FLUXYS LNG NV/SA. and [SHIPPER] LNG TERMINALLING AGREEMENT

Transcription

1 FLUXYS LNG NV/SA and [SHIPPER] LNG TERMINALLING AGREEMENT (set out in accordance with the 2010 Code of Conduct regarding access to the natural gas transmission network, storage facility for natural gas and LNG facility) i

2 THIS AGREEMENT is made on [DATE] (hereinafter the Agreement or the LTA) BETWEEN (1) FLUXYS LNG NV/SA, a company organised under the laws of Belgium, with its registered office at rue Guimard 4, B-1040 Brussels, Belgium, registered under number (Terminal Operator); AND (2) [name], a company organised under the laws of [ ], with its registered office at [ ], registered under number [ ] (Shipper); Terminal Operator and Shipper are together referred to as the Parties and individually as a Party. WHEREAS (c) (d) Terminal Operator owns and operates the LNG Terminal. It is able, duly authorised and empowered to provide the LNG Services offered by Terminal Operator to Shipper under this Agreement. Shipper wishes to purchase from Terminal Operator certain LNG Services offered by Terminal Operator to Shipper and Terminal Operator wishes to provide the LNG Services to Shipper. This Agreement has been set out in accordance with the code of conduct regarding access to the natural gas transmission network, storage facility for natural gas and LNG facility as approved by royal decree of 23 December 2010 (the Code of Conduct II), and has been approved by the CREG on [date]. The Parties wish to enter into this Agreement in order to set out the basis upon which Terminal Operator will provide to Shipper and Shipper will purchase, pay and use the LNG Services. ii

3 NOW IT IS AGREED AS FOLLOWS 1 DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS Unless the context otherwise requires in this Agreement, capitalised words and expressions used in this Agreement and in any Services Confirmation shall have the meaning given to them in Attachment C. 1.2 INTERPRETATION In this Agreement, unless the context otherwise requires: (c) (d) (e) (f) (g) (h) reference to any person includes references to that person s successors and permitted assignees; the singular includes the plural and vice versa as appropriate, except where appropriate for the terms Shipper, Party and Terminal Operator; reference to any gender includes the other gender; unless otherwise specifically stated, references to an Attachment and a Clause shall be to an attachment and a clause in this Agreement; unless otherwise specifically stated, references to GC shall be to a section in the General Conditions; headings and the table of contents are inserted for convenience only and do not affect the construction or interpretation of this Agreement; unless otherwise stated, reference to an agreement, instrument or procedures is to the same as amended, novated, modified or replaced from time to time; and reference to a statute, by-law, regulation, rule, delegated legislation or order is to the same as amended, modified or replaced, from time to time, and to any by-law, regulation, rule, delegated legislation or order made thereunder. iii

4 2 SCOPE OF THIS AGREEMENT 2.1 CONTENTS This Agreement comprises the provisions contained herein, together with the Services Confirmation, the general conditions contained in Attachment B (the General Conditions) and Attachment C, which shall all form an integral part of this Agreement. By signing this Agreement, each of Terminal Operator and Shipper agrees to be bound by all provisions set out herein, including, without limitation, the General Conditions. In addition to the provisions set out herein and the General Conditions, any LNG Service provided by Terminal Operator under this Agreement shall be subject to the terms and conditions set out in the relevant Services Confirmation. 2.2 HIERARCHY OF DOCUMENTS In the event of inconsistency or conflict between the provisions of this Agreement (including the General Conditions) and the terms set out in any Services Confirmation, the terms of the relevant Services Confirmation shall prevail. 2.3 LNG ACCESS CODE Any LNG Service provided by Terminal Operator to Shipper under this Agreement shall also be governed by the procedures, rules and regulations contained in the LNG Access Code. 3 LNG SERVICES 3.1 PROVISION OF LNG SERVICES During the Contract Term, Terminal Operator agrees to provide to Shipper and Shipper agrees to purchase from Terminal Operator the LNG Services set out in any Services Confirmation and provided by Terminal Operator to Shipper under this Agreement, in accordance with the terms and conditions contained in this Agreement. 3.2 CONFIRMATION OF SUBSCRIPTION OF LNG SERVICES During the Contract Term, Shipper may submit requests to subscribe to LNG Services from Terminal Operator in accordance with the LNG Access Code. Any Services Confirmation Form duly completed and executed in accordance with the LNG Access Code shall become part of this Agreement and be added in Attachment A to this Agreement. iv

5 4 TERM OF THE AGREEMENT 4.1 EFFECTIVE DATE The Effective Date of this Agreement shall be [ ]. 4.2 CONTRACT TERM This Agreement shall remain in full force and effect for an undetermined term, unless terminated in accordance with this Agreement. 4.3 SURVIVAL Termination or expiry of this Agreement does not affect the provisions of this Agreement which are expressly stated to survive termination or which are necessary to allow the Parties to enforce any rights associated with such provisions or rights which arose prior to such termination. 5 NOTICES 5.1 Any notice which a Party is required, or permitted, to give pursuant to this Agreement or the LNG Access Code, including invoices shall be given in writing in the English language, signed by a duly authorized representative of the Party giving such notice and shall be deemed to have been properly given, except if expressly otherwise provided: (i) (ii) (iii) if delivered by hand to the Party in question upon actual receipt; if sent by registered mail (registered airmail if international), upon actual receipt; and if transmitted by facsimile to the address of such Party set forth below, as and when a positive transmission report is issued at the sender s end, to the Party at such address or such facsimile transmission number as the Party in question from time to time designates by notice (any such change in address or facsimile transmission number shall not be effective until thirty (30) days after receipt of such notice) and, until such notice is given, the addresses and facsimile numbers of the Parties will be as follows, except if expressly otherwise indicated: v

