Draft form contract 2013

Freshfields Bruckhaus Deringer draft: 13 August 2012 HKG2337164/13 (156871-0002) Page 1 THIS CONTRACT is dated [•] 2013 and made between: (1) AES-VCM MONG DUONG POWER COMPANY LIMITED of Unit 302, 3rd Floor, Asia Tower, No. 6 Nha Tho Street, Hanoi, Vietnam (the Employer); and (2) [•] of [insert address of Contractor] (the Contractor). I T IS AGREED as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions Advance Payment Security means an advance payment security in the form of Schedule 1. Applicable Laws means any and all treaties, acts, statutes, laws, codes, standards, regulations, permits, ordinances, rules, judgments, orders, decrees, directives, or any similar form of decision or determination by, or any interpretation or administration of any of the foregoing, by any Government Agency as may be in effect from time to time, including all applicable anti-corruption, anti-money laundering, anti-terrorism and economic sanction and anti-boycott laws, including the U.S. Foreign Corrupt Practices Act. Acceptable Credit Provider means a bank or financial institution which has issued a Credit Support Document that has: (a) a foreign senior unsecured rating of at least [Aa3] by Moody’s Investors Service, Inc. (Moody’s) and a foreign long - term issuer rating of at least [AA- ] by Standard & Poor’s Rating Services, a division of McGraw-Hill Companies, Inc. (S&P), if rated by both Moody’s and S&P, or (b) if rated by either Moody’s or S&P but not both, a foreign senior unsecured rating of at least [Aa3] by Moody’s or a foreign long-term issuer rating of at least [AA-] by S&P. Bill of Quantities means the bill of quantities in respect of the Works as set out in Schedule 10. Business Day means any day other than a Saturday, Sunday or legal or bank holiday in Vietnam. Commencement Date means the date for commencement of the Works (or the balance of the Works, as applicable), being the Business Day after receipt by the Contractor of the Notice to Proceed or such later date as may be agreed between the Employer and the Contractor and stated in the Notice to Proceed. Contract Price means the sum of VND[•], as the same may be adjusted in accordance with this Contract. HKG2337164/13 (156871-0002) Page 2 Contractor's Permits means all permits, licences and approvals (other than the Employer Permits) which are required for the Works (including those listed in Part B of Schedule 5). Contractor's Documents means the calculations, computer programs and other software, drawings, manuals, models and other documents of a technical nature supplied by the Contractor under this Contract. Contractor's Equipment means all apparatus, machinery, vehicles and other things required for the execution and completion of the Works and the remedying of any defects. However, Contractor's Equipment excludes Temporary Works, Plant, Materials and any other things intended to form or forming part of the Permanent Works. Contractor's Personnel means any person appointed from time to time by the Contractor to act on behalf of the Contractor for the purpose of the Contract and all personnel whom the Contractor utilises on Site, who may include the staff, labour and other employees of the Contractor and of each Subcontractor; and any other personnel assisting the Contractor in the execution of the Works. Cost means all expenditure reasonably incurred (or to be incurred) by the Contractor, whether on or off the Site, including overhead and similar charges, but does not include profit. Credit Support Document means any of the Advance Payment Security and Performance Security. day means a calendar day and year means 365 days. Defects Notification Period means the period of 365 days from the date on which the Works or Section is completed as certified under Clause10.1. Dong or VND means Vietnamese Dong. Drawings means the drawings for the Works as set out in Schedule 8. Employer’s Liability Insurance means a type of insurance provided by Contractor for its employee(s) as set out in Schedule 16. Employer Permits means those permits, licences and approvals which are listed in Part A of Schedule 4. Employer’s Risks means: (a) war, hostilities (whether war be declared or not), invasion or act of foreign enemies; (b) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war, within Vietnam; HKG2337164/13 (156871-0002) Page 3 (c) riot, commotion or disorder by persons other than the Contractor's Personnel, within Vietnam and affecting the Site and/or the Works; (d) munitions of war or explosive materials within Vietnam and affecting the Site and/or the Works, except as may be attributable to the Contractor's use of such munitions or explosives; (e) ionising radiations, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such an assembly, within Vietnam and affecting the Site and/or the Works, except to the extent to which the Contractor may be responsible for the use of any radio-active material; (f) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; (g) use or occupation by the Employer of any part of the Works, except as may be specified in this Contract; (h) any operation of the forces of nature affecting the Site and/or the Works, which was unforeseeable or against which an experienced contractor could not reasonably have been expected to take precautions; (i) any breach by the Employer of this Contract; (j) any change in the Laws of Vietnam, or any change in the manner in which the Laws of Vietnam are applied, after the date of this Contract; and (k) losses arising out of the Employer's right to have the Permanent Works executed on, over, under, in