ENGINEERING, PROCUREMENT AND CONSTRUCTION MANAGEMENT AGREEMENT 01 NOVEMBER 2010 Between: MINERA Y METALURGICA DEL BOLEO S.A. DE C.V. AND ICA FLUOR DANIEL, S. DE R.L. DE C.V.

MMB is undertaking the process mine development at the Boleo mine site in Baja California Sur, Mexico including all related Facilities, ancillary facilities and infrastructure at the Site as more fully described in Schedule ‘A’ hereto (the “Project”);

The EPCM Contractor is in the business of performing and providing engineering, procurement and construction management services; and

MMB wishes to retain the EPCM Contractor to provide and perform such engineering, procurement and construction management services as more fully described in the Scope of EPCM Services on the terms and conditions described in this Agreement (the “EPCM Services”);

Definitions and Interpretation

All terms which are capitalized in this Agreement shall have the following definitions and meanings:

any re-performance of Defective Project Work by a Project Contractor save to the extent that if the EPCM Contractor had performed its obligations in accordance with Section 3.1, such Defective Project Work would have been expected to have been avoided;

any breach of the provisions of this Agreement by MMB or by any other wrongful act or omission on the part of MMB;

suspension of the EPCM Services pursuant to Section 50.1 of this Agreement;

MMB causing or directing an alteration, amendment, omission, disruption, addition or other variation to the EPCM Services, Project Work or to the Facilities including but not limited to by way of the issue by MMB of a Change Directive except where same is in consequence of Non-Compliant EPCM Services;

the occurrence of a Force Majeure Event provided that there has been full compliance with Section 54.2 of this Agreement;

any interference with or delay to the EPCM Services resulting from the activities of any MMB Contractor unless such delay or interference should have been avoided by the EPCM Contractor complying with its obligations in Section 62.0;

any action taken by a governmental authority having jurisdiction in respect of the Project and which is not action which the relevant governmental authority is entitled to take in response to any failure on the part of the EPCM Contractor and which action causes delay to, or increases in the cost of, the performance of the EPCM Services;

the provision by the EPCM Contractor of assistance in any litigation commenced by MMB against any Project Contractor;

inspections required by MMB pursuant to Section 33 which are additional to those inspections and tests provided for in the Inspection Plan and which are not inspections or tests which reveal the existence of Non-Conforming EPCM Services;

any change in any law applicable to the performance of the EPCM Services or of any of the Project Contractor's obligations which causes a delay to, or increases the cost of, the performance of the EPCM Services or of the Project Contractor's obligations as the case may be;

the discovery of any unexpected subsurface conditions at the Site which conditions differ materially from those which might reasonably be foreseen by an experienced contractor in light of the report entitled "El Boleo Plant Site Soil and Foundation Report" Rev 1, prepared by AMEC E&E and dated 18th December 2008;

any variation in the actual cost of those items identified as provisional or undeveloped in the Open Book Estimate from the provisional sums included for those items in the Open Book Estimate.

any variation in the cost of any work or services from the amount identified for that work or services in the Open Book Estimate as a result of MMB's requirement pursuant to Section 80.5.2 that the relevant Project Contract be awarded to an alternative supplier to that proposed by the EPCM Contractor to ensure the level of Eligible Goods and Services is maximised.

is lawfully obtained by the receiving party from a third party without breach of the conditions of this Agreement and otherwise not in violation of the disclosing party’s rights;

is known to the receiving party at the time of disclosure as shown by its written records in existence at the time of disclosure;

is independently developed by the receiving party, provided the receiving party can demonstrate that it did so without making any use of any confidential information or other information that the disclosing party disclosed in confidence to any third party; or

the disclosing Party is required to disclose pursuant to subpoena or other legal process, provided that the disclosing Party promptly notifies the other Party upon its receipt of any such legal process.

for which full documentary back-up in accordance with the terms of this Agreement is not provided by the EPCM Contractor when such documentary back- up is requested by MMB;

for resources not used for, or in connection with, the EPCM Services (allowing for reasonable utilization and productivity);

for material and equipment procured by the EPCM Contractor acting as the MMB’s agent which has not been authorised by MMB;

that are identified in this Agreement as being the responsibility of the EPCM Contractor;

in relation to the preparation for, and conduct of, any Dispute between MMB and the EPCM Contractor.

Unless otherwise defined in this Agreement, the words and phrases used herein shall be interpreted in a manner consistent with engineering and design industry standards.

Headings used in this Agreement and Schedules have been inserted for convenience and reference only and do not constitute a part of either this Agreement or the Schedules and shall be disregarded for purposes of construing the language in this Agreement and the Schedules.

EPCM Contractor’s Representations

The EPCM Contractor represents and warrants that as at the Effective Date the EPCM Contractor:

has the knowledge, competence, and experience, including experience in Mexico, to fully and properly provide and perform the EPCM Services;

has all necessary capacity, resources (including management and financial resource) and competent personnel, experienced on projects of a similar and scope nature to the Project in locations similar to the location of the Project in order to fully and properly perform the EPCM Services;

is duly incorporated under the laws of the jurisdiction of its incorporation;

is authorized to do business in the jurisdictions in which it will perform the EPCM Services; and

is duly authorized, and has taken all necessary corporate action, to execute this Agreement.

All payments due to the EPCM Contractor in respect of any EPCM Services performed prior to the Effective Date have been made by MMB to the EPCM Contractor.

there are no proceedings, investigations or claims now pending or, to its knowledge, threatened, before any court or arbitrator or before any governmental authority which, individually or in the aggregate, if determined adversely to the interests of the EPCM Contractor, could affect its legal, commercial or financial capability to fulfil its obligations under this Agreement; and

the EPCM Contractor and CICASA and Fluor Corporation being the two providers of the EPCM Contractor Parent Company Guarantys are financially solvent and possessed of sufficient working capital to complete the EPCM Services and perform all obligations under this EPCM Agreement.

The EPCM Contractor acknowledges and agrees that the representations in Section 2.1 and 2.2 above are material inducements on which MMB has relied in awarding this Agreement to the EPCM Contractor.

In the event that at any time after the Effective Date any of the representations or warranties as set out in Sections 2.1 and 2.2 would no longer be true if any such representation or warranty were to be repeated at that time, then the EPCM Contractor shall notify MMB of this circumstance.

EPCM Services

The EPCM Contractor shall perform the EPCM Services and ensure that Project Work is provided and performed in each case in accordance with and subject to:

all applicable laws, rules, regulations, by-laws, approvals, licences, concessions and building codes;

all applicable safety standards and requirements;

all project safety manuals issued by MMB from time to time;

the Standard of Care;

project procedures manuals issued by MMB from time to time; and

the Environmental and Social Action Plan.

In providing and performing the EPCM Services and administering the Project Work, the EPCM Contractor shall ensure the full and seamless integration of the requirements of documents listed in Section 3.1 above.

The EPCM Contractor shall, subject to the terms of the Agency Agreement, carry out the Services so as not to put MMB in breach of any Project Contract or the contracts entered into by MMB with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, FLSmidth and SNC Fenco.

The EPCM Contractor acknowledges and agrees that the EPCM Services include all tasks that are in the same general nature of the Scope of EPCM Services and which are reasonably necessary in order to complete the Project in accordance with the Project Design Criteria and the Project Specifications even though such tasks are not expressly described therein and the EPCM Contractor shall provide and perform such tasks as part of the EPCM Services.

The provisions of this Agreement shall apply to any EPCM Services whether carried out before or after the Effective Date.

Additional Services

MMB may, by Change Order, request that the EPCM Contractor performs additional services that are consistent in nature with the Scope of EPCM Services but that are not expressly described in the Scope of Services (or are otherwise the responsibility of the EPCM Contractor pursuant to Section 3.3) and the EPCM Contractor shall prior to the issue of a Change Order provide and perform such services if requested by MMB under the terms of this Agreement.

Limits on the EPCM Contractor’s Responsibility under this Agreement

The EPCM Contractor shall not be responsible for:

the negligent acts, Wilful Misconduct, Gross Negligence, errors or omissions of MMB or of their employees or agents; or

the negligent acts, Wilful Misconduct, Gross Negligence, errors or omissions of any Project Contractors or any of their respective employees, contractors, subcontractors or agents unless the same were caused by a failure of the EPCM Contractor to comply with its obligations and in which case this Clause 5.1 shall not relieve the EPCM Contractor from any liability which it would otherwise have under the terms of this Agreement (including any limitation of liability);

any part of the Process Design or the achievement of the Process Guarantees; and

the accuracy and completeness of any information provided by or through MMB, by MMB Contractors or by other third parties for whom the EPCM Contractor is not responsible according to the Scope of EPCM Services and shall be entitled to rely on the accuracy and completeness of the same.

the Project Contractors perform in a particular manner; or

the Project Works are to be carried out in a particular manner or achieve a specific result; or

the Project Contractors or Project Work is administered, integrated, performed, managed, coordinated, overseen, or provided in a particular way,

NOT USED

Compensation for the EPCM Services

Compensation for the Scope of EPCM Services shall consist of the reimbursement of Reimbursable Costs incurred by the EPCM Contractor in the performance of the Scope of EPCM Services the payment of the Base Fee and the Incentive Fee components paid in accordance with the terms of this Agreement.

Incentive Fees

The Incentive Fee shall be determined in accordance with Schedule ‘E’ to this Agreement.

Invoicing

Not used.

During the performance of the EPCM Services, no later than the 15th day of each month the EPCM Contractor shall submit to MMB an invoice made up of

The invoice in Section 9.2 shall be accompanied by a detailed calculation of the estimated labor compensation of personnel, with position, rate and estimated man hours and by a reconciliation statement prepared in a form reasonably acceptable to MMB showing a complete statement of actual Reimbursable Costs incurred during the previous month and supported by records evidencing the actual Reimbursable Costs incurred.

Payments

Subject to Section 10.3 below, amounts properly invoiced and owing under the Agreement shall be payable by MMB to the EPCM Contractor no later than 15 days after MMB has received such invoices and all documentation required under this Agreement

Where there is a good faith dispute regarding the amount of any invoice, that portion of the amount which is not in dispute shall be paid by MMB in accordance with Section 10.1 and without the need for the EPCM Contractor to first issue a revised invoice. MMB shall provide, within 15 calendar days after MMB has received the invoice the EPCM Contractor, a written explanation for the basis for withholding payment of an amount invoiced but not paid by MMB. Any portion of any payment that is under dispute shall be paid within 15 calendar days after resolution of the dispute and submission of a revised invoice.

MMB, from time to time and at any time, may revise and/or make corrections to any amounts previously paid to the EPCM Contractor on account of the EPCM Services to address any previous payment which it is agreed or determined was not due under this Agreement.

Payments due to vendors in respect of Procurement Items and to Project Contractors shall be paid directly by MMB.

Interest on Late Payments

REDACTED. This term includes interest rates and payment terms that have been negotiated.

The payment of interest shall not exercise or cure any default or delay in the payment of any overdue amount.

Currency of Payments

Payments to be made to the EPCM Contractor will be invoiced in the currency in which they are incurred by the EPCM Contractor. Invoices billed in US dollars will be paid in US dollars. Invoices billed in any Mexican pesos or such other currency as agreed by MMB, will be paid in such currency.

Final Payment

After the Final Acceptance Date, the resolution of outstanding Disputes and the delivery of all documentation, As-Built Drawings, lien discharges and releases, warranty assignments and other matters required by this Agreement, MMB shall pay to the EPCM Contractor any balance due under this Agreement. Such final payment and acceptance thereof does not waive EPCM Contractor’s warranties, or its obligations in respect of the enforcement of any claims of MMB in respect of Defective Project Work, or the various indemnity obligations of the Parties provided for herein.

Rebates and Commissions

All rebates and commissions shall be for MMB’s benefit and the EPCM Contractor shall remit to MMB any commissions, rebates or other direct or indirect payments received by the EPCM Contractor in connection with the EPCM Services, the Project Work or this Agreement, including without limiting the foregoing any rebates and commissions in connection with the purchase and sale of Procurement Items.

Performance Bond

REDACTED. This section detail the amount of the Performance Bond and terms associated with adjustment of such Performance Bond.

REDACTED. This section details how MMB may recover under the Performance Bond.

REDACTED. This section details reduction provisions to the Performance Bond.

Subject to the satisfaction of any prior claims made under the Performance Bond, the Performance Bond shall be released upon the expiry of the Warranty Period.

Representatives

At all times during the performance of the EPCM Services, the EPCM Contractor shall be represented by a competent full time Contractor Representative who will have authority to represent the EPCM Contractor in all matters pertaining to the EPCM Services and the Agreement.