6 Terminal Operator: Shipper: Fluxys LNG NV/SA Attn: Commercial Department Rue Guimard 4 B-1040 Brussels Tel: Fax: info.transport@fluxyslng.net Name: Attn: Tel: Fax: [Name] [Name] [Address line 1] [Address line 2] [Address line 3] 5.2 All notices delivered by registered mail or hand or sent by facsimile are effective on the Day when received at the recipient's address set out above, during normal business hours of the recipient insofar said Day is a Working Day for Terminal Operator or a Business Day for Shipper. In case such notice is received by the Terminal Operator or Shipper outside of normal business hours on a Day or on a Day which is not respectively a Working Day or a Business Day, such notice shall be effective as from 10:00 a.m. on the next Working Day or Business Day, as applicable. 5.3 Any notice given by facsimile transmission (but excluding any Terminal Nominations, notices and communications) shall be subsequently confirmed by letter sent by registered mail or hand, but without prejudice to the validity of the original notice if received. If a facsimile transmission given under this clause is not legible, the recipient shall inform the sending Party thereof as soon as possible upon which the sending Party shall resend the facsimile notice. 5.4 For specific ship to shore communications the provisions under Clauses 5.1 to 5.3 (inclusive) above shall not apply but shall be governed by the rules provided for in the LNG Access Code. vi

7 6 GOVERNING LAW AND DISPUTE RESOLUTION 6.1 GOVERNING LAW This Agreement is governed by and shall be construed and interpreted in accordance with Belgian law, without reference to the conflict of law provisions thereof. 6.2 ARBITRATION (c) (d) (e) (f) (g) Except as otherwise provided in this Agreement, the Parties agree that arbitration shall be the sole means for resolution of disputes arising out of this Agreement. If any dispute arises between Shipper and Terminal Operator in relation to or in connection with this Agreement, or in connection with the interpretation, performance or non-performance hereof, including any question regarding its existence, validity or termination, or regarding a breach thereof (a Dispute), Shipper and Terminal Operator shall promptly discuss such Dispute in an attempt to resolve such Dispute amicably through negotiations. If such Dispute has not been resolved within sixty (60) Days of either Party notifying the other in writing of the existence of the Dispute, then either Shipper or Terminal Operator may, by notice to the other, refer the Dispute to be finally settled by arbitration. Such arbitration shall be conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce prevailing and in effect as at the date either Party refers the Dispute to arbitration by three (3) arbitrators. Each Party shall appoint a qualified arbitrator within thirty (30) Days of the respondent s receipt of the notice of arbitration. The two arbitrators so appointed shall within thirty (30) Days of the appointment of the second arbitrator, appoint a third arbitrator, who shall act as the presiding arbitrator. Should an arbitrator fail to be so appointed, then such arbitrator will be appointed in accordance with the Rules. The place of the arbitration will be Paris, France. The language of the arbitration will be English. The arbitrators shall apply the governing law to the interpretation of this Agreement, without reference to the conflict of law provisions thereof. The Parties waive any defence based on sovereign immunity to arbitration, immunity to judicial proceedings to enforce or to aid any such arbitration, and immunity to enforcement and execution of the award or of any judgment entered thereon. The decision of the arbitration panel shall include a statement of the reasons for such decision and shall be final and binding on the Parties and enforceable in accordance with the rules of the New York Convention of 1958 on the recognition and enforcement of foreign arbitral awards. Judgement upon the award of the arbitrators may be entered in any court or other authority having jurisdiction, or application may be made to said courts or other vii

8 authority for a judicial acceptance of the award and an order of enforcement, as the case may be. 6.3 DISPUTES OF A TECHNICAL NATURE (c) Notwithstanding the provisions of Clause 6.2, if a dispute of a technical nature arises in connection with the interpretation, performance or non-performance of any of the provisions of the General Conditions in respect of Quality Requirements and Measurement and Testing, or as otherwise specifically provided in this Agreement, the Parties shall promptly discuss such dispute in an attempt to resolve the matter amicably. Failing resolution of such dispute within sixty (60) Days of either Party notifying the other in writing of the dispute s existence, the Parties shall agree to either submit the matter for expert resolution or to arbitration under Clause 6.2. Upon the submission of the matter to expert resolution, each Party shall nominate three proposed experts in order of preference. The Parties agree to appoint the expert whose name appears in common on the lists of both Parties. If the lists contain more than one common name, the expert with the highest combined preference shall be appointed. If this process results in a tie the Parties shall promptly discuss the matter to seek agreement on the expert to be chosen. If the Parties fail to select an expert in the manner prescribed (including, without limitation, the case in which the Parties lists contain no name in common), either Party may request the ICC International Centre for Expertise to appoint the expert in accordance with the ICC Selection Rules as then in force. Upon an expert being agreed or selected under the foregoing provisions of this Clause 6.3, the Parties shall forthwith notify such expert of his selection and shall request him within fourteen (14) Days to indicate whether or not he is willing and able to accept the appointment. If such expert is either unwilling or unable to accept such appointment or has not indicated his willingness and ability to accept such appointment within the said period of fourteen (14) Days then the procedure as described under paragraph above shall again be applied to nominate an expert and this process shall be repeated until an expert is found who accepts appointment. An expert shall accept his appointment in writing, and such acceptance shall contain the compensation arrangements agreed between the expert and the Parties. The date on which the expert signs such acceptance shall be the date of his appointment. No person nominated by a Party or appointed pursuant to the ICC Selection Rules shall be entitled to act as an expert under this Clause 6.3 unless such person is qualified by education, experience and training to determine the matter in dispute. Any person appointed or selected as the expert in accordance with the above provisions shall be entitled to act as such expert provided that before accepting such appointment the proposed expert shall have fully disclosed any interest or duty which conflicts or may conflict with the function under the appointment and/or may prejudice a determination. No person shall, without the prior written agreement of both Parties, be appointed as expert who is (or has been at any time within the preceding six (6) Years) an employee of either Party or either Party s Affiliate or who is (or has been at any time viii

