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COMMON AGREEMENT, 영문계약서, 일반 계약서 본문
COMMON AGREEMENT
[AAA CORPORATION]
and
[BBB CORPORATION]
Dated [•], 20[•]
TABLE OF CONTENTS
Article No. Page
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions [2]
1.2 Headings [21]
1.3 Interpretation [22]
1.4 Further Definitions [23]
1.5 Schedules [23]
2. EFFECTIVE DATE, MILESTONES AND TERM
2.1 Effective Date [24]
2.2 Project Milestone Dates [26]
2.3 Securities [28]
2.4 The [BBB] Site [30]
2.5 Financial Closing [32]
2.6 Refinancing [35]
2.7 Termination [36]
3. CONSTRUCTION, OPERATION AND MAINTENANCE OF FACILITIES
3.1 Power Station [36]
3.2 Transmission Line and Natural Gas Pipeline [37]
3.3 Grid Operating Procedures [37]
3.4 Monitoring of Progress [38]
3.5 Reports [38]
3.6 Plans [38]
3.7 Supply of Electricity to the Power Station [43]
4. TESTING AND COMPLETION
4.1 Testing Procedures [43]
4.2 Witnessing and Successful Completion of Tests [44]
4.3 Tests [45]
4.4 Deemed Completion Date on De-Rating [48]
4.5 Deemed Completion Date for Other Reasons [49]
4.6 Performance Tests [52]
4.7 Plant Net Heat Rate [53]
4.8 Tests following Deemed Completion [53]
4.9 Adjustment of Capital Recovery Fee [58]
5. AVAILABILITY
5.1 Availability [58]
5.2 Operation and Dispatch Instructions [59]
5.3 Certain Matters Relating to the Reliability Test [62]
6. SUPPLY OF FUEL
6.1 Fuel for Testing and Operation [65]
6.2 Delivery [66]
6.3 Measurement and Quality [67]
6.4 Fuel Management [67]
6.5 Fuel Minimum Take Payment [67]
6.6 Payment for Fuel [70]
7. PAYMENT
7.1 Availability and Energy Fees [71]
7.2 Payments by [BBB] [71]
7.3 Payments by the Generator [73]
7.4 Change of Law [73]
7.5 Payment by [BBB] of Certain Taxes [76]
8. TRANSFER OF POWER STATION
8.1 Transfer Date [77]
8.2 Inventories and Warranties [78]
8.3 Costs and Further Assurances [79]
8.4 Payments by [BBB] on the Buyout Date [79]
8.5 Training of [BBB] Personnel [82]
8.6 Overhaul Before Transfer Date [82]
8.7 Buyout Notice [82]
9. REPRESENTATIONS AND WARRANTIES
9.1 By the Generator [84]
9.2 By [BBB] [85]
10. INSURANCE
10.1 Generator’s Obligation [85]
10.2 Additional Insureds [86]
10.3 Insurances Payable [87]
10.4 Application of Physical Loss or Damages Insurance [88]
11. STANDARDS OF PERFORMANCE AND FORCE MAJEURE
11.1 General Standards of Performance and Consents [90]
11.2 Force Majeure [91]
11.3 Procedure [92]
11.4 Consultation [93]
11.5 Third Parties [93]
11.6 Extension of Time [93]
12. DEFAULT, TERMINATION AND STEP IN RIGHTS
12.1 Definitions [94]
12.2 Notice of Default [96]
12.3 Submission of Cure Programme [97]
12.4 Acceptance and Conduct of Cure Programme [98]
12.5 Step In Rights [99]
12.6 Termination [99]
12.7 Saving [103]
12.8 Notice of Termination of Construction Contract [104]
13. OWNERSHIP OF POWER STATION AND ASSIGNMENT
13.1 Ownership [104]
13.2 Prohibition [105]
13.3 Assignment by [BBB] [105]
13.4 Effect of Assignment [105]
14. EXPERT
14.1 Application of Article [105]
14.2 Appointment [106]
14.3 Eligibility [107]
14.4 Procedures [107]
15. LIABILITY
15.1 Limit of Liability [109]
15.2 Personal Injury and Property Damage [113]
15.3 Third Party Claims [114]
15.4 Consequential Loss [114]
16. CONFIDENTIALITY
16.1 Confidential Information [114]
16.2 Permitted Disclosure [115]
16.3 Use of Confidential Information [116]
17. ARBITRATION
17.1 Amicable Settlement [116]
17.2 Arbitration [116]
18. GOVERNING LAW
18.1 Governing Law [119]
18.2 Immunity [119]
18.3 Continuing Performance [119]
19. NOTICES [119]
20. MISCELLANEOUS
20.1 Regular Meetings [120]
20.2 Disclaimer [120]
20.3 Several Obligations [121]
20.4 Waiver [121]
20.5 Entire Agreement [121]
20.6 Severability [121]
20.7 Grid Code [121]
20.8 Counterpart Execution [122]
Schedule [OMITTED]
1. Project Scope and Specifications
2. Operating Parameters
3. Liquidated Damages for Delay
4. Fuel Specifications and Guaranteed Plant Net Heat Rate
5. A. Transmission Line
B. Natural Gas Pipeline
6. Electricity Delivery Procedures
7. Measurement and Recording of Electricity
8. Availability Fees and Energy Fees
9. Insurance
10. Form of Performance Undertaking
11. A. Proponent's Agreement
B. Direct Agreement with Lenders
12. Form of Legal Opinion of [BBB]'s General Counsel
13. Testing
14. Sample Calculations
15. Environmental Criteria
16. Form of Construction Performance Security
17. Form of Development Security
18. Form of Operation and Maintenance Security
COMMON AGREEMENT
AGREEMENT originally made [•], 20[•] and now amended and restated as of [•], 20[•], as defined in the Amendment and Restatement Agreement dated [•], 20[•] between [AAA CORPORATION] and [BBB CORPORATION] (the “ARA”).
BETWEEN: [AAA CORPORATION], a private corporation organized and existing under the laws of the [Name of the Country], with its principal address at [Adress] represented by the Chairman of the Board who is authorized to represent it in this Agreement ("Generator");
AND: [BBB CORPORATION], a government owned and controlled corporation organized and existing under and by virtue of [Name of the Country], with its principal office at [•], represented by its President, who is authorized to represent it in this Agreement ("[BBB]").
WHEREAS:
A. [BBB] has called for the development of new power facilities to utilize indigenous natural gas sources to support and maintain the [Name of the Country] economic growth;
B. [BBB] issued to the public a notice inviting interested parties to bid for a [•] project on a build, operate and transfer basis;
C. in response to the invitation, [CCC CORPORATION] submitted a bid for the project;
D. [BBB], after having evaluated the bids for the project and selecting the one most advantageous to [BBB], issued a letter of award to the Proponent;
E. pursuant to that letter of award, the Proponent has caused the Generator to be incorporated and the Generator has agreed to Construct, Operate and Maintain the Power Station upon the terms and subject to the conditions hereinafter set forth;
F. the Project has been accredited as a private sector generating facility by the Department of [•] pursuant to [•] and its implementing rules and regulations; and
G. the Proponent holds 100% of the share capital of the Generator.
NOW IT IS HEREBY AGREED as follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement and the Recitals, and when used with capital initial letters:
"Access Road" means the road described and identified as such in the First Schedule;
“Actual Completion Date” means the “Completion Date” as such term is defined herein, including the “Completion Date” where it occurs pursuant to Article 4.4, but excluding the “Completion Date” where it occurs pursuant to Article 4.5.
"Additional FM Cost Ceiling" means an amount equal to US$ [•] For the purposes of determining whether the Generator has incurred Deemed Completion Costs and Additional GFM Costs equal to the "Additional FM Cost Ceiling", any Deemed Completion Cost or Additional GFM Cost which is incurred in [Currency] shall be expressed in Dollars at the [Currency]-to-Dollar reference rate published by the [Name of the Bank] for the date such costs were incurred by the Generator, or, if no such rate is published by the [Name of the Bank], at the daily weighted average [Currency]-to-Dollar exchange rate of all [Currency]-to-Dollar foreign exchange transactions consummated through the [Name of the Country] Dealing System, as published in Page [•] of the Telerate monitor, at [•] p.m. of the day on which the relevant Deemed Completion Cost or Additional GFM Cost, as the case may be, is incurred by the Generator;
"Additional FM Cost Excess" has the meaning ascribed to such term in Article 15.1d.;
“Additional GFM Cost" means any of the following incurred as a result of Government Force Majeure:
a. any reasonable cost or reasonable liability of the Generator of any type whatsoever, including:
i. any cost of rehabilitation or repair of the Power Station or any omponent thereof;
ii. any increased liability or obligation on the part of the Generator to pay any third party (including any Competent Authority, any Lender or any Contractor party to the Construction Contract);
iii. any amount (including any cost and expense of demobilisation and remobilization, any storage, cancellation, standby or warranty or guarantee extension fees) charged by the Contractor party to the Construction Contract; and
iv. any other increase in the cost to the Generator of Constructing, Operating and/or Maintaining the Power Station,
in each case incurred as a result of or necessary to the continued exercise of Good Operating Procedures; and
b. any reduction in the Availability Fees or other amounts payable by [BBB] to the Generator pursuant to this Agreement,
aa. in each case, which the Generator has taken commercially reasonable steps available to it to reduce and mitigate such cost, liability or reduction (as the case may be) and which takes account of any saving or benefit accruing to the Generator as a result of the Government Force Majeure; and
bb. in the case of any such cost, liability or reduction resulting from Government Force Majeure constituting Change of Law (“Change of Law Cost”), and determined as at the date the relevant Change of Law Cost is incurred, results in a Material Reduction.
"Affiliate" means, in respect of a Party (or a Proponent), any person which controls (directly or indirectly) that Party or Proponent and any other person controlled (directly or indirectly) by such first mentioned person, including, where a Party or Proponent is a company, the ultimate holding company of such Party or Proponent and any subsidiary (direct or indirect) of such holding company; provided that the Export-Import Bank of Korea shall not be considered related to, or an Affiliate of, the Generator or the Proponent for any purpose under this Agreement, the ARA, the Proponent’s Agreement or the Direct Agreement.
"Agreed Interest Rate" means, in respect of Dollars, the overnight United States Federal Funds rate plus [•] percentage points per annum and, in respect of [Currency], the T-Bill Rate plus [•] percentage points per annum, in each case compounded every [•] days; for the purposes of the foregoing, "T-Bill Rate" means, in respect of any day for which interest based on such rate is being calculated under this Agreement, the rate per annum at which [Name of the Country] Treasury Bills (with terms of [•] days or, if no such bill is issued, such bill which is issued having the term nearest to [•] days) issued by the Government of the [Name of the Country] on the Monday immediately preceding such day or, if there were no Treasury Bills issued on such Monday, on the day immediately preceding such Monday on which Treasury Bills were issued;
"Agreement" means this agreement and the Schedules, as amended from time to time by an instrument in writing signed by or on behalf of the Parties;
"Ambient Conditions" means …
"Ancillary Services" has the meaning ascribed to it in the Second Schedule;
"Availability" means at any time and from time to time during the Cooperation Period, the capability of the Power Station to generate electricity in accordance with this Agreement;
"Availability Fees" means Capital Recovery Fees and Fixed Operating and Maintenance Fees;
"Bid Submission Date" means the last date and time for the submission of bids in response to the invitation ;
"Billing Period" means a period commencing immediately after the taking of a photograph of the electricity meters on the [•]th day of a Calendar Month pursuant to the Seventh Schedule and ending upon the taking of such a photograph on the [•]th day of the next Calendar Month. However, the first Billing Period shall commence on the taking of such a photograph as soon as practicable on or after the Completion Date and end on the next [•]th day of a Calendar Month, and the last Billing Period shall end upon the taking of such a photograph on the last day of the Cooperation Period;
"Block" has the meaning ascribed to such term in paragraph 1.1.3 of Section 1 of the First Schedule;
"Business Day" means any day (other than a Saturday or Sunday) on which banks are authorized to be open for business in [Name of the City] and [Name of the City];
"Buyout Date" means the date [•] Months after a Buyout Notice is given;
"Buyout Notice" means a notice so described and given by [BBB] or the Generator as permitted by Article 8;
"Buyout Price" has the meaning ascribed to it in Article 8.4 a.;
"Calendar Month" means a Month commencing on the first day of a month;
"Calendar Year" means a Year commencing on January 1;
"Capital Recovery Fees" means the fees so described in the Eighth Schedule;
"Change of Law" has the meaning ascribed to it in Article 7.4 a.;
"Change of Law Cost" has the meaning ascribed to such term in clause b.bb. of the definition of Additional GFM Cost;
"Commissioning Activities" has the meaning ascribed to it in Section IV of the Thirteenth Schedule.
"Competent Authority" means:
a. [Name of the Department] of the Government of the [Name of the Country], [Name of the Council] of [Name of the Country], [Name of the Bank], [Name of the Council], the City Council and the Provincial Board; and
b. the Government of [Name of the Country] or of any subdivision thereof and any other minister or governmental, quasi-governmental, electricity supply industry or other regulatory department, body, instrumentality, agency or authority of [Name of the Country] or of any subdivision thereof having jurisdiction over this Agreement, a Party or any asset or transaction mentioned in or contemplated by this Agreement,
but not including [BBB] acting in its commercial capacity by exercising its rights or discharging its obligations pursuant to this Agreement or any other agreement entered into by [BBB] pursuant to or in connection with this Agreement and/or the Power Station;
"Completion Date" means, subject to Articles 4.4 and 4.5 and the Power Station having otherwise been Constructed in accordance with this Agreement, [•] days after the date on which:
a. the Completion Tests have been duly conducted and completed in accordance with the international test standards and acceptance criteria as specified in the Thirteenth Schedule; and
b. the Completion Tests have demonstrated that …
but not before the Target Completion Date;
"Completion Tests" means the tests described in Parts A and B of Table 13.1 of the Thirteenth Schedule;
"Consent" means any permission, licence, authority, approval or consent (including the Environmental Compliance Certificate and including advice that there is no objection to a particular proposal or that a particular proposal is not inconsistent with the policy or guidelines) of any Competent Authority and, where a Competent Authority is authorized to prohibit a proposal, the passing of the time limited for such prohibition without the proposal being prohibited;
"Construct" means investigate and survey (including, in relation to the Power Station, the Site), design, furnish, procure, construct, install, Test and otherwise commission in accordance with this Agreement so that the Facility concerned may at all material times be Operated in accordance with this Agreement;
"Construction Contract" means the principal contracts made by the Generator for the Construction of the Power Station;
"Construction Performance Security" means an instrument in the form of the Sixteenth Schedule given by a financial institution acceptable to (or previously approved for the purposes of this Agreement and this Security by) [BBB];
"Contract Signing Date" means [•], 20[•];
"Contract Year" means a Year commencing on the Completion Date or an anniversary thereof. However, the last Contract Year shall end on termination of this Agreement;
"Contractors" includes suppliers and sub-contractors;
"Cooperation Period" means the period commencing on the Completion Date and ending on the earliest of:
a. the Transfer Date;
b. in any case where a Buyout Notice shall have been delivered, the date of completion of the transfer of the Generator's Interest resulting from such Buyout Notice in accordance with Article 8.1 a.; and
c. in the case of any termination of this Agreement pursuant to Article 12.6, the date of completion of the transfer of the Generator's Interest resulting therefrom in accordance with Article 12.6 e.;
"Deemed Completion Costs" means any cost and expense of demobilisation and remobilisation of the Contractors party to the Construction Contract, any storage, cancellation, standby or delay charges, costs or fees charged by such Contractors, any increased or escalated cost of services and materials incurred by the Generator, but excluding any costs of reconditioning the Power Station having been operated on Diesel Fuel so it may be operated on Natural Gas in accordance with this Agreement, incurred by the Generator, which costs, expenses and fees:
a. are additional to the costs, expenses and fees which the Generator would have incurred if the event giving rise to the occurrence of the Deemed Completion Date in accordance with Article 4.5 had not happened; and
b. shall not include any amount in respect of interest payable by the Generator pursuant to the Lending Agreements or to any other creditor of the Generator;
"Deemed Completion Cost Excess" has the meaning ascribed to such term in Article 4.8 b.;
"Deemed Completion Date" has the meaning ascribed to such term in Article 4.5 a.;
"Delivery Point" means the metering point on the high voltage side of the main transformer;
"Development Security" means an instrument in the form of the Seventeenth Schedule given by a financial institution acceptable to (or previously approved for the purposes of this Agreement and this Security by) [BBB];
"Diesel Fuel" means Distillate No. 2 fuel oil meeting the Fuel specifications therefor in the Fourth Schedule;
"Diesel Fuel Pipeline" means two unloading arms, a receiving hose and a receiving pipeline to receive Diesel Fuel from a barge moored at the Jetty and to transport such Diesel Fuel to Diesel Fuel storage tanks on the Site;
"Direct Agreement with Lenders" means the agreement between [BBB] and the Lenders as mentioned in Article 2.5 b.;
"Dispatch Interruption Event" means, with respect to any dispatch by [BBB] of the Power Station or any Block thereof required pursuant to Article 5.2 e., any interruption or cessation thereof for reasons attributable to grid stability or safety, Force Majeure affecting [BBB], or any other operational requirement or constraint of, or condition affecting, [BBB] (including any reduction of dispatch of the Power Station or any Block thereof below the levels required pursuant to Article 5.2 e. for any reason whatsoever so long as such reason is not attributable to the Generator);
"Dollars" and "US$" means the lawful currency of the
"Economic Cost" means any of the following incurred as a direct result of any Permitted Change requested by [BBB]:
a. increased obligation on the part of the Generator to pay any amount to any third party (including any Contractor party to the Construction Contract, any Competent Authority, any Lender, any Affiliate of the Generator, any Proponent or any Affiliate of any Proponent);
b. reduction in the Availability Fees or other amounts payable by [BBB] pursuant to this Agreement (including as a result of any delay in the occurrence of the Completion Date or any diminished Availability); or
c. increase in the cost to the Generator of Constructing, Operating and/or Maintaining the Power Station,
the amount of which:
i. when calculated individually and without regard to any other prior or contemporaneous costs arising from a Permitted Change equals or exceeds $[•]; or
ii. when aggregated with all other prior and contemporaneous costs arising from a Permitted Change (each of which is less than $[•]) incurred since the Contract Signing Date, or the most recent date an Economic Cost under this subparagraph ii. was incurred, equals or exceeds $[•],
and, in either case,
aa. which the Generator has, in each case, taken commercially reasonable steps available to it to reduce or mitigate; and
bb. which takes account of any saving or benefit accruing to the Generator as a result of the implementation of the Permitted Change.
For purposes of determining whether any [Currency]-denominated cost arising from a Permitted Change constitutes an Economic Cost, such [Currency]-denominated cost shall be expressed in Dollars at the [Currency]-to-Dollar reference rate published by the [Name of the Bank] for the day on which such [Currency]-denominated cost is incurred by the Generator, or, if no such rate is published by the [Name of the Bank], at the daily weighted average [Currency]-to-Dollar exchange rate of all [Currency]-to-Dollar foreign exchange transactions consummated through the [Name of the Country] Dealing System, as published in Page [•] of the Telerate monitor, at [Time] of the day on which such [Currency]-denominated cost is incurred by the Generator.
"Effective Date" has the meaning ascribed to it in Article 2;
"Emergency" means a failure in the continuous supply of electricity in the grid on or after the Completion Date which reasonably requires [BBB] to request the Generator to supply it with power as soon as practicable;
"Energy Fees" has the meaning ascribed to it in the Eighth Schedule;
"Environmental Compliance Certificate" means the certification issued, or to be issued, by the Department of Environment and Natural Resources for the Power Station;
"EPC Guarantee Tests" has the meaning ascribed to it in Article 5.2 e.;
"Expert" means a person or persons chosen and appointed as such in accordance with Article 14;
"Facilities" means buildings, improvements, plant, machinery, equipment, tools, cables, stores, spares, supplies, materials and work;
"Financial Closing" means the event mentioned in Article 2.5;
"Fixed Operating and Maintenance Fees" has the meaning ascribed to it in the Eighth Schedule;
"Force Majeure" has the meaning ascribed to it in Article 11;
"Forced Outage" has the meaning ascribed to it in the Sixth Schedule;
"Fuel" means Natural Gas and/or Diesel Fuel as the context requires;
"Fuel Delivery Point" means, in respect of Natural Gas, the inlet flange of the Natural Gas receiving facilities at the Power Station and, in respect of Diesel Fuel, means the inlet flange of either of the [•] unloading arms forming part of the Diesel Fuel Pipeline;
"Fuel Supplier" means a supplier of Fuel under a Fuel Supply Contract;
"Fuel Supply and Management Agreement" and "FSMA" mean the fuel supply and management agreement entered or to be entered into by the Parties;
"Fuel Supply Contract" means, in the case of Natural Gas, the Agreement for Sale and Purchase of Natural Gas dated [•], 20[•] among [BBB], [•] Inc.. and [•] Inc. or any other agreement made by [BBB] for the supply of Natural Gas to the Power Station, and in the case of Diesel Fuel, any agreement made by [BBB] for the supply of Diesel Fuel to the Power Station;
"Generator's Interest" means the Power Station, and all tangible and intangible personal and property rights and interests used by the Generator or held for use by the Generator in the Construction, Operation and Maintenance thereof, including manuals, logs, drawings and other information and data however held or stored, and this Agreement;
"Good Operating Procedures" means relevant practices, procedures and methods conforming to Law and otherwise generally engaged in or approved by the international electric power supply industry in the course of constructing, operating and maintaining private power generation systems that, at any particular time, in the exercise of reasonable judgment by a skilled and experienced person seeking in good faith to perform its contractual obligations and in the light of the facts which are known or which should reasonably have been known at the time a decision is made, would be expected to accomplish the desired result in a manner consistent with safety, reliability, environmental protection, economy, expedition and, in the case of the Generator, the interests of [BBB] under Article 8. Such practices, procedures and methods may evolve over time but generally modified practices, procedures and methods shall be applied only with prospective effect and as shall be appropriate for a power station of the age and condition of the Power Station. With respect to the Power Station, and without prejudice to the generality of the foregoing, Good Operating Procedures shall include:
a. maintenance of materials, resources and supplies adequate to meet the Power Station's needs under normal conditions and reasonably foreseeable abnormal conditions;
b. the availability of sufficient operating personnel adequately experienced and trained to Operate and Maintain the Power Station properly, efficiently and within the manufacturer's guidelines and specifications and capable of responding to emergency conditions;
c. the conduct of preventive, routine and non-routine Maintenance on a basis that ensures reliable, long term and safe operation by knowledgeable, trained and experienced personnel utilizing proper equipment, tools and procedures;
d. appropriate monitoring and testing to ensure that equipment is functioning as designed and to provide assurance that equipment will function properly under both normal and emergency conditions; and
e. the operation of equipment in a safe manner and in a manner safe to workers, the general public and the environment, and with regard to defined limitations such as pressure, temperature, moisture content, chemical content, operating voltage, current frequency, rotational speed, polarity, synchronization and control system limits;
"GIF Commencement Date" has the meaning ascribed to such term in Article 6.5;
"Government Force Majeure" has the meaning ascribed to it in Article 11;
“GSIS” means the Government Service Insurance System;
"GSIS Insurance" means all insurances obtained and maintained by the Generator pursuant to Article 10.1 with GSIS to the extent not reinsured but retained by GSIS;
"Guaranteed Net Contracted Capacity" or "GNCC" means [•] MW of total net generating capacity on a continuous and reliable basis, measured at the Delivery Point with all generating units operating in a steady state condition at the Site at Ambient Conditions;
"Guaranteed Plant Net Heat Rate" or "GPNHR" means a Plant Net Heat Rate in kJ/kWh, based on Guaranteed Net Contracted Capacity and Lower Heating Value, as adjusted for partial loads by reference to the Guaranteed Plant Net Heat Rate table, all as mentioned in the Fourth Schedule and as adjusted in accordance with paragraph 3 of Section IV of the Eighth Schedule;
"Guarantee Tests" means the Tests described in Part A of Table 13.1 of the Thirteenth Schedule;
"Jetty" means an unloading ramp facility for the safe mooring of a barge ship;
"Law" means all laws, ordinances, statutes, rules, orders, decrees, injunctions, international agreements, regulations and opinions having the force of law in [Name of the Country], any and all Consents and [BBB]'s requirements generally applicable to power plants in [Name of the City] in [Name of the Country] for the safe and secure operation of the grid;
"Lender" means a financial institution or other entity (but not any Proponent or any Affiliate of the Generator or any Affiliate of any Proponent) which provides loans or extends credit or other financing to the Generator, or is committed to provide any such loans, credit or financing, for the Construction, Operation and/or Maintenance of the Power Station, (including:
a. any government ministry, export credit, bilateral or multilateral agency or any other person providing political risk insurance or a comprehensive guarantee to any other Lender; and
b. any counterparty to any interest rate swap, cap or collar agreement entered into with the Generator for the purpose of hedging interest rate exposure under Lending Agreements with Lenders),
which loans, credit or other financing may be secured by a first ranking lien over the Generator's Interest;
"Lending Agreement" means a loan agreement, note, bond, indenture, security agreement, swap agreement or any other instrument relating to the loans, extension of credit or other financing to the Generator for the financing of the Construction, Operation and/or Maintenance of the Power Station by a Lender;
"Lending Agreement Repayment Date" means the later of:
a. the date upon which all amounts owing or outstanding to the Lenders pursuant to the Lending Agreements have been indefeasibly paid in full, as notified by the Lenders to [BBB] pursuant to the Direct Agreement with Lenders (which date may reflect any deferral, extension, forbearance or restructuring of any indebtedness owed by the Generator to the Lenders as a consequence of any payment default thereon or in order to avoid such a default); or
b. if any credit or other financing extended by one or more of the Lenders to the Generator is refinanced, the date upon which all amounts owing or outstanding to the Lender(s) providing such refinancing to the Generator (each hereinafter a "Refinancing Lender") have been indefeasibly paid in full, as notified to [BBB] by such Refinancing Lender(s) or any agent therefor (which date may reflect any deferral, extension, forbearance or restructuring of any indebtedness owed by the Generator to any Refinancing Lender); provided, however, that if the final maturity date of the indebtedness owed to any Refinancing Lender is later than the final maturity date for the indebtedness of the applicable Lender whose indebtedness was refinanced by such Refinancing Lender (each hereinafter a "Replaced Lender"), such Replaced Lender (or any agent therefor) shall have furnished [BBB] with prior written notice of such refinancing specifying the extended final maturity date for the indebtedness of its Refinancing Lender(s) and additionally indicating that, in the opinion of such Replaced Lender, such extension of the final maturity date is necessary to achieve the desired economics of the refinancing; the parties expressly understand and agree that none of the following transactions shall constitute a "refinancing" for purposes of this definition: (i) any syndication of the senior loans to the Generator held by commercial bank Lenders or by any Lender that is an Affiliate of a commercial bank or any other transfer or assignment by any such Lender of all or any portion of such senior loans or any obligation to make any such senior loans, (ii) any takeout by [Name of the Bank] of the Lenders providing senior loans to the Generator; (iii) any prepayment, repayment or other substitution of any Lender requesting compensation or indemnification from the Generator for additional costs (including taxes and capital adequacy costs, among other things) if and to the extent such prepayment, repayment or other substitution is intended to reduce the Generator’s liability for such additional costs; (iv) any prepayment or repayment made to any Lender as a result of any unlawfulness or purported unlawfulness of such Lender’s maintenance of commitments, or funding or maintenance of loans under its Lending Agreements; or (v) any deferral, extension, forbearance or restructuring of any indebtedness owed by the Generator to the Lenders as a consequence of any payment default thereon or in order to avoid such a default;
"Lower Heating Value" means the value so described in the Fourth Schedule;
"Maintain" means maintain in good working order and condition in accordance with this Agreement and, as necessary therefor, repair, replace, reinstate, Test and, if necessary to comply with Law, Construct from time to time, so that the Facility concerned may be Operated at all material times in accordance with this Agreement;
"Major Overhaul" means each:
a. inspection and overhaul of the Gas Turbines indicated at MI (Major Inspection) in the major inspection chart set out in Attachment 2 to Section 1 of the First Schedule, which is carried out approximately every [•] equivalent operating hours; and
b. inspection and overhaul of the Steam Turbines and other Equipment (other than Gas Turbines) indicated as MI (Major Inspection) in the major inspection chart set out in Attachment 2 to Section 1 of the First Schedule, which is carried out approximately every [•] equivalent operating hours;
"Material Reduction" means a reduction in either:
a. the Generator's economic return (before all [Name of the Country] taxes, including those imposed on income, profit or gain, but after [Name of the Country] interest withholding taxes) on its investment in the Project; or
b. the Generator's net cash-flow (before all [Name of the Country] taxes, including those imposed on income, profit or gain, but after [Name of the Country] interest withholding taxes) available to pay amounts owed to the Lenders,
in each case resulting from the incurrence of any Change of Law Cost, the amount of which reduction:
i. when calculated individually and without regard to any other prior or contemporaneous reduction resulting from the incurrence of any other Change of Law Cost equals or exceeds $[•]; or
ii. when aggregated with the amounts of all other prior and contemporaneous reductions (each of which is less than $[•]) directly resulting from the incurrence of all Change of Law Costs since the Contract Signing Date, or the most recent date a Change of Law Cost resulting in a Material Reduction under this subparagraph ii. was incurred, equals or exceeds $[•].