The Parties acknowledge the Contractor Representative at the Effective Date is the Project Director, ▇▇▇▇▇▇ ▇▇▇▇. The EPCM Contractor shall not change the Contractor Representative without prior written notice to MMB.

All notices, determinations, clarifications, instructions and other communications given to the Contractor Representative shall be deemed to be given to the EPCM Contractor.

At all times during the performance of the EPCM Services, MMB shall be represented by a competent full time representative (the "MMB Representative") who will have authority to represent MMB in all matters pertaining to the Agreement. The Parties acknowledge the MMB Representative at the Effective Date is ▇▇▇▇ ▇▇▇▇.

MMB shall not change the MMB Representative without prior written notice to EPCM Contractor.

All notices, determinations, clarifications, instructions and other communications given to the MMB Representative shall be considered to be given to MMB.

Personnel

The EPCM Contractor shall at all times provide sufficient, competent and qualified personnel to perform the EPCM Services in accordance with this Agreement.

If the EPCM Contractor is unable or unwilling to provide sufficient, competent and qualified staff as required, MMB, at any time, and from time to time, may supplement the EPCM Contractor’s personnel who are providing and performing the EPCM Services by the secondment to the EPCM Contractor of MMB’s own personnel. Any seconded personnel shall carry out their assigned duties under the EPCM Contractor’s control and the EPCM Contractor shall be responsible for such personnel as if they were its direct employees. If MMB seconds to the EPCM Contractor such supplementary personnel, such secondment shall not be construed as establishing or implying a relationship of employer and employee between the EPCM Contractor and MMB’s personnel.

The EPCM Contractor shall, at the written request of MMB, promptly direct the removal from the Project or from the participation in any aspect of the EPCM Services, of any personnel employed by or working under the EPCM Contractor, or any subcontractor, that MMB, on reasonable grounds, determines are incompetent; dishonest, uncooperative, unable to work harmoniously with any of MMB’s employees or contractors and consultants; fail to comply with any Project procedures or safety manuals issued by MMB; or otherwise, or are unfit or unsuitable for work (including, but not limited to, by reason of the use of alcohol or drugs).

Each Party shall not, and shall procure that its affiliates shall not, at any time directly or indirectly induce or attempt to induce any of the other Party's staff to leave the employment of the other Party without the prior written approval of the other Party.

Key Personnel

The EPCM Contractor shall not, during the performance of the EPCM Services, remove or reassign Key Personnel away from the Project before the scheduled expiry of the deployment of the relevant Key Personnel as specified in Schedule G or such other time as may be agreed by the Parties, without MMB’s prior written approval so long as the said Key Personnel remain in the employment of EPCM Contractor or its Affiliates.

REDACTED. This term provides specific on liquidated damages associated with key personnel.

MMB may deduct such liquidated damages from any and all amounts due or be coming due to the EPCM Contractor in addition to all other deductions, holdbacks and retentions permitted by this Agreement.

Not used.

The EPCM Contractor’s potential liability to pay liquidated damage pursuant to Section 18.2 shall expire upon the EPCM Contractor’s completion of the EPCM Services or termination of this Agreement whichever is the earlier. For greater certainty, EPCM Contractor’s obligations in respect of the payment of liquidated damages shall not continue during the Warranty Period.

Removal of Key Personnel due to:

long term and serious illness/injury which prohibits the Key Personnel from performing the EPCM Services;

maternity or paternity leave or compassionate leave;

an employee’s voluntary retirement;

an employee’s voluntary resignation of employment with the EPCM Contractor;

any suspension of the EPCM Services, including for an event of Force Majeure, of a duration of more than 60 calendar days and except where the suspension is as a result of the EPCM Contractor being in breach of this Agreement;

where the EPCM Contractor has reassigned its Key Personnel with MMB’s prior written consent;

termination of an employee for cause; and

any request by MMB for the removal or replacement of any Key Personnel,

In the event that any Key Personnel are removed, or reassigned including for the reasons contemplated in Section 18.6, the EPCM Contractor shall promptly replace such Key Personnel. All replacement or new personnel must be approved in writing in advance by MMB, and such approval will not be unreasonably withheld.

The EPCM Contractor shall not demobilize the Key Personnel committed to the EPCM Services without obtaining MMB’s prior written approval.

Project Schedule

NOT USED.

The EPCM Contractor shall perform the EPCM Services in accordance with the Project Schedule and, shall acting as MMB’s agent manage and coordinate the services and work of all Project Contractors to ensure that the Project Work is provided and performed in accordance with Project Schedule. Without prejudice to the Incentive Fee applicable to the achievement of the Project Schedule, this Section 19.2 shall not be interpreted as a guarantee by the EPCM Contractor of the achievement of the Project Schedule.

The EPCM Contractor shall be responsible for monitoring and reporting on the performance of the EPCM Contractor and the Project Contractors in respect of the Project Schedule and shall identify and inform MMB, in writing, of any actual or potential delays in meeting the Project Schedule by the EPCM Contractor and/or the Project Contractors as soon as reasonably possible after such actual or potential delays become known to the EPCM Contractor.

The EPCM Contractor shall monitor the progress of the Project Works and shall identify and notify MMB, in writing, of any indications that the EPCM Contractor or the Project Contractors are failing to maintain or are likely to fail to maintain the Project Schedule as soon as reasonably possible upon becoming aware of the same.

To the extent that the time frames and ‘milestones’ for the various portions or divisions of the EPCM Services and the Project Work are not already set out in the Project Schedule then such time frames and ‘milestones’ shall be added to the Project Schedule as part of the agreement on the Target Price and the Project Schedule. Thereafter such agreed dates shall constitute Milestones as if they were included in the Project Schedule from the outset.

If at any time, and from time to time, MMB acting reasonably determines that the EPCM Contractor or the Project Contractors are failing to maintain the Project Schedule then MMB may direct the EPCM Contractor to take such reasonable steps as may be determined by MMB to recover any delay and to maintain the Project Schedule and the EPCM Contractor shall comply with all such directions and cause compliance of the same by the Project Contractors and where such failure is attributable to the failure of the EPCM Contractor to carry out its obligations in accordance with Section 3.1 without any adjustment to the Target Price or the Project Schedule.

If the EPCM Contractor fails to comply with MMB’s directions pursuant to Section 19.6 then MMB may:

on 15 calendar days written notice, delete from the Scope of EPCM Services any part of the EPCM Services and in MMB’s discretion have such EPCM Services provided and performed by another service provider and the EPCM Contractor will cooperate with such other service provider in order to effect and achieve an orderly and timely transfer of work and responsibilities; and

take the responsibility for Project Schedule compliance of any Project Contractor away from the EPCM Contractor and take whatever steps that MMB considers necessary vis a vis the Project Contractor, including, without limiting the foregoing, making changes in the work or services to be provided by the Project Contractor, terminating all or part of the Project Contractor’s work or services, and/or the Project Contract and taking any other steps or actions that MMB, acting in its sole discretion, considers necessary or advisable.

Early Warning of Target Price Deviations and Project Schedule Delay

As part of the Parties’ regular progress reporting, the EPCM Contractor or MMB (as the case may be) shall give written notice (“Early Warning Notice”) of any matter that could or might reasonably be expected to, adversely affect the Project Schedule or result in deviations from the Target Price.

Following the issuance of an Early Warning Notice, either Party shall be entitled, upon giving the other Party 3 Working Days’ written notice call a meeting (an “Early Warning Meeting”). The Contractor’s Representative and a representative of MMB shall attend all Early Warning Meetings. Meetings may be in person or by telephone or by video conference

At an Early Warning Meeting the Parties shall:

co-operate in making and considering proposals which aim to avoid, alleviate or reduce the effect of the subject matter of the Early Warning Notice: and

determine the actions required to be undertaken by either or both Parties to implement any agreed decisions to avoid or mitigate Project Schedule delay or deviations from the Target Price.

The EPCM Contractor shall record the proposals considered and the decisions made at the Early Warning Meeting and shall issue a copy of such record to MMB for approval within 5 calendar days thereof and on receipt of MMB’s approval, shall forthwith implement the actions required by MMB.

Adjustment Claims

The EPCM Contractor may, not later than 30 calendar days after becoming aware of the occurrence of any Adjusting Event that would be a Material Change, in writing, request adjustments to

the Project Schedule; and

the Target Price.

The EPCM Contractor waives any right to claim for an adjustment to the Project Schedule or Target Price as a result of an Adjusting Event that does not result in a Material Change or as a result of any Adjusting Event in respect of which amendments are only requested by the EPCM Contractor after the period specified in Section 21.1 above.

In making any adjustment claim, the EPCM Contractor shall provide details of the alleged Adjusting Event adjustment, the direct effect and anticipated ramifications of the event on the Project Schedule, the Target Price, the steps taken by the EPCM Contractor to minimize the negative effects of the event and all other facts on which the claim is based.

MMB shall consider any claim for the adjustment of the Project Schedule and/or Target Price as soon as reasonably practicable but no later than 10 calendar days from the date of receipt of the EPCM Contractor’s submittal together with all information that is reasonably necessary to evaluate the claim and may require the EPCM Contractor to supply further information in respect of the request.

Within 10 calendar days after the receipt of all of the information that is reasonably necessary to evaluate the claim, MMB shall notify the EPCM Contractor of the adjustment if any, of the Project Schedule and/or the Target Price, as the case may be, resulting from the Adjusting Event. In determining any adjustment MMB shall take into consideration the disruptive and cumulative effects, if any of the Adjusting Event and any reasonable change in the manner in which the EPCM Services are to be provided or in which the Project Work is to be performed which could obviate in whole or in part any negative effects on the EPCM Services and the Project Work of the Adjusting Event.

Unless and until MMB has adjusted the Project Schedule and/or the Target Price by a Change Order, the EPCM Contractor shall not be relieved from its obligations under this Agreement in respect of the Scope of the EPCM Services that applied prior to such Change Order.

Changes in the EPCM Services

The EPCM Contractor acknowledges and agrees that flowsheets, design criteria and other information that are provided by MMB and MMB Contractors as final specific requirements or recommendations are not necessarily changes to the Scope of EPCM Services. Revisions and alterations in the Facilities resulting from value engineering and other studies or from the EPCM Contractor’s recommendations in the course of performing the EPCM Services and Change Directives issued by MMB shall not be deemed a change in the Scope of EPCM Services.

MMB, at any time and from time to time, may alter, delete or add to the EPCM Services within the general scope of the same by providing a written directive to the EPCM Contractor.

The EPCM Contractor may propose changes by advising MMB in writing that in the EPCM Contractor’s opinion a change is necessary. If MMB agrees, it shall so advise the EPCM Contractor and, thereafter, the change shall be handled as if initiated by MMB.

Upon receipt by the EPCM Contractor of a Change Directive pursuant to Section 22.2 above, EPCM Contractor shall proceed with, and diligently perform, any services that are the subject of a Change Directive or, in the case of deleted EPCM Services, shall cooperate with such other service provider(s) in order to effect and achieve an orderly and timely transfer of work and responsibilities.

As soon as practical after receiving a Change Directive indicating any alteration, deletion or addition to the EPCM Services, the EPCM Contractor shall prepare and deliver to MMB a Change Order for written acceptance. Such Change Order shall indicate any change in the Project Schedule and EPCM Contractor’s estimate of the change in the compensation resulting from the Change Directive. In the case of a deletion of any portion of the EPCM Services, the EPCM Contractor’s estimate will include, without limitation, the EPCM Contractor’s reasonable demobilization and cancellation costs (inclusive of any and all cancellation costs related to leasing and furnishing office space, including all related leasehold improvement costs) arising directly from the deletion of the EPCM Services but will exclude indirect costs, consequential damages or anticipated loss of profits of the EPCM Contractor and MMB shall not be responsible for any indirect costs, consequential damages or anticipated loss of profits of the EPCM Contractor as a result of a Change Directive.

Not used.

MMB shall indicate any disagreement in respect of a Change Order, delivered to MMB pursuant to Section 25.5, in writing, within 30 calendar days of receiving the same. The EPCM Contractor shall not delay or refuse to perform any work or services that are the subject matter of a disputed Change Order or Change Directive, until such dispute has been resolved provided that the EPCM Contractor is being paid for the relevant services which are the subject of such disputed Change Order. The EPCM Contractor’s compliance with any unaccepted Change Order or Change Directive shall not prejudice the EPCM Contractor’s right to dispute the Change Directive or Change Order at a later time.

The Change Order is effective on the earlier of the date that it is executed by both parties or, if MMB does not dispute the Change Order, within 7 calendar days of MMB receiving the same in accordance with Section 22.5.