9 within the preceding three (3) Years) a consultant to or contractor of either Party or either Party s Affiliate or who holds any significant financial interest in either Party or either Party s Affiliate. No person shall be appointed as an expert who has not agreed to hold in confidence any and all information furnished by the Parties in connection with the dispute under this Agreement and the existence of the dispute and the outcome thereof. (d) (e) (f) (g) (h) The expert shall promptly fix a reasonable time and place for receiving submissions or information from the Parties and said expert may make such other enquiries and require such other evidence as may be necessary for determining the matter. All information and data submitted by either Party shall be and remain confidential to the expert and shall not be disclosed to the other Party. Both Parties shall have the opportunity to make representations to the expert. The expert shall make a draft determination in writing and in such draft determination shall provide reasons for the draft determination, not later than forty-five (45) Days after the date of appointment and shall ignore data, information and submissions supplied and made more than thirty (30) Days following such date of appointment unless the same are furnished in response to a specific request from the expert. The expert shall issue such draft determination to the Parties and each Party shall have fifteen (15) Days to provide the expert with comments on such draft determination. Within ten (10) Days after the date for receipt of such comments the expert shall issue its final determination. The expert may obtain such independent professional and/or technical advice as may be reasonably required. If within a reasonable period (which shall not without the prior written consent of both Parties exceed forty-five (45) Days after the acceptance by an expert of the appointment) such expert shall not have rendered a draft determination or shall not have rendered a final determination within thirty (30) Days thereafter, then upon notice of either Party the Parties shall discuss in good faith on the need for the appointment a new expert. In case the Parties agree, the new expert shall be appointed under the provisions of this Clause 6.3. The appointment of the previous expert shall cease upon agreement by the Parties pursuant to this clause, and the previous expert will return all papers, documents, and information to the Party which has provided the same to the expert and, upon demand of either Party, destroy all work product that the expert has created. The said expert shall be deemed not to be an arbitrator but shall render a determination as an expert and any applicable law or legislation relating to arbitration shall not apply to such expert or the determinations or the procedure by which such determinations are reached. The determination of the expert shall be final and binding upon the Parties save in the event of fraud, mistake or failure by the expert to disclose any relevant interest or duty in accordance with this Clause 6.3. ix

10 (i) (j) Each Party shall bear the costs and expenses of all counsel, witnesses and employees retained by it; the costs and expenses of the expert shall be apportioned between the Parties in a manner proportionate to the determination made by the expert. The determination shall be reasoned and the reasoning shall in any event address the proportions in which the Parties should bear the expert s costs. Any costs of an expert who shall not have rendered a determination shall be shared equally between the Parties. Any expert, whether or not he has rendered a determination, shall not be appointed as an arbitrator and/or an expert under Clause 6.2 or Clause 6.3 within a period of three (3) Years as from such appointment. 7 MODIFICATION AND AMENDMENTS Without prejudice to the provisions of the General Conditions in respect of Change of Circumstances, any amendments or modifications to this Agreement shall be made in writing and signed by both Parties. x

11 Made on the date hereabove mentioned, in two (2) originals, of which one will be held by Terminal Operator and the other will be held by Shipper. FLUXYS LNG NV/SA as Terminal Operator Name: Title: Name: Title: [SHIPPER] as Shipper Name: Title: Name: Title: xi

12 BRU /48 1

13 ATTACHMENT A SERVICES CONFIRMATION BRU /48 2

14 Conditions to Services Confirmation For the LNG Services subscribed by means of Services Confirmation XXX (the SC ), this SC is supplemented by the following sections, which, in the event of conflict with the terms and conditions of the General Conditions, shall take precedence over the terms and conditions of the General Conditions. Definitions Second Extension shall mean those parts of the LNG Terminal which need to be constructed in order for Terminal Operator to provide the LNG Services subscribed under this SC. Second Extension Start Date shall mean the date when the Second Extension has become Operational. Operational shall mean that the Second Extension is completed and commissioned, such that Terminal Operator is able to provide the LNG Services to Shipper and other Terminal Users, in accordance with their respective SC(s) and the General Conditions. 1 CONSTRUCTION OF THE SECOND EXTENSION 1.1 Insofar needed, Terminal Operator undertakes to design, provide, install, complete, construct and commission the Second Extension at its own cost and risk and in a manner consistent with its obligations with respect to the LNG Services subscribed under this SC. 1.2 Terminal Operator shall: (i) notify Shipper as soon as reasonably possible if any delay occurs in obtaining the authorisations, permits and licenses required for the construction of the Second Extension and the anticipated consequences thereof on the Second Extension Start Date; and, (ii) inform Shipper on an indicative basis of the reviewed Second Extension Start Date as appropriate but at the latest six (6) months before such reviewed Second Extension Start Date. BRU /48 3