For purposes of determining whether any "Material Reduction" shall have occurred in connection with any [Currency]-denominated Change of Law Cost, such Change of Law Cost shall be expressed in Dollars at the [Currency]-to-Dollar reference rate published by the [Name of the Bank] for the day such Change of Law Cost is incurred by the Generator, or if no such rate is published by the [Name of the Bank], the daily weighted average [Currency]-to-Dollar exchange rate of all [Currency]-to-Dollar foreign exchange transactions consummated through the [Name of the Country] Dealing System, as published in Page [•] of the Telerate monitor, at [Time] of the day on which such Change of Law Cost is incurred by the Generator;
"Milestone" means an obligation of the Generator as mentioned in Article 2.2 a.;
"Month" means a period of one month according to the Gregorian calendar commencing on any day of a month;
"MOA Regarding the Foreshore Lease" means the Memorandum of Agreement between [BBB] and the Generator relating to, inter alia, the foreshore lease for the Project, dated [•], and attached hereto as the Nineteenth Schedule.
"Natural Gas" means natural gas meeting the Fuel specifications therefor in the Fourth Schedule;
"Natural Gas Pipeline" means the natural gas pipeline described in the Fifth Schedule;
"Natural Gas Pipeline Completion Date" means the day after the date on which the Natural Gas Pipeline has been Constructed and is ready to transport Natural Gas to the Power Station on a continuous and reliable basis;
"Net Available Capacity" means the total net generating capacity of the Power Station (expressed in MW) on a continuous and reliable basis, measured at the Delivery Point, adjusted to Ambient Conditions and as demonstrated (as at the Completion Date) by the Completion Tests and thereafter as demonstrated by the last Performance Test successfully carried out, but not greater than Guaranteed Net Contracted Capacity;
"Net Buyout Amount" has the meaning ascribed to such term in Article 8.3.
"Net Electrical Output" means the electrical output of the Power Station net of station load, measured at the Delivery Point;
"[BBB] Required Block Output Level" has the meaning ascribed to it in Article 5.2 e.;
"[BBB] Site" means the site for the Power Station as more particularly described in the First Schedule;
"[BBB] Systems Operations" means [BBB] Systems Operations or such other operations facility of [BBB] as shall succeed to the responsibilities thereof in regard to the Power Station and as [BBB] shall notify the Generator from time to time;
"Operate" means operate in accordance with this Agreement and, in the case of the Power Station, means to fuel (subject to the performance by [BBB] of its obligations under this Agreement) and so operate, but excludes Testing;
"Operating Parameters" means the operating parameters mentioned in the Second Schedule;
"Operation and Maintenance Security" means an instrument in the form of the Eighteenth Schedule given by a financial institution acceptable to (or previously approved for the purposes of this Agreement and this Security by) [BBB];
"O&M Contract" means the principal contracts made by the Generator for the Operation and Maintenance of the Power Station;
"Original Lending Agreement Execution Date" means the date of execution of the original Lending Agreements, as notified to [BBB] by the Generator.
"Performance Tests" means the Tests described as such in the Thirteenth Schedule for the purpose of demonstrating the Net Available Capacity;
"Performance Undertaking" means an undertaking by the [Name of the Country] substantially in the form set forth in the Tenth Schedule;
"Period" has the meaning ascribed to such term in Article 6.5;
"Permitted Change" has the meaning ascribed to such term in Article 3.6.a.ii.
"[Currency]" means the lawful currency of the [Name of the Country];
"Pioneer Status" means …
"Plant Net Heat Rate" means the fuel-heat input (based on Lower Heating Value) required to generate a [•] kWh of Net Electrical Output, measured:
a. in the case of Natural Gas, by calculation based on a continuous analysis of the Natural Gas components by a gas-chromatograph forming part of the Power Station, and continuous measurement of the fuel flows at each generating unit;
b. in the case of Diesel Fuel, by calculation based on laboratory analysis of quality and continuous measurement of the Fuel flows at each generating unit; and
c. in the case of electricity, at the Delivery Point,
adjusted to Ambient Conditions and expressed in kJ/kWh;
"Power Station" means a Natural Gas and Diesel Fuel fired combined cycle generating plant Constructed predominantly on the [BBB] Site and having the Guaranteed Net Contracted Capacity of [•]MW, and all other Facilities Constructed or to be Constructed in respect thereof by the Generator to enable the Generator to fulfill its obligations under this Agreement, and including the Switchyard Facilities, Access Road, Diesel Fuel Pipeline and Jetty and, unless the context otherwise requires, the Site;
"Project" means the Construction, Operation and Maintenance of the Power Station;
"Proponent" means the person mentioned in Recital C, and any other owner of the share capital of the Generator from time to time or other person who is a "Proponent" in accordance with the terms of the Proponent's Agreement including any transferee of such share capital upon any exercise of remedies available to the Lenders in respect of such share capital but excluding the Lenders or any trustee or collateral agent acting for the Lenders upon exercise of any such remedies;
"Proponent's Agreement" means an agreement among [BBB], the Proponent and the Generator in the form set out in the Eleventh Schedule;
"Rating Agency" has the meaning ascribed to such term in Article 12.1 a.;
"Reliability Test" means the Test described in Part C of Table 13.1 of the Thirteenth Schedule;
"Replacement Date" has the meaning ascribed to it in Article 2.3 b.;
"Security" means the Construction Performance Security, the Development Security or the Operation and Maintenance Security, as the context requires;
"Site" means the [BBB] Site and such other land and/or rights in respect of land as the Generator shall acquire for the Construction, Operation and Maintenance of the Power Station;
"Switchyard Facilities" means those Facilities necessary to interconnect the Power Station with (and capable of delivering the power generated to) the Transmission Line, including the switch yard, take-off gantry, protective relays, protection control equipment, communications facilities, meters and other measuring equipment, and other related equipment;
"Target Completion Date" means, subject to Articles 2.2 a.v., 4.4, 4.5 and 11.6, [•], 20[•];
"Target Diesel Fuel Availability Date" means, subject to Article 11.6, [•] Months before the Target Completion Date;
"Target Natural Gas Pipeline Completion Date" means, subject to Article 11.6, [•] Months before the Target Completion Date;
"Target Transmission Line Completion Date" means, subject to Article 11.6, nine (9) Months before the Target Completion Date;
"Termination Price" has the meaning ascribed to it in Article 12.6 a.;
"Test" means:
a. in relation to the Power Station, any test of the Power Station (or any part thereof, wherever situated and whether or not then incorporated therein) required by the Thirteenth Schedule or otherwise by this Agreement, including the Commissioning Activities, and, unless the context otherwise requires, the test procedure, test documentation, criteria of satisfaction, procedures, standards, protective settings, duration and programme; and
b. in relation to the Natural Gas Pipeline and the Transmission Line, any test thereof (or any part thereof, wherever situated and whether or not then incorporated therein) required by this Agreement, and, unless the context otherwise requires, the test procedure, test documentation, criteria of satisfaction, procedures, standards, protective settings, duration and programme;
"Transfer Date" means, subject to Section VI of the Eighth Schedule, the twentieth anniversary of the Completion Date (or, if earlier, the twentieth anniversary of the Target Completion Date). However, the Transfer Date shall be extended by such period (calculated as at the date it would otherwise occur, including at the end of any period of extension) as would permit the Generator (on the basis of Guaranteed Net Contracted Capacity, Allowed Maintenance Downtime (without regard to paragraph b. in the definition thereof) and Allowed Forced Outage Downtime (both as defined in the Sixth Schedule)) to make up Force Majeure Outage (as defined in the Sixth Schedule) occurring prior thereto;
"Transmission Line" means the transmission line, substations and other related equipment as mentioned in the Fifth Schedule;
"Transmission Line Completion Date" means the day after the date on which the Transmission Line has been Constructed and is ready to transmit electricity generated by the Power Station on a continuous and reliable basis;
"Uninsurable" means, in relation to any risk in respect of which the Generator is required to obtain and maintain insurance pursuant to this Agreement, that the terms on which such insurance is offered to the Generator are so unfavourable as to render it commercially unreasonable for the Generator to obtain or maintain insurance in respect of such risk;
"Weighted Average Cost of Capital" means, as of any date of determination, the Generator's weighted average cost of capital, determined utilising the following assumptions:
a. with respect to the equity component of the Generator's investment in the Project, [•] per cent ([•]%) per annum; and
b. with respect to the debt component of the Generator's investment in the Project, the then-current per annum weighted average rate of interest payable by the Generator under the Lending Agreements including any fees payable by the Generator under the Lending Agreements for the calendar year in which the Buyout Notice is given but excluding any default margin in respect thereof attributable to the pendency of a purchase by [BBB] of the Generator's Interest pursuant to Article 8 of this Agreement or to any of the circumstances which resulted in the delivery of the applicable Buyout Notice pursuant to Article 8.7;
"Year" means a period of one year according to the Gregorian calendar commencing on any day of a year; and
"[•] % Block Output Level" has the meaning ascribed to such term in Article 5.2 e.
1.2 Headings
As used herein, headings are for convenience and do not form part of, and shall not affect the interpretation of, this Agreement.
1.3 Interpretation
In this Agreement, unless the context otherwise requires:
a. the singular includes the plural and vice versa;
b. any gender includes the others and "person" includes a corporation or other legal entity;
c. reference to a Law is to the same as amended, modified or replaced from time to time and to any law, ordinance, statute, rule, order, decree, injunction, international agreement or regulation made thereunder and opinions (having the force of law) thereon;
d. reference to a Consent is to the same as amended, modified or replaced from time to time, and to any proper order, instruction, requirement or decision of any Competent Authority thereunder;
e. reference to an agreement or instrument is to the same as amended, novated, modified or replaced from time to time;
f. reference to a Party is to a party to this Agreement, its successors and permitted assigns;
g. reference to a Recital, Article, paragraph, Schedule or Section is to a recital, article, paragraph, schedule or section of or to this Agreement;
h. reference to "above" or "below" is to the first occurrence above or below the reference;
i. reference to a document or agreement in "the agreed form" is to a document or agreement in the form and terms agreed by the Parties;
j. where a word or expression is defined (including in this Article 1.3), cognate words and expressions shall be construed accordingly;
k. "including" shall not be construed as being by way of limitation and "otherwise" shall not be construed as limited by words with which it is associated;
l. any reference to a governmental ministry, department, authority or agency shall be construed as including a reference to any governmental ministry, department, authority or agency which succeeds to the functions thereof;
m. the word "reasonable" appearing before "approval", "consent", "satisfaction" or any similar word shall mean that the approval, consent, expression of satisfaction or other decision to be made as to the particular matter or thing concerned shall not unreasonably be withheld or delayed. Conversely, if the word "reasonable" does not so appear, the approval, consent, expression of satisfaction or other decision to be made may be given or made solely at the unfettered discretion of the Party concerned;
n. the expression "to the best of its knowledge" shall mean to the best of the knowledge and belief of the Party concerned, having made all due and reasonable enquiry; and
o. "indemnify" includes "defend and hold harmless".
1.4 Further Definitions
In this Agreement and the Recitals, "MW" denotes a megawatt; "MWh" denotes a megawatt hour; "kW" denotes a kilowatt; "kWh" or "KWHR" denotes a kilowatt hour; "kW-Month" denotes a kilowatt month; "kV" denotes a kilovolt; "dwt" denotes a deadweight in tonnes; "kVA" denotes a Kilovolt-ampere; "kJ" denotes kilojoules; and "GJ" denotes gigajoules.
1.5 Schedules
Schedules attached to and made a part of this Agreement:
First Schedule: Project Scope and Specifications
Second Schedule: Operating Parameters
Third Schedule: Liquidated Damages for Delay
Fourth Schedule: Fuel Specifications and Guaranteed Plant Net Heat Rate
Fifth Schedule: A. Transmission Line
B. Natural Gas Pipeline
Sixth Schedule: Electricity Delivery Procedures
Seventh Schedule: Measurement and Recording of Electricity
Eighth Schedule: Availability Fees and Energy Fees
Ninth Schedule: Insurance
Tenth Schedule: Form of Performance Undertaking
Eleventh Schedule: A. Proponent's Agreement
B. Direct Agreement with Lenders
Twelfth Schedule: Form of Legal Opinion of [BBB]'s General Counsel
Thirteenth Schedule: Tests and Test Procedures
Fourteenth Schedule: Sample Calculations
Fifteenth Schedule: Environmental Criteria
Sixteenth Schedule: Construction Performance Security
Seventeenth Schedule: Development Security
Eighteenth Schedule: Operation and Maintenance Security
Nineteenth Schedule: MOA Regarding the Foreshore Lease
The main body of this Agreement shall prevail to the extent of any conflict or inconsistency with a Schedule.
ARTICLE 2. EFFECTIVE DATE, MILESTONES AND TERM
2.1 Effective Date
a. Immediately upon execution of this Agreement by the Parties, the Generator shall deliver to [BBB]:
i. copies of the memorandum and articles of incorporation of the Generator (in form and terms reasonably satisfactory to [BBB]), certified as true and correct by a director of the Generator (in form and terms reasonably satisfactory to [BBB]);
ii. a certificate of a director of the Generator (in form and terms reasonably satisfactory to [BBB]) confirming the approval of the board of directors of the Generator to the execution, delivery and performance by the Generator of this Agreement;
iii. the Proponent's Agreement signed by all persons (other than [BBB]) expressed to be party thereto, subject to no condition other than the occurrence of the Effective Date; and [BBB] promptly shall sign the Proponent's Agreement;
iv. in respect of the Proponent and the Generator, a certificate of a director (or other duly authorized officer reasonably acceptable to [BBB]) of the Proponent and of the Generator (as the case may be) (in form and terms reasonably satisfactory to [BBB]) confirming the approval of the board of directors (or other management body reasonably acceptable to [BBB]) of the Proponent and of the Generator (as the case may be) to the execution, delivery and performance by the Proponent or the Generator (as the case may be) of the Proponent's Agreement;
v. if so required by [BBB] and without prejudice to Article 2.5 and the Eleventh Schedule Section B, a first ranking lien over the Generator's Interest to secure the performance of the Generator's obligations under this Agreement (in form and terms reasonably satisfactory to [BBB]); and
vi. the Development Security,
except to the extent waived by [BBB]. If the Generator fails so to do, this Agreement shall immediately terminate and be of no force or effect.
b. The Effective Date shall be the date on which last occurs the following ("Conditions Precedent"):
i. the delivery to the Generator of a certificate of the Corporate Secretary of [BBB] confirming the approval of the Board of [BBB] to the execution, delivery and performance by [BBB] of this Agreement;
ii. the delivery to the Generator of a legal opinion of the General Counsel of [BBB] in the form and terms of the Twelfth Schedule;
iii. the delivery to the Generator of the Performance Undertaking and the delivery to the Generator of a legal opinion of the Secretary of Justice of the [Name of the Country] as to the validity, enforceability and binding effect of the Performance Undertaking; and
iv. a contract made by [BBB] for the supply of Natural Gas to the Power Station coming into full force and effect (save only for any condition relating to Financial Closing under this Agreement).
c. If any Condition Precedent has not occurred only because the Effective Date has not occurred, the Condition Precedent shall be deemed to have occurred. No Party shall have any obligation to the other Party except as mentioned in this Article 2.1 until the Effective Date. However, all other provisions of this Agreement related to the full enjoyment and enforcement of the obligations mentioned in this Article 2.1 (including those in relation to dispute resolution and the giving of notices) shall be effective on and from the Contract Signing Date to the extent they so relate.
d. If the Conditions Precedent mentioned in paragraphs b. i., ii. and iii. above have not been satisfied within [•] Months after the Contract Signing Date, this Agreement shall terminate (unless the Parties otherwise agree) and be of no further force or effect and each Party shall bear its own costs and expenses.
e. If the Condition Precedent mentioned in paragraph b. iv. above has not been satisfied on or before [•], 20[•], or if the contract referred to in that paragraph is terminated prior to the earlier of Financial Closing and [•], 20[•], other than as a result of a failure by the Generator to fulfil an obligation under this Agreement, this Agreement shall terminate (unless the Parties otherwise agree) and be of no further force or effect and each Party shall bear its own costs and expenses.
f. Notwithstanding paragraph d. above, [BBB] shall use its reasonable efforts to satisfy or cause to be satisfied the Conditions Precedent mentioned in paragraphs b.i. to b.iii. above. In the event that this Agreement is terminated in accordance with paragraph d. or e. above, [BBB] shall immediately return the Development Security to the Generator.
2.2 Project Milestone Dates
a. The Generator shall:
i. Consents Application Date: prior to the later of [•], 20[•] and the date which is [•] months after the Effective Date, make (and thereafter diligently pursue) proper application for all Consents required by it to perform its obligations under this Agreement. This requirement shall not apply to a Consent which, by its nature, cannot be applied for until a later date if the Generator advises [BBB] that, to the best of its knowledge, the Consent concerned will be forthcoming as and when required by (and on terms acceptable to) it and the Generator makes (and thereafter diligently pursues) proper application therefor at the appropriate time. On or before the date which is one month prior to such date, [BBB] shall, following a request from the Generator, use its reasonable endeavours to inform the Generator of any Consents of which it is aware that have not been applied for by the Generator in a timely manner;
ii. Environmental Compliance Certificate Application: prior to the later of [•], 20[•] and the date which is [•] months after the Effective Date, make (and thereafter diligently pursue) proper application for the Environmental Compliance Certificate with a view to its being issued as soon as practicable;
iii. Financial Closing: on or before [•], 20[•], deliver the Construction Performance Security to [BBB] and otherwise procure Financial Closing. Notwithstanding anything to the contrary elsewhere contained in this Agreement, Financial Closing shall not occur until the Generator has so delivered that Security;
iv. Site Mobilisation: on or before [•] Months after Financial Closing, begin, and thereafter diligently continue, construction activities on the Site which demonstrate, to the reasonable satisfaction of [BBB], that it has begun (and intends diligently to pursue) construction of the Power Station on the Site;
v. Target Completion Date: ensure that the Completion Date occurs on the Target Completion Date. However, the Target Completion Date shall be extended by any period of delay (after [•] Months after the Contract Signing Date) in the Effective Date occurring; and
vi. on the Completion Date, deliver the Operation and Maintenance Security to [BBB]. Notwithstanding anything to the contrary elsewhere contained in this Agreement, the Completion Date shall not occur until the Generator has so delivered that Security.
For the purpose of the foregoing provision, the events referred to in paragraph iv. above shall be deemed to have occurred with the issuance of a notice to proceed with construction activity on the Site from the Generator to the Contractor, and the onsite arrival of Site clearing equipment and the commencement of clearing activities. A copy of the notice to proceed and written notification with the dates of the arrival of Site clearing equipment and the commencement of clearing activities shall be provided to [BBB] by the Generator. Following such events, [BBB] shall promptly acknowledge in writing that the Site mobilization milestone has been accomplished.
b. If, subject to Article 11.6, the Generator fails to perform an obligation under paragraph a. above, it shall pay to [BBB] the amounts and at the times mentioned in the Third Schedule. However, in the case of amounts paid before the Completion Date, [BBB] shall refund the amount concerned to the Generator, without interest, if the Completion Date occurs on the Target Completion Date. The Generator acknowledges that this is reasonable security required by [BBB] in the light of its responsibilities and reflects, in the case of paragraphs a. i., ii., iii. and iv. above, the possibility that the Completion Date will not occur on the Target Completion Date and that electricity from the Power Station will not be available to it on that date; in the case of paragraph a. v. above, that electricity from the Power Station will not be available to it on the Target Completion Date; and, in the case of paragraph a. vi. above, that [BBB] will not have security for the performance of the Generator's obligations after the Completion Date.
2.3 Securities
a. The Securities shall be security for payment by the Generator of any sum due to [BBB] under or in connection with or arising out of this Agreement or the Project:
i. in the case of the Development Security, to the extent accruing on or before Financial Closing, including the amounts mentioned in Article 2.2 b. (insofar as the amounts concerned are in respect of an obligation of the Generator under Articles 2.2 a.i., ii. and iii.) and (to the extent accruing on or before Financial Closing) paragraph c.i. below;
ii. in the case of the Construction Performance Security, to the extent accruing on or before the Completion Date, including the amounts mentioned in Article 2.2 b. (insofar as the amounts concerned are in respect of an obligation of the Generator under Articles 2.2 a.iv., v. and vi.) and (to the extent accruing on or before the Completion Date) paragraph c.ii. below and Articles 6.5 and 12.6. However, the Construction Performance Security shall also be security for any amount payable by the Generator pursuant to Article 4.4 c.; and
iii. in the case of the Operation and Maintenance Security, to the extent accruing after the Completion Date, including the amounts mentioned in Article 4.4 c. and (to the extent accruing after the Completion Date) paragraph c. below and Articles 6.5 and 12.6,
and the Securities shall so provide. [BBB] may make demand on a Security whether before or after demand on, and whether with or without notice to, the Generator.
b. The Construction Performance Security, the Operation and Maintenance Security, and any renewals or replacements thereof pursuant to this Article 2.3 b., shall have a period of at least [•] Year and, whilst any obligation of the Generator which any such Security is to secure may still arise, the Generator shall ensure that any such Security is renewed or replaced to its then-required value not later than the date falling [•] days before the expiration date (the "Replacement Date")..
c. i. Intentionally Omitted;
ii. If any instrument for the time being constituting the Construction Performance Security or the Operation and Maintenance Security (as the case may be) has not been renewed or replaced as required under Article 2.3 b. by the Replacement Date therefor, [BBB] shall be entitled to demand the remaining undrawn amount of the relevant Security on any day after such Replacement Date if and to the extent such instrument has not then been renewed or replaced, and any amount so received by [BBB] shall be refunded by [BBB], without interest, when the renewed or replaced instrument is delivered to it by the Generator.
iii. To the extent [BBB] makes demand and is paid under the Operation and Maintenance Security, the Generator shall promptly procure that such Security is reinstated for its full value, but not so that more than [•] Dollars shall ever be required to be paid under it. If the Generator has not done so within [•] days of any drawing upon the Operation and Maintenance Security, it shall immediately pay to [BBB] (without the necessity for demand by [BBB]) an amount equal to so much of the maximum amount contingently payable under such Security as is then current as has not then properly been demanded. Such amount shall be refunded by [BBB], without interest, when the Security concerned is so reinstated.