The EPCM Contractor shall keep accurate records regarding cost of the Change Directive and Change Order and the impact associated with any Change Directive and Change Order on the Target Price and Project Schedule.

In case of disagreement between the Parties in respect of any Change Directive or Change Order, the relevant scope, remuneration and/or time adjustment shall be determined in accordance with Section 55.0 hereof.

All claims for reimbursement of Reimbursable Costs or the Base Fee resulting from a Change Order shall be supported by time sheets with the time charged for the changes and extra work and services required by the Change Order separately and specifically identified, and invoices for outside services, equipment or materials.

Proper Licensing

The EPCM Contractor shall obtain and at all times maintain, all relevant licenses required by any applicable law, regulation or order to perform all of the EPCM Services and shall ensure that its agents, representatives, and the Project Contractors are properly licensed to perform all applicable portions of the EPCM Services or the Project Work, as applicable.

Without prejudice to the generality of Section 23.1 the EPCM Contractor shall ensure that all personnel providing and performing the EPCM Services are properly qualified and licensed to perform the relevant EPCM Services or are appropriately supervised by properly qualified and licensed personnel as required by local laws, by laws and regulations.

Progress Reports

The EPCM Contractor shall provide progress reports every month in the form described in Schedule ‘N’ as reasonably directed by MMB.

The activity descriptions, level of detail and all other progress report format issues shall be as reasonably required by MMB from time to time to the extent not specified in the form of report described in Schedule "N".

Care Custody and Control of the Site

From the Effective Date the EPCM Contractor shall be responsible for the care, custody and control of the Site (including the Prior Completed Work, the Facilities, the Procurement Items and any other machinery, tools, materials or property at or to be delivered to the Site to be used in constructing and commissioning the Project) until transfer of the care, custody and control of the same to MMB pursuant to Section 25.2. In the event of any damage occurring to the Prior Completed Work, the Facilities, the Procurement Items and any other machinery, tools, material or property on the Site, in each case for which the EPCM Contractor has care, custody and control then the EPCM Contractor shall prepare the relevant insurance claim and shall rectify such damage. The EPCM Contractor shall be reimbursed for the costs of such rectification save to the extent that the relevant damage is the fault (including negligence) of the EPCM Contractor and in which case the EPCM Contractor shall be responsible for the costs of rectification up to US$100,000 in respect of any one event. EPCM Contractor shall not be obligated to perform any rectification work pursuant to Section 25.1 until such time that it receives the proceeds of any insurance claim or EPCM Contractor is otherwise satisfied acting reasonably that such insurance proceeds or other payments will be received by the EPCM Contractor following its completion of the relevant rectification work.

Following Mechanical Completion of each System care, custody and control of that System shall be transferred to MMB with the EPCM Contractor retaining responsibility for those parts of the Site not transferred. Following Mechanical Completion of the Project, care custody and control of the Site to the extent not already transferred to MMB shall transfer to MMB. Any Punch List Items identified as a precondition to Mechanical Completion of that System shall include general and specific instructions as to how the transfer of care, custody and control of the Facilities or any portion thereof to MMB may be affected as a result of those Punch List Items.

If requested to do so by MMB the EPCM Contractor shall in the event of any damage to any System in respect of which care, custody and control has transferred to MMB and prior to Mechanical Completion of the Project provide reasonable assistance to MMB in the management of the repair of that damage and the preparation of the relevant insurance claim.

Commissioning Period

The Commissioning Period shall commence on a mutually agreeable date as soon as practical following Mechanical Completion but no later than thirty (30) calendar days after the Mechanical Completion Milestone has been achieved and after the care, custody and control of each of the Facilities contemplated by this Agreement has been effectively transferred to MMB in accordance with Section 25.2 and shall continue until First Feed.

Engineering Services

The EPCM Contractor shall apply its independent professional judgment to all matters involving the engineering services component of the EPCM in accordance with the Standard of Care and in accordance with the requirements of this Agreement.

Procurement Service

Subject to the provisions of this Agreement, the EPCM Contractor shall have the limited authority to act as MMB’s agent as notified to the EPCM contractor by MMB from time to time for the purposes of the procurement of Procurement Items and services and the selection, appointment and management of Project Contractors includes, without limitation, the placing and administration of purchase orders, procurement contracts and Project Contracts as well as inspection and expediting of Procurement Items, arranging for transport and delivery, and the resolution of technical problems relating to the Procurement Items.

In acting as MMB’s agent for the purposes of Section 28.1 above, the EPCM Contractor shall be indemnified by MMB in accordance with the terms of the Agency Agreement and shall have all of the duties prescribed by law in respect of an agent to its principal, including fiduciary duties, and in addition shall:

advise MMB on a procurement strategy, including scheduling the purchase of Procurement Items and assist MMB to implement the same;

source and prepare comprehensive invitations to tender for vendors and suppliers;

cooperate and exchange information with the freight forwarder in respect of the arrangements for transport, insurance and delivery, expediting and all other aspects of the procurement of Procurement Items;

with the prior written approval of MMB, award contracts for the purchase of Procurement Items as MMB’s agent;

prepare written recommendations regarding Procurement Items and other equipment, materials and services to be procured by the EPCM Contractor from Project Contractors as part of the EPCM Services;

verify that Project Contractors have the necessary competence, experience, resources and personnel necessary to provide and perform under their respective Project Contracts before recommending the same to MMB for acceptance;

ensure that Project Contractors provide sufficient and proper access and facilities for inspections and testing of Procured Items by MMB and its designates;

on MMB’s behalf, use its reasonable efforts to negotiate Project Contracts (except those to be entered into with SNC Fenco, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and FLSmidth) that are fixed price contracts on terms acceptable to MMB and that contain, in addition, a requirement for bank guarantees and retention provisions where required by MMB, rights of assignment by MMB, rights of termination of the Project Contracts, with or without cause by MMB, unencumbered inspection rights by MMB and its designates, and provisions regarding the vesting of ownership in any Procurement Items and Project Work including any intellectual property rights in respect of the Project Work to MMB;

use only forms of purchase orders that are approved in advance by MMB; and

not proceed with the procurement of Procurement Items beyond preparing a written recommendation unless and until MMB has authorized the EPCM Contractor to produce and issue a purchase order for a particular Procurement Item from a particular vendor by signing and returning the EPCM Contractor’s written recommendation regarding such vendor.

Procurement Items selected by the EPCM Contractor shall be selected using the Standard of Care having regard to the intended purpose of the Procurement Items and the requirements of the Project and the EPCM Contractor shall use its existing and future industry relationships to obtain the best prices and terms available in respect of such Procurement Items, including obtaining bulk discounts from the Project Contractors.

The EPCM Contractor shall ensure that MMB has continuous access to any and all Procurement Items at any and all locations used by the EPCM Contractor or any Project Contractor in connection with the EPCM Services and the Project, or in any other places where any portion of the EPCM Services are provided and performed. The EPCM Contractor shall ensure that suppliers and vendors provide access to the Procurement Items in any places where any portion of the Procurement Items are fabricated, manufactured, stored, repaired or shipped in order for MMB to inspect the quality and progress of the same.

If the Project Work and/or the Procurement Items are subject to approval, testing or inspection, the EPCM Contractor shall ensure that suppliers and vendors provide not less than 5 calendar days notice of its readiness for approval, testing or inspection to MMB and to any inspection or testing authority.

MMB may order the inspection or re-inspection of any of the Procurement Items at any time up to the end of the Warranty Period and if requested by MMB, the EPCM Contractor shall make available the Procurement Items and shall ensure that suppliers and vendors make available replacement parts for the Procurement Items which are subject to re inspection.

Without limiting any of the other obligations of the EPCM Contractor pursuant to this Section 28.0, the EPCM Contractor shall:

The EPCM Contractor shall ensure that all Project Contracts provide for the transfer of title in all Procurement Items from the vendors and suppliers to MMB upon the earlier of payment or delivery or at such other point of the time as MMB shall approve.

Notwithstanding that title to Procurement Items may be transferred to MMB, pursuant to Section 25.2 the EPCM Contractor shall have care custody and control of all such Procurement Items until the transfer of care, custody and control to MMB and shall take all necessary precautions to prevent loss of or damage to the Procurement Items and any other machinery, tools, materials or property used to perform the Project Work or to be incorporated into the Facilities.

Construction Management Services

In providing the construction management services component of the EPCM Services, the EPCM Contractor shall have overall management and supervisory responsibilities over all Project Contractors so as to ensure that the Facilities are constructed and completed in accordance with the Project Specifications, the Project Design Criteria and the Project Schedule and within the Target Price and to ensure that the Project Work is provided and performed safely, efficiently and in a coordinated manner that is to the best advantage of MMB. Without limiting the foregoing such construction management services shall include:

taking overall responsibility for managing safety at the Site provided that the EPCM Contractor shall not be responsible for any failure of any Project Contractor to comply with any safety requirements specified by the EPCM Contractor;

making reasonable commercial efforts in order to achieve the Project Schedule;

performing quality assurance of the Project Work as set out in the EPCM Contractor's project execution plan.;

exercising the Standard of Care to identify any Defective Project Work; and

taking all commercially reasonable measure to avoid claims against MMB from the Project Contractors; and

performing all necessary and advisable actions and steps to achieve Mechanical Completion and perform commissioning of the Facilities in each case in accordance with the Project Schedule and Target Price.

Compliance with Procedure and Safety Manuals

The EPCM Contractor and its employees, agents and representatives shall comply, and shall ensure that all Project Contractors and their employees, agents and representatives comply, with the requirements of the most current version of the Project procedures manuals, safety manuals and other procedures, design standards and like requirements established by MMB from time to time.

MMB may monitor and determine whether the EPCM Contractor and the Project Contractors are in compliance with the requirements of Section 30.1.

The EPCM Contractor shall remove any person from the Site who fails to comply with the Project procedures and safety manuals.

Environmental and Cultural Compliance and Protection

The EPCM Contractor shall conduct all operations at the Site in strict compliance with all applicable environmental laws, including laws related to the use, transport, storage or discharge of toxic or hazardous materials or waste, and the Environmental Requirements.

The EPCM Contractor shall not be liable for any Pre-existing Contamination.

If the EPCM Contractor encounters toxic or hazardous substances on the Site, the EPCM Contractor shall immediately stop all Project Work in the vicinity thereof and report the matter to MMB.

The EPCM Contractor acknowledges that the Project is within the jurisdiction of certain governmental regulatory agencies and is subject to the conditions and restrictions set forth in the permits and authorizations governing the EPCM Services and the Project Work. The Parties shall provide reasonable assistance to each other in obtaining any consent or permit. The EPCM Contractor shall not violate or permit any Project Contractor to violate any laws, rules, regulations or conditions of the Project, the conditions and restrictions of any permits or authorizations to the extent the EPCM Contractor has either participated in the obtaining of any such permit or authorization or MMB has provided the EPCM Contractor with a copy of any such permit or authorization, the provisions of any environmental action plan as required by the governmental authority having jurisdiction, and the Environmental Requirements, as applicable and the EPCM Contractor shall be liable to MMB for any such violation.

Without limiting the foregoing, the EPCM Contractor and the Project Contractors and their respective employees, agents and representatives shall not:

▇▇▇▇ or carry or discharge firearms within the boundaries of the Site or on any other lands in MMB’s possession or control or on which the EPCM Contractor or the Project Contractors are performing the EPCM Services and/or the Project Work;

harass, injure or destroy wildlife;

unnecessarily damage trees, native shrubbery and vegetation and comply with all ‘protected biosphere’ requirements applicable to the Site;

damage or remove without prior authorization of MMB, objects or sites of archaeological or possible archaeological interest; and

interact with indigenous people in the vicinity of the Project in a manner which could adversely affect the Project.

Coordination and inspection of Project Work

The EPCM Contractor shall in accordance with the requirements set out in Section 3.1 properly coordinate all of the EPCM Services and Project Work and will schedule and coordinate the proper performance of work and the tracking, receipt, inventory, checking and pursuing any claim in respect of any identified damage, storage and issue of materials and equipment including Procurement Items at the Site by MMB and the Project Contractors.

The EPCM Contractor shall inspect the Project Work as it is performed and shall promptly report to MMB any defects in such Project Work.

Right to Inspect

MMB shall have the right to inspect and/or test all or any part of the EPCM Services, Project Work and/or the Procurement Items in accordance with the Inspection Plan and such EPCM Services, Project Work and Procurement Items shall be subject to quality surveillance by MMB or its designee at all times. MMB may also require testing or inspections in addition to the inspections and tests specified in the Inspection Plan at any time. The EPCM Contractor shall provide sufficient access and means for such inspection and/or tests and quality surveillance.