15 2 SECOND EXTENSION START DATE AND TERM 2.1 Subject to section 3 below, this SC shall come into effect as from its execution by both Parties. 2.2 This SC shall remain in full force and effect until the Service End Date of this SC. 2.3 On the basis of the information available at the date of execution of this SC, Terminal Operator will use its reasonable endeavours to have the Second Extension Operational by [DATE]. 3 CONDITION PRECEDENT 3.1 This SC is entered into subject to the following conditions precedent: (c) Terminal Operator having received approval from its board of directors to conclude this SC and to proceed with the construction of the Second Extension, such board meeting taking place by [DATE] at the latest; and, by [DATE] the sum of LNG Services booked by Terminal Users in respect of the Second Extension results in a total booked capacity of more than [AMOUNT] for a period of at least [DURATION]; and, Terminal Operator having by [DATE] received approval from the CREG on the Regulated Tariff and such approval does not result in the Regulated Tariff being higher than [AMOUNT]; and, 3.2 If either of the Conditions set forth in section 3.1 are not met or effectively waived by the dates specified therein then: (c) in relation to section 3.1, Shipper or Terminal Operator on written notice to the other within thirty (30) Days after said date, may terminate this SC; and, in relation to section 3.1, Terminal Operator on written notice to Shipper within thirty (30) Days after said date, may terminate this SC; and, in relation to section 3.1(c), Shipper, on written notice to Terminal Operator within thirty (30) Days after said date, may either terminate this SC or reduce the LNG Services subscribed under this SC. Shipper shall by written notice within thirty (30) Days after the earlier of the Conditions expiry dates or the date of notification by Terminal Operator of the non-fulfillment of the Conditions, notify to Terminal Operator which of the options hereafter it has opted to terminate this SC or reduce the LNG Services subscribed under this SC. BRU /48 4

16 3.3 Terminal Operator shall use its reasonable endeavours to satisfy the Conditions under section 3.1 to (c) by the dates specified for satisfaction of each Condition and shall notify Shipper when it has satisfied each of said Conditions. Shipper shall notify Terminal Operator within a period of fifteen (15) Working Days as from receipt of the notice by Terminal Operator whether or not it is satisfied on the fulfilment of the specific aforementioned Condition, it being understood that Shipper shall not unreasonably refuse such satisfaction. If no such notification is received within fifteen (15) Working Days as from receipt of Terminal Operator s notification, Shipper shall be deemed to have notified its satisfaction to the above. 3.4 Subject to any liability of Terminal Operator for any failure to use its reasonable endeavours under section 3.3, if as a result of the failure of a Condition to be satisfied or effectively waived and this SC is terminated, Terminal Operator will not have any further obligation or liability to the other arising out of or in connection with this SC (or its termination) (other than under any provision which is expressed to survive termination of this Agreement, including amongst others any obligations of confidentiality). 3.5 In case the Second Extension is not being built by Terminal Operator for reasons of not obtaining the permits to construct and commission such Second Extension, Terminal Operator shall have no liability whatsoever for not constructing and commissioning the Second Extension. BRU /48 5

17 4 INFORMATION ON CONSTRUCTION SITE VISITS 4.1 Provided that and as from the date board approval has been obtained as referred to in section 3.1, Terminal Operator shall provide Shipper, throughout the engineering and construction phase of the Second Extension, insofar as applicable, with periodic reports related to the progress of the engineering and construction and Commissioning of each aforementioned facility. In this respect, Terminal Operator shall organise a meeting once every three (3) Months in order to give Shipper a detailed progress report. It is understood that such reports shall be considered as purely informational and nonbinding and Terminal Operator cannot be held liable for incompleteness and/or incorrectness of such reports. Such reports shall not alter the rights and obligations of either Terminal Operator or Shipper pursuant to this Agreement. 4.2 At all reasonable times, but not more frequently than every three (3) Months, throughout the period of construction and commissioning of the Second Extension, Shipper may, upon giving reasonable prior notice to Terminal Operator, visit and examine the progress of such construction and commissioning. Shipper shall bear and pay for all of Shipper s costs and expenses related to Shipper s visit and the safety of its personnel, representatives, agents and consultants conducting such visit and shall provide an indemnity undertaking in a form acceptable to Terminal Operator, acting reasonably, prior to the arrival of such personnel at the site where construction is taking place. Shipper s rights to carry out a visit of the Second Extension shall not entitle Shipper or its representatives to make any request or recommendation directly to Terminal Operator s construction contractor(s) or any other contractors of Terminal Operator, as applicable, and shall be limited to reviewing compliance with Terminal Operator s undertakings herein. Terminal Operator shall procure that such contracts allow for such visits. Any such visit shall be carried out in accordance with the procedures provided therefore in Terminal Operator s relevant construction contract(s), as applicable, and without interfering with or hindering the work in progress or the safety of the personnel involved. BRU /48 6

