Turnkey Engineering Procurement And Construction Contract

Exhibit 10.14

EXECUTION COPY

TURNKEY ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR

ETHANOL PRODUCTION FACILITY

BETWEEN

PANDA YUMA ETHANOL, LP

A Delaware Limited Partnership

AND

LURGI, INC.

A Tennessee Corporation

Dated as of March 1, 2007

CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY PANDA ETHANOL, INC. FOR CERTAIN PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS ARE INDICATED IN THIS AGREEMENT WITH " *****" .

TABLE OF CONTENTS


ARTICLE I GENERAL MATTERS 1

Section 1.01 Defined Terms. 1

Section 1.02 Interpretation. 13

Section 1.03 Exhibits. 14

ARTICLE II RETENTION OF CONTRACTOR 14

Section 2.01 Retention of Contractor. 14

Section 2.02 Status of Contractor; No Partnership. 14

Section 2.03 Subcontractors and Vendors. 15

ARTICLE III CERTAIN OBLIGATIONS AND RESPONSIBILITIES OF CONTRACTOR 16

Section 3.01 Scope of Work; Applicable Standards. 16

Section 3.02 Control and Method of the Work. 16

Section 3.03 Compliance with Law. 17

Section 3.04 Certain Matters Pertaining to Job Site. 17

Section 3.05 Access to Job Site. 18

Section 3.06 Inspection and Testing of Work in Progress. 18

Section 3.07 No Waiver of Responsibility. 18

Section 3.08 Intentionally left blank. 19

Section 3.09 Clean-Up. 19

Section 3.10 Obtaining, Maintaining and Identifying Permits. 19

Section 3.11 Labor. 20

Section 3.12 Project Management. 21

Section 3.13 Temporary Office Quarters. 21

Section 3.14 Cooperation with Other Contractors. 22

Section 3.15 Protection and Safety. 22

Section 3.16 Environmental Matters. 22

Section 3.17 Fire Prevention. 25

Section 3.18 Religious and Archaeological Resources. 26

Section 3.19 Reports, Plans and Manuals. 26

Section 3.20 Drawings, Engineering Data and Other Materials. 27

Section 3.21 Operating and Maintenance Manuals. 28

Section 3.22 Training of O&M Personnel. 28

Section 3.23 Accounting Information. 28

Section 3.24 Contractor Taxes. 29

Section 3.25 Claims and Liens for Labor and Materials. 29

Section 3.26 Spare Parts Availability. 30

Section 3.27 Contractor's Obligation to Notify. 30

Section 3.28 Construction Utilities. 30

Section 3.29 Lines and Grades. 31

Section 3.30 Temporary Structures. 31


- i -

Section 3.31 Weatherproof Coverings. 31

Section 3.32 Milestone Payment Schedule. 31

Section 3.33 Emergencies. 31

Section 3.34 Contractor's Representative. 32

Section 3.35 Contractor' s Insurances. 32

Section 3.36 Raw Water, Sewage and Potable Water Line Sizing. 32

ARTICLE IV CERTAIN OBLIGATIONS OF OWNER 32

Section 4.01 Permits. 32

Section 4.02 Gas, Electric, and Water Facilities. 32

Section 4.03 Fuel Supply. 33

Section 4.04 Raw Water Supply. 33

Section 4.05 Access to Property Site. 33

Section 4.06 Right of Ways. 33

Section 4.07 Survey of Property Site. 34

Section 4.08 Notice of Financial Closing. 34

Section 4.09 Owner Taxes. 34

Section 4.10 Owner's Cooperation. 34

Section 4.11 Owner's Representative. 34

Section 4.12 Supplies. 35

Section 4.13 Operation and Maintenance. 35

Section 4.14 Owner' s Insurances. 35

ARTICLE V PROJECT SCHEDULE 35

Section 5.01 Commencement of Work. 35

Section 5.02 Project Schedule. 35

Section 5.03 Certain Prefunding Work. 36

ARTICLE VI SEPARATED CONTRACT PRICE; PAYMENTS TO CONTRACTOR 36

Section 6.01 Separated Contract Price. 36

Section 6.02 Prefunding Costs. 37

Section 6.03 Financial Closing Payment. 37

Section 6.04 Post-Financial Closing. 37

Section 6.05 General Provisions Payments. 37