The requirements of Section 33.1, shall not relieve the EPCM Contractor from maintaining its own inspection and testing programs to ensure the compliance of the EPCM Services, Project Work and Procurement Items with the Project Specifications and the Project Design Criteria.

The EPCM Contractor shall, at all times during the performance of the EPCM Services, make available for MMB’s inspection copies of any of the EPCM Contractor’s inspection, testing and quality surveillance reports. MMB shall be afforded the opportunity to attend, observe, and witness all inspections and tests of the Project Work and/or Procurement Items carried out by the EPCM Contractor or the Project Contractors.

Corrupt Practices Prohibited

The EPCM Contractor shall not pay or give anything of value either directly or indirectly to an official of any government for the purpose of influencing an act or decision of any person in his or her official capacity, or inducing him or her to use their influence with the government or for the purpose of influencing any act or decision in their capacity or to assist the EPCM Contractor in obtaining business from MMB.

MMB shall not request any service or action by the EPCM Contractor which would or might constitute a request to influence any government official or that would or might constitute a violation of the Canadian, Corruption of Foreign Officials Act S.C. 1998, c.34., or any other law of Canada or the laws in respect of corrupt practices in any other applicable jurisdiction.

EPCM Contractor agrees as a matter of contract, that it will observe the principles, provisions and requirements of, and not engage in any acts prohibited by, (a) the principles described in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed in Paris on December 17, 1997, which entered into force on February 15, 1999, and the Convention’s Commentaries, and (b) Corruption of Foreign Officials Act S.C. 1998, c.34 (“CFO Act”). Moreover, Contractor shall cause each of its subcontractors, vendors, agents, directors, officers, and employees (“Representatives”) to observe the principles set forth in the CFO Act and shall not take any action that could result in Company or any of its affiliates becoming subject to any action, civil or criminal penalty or loss of benefits under the CFO Act

Without limiting Section 34.3 paragraph, EPCM Contractor shall not directly or indirectly offer, pay, promise to pay or authorize the payment of, or permit any Representative to directly or indirectly offer, pay, promise to pay or authorize the payment of, any money or thing of value, such as providing gifts or entertainment, to any officer, employee, representative or person acting on behalf of any government or any department, agency, or instrumentality thereof (including a government-owned or controlled state enterprise) or of a public international organization, any foreign political party or party official or any candidate for foreign political office (“Foreign Official”) for the purpose of (A) influencing any act or decision of any Foreign Official, or (B) inducing such Foreign Official to do or omit to do any act in violation of the lawful duty of such official, or (C) inducing such Foreign Official to use his or her influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality in order, in the case of (A), (B) or (C), to assist MMB, EPCM Contractor, the Representatives or any of their respective affiliates in obtaining or retaining business, or directing business to such person, or assisting such person in obtaining any advantage.

The EPCM Contractor shall not accept or include in the scope of work of any Project Contractor the right to receive payments from a supplier or subcontractor either directly or indirectly.

Non Conforming EPCM Services

If, at any time, and from time to time, but no later than the expiry of the Warranty Period, MMB, acting reasonably, notifies the EPCM Contractor of any Non- Conforming EPCM Services, the EPCM Contractor shall, at the EPCM Contractor’s own cost, take immediate steps to re-perform any such Non-Conforming EPCM Services provided that if such Non-Conforming EPCM Services cannot be re- performed immediately, the EPCM Contractor shall submit to MMB a written plan for re-performing the same. Unless otherwise agreed by MMB, such plan shall be submitted to MMB within 7 calendar days of MMB’s written notification pursuant to this Section 35.1. Execution of any such plan shall be subject to the prior approval of MMB

The EPCM Contractor’s obligation to re-perform Non-Conforming EPCM Services shall expire at the end of the Warranty Period.

MMB’s failure to identify any Non-Conforming EPCM Services shall not be deemed to be approval by MMB of such Non-Conforming EPCM Services or a waiver of any of the MMB’s rights and remedies against the EPCM Contractor on account thereof and shall not relieve the EPCM Contractor of responsibility for the proper and timely performance of the EPCM Services or re-performance of the Non- Conforming EPCM Services in accordance with the terms of this Agreement.

If the EPCM Contractor fails to fully and properly re-perform any Non-Conforming EPCM Services as required by Section 35.1, MMB may, upon providing the EPCM Contactor with written notice of its intentions, re-perform any such EPCM Services and recover from the EPCM Contractor the reasonable costs of doing so. The costs recoverable by MMB from the EPCM Contractor pursuant to this Section 35.4 shall be those costs which an unaffiliated third party would have incurred to secure performance of the relevant services by another unaffiliated third party.

The payment of any monies by MMB to the EPCM Contractor on account of the EPCM Services shall not constitute an acceptance of EPCM Services that are later found to be Non-Conforming EPCM Services..

The Parties acknowledge that the re-issue by the EPCM Contractor of design documentation as part of the design development process shall not be considered as the reperformance of Non-Conforming EPCM Services until any such design documentation has been issued by the EPCM Contractor in a form which is “approved for construction”.

For the purpose of Section 48.12 the Parties agree that MMB's remedy for Non-Conforming EPCM Services shall be the remedy of reperformance as provided for in this Section 35.0.

Defective Project Work

If, at any time, and from time to time, MMB, acting reasonably, notifies the EPCM Contractor of any Defective Project Work or if the EPCM Contractor identifies any Defective Project Work the EPCM Contractor shall take immediate steps to cause the responsible Project Contractor(s) to repair or replace any and all such Defective Project Work.

If Defective Project Work identified by MMB pursuant to Section 36.1, cannot be repaired or corrected immediately, the EPCM Contractor shall cause the Project Contractor(s) responsible for the Defective Project Work to submit to the EPCM Contractor and to MMB, a written plan for repairing and replacing the same. Unless otherwise agreed by MMB, such plan shall be submitted to MMB within 7 calendar days of MMB’s written notification pursuant to Section 36.1. Execution of any such plan shall be subject to MMB’s prior approval.

MMB’s failure to identify any Defective Project Work shall not be deemed to be an acceptance of Defective Project Work or a waiver of any of MMB’s rights and remedies against the EPCM Contractor and/or the Project Contractor(s) on account thereof and shall not relieve the EPCM Contractor and/or the Project Contractor(s) of their respective responsibilities for the proper and timely performance of the Project Work in accordance with the terms of the Project Specifications, the Project Design Criteria and the Project Schedule.

The EPCM Contractor shall include a term in any and all Project Contracts that if the relevant Project Contractor fails to fully and properly repair or correct the Defective Project Work, MMB may, upon providing the Project Contactor with written notice of its intentions, and without prejudice to any other right or remedy that it may have under contract, at law or in equity against the Project Contractor, repair or replace any such Defective Project Work and recover from the Project Contractor(s) the reasonable costs which an unaffiliated third party would have incurred to secure performance of the relevant work by another unaffiliated contractor.

The payment of any monies by MMB to the EPCM Contractor on account of EPCM Services connected with the Project Work, including for greater certainty payment to the EPCM Contractor or a Project Contractor on account of any Procurement Item, shall not constitute an acceptance of any Defective Project Work.

Without limiting any of the requirements of this Section, if MMB so instructs the EPCM Contractor, the EPCM Contractor shall as part of the EPCM Services require the vendors and suppliers of Procurement Items to remove any Procurement Items that have been rejected by MMB as not complying with the Project Design Criteria, the Project Specifications or any Project Contract, and require the appropriate Project Contractor to replace any rejected Procurement Items with Procurement Items that conform to the Project Design Criteria, the Project Specifications or any Project Contract.

The EPCM Contractor, as part of the EPCM Services, shall, take all actions necessary and advisable to enforce warranties and guarantees provided by vendors, suppliers, manufacturers of Procurement Items, Project Contractors and others. The EPCM Contractor’s obligations in relation to Defective Project Work shall be limited to enforcing (short of the commencement of litigation) the terms of the relevant Project Contract or purchase order or assisting MMB in the enforcement of such Project Contracts or purchase orders. All costs of such enforcement and assistance shall be reimbursed by MMB to the EPCM Contractor.

Used Materials

Where the EPCM Contractor recommends, and MMB approves, the purchase of used apparatus, material, equipment or accessories due to substantial price differences, such apparatus, material, equipment or accessories will be purchased in “as is” condition and with no warranties or guarantees available from the EPCM Contractor and/or the vendor or supplier, unless otherwise specified in the purchase order and MMB shall accept the same on that basis.

Freight Forwarding

The Freight Forwarder is a Project Contractor for all intents and purposes under this Agreement and the EPCM Services include overall management and supervisory responsibilities of the Freight Forwarder.

The EPCM Contractor shall use, and shall ensure that all Project Contractors use, the Freight Forwarder as the exclusive freight forwarding agent in connection with the transportation and shipment of all Procurement Items to the Site. All such transportation and shipment shall be in accordance with FCA Incoterms 2000 or the current version thereof or such other point as MMB may approve.

If, at any time, the actions of the Freight Forwarder delay, or create the potential to delay the Project Schedule, or the EPCM Contractor’s ability to maintain the Project Schedule, the EPCM Contractor shall notify MMB of such delay or potential delay immediately, in writing, upon becoming aware of the same. MMB shall thereafter attempt to expedite the actions of the Freight Forwarder in order to avoid or mitigate the delay or potential delay and may give directions to the EPCM Contractor in respect thereof. The EPCM Contractor shall comply with all such directions.

Provided that the EPCM Contractor has complied with Section 38.2, the EPCM Contractor shall not be responsible for any delay in the Project Schedule, or in the EPCM Contractor’s ability to maintain the Project Schedule as a result of the actions or inactions of the Freight Forwarder.

The EPCM Contractor shall include in all purchase orders provision for title in all Procurement Items delivered to the Site through the Freight Forwarder, to vest in MMB as soon as the Procurement Items have been appropriated to the Project or as soon as MMB has made payment for the same to the relevant Project Contractor whichever is the earlier.

Expediting

The EPCM Contractor shall expedite the delivery of all Procurement Items and related services to avoid actual or possible delays to the Project Schedule. For all critical items, such efforts shall include a pro-active expediting effort, tracking system and reports no less than monthly.

Without in any way limiting or diminishing the EPCM Contractor’s obligation to expedite Procurement Items as provided in Section 39.1 above, MMB shall also have the right, but not the obligation to expedite and check on vendor and supplier progress in respect of the Procurement Items and the EPCM Contractor shall cooperate with MMB in respect of the same.

If any failure or inability of EPCM Contractor to perform the expediting as required by Section 39.1 results in MMB performing its own expediting, then, MMB may, immediately upon providing written notice, delete such expediting services from the Scope of EPCM Services and in MMB’s discretion have such expediting services performed by other service providers.

Project Design Criteria / Project Specifications

The EPCM Contractor is entitled to rely on the accuracy and sufficiency of the Project Design Criteria and Project Specifications.

If the EPCM Contractor becomes of aware of any inadequacy, discrepancy, error or other condition in the Project Design Criteria and Project Specifications that requires a material revision of the Project Design Criteria and Project Specifications, the EPCM Contractor shall immediately upon discovering the same, notify MMB in writing identifying the inadequacy, discrepancy, error or other condition and the affect the same will have on the performance of the Project Work.

Prior Completed Work

As part of the EPCM Services, the EPCM Contractor shall integrate all Prior Completed Work with the performance of the Project Work and shall, immediately upon becoming aware of the same, notify MMB in writing of any errors, inconsistencies or variances from the Project Design Criteria or the Project Specifications in the Prior Completed Work.

If the EPCM Contractor becomes aware of any inadequacy, discrepancy, error or other condition in the Prior Completed Work, that requires a material revision of the Project Work and/or the EPCM Services, the EPCM Contractor shall immediately upon discovering the same, notify MMB in writing identifying the inadequacy, discrepancy, error or other condition and the affect the same will have on the performance of the Project Work and EPCM Services.

Reconciliation of Errors and Other Conditions

As soon as practicable after receiving notice pursuant to Section 40.2 or Section 41.2, MMB shall issue any and all necessary instructions to reconcile such errors, inconsistencies or variances from the Project Design Criteria or the Project Specifications, in the Prior Completed Work and shall issue a Change Order if required pursuant to the terms of this Agreement.

After the issuance by MMB of any reconciliation of such errors, inconsistencies or variances from the Project Design Criteria and Project Specifications, in the Prior Completed Work pursuant to Section 42.1, the EPCM Contractor shall be responsible for integrating the said reconciliation with the EPCM Services and Project Work and with a corresponding adjustment to the Project Schedule and the Target Price, and shall not be entitled to later claim for any change in the Project Schedule, Target Price or the EPCM Services in respect of those errors, inconsistencies or variances from the Project Design Criteria and Project Specifications, in the Prior Completed Work in respect of which MMB has previously issued a Change Order pursuant to Section 42.1.