2.4 The [BBB] Site
a. On and from the Effective Date, [BBB] shall procure for the Generator and its Contractors such rights of entry to the [BBB] Site as will permit it reasonably to investigate and survey it for the purposes of this Agreement.
b. On and from [•], 20[•] and until the end of the Cooperation Period, but without prejudice to paragraph c. below, [BBB] shall procure for the Generator such peaceful and exclusive use and possession of the [BBB] Site as is reasonably necessary to enable it to perform its obligations under this Agreement (however, [BBB] shall be entitled to grant to the Fuel Supplier rights to use (including, if appropriate, for the installation, maintenance and monitoring of equipment used to provide Fuel to the Power Station) the [BBB] Site for the delivery of Fuel for use in the Power Station, and the Generator shall allow the Fuel Supplier, if appropriate, to use its jetty, mooring, Diesel Fuel Pipeline and other facilities for the unloading and receiving of Diesel Fuel free of charge for such purpose, all in accordance with procedures reasonably agreed by the Generator, [BBB] and/or the Fuel Supplier (as appropriate), and the Generator shall not otherwise use the [BBB] Site). [BBB] shall indemnify the Generator from and against any claim or demand (and any loss, damage, cost or expense suffered by the Generator as a result of any claim or demand) by any person as or claiming through the owner of the [BBB] Site (other than the Generator or any person claiming through the Generator).
On or before [•], 20[•], [BBB] shall, in respect of any part of the [BBB] Site to which it has not then acquired absolute legal title, commence, and thereafter diligently pursue to completion, expropriation proceedings, provided, however, in respect of any part of the [BBB] Site for which it has then entered into definite agreements to purchase from the relevant owners, [BBB] shall commence, and thereafter diligently pursue to completion, legal proceedings, including expropriation proceedings if necessary, to complete the acquisition of absolute legal title to such part of the [BBB] Site.
c. [BBB] makes no warranty or representation as to the suitability of the [BBB] Site for the Project, as to the safety thereof, nor that any Consents necessary therefor have or can be obtained. The [BBB] Site shall:
i. be made available by [BBB] to the Generator on an "as is" basis; and
ii. without prejudice to Articles 7.4, 8.7 b.i.bb., 8.7 b.ii and 15.1 (as applicable) be at the sole risk of the Generator. The Generator shall indemnify [BBB] from all liabilities and obligations as owner and occupier of the [BBB] Site arising from the Generator's occupation and use thereof, subject only to Article 7.5.
d. The Generator shall acquire all land other than the [BBB] Site and rights in respect thereof as it requires to perform its obligations under this Agreement, and all such land and rights shall be at the sole risk of the Generator.
e. [BBB] shall respond in good faith to any request by the Generator for assistance in respect of any Consent sought by the Generator for acquiring rights of way to bring water or electricity to the [BBB] Site (including lending its name to any application by the Generator), but without being under any obligation to provide any such assistance.
f. [BBB] shall, on or before the date [•] days after the Original Lending Agreement Execution Date, execute and/or deliver (as appropriate), or (to the extent that land within the [BBB] Site is not yet owned by it) obtain and make available, to the Generator:
i. certificates of vacant possession in respect of each parcel of land comprising the [BBB] Site;
ii. any [•] certificate of title covering registered land within the [BBB] Site (whether or not issued in the name of [BBB]) then in [BBB]’s possession;
iii. copies of writs of possession covering land within the [BBB] Site acquired by [BBB] through expropriation; and
iv. tax clearance certificates, tax declarations and/or property tax receipts (as appropriate) in respect of each parcel of land comprising the [BBB] Site.
In addition, [BBB] shall respond to any reasonable request from the Lenders that it deliver any other instruments, consents and approvals reasonably requested by the Generator, the Lenders or any agent for the Lenders as may be necessary to register and otherwise perfect all liens on the Generator's Interest in favour of the Lenders, provided, however:
aa. the delivery of any such instrument, consent or approval is within [BBB]'s corporate power and does not conflict with, result in a breach of, constitute a default under, or prejudice [BBB]'s rights under, any provision of its certificate of incorporation, by laws or other constituent documents or any agreement or instrument to which [BBB] is a party or by which [BBB] or its properties and assets are bound or affected; and
bb. it is possible for [BBB] to deliver or procure the delivery of any such instrument, consent or approval by the exercise of best efforts.
In addition, [BBB], at no cost to the Generator, shall obtain [•] certificates of title in [BBB]'s name in respect of all parcels of land within the [BBB] Site, provided, however, that [BBB] shall not be obliged to obtain such [•] certificates within any period of time after the date(s) referred to in the foregoing provisions of this paragraph f.
2.5 Financial Closing
a. Financial Closing shall be the time at which the Generator demonstrates, to the reasonable satisfaction of [BBB], that the financial and technical resources committed to it are adequate to perform its obligations under this Agreement, and has fulfilled its other obligations under this Article 2.5.
b. The Generator may discharge its obligation under paragraph a. above by:
i. submitting to [BBB] copies of Lending Agreements which (when taken together with the Proponent's Agreement and other financial resources of the Generator) provide financial resources adequate, in the reasonable opinion of [BBB], to perform the Generator's obligations under this Agreement. The Generator shall not refinance Project debt (including by changes to or in the instruments from time to time constituting the Lending Agreements) in such a manner as not to provide (when taken together with the Proponent's Agreement and other financial resources of the Generator and in the reasonable opinion of [BBB]) financial resources adequate to perform the Generator's obligations under this Agreement, failing which it shall have committed a Material Default (as mentioned in Article 12) and shall indemnify [BBB] from all loss or damage suffered by it as a result thereof. The Generator shall submit to [BBB] copies of (and otherwise advise it of) all such changes to the Lending Agreements within ninety days after such event, failing which it shall have committed a Material Default (as mentioned in Article 12);
ii. aa. submitting to [BBB]:
(i) copies of the contracts referred to in paragraph 1.10 of Section 1 of the First Schedule (with the pricing terms omitted) consistent, in the reasonable opinion of [BBB], with the Generator's obligations under this Agreement and for [BBB]'s approval as to the identity of the Contractors under such contracts; and
(ii) the identity of the Contractors who are to provide the equipment or services listed in paragraph 2.3 of Section 2 of the First Schedule for [BBB]'s approval, provided, however, that [BBB]'s approval shall not be necessary in respect of any equipment or services for any Contractor the name of which appears in such list as an approved Contractor for such equipment or services.
The Generator shall procure that the Construction and O&M Contracts shall at all material times be consistent, in the reasonable opinion of [BBB], with the Generator's obligations under this Agreement and be with Contractors approved by [BBB], failing which it shall have committed a Default (as mentioned in Article 12) and, if such Default is not remedied within [•] days of notice from [BBB], it shall have committed a Material Default (as mentioned in Article 12) and shall indemnify [BBB] from all losses or damages suffered by it as a result thereof. The Generator shall submit to [BBB] copies of (and otherwise advise it of) changes to Section 1 of the First Schedule and all material changes to or in the instruments from time to time constituting the Construction and O&M Contracts within ninety days after the event, failing which it shall have committed a Material Default (as mentioned in Article 12); and
bb. without prejudice to the generality of the foregoing, the Construction and O&M Contracts shall (and shall at all material times) provide that the Generator may transfer them to [BBB] pursuant to Article 8 and shall not contain terms which prevent, hinder or delay, or require any further permissions or payments or result in termination or modification in the event of, the transfer of the Generator's Interest to [BBB] pursuant to Article 8 or the exercise by [BBB] of its rights under Article 12.5, failing which the Generator shall have committed a Material Default (as mentioned in Article 12);
iii. procuring that the Contractors under the Construction and O&M Contracts confirm, in form and on terms reasonably acceptable to [BBB], their acceptance of the matters mentioned in paragraph ii. bb. above;
iv. submitting to [BBB] confirmation from the Lenders that the initial drawdown of funds under the Lending Agreements is subject to no further conditions; and
v. procuring that the Lenders enter into an agreement with [BBB] (which shall be enforceable only by the Lenders and [BBB] and not by the Generator) in the form of Section B. of the Eleventh Schedule.
c. Before Financial Closing the Generator shall obtain all Consents which it requires to perform its obligations under this Agreement, and Financial Closing shall not occur until it has done so. This requirement shall not apply to a Consent which, by its nature, cannot be obtained until a later date if the Generator advises [BBB] that, to the best of its knowledge, the Consent concerned will be forthcoming as and when required by (and on terms acceptable to) it and the Generator makes (and thereafter diligently pursues) proper application therefor at the appropriate time. [BBB] shall, at the request of the Generator, on a date not less than one month prior to [•], 20[•] (or on an earlier date if reasonably requested by the Generator), meet with the Generator and attempt to identify any Consents which have not been obtained in a timely manner.
For the purposes of this Article 2.5, a "material change" to the Construction Contract shall mean any amendment or modification thereof which could reasonably be expected to:
i. impair the ability of the Power Station to:
aa. demonstrate through the Guarantee Tests or the Performance Tests that the Net Available Capacity is not less than the Guaranteed Contracted Net Capacity or that the Plant Net Heat Rate is not greater than the Guaranteed Plant Net Heat Rate;
bb. meet the Test Acceptance Criteria or Test Standards set out in Parts A and B of Table 13.1 of the Thirteenth Schedule;
cc. Operate reliably in accordance with the requirements of this Agreement; or
ii. require any re-siting or change to, or alter, any construction obligation of [BBB] to the Generator or any third party in respect of the Transmission Line or the Natural Gas Pipeline, or otherwise modify any material interface between the construction activities of the Generator and those of [BBB],
and a "material change" to the O&M Contract shall mean any amendment or modification thereof which could reasonably be expected to result in the operation of the Power Station otherwise than in accordance with Good Operating Procedures and/or the requirements of this Agreement.
2.6 Refinancing
If, as a result of any refinancing of Project debt either the Generator or [BBB] reasonably believes that the Generator's economic return (after all [Name of the Country] taxes) on its investment in the Project will materially increase, the Parties shall promptly meet and seek, in good faith (including by the provision of information and data), to reasonably agree amendments to this Agreement which will share the economic benefit of the refinancing substantially equally between the Generator and [BBB]. The parties expressly understand and agree that (a) none of the following transactions shall constitute a "refinancing" for purposes of this Article 2.6 unless the Generator’s economic return (after all [Name of the Country] taxes) on its investment in the Project will materially increase as a result thereof: (i) any syndication of the senior loans to the Generator held by commercial bank Lenders or by any Lender that is an Affiliate of a commercial bank or any other transfer or assignment by any such Lender of all or any portion of such senior loans or any obligation to make any such senior loans, (ii) any prepayment, repayment or other substitution of any Lender requesting compensation or indemnification from the Generator for additional costs (including taxes and capital adequacy costs, among other things) if and to the extent such prepayment, repayment or other substitution is intended to reduce the Generator's liability for such additional costs; (iii) any prepayment or repayment made to any Lender as a result of any unlawfulness or purported unlawfulness of such Lenders’ maintenance of commitments, or funding or maintenance of loans, under its Lending Agreements; or (iv) any deferral, extension, forbearance or restructuring of any indebtedness owed by the Generator to the Lenders as a consequence of any payment default thereon or in order to avoid such a default, and (b) any takeout by [Name of the Bank] of the Lenders providing senior loans to the Generator shall not constitute a “refinancing” for purposes of this Article 2.6.
2.7 Termination
a. Subject to Article 2.1, this Agreement shall commence on the Contract Signing Date and shall continue (unless earlier terminated) until the Transfer Date.
b. Termination of this Agreement for any reason (including effluxion of time) shall be without prejudice to rights and obligations theretofore accrued (including such as by their nature extend beyond such termination), and all provisions of this Agreement related to the full enjoyment and enforcement of such rights and obligations (including those in relation to dispute resolution and the giving of notices) shall survive termination for the period they so relate.
ARTICLE 3. CONSTRUCTION, OPERATION AND MAINTENANCE OF FACILITIES
3.1 Power Station
The Generator shall Construct, Operate and Maintain the Power Station in accordance with the First, Second, Sixth, Thirteenth and Fifteenth Schedules and otherwise as provided in this Agreement at its cost, expense and risk and so that:
a. the Completion Date occurs on the Target Completion Date;
b. Guaranteed Net Contracted Capacity, Net Electrical Output and Ancillary Services are supplied to [BBB] at the Delivery Point during the Cooperation Period; and
c. the Plant Net Heat Rate is not greater than the Guaranteed Plant Net Heat Rate.
The Generator shall not confer upon any other person a right to electricity generated by the Power Station.
3.2 Transmission Line and Natural Gas Pipeline
a. [BBB] shall Construct, Operate and Maintain the Transmission Line and the Natural Gas Pipeline (and shall be responsible for the connection of the Natural Gas Pipeline to the receiving flange provided by the Generator for such purpose at the Fuel Delivery Point in respect of Natural Gas) in accordance with the Fifth Schedule and otherwise as required by this Agreement at its cost, expense and risk and so that:
i. the Transmission Line Completion Date occurs not later than the Target Transmission Line Completion Date; and
ii. the Natural Gas Pipeline Completion Date occurs not later than the Target Natural Gas Pipeline Completion Date.
b. Paragraph a. above shall be without prejudice to any separate agreement made between [BBB] and the Generator in respect of the Construction and/or financing of the Transmission Line and/or the Natural Gas Pipeline.
3.3 Grid Operating Procedures
a. The Generator shall Construct, Operate and Maintain the Power Station in such a manner that its Operation will not adversely affect the safe and secure operation of the grid and shall accord both with [BBB]'s reasonable safety and technical guidelines from time to time for the operation of plant connected to its grid and with its system requirements. The Parties shall consult from time to time both before and during the development of the design of the Power Station, and thereafter, and [BBB] shall provide the Generator with such information as it may reasonably request, for these purposes.
b. [BBB] shall make the connection between the Power Station and the Transmission Line at its cost and expense. The connection shall not be energised without the reasonable approval of [BBB].
3.4 Monitoring of Progress
The Generator shall at all times keep [BBB] fully informed as to all material matters affecting the Construction, Operation and Maintenance of the Power Station, and provide it with such information and (at [BBB]'s cost, expense and risk) permit it such access to the Power Station (and to any part thereof wherever situated and whether or not yet incorporated therein) as it shall request from time to time on reasonable notice. Without prejudice to the generality of the foregoing and as soon as practicable after the Effective Date, [BBB] and the Generator shall reasonably agree on (and may thereafter from time to time reasonably agree on amendments to) procedures for monitoring the Construction, Operation and Maintenance of the Power Station.
3.5 Reports
Without prejudice to Article 3.4, the Generator shall:
a. furnish a monthly report (in form and content reasonably satisfactory to [BBB]) to [BBB] within [•] days after the end of each Calendar Month, outlining the Construction progress in such detail as is reasonable in the circumstances;
b. for those plans and designs including design drawings that are located at the Site, make copies thereof available to [BBB] when and as requested by [BBB];
c. for those plans and designs including design drawings that are not located at the Site, use its reasonable efforts to make copies thereof available to [BBB] when and as requested by [BBB]; and
d. furnish its quality assurance plan to [BBB] within [•] Months after Financial Close; and promptly provide it with any changes thereto.
3.6 Plans
a. i. aa. The Generator shall furnish its detailed engineering designs and plans, and lists of items of major equipment, to [BBB] as and when they are developed (and amended) from time to time, for [BBB]'s reasonable approval.
Detailed engineering design documents which shall be submitted to [BBB] for approval are as follows:
(a) Site plan;
(b) Plot plan;
(c) Project general arrangement/cross sections;
(d) Piping and instrument diagrams (P & IDs);
(e) Single line diagram;
(f) Testing plan/Testing procedures;
(g) Procurement specifications; and
(h) Construction specifications.
Additional information related to the above will be made available for [BBB]'s reasonable approval from time to time in accordance with the overall Project schedule and as requested by [BBB]. Unless [BBB] otherwise notifies the Generator within [•] days after receipt of the information concerned, it shall be deemed to have given its approval. [BBB] shall withhold its approval only upon making a determination that any design, plan or equipment is not in compliance with the requirements under this Agreement.
bb. However, in no circumstances shall the Generator incorporate in the Power Station any item of major equipment which is not of a technology or type which the Generator can demonstrate to the reasonable satisfaction of [BBB] has, as at the date on which it commences construction activities referred to in Article 2.2 a.iv., operated successfully for not less than one Year.
ii. The Generator shall make such changes to its designs, plans and major equipment, and otherwise agree to such changes to the specifications, as [BBB] reasonably requests (any such change, a “Permitted Change”).
iii. Before implementing any requested Permitted Change, the Generator shall give [BBB] notice of the Economic Cost thereof with reasonably full particulars of its proposals for and the Economic Cost of complying therewith. Such proposals shall reflect the option which will involve the least cost to [BBB] consistent with the Generator's obligations under this Agreement and which will not materially prejudice the performance of the Power Station. Thereafter, and subject always to paragraph iv. below, unless [BBB] withdraws its request for the Permitted Change, the Parties shall meet and seek, in good faith, (including by the provision of information and data), to reasonably agree amendments to this Agreement which will substantially preserve both:
aa. the Generator's economic return (after [Name of the Country] taxes) on its investment in the Project; and
bb. the Generator's net cash-flow which the Generator demonstrates to [BBB]'s reasonable satisfaction to be available to pay amounts owed to the Lenders,
in each case at the least cost to [BBB] consistent with the Generator's ongoing obligations under this Agreement and in a manner which would not materially prejudice the performance of the Power Station. If, at the end of a [•] day period commencing on the date of receipt by [BBB] of the notice from the Generator referred to in the foregoing provisions of this paragraph, no such agreement has been reached between the Parties, either Party may refer the matter to an Expert for resolution. Unless the Generator agrees to implement any requested Permitted Change without any indemnification from and against, and reimbursement for, the resulting Economic Costs, the Generator shall only be obliged (if it does not otherwise agree to do so) to implement any requested Permitted Change if [BBB] has agreed to, and in fact does, indemnify the Generator from and against, and reimburse the Generator for, any Economic Cost resulting from the implementation of such requested Permitted Change as and when such Economic Cost is incurred.
If the requested Permitted Change would materially and favourably affect (or, in the reasonable opinion of [BBB] notified to the Generator, may materially and favourably affect) the said economic return of the Generator, the Generator shall give [BBB] notice thereof with reasonably full particulars of its proposals for (and the savings to it of) complying therewith. Such proposals shall reflect the option which will involve the greatest savings to [BBB] consistent with the Generator's obligations under this Agreement and which will not materially prejudice the performance of the Power Station. Thereafter, the Parties shall promptly meet and seek, in good faith, (including by the provision of information and data), to reasonably agree amendments to this Agreement which will substantially preserve the Generator's said economic return at the greatest savings to [BBB] consistent with the Generator's ongoing obligations under this Agreement and in a manner which would not materially prejudice the performance of the Power Station. If, at the end of [•] day period commencing on the date of receipt by [BBB] of the notice from the Generator referred to in the foregoing provisions of this paragraph, no such agreement has been reached between the Parties, either Party may refer the matter to an Expert for resolution. The Generator shall not be relieved of its obligation to implement the requested Permitted Change pending agreement on such amendments.
iv. If [BBB] indemnifies the Generator from and against, and reimburses the Generator for, any Economic Cost pursuant to paragraph iii above, or any amendments to this Agreement are agreed or determined pursuant to paragraph iii. above which substantially preserve the Generator's net cash-flow as specified in paragraph iii. bb. above, then if, at any time after the date on which the relevant Economic Cost is incurred, the net cash flow of the Generator is materially and favourably affected as a consequence of the prior implementation of the relevant Permitted Change (or, in the reasonable opinion of [BBB] notified to the Generator, may be materially and favourably affected), then the Availability Fees then payable by [BBB] shall be adjusted to extend to [BBB] the benefit of any such material and favourable effect on the Generator's net cash flow. If, at the end of a [•] day period commencing on the date of receipt by the Generator of a notice from [BBB] that [BBB] intends to exercise its rights under this paragraph, no agreement has been reached between the Parties as to the manner or extent to which [BBB] is entitled to adjust the Availability Fees and/or as to any related consequential amendments to this Agreement, either Party may refer the matter to an Expert for resolution.
v. However, [BBB] shall have no liability to the Generator (but without prejudice to the Generator's liability to [BBB]) pursuant to paragraph iii. above in respect of the replacement of an item of major equipment which is not of a technology or type mentioned in paragraph i. bb. above.
b. i. Without prejudice to Articles 3.4 and 3.5, and paragraph a. above, the Generator shall, prior to commencing actual construction of any part of the Power Station, prepare and submit to [BBB] five hard copies regarding the main group of drawings and technical details with respect to that part, including:
aa. final arrangement plans for general layout of machinery and equipment;
bb. project summary comprising a general plant description, thermal process, electrical concept, control and monitoring concept, operating concept and general layout;
cc. scope of work, scope of services, boundary limits and exclusion from scope of supply;
dd. description of associated services, such as project management, erection and commissioning and training program;
ee. definitive overall project schedule;
ff. electrical single line diagram; and
gg. piping and instrument diagrams (P & ID's).
Additionally, the following information shall be available from time to time and as reasonably requested by [BBB] in accordance with actual Project progress:
aa. general and detailed drawings and specifications for electromechanical work;
bb. general and detailed design drawings for civil and architectural work;
cc. electrical protection drawings;
dd. Generator protection drawings;
ee. generating unit output curves;
ff. energy balance calculation;
gg. non-proprietary calculations; and
hh. operation and maintenance manuals.
The Generator shall promptly provide [BBB] with copies of any amendments or additions thereto, whether made before or after the Completion Date in similar manner.
ii. Within [•] days after the Completion Date, the Generator shall furnish to [BBB] [•] copies of "as-built" plans and design drawings in ISO 44 size (bound), operation and maintenance manuals and 16mm roll microfilm and microfilm in aperture card for all drawings and plans. Thereafter, the Generator shall furnish to [BBB] any revisions thereof (as and when made) in the same number of copies and ISO 44 size.
3.7 Supply of Electricity to the Power Station
All electricity required for the construction of the Power Station will be secured by the Generator. Once electricity supplied via the Transmission Line becomes available, the Generator may utilize such electricity as is available for the Construction, commissioning and testing of the Power Station. During the Cooperation Period, electricity may be utilized and metered by the Power Station if electricity is available from the Transmission Line. Electricity, if any, supplied by [BBB] to the Generator at the Site shall be paid for by the Generator at the Industrial Rate, being the then current power rate schedule for industrial customers of [BBB] (including the monthly adjustment mechanism to account for variations in the cost inputs to the said schedule), or such substitute rate as shall be approved by [Name of the Board].
ARTICLE 4. TESTING AND COMPLETION
4.1 Testing Procedures
The Generator and [BBB] agree that the Tests to demonstrate the achievement of the Completion Date of the Power Station are the Completion Tests and that all Tests identified in the Thirteenth Schedule shall be carried out in accordance with the international test standards and acceptance criteria as specified in the Thirteenth Schedule. At least [•] Months prior to the start of the Completion Tests, the Parties shall meet to reasonably agree on all detailed procedures for all Tests identified in Table 13.1 of the Thirteenth Schedule of the Power Station to be carried out whether before or after the Completion Date. Thereafter they shall reasonably agree on amendments thereto proposed by either of them. To the extent, in either case, the Parties cannot agree, the matter shall be referred to an Expert for resolution. The parties shall mutually agree on the timing of all Completion Tests. [BBB] shall not unreasonably withhold or delay its consent to the timing of any Completion Tests proposed by the Generator. In addition, the Parties shall mutually agree on the timing of all commissioning and testing activities, including the Commissioning Activities, which necessitate the tender of Fuel for delivery or the taking by [BBB] of electricity generated by the Power Station. [BBB] shall not unreasonably withhold or delay its consent to the timing of any such commissioning and testing activities proposed by the Generator provided, however, that, [BBB] shall not, in any circumstances, be required to tender Natural Gas to the Generator before the Target Natural Gas Pipeline Completion Date, tender Diesel Fuel before the Target Diesel Fuel Availability Date or take electricity generated before the Target Transmission Line Completion Date.
4.2 Witnessing and Successful Completion of Tests
a. BBB shall have the right to witness all Tests of the Power Station at its cost, expense and risk. Without prejudice thereto, the Parties shall reasonably agree, within [•] months from the Contract Signing Date, upon a list of which material Tests (which shall include the Guarantee Tests and the Reliability Test) [BBB] shall witness.
b. The Generator shall give [BBB] not less than [•] nor more than [•] days, notice of any Tests which it has been agreed [BBB] shall witness (and of any others which [BBB] may have specified) which are to be conducted on the Site, and [•] Months notice of any such Tests which are to be conducted elsewhere. Provided that it has given [BBB] notice thereof as aforesaid, the Generator shall be entitled to conduct any Test in the absence of [BBB], and shall provide [BBB] with the results of any such Test so conducted in accordance with the requirements of the Thirteenth Schedule. Such results shall be binding upon [BBB] and [BBB] shall not be entitled to object to such results in any field certificate relating to any such Tests.
c. If the Generator fails to perform its obligations under paragraphs a. and b. above in respect of any Test, the Test concerned, if conducted in the absence of [BBB], shall be invalid and shall be repeated (subject again to those paragraphs) at the cost, expense and risk of the Generator, unless [BBB] otherwise agrees.
d. The Generator shall promptly report to [BBB] the results of all Tests which [BBB] has elected to witness, and of such other Tests as [BBB] shall specify.