Section 6.06 Financing Parties' Requirements and Lien Waivers. 38

ARTICLE VII CHANGE ORDERS 40

Section 7.01 Change Order at Owner's Request. 40

Section 7.02 Change Orders Requested by Contractor. 41

Section 7.03 Changes to Separated Contract Price; Disputes. 43

Section 7.04 Information Requests. 43

ARTICLE VIII TITLE, RISK OF LOSS AND POSSESSION 43

Section 8.01 Clear Title. 43


- ii -

Section 8.02 Risk of Loss. 43

Section 8.03 Possession Following Substantial Completion. 44

ARTICLE IX INSURANCE 44

Section 9.01 Contractor Insurance Policies. 44

Section 9.02 Form of Contractor Insurance Policies. 45

Section 9.03 Qualified Insurers. 46

Section 9.04 Certificates of Insurance. 46

Section 9.05 Inspection of Contractor' s Insurance Policies. 46

Section 9.06 Subcontractors' Insurance. 47

Section 9.07 Remedy on Failure to Insure. 47

Section 9.08 Management of Insurance Policies. 47

Section 9.09 Owner Insurance Policies. 47

Section 9.10 Contractor's Assistance. 48

Section 9.11 Liability not Limited to Insurance Coverage. 48

ARTICLE X TESTS, INTERIM COMPLETION, SUBSTANTIAL COMPLETION AND FINAL ACCEPTANCE 49

Section 10.01 General. 49

Section 10.02 Interim Completion. 50

Section 10.03 Guaranteed Performance Tests. 50

Section 10.04 Substantial Completion. 51

Section 10.05 Punch List. 52

Section 10.06 Final Acceptance. 53

ARTICLE XI CONTRACTOR GUARANTEES 53

Section 11.01 Completion Guarantee. 53

Section 11.02 Schedule Liquidated Damages for Interim Completion. 54

Section 11.03 Schedule Liquidated Damages for Substantial Completion. 55

Section 11.04 Performance Guarantees. 55

Section 11.05 Liquidated Damages for Certain Performance Guarantees. 56

Section 11.06 Intentionally left blank 58

Section 11.07 Payment of Liquidated Damages. 58

Section 11.08 Contractor Bonus 60

Section 11.09 Determination of Performance. 61

Section 11.10 Retainage. 61

Section 11.11 Corporate Guaranty. 62

ARTICLE XII CONTRACTOR'S WARRANTIES 63

Section 12.01 Warranties. 63

Section 12.02 Repair of Nonconforming Work. 64

Section 12.03 Intentionally Left Blank. 65

Section 12.04 Repairs and Testing by Owner. 65

Section 12.05 Vendors and Subcontractors. 65

Section 12.06 Assignment of Warranties. 65


- iii -

ARTICLE XIII CONTRACTOR'S REPRESENTATIONS 66

Section 13.01 Representations and Warranties. 66

Section 13.02 Survival of Representations and Warranties. 67

ARTICLE XIV FORCE MAJEURE AND OWNER CAUSED DELAY 68

Section 14.01 Definition of Force Majeure Event. 68

Section 14.02 Notice of Force Majeure Event. 68

Section 14.03 Delay from Force Majeure Event. 69

Section 14.04 Definition of Owner Caused Delay. 69

Section 14.05 Notice of Owner Caused Delay. 70

Section 14.06 Delay from Owner Caused Delay. 70

Section 14.07 Performance Not Excused. 70

ARTICLE XV TERMINATION 70

Section 15.01 Contractor Events of Default. 70

Section 15.02 Termination by Owner due to Contractor Default. 72

Section 15.03 Termination by Owner for Convenience. 74

Section 15.04 Suspension by Owner or Contractor for Convenience. 74

Section 15.05 Termination Due To Force Majeure Event. 76

Section 15.06 Termination by Contractor. 76

Section 15.07 Continuing Obligations and Remedies During Event of Default. 77

Section 15.08 Obligations Upon Termination. 77

Section 15.09 Termination and Survival of Terms. 77

ARTICLE XVI INDEMNIFICATION 77

Section 16.01 Contractor Indemnification. 77

Section 16.02 Owner Indemnification. 78

Section 16.03 Conditions of Indemnification. 79