or through any land, and to occupy this land for the Permanent Works. Final Time for Completion means the date that is [180] days after the Time for Completion. Financing Parties means any and all secured or unsecured lenders, security holders, note or bond holders, lien holders, investors, equity providers, holders of indentures, security agreements, mortgages, deeds of trust, pledge agreements and providers of swap agreements, interest rate hedging agreements, letters of credit and other documents evidencing, securing or otherwise relating to the construction, interim or long-term financing or refinancing of the Project, and others providing any construction, interim or long-term financing or refinancing or political risk insurance for the Project, and any trustees or agents acting on their behalf; and the legal successors in title to each of these persons. Force Majeure means as defined in Clause14.1. HKG2337164/13 (156871-0002) Page 4 Good Industry Practice means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor: (l) seeking in good faith to comply in a timely manner with its contractual obligations; (m) complying with all Applicable Laws; and (n) engaged in the same type of undertaking and under the same or similar circumstances and conditions as that in which the relevant matter arises. Goods means Contractor's Equipment, Materials, Plant and Temporary Works, or any of them as appropriate. Governmental Agency means any government or any governmental agency, semi- governmental or judicial entity or authority (including, without limitation, any stock exchange or any self-regulatory organisation established under statute). Key Personnel has the meaning set forth in Clause 3.4.1. Laws means all national (or state) legislation, statutes, ordinances and other laws, and regulations and by-laws of any legally constituted Governmental Agency. Limited Notice to Proceed or LNTP means a notice substantially in the form of Schedule 3. LNTP1 Commencement Date means the Business Day after receipt by the Contractor of the Limited Notice to Proceed in relation to the LNTP1 Works or such later date as may be agreed between the Employer and the Contractor and stated in that Limited Notice to Proceed. LNTP1 Works means the works and services specified as such in the relevant LNTP. LNTP2 Commencement Date means the Business Day after receipt by the Contractor of the Limited Notice to Proceed in relation to the LNTP1 Works or such later date as may be agreed between the Employer and the Contractor and stated in that Limited Notice to Proceed. LNTP2 Works means the works and services specified as such in the relevant LNTP. Major Subcontractor means any Subcontractor: (a) described in Schedule 13 as a Major Subcontractor; or (b) whose Subcontract compromises Work specified in Schedule13.for performance by a Major Subcontractor. Materials means things of all kinds (other than Plant) intended to form or forming part of the Permanent Works. HKG2337164/13 (156871-0002) Page 5 Notice to Proceed or NTP means a notice substantially in the form of Schedule 4. Party means the Employer or the Contractor, as the context requires . Performance Security means a performance security in the form of Schedule 2. Permanent Works means the permanent works to be executed by the Contractor under this Contract. Plant means the apparatus, machinery and vehicles intended to form or forming part of the Permanent Works. Power Facility means those components comprising a nominal 1120 MW net coal- fired power plant and all facilities, systems and ancillary equipment relating thereto to be located on the Project Site. Project means, collectively, the design, engineering, procurement, permitting, fabrication, construction, installation, security, financing by the Employer, commissioning, start-up, testing, completion, ownership, operation and maintenance of the Power Facility and all activities incidental thereto. Project Site means the areas designated as such in Schedule 9 Quality Assurance Plan means as defined in Clause 3.11. Section means a part of the Works specified as such (if any) in the Specification. Site means the places where the Permanent Works are to be executed and to which Plant and Materials are to be delivered, and any other places as may be specified in this Contract as forming part of the Site. Specification means the specification for the Works as set out in Schedule 7. Subcontractor means any person named in this Contract as a subcontractor, or any person appointed as a subcontractor, for a part of the Works. Taking-Over Certificate means a certificate issued under Clause 10.1. Temporary Facilities means temporary works and services as set out in Clause 3.10 Temporary Works means all temporary works of every kind (other than Contractor's Equipment) required on Site for the execution and completion of the Permanent Works and the remedying of any defects. Tests on Completion means the tests which are specified in this Contract or agreed by both Parties or instructed as a Variation, and which are carried out under Clause 9 before the Works or a Section (as the case may be) are taken over by the Employer. Time for Completion means [required date for completing the Works or a Section (as the case may be) to be inserted]. HKG2337164/13 (156871-0002) Page 6 Variation means any change to the Specification or the Works which is instructed or approved as a variation under Clause 12. VAT means value added tax and any other tax of a similar nature whether charged in Vietnam or elsewhere. Warranty Period means as defined in Clause 12.2. Works mean the Permanent Works and the Temporary Works, or either of them as appropriate. 