4.3 Tests
a. The Generator and [BBB] shall jointly issue field certificates attesting to the completion of:
i. the Guarantee Tests; and
ii. the Reliability Test,
provided, however, that if [BBB] fails to concur with, or object in writing to (citing the specific grounds for its objection), the issuance of either field certificate within [•] days from the last day of the relevant Test(s), such certificate shall be deemed to have been issued by both Parties within [•] day period, and such Test(s) to have been completed as of the last day of Testing.
To the extent the Parties cannot agree upon the issuance of the field certificate, or if [BBB] objects to the issuance of such field certificate with respect to such Tests which it has witnessed within the applicable [•] day period, the Parties shall promptly meet and, in good faith, seek to reach an agreement on the actions, if any, required for resolving their disagreement. If the Parties are unable to reach an agreement, either Party may refer the matter to an Expert for resolution, provided that, in case of a disagreement in respect of the Guarantee Tests, the Generator may opt to re-perform such Guarantee Tests.
In case the Generator opts to re-perform the Guarantee Tests, it shall promptly furnish [BBB] with the proposed schedule for such re-performance. Thereafter, the Generator shall confirm the date of the re-performance of the Guarantee Tests by giving [BBB] at least [•] days’ notice thereof, and, thereupon, [BBB] shall be obliged to dispatch the Power Station to enable the Generator to re-perform such Guarantee Tests. Upon the completion of the Guarantee Tests, [BBB] and the Generator shall jointly issue field certificates attesting to such completion of the Guarantee Tests. In such case, the Guarantee Tests shall be deemed to have been completed as of the last day of the performance of the original Guarantee Tests and the results shall be as demonstrated by the re-performance of the Guarantee Tests. If [BBB] fails to issue any such field certificate within [•] days from the last day of the re-performance of the Guarantee Tests, such certificate shall be deemed to have been issued by both Parties within the [•] day period, such Test(s) to have been completed as of the last day of the performance of the original Guarantee Tests, and the results of such Tests to have been as demonstrated by the re-performance of the Guarantee Tests.
If the re-performance of the Guarantee Tests demonstrates a Net Available Capacity less than the Guaranteed Net Contracted Capacity and/or a Plant Net Heat Rate higher than the Guaranteed Plant Net Heat Rate, the Generator may exercise its option under Article 4.4 b. (which option shall remain available to it even though the [•] day period after the completion of the original Guarantee Tests may have elapsed or the Generator may have previously exercised its option under Article 4.4 b.) by giving notice to [BBB] within [•] days after the last day of the re-performance of the Guarantee Tests. In such event:
x. the Completion Date shall be deemed to have occurred on the date that is [•] days after the last day of the original Guarantee Tests performed by the Generator (but not before the Target Completion Date), and
y. the Net Available Capacity shall be as demonstrated by the re-performance of the Guarantee Tests,
provided that, if the Generator had previously exercised its option under Article 4.4 b., the Completion Date shall continue to be the date on which it already occurred under Article 4.4 b., but the Net Available Capacity shall be as demonstrated by the re-performance of the Guarantee Tests. The Availability Fees and the accounts of the Parties shall be adjusted at the end of the then current Billing Period.
Without prejudice to any adjustment of the Availability Fees pursuant to the preceding paragraph, commencing on the date that is [•] days after the last day of the original Guarantee Tests (but not before the Target Completion Date), or, in case the Generator exercised its option under Article 4.4 b., the date on which the Completion Date occurred under Article 4.4 b., and prior to the issuance by the Parties of the field certificate, the Power Station shall be considered Available with a Net Available Capacity as demonstrated by the original Guarantee Tests.
b. [BBB] shall compensate the Generator for:
i. costs caused by the use of Diesel Fuel during initial commissioning and Testing of the Power Station required by this Agreement prior to the Completion Date, in accordance with the following formula:
AC = DO x (EG-ED) x PR
Where:
AC is the amount of compensation;
DO is the actual quantity of Diesel Fuel used during such initial commissioning and Testing other than during the following Tests:
- GNCC and Net Plant Heat Rate Test on Diesel Fuel;
- Stack Emission Test on Diesel Fuel; and
- on-line switchover from Natural Gas to Diesel Fuel;
which quantity shall be verified by [BBB] converted into GJ at the actual Lower Heating Value measured at the Guarantee Test;
EG is efficiency of the Plant while running on Natural Gas, expressed as a percentage and based on Lower Heating Value as demonstrated by the last Plant Net Heat Rate Test performed prior to the Completion Date, or if none, the first Plant Net Heat Rate Test performed after the Completion Date after reconditioning of the Power Station or after adjustment for GPNHR is made using the formula set forth in Section IV.3 of the Eighth Schedule, as provided in Article 4.8 d., whichever is applicable;
ED is efficiency of the Plant while running on Diesel Fuel, expressed as a percentage and based on Lower Heating Value as demonstrated by the last Plant Net Heat Rate Test performed prior to the Completion Date, or, if none, the first Plant Net Heat Rate Test performed after the Completion Date; and
PR = US$[•] / GJ
ii. costs of Operation and Maintenance during initial commissioning and Testing of the Power Station required by this Agreement prior to the Completion Date, in accordance with the following formula:
COM = DO x OP
Where:
COM is the amount of compensation;
DO is the actual quantity of Diesel Fuel used during such initial commissioning and Testing by this Agreement prior to the Completion Date, other than during the following Tests:
- GNCC and Net Plant Heat Rate Test on Diesel Fuel;
- Stack Emission Test on Diesel Fuel; and
- on-line switchover from Natural Gas to Diesel Fuel;
which quantity shall be verified by [BBB] (and for this purpose the Generator shall make available to [BBB] fuel receipts), converted into GJ at the actual Lower Heating Value measured at the Guarantee Test; and
OP = US$ [•] / GJ
4.4 Deemed Completion Date on De-Rating
a. This Article 4.4 shall apply only if the Completion Date has not occurred only because the Guarantee Tests have demonstrated that the Net Available Capacity is less than the Guaranteed Net Contracted Capacity and/or that the Plant Net Heat Rate is greater than the Guaranteed Plant Net Heat Rate. Notwithstanding the foregoing, the fact that the Target Completion Date has not occurred shall not prejudice the operation of this Article 4.4.
b. The Generator may elect (by not less than [•] days notice given to [BBB] within [•] days after the completion of the Completion Tests) that the Completion Date be deemed to occur on the later of the day after the expiration of such notice and the Target Completion Date. In such event, the Completion Date shall be deemed to occur on such date and the Net Available Capacity shall be as demonstrated by the Guarantee Tests. The Generator may exercise its rights under this Article 4.4.b notwithstanding the fact that a field certificate shall not have been issued or deemed to have been issued by the Parties under Article 4.3.a.
c. Notwithstanding paragraph b. above, the Generator shall pay to [BBB] the amounts and at the times mentioned in paragraph 6 of the Third Schedule.
4.5 Deemed Completion Date for Other Reasons
a. To the extent any delay in the Completion Date is the result solely of [BBB]'s failure for any reason (including Force Majeure affecting [BBB]) other than due to any act or omission of the Generator, whether caused by Force Majeure or otherwise:
i. to tender Natural Gas after the Target Natural Gas Pipeline Completion Date or to tender Diesel Fuel after the Target Diesel Fuel Availability Date, in either case for delivery for commissioning and/or testing and/or the Commissioning Activities and/or the Completion Tests; and/or
ii. to take the electricity generated after the Target Transmission Line Completion Date during the Commissioning Activities and/or the Completion Tests,
at a time when the Generator is otherwise ready to perform such commissioning and/or testing or Commissioning Activities, as the case may be, and/or the Completion Tests (except to the extent work necessary for it to be ready to perform such commissioning and/or testing or Commissioning Activities, as the case may be, and/or the Completion Tests cannot be performed due to such failure), the Completion Date shall be deemed to have occurred on the date it would have occurred but for such failure ("Deemed Completion Date"), but not, for the avoidance of doubt, before what would have been the Target Completion Date but for such failure.
b. Without prejudice to the obligation of the Generator to carry out the Completion Tests, the Cooperation Period shall start on the Deemed Completion Date (which shall be the Completion Date for all purposes of this Agreement except as otherwise expressly provided herein) and, subject to Article 4.9 and Article 4.5 c.ii., on and from such date, [BBB] shall pay to the Generator all Availability Fees which, but for the events mentioned in paragraph a. above, would have been payable to it. For the purpose of this Article 4.5 b., the Power Station shall be deemed to be Available with a Net Available Capacity equal to the Guaranteed Net Contracted Capacity, subject always to Article 5.1 b. However:
i. the Generator shall not unreasonably refuse to Operate the Power Station after the Deemed Completion Date and prior to the carrying out (or completion of the carrying out) of the Completion Tests and, if the Power Station has otherwise completed the Commissioning Activities, to the extent it does unreasonably refuse, [BBB] shall not be obliged to pay Availability Fees (it being expressly understood and agreed that if the Generator shall have completed the Commissioning Activities on Natural Gas or Diesel Fuel, its refusal to Operate on such type of Fuel shall be considered unreasonable); and
ii. if the Completion Tests have been successfully carried out to the extent required by this Agreement using Natural Gas or Diesel Fuel (but not to the extent so required using the other), the Power Station shall be subject to all provisions of this Agreement applicable to its Availability and Operation (including the payment of Availability Fees and Energy Fees) using Natural Gas or Diesel Fuel (as appropriate).
c. i. The Power Station shall be deemed to be Available with a Net Available Capacity equal to the Guaranteed Net Contracted Capacity during the carrying out of the commissioning and/or testing and/or the Completion Tests (in the case of Article 4.5 a.i. above) or the Commissioning Activities and the Completion Tests (in the case of Article 4.5 a.ii. above) (or so much as remained to be completed), but not for longer than the lesser of the period of delay mentioned in paragraph a. above and the period required to carry out (or complete the carrying out of) such commissioning and/or testing or Commissioning Activities, as the case may be, and Completion Tests without failure, except as otherwise provided in subparagraph ii. below.
ii. In the event that the Completion Date occurs on the Deemed Completion Date as a result of [BBB]'s failure to take electricity under Article 4.5 a.ii. due to a delay in the completion of the Transmission Line (other than due to Force Majeure (other than Government Force Majeure) affecting [BBB]), the Power Station shall be deemed Available with a Net Available Capacity equal to the Guaranteed Net Contracted Capacity during the period (the “Deemed Available Period”) commencing on the Deemed Completion Date and ending on the earlier of (x) the Actual Completion Date and (y) the last day of a period commencing on the Deemed Completion Date having a duration equal to the T-Line Delay Period (as defined below). For purposes of this Article 4.5 c.ii., the “T-Line Delay Period” shall be the period counted from the time when the Generator is ready to generate electricity (except to the extent work necessary for it to be ready to generate electricity cannot be performed due to the delay in the completion of the Transmission Line) in connection with the Commissioning Activities (or any component thereof) and/or the Completion Tests after the Target Transmission Line Completion Date, up to the time that [BBB] is ready to take electricity.
(A) BBB’s obligations with respect to Availability Fees during the Deemed Available Period shall be as follows:
(aa) [BBB] shall not be liable to pay the Generator Availability Fees in respect of the [•]th [•] Months of the Deemed Available Period. The Cooperation Period shall be extended by the length of the Deemed Available Period up to a maximum extension of [•] Months.
(bb) If the Deemed Available Period continues in excess of [•] Months, [BBB] shall pay the Generator the Availability Fees in respect of the [•]th Month of the Deemed Available Period in [•] equal installments (the “Third Month Availability Fees”). The first such installment shall be due and payable on the first [•]th day of a Calendar Month occurring after the end of the third Month of the Deemed Available Period (and whether or not the Actual Completion Date shall have then occurred). Up to but excluding the Actual Completion Date, each succeeding installment shall be due and payable on the [•]th day of each succeeding Calendar Month. From and including the Actual Completion Date, each succeeding installment shall be due and payable monthly at the same time as other Availability Fees are due and payable under this Agreement. If the T-Line Delay Period continues in excess of [•] Months, the [•]th Month Availability Fees shall accrue interest at the Agreed Interest Rate on the unpaid balance thereof from the [•]th day of the [•] Month of the Deemed Available Period until the date on which the Third Month Availability Fees have been paid in full. Such interest shall be due and payable at the same time as the installments mentioned in this subparagraph (bb) commencing with the first date on which any such installment is payable that occurs after the end of the fourth Month of the T-Line Delay Period.
(cc) [BBB] shall pay the Generator the Availability Fees corresponding to the fourth and succeeding Months of the Deemed Available Period as and when the same would otherwise have been due under this Agreement.
(B) Without prejudice to [BBB]’s obligations in respect of Availability Fees accruing during the Deemed Available Period in accordance with Article 4.5 c.ii.(A) above, [BBB]’s obligations with respect to Availability Fees accruing after the Deemed Available Period shall be as follows:
(aa) Commencing on the Actual Completion Date, [BBB] shall be liable for, and shall pay, Availability Fees to the Generator as and when due under this Agreement.
(bb) If by the end of the Deemed Available Period the Actual Completion Date has not occurred, [BBB] shall not be liable to pay Availability Fees to the Generator in respect of the period from the day immediately following the last day of the Deemed Available Period until the day immediately prior to the Actual Completion Date. Commencing on the Actual Completion Date, [BBB] shall be liable for, and shall pay, Availability Fees to the Generator as and when due under this Agreement.
4.6 Performance Tests
a. The Generator shall (if requested on reasonable notice by [BBB]) and may (with the reasonable approval of [BBB]) carry out a Performance Test of the Power Station at any time in accordance with the Thirteenth Schedule to determine Net Available Capacity. However, no more than four successfully completed Performance Tests may be required by [BBB] to be carried out in any Contract Year. No Performance Test shall be required by [BBB] to be carried out within [•] Months of the last one which was required by [BBB] and successfully completed or the Guarantee Tests and no Performance Test shall be carried out during periods of Planned Maintenance as and subject as provided in the Sixth Schedule.
b. If, by reason of a default of the Generator, the Generator is unable to carry out a Performance Test at the time scheduled therefor or a Performance Test is not successfully carried out, the Power Station shall be deemed not Available until a Performance Test is successfully carried out. The foregoing shall not apply if the reason concerned is Force Majeure or any default of [BBB], including failure to tender Fuel for delivery or to take electricity for any reason other than as a result of the matters mentioned in and subject as mentioned in Article 5.1 b., mutatis mutandis. Notwithstanding paragraph a. above and the foregoing, in the event of:
i. a reduction in Net Available Capacity as a result of a successfully completed Performance Test; or
ii. the Generator's inability to conduct a Performance Test due to any reason, including but not limited to Force Majeure,
the Generator may (after giving at least [•] hours' notice to [BBB] and subject to the reasonable approval of [BBB]) conduct additional Performance Tests without delay in accordance with Good Operating Procedures.
4.7 Plant Net Heat Rate
If the Power Station is exhibiting persistently high Plant Net Heat Rate, the Generator shall (if requested by reasonable notice by [BBB]) and may (with the reasonable approval of [BBB]) carry out a Plant Net Heat Rate Test, and shall use all reasonable endeavours to rectify the problem.
4.8 Tests Following Deemed Completion
a. To the extent required to enable the Generator to conduct the commissioning and/or testing, Commissioning Activities and any required Completion Tests following the Deemed Completion Date, [BBB] and the Generator shall mutually agree on the dispatch of the Power Station.
b. Without prejudice to [BBB]'s obligations under Articles 4.3 b., 4.5 and/or 15.1 (without double counting), if as a result solely of the failure by [BBB], for reasons attributable to Force Majeure affecting [BBB] (subject to the provisions of Article 11.2 h.), to perform any of the following obligations at a time when the Generator is otherwise ready to perform the commissioning and/or testing, Commissioning Activities and/or the Completion Tests) (except to the extent work necessary for it to be ready to perform such commissioning and/or testing, Commissioning Activities and/or Completion Tests cannot be performed due to such failure):
i. to tender Natural Gas after the Target Natural Gas Pipeline Completion Date for delivery for:
aa. the commissioning and/or testing of the Power Station; and/or
bb. the Commissioning Activities; and/or
cc. the Completion Tests;
ii. to tender Diesel Fuel after the Target Diesel Fuel Availability Date for delivery for:
aa. the commissioning and/or testing; and/or
bb. the Commissioning Activities; and/or
cc. the Completion Tests; or
iii. to take electricity generated after the Target Transmission Line Completion Date during:
aa. the Commissioning Activities; and/or
bb. the Completion Tests,
the Deemed Completion Date occurs in accordance with Article 4.5 and the Generator incurs any Deemed Completion Costs, [BBB]'s only liability in respect of such Deemed Completion Costs shall be as provided in this Article 4.8 b. The Generator shall bear the Deemed Completion Costs to the extent that Deemed Completion Costs are incurred or attributable to, or are payable during, the period ending on the date falling [•] months after the Deemed Completion Date;
All other Deemed Completion Costs shall be for the account of [BBB] provided, however, that:
(i) the Generator shall:
A. use reasonable endeavours to assist [BBB] in procuring alternative funding for the Deemed Completion Cost Excess (as defined in paragraph (iii) below), provided that such reasonable endeavours shall be limited to the Generator introducing prospective lenders to [BBB] and the Generator shall have no obligation to provide, secure commitments for or otherwise underwrite such alternative funding; and
B. provide [BBB] with written notice of such Deemed Completion Costs, together with a statement and description of the nature and amount of such Deemed Completion Costs, the proposal for adjustment to the Availability Fees referred to in paragraph (ii) below, and the amount of the Deemed Completion Cost Excess, if any. [BBB] shall be entitled to verify the validity and amount of such costs and to request reasonable back-up documentation relating to the amount of such costs, but only if the request for such back-up documentation is made promptly and in any event not later than [•] days following the receipt of such notice from the Generator;
(ii) if and to the extent that the sum of:
A. the aggregate, cumulative amount of all such Deemed Completion Costs; and
B. the aggregate, cumulative amount of all Additional GFM Costs already incurred and initially financed by the Generator (i.e., the Additional GFM Costs referred to in Article 15.1d.i.),
is less than or equal to the Additional FM Cost Ceiling, then the Generator shall be entitled to an adjustment to the Availability Fees payable by [BBB] that, subject to Article 4.9, will compensate the Generator for all such Deemed Completion Costs at the least cost to [BBB] consistent with the Generator's ongoing obligations under this Agreement and, if and to the extent that any portion of such Deemed Completion Costs is financed by the Generator through the incurrence of additional indebtedness, in amounts and payable at times that will allow the Generator to maintain both actual and projected debt service coverage ratios under the Lending Agreements for each semi-annual period up to and including the Lending Agreement Repayment Date at least equal to the actual and projected debt service coverage ratios which would have been achieved if such additional indebtedness had not been incurred by the Generator (as such coverage ratios shall be calculated at the time the Generator incurs such Deemed Completion Costs); in order to give effect to the foregoing, the Parties shall promptly meet and seek, in good faith (including by the provision of information and data), to reasonably agree upon the necessary increase to the Availability Fees payable by [BBB], and any related consequential amendments to this Agreement; and
(iii) if and to the extent that the sum of:
A. the aggregate, cumulative amount of all such Deemed Completion Costs; and
B. the aggregate, cumulative amount of all Additional GFM Costs theretofore already incurred and initially financed by the Generator (i.e., the Additional GFM Costs referred to in Article 15.1 d.i.),
exceeds the Additional FM Cost Ceiling (such excess, the "Deemed Completion Cost Excess"), then, subject to Article 4.9, [BBB] shall promptly on demand pay to the Generator the portion of such Deemed Completion Costs constituting such Deemed Completion Cost Excess as and when the same shall be payable by the Generator.
(iv) Within [•] days from receipt by [BBB] of the notice referred to in paragraph (i) B. above, or if any back-up documentation is requested by [BBB] pursuant to paragraph (i) B. above, within [•] days from receipt of such back-up documentation, [BBB] shall notify the Generator of (A) its confirmation of, or refusal to confirm, the validity and/or amount of the Deemed Completion Costs and (B) its agreement, or refusal to agree, to the Generator’s proposal for adjustment to the Availability Fees. If [BBB] refuses to confirm the validity and/or amount of the Deemed Completion Costs, and/or refuses to agree to the Generator’s proposal for adjustment to the Availability Fees, the Parties shall resolve the dispute in respect of the Deemed Completion Costs and/or the adjustment to the Availability Fees (including any related consequential amendments to this Agreement pursuant to paragraph (ii) above) within [•] days from receipt of the notice referred to in the preceding sentence. If such dispute is not resolved within the said [•] day period, either Party may refer the matter to an Expert for determination.
c. If the provisions of Article 4.5 apply and the Deemed Completion Date has occurred, then:
i. the price of the Fuel to be utilized by the Generator to conduct the Completion Tests and the Reliability Test, in each case in accordance with the international test standards and acceptance criteria as specified in the Thirteenth Schedule, after the Deemed Completion Date shall be the same as the price of Fuel stipulated in Articles 6.6 a.i. and 6.6 a.ii.;
ii. the [•] day period described in Part A of the Thirteenth Schedule within which the Reliability Test shall start shall commence on the day immediately following the date of the completion of the Guarantee Tests using Natural Gas; and
iii. the reference to [•], 20[•] in paragraph b. of Article 6.5 shall be changed to "the date [•] months after the date of completion of the Guarantee Tests using Natural Gas".
d. If the Deemed Completion Date occurs under Article 4.5 as a result of [BBB]’s failure to tender Natural Gas after the Target Natural Gas Pipeline Completion Date and the Generator is required by [BBB] to Operate the Power Station on Diesel Fuel in excess of the Allowed Diesel Hours prior to the carrying out of the Completion Tests on Natural Gas, the Generator shall, prior to carrying out the Completion Tests on Natural Gas, have the option to: (i) adjust the Guaranteed Plant Net Heat Rate for Natural Gas for the Contract Year in which the Completion Tests on Natural Gas are carried out, in accordance with the formula set forth in Section IV.3 of the Eighth Schedule, except that the phrase “the following Contract Years” in the fourth line of the first paragraph of Section IV.3 of the Eighth Schedule shall be read as “the Contract Year in which the Completion Tests on Natural Gas are carried out and the following Contract Years;” or (ii) recondition the Power Station. If the Generator opts to recondition the Power Station, the Power Station shall be deemed to be Available during the carrying out of such reconditioning activities, with a Net Available Capacity equal to the Net Available Capacity prior to the carrying out of such reconditioning activities, and [BBB] shall pay to the Generator all Availability Fees which, but for the carrying out of such reconditioning activities, would have been payable to it; provided, however, that [BBB]’s liability to pay such Availability Fees under this Article 4.8 d. shall not exceed the net amount payable to [BBB] pursuant to clause 6.4 of the Fuel Supply Contract for Natural Gas.
4.9 Adjustment of Capital Recovery Fee
If [BBB]:
a. pays Availability Fees to the Generator on and from the Deemed Completion Date pursuant to Article 4.5 b. as a result of Force Majeure (other than Government Force Majeure) affecting [BBB]; and/or
b. compensates the Generator for any Deemed Completion Costs pursuant to Article 4.8 b.,
then the Availability Fees payable by [BBB] shall be adjusted, or the Generator shall pay [BBB], as the case may be, in accordance with Section V of the Eighth Schedule.
ARTICLE 5. AVAILABILITY
5.1 Availability
a. i. The Generator shall at all times keep [BBB] advised of the current and anticipated Availability and actual Operating Parameters of the Power Station (including the types and quantities of Fuel available and which it can accept and use) and, without prejudice to the foregoing, comply with the Sixth Schedule. The Generator shall neither advise nor permit to remain outstanding advice as to, Availability and Operating Parameters different to those which, to the best of its knowledge, the Power Station can achieve. This shall not oblige the Generator to Operate the Power Station at levels greater than those in the Second Schedule nor (unless the Parties otherwise agree) at greater than the Net Available Capacity.
ii. Notwithstanding anything elsewhere contained in this Agreement and unless the Parties otherwise agree, Availability in a period which is greater than that determined by reference to Net Available Capacity shall not be taken into account for the purposes of the Eighth Schedule.
b. The Power Station shall be deemed not Available (and Force Majeure Outage (as defined in the Sixth Schedule) shall include all such reductions in Availability) to the extent it cannot be Operated because of [BBB]'s failure caused by Force Majeure (other than Government Force Majeure):
i. to tender Natural Gas or Diesel Fuel for delivery in accordance with this Agreement; and/or
ii. to take electricity;
but only for a period equal to the duration of the actual event or circumstance of Force Majeure and any further period necessary for [BBB] to overcome (using prompt and diligent efforts) the effects thereof; provided, however, that the maximum aggregate period in any Contract Year during which the Power Station will be deemed not Available by reason of the application of this Article 5.1 b. shall be [•] hours. Any other reduction in Availability to the extent the result solely of the failure of [BBB] to tender Natural Gas or Diesel Fuel for delivery or to take electricity in accordance with this Agreement for any reason (including Force Majeure), or otherwise the result of Government Force Majeure, shall be ignored and the Power Station shall be deemed Available to the extent of such reduction.
c. Unless and to the extent [BBB] requires the use thereof, the Power Station shall be not Available to the extent it can only be Operated using Diesel Fuel as a result of the Generator's failure to accept delivery of and use Natural Gas other than as a result of Government Force Majeure.