Records

The EPCM Contractor shall, at all times during the performance of the EPCM Services, maintain at the Site (or maintain through on-line electronic access) and make available for MMB’s inspection, organized, complete and accurate records in connection with the EPCM Services including without limitation:

copies of all plans, drawings, specifications, product data, samples, vendor drawings, change orders, and as-built modifications to the same marked kept up to date and recording changes made during construction; and

records of EPCM Services performed and provided by the EPCM Contractor including time charges and hours worked by the EPCM Contractor’s personnel;

records of Project Work performed by Project Contractors and copies of all Project Contracts and all correspondence, memoranda, notes and other materials related to the same;

an accounting of all moneys expended and costs incurred by the EPCM Contractor in respect of the EPCM Services;

an accounting of all monies paid to Project Contractors in connection with the Project Work;

all taxes, levies, duties and assessments paid and payable by the EPCM Contractor and the Project Contractors; and

all other records related to the Project on a recognized and consistent accounting basis, in accordance with accounting practices and principles generally accepted in Mexico or under international financial reporting standards (IFRS).

If requested by MMB, the EPCM Contractor shall obtain and provide evidence satisfactory to MMB that Procurement Items and Project Work conform with the Project Specifications and the Project Design Criteria.

MMB shall give the EPCM Contractor reasonable notice of any intended examination of the EPCM Contractor’s records.

The EPCM Contractor shall maintain such books, records, and other documents for a period of five (5) years after the Final Acceptance Date.

Subcontracting

The EPCM Contractor shall not subcontract any of its obligations under this Agreement except with the prior written consent of MMB or save as provided in Section 44.2.

The EPCM Contractor may subcontract part of the EPCM Services to an Affiliate of the EPCM Contractor without MMB’s consent unless:

that Affiliate is operating in an office other than the EPCM Contractor’s Mexico City or San Francisco offices; and

the extent of such subcontracted services is less than 1,000 hours.

The EPCM Contractor shall at all times remain responsible for all such subcontracted services and MMB, for all purposes under this Agreement, shall have the right to look solely to the EPCM Contractor for errors, omissions and defects in the subcontractor services as if the EPCM Services were performed or the actions were taken by the EPCM Contractor.

Financial Controls

The EPCM Contractor shall exercise all financial controls as may be necessary for the full and proper financial management of the EPCM Services and the Project Work based on accounting and control systems and project management software approved by MMB.

MMB’s accountants and/or internal auditors shall be afforded access to the EPCM Contractor’s records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers and other data relating to this EPCM Agreement in original form during usual business hours for the limited purposes identified in Section 66.0. MMB’s accountants and/or internal auditors shall also be provided access to EPCM Contractor’s computer systems with respect to such data and information.

Insurance

MMB shall provide, maintain and pay for the following insurance coverage, for the benefit of MMB, the EPCM Contractor, vendors of Procurement Items, Project Contractors and any other subcontractors employed by the EPCM Contractor at the Site, all of which shall be named insureds, or additional insureds (provided that for the purposes of this Section 46.0, the term ‘subcontractors’ shall not include suppliers who do not perform work at Site):

Wrap-Up Liability insurance with a maximum limit of liability of US$ 25,000,000 per occurrence for bodily injury, death and damage to property, including policy extensions for products liability, completed operations, blanket contractual, owner’s and contractor’s protective, contingent employers liability, occurrence property damage, cross liability, environmental damage, non owned automobile liability, with a maximum deductible of US $25,000 for each and every loss. This policy will be maintained continuously from the commencement of the construction work on the Facilities until the date of Mechanical Completion and, in respect of completed operation liability, for a period of 24 months thereafter;

“all risks” course of construction insurance insuring not less than the estimated completed value of all insured property, including existing facilities including coverage for “all risks” of physical loss or damage to all materials, structures, property and MMB’s equipment, being shipped to, entering into or intended for the construction work subject to such exclusions and conditions as MMB and the insurer determine, including a minimum deductible of US$500,000 for each occurrence (except for an earthquake deductible of 2.5% of the value at the time of the loss for physical damage and subject to a minimum deductible of US$500,000 and a maximum deductible of US$10,000,000). This policy will be maintained continuously from the commencement of construction work until the end of the Commissioning Period;

NOT USED

MMB shall provide a certificate of insurance evidencing the insurance required to be provided by MMB pursuant to Section 46.1 hereof if requested to do so by the EPCM Contractor.

NOT USED.

All policies of insurance provided by MMB, with the exception of the Wrap-Up Liability Insurance policy, and the automobile liability policy, shall provide that, in the event of a loss or damage, payment shall be made to the first named insureds or the indicated loss payee (and which loss payee in the case of the "all risks" insurance policy to be maintained pursuant to Section 46.1.2 and the marine cargo insurance to be maintained pursuant to Section 46.6.3 shall be the Financing Parties). as their interests may appear.

MMB shall also maintain the following insurance for its own benefit:

“all risks” construction equipment insurance covering MMB construction machinery and equipment used for the performance of the EPCM Services at the Site including boiler insurance on temporary boilers and pressure vessels;

automobile liability insurance covering automobiles owned and leased by MMB and covering liability for bodily injury, death and damage to property, with a minimum limit of $1,000,000 inclusive for each loss; and

marine cargo insurance in an amount equal to value of the largest single shipment on any one vessel and/or aircraft and/or conveyance and subject to the conditions of the Institute Cargo Clauses (All Risks), including war and strikes extensions, and including transit and storage from ports and or places worldwide or until final destination at the project site. The policy excludes loss or damage to construction equipment and personal effects, tools and or equipment of the EPCM Contractor, and any of its sub- contractors, consultants and their respective employees.

The EPCM Contractor and its subcontractors shall maintain and pay for the following coverage during the duration of the Project:

“Workers’ Compensation Insurance” according to the jurisdiction in which the EPCM Services are being performed. The EPCM Contractor will also ensure that, if applicable in the jurisdiction in which the EPCM Services are being performed, any such coverage includes employer’s liability with a limit of US $1,000,000 and, to the extent applicable, a foreign coverage endorsement.

Automobile liability insurance covering owned and leased automobiles used directly, or indirectly, in the performance of the Services and covering liability for bodily injury, death and damage to property, with a limit of Mxp1,000,000 inclusive for each loss; and

“all risks” construction equipment insurance covering construction contractor’s machinery tools and equipment used for the performance of the construction work. Such insurance will not cover equipment and parts that will be incorporated into and become part of the Facilities.

The insurance provided by the EPCM Contractor and its subcontractors pursuant to Section 46.3 shall provide for not less than 30 calendar days notice of cancellation, alteration and/or material change by the insurer.

The EPCM Contractor and its subcontractors shall within 30 days of the effective date of the Contract provide MMB with a certificate of insurance evidence that all insurance coverage required to be provided by the EPCM Contractor by this Section 46.3 remains in full force and effect including annual and/or subsequent renewals.

Not used

Limitation of EPCM Contractor’s Liability

REDACTED. This section provides information on the liability cap of the EPCM Contractor and tools for the assessment of whether the aggregate liability has been reached.

REDACTED. This section provides information on consequences in the event the Main Liability Cap is reached.

Not used.

REDACTED. This section provides specific information pertaining to exclusions to liability.

Subject to Section 48.7, the EPCM Contractor shall only be liable for environmental damage, contamination or pollution at the Site to the extent of (a) any fine or penalty assessed against the EPCM Contractor as a result of the EPCM Contractor’s negligent or fraudulent acts or omissions or Wilful Misconduct and the EPCM Contractor shall not be liable for any clean up or remediation or associated costs for any other environmental damage, contamination or pollution.

Unless a longer period is prescribed by the governing law or established pursuant to a Change Order, no action may be commenced by MMB and MMB’s Affiliates in respect of Non-Conforming EPCM Services following the expiry of the Warranty Period.

Notwithstanding the provisions of this Section 48.0, nothing herein shall limit the EPCM Contractor’s liability in respect of the EPCM Contractor's fraudulent or criminal acts; or the Wilful Misconduct; or Gross Negligence of the EPCM Contractor's Senior Supervisory Personnel in each case in the performance of the EPCM Services.

The disclaimers, limitations, expiry and exclusions of liability, and the waivers and releases in this Agreement shall survive the termination of this Agreement.

REDACTED. This section provides information regarding items the EPCM Contractor will not provide any representations, warranties or guarantees for.

REDACTED. This section provides information regarding responsibility for Process Design.

The EPCM Contractor makes no representations, covenants, warranties or guarantees other than those expressly set out in this Agreement and in addition any implied, statutory or other warranties of merchantability or of fitness for a particular purpose, or warranties that may arise from trade usage or custom in respect of the Project Work are excluded.

To the extent that particular rights and/or remedies are stated in this Agreement for any specific default such rights and remedies of the Parties for that default shall be deemed to be sole and exclusive.

Indemnities against, releases from, assumptions of and limitations on liability expressed in this Agreement, as well as waivers of subrogation rights and limitations on remedies shall apply even in the event of the fault, negligence, or strict liability of the Party indemnified or released or who's liability is limited or assumed or against whom rights of subrogation are waived or remedies are limited and shall extend to the officers, directors and employees and agents of such Party.

Indemnification

The EPCM Contractor shall indemnify and hold harmless MMB and its Affiliates and their directors, officers, employees, agents, successors and assigns from and against all any and all claims, causes of action, liability, penalties, demands, liens, costs, damages, losses and expenses (including attorneys’ fees and related legal expenses) and all court or arbitration or other dispute resolution costs including reasonable actual legal fees incurred by MMB or the others so indemnified, as a result of any claims, actions, proceedings, liabilities and expenses arising out of any bodily injury or death of third party persons or damage to property of third parties resulting from the negligence or breach of duty (whether statutory or otherwise) of the EPCM Contractor and its Affiliates and their respective directors, officers, employees, agents, successors and assigns.

REDACTED. This paragraph provides terms surrounding damage and damage amounts to property.

MMB shall indemnify and hold harmless the EPCM Contractor and its Affiliates and their directors, officers, employees, agents, successors and assigns, from and against all any and all claims, causes of action, liability, penalties, demands, liens, costs, damages, losses and expenses (including attorneys’ fees and related legal expenses) and all court or arbitration or other dispute resolution costs including reasonable actual legal fees incurred by the EPCM Contractor or the others so indemnified, as a result of any claim, action, proceeding, liability and expense arising out of, or by reason of,

any bodily injury or death to third party persons or damage to third party property resulting from the negligence of MMB, and MMB Contractors and their Affiliates and their respective directors, officers, employees, agents, successors and assigns; and

any claim against the EPCM Contractor for infringement of patent rights or copyrights as a result of the incorporation by the EPCM Contractor of any MMB Pre-Existing Intellectual Property or product invention, design, process, product or device specified by MMB or MMB’s other consultants in the plans and specifications.

Suspension of EPCM Services

MMB may suspend the performance of all or part of the EPCM Services upon not less than 5 calendar days written notice of suspension to the EPCM Contractor.

Upon receipt of a suspension notice pursuant to Section 50.1, the EPCM Contractor shall stop performing the EPCM Services as quickly as reasonably possible, and shall minimize suspension costs and expenditures. In the event of suspension by MMB exceeding 30 calendar days, and provided that EPCM Contractor has not received confirmation from MMB that such suspended Services will be resumed within a further 30 calendar days, the EPCM Contractor shall have the right to re-allocate to other projects or assignments any and all personnel providing EPCM Services under this Agreement. The impact of any suspension and remobilization shall be reflected in a Change Order pursuant to Section 22.0 adjusting the Project Schedule and the Target Price.

The EPCM Contractor may suspend the performance of all or part of the EPCM Services upon not less than 15 calendar days written notice of suspension to MMB if MMB fails to make any payment as required by this Agreement within 15 days of its due date. In the event of such suspension exceeds 45 continuous calendar days, the EPCM Contractor shall have the right to terminate this Agreement. The impact of any suspension and remobilization shall be reflected in a Change Order pursuant to Section 22.0 adjusting the Project Schedule and the Target Price.

Termination of Agreement and EPCM Services for Convenience

MMB may terminate this Agreement and/or any or all of the EPCM Services to be performed and provided hereunder at any time, for the convenience of MMB, by providing not less than 10 calendar days written notice of such termination and such termination shall be effective on the date specified in the notice and is without prejudice to any other claims which MMB may have against EPCM Contractor.