1.2 Interpretation Unless the context of this Contract otherwise requires, the following rules of interpretation shall apply to this Contract: (a) the headings contained in this Contract are used solely for convenience and do not constitute a part of this Contract, nor should they be used to aid in any manner to construe or interpret this Contract; (b) references to any contract, agreement or document (including this Contract) shall be construed as a reference to such agreement or document as the same may be amended, modified, supplemented or restated; (c) references to any Law, permit, licence, approval, policy or guideline shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified, supplemented or re-enacted; and (d) references to any person shall be construed as a reference to such person’s successors and permitted assigns. 2. THE EMPLOYER 2.1 Access to Site (a) Subject to paragraph (b) below, the Employer shall provide the Contractor with right of access to, and possession of, the Site on the Business Day after receipt by the Contractor of the Notice to Proceed or such later date as may be agreed between the Employer and the Contractor and stated in the Notice to Proceed. The right of access and possession may not be exclusive to the Contractor. (b) The Employer shall not be obliged to give the Contractor access to the Site unless the Contractor: (i) has obtained all permits, licences and approvals required to access, possess and perform the Works on the Site (other than permits, licences and approvals which are listed in Part A of Schedule 4); (ii) has delivered to the Employer the advance payment security and the stated and undrawn amount of such advance payment security is in HKG2337164/13 (156871-0002) Page 7 aggregate not less than the principal amount of all advance payments (howsoever defined) then outstanding under this Contract; (iii) has delivered to the Employer the performance security in accordance with this Contract; and (iv) has delivered to the Employer evidence of the insurance required to be maintained by the Contractor in accordance with Clause 18.2. 2.2 Permits and licences The Employer shall: (a) obtain and maintain the Employer Permits; and (b) cooperate with the Contractor in connection with the Contractor’s efforts to obtain the Contractor Permits. 2.3 Employer's documents As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Specification, the Drawings and other documents made by (or on behalf of) the Employer. The Contractor may, at his cost, copy, use, and obtain communication of these documents for the purposes of this Contract. They shall not, without the Employer's consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of this Contract. 2.4 Employer’s Right to Attend Contractor Inspections Contractor shall notify Employer of any significant testing or significant inspections of the Work or any portion thereof no less than (a) twenty-one (21) days in advance of such testing or inspection, for any testing or inspection outside the Site or the Work Areas, and (b) [forty-eight (48)] hours in advance of such testing or inspection, for any testing or inspection at the Site or the Work Areas. If Contractor has provided such notice to Employer, then Contractor shall have the right to perform such testing or inspections on the date(s) set forth in such notice. In the event such testing is rescheduled, Contractor will promptly notify Employer of the re-scheduled date of the testing. Employer will have the right to be present at all such inspections and testing as reasonably determined by Employer. In the event that such inspections and testing reveal that the progress and quality of the Work is not in accordance with the Contract Documents or the Baseline Schedule, Employer will be entitled to make recommendations to Contractor for the purpose of remedying such deficiencies or take actions as set forth in Section 2.5. 2.5 Inspection of and Correction of Work At any stage of completion, Employer or its representatives will have the reasonable right to have access to and to inspect the Work on the Site or on the Work Areas and, on reasonable notice to Contractor, off the Site. If Employer’s inspection reveals any material non-compliance with the Contract Documents or any other defects in any HKG2337164/13 (156871-0002) Page 8 portion of the Work, then upon written notice from Employer, Contractor will promptly stop such defective Work and correct all such defective or non-compliant Work,. If Contractor fails to initiate correction of the defective or non-compliant Work within [five (5)] days of Employer’s notification thereof or thereafter fails to diligently pursue correction of the defective or non-compliant Work, then Employer may, without prejudice to any other remedy Employer may have, (i) order Contractor to suspend (in part or in whole) the performance of the affected or related Work, until the cause of such failure has been eliminated or corrected, provided that the right of Employer to suspend Contractor’s performance of the affected or related Work (in part or in whole) will not give rise to any duty on the part of Employer to exercise such right for the benefit of Contractor or any other Person and (ii) if such defective Work is materially non-compliant with the requirements of this Agreement, correct such defective Work. Employer’s exercise of its rights under this Section 2.5 is without prejudice to any other right or remedy Employer may have, and Employer’s correction of such defective or non-compliant Work will not relieve Contractor of its obligations under this Agreement. All costs and expenses related to the corrective actions taken by Employer will be for the account of Contractor, and Contractor will promptly reimburse such amounts to Employer. 