18 ATTACHMENT B.1 GENERAL CONDITIONS FOR UNLOADING SERVICES 1 DEFINITIONS In these General Conditions, capitalised words and expressions shall have the meaning given to them in Chapter 5 of the LNG Access Code. 2 SERVICES 2.1 SERVICE TERM Except as provided in the LNG Access Code, the rights and obligations of the Parties with regard to the performance of the Unloading Services shall commence on the Service Start Date and shall terminate on the Service End Date unless this Agreement is terminated earlier pursuant to the provisions of this Agreement, without prejudice to any rights and liabilities accrued prior to such termination. 2.2 EXTENSION OF SERVICE TERM If Shipper has been unable, by reason of Force Majeure or due to Terminal Operator s fault insofar Shipper was not indemnified pursuant to GC and GC , to make use of any Subscribed Slot(s) during the Service Term, Shipper may request Terminal Operator to extend the Service Term in order to make an equivalent number of Slots and associated Additional Storage and/or Additional Send-Out Capacity available to Shipper after the end of the Service Term. So long as this Agreement has not been terminated early pursuant to its terms, Terminal Operator shall agree to an extension of the Service Term insofar as Shipper shall give notice not less than forty-eight (48) Months before the end of the Service Term. Shipper shall schedule these make up Slots and associated Additional Storage and/or the Additional Send-Out Capacity being part of the make up Capacities at a frequency and spread to be agreed upon with Terminal Operator within two (2) Months of receipt of such notice. Terminal Operator shall use its reasonable endeavours to make available to Shipper the associated Additional Storage and/or the associated Additional Send-Out Capacity but only to the extent that this is requested by Shipper in combination with the use of make-up Slots pursuant to this GC and limited to the Basic Storage Duration of such make-up Slots. BRU /48 7

19 The price Shipper shall pay for such make up Capacities shall be (i) in case of Subscribed Slots lost or foregone by reason of Force Majeure, the Subscribed Slot Price plus, if applicable, the Additional Storage Price and/or the Additional Send-Out Capacity Price (as indexed pursuant to GC 8.2) reduced by the amount already paid for the Subscribed Slots and/or the associated Additional Storage and/or the associated Additional Send-Out Capacity lost or foregone during the Force Majeure Event, whether or not an Extended Force Majeure Event and (ii) in case of Subscribed Slots lost or foregone or due to Terminal Operator s fault insofar Shipper was not indemnified pursuant to GC and GC , the Subscribed Slot Price plus, if applicable, the Additional Storage Price and/or the Additional Send-Out Capacity Price (all as indexed pursuant to GC 8.2) If Shipper subscribes for make up Capacities pursuant to GC 2.2.1, the Service Term will be extended until the end of the Basic Storage Duration for the last make-up Slot under such make up Capacities, it being understood that the Agreement shall be extended for maximum three (3) Years. Save as expressly provided for elsewhere in this Agreement or agreed between the Parties, the terms of the Services Confirmation and all other terms and conditions of this Agreement will remain in force in substantially the same content and form for the extended Service Term It is hereby understood that for the application of GC Terminal Operator shall schedule the make-up Slot(s) and associated Additional Storage and/or the Additional Send-Out Capacity it is able, to offer to Shipper in the chronological order in which Shipper was unable to use its Subscribed Slot(s) and associated Additional Storage and/or the Additional Send-Out Capacity. 2.3 LIMIT OF TERMINAL OPERATOR'S OBLIGATION Terminal Operator shall not be obliged to accept at the Delivery Point a Nominated Cargo of LNG which exceeds Shipper s Storage Capacity Subject the LNG Access Code, Terminal Operator shall at no time be obliged to redeliver to Shipper at the Redelivery Point: (i) a Quantity of Natural Gas in energy terms (expressed in kwh) greater than Shipper's Gas In Storage at that time; or (ii) a Quantity of Natural Gas in energy terms (expressed in kwh) at a rate exceeding Shipper's Send Out Capacity. BRU /48 8

20 3 QUALITY REQUIREMENTS 3.1 SPECIFICATION Shipper shall deliver, or tender for delivery, at the Delivery Point Shipper s LNG which complies with the Specification at the Delivery Point, as contained in the LNG Access Code Provided the Shipper s LNG delivered at the Delivery Point complied with the Specification at the Delivery Point, Terminal Operator shall redeliver to, or make available at the Redelivery Point, Natural Gas which complies with the Specification at the Redelivery Point As soon as either Party knows or has reason to know that Shipper s LNG being delivered at the Delivery Point or the Natural Gas being redelivered by Terminal Operator at the Redelivery Point (as the case may be) shall not or may not be in compliance with the applicable Specification, such Party shall notify the other Party with the details and cause of such non-compliance, if known, and give a good faith estimate of the probable duration of such non-compliance. In such case and without prejudice to GC 3.2 and GC 3.3 hereunder, the Parties shall consult with each other to determine what steps can be reasonably taken to alleviate or to eliminate the problem Terminal Operator, based on its available knowledge, will only accept to unload Off- Specification LNG if Terminal Operator can reasonably expect to be able to redeliver Natural Gas at the Redelivery Point which is compliant with the Specification at the Redelivery Point Notwithstanding the provisions of the LNG Access Code, if the Gross Heating Value and/or Wobbe Number of Shipper s LNG to be delivered under this Agreement is higher than the limits of the Specification at the Delivery Point by reason of boil-off occurring during a delay in unloading an LNG Ship of more than forty-eight (48) hours after Notice of Readiness has been given such LNG shall be deemed to have met the Specification at the Delivery Point regarding Gross Heating Value and/or Wobbe Number, except where the delay is due to reasons which would result in an extension of the Allowed Laytime. 3.2 SHIPPER S FAILURE TO CONFORM Without prejudice to GC 3.1, if Shipper tenders for delivery Off-Specification LNG, Terminal Operator may refuse, without prejudice to any other right or remedy it may have, to receive and accept in whole or in part any such Off-Specification LNG. Terminal Operator shall however use its reasonable endeavours, with the existing installations and provided Terminal Operator shall not incur any costs other than those which Shipper shall reimburse pursuant to this GC 3.2, to accept such Off-Specification LNG and to redeliver Natural Gas that complies with the Specification at the Redelivery Point. Shipper shall notify Terminal Operator as soon as reasonably possible once Shipper knows or has reason to suspect that the LNG scheduled to be delivered to the BRU /48 9