Section 16.04 Contributory Negligence. 80

Section 16.05 Remedies Not Exclusive; Joint Responsibility. 80

Section 16.06 Tax Effect of Indemnification. 81

Section 16.07 Survival of Indemnification. 81

ARTICLE XVII DISPUTE RESOLUTION 81

Section 17.01 Friendly Consultation. 81

Section 17.02 Arbitration. 81

Section 17.03 Continuing Obligations and Rights. 83

Section 17.04 Interim Remedies. 83

ARTICLE XVIII MISCELLANEOUS 83

Section 18.01 Assignment. 83

Section 18.02 Financing Parties. 84

Section 18.03 Good Faith Dealings. 84

Section 18.04 Confidentiality. 84


- iv -

Section 18.05 Notice. 85

Section 18.06 Waiver. 86

Section 18.07 Severability. 86

Section 18.08 Governing Law. 86

Section 18.09 Entire Agreement; Amendments. 86

Section 18.10 Expenses and Further Assurances. 87

Section 18.11 No Third Party Beneficiary. 87

Section 18.12 Offset. 87

Section 18.13 Intentionally left blank. 87

Section 18.14 Counterparts. 87

Section 18.15 Waiver of Consequential Damages; Maximum Liability. 87


- v - EXHIBITS EXHIBIT A SCOPE OF WORK EXHIBIT B PROJECT SCHEDULE EXHIBIT C INTENTIONALLY LEFT BLANK EXHIBIT D MILESTONE PAYMENT TABLE EXHIBIT E FORM OF MILESTONE ACHIEVEMENT CERTIFICATE AND FIELD MILESTONE CERTIFICATION EXHIBIT F FORM OF REQUEST FOR PAYMENT EXHIBIT G FORM OF FINAL ACCEPTANCE CERTIFICATE EXHIBIT H FORM OF CONTRACTOR CERTIFICATE FOR PARTIAL WAIVER OF LIENS EXHIBIT H-1 FORM OF SUBCONTRACTOR CERTIFICATE FOR PARTIAL WAIVER OF LIENS EXHIBIT I FORM OF CORPORATE GUARANTY EXHIBIT J SEPARATED CONTRACT PRICE EXHIBIT K CONTRACTOR RATE SCHEDULE EXHIBIT L CONTRACTOR PERMITS EXHIBIT M OWNER PERMITS EXHIBIT N MAJOR EQUIPMENT EXHIBIT O PROJECT MANAGEMENT TEAM EXHIBIT P INTENTIONALLY LEFT BLANK EXHIBIT Q APPROVED SUBSTANTIAL SUBCONTRACTORS AND SUBSTANTIAL VENDORS EXHIBIT R CONTRACTOR FINAL LIEN WAIVER AND RELEASE EXHIBIT R-1 SUBCONTRACTOR FINAL LIEN WAIVER AND RELEASE EXHIBIT S SOIL BORING AND SUBSURFACE DATA EXHIBIT T FORM OF LETTER OF CREDIT


- vi -

TURNKEY ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR

ETHANOL PRODUCTION FACILITY

THIS TURNKEY ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR ETHANOL PRODUCTION FACILITY (this " Agreement" ), dated as of March 1, 2007, is by and between Panda Yuma Ethanol, LP, a Delaware limited partnership (hereinafter called " Owner" ), and Lurgi, Inc., formerly known as Lurgi PSI, Inc., a Tennessee corporation (hereinafter called " Contractor" ).

W I T N E S S E T H: NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Contractor hereby agree as follows:

ARTICLE I GENERAL MATTERS

Section 1.01 Defined Terms . As used in this Agreement, including the exhibits and other attachments hereto, each of the following terms shall have the meaning assigned to such term as set forth below: " Acceptance Certificate" means a certificate relating to Final Acceptance pursuant to Section 10.06 . " Affiliate" means, in relation to any Person, any Person: (i) which directly or indirectly controls, or is controlled by, or is under common control with, such other Person; or (ii) which directly or indirectly beneficially owns or holds fifty percent (50%) or more of any class of voting stock of such other Person; or (iii) which has fifty percent (50%) or more of any class of voting stock that is directly or indirectly beneficially owned or held by such other Person, or (iv) who either holds a general partnership interest in such other Person or such other Person holds a general partnership interest in the Person.

