📄 Įstatymo tekstas
LIETUVOS RESPUBLIKOS ĮSTATYMAS DĖL KONCESIJOS SUTEIKIMO IR LIETUVOS
RESPUBLIKOS ESMINIŲ TURTINIŲ ĮSIPAREIGOJIMŲ PRISIĖMIMO VISAGINO BRANDUOLINĖS
(ATOMINĖS) ELEKTRINĖS PROJEKTE
LIETUVOS RESPUBLIKOS
ĮSTATYMAS
DĖL KONCESIJOS SUTEIKIMO IR LIETUVOS RESPUBLIKOS ESMINIŲ TURTINIŲ ĮSIPAREIGOJIMŲ PRISIĖMIMO VISAGINO BRANDUOLINĖS (ATOMINĖS) ELEKTRINĖS PROJEKTE
2012 m. birželio 21 d. Nr. XI-2085
Vilnius
1 straipsnis. Įstatymo paskirtis
1. Šio įstatymo paskirtis – pritarti koncesijos suteikimui projekto įgyvendinimo bendrovei Visagino branduolinės (atominės) elektrinės projekte ir pritarti Lietuvos Respublikos, strateginio investuotojo ir projekto įgyvendinimo bendrovės sudaromos koncesijos sutarties (toliau – koncesijos sutartis) projektui, įskaitant koncesijos sutarties projekte nustatytus Lietuvos Respublikos esminius turtinius įsipareigojimus.
2. Šiame įstatyme vartojamos sąvokos suprantamos taip, kaip jos apibrėžtos Lietuvos Respublikos koncesijų įstatyme (toliau – Koncesijų įstatymas) ir Lietuvos Respublikos branduolinės (atominės) elektrinės įstatyme (toliau – Branduolinės (atominės) elektrinės įstatymas).
2 straipsnis. Sprendimas dėl koncesijos
1. Lietuvos Respublikos Seimas pritaria:
1) koncesijos suteikimui projekto įgyvendinimo bendrovei Visagino branduolinės (atominės) elektrinės projekte;
2) koncesijos sutarties projekte nurodyto strateginio investuotojo Visagino branduolinės (atominės) elektrinės projekte atrinkimui;
3) koncesijos sutarties projekte nustatytų Lietuvos Respublikos esminių turtinių įsipareigojimų prisiėmimui;
4) koncesijos sutarties projektui (pridedamas koncesijos sutarties projekto tekstas anglų kalba ir jo vertimas į lietuvių kalbą).
2. Koncesija projekto įgyvendinimo bendrovei valstybės vardu suteikiama Koncesijų įstatymo ir Branduolinės (atominės) elektrinės įstatymo nustatyta tvarka.
3 straipsnis. Esminiai turtiniai įsipareigojimai
1. Valstybė įstatymu prisiima visus esminius turtinius įsipareigojimus pagal koncesijos sutartį, įskaitant, bet neapsiribojant:
1) įgyvendinti Visagino branduolinės (atominės) elektrinės projekto pagrindinio privažiavimo kelio nuo Klaipėdos valstybinio jūrų uosto krantinės iki branduolinės (atominės) elektrinės sklypo ribos paruošimo projektą, kaip numatyta koncesijos sutarties projekte (įskaitant 7.1.2 punktą ir 2 priedėlį);
2) užtikrinti, kad projekto įgyvendinimo bendrovei būtų suteiktas žemės sklypas, reikalingas įgyvendinti Visagino branduolinės (atominės) elektrinės projektą, kaip numatyta koncesijos sutarties projekte (įskaitant 7.1.1 (A) punktą);
3) išpirkti projekto įgyvendinimo bendrovės akcijas iš projekto įgyvendinimo bendrovės dalyvių, kai koncesijos sutartis nutraukiama, tais atvejais, kai nutraukimo rizika priskiriama Lietuvos Respublikai, ir kitais nustatytais atvejais, kaip numatyta koncesijos sutarties projekte (įskaitant 20.1, 20.3, 26, 32 punktus);
4) atlyginti koncesijos sutarties projekte nurodytiems asmenims nuostolius dėl darbo produktų, pagal koncesijos sutarties projekte nurodytas papildomas sutartis, naudojimo sukeltos žalos, kaip numatyta koncesijos sutarties projekte (įskaitant 15 punktą);
5) atlyginti koncesijos sutarties projekte nurodytiems asmenims žalą dėl Lietuvos Respublikos konfidencialumo įsipareigojimų pažeidimo, kaip numatyta koncesijos sutarties projekte (įskaitant 13 punktą);
6) atlyginti koncesijos sutarties projekte nurodytiems asmenims žalą dėl koncesijos suteikimo procedūrų ir (arba) garantijų pažeidimo, kaip numatyta koncesijos sutarties projekte (įskaitant 16.5 ir 28.1.2 punktus).