5.2 Operation and Dispatch Instructions
a. Unless otherwise specifically provided in this Agreement, the Generator shall only Operate the Power Station with Fuel delivered by [BBB] and for the purpose of converting that Fuel to electricity. [BBB] shall accept that electricity at the Delivery Point.
b. The Generator shall, and shall only, Operate the Power Station in accordance with dispatch instructions given in accordance with the Sixth Schedule. However, and without prejudice to the Sixth Schedule, the Generator shall not be obliged to Operate the Power Station other than within the Availability and actual Operating Parameters last advised by it pursuant and subject to Article 5.1 a. (except in an Emergency, when the Generator shall use all reasonable efforts to comply). In the event that the actual number of Starts/Stops required by [BBB] for a Contract Year exceeds the number prescribed in the Second Schedule, [BBB] shall compensate the Generator for additional costs incurred as a result of such excessive Starts/Stops, as provided in the Eighth Schedule.
c. The Generator shall be entitled to periods of Planned Maintenance as and subject as provided in the Sixth Schedule, and shall not be obliged to Operate the Power Station inconsistently therewith.
d. The quantities of electricity supplied shall be measured in accordance with the Seventh Schedule.
e. At the request of the Generator, and notwithstanding the provisions of Section 1.1.3 of the First Schedule or any other provision hereof to the contrary, [BBB] shall dispatch the Power Station as follows:
i. so that the Generator can (x) perform all necessary commissioning and Testing of the Power Station or any component thereof and (y) operate the Power Station in a manner that will allow the "Guarantee Tests" under (and as defined in) the Construction Contract (the “EPC Guarantee Tests”) to be successfully performed and completed, provided that such EPC Guarantee Tests shall be performed prior to the Guarantee Tests and each test run for such EPC Guarantee Tests shall be for [•] hours;
ii. during the Reliability Test on Natural Gas during any continuous period of not less than [•] hours designated by the Generator, so that each Block can be operated for at least [•] continuous hours at an output level equal to the lesser of (A) [•] MW (at Ambient Conditions) and (B) the capacity level of such Block demonstrated during and pursuant to the EPC Guarantee Tests (the lesser of (A) and (B) hereinafter the “[BBB] Required Block Output Level”), and the Block not being operated at the [BBB] Required Block Output Level can be operated concurrently at an output level not less than [•] % of the lesser of (X) [•] MW (at Ambient Conditions) and (Y) the capacity level of such Block demonstrated during and pursuant to the EPC Guarantee Tests ([•] % of the lesser of (X) and (Y) hereinafter the “[•] % Block Output Level”),
iii. thereafter, as and to the extent required by the Generator and notified to [BBB] by the Generator, during any [•] hour continuous period designated by the Generator, on Natural Gas at a level that will allow one Block (the “First Block”) to be operated for not fewer than [•] hours at the [BBB] Required Block Output Level, and for not fewer than [•] hours at not less than the [•] % Block Output Level, and the other Block (the “Second Block”) to be operated concurrently for [•] hours at not less than the [•] % Block Output Level, provided that nothing in this clause iii shall be deemed to require [BBB] to dispatch the Power Station for longer than is required to successfully complete to the satisfaction of the Generator the test to be conducted while the Power Station is being so dispatched;
iv. thereafter, as and to the extent required by the Generator and notified to [BBB] by the Generator, during any [•] hour continuous period designated by the Generator, on Natural Gas at a level that will allow the Second Block to be operated for not fewer than [•] hours at the [BBB] Required Block Output Level, and for not fewer than [•] hours at not less than the [•] % Block Output Level, and the First Block to be operated concurrently for [•] hours at not less than the [•] % Block Output Level, provided that nothing in this clause iv shall be deemed to require [BBB] to dispatch the Power Station for longer than is required to successfully complete to the satisfaction of the Generator the test to be conducted while the Power Station is being so dispatched.
In furtherance of the foregoing provisions of this paragraph e., and notwithstanding anything to the contrary contained elsewhere in this Agreement:
aa. if a Dispatch Interruption Event occurs during the commissioning and/or testing and/or the EPC Guarantee Tests referred to in paragraph e.i above, [BBB] shall, promptly upon the cessation of such Dispatch Interruption Event (and, if applicable, the effect thereof) and upon request by the Generator, dispatch the Power Station as and to the extent necessary to enable the Generator to complete such commissioning and/or testing and the EPC Guarantee Tests;
bb. in addition, if the performance of any commissioning and/or testing and/or the EPC Guarantee Tests referred to in paragraph e.i above is interrupted for any reason other than a Dispatch Interruption Event, such as equipment trip or failure or Force Majeure affecting the Generator, [BBB] shall, as soon as reasonably possible, having regard to, inter alia, grid stability and safety, upon the cessation of such interruption event (and, if applicable, the effects thereof), dispatch the Power Station as requested by the Generator as and to the extent necessary to enable the Generator to complete such commissioning and/or testing and the EPC Guarantee Tests;
cc. if a Dispatch Interruption Event occurs during any of the test periods referred to in paragraphs e.ii, e.iii. or e.iv. above, or if the performance of any test referred to in paragraphs e.ii, e.iii. or e.iv. above, is interrupted as a consequence of any event of Force Majeure affecting the Generator or the Power Station, [BBB] shall, subject to Article 5.3 c.ii., upon the cessation of such Dispatch Interruption Event or as requested by the Generator upon the cessation of such event of Force Majeure (and, if applicable, the effects thereof), dispatch the Power Station at the applicable levels contemplated by paragraphs e.ii, e.iii. or e.iv. above, as the case may be, for the balance of the test period referred to therein (i.e., for the original duration of such applicable test period less that portion of the test elapsed prior to such interruption); and
dd. in the event the performance of any test referred to in paragraphs e.ii., e.iii. or e.iv,. above is stopped or interrupted prior to the successful completion thereof for any reason other than (x) a Dispatch Interruption Event or (y) an event of Force Majeure affecting the Generator or the Power Station, [BBB] shall dispatch the Power Station for the entire required duration of the applicable period referred to in paragraphs e.ii., e.iii or e.iv above, as the case may be,
5.3 Certain Matters Relating to the Reliability Test
a. The Reliability Test shall commence as soon as practicable (and in any event within [•] days) following the Completion Date (which term, for purposes of this Article 5.3, shall not include the Deemed Completion Date) and the Generator shall notify [BBB] of the date upon which performance of the Reliability Test shall commence, which date shall be not less than [•] and not more than [•] days after the date of such notice.
b. The Generator shall promptly commence the performance of the Reliability Test in accordance with paragraph a. above, and shall successfully complete the Reliability Test within [•] days of the commencement thereof; provided, however, that the Generator shall not be obliged to commence (and the Reliability Test shall be automatically suspended) during the continuance of, and such [•] day period shall be extended by the duration of:
i. any Dispatch Interruption Event; and
ii. any event of Force Majeure affecting the Generator (including the effects thereof).
Failure by the Generator to successfully complete the Reliability Test within such [•] day period, as the same may be extended by the duration of i. and/or ii. above, shall constitute a Default by the Generator. Such Default shall not become a Material Default hereunder unless the Generator shall have been unable to successfully complete the Reliability Test within the [•] month period commencing on the day following the last day of such [•] day period, as such [•] day period may be extended by the duration of i. and/or ii. above. Notwithstanding the foregoing or anything in this ECA to the contrary, nothing in this Agreement shall be taken or interpreted as requiring the Reliability Test to be conducted for [•] days if successfully completed in any shorter period.
c. In the event of any interruption to or cessation of the Reliability Test (i.e., output is caused to be less than [•] % of the [BBB] Required Block Output Level for the Block operating at such level or the [•] % Block Output Level for the Block operating at such level) as a consequence of any Dispatch Interruption Event or as a consequence of any event of Force Majeure affecting the Generator or the Power Station:
i. the portion of the Reliability Test completed without interruption prior to the occurrence of such Dispatch Interruption Event or event of Force Majeure shall be considered to have been successfully completed; provided that if the interruption is due to an event of Force Majeure affecting the Generator and the Force Majeure resulted in the repair or replacement of a major part of any Major Equipment (as listed in Section 2.3 of the First Schedule, except that for [•] KV equipment, Major Equipment refers only to the circuit breaker and disconnect switch) (hereinafter, a “Major Repair”), the portion of the Reliability Test completed prior to the interruption shall not be considered successfully completed;
ii. subject to sub-paragraph i. above, following the cessation of such Dispatch Interruption Event or event of Force Majeure (and, if applicable, the effects thereof), as the case may be, the Generator shall be required only to successfully complete the balance of the Reliability Test (i.e., the original duration of the Reliability Test less that portion of the test elapsed prior to such Dispatch Interruption Event or event of Force Majeure), provided that (x) if the interruption is due to an event of Force Majeure affecting the Generator, and at the time of the occurrence of the event of Force Majeure, the remaining balance of the Reliability Test is less than [•] hours, the Generator shall be required to perform the balance of the Reliability Test for [•] hours and [BBB] shall dispatch the Power Station so that the Generator can perform the balance of the Reliability Test for [•] hours; and (y) if the event of Force Majeure affecting the Generator results in a Major Repair, the Generator shall be required to reperform the entire Reliability Test, and [BBB] shall be required to dispatch the Power Station, for the entire required duration of the applicable period referred to in Article 5.2 e.ii.; for the avoidance of doubt, it is understood that, in the case of this subparagraph ii.(y), the period elapsed in performing the Reliability Test prior to the interruption (A) shall not form part of the [•] day period referred to in Article 5.3 b., and (B) shall not form part of the [•] day period referred to in Article 6.6 a.ii.; and
iii. for all purposes of this Agreement (including the Thirteenth Schedule), the separate portions of the Reliability Test performed before and after any such interruption shall be deemed to have been performed continuously so that the requirement of "continuous" operation set forth in the Thirteenth Schedule shall be satisfied.
d. If the Generator is prevented from commencing or is delayed in completing the Reliability Test for an aggregate period of at least [•] days as a result of any failure by [BBB] (for any reason whatsoever) to provide the dispatch necessary to successfully perform and complete the Reliability Test, one or more Dispatch Interruption Events, or any combination of the foregoing, the Generator shall be deemed for all purposes of this Agreement to have successfully completed the Reliability Test on such [•] day.
e. Although the Reliability Test shall include a demonstration of an on line switch-over from Natural Gas operation to Diesel Fuel operation, if the Generator shall have successfully demonstrated such a switch-over during any previous test of the Power Station, including the EPC Guarantee Tests or the Completion Tests, such on line switch-over component of the Reliability Test shall be considered satisfied and shall not be required to be repeated during the Reliability Test.
f. The Reliability Test shall be conducted on Natural Gas.
g. In the event of any conflict or inconsistency between the provisions of this Article 5.3 and any other provision of this Agreement (including any Schedule hereto) in relation to the Reliability Test, the provisions of this Article 5.3 shall prevail.
ARTICLE 6. SUPPLY OF FUEL
6.1 Fuel for Testing and Operation
a. All Fuel required for the Testing and Operation of the Power Station shall be delivered by [BBB] to the Generator at the Fuel Delivery Point. The Generator shall use such Fuel only to Test and Operate the Power Station in accordance with this Agreement and shall only be obliged to pay [BBB] for such Fuel in the circumstances mentioned in Article 6.5 and Article 6.6.
b. The Generator shall only use Natural Gas to Test and Operate the Power Station, except to the extent [BBB] otherwise requires or the use of Diesel Fuel is necessary to Test the performance of the Power Station using Diesel Fuel in accordance with the Thirteenth Schedule.
c. The Generator shall immediately advise [BBB] if it is unable to accept delivery of and/or to use Natural Gas and/or Diesel Fuel, and, as soon as practicable, of when it will again be able to do so.
d. To the extent the Generator uses Diesel Fuel to Test or Operate the Power Station as a result of any failure by it to fulfill an obligation under this Agreement to accept delivery of and to use Natural Gas (for any reason other than Government Force Majeure), and notwithstanding that such use may have been required by [BBB], the Generator shall indemnify [BBB] from all additional costs and expenses (and in the currency) incurred by [BBB] as a result thereof.
6.2 Delivery
a. During:
i. any period when the Generator is conducting commissioning and testing, Commissioning Activities and the Completion Tests; and
ii. any other period of Testing and during Operation of the Power Station,
the timing of the performance of any commissioning and/or testing, Commissioning Activities and Completion Tests shall be prepared and submitted in accordance with Article 4.1, and estimates of electrical output, Fuel usage, generation forecasts (as applicable) shall be prepared and submitted in accordance with the FSMA and the Schedules, and any dispatch protocol agreed between [BBB] and the Generator pursuant to Section IV of the Sixth Schedule (as appropriate). Subject to paragraph b. below, the Generator's estimates of its requirements for Fuel will be based on [BBB]'s generation forecasts, which shall indicate whether (and the extent to which) the Power Station will be dispatched on Natural Gas or Diesel Fuel, and the Generator shall have no liability to [BBB] pursuant to this Article 6.2 a. if [BBB]'s actual dispatch instructions deviate from such generation forecasts. Subject to the preceding sentence, the Generator acknowledges and accepts that [BBB] will make commitments to its Fuel Suppliers on the basis of such estimates of requirements for Fuel, and shall indemnify [BBB] from any loss or damage suffered by [BBB], net of any compensation pursuant to Article 6.5 below, to the extent that such loss or damage is the result of the Generator's failure to act in accordance with Good Operating Procedures in making and liaising in the preparation of such estimates.
b. Notwithstanding paragraph a. above, but subject, in respect of Natural Gas, to receipt of appropriate dispatch instructions, and, in respect of Diesel Fuel, to the design availability of storage at the Power Station, the Generator shall accept delivery of Fuel as and when tendered by [BBB] at the Fuel Delivery Point.
c. Fuel delivered by [BBB] at the Fuel Delivery Point shall remain the property of [BBB] but shall be at the risk of the Generator, which shall indemnify [BBB] from any loss or damage thereto or occasioned thereby and, without prejudice to the foregoing, insure such Fuel in the name of [BBB] for its full replacement cost and against any liability of [BBB] to third parties as owner thereof.
6.3 Measurement and Quality
a. The quantity and quality of Fuel tendered for delivery and, in the case of Natural Gas, the pressure at which it is tendered, shall be determined by the Generator in accordance with relevant ASTM and ISO standards and otherwise in accordance with Good Operating Procedures and subject to independent verification.
b. The Generator may reject delivery of Fuel which does not comply with the Fuel specifications in the Fourth Schedule (including, in the case of Natural Gas, pressure). However, the Generator having accepted it, [BBB] shall not be liable in any way whatsoever for any loss or damage suffered by the Generator (whether as a result of damage to the Power Station or otherwise) as a result of its use of that Fuel.
6.4 Fuel Management
a. Without prejudice to the obligations of the Generator under Section II(a) of Schedule 6, [BBB] shall use its reasonable endeavours, consistent with its generation requirements, to schedule maintenance outages of the Natural Gas supply facilities at the same time as Planned Maintenance of the Power Station.
b. Both Parties shall, in good faith, negotiate reasonable amendments to the FSMA if and when requested by either Party, provided, however, that such amendments shall not increase either Party’s liability under the FSMA.
6.5 Fuel Minimum Take Payment
The Generator acknowledges that the Fuel Supply Contract for Natural Gas may require [BBB] to take or pay for a minimum quantity of Natural Gas in a Period ("take or pay quantity"), but that, to the extent it pays for Natural Gas as a result thereof and does not take it, [BBB] may have rights to Natural Gas ("make up gas") at a reduced value in the future. Accordingly, and to the extent [BBB] pays for Natural Gas which it does not take in such circumstances and the Generator has not achieved a minimum level of Availability, a Gas Inventory Fee shall be calculated (and immediately paid by the Generator to [BBB]) in respect of and at the end of each such Period, but not in respect of any part of a Period earlier than the later of a. and b. below (the later of a. and b. below hereinafter the "GIF Commencement Date"):
a. the day after completion of the Reliability Test;
b. [•], 20[•];
as follows:
GIF = GIp*PG*AIR
where
GIF is the Gas Inventory Fee for the Period;
and the other factors are:
GIp is the value of GI when last calculated;
GI = GIp+G-RGI (but not less than zero); in the first Period, GI is zero;
G is so much of the take or pay quantity in the previous Period as is not taken by [BBB], in GJ; if Am >Ap, G = (Am-Ap)HR; if Am<Ap, G is zero;
RGI is the reduction in Gas Inventory in the previous Period; if Am<ME and GI>0, RGI = (ME-Am)HR; if Am>ME, RGI is zero;
Am = [•] GWh/Period (and pro rata to the extent such Period is not a Year);
Ap = TA-FO-PMO-CO;
TA is GNCC, multiplied by the number of hours in the previous Period;
FO is Forced Outage (as defined in the Sixth Schedule) in the previous Period;
PMO is Planned Maintenance Outage (as defined in the Sixth Schedule) in the previous Period;
CO is Capacity Outage (as defined in the Sixth Schedule) in the previous Period except as a result of Force Majeure;
HR is the Guaranteed Plant Net Heat Rate, in kJ/kWh;
ME is the electricity supplied in the previous Period, in GWh;
PG the weighted average value (in US$/GJ) of the gas in GI, based on the volume added to GI and the price paid for such gas by [BBB] at the time when the gas was added to GI, and adjusted for RGI on a first in, first out, basis; and
AIR is the Agreed Interest Rate.
If, at the beginning of a Period, GI is equal to or greater than the aggregate take or pay quantity of [•] Months, the Generator shall immediately pay to [BBB] the value of the gas concerned, and of any increments therein from time to time (determined as above), and shall cease to pay the Gas Inventory Fee until GI is zero. Without prejudice to the generality of Article 2.3 a., [BBB] may make immediate demand under the appropriate Security in respect of the Gas Inventory Fee and any such amount. The Generator acknowledges that make up gas may be the last gas delivered in a Period.
As such quantity is utilized in the Power Station as make up gas:
(a) during the Cooperation Period; or
(b) during the period of one Year after the Cooperation Period,
[BBB] shall refund to the Generator the amounts paid by the Generator in respect of such quantity (but not the Gas Inventory Fee), minus (in the case of paragraph (b) above) any amount payable to the Fuel Supplier under the Fuel Supply Contracts in respect of producing, processing, transporting and delivering Natural Gas during such period of one Year.
In this Article 6.5, “Period” means the period beginning at [•] hours a.m. on the first day of January in any Year and ending at the same time on the [•]th day of [Month] in the immediately succeeding Year, provided, however, that:
i. the first Period shall mean a period beginning at [•] a.m. hours on the GIF Commencement Date and ending at [•] hours a.m. on the next following [•]th day of [•]; and
ii. the last Period shall mean the period beginning at [•] hours am. on the [•]th day of [•] in the last year of the Cooperation Period and ending at [•] hours a.m. on the date of termination of this Agreement.
The Parties shall, in good faith, negotiate reasonable amendments to the foregoing to reflect the relevant Fuel Supply Contracts.
Availability attributable to the use of Diesel Fuel in the circumstances mentioned in Article 6.1 d. shall be deducted in the determination of the factor Ap above, except if the failure to accept delivery of and to use Natural Gas was because of Force Majeure.
6.6 Payment for Fuel
a. All Fuel delivered by [BBB] and utilized by the Generator:
i. before the Completion Date (but including for the Guarantee Tests if also carried out after the Completion Date in the circumstances mentioned in Article 4.5);
ii. during any part of the Reliability Test after the first [•] days of such Reliability Test, as such [•] day period may be extended by any Dispatch Interruption Event, event of Force Majeure affecting the Generator, or pursuant to Article 5.3 c.ii.; and
iii. after the Completion Date for Testing (other than the re-performance of the Guarantee Tests under Article 4.3 a., the first [•] Performance Tests in any Contract Year and routine Plant Net Heat Rate Tests which are successfully completed),
shall be paid for by the Generator, in the case of Fuel mentioned in paragraphs i. and ii. above, at [•] Dollars and [•] cents per GJ, based on LHV, and, in the case of Fuel mentioned in paragraph iii. above, at the price (and in the currency) payable therefor by [BBB] under the Fuel Supply Contract. However, if the length of the Reliability Test is less than [•] days, [BBB] shall reimburse the Generator (at [•] Dollars and [•] cents per GJ, based on LHV) for Natural Gas used and paid for by the Generator during other Tests of the Power Station prior to the Completion Date. Notwithstanding the foregoing provisions of this paragraph a., the maximum aggregate amount payable by [BBB] in respect of:
A. the Natural Gas used during the Reliability Test (which shall be computed at [•] Dollars and [•] cents per GJ, based on LHV); and
B. the reimbursement of Natural Gas used during such other Tests,
shall not exceed US$ [•].
b. [BBB] shall compensate the Generator in accordance with paragraph 2 of Section IV of the Eighth Schedule for additional costs and expenses to be incurred by the Generator in a Contract Year for the use of Diesel Fuel (other than in the circumstances mentioned in Article 6.1 d.) if such use is required in excess of [•] megawatt hours in the Contract Year concerned.
c. If the Generator is required by [BBB] in any Contract Year and other than in the circumstances mentioned in Article 6.1 d. to Operate the Power Station on Diesel Fuel in excess of the Allowed Diesel Hours (as defined in the Eighth Schedule), the GPNHR for Natural Gas shall be adjusted in accordance with paragraph 3 of Section IV of the Eighth Schedule.
ARTICLE 7. PAYMENT
7.1 Availability and Energy Fees
a. [BBB] shall not pay the Generator Energy Fees for electricity supplied during Tests other than:
i. the Reliability Test; and
ii. the first four Performance Tests in any Contract Year and routine Plant Net Heat Rate Tests conducted after the Completion Date.
All electricity supplied, whether before or after the Completion Date, shall be owned by [BBB].
b. During the Cooperation Period and subject as otherwise provided in this Agreement, [BBB] shall pay to the Generator Availability Fees and Energy Fees and/or the Generator shall pay to [BBB] amounts, calculated as and subject as provided in the Eighth Schedule.
7.2 Payments by [BBB]
a. All amounts payable by [BBB] to the Generator under this Agreement shall, unless otherwise specifically provided in this Agreement, be paid:
i. in full within:
aa. [•] days after the end of the Billing Period to which they relate or (in respect of electricity supplied during the Reliability Test) [•] days after the end of the Reliability Test; or
bb. [•] days after receipt by [BBB] of (and in the currency of, as provided in the Eighth Schedule or elsewhere in this Agreement) an invoice therefor from the Generator (which invoice shall, in respect of electricity supplied during the Reliability Test, be rendered not before the end of the Reliability Test),
whichever is the later, without deduction, set-off or counterclaim (other than as required by Law), provided that if [BBB] disputes, in good faith, all or any part of an invoice, it shall promptly give the Generator notice thereof and (without prejudice to paragraph b. below) shall only be required to pay the undisputed portion on the due date; and provided further that after the Lending Agreement Repayment Date, [BBB] may set-off the amount of any invoice given by [BBB] to the Generator pursuant to Article 7.3 and not paid by the Generator within the [•]-day period referred to therein against the Availability Fees due the Generator in the succeeding Month following the last day of such [•]-day period; and
ii. to the account of the Generator (in [•] in respect of [Currency] amounts, and outside of the [Name of the Country] in respect of other currencies) notified to [BBB] from time to time, in same day funds not later than [•] am at the place of payment on the due date for payment.
All costs of remittance shall be for the account of [BBB]. However, that portion of regular and generally applicable bank charges and fees in excess of [•] percent of the amount remitted shall be for the account of the Generator and shall be deducted from the amount payable. Subject thereto, if any payment, whether pursuant to judgment or otherwise, upon prompt conversion to Dollars does not result in the payment of the Dollar amount stipulated in this Agreement, the Generator shall be entitled to immediate payment of, and shall have a separate cause of action for, the Dollar deficiency. However, should such result in receipt by the Generator of a sum in excess of the said Dollar amount, the Generator shall notify and pay the excess amount to [BBB] immediately upon the Generator becoming aware of the overpayment.
b. To the extent any amount (including any disputed amount which is subsequently determined to be payable) is not paid in full when due, the unpaid portion shall bear interest at the Agreed Interest Rate from the due date for payment until paid (together with such interest).
7.3 Payments by the Generator
a. All amounts payable by the Generator to [BBB] under this Agreement shall, unless otherwise specifically provided in this Agreement, be paid:
i. in full within [•] days after receipt by the Generator of (and in the currency of) an invoice therefor from [BBB] without deduction, set-off or counterclaim (other than as required by Law). However, if the Generator disputes, in good faith, all or any part of an invoice, it shall promptly give [BBB] notice thereof and (without prejudice to paragraph b. below) shall only be required to pay the undisputed portion on the due date and, notwithstanding the right to set-off given to [BBB] under Article 7.2 a.i., [BBB] shall not have the right to set-off any such disputed amount; and
ii. to the account of [BBB] notified to the Generator from time to time in same day funds not later than [•] am at the place of payment on the due date for payment.
All costs of remittance shall be for the account of the Generator. The provisions of the last two sentences of Article 7.2 a. shall apply, mutatis mutandis.
b. To the extent any amount (including any disputed amount which is subsequently determined to be payable) is not paid in full when due, the unpaid portion shall bear interest at the Agreed Interest Rate from the due date for payment until paid (together with such interest).