" Allocated Contract Price" means (a) for the time period between the Effective Date and the later of the Financial Closing Date and the date the Notice to Proceed is given to Contractor following the Financial Closing Date (the " Full Release Date" ), the Separated Contract Price paid to Contractor; (b) for the time period after Full Release Date and until the time when " *****" % of the Separated Contract Price has been paid to Contractor, " *****" % of the Separated Contract Price plus the Separated Contract Price paid to Contractor to date; or (c) for the time period after " *****" % of the Separated Contract Price has been paid to Contractor, the Separated Contract Price paid to Contractor to date, as the case may be.


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY PANDA ETHANOL, INC. FOR CERTAIN PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS ARE INDICATED IN THIS AGREEMENT WITH " *****" .

-1-

" Applicable Laws" means any act, statute, law, regulation, permit, license, ordinance, rule, judgment, order, decree, directive, guideline or policy (to the extent mandatory) or any similar form of decision or determination by, or any interpretation or administration of, any of the foregoing by any Government Authority with jurisdiction over the Facility, the Job Site, the performance of the Work or other services to be performed under this Agreement.

" Applicable Permits" means any and all permits, clearances, licenses, authorizations, consents, filings, exemptions or approvals from or required by any Government Authority that are necessary for the performance of the Work. " Builder' s Risk Policy" has the meaning set forth in Section 9.09 . " Business Day" means any day other than a Saturday, Sunday or a legal holiday in Dallas, Texas. " Change in Law" means any of the following events or circumstances occurring after the date of execution of this Agreement: (i) an amendment, modification, supplement or other change in or repeal of an existing Applicable Law or Applicable Permit; or (ii) an enactment or making of a new Applicable Law or Applicable Permit. " Change Order" has the meaning set forth in Section 7.01(a) . " Changes" has the meaning set forth in Section 7.01(a) . " Contract Amendment" shall mean a written agreement executed by both Parties and, if required, consented to by the Financing Parties, as set forth in Section 18.09 .

" Contractor Bonus" means a Schedule Bonus or Performance Bonus. " Contractor Equipment" means all of the equipment, materials, apparatus, structures, tools, supplies and other goods provided by Contractor and its Subcontractors and Vendors for performance of the Work other than the Equipment.

" Contractor Event of Default" was the meaning set forth in Section 15.01 .

" Contractor Insurance Policies" means the insurance policies maintained by Contractor as required pursuant to Article IX .

" Contractor Permits" means the Applicable Permits listed on Exhibit L .

" Contractor Project Engineering Manager" means the person designated by Contractor as having the responsibility, authority and supervisory power of Contractor for the Work.


-2-

" Contractor Project Manager" means the person designated by Contractor as having the centralized responsibility, authority and supervisory power of Contractor for design, construction, testing and start-up of the Facility, as well as all matters relating to the administration of the provisions of this Agreement. " Contractor Site Manager" means an employee of Contractor, working under the supervision of the Contractor Project Manager, located at the Job Site on a daily basis.

" Contractor Taxes" has the meaning set forth in Section 3.24 . " Contractor' s Guarantor" has the meaning set forth in Section 11.11 . " Cost Plus Formula" has the meaning as set forth in Section 7.02(e) . " Damages" has the meaning set forth in Section 16.01 . " Defect" means, any designs, engineering, software, drawings, components, tools, Equipment, installation, construction, or workmanship furnished or performed by or on behalf of Contractor or Work, (i) that does not materially conform to the terms of this Agreement, (ii) that is not of uniform good quality, free from material defects or deficiencies in design, application, manufacture or workmanship, or that contains materially improper or inferior workmanship or (iii) that either would materially and adversely affect (A) the performance of the Facility under operating conditions as stated in Exhibit A, the Scope of Work (unless, in the alternative, Performance Liquidated Damages for such defect or deficiencies has been paid) or (B) the continuous safe operation of the Facility, all as determined by reference to Good Engineering Practices. The term " Defect" shall neither be construed to include material damage caused by Owner' s acts or omissions to the extent arising out of abuse, misuse or negligence in operations, maintenance and repair (unless such act or omission was taken or made at the direction of Contractor) or failure to follow Contractor' s or manufacturers' recommendations and directions and Good Engineering Practices, nor shall the term " Defects" be construed to include ordinary wear and tear, erosion, corrosion, and deterioration (unless as a result of a Defect) or any other defect or deficiency that has no material impact on the Facility' s appearance, operation or useful life as specified in the Scope of Work.