2. Lietuvos Respublikos esminiai turtiniai įsipareigojimai prisiimami koncesijos sutartyje nustatytomis sąlygomis, mastu ir tvarka.
4 straipsnis. Ginčų, kylančių iš koncesijos sutarties ar susijusių su ja, sprendimo tvarka
Lietuvos Respublikos Seimas pritaria susitarimui dėl ginčų, kylančių iš koncesijos sutarties ar su ja susijusių, sprendimo arbitražo tvarka, kaip numatyta koncesijos sutarties projekto 45 punkte ir kitose koncesijos sutarties nuostatose.
5 straipsnis. Papildomų teisių nesuteikimas
Šis įstatymas strateginiam investuotojui, jo susijusioms įmonėms, koncesijos sutarties projekte nurodytiems generaliniam rangovui, branduolinio kuro tiekėjui ir kitiems projekto įgyvendinimo bendrovės akcininkams bei kitiems asmenims nesuteikia daugiau teisių, negu koncesijos sutartis, ir be konkrečios koncesijos sutarties nuostatos taikymo atskirai negali būti taikomas nustatant Lietuvos Respublikos atsakomybę.
Skelbiu šį Lietuvos Respublikos Seimo priimtą įstatymą.
RESPUBLIKOS PREZIDENTĖ DALIA GRYBAUSKAITĖ
_________________
Lietuvos Respublikos įstatymo
dėl koncesijos suteikimo ir
Lietuvos Respublikos esminių
turtinių įsipareigojimų
prisiėmimo Visagino
branduolinės (atominės)
elektrinės projekte
priedas
DATED [•]
THE REPUBLIC OF LITHUANIA
and
[SPV OF HITACHI, LTD.]
and
[PCO]
CONCESSION AGREEMENT WITH THE STRATEGIC INVESTOR AND PROJECT COMPANY IN RELATION TO THE VISAGINAS NEW NUCLEAR POWER PLANT PROJECT
TABLE OF CONTENTS
PART 1: PRELIMINARY AND TERM................................................................................... 5
1................ DEFINITIONS AND INTERPRETATION.......................................................... 5
2................ AWARD OF CONCESSION AND TERM........................................................... 6
3................ SCOPE OF THE CONCESSION........................................................................... 7
4................ THE RELATIONSHIP: PARTNERING PRINCIPLES....................................... 8
5................ STRATEGIC INVESTOR'S OBLIGATIONS.................................................... 10
6................ PCO OBLIGATIONS........................................................................................... 11
7................ ROL OBLIGATIONS.......................................................................................... 12
8................ CHANGES TO the SHAREHOLDERS' AGREEMENT................................. 13
PART 2: SHAREHOLDINGS IN THE PCO......................................................................... 14
9................ SHAREHOLDINGS IN THE PCO..................................................................... 14
PART 3: GENERAL OBLIGATIONS................................................................................... 15
10.............. OUTSOURCING/SUBCONTRACTING............................................................ 15
PART 4: PROJECT MANAGEMENT.................................................................................... 16
11.............. REPORTS AND MONITORING........................................................................ 16
12.............. REGULATORY INTERFACE............................................................................ 18
PART 5: CONFIDENTIALITY AND PUBLICITY.............................................................. 19
13.............. CONFIDENTIALITY.......................................................................................... 19
14.............. PUBLICITY.......................................................................................................... 24
PART 6: NUCLEAR, LIABILITY AND INSURANCE...................................................... 25
15.............. NUCLEAR............................................................................................................ 25
16.............. LIABILITY........................................................................................................... 25
17.............. DAMAGES ARE INSUFFICIENT COMPENSATION AND EQUITABLE REMEDIES ARE TO BE AVAILABLE................................................................................................. 31
18.............. INSURANCE........................................................................................................ 31
PART 7: TERMINATION....................................................................................................... 32
19.............. Application of Clauses 19 to 26 inclusive: Termination..... 32
20.............. ROL EVENT......................................................................................................... 34