21 LNG Terminal shall not or may not be in compliance with the Specification at the Delivery Point. Insofar as Terminal Operator knows, ultimately no later than six (6) hours before the Tide on which an LNG Ship actually proceeds to the LNG Terminal for discharging, that the LNG scheduled to be delivered to the LNG Terminal will not or may not be in compliance with the Specification at the Delivery Point, Terminal Operator shall not knowingly accept delivery of such a Nominated Cargo of LNG, in whole or in part, from Shipper without first negotiating with Shipper. As part of such negotiation, Terminal Operator and Shipper shall discuss the terms and conditions upon which Terminal Operator could accept delivery of such Off-Specification LNG and Terminal Operator shall provide Shipper a good faith estimate of any direct costs, direct expenses and other direct losses (including, amongst others, the costs and expenses related to: (i) the segregation of the Off-Specification LNG; (ii) the treatment of LNG of Other Shippers and/or Other Users that may be contaminated due to such acceptance; and (iii) other means downstream of the LNG Terminal which Terminal Operator would use to make the Natural Gas compliant with the Specifications at the Redelivery Point) which Terminal Operator believes it will incur in order to accept delivery of the Off-Specification LNG and redeliver to Shipper Natural Gas which complies with the Specification at the Redelivery Point. Terminal Operator shall act as a Reasonable and Prudent Operator in order to minimize such direct costs, direct expenses and direct losses. If the Parties, after such negotiation agree to discharge the Off Specification LNG, Terminal Operator shall use its reasonable endeavours to redeliver Natural Gas at the Redelivery Point that is in compliance with the Specification at the Redelivery Point but, subject to GC 3.2.4, Terminal Operator cannot be held liable if, after having used its reasonable endeavours, the Natural Gas redelivered at the Redelivery Point is not in compliance with the Specification at the Redelivery Point. Terminal Operator shall give Shipper regular and frequent updates as to the status of this process, which shall be given at least once a Day. Shipper shall pay such direct costs, direct expenses and other direct losses actually incurred by Terminal Operator including the direct costs, direct expenses and other direct losses exceeding Terminal Operator s agreed good faith estimate, which are properly documented and presented to Shipper provided Terminal Operator takes measures, acting as a Reasonable and Prudent Operator, to minimize such direct costs, direct expenses and other direct losses. For the avoidance of doubt, any direct damages, direct costs and direct expenses relating to the abovementioned consultation process shall be the full responsibility of Shipper which include, amongst others, any delay and/or Demurrage Rate. Terminal Operator shall unload LNG Ships in such a way as to minimise the risk of contaminating LNG already in the LNG Terminal which, when delivered, was in compliance with the Specification at the Delivery Point until the Nominated Cargo of LNG being discharged is determined to be in compliance with the Specification at the Delivery Point. If Terminal Operator has been notified, in accordance with the preceding paragraphs of this GC 3.2.1, that the Nominated Cargo of LNG that is to be unloaded will not or may not meet the Specification at the Delivery Point, Terminal Operator shall not BRU /48 10