7.4 Change of Law
a. If as a result of:
i. any Law coming into effect after the Bid Submission Date, including any Law or any official interpretation or manner of enforcement thereof (in each case as evidenced by any written interpretation or written position of the applicable Competent Authority or by an established pattern of conduct of such Competent Authority), in force or otherwise applicable at the Bid Submission Date being amended, modified, repealed or replaced, but excluding the issuance of any Consent pursuant to any Law as in force and effect at the Bid Submission Date;
ii. any Consent granted to the Generator or to [BBB] that has been applied for by the Generator for and on behalf of [BBB], and in each case, required by the Generator to perform its obligations under this Agreement subsequently terminating, being withdrawn, amended, modified or replaced other than as a result of:
aa. termination, withdrawal, amendment, modification or replacement of such Consent in accordance with the terms upon which it was originally granted (it is expressly understood and agreed that such original terms do not include any Change of Law relating to such Consent described in paragraph a.i. above);
bb. failure by the Generator to comply with any condition related to such Consent, other than any such condition resulting from any Change of Law relating to such Consent described in paragraph a.i. above; or
cc. any act or omission of the Generator, any Proponent or any Contractor under the Construction Contract or O&M Contract, other than any act or omission which pursuant to applicable Law as in force and effect at the Bid Submission Date (before giving effect to any Change of Law with respect to such Consent pursuant to paragraph a.i. above) would not have resulted in the termination, withdrawal, amendment, modification or replacement of such Consent; and
iii. any Consent (including any Consent for which the Generator applies on behalf of [BBB]) required by the Generator to perform its obligations under this Agreement and for which the Generator makes an application proper in form and substance, at the appropriate time and which application the Generator diligently pursues, not being granted, other than if the refusal by the relevant Competent Authority to grant such Consent:
aa. is made in accordance with any Law and any official interpretation or manner of enforcement thereof (in each case as evidenced by any written interpretation or written position of the applicable Competent Authority or by an established pattern of conduct of such Competent Authority) in force or otherwise applicable at the Bid Submission Date;
bb. could reasonably have been avoided or overcome if the Generator had not failed to exercise Good Operating Procedures; or
cc. is the result of any act or omission of the Generator, any Proponent or any Contractor under the Construction Contract or O&M Contract, other than any act or omission which pursuant to applicable Law in force and effect at the Bid Submission Date (before giving effect to any Change of Law with respect to such Consent pursuant to paragraph a.i. above) would not have resulted in such refusal to grant such Consent,
("Change of Law"), the Generator incurs Additional GFM Costs, the provisions of Article 15.1 c. shall apply.
The Parties agree that for all purposes of this Agreement the following shall constitute a Change of Law: any failure by [BBB] to perform any of its obligations under the MOA Regarding the Foreshore Lease which results in the cancellation or suspension of the Foreshore Lease, the Jetty Permits or the Water Permit (as these terms are defined in the MOA Regarding the Foreshore Lease) or in an interruption of access by the Generator to the Foreshore Property (as this term is defined in the MOA Regarding the Foreshore Lease) or any wilful denial by [BBB] of access by the Generator to the supply of water to the Power Station.
b. If a Change of Law would (or, in the reasonable opinion of [BBB] notified to the Generator, may) materially and favourably affect the economic return of the Generator (before all [Name of the Country] taxes, including those imposed on income, profit or gain, but after [Name of the Country] interest withholding taxes) on its investment in the Project, the Generator shall give [BBB] notice thereof with reasonably full particulars of the Law concerned and of its proposals for (and the savings to it resulting from) taking advantage thereof. Such proposals shall reflect the option which will involve the greatest savings for [BBB] consistent with the Generator's obligations under this Agreement and which will not materially prejudice the performance of the Power Station. Thereafter, the Parties shall promptly meet and seek, in good faith (including by the provision of information and data), to reasonably agree on amendments to this Agreement which will substantially preserve the Generator's said economic return at the greatest saving to [BBB] consistent with the Generator's ongoing obligations under this Agreement and which will not materially prejudice the performance of the Power Station.
c. i. For the purpose of determining whether the Generator has incurred Additional GFM Costs pursuant to paragraph a. above, or for the purpose of paragraph b. above, a Consent as initially given shall not be a Law coming into effect after the Bid Submission Date unless given on terms which are materially different to those which the Generator (to the best of its knowledge) could reasonably have anticipated on the Bid Submission Date.
ii. Paragraphs a. and b. above shall not apply in respect of any Law passed but not in effect, on the Bid Submission Date or to any determination by a Competent Authority that outputs supplied by the Generator to [BBB] under this Agreement are subject to VAT in excess of zero percent.
iii. Paragraphs a. and b. above shall apply if:
aa. having made a proper application at the appropriate time and diligently pursuing its application the Generator is not granted Pioneer Status (other than for the circumstances referred to in paragraph a. iii. above mutatis mutandis);
bb. if having been granted Pioneer Status the Generator is not subsequently entitled (by reason of any change in or withdrawal of its Pioneer Status, or any incentive in connection therewith, (other than in the circumstances contemplated by paragraph a.ii. above, mutatis mutandis)) to avail itself of incentives available to enterprises with Pioneer Status on the Bid Submission Date; or
cc. as a result of a change in the status of [BBB] consequent upon privatisation or other reorganisation of the electricity supply industry, the manner of application of a Law to [BBB] changes.
7.5 Payment by [BBB] of Certain Taxes
a. [BBB] shall be responsible for the payment of all real estate taxes and rates levied on the [BBB] Site (including by reference to buildings and other improvements thereon (including the Power Station)). Without prejudice to Articles 7.4 or 8.3 or to the remaining paragraphs of this Article 7.5, all other taxes, duties and fees of whatsoever nature levied on the Generator or on the Project or on the supply of capacity, electricity and other services to [BBB] shall be for the account of the Generator, which shall indemnify [BBB] therefrom.
b. The Parties acknowledge that the amounts payable to the Generator pursuant to Article 7.1 or otherwise payable pursuant to the Eighth Schedule or any other provision of this Agreement do not take account of or include value added tax. If at any time hereafter a Competent Authority shall determine that any such payment made or payable to the Generator under this Agreement (other than the Buyout Price in case of a Buyout Notice given by the Generator) is (or at the time of payment to the Generator was) subject to value added tax, [BBB] shall :
i. pay to the Generator an amount consisting of such value added tax due on such payment; and
ii. indemnify the Generator against any and all claims, assessments, costs and expenses arising by reason of or in connection with the non-payment of such tax, including interest, surcharges and penalties and any cost incurred by the Generator in defending against assessment in any proceedings if [BBB] requested that the Generator defend such assessment, as and when such claims, assessments costs or expenses are payable by the Generator.
ARTICLE 8. TRANSFER OF POWER STATION
8.1 Transfer Date
a. On the Transfer Date or, if earlier, the Buyout Date, [BBB] shall pay the Buyout Price (if any), and, concurrently with such payment of the Buyout Price (if any), the Generator shall transfer to [BBB] and [BBB] shall accept, the Generator's Interest (other than this Agreement) free from any lien, charge or other encumbrance. However, [BBB] shall not thereby be obliged to accept any contract, agreement or arrangement, whether of employment, service or otherwise (but any agreement of [BBB] so to do shall be without prejudice to paragraph c. below). This Agreement shall terminate upon completion of such transfer.
b. The Generator shall indemnify [BBB] from and against all obligations and liabilities accrued in respect of the Generator's Interest prior to the completion of such transfer.
c. Subject to Article 8.3, [BBB] shall indemnify the Generator from all obligations and liabilities accruing in respect of the Generator's Interest after the completion of such transfer to the extent the Generator (to the best of its knowledge) has made full disclosure in writing thereof to [BBB] prior to completion of such transfer and such obligations and liabilities (whether or not disclosed) have been made in good faith, on an arms length basis and in accordance with Good Operating Procedures, and are not unduly onerous (failing which, in any case, the Generator shall indemnify [BBB] therefrom).
d. Notwithstanding paragraph c. above, the Generator shall indemnify [BBB] from any loss or damage suffered by it after the completion of the transfer mentioned in paragraph a. above to the extent a result of any failure of the Generator to fulfill its obligations at any time under this Agreement.
8.2 Inventories and Warranties
a. [•] Months prior to the Transfer Date, or, if earlier, as soon as practicable after a Buyout Notice is given, [BBB] and the Generator shall meet and agree upon the inventories involved, the mechanics of transfer and security arrangements. The Generator shall not be liable for any shortfall on completion of the transfer if it has exercised, prior to and after such agreement, Good Operating Procedures (including in respect of the level of spares, material and other supplies maintained). Without prejudice to the foregoing, [BBB] shall, at its own expense, be entitled to provide a security unit within the Site. [BBB] shall procure that the security unit so provided shall not interfere with the normal operations of the Generator.
b. The Power Station shall, subject as otherwise provided in this Agreement (including Article 8.1 and paragraph a. above), be transferred on an "as is" basis, and any warranties which would otherwise be implied by statute or otherwise, including warranties as to fitness for purpose, the absence of patent or inherent defects, description or otherwise of whatsoever nature (but not as to title), shall be excluded.
8.3 Costs and Further Assurances
Except as provided in Articles 7.5 and 15.1 (if applicable), each Party shall bear its own costs and all taxes and duties levied upon it in respect of and shall execute and deliver all instruments reasonably necessary to give full and complete effect to, the transfer mentioned in Article 8.1 a. Notwithstanding the foregoing, if, on or prior to the Lending Agreement Repayment Date, the net amount of any Buyout Price, after deduction for all such costs, taxes and duties payable by the Generator in connection with such transfer but before giving effect to the remaining provisions of this Article 8.3 (the "Net Buyout Amount"), would be less than the aggregate of all amounts outstanding to the Lenders under the Lending Agreements on and as of the date of transfer of the Generator's Interest pursuant to Article 8.1 a., then the Buyout Price shall be increased by the lesser of:
a. the aggregate amount of all such costs, taxes and duties payable by the Generator in connection with such transfer; and
b. the excess of all amounts outstanding to the Lenders under the Lending Agreements on and as of the date of transfer of the Generator's Interest pursuant to Article 8.1 a. over the Net Buyout Amount.
8.4 Payments by [BBB] on the Buyout Date
a. Subject to paragraph b. below, Article 8.3 and Article 8.4c. and to Section V of the Eighth Schedule, [BBB] shall, on the Buyout Date and concurrently with the transfer of the Generator's Interest pursuant to Article 8.1 a. resulting from a Buyout Notice, pay to the Generator:
i. if the Buyout Notice is given after the Completion Date, an amount (and in the currencies) equal to the aggregate of the Capital Recovery Fees which would be payable to the Generator pursuant to Article 7 on and from completion of transfer until the earliest date on which the Transfer Date then could have occurred. Such amount shall be calculated on the assumptions that throughout such period the Net Available Capacity is equal to the weighted average of the Net Available Capacities in effect during the Year ending on the date the Buyout Notice is given (but not greater than Guaranteed Net Contracted Capacity). The resulting figure shall be discounted to the date of completion of the transfer by a rate equal to that which would have been the then applicable Weighted Average Cost of Capital on and from the date of completion of the transfer until the earliest date upon which the Transfer Date then could have occurred; and
ii. if the Buyout Notice is given before the Completion Date, an amount (and in the currencies) equal to all costs and expenses reasonably and properly incurred by the Generator in the Construction of the Power Station (including, subject to paragraph b. below, interest and fees under the Lending Agreements but excluding any interest and fees paid or payable under any loan, credit or other similar agreement with an Affiliate or related company) from the Effective Date, provided such have been incurred on an arms length basis and are not as the result of negligence, breach of contract or other misfeasance by the Generator,
in either case, the amount payable by [BBB] being the "Buyout Price".
b. Prior to the Lending Agreement Repayment Date and subject to paragraph c. below, the Buyout Price shall not be less than that required to repay all amounts owing to the Lenders pursuant to the Lending Agreements on the date of completion of the transfer of the Generator's Interest pursuant to Article 8.1 a. resulting from a Buyout Notice, including the principal amount of debt outstanding under the Lending Agreements, together with interest and fees accrued thereon but not then payable and the net amount of all other sums due thereunder but excluding the amounts payable by the Generator to the Lenders in respect of costs of unwinding any hedging arrangement resulting from a prepayment or acceleration of the debt outstanding under the Lending Agreements due to the occurrence of the Buyout Date.
c. Subject to Article 10.3, if the circumstances resulting in the transfer of the Generator's Interest pursuant to Article 8.1 a. above would entitle the Generator to recover any insurance proceeds in respect of physical loss or damage to the Power Station, there shall be deducted from the Buyout Price the amount of any such insurance proceeds in respect of physical loss or damage to the Power Station (net of reasonable collection costs) which are "payable" (as defined in Article 10.3) to the Generator under insurance or reinsurance policies:
i. in respect of physical loss or damage to the Power Station which are then required to be obtained and maintained by the Generator in accordance with Article 10.1; and
ii. in respect of physical loss or damage to the Power Station which are not then required to be obtained and maintained by the Generator in accordance with Article 10.1 but which nonetheless have been obtained and are then being maintained by the Generator,
as a result of the events giving rise to the relevant Buyout Notice,
provided, however, that in no event shall the Buyout Price be reduced by:
aa. amounts payable in respect of claims under any policy referred to in paragraph ii. above in respect of which the Lenders have not been granted a first ranking lien over the Generator's interest in such policy if and to the extent that, as a result of such deduction, the Buyout Price would be less than that required to repay all amounts owing to the Lenders pursuant to the Lending Agreements in accordance with paragraph b. above;
bb. any advance loss of profit, delayed start-up or business interruption insurance proceeds;
cc. any proceeds of any political risk insurance, or any proceeds of any comprehensive guarantee, payable to or for the benefit of any Lender, including the political risk insurance provided by [Name of the Ministry] of Government of [Name of the Country] and the comprehensive guarantee provided by [Name of the Bank];
dd. any insurance proceeds in respect of physical loss or damage to the Power Station which, as of the date of transfer of the Generator's Interest pursuant to Article 8.1 a. have already been applied to reduce indebtedness owed to the Lenders under the Lending Agreements, to the extent that such application is permitted by this Agreement; and
ee. any proceeds of any insurance, to the extent that the rights of the Generator and the Lenders thereto have been assigned and transferred to [BBB] pursuant to Article 10.3.
d. For the avoidance of doubt, it is agreed that [BBB] shall not be obliged to pay any amount under this Article 8.4 if the transfer mentioned in Article 8.1 a. is to occur on the Transfer Date.
8.5 Training of [BBB] Personnel
a. Not later than one Contract Year before the Transfer Date, or, if earlier, as soon as practicable after a Buyout Notice is given, the Parties shall meet and arrange for a reasonable period of training (free of charge to [BBB]) for an adequate number of [BBB] personnel in the Operation and Maintenance of the Power Station provided, however, that if the training required pursuant to the foregoing provisions of this Article 8.5 has not been completed by the Transfer Date or the Buyout Date (as the case may be), the Generator shall complete such training, to [BBB]’s reasonable satisfaction (still free of charge) following the Transfer Date or the Buyout Date (as the case may be).
b. The Parties agree that [BBB] shall have the option to require the Generator to train an agreed number of [BBB] personnel to operate the Power Station upon such terms and conditions as shall be separately agreed upon by [BBB] and the Generator.
8.6 Overhaul Before Transfer Date
The Generator shall conduct a scheduled full maintenance overhaul (at which a reasonable number of [BBB] personnel may be present) of the Power Station within [•] Contract Year before the Transfer Date.
8.7 Buyout Notice
A Buyout Notice may be given:
a. by [BBB]:
i. if periods of Government Force Majeure have resulted in the Target Completion Date being extended by [•] Months, but not in the circumstances mentioned in Articles 4.4 and 4.5 nor if the Completion Date has occurred and the Parties are unable to agree upon an alternative course of action (including amendments to this Agreement) within [•] months after the date that the Generator shall have first notified [BBB] in writing of any such extension of the Target Completion Date; or
ii. if periods of Government Force Majeure (whether affecting [BBB] or the Generator) during the Cooperation Period have resulted in an aggregate loss of Net Electrical Output from the Power Station during the Cooperation Period equal to Contract Availability (as defined in the Sixth Schedule) for a Contract Year (of three hundred and sixty five days) less Allowed Maintenance Downtime (without regard to paragraph b. in the definition thereof) and Allowed Forced Outage Downtime (both as defined in the Sixth Schedule); and
b. by the Generator:
i. if:
aa. periods of Government Force Majeure have resulted in the Target Completion Date being extended by [•] Months, but not in the circumstances mentioned in Articles 4.4 and 4.5 nor if the Completion Date has occurred; or
bb. [BBB] fails to comply with its obligation to procure for the Generator such peaceful and exclusive use and possession of the [BBB] Site as is reasonably necessary to enable it to perform its obligations under this Agreement for a continuous period of at least six months, including as a result of legal challenge to [BBB]'s legal title to the [BBB] Site or any part thereof (whether or not constituting Force Majeure affecting [BBB]) and not attributable to the Generator's failure to comply with any of its obligations in respect of the [BBB] Site specified in item 19. of paragraph 1.5.2 of Section 1, item 1. of paragraph 1.8.3 of Section 1, and in the Fencing provisions set out in paragraph 2.2.6 of Section 2, of the First Schedule,
and the Parties are unable to agree upon an alternative course of action (including amendments to this Agreement) within 3 months after the date that the Generator shall have first notified [BBB] in writing of any such extension of the Target Completion Date or any failure to procure such peaceful and exclusive use and possession for a continuous period of at least six months (as the case may be);
ii. if periods of Government Force Majeure (whether affecting [BBB] or the Generator) during the Cooperation Period have resulted in an aggregate loss of Net Electrical Output from the Power Station during the Cooperation Period equal to Contract Availability (as defined in the Sixth Schedule) for a Contract Year (of three hundred and [•] days) less Allowed Maintenance Downtime (without regard to paragraph b. in the definition thereof) and Allowed Forced Outage Downtime (both as defined in the Sixth Schedule); or
iii. as provided in Article 12.6 c.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
9.1 By the Generator
The Generator represents, warrants and covenants to [BBB] that:
a. it is and shall remain at all material times a private corporation, duly organized and existing under the laws of the [Name of the Country] with the corporate power and authority to enter into, execute, deliver and perform this Agreement, and that as of the date of this Agreement the shareholders of the Generator are as mentioned in the Recitals;
b. it has taken all necessary corporate action to enter into, execute, deliver and perform this Agreement, and such will not constitute a breach of any agreement or arrangement to which it is party;
c. its memorandum and articles of incorporation as delivered to [BBB] pursuant to Article 2.1 will not be amended without the reasonable consent of [BBB];
d. neither it nor the Proponent nor their respective representatives, has offered any government officer and/or [BBB] official or employee any consideration or commission for this Agreement nor has it or any of them exerted or utilized any corrupt or unlawful influence to secure or solicit this Agreement for any consideration or commission; that neither it nor any of them shall subcontract the performance of any of obligations under this Agreement to any person known by it or them to be an official or employee of [BBB] (or a relative within the third degree of consanguinity or affinity of any such official or employee) who is directly or indirectly involved in contract awards or project prosecution; and that if any commission is paid to any person by it or any or them, the Generator shall disclose the name of the person and the amount to be paid. Notwithstanding anything elsewhere contained in this Agreement, it is agreed by the Generator that if there is any material violation of this paragraph d., [BBB] may, in accordance with Article 12.6 a., terminate this Agreement and/or deduct from the Termination Price (if any) and/or any other amounts payable by [BBB] under this Agreement an amount equal to the consideration or commission paid, without prejudice to the filing of a civil or criminal action under the Anti-Graft and Corrupt Practices Act and other applicable laws against the Generator, the Proponent and/or their representatives and officials and employees of [BBB] and the government;
e. the Generator's Interest will comprise all rights necessary to enable it to Construct, Operate and Maintain the Power Station, and transfer it, in accordance with this Agreement; and
f. the Generator shall engage in no business or activity other than those directly related to the Project.
9.2 By [BBB]
[BBB] represents, warrants and covenants to the Generator that:
a. as at the Contract Signing Date, it is a corporation duly organized and existing under and by virtue of the laws of the [Name of the Country], and has the corporate power and authority to enter into, execute, deliver and perform this Agreement; and
b. it has taken all necessary corporate action to enter into, execute, deliver and perform this Agreement and such will not constitute a breach of any agreement or arrangement to which it is party.
ARTICLE 10. INSURANCE
10.1 Generator's Obligation
The Generator shall at all material times obtain and maintain in full force and effect the insurances mentioned in the Ninth Schedule and in Article 6.2 c. from GSIS in accordance with Administrative Order 141 dated [•], 20[•] of the Government of the [Name of the Country]. Subject thereto, the Generator shall have the right to obtain reinsurance with direct access thereto for itself and any Lender. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, in the event that any insurance coverage required pursuant to the Ninth Schedule or Article 6.2 c. becomes Uninsurable, the Generator shall be relieved of its obligation to obtain and maintain such insurance.
If the Generator believes that any insurance coverage required under the Ninth Schedule or Article 6.2 c. has become Uninsurable, before it can be relieved of its obligation to obtain and maintain such insurance, it shall:
a. provide [BBB] with written notice thereof, which notice shall describe the relevant insurance coverage and set forth the basis on which the Generator believes such coverage has become Uninsurable;
b. consult with [BBB] and GSIS for a period of [•] days following receipt by [BBB] of the Generator's notice referred to in paragraph a. above in order to give GSIS the opportunity to provide such insurance coverage, and [BBB] and the Generator an opportunity to agree on the means by which the risk should otherwise be managed; and
c. upon request of [BBB], furnish [BBB] with such evidence as is reasonable in support of its belief that a required insurance coverage has become Uninsurable.
In the event that the Parties are unable to agree whether a particular risk is Uninsurable within [•] days of receipt by [BBB] of the Generator's notice referred to in paragraph a. above, the Generator shall be entitled to obtain a written letter of confirmation from a reputable international insurance broker stating that other electricity generators similarly situated to the Generator have elected not to obtain and/or maintain insurance in respect of the risk in question due to the unfavourable terms on which such insurance is generally offered in the relevant marketplace, and upon the delivery to [BBB] of such a letter in respect of any insurance coverage, such insurance coverage shall for all purposes of this Agreement be considered Uninsurable.
10.2 Additional Insureds
All insurances and any reinsurances obtained and maintained by the Generator (whether or not as mentioned in the Ninth Schedule) shall name as additional insureds (and be endorsed with waivers of subrogation against) [BBB], its and its Affiliates' respective directors, officers, employees and agents, and the Generator shall from time to time provide [BBB] with certificates evidencing that such insurances are in effect in accordance herewith.
10.3 Insurances Payable
For the purpose of Articles 8.4 c. and 12.6 f., the amount of any physical loss or damage insurance proceeds "payable" to the Generator pursuant to claims under:
a. any GSIS Insurance, will be the amount actually received by the Generator from GSIS; and
b. any other insurance or reinsurance, will be the amount determined by settlement with the relevant insurers and reinsurers as being payable by such insurers and reinsurers in respect of the relevant claim.
On and following the date of a Buyout Notice or a notice of termination pursuant to Article 12.6 a., if any insurance coverage is maintained pursuant to Article 10.1 above against the risks which resulted in the delivery of such Buyout Notice or such notice of termination pursuant to Article 12.6a. below, as the case may be, [BBB] shall have the right to consent to any settlement of any claim by the Generator in respect of such insurance coverage, and the Generator shall not settle any such claim without such consent; provided, however, that if both the Generator and the Lenders (or any agent for the Lenders) notify [BBB] in writing of their desire to settle any insurance claim which would require [BBB]'s consent hereunder (and further specify the terms on which they are willing to settle such claim) and (x) within [•] days from receipt by [BBB] of such notice, [BBB] notifies the Generator and the Lenders that it does not consent to the proposed settlement or fails to provide notice to the Generator and the Lenders that it does or does not consent to the proposed settlement or requesting reasonable supporting documentation for such proposed settlement, or (y) if [BBB] requests supporting documentation in accordance with clause (x) and declines to provide its consent to the proposed settlement within [•] days from receipt of the supporting documentation (which supporting documentation will be deemed sufficient if it consists solely of a document from the Generator’s insurer and/or reinsurer stating that the information requested to be provided in such supporting documentation cannot be made available), then:
aa. in no event shall the Buyout Price or the Termination Price (if any), as applicable, be reduced by the amount of any proceeds paid or payable under, pursuant to or in connection with such claim; and
bb. upon and concurrently with the payment by [BBB] of the Buyout Price, or if any Termination Price is payable by [BBB] pursuant to Article 12.6 a. in respect of a transfer of the Generator's Interest pursuant to Article 12.6 e., upon and concurrently with the payment of such Termination Price, or if no Termination Price is payable in respect of a transfer of the Generator's Interest pursuant to Article 12.6 e., upon and concurrently with such transfer, all rights of the Generator and the Lenders in and to such insurance claim shall be transferred and assigned to [BBB] and the Generator and the Lenders (as applicable) shall execute and deliver such documents as [BBB] reasonably requests in order to effect or evidence such transfer and assignment.
10.4 Application of Physical Loss or Damages Insurance
a. All proceeds of claims under insurance or reinsurance policies relating to physical loss or damage required to be maintained pursuant to Article 10.1 (but excluding, any insurance proceeds of the type referred to in Article 8.4 c.bb. and cc.) shall be applied:
i. prior to the Lending Agreement Repayment Date if it is agreed between the Parties (acting reasonably) or subsequently determined pursuant to Article 14 or otherwise that repair or restoration (as the case may be) of the Power Station:
aa. is technically feasible;
bb. will restore the Power Station to a condition such that its Net Available Capacity and Plant Net Heat Rate will be the same as the Net Available Capacity and Plant Net Heat Rate, respectively, demonstrated by the last Performance Test carried out prior to the loss or damage in respect of which the claim is being made; and
cc. will be completed by the later of:
(i) the last day of the period commencing on the date on which the loss or damage in respect of which the claim is being made occurred and ending on the day following [•] Months thereafter; and
(ii) prior to the Completion Date, (which term when used in this Article 10.4 a.i.cc.(ii) shall not include the Deemed Completion Date), the last day of the cover period for the Generator's delayed start-up insurance, or after the Completion Date, the last day of the cover period for the Generator's business interruption insurance, as applicable; or
ii. on and from the Lending Agreement Repayment Date,
by the Generator to repair or restore the Power Station to its previous condition and, pending such application, shall be placed in escrow and shall be disbursed only with the concurrence of [BBB], such concurrence not unreasonably to be withheld;
b. Prior to the Lending Agreement Repayment Date:
i. if the Parties (acting reasonably) agree or it is subsequently determined pursuant to Article 14 or otherwise that it is not reasonably foreseeable that all of the criteria listed in Article 10.4 a.i. will be satisfied, or in any case where a termination notice is delivered pursuant to Article 12.6 d., then all insurance proceeds referred to in paragraph a. above;
ii. all insurance proceeds in respect of physical loss or damage to the Power Station the amount of which is deducted from any Buyout Price in accordance with Article 8.4 c.; and
iii. all insurance proceeds in respect of physical loss or damage to the Power Station the amount of which is deducted from any Termination Price in accordance with Article 12.6 f.,
shall be applied by the trustee or agent acting on behalf of the Lenders in a manner consistent with the terms of the Lending Agreements and [BBB] hereby acknowledges that the Generator shall be entitled to endorse or assign any such insurance proceeds or claims therefor in favour of the Lenders on terms that such proceeds shall be applied in accordance with the provisions of the Lending Agreements;
c. subject to Article 8, [BBB]'s insurable interest in the Power Station shall be [•] percent for each Contract Year (or part thereof); and
d. if the Parties cannot agree whether or not it is reasonably foreseeable that all of the criteria listed in Article 10.4 a. i. will be satisfied, then either Party may refer the matter to an Expert for resolution.