21.............. PCO DEFAULT.................................................................................................... 35
22.............. STRATEGIC INVESTOR DEFAULT................................................................ 37
23.............. NON-DEFAULT TERMINATION..................................................................... 39
24.............. DAMAGES FOR TERMINATION..................................................................... 40
25.............. ROL's Third Party Rights under the Shareholders' Agreement 41
26.............. RoL Event Mandatory Transfer of Shares................................. 41
PART 8: GENERAL PROVISIONS...................................................................................... 46
27.............. SURVIVAL, RIGHtS AND OBLIGATIONS................................................... 46
28.............. WARRANTIES..................................................................................................... 47
29.............. FORCE MAJEURE.............................................................................................. 48
30.............. ASSIGNMENT..................................................................................................... 50
31.............. RESTRICTIONS ON TRANSFER OF SHARES AND CHANGE OF CONTROL 51
32.............. SHAREHOLDER PUT OPTION......................................................................... 53
33.............. NOTICES.............................................................................................................. 54
34.............. ENTIRE AGREEMENT....................................................................................... 56
35.............. VARIATION AND WAIVER............................................................................. 56
36.............. COUNTERPARTS................................................................................................ 57
37.............. SEVERABILITY.................................................................................................. 57
38.............. COSTS AND EXPENSES.................................................................................... 57
39.............. INTEREST TO RUN ON DEFAULT.................................................................. 57
40.............. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT....................................... 57
41.............. NO PARTNERSHIP/AGENCY........................................................................... 58
42.............. co-operation in relAtion to the power at cost structure 58
43.............. LANGUAGE........................................................................................................ 59
44.............. GOVERNING LAW............................................................................................ 59
45.............. DISPUTE RESOLUTION PROCEDURE AND ARBITRATION.................... 59
46.............. SOVEREIGN IMMUNITY WAIVER................................................................ 62
SCHEDULE 1....... Definitions................................................................................................ 65
SCHEDULE 2....... Access Road Works.................................................................................. 82
SCHEDULE 3....... Initial Shareholders' Details and Shareholding......................................... 93
SCHEDULE 4....... National Security Criteria......................................................................... 94
SCHEDULE 5....... Site............................................................................................................ 95
SCHEDULE 6....... Decommissioning and Waste Funding Principles..................................... 96
SCHEDULE 7....... LIV IP..................................................................................................... 102
SCHEDULE 8....... Fundamental Change.............................................................................. 106
SCHEDULE 9....... Invested Capital Statement..................................................................... 111
THIS AGREEMENT is made on [•]
BETWEEN
(1) The REPUBLIC OF LITHUANIA, acting through the Ministry of Energy of the Republic of Lithuania (the "RoL");
(2) [SPV OF HITACHI, LTD.], a company registered and incorporated in [•] [under [company number] whose address is at [•¶ (the "Strategic Investor"); and
(3) [The PCO], a company registered and incorporated in the Republic of Lithuania [under [company number] whose address is at [•¶ (the "PCO"),
each a "Party" and together the "Parties".