22 commingle such LNG that will or may not meet the Specification at the Delivery Point without first obtaining the consent of all Other Shippers and/or Other Users who currently have Gas In Storage within the LNG Terminal or would have Gas In Storage within the effected period pursuant to the RBS. Therefore, at the same time as the negotiation described above between Terminal Operator and Shipper takes place, Terminal Operator shall seek the agreement from Other Shippers and/or Other Users which shall not be unreasonably withheld. Such approval from Other Shippers and/or Other Users shall be deemed to have been given if notice of consent or refusal is not received by Terminal Operator within twenty-four (24) hours from receipt of Terminal Operator s notice. Notwithstanding the approval of Other Shippers and/or Other Users, Terminal Operator shall be entitled to refuse to accept the Off-Specification LNG. For the application of this GC 3.2.1, Terminal Operator shall take into account the RBS and the Send Out plans of any Shipper, the Other Shippers or the Other Users In case (i) Terminal Operator becomes aware later than six (6) hours before the Tide on which an LNG Ship actually proceeds to the LNG Terminal for discharging, that the LNG scheduled to be delivered to the LNG Terminal will not or may not be in compliance with the Specification at the Delivery Point and if, in such case the LNG is delivered to Terminal Operator; and/or (ii) Off-Specification LNG is delivered without having been accepted by Terminal Operator, Shipper shall reimburse Terminal Operator all reasonable direct costs, direct expenses and other direct losses, (including, amongst others: (i) the costs related to the segregation of the Off-Specification LNG; (ii) the treatment of LNG of Other Shippers and/or Other Users that is contaminated due to such delivery and (iii) other means downstream of the LNG Terminal which Terminal Operator would use to make the Natural Gas compliant with the Specifications at the Redelivery Point) actually incurred by Terminal Operator which are properly documented and presented to Shipper due to the failure of Shipper s LNG to be in compliance with the Specification at the Delivery Point. Terminal Operator shall act as a Reasonable and Prudent Operator and take all reasonable measures to minimize such direct costs, direct expenses and direct losses which Terminal Operator may incur When Off-Specification LNG is being delivered by Shipper pursuant to GC 3.2.2, Terminal Operator shall, upon becoming aware of the situation pursuant to the measurement and testing of the LNG at the Delivery Point by virtue of GC 4.1 and the LNG Access Code, notify Shipper as soon as possible hereof and shall have the right to request Shipper to stop unloading LNG forthwith. Thereafter, if Terminal Operator cannot, through the use of its reasonable endeavours, accept the Off-Specification LNG, Terminal Operator shall be entitled to request Shipper to cause the LNG Ship to promptly leave the Port provided the master of the LNG Ship can do so safely (which actions may include but not be limited to rearranging of the LNG cargo within the LNG Ship). If Terminal Operator does not make such request, Shipper shall nevertheless have the right to stop unloading of the Off-Specification LNG and to leave the Port. For the avoidance of doubt, any damages, costs and expenses shall be treated in accordance with the provisions of GC If Terminal Operator has accepted from Shipper Off-Specification LNG at the Delivery Point, Shipper may not refuse to accept Off-Specification Natural Gas at the Redelivery BRU /48 11

23 Point, to the extent that Terminal Operator has used its reasonable endeavours to bring the Off-Specification LNG in compliance with the Specification in accordance with the provisions of this GC 3 and the cause of the Off-Specification Natural Gas is related to the Off-Specification LNG. The quality of the redelivered Natural Gas, insofar accepted by Terminal Operator at the Delivery Point, shall not be further out of compliance for the parameters for which the LNG was Off-Specification LNG and the Natural Gas shall not be out of compliance for any parameters for which the LNG was in compliance with the Specification at the Delivery Point. BRU /48 12

24 3.3 TERMINAL OPERATOR S FAILURE TO CONFORM If Terminal Operator makes Off-Specification Natural Gas available at the Redelivery Point and provided Shipper s LNG complied with the Specification at the Delivery Point, Shipper may refuse but shall use reasonable endeavours to accept, without prejudice to any other right or remedy it may have, to receive and accept in whole or in part any Off-Specification Natural Gas, subject to Terminal Operator: (i) agreeing with the downstream grid operator to accept the Off-Specification Natural Gas using other possibilities downstream of the LNG Terminal for making Off-Specification Natural Gas compliant with the Specification at the Redelivery Point and (ii) Terminal Operator reimbursing Shipper s all reasonable direct costs, direct expenses and other direct losses actually incurred by Shipper which are properly documented and presented to Terminal Operator due to the failure of Terminal Operator to comply with the Specification at the Redelivery Point. Shipper shall take all reasonable measures to minimize such direct costs, direct expenses and direct losses which Shipper may incur If Off-Specification Natural Gas is redelivered at the Redelivery Point without having been accepted by Shipper, and provided Shipper s LNG complied with the Specification at the Delivery Point, Terminal Operator shall reimburse Shipper all reasonable direct costs, direct expenses and other direct losses actually incurred by Shipper which are properly documented and presented to Terminal Operator due to Terminal Operator s failure to redeliver Natural Gas in compliance with the Specification at the Redelivery Point, provided Shipper takes all reasonable measures to minimize such direct costs, direct expenses and other direct losses which Shipper may incur. This GC shall also apply if Terminal Operator has accepted Off-Specification LNG from Other Shipper(s) or Other User(s) under GC without consulting with Shipper or after Shipper has refused to allow Terminal Operator to commingle its LNG already within the LNG Terminal with such Off Specification LNG. BRU /48 13