ARTICLE 11. STANDARDS OF PERFORMANCE AND FORCE MAJEURE
11.1 General Standards of Performance and Consents
a. All work and other Facilities (including the Construction, Operation and Maintenance of the Power Station, the Transmission Line and the Natural Gas Pipeline) shall be done and provided by the Party concerned in accordance with Good Operating Procedures and otherwise as required by this Agreement.
b. Each Party shall, at all material times, obtain, maintain and comply with the terms of all Consents necessary to enable it to fulfill its obligations under this Agreement or required to be obtained by it in order that the other Party may fulfill its obligations under this Agreement.
c. i. A Party may sub-contract the performance of any obligation under this Agreement to a third party but shall not thereby be relieved of any such obligation (except to the extent performed by the third party) nor shall any rights of the other Party thereby be prejudiced. Without prejudice to the generality of the foregoing, where [BBB] is permitted rights of access or to information under this Agreement, the Generator shall procure such cooperation from its Contractors as shall be necessary to give full and complete effect to such rights.
ii. The Generator shall give priority to the appointment of [Name of the Country] Contractors provided, however, that quality, delivery times, reliability, skills, experience and other terms are comparable to those offered by non - [Name of the Country] Contractors.
11.2 Force Majeure
Subject to the further provisions of this Article 11, a Party shall not be liable for any failure to perform an obligation under this Agreement to the extent such performance is prevented, hindered or delayed by:
a. events or circumstances (other than as mentioned in paragraph b. below) which are beyond its reasonable control and the effects of which could not (including by reasonable anticipation) or cannot reasonably be avoided or overcome by it by the exercise of Good Operating Procedures; or
b. i. war (whether declared or not), hostilities, belligerence, blockade, revolution or insurrection occurring in the [Name of the Country];
ii. expropriation, requisition, confiscation, nationalisation, import restrictions or closure of harbours, docks, canals or other assistance to shipping or navigation by any Competent Authority;
iii. rationing or allocation, whether imposed by Law or by compliance of industry at the insistence of any Competent Authority; or
iv. any act, matter or thing, wherever occurring, which is within the reasonable control of any Competent Authority including any Change of Law or termination of the Foreshore Lease by the Department of Environment and Natural Resources of the [Name of the Country],
and, in any such case, the effects of which could not (including by reasonable anticipation) or cannot reasonably be avoided or overcome by it by the exercise of Good Operating Procedures ("Government Force Majeure"),
(all such events and circumstances, including Government Force Majeure, herein called "Force Majeure"). However, the following shall not be Force Majeure:
a. Planned Maintenance;
b. failure to pay money;
c. Forced Outage, to the extent the result of actual or anticipated mechanical or electrical derangement or failure under design operating conditions and when Constructed, Operated and Maintained in accordance with Good Operating Procedures;
d. any failure by a Party to obtain and/or maintain a Consent, if the reason for such failure is the refusal by the Party concerned to accept conditions which are either not unduly onerous or, if unduly onerous, could, to the best of its knowledge, reasonably have been anticipated on the Contract Signing Date;
e. in the case of the Generator, any failure to deliver and maintain a Security or to obtain and maintain insurance as required by this Agreement;
f. in the case of [BBB], lack of a market for electricity;
g. strikes, lockouts and other industrial disturbances of the Generator's and/or its Contractor's employees and not part of a wider industrial dispute materially affecting other employers;
h. in the case of [BBB], Government Force Majeure; and
i. in the case of [BBB], circumstances giving rise to an interruption of the Generator’s peaceful and exclusive use and possession of the [BBB] Site, if and to the extent that such interruption is not attributable to any act or omission of the Generator.
11.3 Procedure
A Party claiming Force Majeure shall:
a. notify the other Party as soon as reasonably practicable of the event or circumstance concerned and of the extent to which performance of its obligations is prevented, hindered or delayed thereby;
b. keep the other Party fully informed as to the actions taken or to be taken by it to overcome the effects thereof, and from time to time provide it with such information and permit it such access, as it may reasonably require for the purpose of assessing such effects and the actions taken or to be taken; and
c. resume performance of its obligations as soon as reasonably practicable after the event or circumstance no longer exists.
11.4 Consultation
The Parties shall consult with each other and take all reasonable steps to minimize the losses of either Party and to minimise any overall delay or prejudice to the Project, as a result of Force Majeure.
11.5 Third Parties
Where a Party enters into an agreement or arrangement in relation to this Agreement with a third party (including a Contractor (including, in the case of [BBB], the Fuel Suppliers)), a failure by the third party to perform an obligation under that agreement or arrangement shall be Force Majeure affecting that Party only if performance of that obligation was prevented, hindered or delayed by events or circumstances which (if the third party were party to this Agreement in the capacity of the Party concerned) would (in accordance with the provisions of this Article 11) be Force Majeure affecting it.
11.6 Extension of Time
If a Party is prevented, hindered or delayed in the performance of an obligation under this Agreement by:
a. Force Majeure; or
b. by any failure (whether or not occasioned by Force Majeure) of the other Party to perform an obligation under this Agreement,
then, unless specifically provided otherwise in this Agreement, the time limited for the performance of that obligation (or any date by which performance of that obligation is to be achieved, including, in the case of the Generator, a Milestone, the Target Completion Date and any Cure Completion Date and the Last Completion Date (both as defined in Article 12) and, in the case of [BBB] (other than as a result of Force Majeure affecting [BBB]) the Target Transmission Line Completion Date, the Target Diesel Fuel Availability Date and the Target Natural Gas Pipeline Completion Date) shall be extended by a period equal to the period by which its performance is so prevented, hindered or delayed.
ARTICLE 12. DEFAULT, TERMINATION AND STEP IN RIGHTS
12.1 Definitions
In this Article:
"Act of Insolvency" means, in respect of a Party, that:
a. it dissolves or is liquidated, other than voluntarily for the purposes of reconstruction or reincorporation with the reasonable approval of the other Party or, in the case of [BBB], as part of the privatisation or other reorganisation of the electricity supply industry of [Name of the Country] and its obligations are assumed by a successor organisation to which the Performance Undertaking applies or (with the reasonable approval of the Generator) by a person which, at the time of the assumption, has a credit rating from [•] or [•] (each a "Rating Agency") applicable to its long-term unsecured indebtedness denominated in Dollars at least equal to that accorded by the Rating Agency to the long term, unsecured indebtedness denominated in Dollars of [Name of the Country] at Financial Closing and which will not be downgraded by the Rating Agency as a result of its assumption of such obligations;
b. it is unable to pay its debts as and when they fall due or it makes a general assignment for the benefit of its creditors;
c. it enters into insolvency proceedings as debtor and such proceedings are not discharged promptly; or
d. it fails to pay any amount when due and payable under this Agreement to the other (except if the subject of a bona fide dispute or because of a total failure of the money transfer system), and such failure continues for ninety days after notice from the other Party to it of such failure;
"Cure Completion Date" means, subject to Article 11.6, the date specified in a Cure Programme (as defined below) for the remedying of a Default;
"Default" means:
a. any delay in or failure by the Generator to perform its obligations under this Agreement for any reason (other than Generator Insolvency) which can reasonably be expected to result in:
i. the Completion Date occurring later than the Target Completion Date; or
ii. a Default not being remedied substantially in accordance with the Cure Programme therefor by the Cure Completion Date;
b. the Completion Date not having occurred on the Target Completion Date, for any reason other than Generator Insolvency;
c. persistent failure of the Generator to respond to dispatch instructions or to comply with [BBB]'s grid operating and planning procedures and requirements;
d. the Generator's failure to remedy a Default substantially in accordance with the Cure Programme therefor by the Cure Completion Date, for any reason other than Generator Insolvency;
e. the Generator's failure to successfully complete the Reliability Test as specified in Article 5.3 b.; or
f. the Generator’s failure to perform any of its obligations under the MOA Regarding the Foreshore Lease resulting in the cancellation of the Foreshore Lease, the Jetty Permits or the Water Permit.
"Generator Insolvency" means an Act of Insolvency by the Generator;
"Last Completion Date" means, subject to Article 11.6, [•] Months after the Target Completion Date; and
"Material Default" means:
a. in the case of the Generator:
i. as specified in Articles 2.5, 5.3 b., 12.3, 12.4 and 13.1;
ii. that it fails to deliver and maintain any Security as and when required by this Agreement and/or pay money in lieu thereof;
iii. that it fails, in any material respect, to obtain and maintain any insurance as required by this Agreement, or fails within [•] days of a request therefor by [BBB] to provide [BBB] with evidence reasonably satisfactory to it that any such insurance is so maintained;
iv. the repudiation by the Proponent (or any other party thereto other than [BBB]) of the Proponent's Agreement; or
v. the Completion Date not having occurred on or by the Last Completion Date, for any reason other than Generator Insolvency;
b. in the case of [BBB], the repudiation by the [Name of the Country] of the Performance Undertaking; and
c. in the case of either Party, an Act of Insolvency.
12.2 Notice of Default
a. In the event of a Default, [BBB] may give notice thereof to the Generator:
i. in the case of a Default occurring before the Completion Date, at any time prior to the Completion Date; and
ii. in any other case, at any time prior to the Default being remedied.
b. i. The Generator shall be deemed to have agreed that a Default has occurred if it does not otherwise advise [BBB] within [•] days after receipt of [BBB]'s notice.
ii. If the Generator otherwise advises [BBB] and the matter is not resolved within [•] days thereafter, the matter shall be referred to an Expert for resolution. If the Expert finds that a Default has occurred, all references to [BBB]'s notice thereof shall be deemed references to the date of such finding.
12.3 Submission of Cure Programme
a. As soon as reasonably practicable after the notice mentioned in Article 12.2, the Generator shall:
i. if the Completion Date has not occurred, either exercise its rights (if any) under Article 4.4 or (other than in the circumstances mentioned in paragraph c. of the definition of Default) submit to [BBB] a reasonable description, programme, timetable and budget ("Cure Programme") providing for the Completion Date to be achieved at the earliest reasonably practicable date (not being later than the Last Completion Date); and
ii. in any other case, submit a Cure Programme providing for the Default to be remedied at the earliest reasonably practicable date.
b. If, within [•] days after the notice mentioned in Article 12.2, the Generator has not submitted a Cure Programme or exercised its rights under Article 4.4, the Generator, without prejudice to paragraph a. above, shall provide [BBB] with as fully detailed a report on the Default and its plans in respect thereof as is reasonable.
c. If the Generator fails to comply with the provisions of paragraphs a. and b. above, then, unless it exercises its rights (if any) under Article 4.4, the Generator shall have committed a Material Default. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, in the case of any Default described in paragraphs a. or b. of the definition of such term in Article 12.1 above, no Material Default in respect thereof (or in respect of the Cure Programme relating thereto) shall occur pursuant to this paragraph prior to the earlier to occur of:
i. the Last Completion Date; or
ii. it being determined pursuant to Article 12.4 that any Cure Programme relating to such Default has no reasonable prospect of resulting in the occurrence of the Completion Date on or before the Last Completion Date.
d. If a Default is the Generator's failure to remedy a Default substantially in accordance with the Cure Programme therefor by the Cure Completion Date (or the reasonable expectation that it will not be remedied by the Cure Completion Date), and such last mentioned Default was itself the Generator's failure to remedy an earlier Default substantially in accordance with the Cure Programme therefor by the Cure Completion Date (or the reasonable expectation that it would not be remedied by the Cure Completion Date) then, notwithstanding the foregoing and unless it exercises its rights (if any) under Article 4.4., it shall have committed a Material Default. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, in the case of any Default described in paragraph a. or b. of the definition of such term in Article 12.1 above, no Material Default in respect thereof (or in respect of the Cure Programme relating thereto) shall occur pursuant to this paragraph prior to the earlier to occur of:
i. the Last Completion Date; and
ii. it being determined pursuant to Article 12.4 that any Cure Programme relating to such Default has no reasonable prospect of resulting in the occurrence of the Completion Date on or before the Last Completion Date.
12.4 Acceptance and Conduct of Cure Programme
a. [BBB] shall be deemed to have accepted the sufficiency of a Cure Programme to achieve the objective required if it does not otherwise advise the Generator within [•] days after the Generator's submission thereof to it. In such event, the Generator shall immediately commence and diligently pursue the Cure Programme to completion.
b. If [BBB] otherwise advises the Generator and the matter is not resolved within [•] days thereafter, the matter shall be referred to an Expert for resolution.
c. If the Expert finds that the objective can be achieved, he shall specify the Cure Programme to achieve the same and the Generator shall, within [•] days thereafter, commence and diligently pursue it to completion. If the Expert finds that the objective cannot be achieved, the Generator shall have committed a Material Default.
12.5 Step In Rights
a. At any time after a Material Default by the Generator and until the matter is resolved to the satisfaction of [BBB] so long as a Material Default by the Generator is continuing, [BBB] may elect, upon notice to the Generator:
i. not to dispatch the Power Station; and
ii not to make payment of any amount under this Agreement in respect of any future period except as otherwise provided pursuant to paragraph b. below.
b. Further, so long as a Material Default by the Generator is continuing, [BBB] may assume the Construction, Operation and Maintenance of the Power Station in the place and stead of the Generator and the Generator shall make available and hold to the order and for the benefit of [BBB] the Generator's Interest for that purpose. In such event, [BBB] may dispatch the Power Station. [BBB]'s assumption of such Construction, Operation and Maintenance shall not constitute or be construed as a transfer of the Generator's Interest. In lieu of making payments to the Generator under this Agreement in respect of the period of such assumption, [BBB] shall indemnify the Generator from all Construction, Operation and Maintenance costs and expenses (including insurance premia), and debt service payments (including capital repayments but excluding payments or repayments arising as a result of acceleration) under the Lending Agreements, if any, to the extent attributable to such period. However to the extent such costs, expenses and payments exceed the amount which would otherwise have been payable by [BBB], the Generator shall indemnify [BBB] therefrom. [BBB] may return Construction, Operation and Maintenance of the Power Station to the Generator at any time on [•] days notice, the Power Station to be in the same condition as when [BBB] assumed Construction, Operation and Maintenance thereof (reasonable wear and tear, and further Construction, excepted), and the Generator shall accept the same.
12.6 Termination
a. [BBB] may terminate this Agreement on notice to the Generator:
i. at any time after a Material Default by the Generator, or when permitted under Article 9.1 d., unless the matter is resolved to the reasonable satisfaction of [BBB]; or
ii. if the Generator abandons the Power Station.
Concurrently with the transfer of the Generator’s Interest pursuant to Article 12.6 e., and subject to Article 12.6 f., [BBB] shall pay to the Generator
aa. the lesser of
(i) an amount equal to the actual cost to the Generator of constructing and/or purchasing all civil works, plant, equipment, goods, materials, construction work and other assets included in the Generator's Interest less depreciation relating to such assets determined on a straight line basis over a useful life of [•] years and applied commencing on the Completion Date and through the date of such notice of termination;
(ii) the aggregate of all amounts owing to the Lenders pursuant to the Lending Agreements on the date of termination including the principal amount of debt outstanding under the Lending Agreements, together with interest and fees accrued thereon but not then payable and the net amount of all other sums due thereunder; and
(iii) (x) where such transfer occurs prior to the Actual Completion Date, an amount equal to the aggregate of the Capital Recovery Fees that would have been payable to the Generator on and from the date of such transfer until the earliest date on which the Transfer Date then could have occurred, calculated on the assumption that throughout such period the Net Available Capacity is the Net Available Capacity (but not greater than the Guaranteed Net Contracted Capacity) demonstrated by a Performance Test that generated output and was successfully completed and carried out prior to the date of termination of the ECA with the resulting figure discounted to the date of such transfer by a rate equal to that which would have been the then applicable Weighted Average Cost of Capital on and from the date of such transfer until the earliest date upon which the Transfer Date then could have occurred, and (y) where such transfer occurs after the Actual Completion Date, an amount equal to the actual cost to the Generator of constructing and/or purchasing all civil works, plant, equipment, goods, materials, construction work and other assets included in the Generator's Interest; minus
bb. the amount payable by the Generator to the Lenders in respect of costs of unwinding any hedging arrangement resulting from a prepayment or acceleration of the debt outstanding under the Lending Agreements due to the termination of the ECA pursuant to this Article 12.6.a, but in no case shall the amount deducted pursuant to this clause bb be greater than [insert amount of agreed cap.]
(the "Termination Price") provided, however, that, notwithstanding the foregoing, if [BBB] terminates this Agreement pursuant to paragraph a.ii. above before the Completion Date, the Generator shall pay to [BBB], without deduction, set-off or counterclaim, the amount and at the time mentioned in the Third Schedule.
b. For the purposes of paragraph a. above, "abandon" includes:
i. the Generator failing to perform its obligation under Articles 2.2 a.i., ii., iii. or iv. for an aggregate period of not less than [•] days, and with [BBB]'s reasonable expectation being that that obligation will not be performed in the foreseeable future;
ii. the Generator failing to resume and thereafter diligently continue, performance of an obligation within [•] days (or such longer period as may be appropriate in the circumstances) after cessation of the event of Force Majeure or failure of [BBB] to perform an obligation which prevented, hindered or delayed that performance; or
iii. the Generator evidencing an intent effectively to repudiate this Agreement.
c. The Generator may give a Buyout Notice at any time after a Material Default by [BBB] and prior to such Material Default being remedied to its reasonable satisfaction, in which event this Agreement shall terminate as and subject as provided in Article 8.
d. Either Party may terminate this Agreement on [•] days notice to the other if the Power Station is destroyed or damaged to such an extent as to be incapable of generating electricity and it is reasonably agreed between the Parties that it is not reasonably foreseeable that it will be restored to its Net Available Capacity immediately before such destruction or damage by the later of:
i. the last day of the period commencing on the date on which the damage or destruction occurred and ending on the day falling [•] Months thereafter; and
ii. prior to the Completion Date (which term when used in this Article 12.6 d.ii. shall not include the Deemed Completion Date), the last day of the cover period for the Generator's delayed start-up insurance, or after the Completion Date, the last day of the cover period for the Generator's business interruption insurance.
This paragraph d. shall not apply if the destruction or damage concerned is the result of Government Force Majeure.
e. If this Agreement is being terminated pursuant to Article 12.6 a., upon and concurrently with payment of the Termination Price to the Generator, or if this Agreement is being terminated pursuant to Article 12.6 d., upon and concurrently with termination pursuant to Article 12.6 d. (as the case may be), the Generator shall transfer, and [BBB] shall accept, the Generator's Interest (other than this Agreement) free from any lien, charge or encumbrance. However, [BBB] shall not thereby be obliged to accept any contract, agreement or arrangement, whether of employment, service or otherwise. This Agreement shall terminate upon completion of such transfer.
f. Subject to Article 10.3, if the circumstances resulting in the transfer of the Generator's Interest pursuant to paragraph a. above would entitle the Generator to recover any insurance proceeds in respect of physical loss or damage to the Power Station, there shall be deducted from the Termination Price the amount of any such insurance proceeds in respect of physical loss or damage to the Power Station (net of reasonable collection costs) which are "payable" (as defined in Article 10.3) to the Generator under insurance or reinsurance policies:
i. in respect of physical loss or damage to the Power Station which are then required to be obtained and maintained by the Generator in accordance with Article 10.1; and
ii. in respect of physical loss or damage to the Power Station which are not then required to be obtained and maintained by the Generator in accordance with Article 10.1 but which nonetheless have been obtained and are then being maintained by the Generator, as a result of the events giving rise to the relevant notice of termination,
provided, however, that in no event shall the Termination Price be reduced by:
aa. amounts payable in respect of claims under any policy referred to in sub-paragraph ii. above in respect of which the Lenders have not been granted a first ranking lien over the Generator's interest in such policy if and to the extent that, as a result of such deduction, the Termination Price would be less than that required to repay all amounts owing to the Lenders pursuant to the Lending Agreements in accordance with paragraph a.bb. above;
bb. any advance loss of profit, delayed start-up or business interruption insurance proceeds;
cc. any proceeds of any political risk insurance, or comprehensive guarantee, payable to or for the benefit of any Lender, including the political risk insurance provided by [Name of the Ministry] of the Government of [Name of the Country] and the comprehensive guarantee provided by [Name of the Bank];
dd. any insurance proceeds in respect of physical loss or damage to the Power Station which, as of the date of transfer of the Generator's Interest pursuant to paragraph e. above, have already been applied to reduce indebtedness owed to the Lenders under the Lending Agreements to the extent such application is permitted by this Agreement; and
ee. any proceeds of any insurance, to the extent that the rights of the Generator and the Lenders thereto have been assigned and transferred to [BBB] pursuant to Article 10.3.
12.7 Saving
This Article 12 is without prejudice to the payment of any amount by the Generator under any other provision of this Agreement as a consequence of any of the events mentioned in this Agreement or to the liability (if any) of either Party under any other provision of this Agreement other than in respect of a Default or Material Default as herein defined.
12.8 Notice of Termination under the Construction Contract
Promptly (and in any event within [•] Business Days) after receipt by the Generator of a notice from the Contractors party to the Construction Contract referred to in paragraph 1.10 of Section 1 of the First Schedule of termination of such Construction Contract, or within [•] days of the suspension of performance of such Contractor(s)’ obligation thereunder pursuant to Article 20 of such Construction Contract, the Generator shall send a copy of such notice to [BBB].
ARTICLE 13. OWNERSHIP OF POWER STATION AND ASSIGNMENT
13.1 Ownership
a. Subject only to Articles 2.4 and 8 and this Article 13, the Generator shall at all times own the Power Station (including all equipment and materials on the Site) and the remainder of the Generator's Interest.
b. Without prejudice to Article 2.5, the Generator shall procure that any agreement or arrangement made by it in relation to the Construction, Operation and/or Maintenance of the Power Station (including any which authorises the use of any patent, trademark, copyright, process, confidential information or other intellectual property right, but not a contract of employment) is made on terms that it may be transferred to [BBB] pursuant to Article 8 and that do not prevent, hinder or delay, or require any further permissions or payments or result in its termination or modification in the event of, the transfer of the Generator's Interest to [BBB] pursuant to Article 8 or the exercise by [BBB] of its rights under Article 12.5, failing which it shall have committed a Material Default (as mentioned in Article 12) and shall indemnify [BBB] from any loss or damage suffered by it as a result thereof. The Generator shall promptly, as and when required by [BBB], submit copies of all such agreements and arrangements to [BBB], failing which it shall have committed a Material Default (as mentioned in Article 12).
13.2 Prohibition
Subject only to this Article 13, a Party may not assign, transfer, encumber, declare itself trustee for or otherwise deal with for the benefit of any third party all or any of its rights and obligations under this Agreement without the consent of the other Party.
13.3 Assignment by [BBB]
[BBB] may assign all (but not part only) of its rights and obligations under this Agreement to:
a. any person, if the Performance Undertaking (to the extent applicable to the obligations to be assigned) will remain in full force and effect with respect to those obligations when they are assumed by that person; or
b. with the reasonable approval of the Generator, a person which, at the time of the assumption by it of the obligations concerned, has a credit rating from either Rating Agency at least equal to that accorded by such Rating Agency to the long-term, unsecured Dollar denominated debt of the [Name of the Country] at Financial Closing and which will not be downgraded by the Rating Agency as a result of its assumption of such obligations.
13.4 Effect of Assignment
No assignment shall be effective until the assignee has delivered to the Parties a written undertaking (in form and content reasonably satisfactory to them) accepting and assuming the rights and obligations to be assigned. Thereupon, the assignor shall be relieved of its obligations to the extent assigned, except for any obligations accrued before the effective date of the assignment. Such accrued obligations shall also become the obligations of the assignee.
ARTICLE 14. EXPERT
14.1 Application of Article
The provisions of this Article 14 shall apply whenever a matter is to be referred to an Expert for resolution.