RECITALS
(A) In the National Energy Strategy of Lithuania dated 18 January 2007, the RoL reconfirmed the Republic of Lithuania's long-term commitment to nuclear generation. The strategic aims of the Republic of Lithuania include the construction and commissioning of a new nuclear power plant.
(B) The MoE, on behalf of the RoL, ran an open competitive tender process under the Law on Concessions to identify a strategic investor to take an interest in a new nuclear power plant project-implementing company to be established to develop, construct, operate and decommission a new nuclear power plant. A notice commencing the tender process was published in the Official Journal of the European Union on 10 December 2009 (No. 2009/S 238-340935). The tender process ended on 3 January 2011 when the entity identified as the potential preferred bidder withdrew from the process and no other suitable tenders had been submitted. The MoE on behalf of the RoL (as the Concession-granting authority), in accordance with the Law on Concessions, adopted a decision (effective as of 14 January 2011) to proceed with direct negotiations with potential strategic investors.
(C) Under the direct negotiations process, an open competitive process was conducted on the same qualification and evaluation terms as the prior tender process. Following evaluation of the bids received under the direct negotiations process, Hitachi, Ltd.'s bid on behalf of the Strategic Investor was evaluated as being the most economically advantageous, and Hitachi, Ltd. and the Republic of Lithuania, represented by the MoE, entered into an exclusivity arrangement under which Hitachi, Ltd. was granted an exclusive right to negotiate the terms on which the Strategic Investor would participate and provide investment in the concessionaire project-implementing company (being the PCO). The RoL and the Strategic Investor have negotiated this Concession Agreement pursuant to the terms of that exclusivity arrangement. It was agreed that, subject to the terms of this Concession Agreement, the Strategic Investor or one or more of its Associated Companies nominated by the Strategic Investor shall be awarded the right to: (1) enter into the EPC Contract with the PCO for, subject and without prejudice to the terms of the EPC Contract from time to time, the development and construction of a 1350MW (gross) class advanced boiling water reactor (the "Visaginas New Nuclear Power Plant" or "NNPP"); and (2) if, subject to the terms of this Concession Agreement, required by the PCO (and available under the O&M Support Terms), provide, in relation to the NNPP, operation and maintenance support services pursuant to an O&M Support Contract and/or, if, subject to the terms of this Concession Agreement, required by the PCO (and available under the Nuclear Fuel Supply Terms), provide in relation to the NNPP, nuclear fuel supply and related services pursuant to a Fuel Supply Contract.
(D) The RoL, the Strategic Investor and the PCO have agreed this Concession Agreement following the direct negotiations process and the RoL is awarding the Concession to the PCO in accordance with the terms of this Concession Agreement with the intention that such award shall support the Republic of Lithuania's objective of achieving the integration of its electricity transmission system into the continental European transmission network and contribute to the diversification of primary energy resources available to the Republic of Lithuania, improve the Republic of Lithuania's security of energy supply and contribute to and improve the diversification of primary energy resources in the wider Baltic region (as referred to in the joint communiqué between the ministers of the Republics of Lithuania, Latvia, Estonia and Poland made in the presence of the European Commission on 31 May 2010).
(E) In compliance with the Law on Concessions and in accordance with the terms of this Concession Agreement, the RoL awards hereunder the right to the PCO, and the PCO will be obliged hereunder, in each case subject to the terms and conditions set out in this Concession Agreement, to design, finance, develop, construct, test, commission, operate, maintain and decommission the Visaginas New Nuclear Power Plant at the Site (including by way of any works and services to be provided under any Ancillary Contract or under any other contracts) (the "Concession").
(F) The PCO is the concessionaire for all purposes under the Law on Concessions.
(G) The Strategic Investor and the Lithuanian Investor have also agreed the Shareholders' Agreement with the Regional Partners in relation to their participation in the Project and investment into the PCO. It is anticipated that there may also be Third Party investors during the Contract Term, such Third Party investors to be introduced, approved and to take Shares in accordance with the terms of this Concession Agreement and the Shareholders' Agreement.