Upon a termination of this Agreement under Sections 51.1 and subject to the EPCM Contractor’s compliance with Section 53.0, MMB shall:

reimburse the EPCM Contractor for those costs reasonably incurred and claimed by the EPCM Contractor as a direct result of the termination of this Agreement, and for those EPCM Services performed to give effect to the termination, together with the EPCM Contractor’s reasonable demobilization and cancellation costs (inclusive of any and all cancellation costs related to leasing and furnishing office space, including all related leasehold improvement costs) arising directly from the termination, excluding consequential damages or anticipated loss of profits of the EPCM Contractor; and

calculate all amounts payable to the EPCM Contractor and pay such amounts to the EPCM Contractor in the manner provided by this Agreement.

The EPCM Contractor shall provide documentary evidence in support of any claim for payment made pursuant to Section 51.2 all to the reasonable satisfaction of MMB and MMB shall have no obligation to pay any amount on account of such claim for payment until all such documentary evidence has been received and accepted as satisfactory by MMB.

Termination of Agreement for Default

Subject to the terms of the Direct Agreement, and without limiting any other rights and remedies available under the Agreement, the EPCM Contractor may terminate this Agreement if MMB is in default under the Agreement other than non-payment by delivering written notice to MMB indicating the default and in the case of Sections 52.1.2 and 52.1.3if MMB fails to remedy such default within 60 calendar days of receiving such notice. For the purposes of Section 52.1 MMB shall be in default if:

MMB is adjudicated insolvent, or is dissolved or liquidated or MMB files or consents to filing any petition in bankruptcy, reorganization or other relief under any law for the relief of debtors or a receiver is appointed, or application is made for the appointment of a receiver for MMB and such application is not being contested;

the EPCM Services are suspended for more than 90 calendar days in the aggregate for any reason except where the EPCM Contractor is in default under the Agreement; or

MMB is in breach of any material representation, warranty, covenant or other material obligations contained in the Agreement.

Without limiting any other rights and remedies available under the Agreement, MMB may terminate this Agreement if the EPCM Contractor is in default under the Agreement by delivering written notice to the EPCM Contractor indicating the default and in the case of any default other than the default specified in Section 52.2.1 if the EPCM Contractor fails to remedy such default within 60 days of receiving such notice. Without limiting the provisions of Section 52.2, the EPCM Contractor shall be in default if:

the EPCM Contractor is adjudicated insolvent, or is dissolved or liquidated or the EPCM Contractor files or consents to filing any petition in bankruptcy, reorganization or other relief under any law for the relief of debtors or a receiver is appointed, or application is made for the appointment of a receiver for the EPCM Contractor and such application is not being contested;

the EPCM Services are suspended for more than 90 calendar days in the aggregate for any reason except where the suspension is as a result of MMB being in default under the Agreement;

the EPCM Contractor is in breach of any material representation, warranty, covenant or other material obligations contained in the Agreement;

the EPCM Contractor ceases to provide and perform the EPCM Services in a diligent and continuous manner;

the EPCM Contractor reduces its level of work in providing and performing the EPCM Services to a level that, for all practical purposes, amounts to an abandonment of the EPCM Services or a material breach of the EPCM Contractor’s obligation to provide and perform the same in accordance with this Agreement;

the EPCM Contractor fails to comply with the requirements of Section 34.0 of this Agreement;

the EPCM Contractor fails to comply with the requirements of Section 43.0 of this Agreement;

not used;

the EPCM Contractor repudiates this Agreement;

except where any payment is the subject matter of a Dispute, the EPCM Contractor fails to pay any sum payable by the EPCM Contractor to MMB pursuant to this Agreement in excess of US$100,000 for a period of 45 days following written notice by MMB of the EPCM Contractor’s failure to pay the same; and

the EPCM Contractor fails to comply with the requirements of Section 76.0 of this Agreement.

Obligations of EPCM Contractor on Termination

Upon the receipt of a termination notice delivered under Sections 51.1 or Section 52.1 the EPCM Contractor shall:

forthwith deliver to MMB all Work Product related to the EPCM Services all in accordance with the requirements of Section 58.0; and

cooperate with MMB in winding up the EPCM Services in an orderly and economical manner

discontinue performance of the EPCM Services and the placing of orders for Procurement Items;

make every reasonable effort to cancel all existing orders or contracts to which MMB is not a party upon terms which are commercially reasonable in light of the prevailing circumstances;

perform only those portions of the EPCM Services that are necessary to preserve and protect the EPCM Services already in progress and to protect Procurement Items; and

assign all or any of its contracts with its subcontractors to MMB at the request of MMB;

REDACTED. This section provides negotiated terms regarding recovery of payments surrounding certain defined events.

The obligations contained in the Agreement shall continue with respect to EPCM Services already performed and provided and with respect to obligations that were assumed by EPCM Contractor prior to the termination date provided that EPCM Contractor’s warranty shall not apply to any incomplete Work Product;

Force Majeure

Neither Party shall be liable to the other for any failure to perform its obligations hereunder (other than non-payment of money) if any such failure is due to a Force Majeure Event.

If either Party becomes aware of a Force Majeure Event it shall promptly give a notice of the occurrence of that Force Majeure Event to the other Party within 5 calendar days of becoming aware of the occurrence of a Force Majeure Event:

describing the Force Majeure Event in reasonable detail and stating, to the extent reasonably practicable, its estimate of the duration of the Force Majeure Event;

setting out in reasonable detail the obligations under this Agreement which cannot be performed as a result of the occurrence of the Force Majeure Event; and

containing particulars of the circumstances causing the Party to be unable to perform its obligations under this Agreement as a direct result of the Force Majeure Event.

The Party which is prevented from performing its obligations under this Agreement by a Force Majeure Event shall use all reasonable commercial efforts to curtail, contain or remove the Force Majeure Event conditions and to resume, with the least possible delay, compliance with its obligations under this Agreement.

If a Party gives a Force Majeure Notice and the other Party wishes to dispute the claim(s) made in such Force Majeure Notice, the other Party, within 30 calendar days of receipt of the Force Majeure Notice, shall refer the matter in dispute to dispute resolution pursuant to Section 55.0.

If a Party fails to give a Force Majeure Notice in accordance with Section 54.2 such Party shall not be entitled to rely on Section 54.2 to relieve it of its obligations to perform.

If either Party is delayed or prevented from fulfilling its obligations under this Agreement by a Force Majeure Event, which materially prevents or delays performance of the EPCM Services, a Change Order adjusting the cost and time to perform as provided in Section 54.7 shall be issued. If the Force Majeure Event continues for a period of greater than 60 calendar days, then the EPCM Contractor shall re-allocate to other projects or assignments any personnel that are unable to continue to provide any EPCM Services that are affected by the Force Majeure Event until the conditions giving rise to the Force Majeure Event have been removed following which the EPCM Contractor shall re-instate the EPCM Contractor’s personnel to the Project. In the event of a suspension of all or part of the EPCM Services pursuant to this Section 54.6 and provided that the EPCM Contractor and not MMB is prevented from performing the EPCM Services by reason of the Force Majeure Event, MMB shall be at liberty to take whatever steps that MMB in its sole discretion, considers advisable or necessary in order to obtain alternative consultants and contractors to perform the affected EPCM Services to ensure the timely performance of the affected EPCM Services in accordance with the Project Schedule and timely Mechanical Completion and operation of the Project and the EPCM Contractor shall have no claim against MMB in that regard.

Where a Force Majeure Event impacts the Project Schedule, the Project Schedule shall be adjusted to the minimum extent necessary to account for any delay resulting from that Force Majeure Event and MMB shall, reimburse the EPCM Contractor its reasonable costs, calculated pursuant to Schedule ‘D’ necessarily and unavoidably incurred during and as a result of the Force Majeure Event or incurred in the exercise of reasonable diligence to avoid or mitigate a Force Majeure Event. Additional costs shall be subject to MMB’s prior approval in writing. Any adjustment to the Project Schedule or the Target Price as a result of a Force Majeure Event shall be determined in accordance with the provisions of Section 21.0.

A party in default may not invoke a Force Majeure Event commencing subsequent to such default as an excuse therefor. In the event of a default, however, as to which the EPCM Contractor has received notice and commenced a cure, the period during which such cure is to be effected shall be extended to the extent performance of such cure delayed by a Force Majeure Event.

Dispute Resolution

A Party claiming that a Dispute has arisen under this Agreement must give written notice to the other Party within 21 calendar days of becoming aware of the event or condition giving rise to the Dispute.

The Parties shall make reasonable efforts through their respective representatives to resolve any Dispute, through “without prejudice” negotiations on an amicable basis and shall, subject to the exclusion of legally privileged documents, provide ▇▇▇▇▇, candid and timely disclosure of all relevant facts, information and documents to facilitate these negotiations.

If the Parties are unable to resolve the Dispute through their respective representatives within 10 calendar days after notice is given pursuant to Section 55.1, then the parties shall promptly prepare and exchange memoranda stating the issues in dispute and their respective positions, summarizing negotiations that have taken place and attaching relevant documents and such memoranda shall promptly be submitted to the Senior Management of each party who, in turn, shall promptly but in no event more than 15 calendar days after the period in which the representatives failed to resolve the Dispute under Section 55.2 meet for negotiations at a mutually agreed time and place.

If the Dispute has not been resolved within 10 calendar days of the commencement of the negotiations between Senior Management of the parties, either party shall thereafter be free to require that the relevant Dispute be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with those rules.

Not used.

The place and seat of arbitration shall be Vancouver, British Columbia and the language of arbitration shall be English.

Any arbitration award shall be final and binding on the Parties, and may be entered in any court having jurisdiction thereof.

Notwithstanding the existence of any such Dispute, neither Party will cause delay to the Project as a consequence of the Dispute. Subject to the terms of this Agreement, the EPCM Contractor shall continue to provide and shall not withhold the provision of the EPCM Services and MMB shall continue to make payments to the EPCM Contractor and comply with its other obligations under the Agreement in accordance with this Agreement provided that MMB shall be under no obligation to make payments to the EPCM Contractor in respect of any subject matter of such Dispute pending any arbitration or other proceeding to resolve such Dispute.

No act by either Party taken while a Dispute as herein provided is being resolved shall be construed as a renunciation or waiver of any rights or recourses under this Agreement, provided that if a Party is proceeding with its obligations under this Agreement under protest, it gives written reason thereof to the other Party within 15 calendar days of so proceeding.

If any Dispute between MMB and the EPCM Contractor involves any other consultant or contractor engaged by MMB or by the EPCM Contractor, then each of MMB and the EPCM Contractor may notify the said parties of the dispute and those parties shall have the right to participate in the resolution of a Dispute under this Agreement to the extent that those entities may be affected by that Dispute. It is the intention of this provision that multiple disputes among the parties to the Dispute concerning the same subject matter or circumstances be avoided and that determinations made as a result of this dispute resolution process involving multiple parties will be binding on all parties participating in the dispute resolution process and that neither MMB nor EPCM Contractor will have any residual claims against such participants pertaining to the subject matter of the dispute.

The EPCM Contractor may be joined, and hereby consents to any such joinder, as a party to any arbitration commenced in respect of any Project Contracts or any contract between MMB and any MMB Contractor performing work or providing services, materials or equipment in connection with the Project.

The EPCM Contractor shall include in all Project Contracts express provisions incorporating the substance of Section 55.0 of this Agreement.

Defence of Actions

Except where the issue is between the EPCM Contractor and MMB, the EPCM Contractor shall, at the request of MMB, assist in the defence of any action, proceeding or claim where any interest of MMB is involved, provided that MMB shall indemnify and hold harmless the EPCM Contractor for any necessary and proper costs or expenses incurred by the EPCM Contractor with MMB’s approval in so doing.

Confidentiality

The Parties shall protect the confidentiality of Confidential Information and shall not without the other Party’s consent, but subject to Section 57.3:

disclose or permit the disclosure of Confidential Information to any third party, or use any Confidential Information for any purpose other than the execution of the EPCM Services or as required by law, except that the EPCM Contractor may disclose Confidential Information to the EPCM Contractor’s professional advisors and auditors and to those of the EPCM Contractor’s personnel or agents who require it for the purposes of the EPCM Services provided that the EPCM Contractor’s personnel or agents are informed of the obligations as set out in Section 57.0, and the EPCM Contractor has obtained a written confidentiality agreement from such personnel or agents agreeing to keep such Confidential Information in confidence on substantially the same terms;

other than for the purposes of obtaining the licenses and permits as required by this Agreement, communicate with any governmental authority or with any news media with respect to the EPCM Services or any aspect thereof unless authorized in writing by MMB;

unless MMB otherwise specifies, disclose to any governmental authority any Confidential Information unless, such disclosure where permitted by law, is made under cover of a formal advisory asserting that the information is confidential under the statute pursuant to which it is produced, and requiring the governmental authority to notify both MMB and EPCM Contractor reasonably in advance of any proposed disclosure or publication of that information;

include any reference to MMB, to this Agreement or to this Project in any advertisement or promotion of any kind whatsoever without MMB’s prior written approval; and

make any public announcements or issue any press releases regarding this Agreement, its terms or EPCM Contractor’s involvement in the Project without obtaining MMB’s prior written consent, which shall not be unreasonably withheld.