25 4 MEASUREMENT AND TESTING 4.1 MEASUREMENT AND TESTING AT THE DELIVERY POINT General Unloaded Quantities of LNG shall be measured and the determination of the quality of the unloaded LNG shall be determined in accordance with the procedures of the LNG Access Code. For any issues associated with measurement and quality that are not addressed by the LNG Access Code, the Parties shall meet and discuss in good faith, following the best practices and recommendations of the most recent version of the GIIGNL LNG Custody Transfer Handbook, as far as practicable Obligation of the Parties to supply devices Shipper shall supply, operate and maintain, or cause to be supplied, operated and maintained, suitable gauging devices for the LNG tanks of the LNG Ships, as well as pressure and temperature measuring devices and all other measurement or testing devices that are incorporated in the structure of such LNG Ships or customarily maintained on board the LNG Ships for accurate LNG cargo custody transfer. Terminal Operator shall supply, operate and maintain, or cause to be supplied, operated and maintained, devices required for collecting continuous and discontinuous (for monitoring and as a back-up) samples and for determining quality and composition of the delivered LNG and all other measurement or testing devices that are necessary to perform the measurement and testing required hereunder at the LNG Terminal Tank gauge tables of LNG Ships Shipper shall furnish Terminal Operator or cause Terminal Operator to be furnished, a certified copy of tank gauge tables as described in the LNG Access Code for each tank of each LNG Ship Gauging and measuring LNG volumes unloaded Volumes of LNG delivered under this Agreement shall be determined by gauging the LNG in the tanks of the LNG Ship(s) immediately before and after unloading. Gauging the liquid in the tanks of the LNG Ship(s) and the measuring of liquid temperature, vapor temperature and vapor pressure in each LNG tank and the trim and list of the LNG Ship(s) shall be performed, or caused to be performed, by Shipper and may be witnessed by both Parties before and after unloading. Copies of gauging and measurement records shall be furnished to Terminal Operator, and in the absence of manifest error, shall be conclusive. Gauging devices shall be selected, and measurements shall be effected, in accordance with the terms of the LNG Access Code. BRU /48 14

26 4.1.5 Samples for quality analysis Representative samples of the delivered LNG shall be obtained or caused to be obtained by Terminal Operator during the time of unloading as provided in the LNG Access Code Quality analysis Unless otherwise agreed, the samples referred to in GC shall be analysed, or caused to be analysed by Terminal Operator in accordance with the terms of the LNG Access Code to determine the molar fraction of the hydrocarbons and other components in the sample Operating procedures Shipper, at no cost to Terminal Operator, shall procure that all measurements, gauging and analyses provided for in GC to GC inclusive shall be witnessed and verified by an independent surveyor agreed upon by Terminal Operator and Shipper. Prior to effecting such measurements, gauging and analyses, the Party responsible for such operations shall notify the independent surveyor, allowing such surveyor a reasonable opportunity to be present for all operations and computations; provided, however, that the absence of the independent surveyor after notification and reasonable opportunity to attend shall not prevent any operation or computation from being performed. The results of such independent surveyor's verifications shall be made available promptly to each Party. All records of measurements and the computation results shall be preserved by the Party responsible for effecting such measurements and held available to the other Party for a period of three (3) Years after such measurements and computations have been completed LNG quantity delivered The quantity of LNG in energy terms delivered at the Delivery Point shall be calculated by Terminal Operator following the procedures set forth in the LNG Access Code and shall be verified by an independent surveyor agreed upon by Shipper and Terminal Operator in accordance with GC Verification of Accuracy and Correction for Error Shipper and Terminal Operator shall test and verify or cause to be tested and verified the accuracy of its respective gauging devices at intervals to be agreed between the Parties. In the case of gauging devices on LNG Ship(s), such tests and verifications shall take place during scheduled dry-docking periods. Each Party shall have the right to inspect at any time the gauging devices installed by the other Party, provided that the other Party shall be notified reasonably in advance. Testing shall be performed using methods recommended by the manufacturer or any other method agreed upon by Shipper and Terminal Operator. Tests shall be witnessed and verified by an independent surveyor agreed upon by Shipper and Terminal Operator. BRU /48 15

27 Permissible tolerances shall be as described in the LNG Access Code. If an inaccuracy of a device exceeding the permissible tolerances is established, recordings and computations made on the basis of those inaccurate readings shall be reviewed, in order to correct all errors with respect to any period that is definitely known or agreed by the Parties, as well as adjustment of the device. In the event that the period of error is neither definitely known nor agreed, corrections shall be made for each delivery and each energy balance made during the last half of the period since the date of the most recent calibration of the inaccurate device Costs and expenses of tests and verifications All costs and expenses for testing and verifying measurement devices, including the fees of the independent surveyor, shall be borne by the Party whose devices are being tested and verified; provided, however, that representatives of the Parties attending such tests and verifications shall do so at the cost and risk of the Party they represent. 4.2 MEASUREMENT AND TESTING AT THE REDELIVERY POINT The Redelivery Metering Facility Operator (RMFO), not being Terminal Operator, shall, on behalf of Terminal Operator, perform the measurement and testing at the Redelivery Point in accordance with the provisions contained in the LNG Access Code. Terminal Operator shall procure that Shipper shall have access to the agreement between the RMFO and Terminal Operator, and that such agreement shall include, amongst others, the provisions set forth in this GC 4.2. Prior to any amendment to such agreement that may have an impact on Shipper, Terminal Operator shall consult with Shipper Shipper shall have the right to appoint a representative to execute Shipper s rights concerning measurement and testing at the Redelivery Point. All relevant details concerning measurement and testing at the Redelivery Point shall follow the same principles and shall be in substantially the same form as the operating procedures in the LNG Access Code. and shall be based on the principles set out hereinafter The Natural Gas shall be measured in accordance with the procedures described in the operating procedures as set forth in the LNG Access Code. The applicable standards used in the LNG Access Code shall comply with all applicable laws and regulations in force relevant to the measurement and testing of Natural Gas. All measurement equipment shall have as little tolerance as technically and reasonably possible, not to exceed the tolerances as described in the operating procedures in the LNG Access Code. The measurement and testing equipment shall be designed, operated and calibrated so that, at any time, known systematic errors can and shall be corrected insofar as such errors are exceeding the technical tolerance of the applicable measurement and testing equipment. BRU /48 16