(H) The Strategic Investor is obliged hereunder to invest in the PCO in accordance with the terms of the Shareholders' Agreement and to comply with its obligations under this Concession Agreement.
THE PARTIES HEREBY AGREE AS FOLLOWS:
PART 1: PRELIMINARY AND TERM
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Unless otherwise defined in this Concession Agreement, terms defined in Schedule 1 (Definitions) shall apply to this Concession Agreement.
1.2 Interpretation
In this Concession Agreement, except where the context or the express provisions otherwise require:
1.2.1 without prejudice to the application of the provisions relating to Pre-FID Fundamental Change or Clause 29 (Force Majeure) (including the definition of Force Majeure Event), reference to any law, code, enactment, rules, statutory provision or subordinate legislation shall include a reference to any law, code, rule, order, regulation, instrument or subordinate legislation made under the relevant enactment or statutory provision and is a reference to that law, code, rule, enactment, statutory provision or subordinate legislation as from time to time amended, consolidated, modified, re-enacted or replaced;
1.2.2 words in the singular shall include the plural and vice versa;
1.2.3 references to one gender include other genders;
1.2.4 a reference to a "person" shall include a reference to an individual, a firm, a body corporate, an unincorporated association, a government department, a governmental body, an authority, an agency, a partnership or to an individual's executors or administrators;
1.2.5 any reference to this Concession Agreement includes the Schedules to it (and any schedules, appendices or annexes to such Schedules) each of which forms part of this Concession Agreement for all purposes;
1.2.6 a reference to a Clause, Sub-clause or Schedule (other than to a schedule to a statutory provision) shall be a reference to a clause, sub-clause or schedule (as the case may be) of, or to, this Concession Agreement and all references to Parts, Sections, Paragraphs, Appendices and Annexes are references to parts, sections, paragraphs, appendices and annexes of, or to, the Schedules;
1.2.7 if a period of time is specified as from, following, after or within a certain period of time of a given Calendar Day or Business Day, or from, following, after or within a certain period of time of the Calendar Day or Business Day of an act or event, it shall be calculated exclusive of that Calendar Day or Business Day;
1.2.8 references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates to the English legal term in that jurisdiction and references to any English statute or enactment (other than the reference to the Companies Act 2006 in Clause 31 (Restrictions on transfer of shares and change of control)) shall be deemed to include any equivalent or analogous laws or rules in any other jurisdiction;
1.2.9 references to writing shall include any modes of reproducing words in any legible form but shall exclude email except where permitted by Clause 33.2.1 (Notices by Email);
1.2.10 a reference to "includes" or "including" shall mean "includes without limitation" or "including without limitation";
1.2.11 the contents page, headings and sub-headings in this Concession Agreement are for convenience only and shall not be taken into consideration in the interpretation or construction of this Concession Agreement;
1.2.12 references to this "Concession Agreement" (or "this Agreement") include this Concession Agreement as amended or supplemented in accordance with its terms;
1.2.13 references in this Concession Agreement to any agreement, procedure, document or other instrument (other than as contemplated by Clause 1.2.1 (Interpretation)) shall be deemed to be references to that agreement, procedure, document or instrument as from time to time amended, varied, supplemented, substituted, novated or assigned;
1.2.14 any reference to a public organisation or body shall be deemed to include a reference to any successor to such public organisation or body or any organisation or entity which has taken over the functions or responsibilities of such public organisation or body;
1.2.15 all monetary amounts are expressed in Euros;
1.2.16 any references in this Concession Agreement to a Party providing its consent or approval shall be deemed to be a reference to prior written consent or approval;
1.2.17 a reference to the "Site" shall include any part of the Site; and
1.2.18 "liability" means any liability, whether pursuant to a claim for contribution or under statute, tort (including but not limited to liability for negligence), contract, strict liability or otherwise (save that any exclusions or limitations of liability shall not apply in respect of fraud), and "liable" shall be construed accordingly.