Any combination of the information which comprises part of the Confidential Information shall not be included in the foregoing exceptions merely because individual parts of the information were in the public domain or were in the prior possession of the EPCM Contractor or were acquired by the EPCM Contractor without binder of secrecy unless the combination itself was in the public domain, or appropriately in the prior possession of EPCM Contractor, or was so appropriately acquired by EPCM Contractor.

Notwithstanding Section 57.1 neither Party shall be in breach of its confidentiality obligations to the extent that any release of information by that Party is:

required by any law or by regulation of any country with jurisdiction over the affairs of the relevant Party; or

required by the rules of any competent authority, regulatory body or securities exchange on which securities of the relevant Party or any of its Affiliates are listed; or

required by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body; or

to the Parties' own professional advisers or insurance advisers or to MMB's lenders or to MMB's lenders' professional advisers.

The Parties acknowledge the competitive value of the Confidential Information and agrees that monetary damages may be an inadequate remedy for breach of this Section 57.0, and agree therefore that specific performance or injunctive relief, as selected by the other Party in its sole discretion, may be the only appropriate remedy for any breach of a Party's obligations under this Section 57.0.

The EPCM Contractor and MMB each agree to comply with all laws with respect to the handling and protection of personal information in connection with this Agreement that are now in effect or are hereafter imposed in by the laws of any jurisdiction where the EPCM Services are performed and to which the personal Information disclosed hereunder may be subject.

Work Product

Unless otherwise agreed in writing by MMB, and subject to the terms of this Agreement, the Work Product, shall belong exclusively to MMB, whether delivered or not by the EPCM Contractor.

Subject to MMB having paid the Reimbursable Costs applicable to the EPCM Services corresponding to the production of the relevant Work Product, the EPCM Contractor hereby irrevocably assigns and transfers to MMB all existing and future rights and interests in any Work Product developed or created during the performance of the EPCM Services and waives any right to claim any continuing right, copyright, intellectual property interest or other interest in the said Work Product.

MMB’s rights in the ownership of the Work Product and the licence provided for in Section 58.9 shall survive the termination of this Agreement.

MMB shall not use the licensed EPCM Contractor Intellectual Property for any purpose, except for the execution of the Project (including the modification, repair, maintenance and operation of the plant forming the Project) without obtaining EPCM Contractor’s prior written approval, and equitably remunerating the EPCM Contractor therefor.

At any time requested by MMB, the EPCM Contractor shall deliver to MMB in PDF format, all finalised Work Product being Work Product which has been issued for construction or which is then further revised. Upon Final Acceptance or in the event of any termination of this Agreement, the EPCM Contractor shall deliver to MMB all Work Product, whether in final or draft form, which may be in the possession of the EPCM Contractor, and in each case, the Work Product shall be provided in native format as well as in hard copy. Where there is any discrepancy between the native format or the hard copy of any Work Product, the hard copy shall be deemed to take precedence. MMB shall indemnify and hold Contractor harmless for any damages or claims that may arise from any modifications to the Work Product carried out by MMB.

The cost of preparing hardcopies of the Work Product shall be paid by MMB.

The EPCM Contractor may maintain one copy of the Work Product for legal and archival purposes.

MMB shall, at all times, have the right to control and review all Work Product and may from time to time impose specific requirements and general provisions setting out items which EPCM Contractor must submit to MMB for specific review. Such review by MMB shall not relieve EPCM Contractor from the responsibility for the accuracy, completeness and suitability of the Work Product for its intended purpose or diminish in any way the obligations and liabilities of the EPCM Contractor under this Agreement.

Notwithstanding the foregoing, the EPCM Contractor shall retain ownership of all EPCM Contractor Intellectual Property (including all the EPCM Contractor proprietary software). In consideration of the payments due to the EPCM Contractor under this Agreement, the EPCM Contractor hereby provides MMB with a non-exclusive, non-transferable license to use the EPCM Contractor’s Intellectual Property (excluding all EPCM Contractor proprietary software) for the purposes of the Project.

Nothing in the Agreement shall give the EPCM Contractor any proprietary rights or interest in MMB Pre-existing Intellectual Property and MMB shall retain ownership of all MMB Pre-existing Intellectual Property. MMB hereby provides the EPCM Contractor with a non-exclusive, non-transferable license to use MMB Pre-existing Intellectual Property for the purposes of the Project.

MMB releases the EPCM Contractor from liability and agrees to defend, indemnify, protect and hold harmless the EPCM Contractor from any and all claims, liabilities, damages or expenses (including reasonable lawyer’s fees and legal costs) arising, in whole or in part, from the EPCM Contractor’s use of the MMB Pre-existing Intellectual Property or from MMB’s modification of EPCM Contractor’s Intellectual Property or Work Product or use of EPCM Contractor’s Intellectual Property or Work Product for other purposes or projects.

In the event that the EPCM Contractor is required to deliver Work Product that is incomplete, MMB acknowledges that the EPCM Contractor shall have the right to remove its name, logo and all other identifying marks from the Work Product prior to delivering such Work Product to MMB, unless otherwise agreed in writing by the EPCM Contractor.

If this Agreement is terminated before the EPCM Services are completed for any reason, and In any event not later than 30 calendar days following the Final Acceptance Date the EPCM Contractor shall provide MMB with one set of originals of all Work Product.

Intellectual Property Indemnity

MMB shall indemnify, defend and save harmless the EPCM Contractor from and against any and all costs, royalties, damages, and/or expenses of any nature or kind whatsoever that may arise out of, result from, or be reasonably incurred in contesting any claim that any MMB Pre-existing Intellectual Property infringes or contributes to the infringement of any registered patent, or may constitute illegal or unauthorized use of copyrighted material, trade secrets, confidential or proprietary information or processes, or other intellectual property rights in whatever form it may exist.

The EPCM Contractor shall indemnify defend and save harmless MMB from and against any and all costs, royalties, damages, and/or expenses of any nature or kind whatsoever that may arise out of, result from, or be reasonably incurred in contesting any claim that the Work Product provided by the EPCM Contractor, or its agents or employees in connection with the EPCM Services infringes or contributes to the infringement of any registered patent, or constitute illegal or unauthorized use of copyrighted material, trade secrets, confidential or proprietary information or processes, or other Protected Right in whatever form it may exist.

The Parties shall have the right, in order to avoid claims or actions pursuant to Section 59.1 and Section 59.2, at their own expense to substitute non-infringing materials or to obtain the necessary licenses to use the infringing materials provided that such substituted and modified materials meet, and are subject to, all of all the requirements of this Agreement.

Inventions and Improvements

The EPCM Contractor shall communicate to MMB at once, and require all Project Contractors to communicate to MMB all inventions and improvements which any of the employees of the EPCM Contractor or any Project Contractors, either alone or in conjunction with any of MMB’s employees, may conceive, make or discover during the course, or as a result of, performance of the EPCM Services or the Project Work. Such inventions and improvements shall become the sole and exclusive property of MMB or its assigns without any obligation on MMB’s part to make any payment therefor in addition to any sums which MMB may be obligated to pay to the EPCM Contractor as compensation under this Agreement.

The EPCM Contractor shall require its employees, and the relevant employees of any Project Contractor to execute patent applications and assignments thereof to MMB or its nominees, and powers of attorney relating to any inventions and improvements thereto for any country that MMB may designate, and shall take all other actions as MMB may request to maintain and protect such inventions and improvements

MMB shall pay all costs or charges incurred in protecting such inventions and improvements if MMB wishes to protect them.

Safety

The EPCM Contractor shall be responsible for safety at the Site during the performance of the EPCM Services and Project Work and shall:

comply and ensure compliance by all Project Contractors at the Site with site safety regulations, campsite rules, directives from MMB and all applicable laws, ordinances or regulations relating to health and/or safety, including the Environmental Requirements;

furnish first aid, emergency medical treatment, medical evacuation and similar services for the employees of the EPCM Contractor, the Project Contractors (which shall include medical evacuation services for employees thereof) for injuries, illnesses or accidents occurring at the Site or in connection with the EPCM Services, and the Project Work;

develop and implement its own safety program at the Site which shall be coordinated and consistent with MMB’s safety program for the Project;

cause each Project Contractor performing services or work at the Site to implement a comparable and coordinated safety program;

maintain, in a form approved by MMB, injury and illness statistics which shall be available for inspection by, and submitted to, MMB upon its written request; and

ensure that each Project Contractor provides its own first aid, emergency medical treatment and similar services for injuries, illnesses or accidents involving its employees, agents or representatives at the Site or are covered by a Site wide medical emergency service.

The Contractor’s Representative shall report any accidents, injuries and illnesses which require medical attention greater than minor first aid and any material damage to MMB’s property verbally to MMB at the time of the incident followed by a written report detailing the incident, and satisfactory in form and sufficiency of content to MMB, within 24 hours after each occurrence.

If the EPCM Contractor becomes aware of any hazardous conditions that endanger the employees or property of MMB, the EPCM Contractor, the Project Contractors or any other persons at the Site, the EPCM Contractor shall notify MMB, in writing, of the existence of such conditions and shall take all necessary precautions to prevent injury to person and property on the Site until the condition is addressed by the person(s) responsible, notwithstanding that such hazardous conditions may not be under the EPCM Contractor’s control.

The EPCM Contractor shall provide safe means of access to all places at the Site where work or services are to be performed by the EPCM Contractor, the Project Contractors the MMB Contractors and other persons who enters the Site for any purpose in connection with the Project to that portion of the Site where their respective work is to be performed, and to the routes to be designated by MMB for ingress and egress to the Site and the EPCM Contractor shall take all necessary precautions against injury to the same.

Without in any way limiting the EPCM Contractor’s obligations in respect of safety, MMB reserves the right to direct that the EPCM Services and/or Project Work be stopped at any time if MMB observes or becomes aware of any unsafe condition or unsafe practice involving any activity at the Site.

Co-operation with MMB Contractors

Subject to Section 21.0, the EPCM Contractor shall:

take all reasonable steps to plan, co-ordinate and programme and, to the extent physically feasible without significant impact upon the Project Schedule, to integrate the performance of the EPCM Services and the Project Work with the activities of the MMB Contractors who may be engaged on or near the Site;

arrange regular co-ordination meetings to plan, review and determine co- ordinated activities for the management of interfaces between the EPCM Services, the Project Work and the activities of the MMB Contractors;

exercise all reasonable endeavours so as to minimise any interference with or hindrance of or by the performance of the activities of the MMB Contractors;

co-operate with MMB and the MMB Contractors so as to promote and ▇▇▇▇▇▇ a co-ordinated and integrated approach to the EPCM Services, the Project Work and the activities of the MMB Contractors.

Certificate of Mechanical Completion

The EPCM Contractor shall give MMB:

When the EPCM Contractor considers that the Mechanical Completion Milestone has been achieved, the EPCM Contractor shall deliver a written request for a Certificate of Mechanical Completion for all or part of the Facilities. Within 14 calendar days of the receipt of the request, MMB shall issue a Certificate of Mechanical Completion for the whole or part of the Facilities, or give the EPCM Contractor written reasons for not issuing the certificate.

The Mechanical Completion Milestone shall be deemed to have been met upon issuance of a final Certificate of Mechanical Completion for that part of the Facilities for which it is issued.

Issuance of a Certificate of Mechanical Completion:

shall not constitute approval of any Project Work or other matter, nor shall it prejudice any claim by MMB in respect of the EPCM Services or the Project Work; and

shall constitute MMB’s agreement with the Punch List Items relating to the Facilities attached to the Certificate of Mechanical Completion.

Not used

Final Acceptance Certificate

When the Project Work or any separable portion thereof, has been fully and finally completed, including the completion of all Performance Tests including those relating to copper production, zinc production and cobalt production required by the Project Specifications, the EPCM Contractor shall apply for a Final Acceptance Certificate to MMB in writing. MMB shall then promptly schedule a final inspection of the Project Work with the EPCM Contractor and will promptly thereafter notify the EPCM Contractor in writing of all particulars in which this inspection reveals that the Project Work is incomplete or constitutes Defective Project Work.

