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