14.2 Appointment
The procedure for the appointment of an Expert shall be as follows:
a. the Party wishing to appoint or to refer a matter to an Expert shall give notice to that effect to the other Party and, with such notice, shall give details of the reason for the appointment of, and the matter to be referred to, the Expert;
b. the Parties shall meet and endeavour to agree upon a person to be the Expert;
c. if, within [•] days from the date of the notice under paragraph a. above, the Parties have failed to agree upon an Expert, the matter shall forthwith be referred by the Party wishing the appointment to be made to the President of the International Chamber of Commerce ("the Appointor") who shall be requested to make the appointment of the Expert within [•] days and, in so doing, may take such independent advice as he thinks fit;
d. upon a person being appointed as Expert under the foregoing provisions, the Parties forthwith shall notify such Person of his selection and shall request him to confirm within [•] days whether or not he is willing and able to accept the appointment;
e. if such person is either unwilling or unable to accept such appointment, or shall not have confirmed his willingness and ability to accept such appointment within the said period of [•] days, then (unless the Parties are able to agree upon the appointment of another Expert) the matter shall be referred (by either Party) in the manner aforesaid to the Appointor who shall be requested to make an appointment or (as the case may be) a further appointment and the process shall be repeated until a person is found who accepts the appointment as Expert; and
f. if there shall be any dispute between the Parties as to the remuneration to be offered to the Expert, then such amount shall be determined by the Appointor whose decision shall be final and binding on the Parties.
14.3 Eligibility
A person shall not be appointed as the Expert:
a. unless he is qualified by education, experience and training to determine the matter in dispute;
b. if he has an interest or duty which would materially conflict with his role (including being a director, officer, employee or consultant to a Party or the Proponent or to any Affiliate of a Party or the Proponent; or
c. if he is a national or permanent resident of the [Name of the Country] or of any country in which the Proponent is incorporated.
14.4 Procedures
a. The following provisions shall apply to the Expert's determination:
i. each Party shall supply to the Expert such information as the Expert may request;
ii. the Expert shall (subject to paragraph iv. below) make his decision as soon as reasonably practicable after receiving data, information and submissions supplied and made to him by the Parties not later than [•] days after he has confirmed to the Parties acceptance of his appointment;
iii. the Expert shall ignore any data, information or submissions supplied and made after the [•] day period referred to in paragraph ii. above unless the same are furnished in response to a specific request from him;
iv. the Expert shall be entitled to obtain such independent professional and/or technical advice as he may reasonably require and to obtain any necessary secretarial assistance as is reasonably necessary; and
v. the Expert shall give full written reasons for his decision.
b. All communications between the Parties and the Expert or the Appointor shall be made in writing and a copy thereof provided simultaneously to the other Party. No meeting between the Expert or the Appointor and the Parties or either of them, shall take place unless both Parties have a reasonable opportunity to attend any such meeting.
c. The said Expert shall be deemed not to be an arbitrator but shall render his decision as an expert and the law relating to arbitration shall not apply to the Expert or his determination or the procedure by which he reaches his decision.
d. The determination of the Expert shall be final and binding upon the Parties, save in the event of fraud or manifest error.
e. Each Party shall bear the costs of providing all data, information and submissions given by it, and the costs and expenses of all counsel, witnesses and employees retained by it, but (unless the Expert shall make any award of such costs and expenses which award, if made, shall be part of the Expert's decision) the cost and expenses of the Expert and any independent advisers to the Expert, and any costs of his appointment if he is appointed by the Appointor, shall be borne equally by the Parties.
f. If any matter submitted to an Expert hereunder for resolution could reasonably be deemed to affect or be related to the obligations of the [Name of the Country] under the Performance Undertaking, the Party delivering notice to the other Party pursuant to Article 14.2 a. shall, concurrently therewith, deliver to the [Name of the Country] notice that the matter is being submitted to an Expert for resolution. If such Party does not so deliver such notice, the other Party may deliver such notice to the [Name of the Country], with a copy thereof to the first Party. The [Name of the Country] shall be entitled (but not obligated) to participate in the resolution of such matter before the Expert to the extent that such matter does in fact affect or relate to its obligations under the Performance Undertaking; provided, however, that:
i. the [Name of the Country] shall have delivered written notice to each Party of its intent to participate in the resolution of the matter within [•] days after receiving notice from a party informing it that the matter is being submitted to an Expert; and
ii. nothing provided herein shall give the [Name of the Country] any rights with respect to the selection of the Expert by the Generator or to interfere in any way with the Generator’s choice of the Expert to the extent the Generator has such rights of selection or choice under this Article 14.
Without limiting the generality of the foregoing, the Parties acknowledge and agree that mere participation of or the seeking to participate by [Name of the Country] in any resolution by an Expert of a matter pursuant to this Article 14 shall not constitute an agreement on the part of [Name of the Country] that such matter necessarily relates to an obligation of the Generator guaranteed by [Name of the Country] pursuant to the Performance Undertaking.
ARTICLE 15. LIABILITY
15.1 Limit of Liability
a. Except in the case of intentional breach or gross negligence, the liability of the Generator to [BBB], to the extent the loss or damage suffered by [BBB] is attributable to the Generator's failure to achieve a Milestone or to supply Guaranteed Net Contracted Capacity, Net Electrical Output or Ancillary Services, or to maintain the Guaranteed Plant Net Heat Rate, in accordance with this Agreement, shall be limited to the payment of the specific amounts (or loss of revenue) mentioned in this Agreement.
b. i. Except in the case of intentional breach or gross negligence, the liability of [BBB] to the Generator for any breach by [BBB] of this Agreement on or after the Completion Date, to the extent the loss or damage suffered by the Generator is attributable to its being prevented from supplying Guaranteed Net Contracted Capacity, Net Electrical Output or Ancillary Services, shall be limited to the payment of Availability Fees at the times mentioned in this Agreement.
ii. Save as otherwise set out in Articles 4.5 and 4.8, and except in the case of intentional breach or gross negligence, the liability of [BBB] for any breach by it of this Agreement before the Completion Date, to the extent the loss or damage suffered by the Generator is attributable to the Generator's being delayed in the prosecution of the Project, shall be limited to the payment (without double counting) of the reasonable additional costs and expenses incurred by the Generator as a consequence thereof including, other than in the circumstances envisaged by Article 4.8, any additional financing costs resulting from or attributable to such delay; provided that the costs proven by the Generator to be attributable to a delay by [BBB] in the completion of the Transmission Line (other than due to Force Majeure (other than Government Force Majeure) affecting [BBB]) of not more than [•] Months from the Target Transmission Line Completion Date, and incurred during the period that is [•] Months from the Target Completion Date, shall be for the account of the Generator. All costs payable by [BBB] under this Article 15.1 b.ii. in connection with a delay in the completion of the Transmission Line (other than due to Force Majeure (other than Government Force Majeure) affecting [BBB]) shall be paid by [BBB] to the Generator, at the option of [BBB] either (x) in a lump sum, within [•] days from receipt of the statement referred to below, or (y) by means of an adjustment to the Availability Fees from the date when the first payment thereof (after receipt of the statement referred to below) is due up to the Original Lending Agreement Final Maturity Date (as this term is defined in Section V of the Eighth Schedule) that will compensate the Generator for all such costs at the least cost to [BBB] consistent with the Generator's ongoing obligations under this Agreement and, if and to the extent that any portion of such costs is financed by the Generator through the incurrence of additional indebtedness, in amounts and payable at times that will allow the Generator to maintain both actual and projected debt service coverage ratios under the Lending Agreements for each annual period through the Lending Agreement Repayment Date at least equal to the actual and projected debt service coverage ratios which would have been achieved if such additional indebtedness had not been incurred by the Generator (as such coverage ratios shall be calculated at the time the Generator incurs such costs). If [BBB] opts to pay such costs by means of an adjustment to the Availability Fees, the Parties shall promptly meet and seek, in good faith, to reasonably agree upon the necessary increase to the Availability Fees payable by [BBB], and any related consequential amendments to this Agreement. The Generator shall provide [BBB] with a statement and description of the nature and amount of the costs payable by [BBB] in connection with such delay in the completion of the Transmission Line and the proposed adjustment to the Availability Fees (should [BBB] opt to pay by means of an adjustment to the Availability Fees). If [BBB] disputes, in good faith, all or any part of such statement, or if the Parties are unable to agree on the adjustment to the Availability Fees (including any related consequential amendments to this Agreement), the Parties shall resolve the dispute within [•] days from receipt by [BBB] of said statement. If such dispute is not resolved within the [•] day period, either Party may refer the matter to an Expert for determination.
c. If as a consequence of the occurrence of Government Force Majeure, the Generator reasonably and properly incurs any Additional GFM Costs, the Generator shall:
i. provide [BBB] with written notice thereof, together with reasonably full particulars of the event of Government Force Majeure concerned, and in the case of a Change of Law its proposals for complying therewith (to the extent applicable);
ii. use reasonable endeavours to assist [BBB] in [BBB] procuring alternative funding for the Additional FM Cost Excess pursuant to this Article 15.1, provided that such reasonable endeavours shall be limited to the Generator introducing prospective lenders to [BBB] and the Generator shall have no obligation to provide, secure commitments for or otherwise underwrite such alternative financing; and
iii. provide [BBB] with a statement and description of the nature and amount of such Additional GFM Costs; the reduction in the Generator’s economic return (before all [Name of the Country] taxes, including those imposed on income, profit or gain, but after [Name of the Country] interest withholding taxes) on its investment in the Project or the Generator’s net cash flow available to pay amounts owed to the Lenders; the proposal for adjustments to the Availability Fees referred to in paragraphs d.ii.aa. or e. below (as applicable); and the amount of the Additional FM Cost Excess, if any. [BBB] shall be entitled to verify the validity and amount of such costs and request reasonable back-up documentation relating to the amount of such costs, but only if the request for such back-up documentation is made promptly and in any event not later than [•] days following the receipt of such notice of the Generator.
BBB's only liability in respect of such Additional GFM Costs shall be as provided in Articles 15.1 d. or e. (as the case may be).
d. Prior to the Completion Date (which term, for purposes of this paragraph d., shall not include the Deemed Completion Date), if and to the extent that the sum of:
i. the aggregate, cumulative amount of all Additional GFM Costs plus
ii. the aggregate, cumulative amount of all Deemed Completion Costs already incurred and initially financed by the Generator (i.e., the Deemed Completion Costs referred to in Article 4.8 b. above),
is:
aa. less than or equal to the Additional FM Cost Ceiling, then the Generator shall be entitled to an adjustment to the Availability Fees payable by [BBB] that will compensate the Generator for all such Additional GFM Costs at the least cost to [BBB] consistent with the Generator's ongoing obligations under this Agreement and, if and to the extent that any portion of such Additional GFM Costs is financed by the Generator through the incurrence of additional indebtedness, in amounts and payable at times that will allow the Generator to maintain both actual and projected debt service coverage ratios under the Lending Agreements for each annual period through the Lending Agreement Repayment Date at least equal to the actual and projected debt service coverage ratios which would have been achieved if such additional indebtedness had not been incurred by the Generator (as such coverage ratios shall be calculated at the time the Generator incurs such Additional GFM Costs); in order to give effect to the foregoing, the Parties shall promptly meet and seek, in good faith (including by the provision of information and data), to reasonably agree upon the necessary increase to the Availability Fees payable by [BBB], and any related consequential amendments to this Agreement; or
bb. exceeds the Additional FM Cost Ceiling (such excess the "Additional FM Cost Excess"), then [BBB] shall promptly on demand pay to the Generator the portion of such Additional GFM Costs constituting such Additional FM Cost Excess as and when the same shall be payable by the Generator.
e. If the Generator incurs any Additional GFM Costs on or after the Completion Date (which term, for purposes of this paragraph e., shall not include the Deemed Completion Date), then the Generator shall be entitled to an adjustment to the Availability Fees payable by [BBB] that will compensate the Generator for all such Additional GFM Costs at the least cost to [BBB] consistent with the Generator's ongoing obligations under this Agreement and, if and to the extent that any portion of such Additional GFM Costs is financed by the Generator through the incurrence of additional indebtedness, in amounts and payable at times that will allow the Generator to maintain both actual and projected debt service coverage ratios under the Lending Agreements for each annual period through the Lending Agreement Repayment Date at least equal to the actual and projected debt service coverage ratios which would have been achieved if such additional indebtedness had not been incurred by the Generator (as such coverage ratios shall be calculated at the time the Generator incurs such Additional GFM Costs); in order to give effect to the foregoing, the Parties shall promptly meet and seek, in good faith (including by the provision of information and data), to reasonably agree upon the necessary increase to the Availability Fees payable by [BBB], and any related consequential amendments to this Agreement.
f. Within [•] days from receipt by [BBB] of the notice referred to in paragraph c.iii. above, or if any back-up documentation is requested by [BBB] pursuant to paragraph c.iii. above, within [•] days from receipt of such back-up documentation, [BBB] shall notify the Generator of (A) its confirmation of, or refusal to confirm, the validity and/or amount of the Additional GFM Costs and (B) its agreement, or refusal to agree, to the Generator’s proposal for adjustment to the Availability Fees. If [BBB] refuses to confirm the validity and/or amount of the Additional GFM Costs, and/or refuses to agree to the Generator’s proposal for adjustment to the Availability Fees, the Parties shall resolve the dispute in respect of the Additional GFM Costs and/or the adjustment to the Availability Fees (including any related consequential amendments to this Agreement pursuant to paragraphs d.ii.aa. or e. above, as applicable) within [•] days from receipt of the notice referred to in the preceding sentence. If such dispute is not resolved within said [•] day period, either Party may refer the matter to an Expert for determination.
g. If [BBB] compensates the Generator for any Change of Law Cost pursuant to paragraphs d. or e. above and such Change of Law Costs resulted in a Material Reduction falling within paragraph b. of the definition of such term, then if, at any time after the date on which such Change of Law Cost is incurred, the net cash flow of the Generator is increased as a consequence of the prior Change of Law giving rise to such Change of Law Cost, then [BBB] and the Generator shall use good faith efforts to agree on a mechanism for sharing the amount of such net cash flow increase.
15.2 Personal Injury and Property Damage
Each Party shall indemnify the other (and its Affiliates and Contractors and its and their respective directors, officers, employees and agents) from and against personal injury (including death) and property damage (including reasonable attorney's fees and expenses) suffered by them and resulting from its performance of this Agreement, except to the extent caused by the intentional or negligent act or omission of the indemnified person.
15.3 Third Party Claims
Each Party shall indemnify the other (and its Affiliates and Contractors and its and their respective directors, officers, employees and agents) from and against all claims and demands (and including reasonable attorney's fees and expenses) brought against them and resulting from its performance of this Agreement, except to the extent caused by the intentional or negligent act or omission of the indemnified person. However, this Article 15.3 shall not apply to any claim by a third party against [BBB] (or its Affiliates and Contractors and its or their respective directors, officers, employees and agents) as a result of any failure by the Generator to supply Guaranteed Net Contracted Capacity, Net Electrical Output or Ancillary Services, or to maintain the Guaranteed Plant Net Heat Rate, in accordance with this Agreement.
15.4 Consequential Loss
Without prejudice to Articles 15.1, 15.2 and 15.3 and specific indemnities and the payment of specific amounts (or loss of revenue) mentioned in this Agreement (including the right of [BBB] to have recourse to the Securities) and except, in the case of the Generator, in respect of its obligations to deliver, obtain and maintain the Securities and insurances, neither Party shall be liable to the other for any indirect, special, incidental, consequential or exemplary damages, or economic loss, with respect to any claim arising out of this Agreement, whether in contract, tort, strict liability or otherwise.
ARTICLE 16. CONFIDENTIALITY
16.1 Confidential Information
During the term of this Agreement each Party shall treat as confidential and (except as provided in Article 16.2) shall not, without first obtaining the consent of the other Party, disclose to any person the provisions of this Agreement or any information supplied or made available for examination or otherwise disclosed hereunder to such Party by the other (such provisions and, in relation to such Party, such information being hereinafter referred to as "Confidential Information").
16.2 Permitted Disclosure
Notwithstanding the provisions of Article 16.1, Confidential Information may be disclosed without the other Party's consent:
a. by [BBB] to a governmental department, agency or authority;
b. by the Generator to the Lenders;
c. by a Party to its directors, officers, employees, agents and technical and professional advisers (and those of its parent companies and its and/or their subsidiary companies) who reasonably require such information in the course of their duties and responsibilities in relation to this Agreement;
d. by a Party to its contractors and suppliers to the extent they reasonably require such information in the performance of their obligations in relation to this Agreement;
e. by a Party to the extent reasonably required for the purposes of obtaining and maintaining insurances;
f. to the extent required by law, the rules of any recognised stock exchange upon which the shares of the disclosing party (or of its parent companies or its and/or their subsidiary companies) are listed;
g. for the purposes of dispute resolution or the enforcement of rights and obligations under this Agreement; and
h. to the extent such information has become generally available to the public other than as a result of a breach by the disclosing Party of its obligations under this Article 16,
provided, however, that, other than in regard to paragraphs a., f., g. and h. above, the person to whom such disclosure is made agrees to keep the information confidential and restrict its use in terms of this Article 16.
16.3 Use of Confidential Information
Any Confidential Information shall only be used for a purpose or purposes incidental to or arising out of this Agreement, including the negotiation, execution and enforcement of the Lending Agreements, and not for any other purpose.
ARTICLE 17. ARBITRATION
17.1 Amicable Settlement
Without prejudice to Article 14, the Parties shall, by giving a written notice, seek in good faith to resolve any dispute, controversy or claim arising out of, or relating to, this Agreement, or the breach, termination or invalidity thereof, by discussion. If resolution by such means is not achieved within [•] days after the service by either Party of a notice on the matter, either Party may require by giving a written notice to the other Party that the matter be referred to their respective chief executives or person(s) authorized by such chief executives for resolution and each Party shall procure that its chief executive seeks in good faith to resolve the matter by discussion with the other. Notwithstanding the foregoing, in the event of any dispute, controversy or claim arising out of, or relating to, this Agreement, for which a decision has been rendered by an Expert in accordance with the terms of this Agreement, it may be submitted directly to arbitration in accordance with Article 17.2 below on the grounds of fraud and/or manifest error in accordance with Article 14.4 d.
17.2 Arbitration
a. If the matter is not resolved by negotiation between the chief executives or person(s) authorized by them within [•] days after the service by either Party of a notice on the matter, then either Party may submit the matter to arbitration to be conducted in Singapore by the International Chamber of Commerce ("ICC") for final resolution in accordance with the then effective Rules of Conciliation and Arbitration ("ICC Rules") without reference to any other procedural law.
b. Arbitration shall be conducted as follows:
i. All proceedings in such arbitration shall be conducted in English and transcripts of such proceedings shall be prepared in English.
ii. There shall be three (3) arbitrators all of whom shall be fluent in English. Of the three (3) arbitrators, the Generator shall appoint one (1) arbitrator and [BBB] shall appoint one (1) arbitrator. The two (2) arbitrators so appointed shall select the third arbitrator who shall serve as chairman of the arbitration panel. If (i) the second arbitrator has not been appointed within [•] days from the appointment of the first arbitrator, or (ii) the two (2) arbitrators fail to appoint the third arbitrator within [•] days after the appointment of the second arbitrator, the relevant appointment shall be made by the ICC from candidates knowledgeable in the industry standards for international private power projects. The arbitrators so appointed shall not have the power to amend this Agreement.
c. In resolving any dispute submitted to arbitration, the arbitrators shall apply the substantive laws of the [Name of the Country]. The arbitral award shall be final and binding on the Parties, and the Parties agree to comply with the award. If any dispute arises and is submitted to arbitration, neither Party shall request a court of law or any other authority to invalidate, amend or review substantive or procedural aspects of the award; provided, however, that either Party may seek from a court of law or other government body with competent jurisdiction, including proper courts of [•] City, [Name of the Country], an injunctive relief in support of the arbitration proceeding pending the rendition of the arbitral award or a judgment or court order to enforce the arbitral award against the other Party. The Parties exclude any right of application or appeal to any courts for the determination of any question of law arising in the course of arbitration or with respect to any award made.
d. The decision of the arbitrators shall determine and specify how the expenses of arbitration shall be allocated between the Parties.
e. To the extent that either the Parties agree, or the arbitrators rule, that (i.) any dispute is related to one or more disputes that are pending with respect to the Project, with one or more common parties being involved, (ii) such other disputes are being arbitrated, and (iii) judicial economy could be achieved and/or the possibility of conflicting outcomes avoided if the arbitrations regarding the various disputes were to be joined and the issues presented wholly or partly in one proceeding, then the Parties and the arbitrators shall take all actions necessary or advisable to accomplish such joinder.
f. The execution, performance and delivery by each Party of this Agreement shall constitute a private commercial transaction entered into entirely in its commercial capacity.
g. Any award of the arbitrators shall be enforceable by any court having jurisdiction over the Party against which the award has been rendered, or wherever assets of the Party against which the award has been rendered can be located, and shall be enforceable in accordance with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
h. It is the intent of the Parties that, barring extraordinary circumstances, any arbitration hereunder shall be concluded within [•] days of the date the statement of claim is received by the arbitrators. The Parties may by agreement extend such [•]-day period, or the arbitrator may determine that the interests of justice otherwise require. Failure to conclude any arbitration within such [•] day period shall not be a basis for challenging the award.
i. If any matter submitted to arbitration hereunder for resolution could reasonably be deemed to affect or be related to the obligations of the [Name of the Country] under the Performance Undertaking, the Party submitting the matter to arbitration pursuant to Article 17.2 a. shall, concurrently therewith, deliver to the [Name of the Country] notice that the matter is being submitted to arbitration for resolution, with a copy thereof to the other Party. If such Party does not so deliver such notice, the other Party may deliver such notice to the [Name of the Country], with a copy thereof to the first Party. The [Name of the Country] shall be entitled (but not obliged) to participate in the arbitration of such matter to the extent that such matter does in fact affect or relate to its obligations under the Performance Undertaking; provided, however, that (i) the [Name of the Country] shall have delivered written notice to each Party of its intent to participate in the arbitration of the matter within [•] days after receiving notice from a Party informing it that the matter is being submitted to arbitration and (ii) nothing provided herein shall give the [Name of the Country] any rights with respect to the selection by the Generator of the arbitrators or to interfere in any way with the Generator’s choice of the arbitrators to the extent the Generator has such rights of selection or choice under this Article 17. Without limiting the generality of the foregoing, the Parties acknowledge and agree that mere participation of or the seeking to participate by the [Name of the Country] in any arbitration of a matter pursuant to this Article 17 shall not constitute an agreement on the part of the [Name of the Country] that such matter necessarily relates to an obligation of the Generator guaranteed by the [Name of the Country] pursuant to the Performance Undertaking..
ARTICLE 18. GOVERNING LAW
18.1 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the [Name of the Country], except such of those laws as would direct the application of the laws of another jurisdiction.
18.2 Immunity
To the extent that either Party may in any jurisdiction claim for itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other legal process and to the extent that in any such jurisdiction there may be attributed to itself or its assets or revenues such immunity (whether or not claimed), that Party agrees not to claim and irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction.
18.3 Continuing Performance
Neither Party shall be relieved of any obligation under this Agreement pending the resolution of a dispute pursuant to Articles 14 or 17 or otherwise.
ARTICLE 19. NOTICES
Unless otherwise provided in this Agreement, all notices and other communications required or permitted between the Parties by this Agreement shall be in writing and either hand delivered or sent by pre-paid letter, telex or facsimile to the address or number within the [Name of the Country] of the Party concerned as set forth below. A Party may change its address or number on [•] days notice under this Article 19. No communication shall be effective until received.
[Generator] [BBB]
[Address] [Address]
Facsimile : [•] Facsimile : [•]
ARTICLE 20. MISCELLANEOUS
20.1 Regular Meetings
[BBB] and the Generator shall meet regularly to discuss the implementation of this Agreement and the Project, including (but without prejudice to Articles 14 and 17) contractual issues, with a view to ensuring that the arrangements proceed on a mutually satisfactory basis. The Parties shall form a steering committee whose responsibility will be to monitor the progress of the Project and whose specific remit will be reasonably agreed by the Parties as soon as practicable after the Effective Date.
20.2 Disclaimer
The Generator:
a. accepts that any information made available to [BBB] and any comment or approval made or given by [BBB] in respect thereof or otherwise in respect of the Construction, Operation and Maintenance of the Power Station (including the certification of the results of Tests) shall not relieve the Generator of any obligation nor prejudice any right of [BBB] under this Agreement; and
b. shall in no way represent to any person that as a result thereof or otherwise that [BBB] is responsible for or makes any representation or warranty as to the Construction, Operation or Maintenance of the Power Station.
20.3 Several Obligations
Except where specifically provided otherwise in this Agreement, the duties, obligations and liabilities of the Parties are several and not joint or collective, each Party shall be liable only for its own obligations and nothing contained in this Agreement shall be construed as creating any association, trust, partnership or joint venture.
20.4 Waiver
No provision of this Agreement shall be considered waived by either Party except when such waiver is given in writing. The failure of either Party to insist, in any one or more instances, upon strict performance of any of the provisions of this Agreement or to take advantage of any of its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights for the future, but the same shall continue and remain in full force and effect.
20.5 Entire Agreement
This Agreement constitutes or expressly refers to the entire agreement between the Parties in respect of the subject matter hereof and all previous agreements, arrangements, understandings and representations (including the tender invitation, bid documents and questions and answers to questions), express or implied and whether written or oral, are of no force or effect.
20.6 Severability
If any term of this Agreement is finally declared to be invalid, the other terms shall not thereby be affected or impaired and shall continue in full force and effect. In such event, the Parties shall, in good faith, seek to negotiate valid substitute provisions which will as nearly as possible preserve the commercial balance between them.
20.7 Grid Code
Upon the adoption by [BBB] of a grid code, the provisions thereof shall (unless [BBB] otherwise decides) prevail to the extent of any conflict or inconsistency with this Agreement and the Generator shall comply therewith. However, the provisions of Article 7.4 shall apply as though the grid code were Law.
20.8 Counterpart Execution
This Agreement may be executed in any number of counterparts which, when taken together, shall constitute one and the same agreement.
AS WITNESS the hands of the authorized representatives of the Parties on [•], 20[•].
[AAA CORPORATION] [BBB CORPORATION]
by : by :
2_1 Common Agreement.doc
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