The EPCM Contractor shall promptly take such measures to ensure such Defective Project Work is remedied by the relevant Project Contractor and uncompleted Project Work including completing the Punch List Items is completed.

Following the remediation of any Defective Project Work and the completion of any uncompleted Project Work, MMB shall issue an Final Acceptance Certificate for the Project Work or any separable portion thereof.

MMB shall not be required to issue a Certificate of Final Acceptance until all liens charges and encumbrances against the Project arising out of, or directly or indirectly related to the EPCM Services have been cleared and discharged by the EPCM Contractor.

Accounts and Records Right of Audit

The EPCM Contractor, during the performance of the EPCM Services and for a period of 6 years after the earlier of Mechanical Completion or termination of the EPCM Services and/or this Agreement, shall maintain all records and books of accounts, invoices, receipts, and payment and other records consistent with internationally adopted accounting practices in connection with all EPCM Services in auditable form and shall provide MMB and its appointed auditors access to all of the EPCM Contractor’s personnel job descriptions, qualification records, books, correspondence, instructions, plans, drawings, receipts, vouchers, data stored in computers, and memoranda of all types relating to the EPCM Services during that time period provided however that the purpose of any such audit shall only be for verifying such costs and determining if such costs were recoverable by the EPCM Contractor under the terms of this Agreement and provided further that the EPCM Contractor shall not be required to provide access to those of its costs covered by fixed rates or costs or fees which are expressed as percentages of other costs, multiplers, all-in-rates or lump sums. Third party auditors and accountants must sign EPCM Contractor's standard confidentiality agreement prior to the commencement of the audit. Third party auditors and accountants must, prior to the commencement of the audit, demonstrate that they comply with EPCM Contractor's data handling and security standards in accordance with SAS 70 or equivalent international IT standard. In addition, third party auditors and accountants must comply with all local and national data privacy laws. All third party auditors and accountants compensated in whole or in part on a contingency basis are prohibited from auditing this Agreement.

Liens

The EPCM Contractor will promptly pay its employees and subcontractors all amounts that are properly due and payable when such amounts are due and payable.

The EPCM Contractor shall, upon receiving written notice from MMB, immediately remove from the Project or from any part of the Project any and all liens, charges and encumbrances which result from EPCM Contractor’s failure to pay its employees and subcontractors and shall if required post a bond or pay funds into an appropriate court depository in respect of the same.

The EPCM Contractor shall indemnify MMB from all costs, expenses, claims, actions and liabilities as a result of the EPCM Contractor’s failure to comply with Sections 67.1 and 67.2.

MMB may, at any time and from time to time, require the EPCM Contractor to provide, as a condition of any payment by MMB to the EPCM Contractor, a sworn statement from the EPCM Contractor’s Senior Management that all amounts properly due and owing to the EPCM Contractor’s employees and subcontractors have been paid and identifying all known claims by such employees and subcontractors that may give rise to a claim of lien, charge or encumbrances against the Project or against MMB’s interests in the Project.

MMB may retain from any and all payments due or coming due to the EPCM Contractor (subject to the EPCM Contractor's right to receive the relevant payment in return for the provision to MMB of security of an equal amount) on account of the EPCM Services the full amount of any liens, charges or encumbrances claimed or filed against any part of the Project together with a reasonable amount representing MMB’s legal costs for discharging and removing the same if the EPCM Contractor fails to do so. Such amount shall be released to the EPCM Contractor after the EPCM Contractor discharges the lien charge or encumbrance.

If the EPCM fails to promptly discharge the liens, charges or encumbrances, then MMB may use the funds retained pursuant to Section 67.5 for the purposes of discharging the same and shall be entitled to deduct any amounts in excess of the retention to achieve the said discharge from any amounts due or coming due to the EPCM Contractor.

Taxes

The EPCM Contractor shall cooperate with MMB to lawfully minimize tax liabilities accruing to each of them as a result of entering into or performing this Agreement.

The EPCM Contractor shall not revise or alter any Project Contract or its method of performance in any manner that would adversely affect MMB’s tax liability without MMB’s prior written consent.

All payroll taxes, remittances and deductions for the EPCM Contractor’s employees or representatives shall be borne and paid by the EPCM Contractor as part of its overhead.

The EPCM Contractor shall not be responsible for, value added taxes, levies, Mexican withholding taxes, charges, duties or assessments in connection with the EPCM Agreement performed in Mexico, provided that it shall be the EPCM Contractor’s obligation to identify and coordinate the payment of all such taxes, value added taxes, levies, charges, duties or assessments on behalf of MMB.

The Parties shall indemnify and hold harmless each other from any liability arising from such Party’s failure to make or pay any payroll taxes, remittances or deductions for its employees or representatives.

To the extent that such tax withholding is required by the government or political subdivision of any other state or country having jurisdiction over this Agreement, MMB shall have the right to withhold and remit to appropriate tax authorities all local or other taxes applicable to payments made by MMB to the EPCM Contractor pursuant to this Agreement.

EPCM Contractor Parent Company Guaranty

REDACTED. This section provides obligations of the EPCM Contractor with respect to its Parent Company Guaranty.

REDACTED. This section provides information surrounding replacement of the EPCM Contractor Parent Guarantee.

Survival

All provisions of this Agreement which, expressly or by implication, come into or continue in force and effect after the expiration or termination of this Agreement, including but not limited to warranty and guaranty provisions, obligations in respect of payment, indemnity and insurance, all definitions, interpretation provisions and liability limitations, exclusions and waivers, shall remain in effect and be enforceable following such expiration or termination of the Agreement. The representations and warranties of the EPCM Contractor contained herein shall survive the execution and delivery hereof.

Notices

Notices, consents, approvals, authorizations, requests, reports and all other communications, except where herein otherwise provided, shall be in writing and shall either be delivered personally, sent by bonded courier, or transmitted by facsimile or e-mail to the addressee at the following addresses:

at the opening of business in the office of the addressee on the second business day following the dispatch of the Notice by bonded courier;

at the opening of business in the office of the addressee on the business day next following the transmission of the Notice by facsimile or e-mail transmission; and

on the actual date of receipt if the Notice is personally delivered on a day other than Saturday, Sunday or a statutory holiday at the place where it is delivered.

Enurement

This Agreement shall enure to the benefit of, and be binding upon, on the Parties and their successors and permitted assigns. Except as set out in the Direct Agreement, no other person or entity shall be a third party beneficiary or have any rights by virtue of this Agreement.

Governing Law

This Agreement shall be governed and construed according to the laws of England and Wales.

Entire Agreement

This Agreement, as herein expressed, constitutes the entire agreement between the Parties and supersedes all previous communications, negotiations, representations, understandings and contracts (whether written or oral) between the Parties made prior to the Effective Date with respect to the subject matter herein.

Counterparts

This Agreement may be executed and delivered by facsimile or by PDF attachment and in any number of identical counterparts each of which shall be deemed an original, and all of which taken together shall constitute one and the same agreement.

Compliance with Laws

In performing the EPCM Services, the EPCM Contractor shall comply, and shall cause all its employees, subcontractors and Project Contractors to comply, with all applicable laws, regulations and statutory requirements of every competent federal, provincial, municipal, regional and other statutory authority applicable to the performance of the EPCM Services.

Without limiting the foregoing, the EPCM Contractor shall comply, and shall cause all its employees, subcontractors and Project Contractors to comply, with all environmental laws, regulations, codes, permit requirements, or directives from any lawful authority possessing jurisdiction, applicable to or affecting the EPCM Services, the Project Work, the Facilities, or the Site and specifically including laws aimed at reclamation or restoration of the lands included within the Project, abatement of pollution, protection of the environment, protection of wildlife, ensuring public safety from environmental hazards, protection of cultural or historic resources (including laws governing the protection of the culture of the indigenous people), and management, storage or control of hazardous materials and substances as well as the release or potential release thereof.

Further Acts

Each Party shall execute such further and other documents and instruments and do such further and other acts as may be necessary to implement and carry out the intent of this Agreement.

Severability

If any provision of this Agreement or any portion of a provision of this Agreement is declared by any tribunal or court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining provisions or the remaining portions thereof. On the contrary, such remaining provisions or portions thereof shall be fully severable, and subject to Section 78.2 this Agreement shall be construed and enforced as if such invalid provisions or portions thereof never had been inserted in this Agreement.

In the event that any portion or all of this Agreement is held to be void or unenforceable, the Parties agree to negotiate in good faith to reach an equitable agreement which shall effect the intent of the Parties as set forth in this Agreement.

Assignment

The EPCM Contractor shall not assign, convey or transfer this Agreement, or any benefits, rights, interests, burdens and obligations under it without the prior written consent of MMB such consent not to be unreasonably withheld. Any such assignment will be subject to the assignee agreeing to collateral wording materially as set out in Schedule ‘L’

Any such purported assignment, conveyance or transfer contrary to this Section 79.0 shall be null and void.

Financing of the Project

MMB may assign this Agreement to the Financing Parties by way of security without EPCM Contractor’s consent.

EPCM Contractor’s general obligation

EPCM Contractor shall provide such assistance as MMB may reasonably request in connection with the financing of the Project. EPCM Contractor shall make available to MMB and the Financing Parties such information relating to the status of the EPCM Services and the Project Work as the Financing Parties may reasonably request from time to time.

EPCM Contractor shall provide such documents including furnishing such consents to assignment, certifications, representations and opinions of counsel addressed to MMB and the Financing Parties and such other documents as may be reasonably requested by MMB or the Financing Parties in connection with the financing of the Project.

EPCM Contractor agrees that in the event of an assignment of the Agreement to the Financing Parties or any other permitted assignee, EPCM Contractor shall, if requested by MMB, execute an acknowledgement of assignment.

EPCM Contractor agrees to allow, the Financing Parties, their respective agents and advisers such reasonable access to the Site and to documentation (subject to obligations as to confidentiality) in relation to the Agreement at such times as they shall reasonably require.

EPCM Contractor acknowledges that MMB may use ECAs to assist in the financing of the Project. EPCM Contractor accepts to be paid by any such ECAs or its paying agent direct in lieu of MMB. EPCM Contractor agrees that payments can be made by the Financing Parties either directly or indirectly through a trustee or paying agency mechanism.

EPCM Contractor acknowledges that the EPCM Services including the engagement of Project Contractors as agent for MMB should be carried out taking into consideration eligibility for financing by the utilisation of any ECA Credit with the amounts available for drawing from the ECA Credit in respect of such materials, work and associated services. Where the equipment and goods and services under any Project Contract which the EPCM Contractor proposes to enter into as agent for MMB would not be Eligible Goods and Services, the EPCM Contractor shall advise MMB accordingly and shall identify any alternative supplier from whom the procurement of the relevant equipment, goods or services would be treated as Eligible Goods and Services, together with details of how the costs of awarding a Project Contract to that alternative supplier compare with the costs in the Open Book Estimate for the relevant equipment, goods or services. If required by MMB, the EPCM Contractor shall enter into a Project Contract with that alternative supplier.

EPCM Contractor shall do all things necessary, in good time, which MMB notifies EPCM Contractor it reasonably considers necessary and within the control of EPCM Contractor to permit MMB fully to utilise the ECA Credits which may include:

the meeting of all conditions precedent, ongoing terms (including those relating to the transportation of materials and equipment), conditions or requirements which may include any sourcing or related expenditure requirements of any ECA such that the terms of any ECA Credit or the terms of the cover provided by any ECA are complied with in all respects and that such cover remains in full force and effect; and

the provision of all further reasonable assistance or support requested by MMB in connection with any ECA Credit or its utilisation.

Financing Parties Requirements The EPCM Contractor must comply with the health, safety and environmental requirements of any of the Financing Parties, with all applicable environmental and safety regulations of a jurisdiction where any of the EPCM Services and the Project Work is performed.

Environmental and Social Action Plan

The EPCM Contractor will comply with the Environmental and Social Action Plan prepared by MMB in accordance with the Equator Principles, the IFC Performance Standards and the US-EXIM Environmental Requirements.

In the event that MMB requires any change to be made to the Environmental and Social Action Plan the provisions of Section 22 shall apply to the implementation of that change as proposed by MMB.

Independent Contractor

The EPCM Contractor is an independent Contractor and not an employee or partner of MMB and notwithstanding the EPCM Contractor’s limited authority to act as MMB’s agent for certain purposed described in this Agreement, it is not the purpose or intention of this Agreement to create a joint venture, partnership, mining partnership or employment relationship between MMB and the EPCM Contractor

Waiver

None of the terms or conditions of this EPCM Agreement or any past or future default, breach, or modification of any of the conditions of this Agreement are or shall be waived unless such waiver is given in writing, specifically specifying the contractual provision being waived.