" Denatured Ethanol" means fuel grade ethanol in accordance with and meets the requirements of ASTM D4806-04a. " Dispute" has the meaning set forth in Section 17.01 . " Drawings" means (i) all specifications, designs, plans, drawings, engineering and analyses, and other documents which determine, establish, define or otherwise describe the scope, quantity, and relationship of the components of the Facility, including the structure and foundation thereof, prepared by Contractor or any of its Subcontractors or


-3-

Vendors and (ii) all technical drawings, operating drawings, specifications, shop drawings, diagrams, illustrations, schedules and performance charts, samples, patterns, models, operation and maintenance manuals, piping and instrumentation diagrams, underground structure drawings, conduit and grounding drawings, lighting drawings, conduit and cable drawings, electric one-lines, electric schematics, connection diagrams and technical information of a like nature required to be submitted by Contractor, or any Subcontractor or Vendor, from time to time under this Agreement which illustrates any of the Equipment or any other portion of the Work, either in components or as completed.

" Effective Date" means the date on which all of the following have occurred: (a) this Agreement has been executed and delivered by both Owner and Contractor as set forth on Page 1 hereof, (b) Financial Closing has occurred and Owner has notified Contractor of such occurrence in accordance with Section 4.08 , (c) Owner has paid to Contractor all amounts, if any, due under the Services Agreement as provided in Section 6.03 below, and (d) Owner has issued to Contractor the Notice to Proceed under Section 5.01 and paid any required down payment as specified in Exhibit D, less amounts paid to Contractor under the Services Agreement. The Parties shall confirm the Effective Date in writing. " Electric Power Consumption" means the overall electric power consumed by the Facility in kWh as measured at the meter for equipment specifically and directly involved in the production of ethanol and wet distiller' s grain in accordance with the Scope of Work. This does not include any CO 2 processing, grain handling, or natural gas boiler electrical power consumption. " Electric Power Consumption Guarantee" has the meaning set forth in Section 11.04(a) . " Emissions Guarantee" has the meaning set forth in Section 11.04(e) . " Equipment" means all of the equipment, materials, apparatus, structures, tools, supplies, goods and other items provided by Contractor and its Subcontractors and Vendors that are installed or incorporated into the Facility or otherwise form or are intended to form part of the Work (other than Contractor Equipment). Except as provided in Sections 3.25 and 8.02 , Equipment procured by Owner prior to the Effective Date with the assistance of Contractor shall be deemed Equipment hereunder, and the Separated Contract Price shall be adjusted to reflect any such Equipment procured by Owner. " Ethanol Production Rate" means the production of Denatured Ethanol measured in gallons per hour. " Ethanol Production Rate Guarantee" means the production rate of Denatured Ethanol as guaranteed by Contractor pursuant to Section 11.04(c) .


-4-

" Ethanol Yield" means the ratio in weight (pounds) of un-denatured ethanol per weight (pounds) of starch, based on Un-denatured Ethanol density of 6.60 pounds per US gallon at 60F, containing a maximum of 0.5% water per weight. The yield is based on a feedstock specification of 56 lb per bushel test weight #2 yellow corn containing a maximum of 15.0%moisture (by weight), a maximum of 1% foreign material (by weight), a minimum of 70% of dry fermentable starch (by weight) and zero aflatoxin tolerance.

" Ethanol Yield Guarantee" has the meaning set forth in Section 11.04(d) .

" Facility" means the nominal 105 million gallon per year design capacity of Denatured Ethanol production facility consisting of all necessary and fully functional systems and equipment, apparatus, accessories, auxiliaries and controls capable of fuel grade ethanol production and wet distillers grain production, which Facility includes a natural gas boiler, to be located on the Property Site as more particularly described in the Scope of Work. References to the " Ethanol Plant," if any, contained herein, or in any Exhibit, attachment or other document relating to this Agreement, shall be deemed to be references to the Facility. " Facility Reliability Guarantee" has the meaning set forth in Section 11.04(h) . " Field Milestone Certification" means a duly executed certificate in substantially the form of the Field Milestone Certification in Exhibit E attached hereto, which is submitted by Contractor to Owner with a Request for Payment.