2.6 Right to Uncover Work If, prior to inspection by Employer, Contractor covers Work (i) that was to be inspected by Employer prior to covering pursuant to the Contract Documents or (ii) in relation to which Employer has given Contractor reasonable notice that it will be inspected prior to covering, Employer shall have the right, at Contractor’s expense, to order the Work uncovered for inspection. If Employer requests at any time before Substantial Completion, upon reasonable notice and for good cause, Contractor shall remove or uncover finished portions of the Work. After examination, Contractor shall restore such portions of the Work to the standard required by this Agreement. If any portion of the Work so exposed or examined pursuant to this Section 2.6 is not in compliance with this Agreement, the expense of uncovering and replacing the covering, or replacing the parts removed, shall be at Contractor’s expense. Except as set forth in the first sentence of this Section 2.6, if such uncovering and subsequent inspection pursuant to this Section 2.6 shall reveal that such portion of the Work complies with this Agreement, Contractor shall be entitled to a Claim pursuant to Clause13.2 2.7 Right to Stop Work for Cause Employer or its representatives may order Contractor to stop performance of specific portions of the if the activities of Contractor or any Subcontractor are, in the opinion of Employer or its representatives, causing or threatening to cause danger to life or damage to property, to violate Employer’s obligations under the Project Documents, or are in violation of Applicable Laws or Applicable Permits, in which case Contractor shall immediately stop such activities until Employer agrees upon corrective actions and a restart date. In the event of such a stop order, Contractor will not be entitled to a Change Order adjusting the Baseline Schedule or adjusting the Contract Price and the cost of any delays experienced by Contractor as a result of HKG2337164/13 (156871-0002) Page 9 such order will be borne by Contractor. Employer’s right to stop work under this Section 2.7 is without prejudice to any other right or remedy Employer may have. 2.8 Right to Suspend Work for Convenience Employer may for any reason, by a written order, suspend (and later reinstate) the Work, or any portion thereof, without terminating this Agreement. Upon receipt of such order, Contractor will promptly suspend (or reinstate as soon as reasonably practicable, as applicable) its performance of such Work, or the portion of such Work, for such time or times and in such manner as Employer may require and shall during any such period properly protect, make safe and secure the Work, or the portion of the Work, which was suspended by Employer, in such manner as Employer shall request. Unless otherwise instructed by Employer, Contractor shall, during any suspension, maintain to the extent practicable its staff and labor on or near the Site and/or necessary easements ready to proceed with the Work as soon as practicable upon receipt of Employer’s further written instructions. If, after the issuance of the Notice to Proceed, Employer suspends, postpones, or slows the Work pursuant to this Section 2.8, then Contractor will be entitled to a Claim as provided in Clause 13.2 3. THE CONTRACTOR 3.1 Performance security (a) The Contractor shall on or before the Commencement Date deliver to the Employer the Performance Security issued by an Acceptable Credit Provider in the amount required under this Clause 3.1. (b) The required amount of the performance security shall be: (i) until the issue of the Taking-Over Certificate for the Works, 10% of the Contract Price; and (ii) thereafter until the date that is 28 days after the expiry of the Defects Notification Period (the Performance Security Expiry Date), 5% of the Contract Price. (c) The Contractor shall ensure that the performance security is valid and enforceable until the Performance Security Expiry Date. If the terms of the performance security specify its expiry date prior to the Performance Security Expiry Date, the Contractor shall extend the validity of the performance security until the Performance Security Expiry Date. 3.2 Mobilisation (a) The Contractor shall: (i) within twenty eight days upon the issue of the Commencement Date, commence and continue his mobilisation operations with the utmost HKG2337164/13 (156871-0002) Page 10 dispatch and in accordance with the approved program of Works and method statement, as stated in this Contract; and (ii) furnish whatever additional Contractor's Equipment that may be necessary, for a proper and timely completion of the Works in accordance with the requirements of this Contract. (b) Mobilisation as specified in this clause shall: (i) include: (A) the assembly, preparation and loading for transport of all Contractor's Equipment at the Contractor's home station or any other location and of all Contractor's Equipment, material and spare parts from the present location to the Site; (B) the supply and furnishing at Site of all personnel, equipment instruments and spare parts necessary for surveys and measurements; (C) unloading and installing, ready for use, Contractor's Equipment, material and spare parts and whatever else required for the execution of the Works; (D) erection of Contractor's Site office, Contractor's staff and labour camp, work yards, pre-cast yards, workshops, depots and stores; and (ii) be completed in such a way that completion of the Works will be in accordance with the timing requirements specified for each item of the Works; (iii) not be complete until the required insurance and securities have been paid and proof thereof has been submitted to the Employer for approval; and (iv) be complete when all things stipulated in this Clause are done and all main equipment is on site and operable. 