made available to the Transporter, and the master of the relevant LNG Tanker deems in his sole discretion the loading of such quantity unsafe for loading and/or transporting to the relevant Receiving Terminal, then the Transporter may reject such quantity and such quantity shall be added to the Diverted Cargo DoP Quantity. 11.2.7 Any payment that Project Co makes under this Paragraph 11.2 shall not be limited by Clause 16.4.1. 11.2.8 Notwithstanding the foregoing, in no circumstances shall the Diverted Cargo DoP Payment exceed an amount equal to the FOB CSP (as defined in Clause 11.1.2) multiplied by the Diverted Cargo DoP Quantity.

Project Co's Failure to Make Available. 11.2.1 In respect of each Diverted Cargo, Project Co shall make available to the Transporter the FOB SCQ set forth in the FOB ADP or FOB Ninety Day Schedule, less: (A) quantities of LNG not taken by the Transporter for any reason attributable to the Transporter (other than quantities for which the Transporter is excused from taking pursuant to this Agreement due to Project Co’s breach of this Agreement), including Diverted Cargo Force Majeure affecting the Transporter; (B) quantities of LNG for which the Transporter has provided a notice of cancellation pursuant to Paragraph 1.4 of Part A of Schedule 2; and (C) quantities of LNG not made available by Project Co due to Diverted Cargo Force Majeure. 11.2.2 Except as otherwise excused pursuant to this Agreement, if for any reason other than those specified in Paragraph 11.2.1, Project Co does not make available the FOB SCQ in respect of any Diverted Cargo identified in Paragraph 11.2.1 then the amount by which the FOB SCQ for such Diverted Cargo exceeds the quantity of LNG made available by Project Co shall be the “Diverted Cargo DoP Quantity”. Project Co shall make a payment to the Transporter for each MMBtu of the Diverted Cargo DoP Quantity in an amount equal to: (a) the actual, documented price incurred by the Transporter for the purchase of a replacement quantity of LNG or Gas (not to exceed the MMBtu equivalent of the Diverted Cargo DoP Quantity), or, in respect of any Diverted Cargo DoP Quantity for which a replacement quantity cannot be purchased, the market price of LNG at such time for delivery FOB in the U.S. Gulf Coast; less (b) the FOB Price; plus (c) any actual, reasonable, and verifiable costs (if any), incurred by Transporter due to such failure, including costs associated with transportation; plus (d) any actual, verifiable costs incurred by the Transporter in respect of idling the LNG Tanker scheduled to load the Diverted Cargo DoP Quantity; less (e) actual, reasonable, and verifiable cost savings realised by the Transporter due to Project Co’s failure to make the FOB SCQ for such Diverted Cargo available (the “Diverted Cargo DoP Payment”). For the purposes of calculating the Diverted Cargo DoP Payment, the FOB Price shall be determined as of the Month in which the applicable FOB Delivery Window begins. 11.2.3 Notwithstanding the foregoing, if the Diverted Cargo DoP Quantity is within the Operational Tolerance (such Operational Tolerance to be exercised by Project Co only with respect to operational matters regarding the Corpus Christi Facility (or Alternate Production Facility, as applicable), and without regard to Gas markets or other commercial considerations), the Diverted Cargo DoP Payment shall be zero USD (US$0.00). 11.2.4 The Transporter shall use reasonable efforts to mitigate Project Co’s liability to make any payments pursuant to this Paragraph 11.2. 11.2.5 In the event the ability of the Corpus Christi Facility to produce and deliver LNG is impaired due to an unscheduled services interruption that does not constitute Diverted Cargo Force Majeure, then during such event of interruption, Project Co shall comply with the Foundation Customer Priority in allocating the LNG that is available from the Corpus Christi Facility. 11.2.6 If as a result of Project Co’s failure to make available the FOB SCQ in respect of a Diverted Cargo, a partial cargo is made available to the Transporter, and the master of the relevant LNG Tanker deems in his sole discretion the loading of such quantity unsafe for loading and/or transporting to the relevant Receiving Terminal, then the Transporter may reject such quantity and such quantity shall be added to the Diverted Cargo DoP Quantity. 11.2.7 Any payment that Project Co makes under this Paragraph 11.2 shall not be limited by Clause 16.4.1. 66 11.2.8 Notwithstanding the foregoing, in no circumstances shall the Diverted Cargo DoP Payment exceed an amount equal to the FOB CSP (as defined in Clause 11.1.2) multiplied by the Diverted Cargo DoP Quantity.