" Final Acceptance" shall mean that all of the following have occurred: (i) Substantial Completion of the Facility has been achieved; (ii) the Guaranteed Performance Tests applicable to the Facility, mechanical calibrations, have been successfully completed and any Defects found have been corrected; (iii) either (A) the Guaranteed Performance Levels applicable to the Facility specified in Section 11.04 have been met or exceeded as determined pursuant to Section 11.09 , or (B) the Facility has achieved at a minimum the Minimum Performance Levels as determined pursuant to Section 11.09 and Contractor has paid all Performance Liquidated Damages applicable to the Facility as elected or required pursuant to Section 11.05 and Section 11.06 ; (iv) the Facility has satisfied the Emissions Guarantee and the Noise Guarantee, as more fully provided herein; (v) the Facility has been constructed in accordance with this Agreement and the Drawings; (vi) the Final Plans accurately reflect the Facility as constructed; (vii) the Facility is capable of being operated in a safe manner in accordance with the terms of this Agreement; (viii) Contractor shall have delivered to Owner all operation and maintenance manuals and Final Plans relating to the Facility in accordance with the Scope of Work; (ix) no defective or incomplete portions of the Work exist that have or could reasonably have a material negative impact on the operation or performance of the Facility as required under this Agreement; (x) either (A) all items on the Punch List applicable to the Facility have been completed or (B) the Parties have reached an agreement pursuant to Section 10.05(c) and Contractor has paid all amounts due to Owner pursuant thereto; (xi) all of Contractor' s cleanup and related obligations have been


-5-

completed; (xii) any and all Liens in respect to this Agreement, the Equipment, the Job Site or any fixtures, personal property or Equipment included in the Work and related to the Facility created by, through or under, or as a result of any act or omission of, Contractor or any Subcontractor, Vendor or other Person providing labor or materials in connection with the Work shall have been released in accordance with Section 3.25 and in a form reasonably satisfactory to Owner in accordance with Exhibit R and Exhibit R-1 attached hereto (provided that Contractor' s Final Lien Waiver and Release related to the Facility, in substantially the form of Exhibit R attached hereto, shall be given concurrently with Final Acceptance of the Facility and payment of amounts due by Owner in connection therewith); (xiii) Contractor shall have paid all Schedule Liquidated Damages and Performance Liquidated Damages related to the Facility due under this Agreement, if any; (xiv) all other outstanding obligations of Contractor relating to the Facility hereunder that Owner has notified Contractor of shall have been satisfied; (xv) spare parts required under this Agreement with respect to the Facility have been delivered by Contractor to the Property Site in accordance with Section 3.26(a); (xvi) Contractor has provided Owner with copies of all Contractor' s Applicable Permits relating to the Facility; and (xvii) Owner has approved of and signed the Final Acceptance Certificate pursuant to Section 10.06 . If however, Owner has failed or refused to sign such Certificate after request by Contractor, such matter may be submitted for dispute resolution in accordance with Article XVII.

" Final Acceptance Certificate" means an Acceptance Certificate executed pursuant to Section 10.06 .

" Final Acceptance Date" means the first date on which Final Acceptance has been achieved.

" Final Plans" means final Drawings and final specifications, as revised to reflect the changes during construction, and shall include as-built drawings, piping and instrumentation diagrams, underground structure drawings (including buried piping, all utilities, and critical hidden items), electric one-lines, electric schematics and connection diagrams.

" Financial Closing" shall mean that all of the following events shall have occurred (which events may occur over a period of time) with respect to the Facility: (i) the Financing Documents have been fully executed (which documents may be executed over a period of time) which together provide for financing for the Facility in an amount and on the terms acceptable to Owner; (ii) all conditions precedent to the initial availability of funds under the Financing Documents referred to in the preceding clause (i) have been fulfilled or waived and the first draw thereunder has been made by Owner; and (iii) Owner has received commitments for such equity as is required by Owner and satisfies the requirements of the Financing Parties. " Financial Closing Date" shall mean the actual date of Financial Closing as specified by Owner to Contractor pursuant to Section 4.08 .


-6-

" Financing Documents" means all the loan agreements, notes, indentures, securities, debt instruments, bonds, security agreements, swap agreements, letters of credit, equity purchase agreements and other documents relating to the financing (including refinancing) of the Facility or any part thereof. " Financing Parties" means the lenders, security holders, investors, export credit agencies, multilateral institutions, equity providers and others providing financing or refinancing to or on behalf of Owner, for the development, construction, ownership, operation and maintenance of the Facility or any portion thereof, or any trustee or agent acting on behalf of any of the foregoing.

...