3.3 Manner of execution The Contractor shall carry out the manufacture of Plant, the production and manufacture of Materials and all other execution of the Works: (a) in the manner (if any) specified in this Contract; (b) in a proper workmanlike and careful manner, in accordance with Good Industry Practice; and (c) with properly equipped facilities and non-hazardous Materials, except as otherwise specified in this Contract. [...]... information provided by Contractor or any Subcontractor in connection with its performance of the Works, any method or process used by Contractor or any Subcontractor in connection with its performance of the Works, any use of the Works based on the incorporation of, or use of, any equipment, apparatus, materials or information provided by Contractor or any Subcontractor in connection with the performance... that the Contractor has conducted sufficient due diligence on any proposed additional Subcontractor to ensure that such Subcontractor will perform in compliance with Clause 22 Prior to commencement of any Subcontractor's work, the Contractor shall represent to the Employer in writing that it has performed appropriate due diligence on the Subcontractor to ensure that such Subcontractor will perform in... Employer will not be deemed by virtue of this Contract or otherwise to have any contractual obligation to or relationship with any Subcontractor Contractor will include a clause to this effect in each Subcontract No Subcontractor is intended to be or shall be deemed a third party beneficiary of this Contract Contractor shall be solely responsible for paying each Subcontractor for services, equipment, material... in connection with the Works Contractor shall be fully responsible for the Work performed in whole or in part from any of its Subcontractors and nothing herein shall relieve Contractor of any and all obligations hereunder, whether or not Contractor has delegated such obligations to a Subcontractor (f) The Contractor shall ensure that each Subcontract is transferable by the Contractor to the Employer... Subcontract is executed by the Contractor, the Contractor will deliver to the Employer a copy of such acknowledgment and agreement, signed by the applicable Subcontractor (g) The Contractor shall provide the Employer with a final form of each Major Subcontract, prior to execution, for the Employer’s review and approval The Employer’s review and approval of any Major Subcontract will not relieve Contractor... the Contractor shall, for itself and cause its Subcontractors to, provide software which will enable the Employer fully and efficiently to avail itself of its license in Contractor’s Standard Proprietary Property and Contractor’s Project-Specific Information 3.8 Subcontractors (a) The Contractor: (i) shall be responsible for the acts or defaults of any Subcontractor (including any nominated Subcontractor),... authorities, all information and reports required in accordance to applicable Laws to be furnished in connection with all the Contractor’s taxes of the Contractor or any taxes payable by the Employer, which are the responsibility of the Contractor under this Contract (b) If: (i) the Contractor fails to timely pay any Contractor’s tax and such failure, unless Contractor is contesting such Contractor’s tax... Parties for the performance of Contractor’s obligations under any Subcontract unless and until such Subcontractor has received notification that its Subcontract has been transferred to the Employer or the Financing Parties, as applicable Each Subcontract shall require the corresponding Subcontractor to execute an acknowledgment of the agreement to the provisions of this Clause 3.8(f) in the form approved... for coordinating the efforts of the Parties 3.5 Compliance with Laws The Contractor shall, in performing the Contract, comply with Applicable Laws 3.6 Permits and licences (a) The Contractor shall obtain and maintain all Contractor Permits If the Contractor is unable to obtain, or has failed to timely obtain, any Contractor Permit, Contractor shall immediately notify the Employer thereof If any Government... 22 (c) If at any time during the performance of the Works any Subcontractor is not complying with the standards of performance applicable to the Works in this Contract, or is otherwise detrimental to the Project, then, upon notice from the Employer, such Subcontractor at the Contractor’s cost, shall be immediately removed from the Project, and the Contractor, at the Contractor’s cost, will promptly replace . The Contractor shall, in performing the Contract, comply with Applicable Laws. 3.6 Permits and licences (a) The Contractor shall obtain and maintain all Contractor Permits. If the Contractor. Contractor’s Project-Specific Information. 3.8 Subcontractors (a) The Contractor: (i) shall be responsible for the acts or defaults of any Subcontractor (including any nominated Subcontractor),. of this Contract or otherwise to have any contractual obligation to or relationship with any Subcontractor. Contractor will include a clause to this effect in each Subcontract. No Subcontractor