2. AWARD OF CONCESSION AND TERM
2.1 The Parties acknowledge that, provided that all Parties have executed this Concession Agreement, by its entry into this Concession Agreement, the RoL has awarded the Concession to the PCO and the RoL agrees that, immediately following the execution of this Concession Agreement by all the Parties, the MoE on behalf of the RoL shall issue a notice about the decision to conclude the Concession Agreement and confirm the award of the Concession in the Official Gazette under Article 19 of the Law on Concessions.
2.2 This Concession Agreement shall commence on the Concession Date and shall remain in full force and effect until either:
2.2.1 if the PCO elects to carry out (or procure the carrying out of) the decommissioning of the NNPP, the completion of the Decommissioning Phase; or
2.2.2 if the PCO elects not to carry out (or procure the carrying out of) the decommissioning of the NNPP, the commencement of the Decommissioning Phase,
(subject, in either case, to earlier termination in accordance with its terms) (the "Contract Term").
3. SCOPE OF THE CONCESSION
3.1 The Parties acknowledge that, together with the award of the Concession:
3.1.1 the RoL awards to the PCO and the Strategic Investor (as applicable) the right for the PCO to enter into the EPC Contract with the EPC Contractor; and
3.1.2 the RoL awards to the PCO and the Strategic Investor (as applicable) the right for:
(A) the PCO to engage the O&M Support Contractor to provide operation and maintenance support services pursuant to an O&M Support Contract; and
(B) the PCO to engage the Nuclear Fuel Supplier to provide nuclear fuel supply and related services pursuant to a Fuel Supply Contract,
and
(C) if the PCO and the Strategic Investor wish together to exercise the option for the PCO to engage the O&M Support Contractor, they shall exercise this right no later than midnight (Lithuanian time) on the date specified in the O&M Support Terms (or such later date as the PCO and the Strategic Investor otherwise agree in writing in advance); and
(D) if the PCO wishes to enter into a Fuel Supply Contract, it shall exercise its right no later than midnight (Lithuanian time) on the date specified in the Nuclear Fuel Supply Terms (or such later date as the PCO and Strategic Investor otherwise agree in writing in advance),
and if the PCO and the Strategic Investor, or the PCO, as applicable, have not exercised their rights to enter into either or both of the O&M Support Contract and the Fuel Supply Contract by the relevant date, such right(s) shall lapse in respect of the relevant contract.
3.2 The Parties acknowledge that:
3.2.1 under the EPC Contract (or any contract which is ancillary to it), the EPC Contractor shall undertake or procure the design, development, manufacture, supply, construction and testing of the NNPP and support the PCO in accordance with the EPC Contract in the commissioning of the NNPP (together with the provision of certain manuals, spare parts, the initial nuclear fuel load (if any and on such terms) and such other nuclear fuel (if any and on such terms) as the parties to the EPC Contract may agree) on the terms agreed in or pursuant to the EPC Contract;
3.2.2 under any O&M Support Contract, the O&M Support Contractor shall provide a range of services to assist the PCO in relation to the operation and maintenance of the NNPP (including training) on the terms (and for the price) agreed in or pursuant to such O&M Support Contract; and
3.2.3 under any Fuel Supply Contract, the Nuclear Fuel Supplier shall provide a range of nuclear fuel related services which may include the sourcing of uranics, enrichment services and core design services, the fabrication of fuel rods and fuel assemblies and the delivery of fuel assemblies to the Site, on terms and for the price agreed in or pursuant to such Fuel Supply Contract.
3.3 The Parties acknowledge and agree that the RoL may also, if agreed with the PCO, grant additional contracts or rights to the Strategic Investor or an Associated Company (or Associated Companies) nominated by the Strategic Investor (and, if not Hitachi-GE Nuclear Energy, Ltd. and not guaranteed by Hitachi-GE Nuclear Energy, Ltd. or Hitachi, Ltd., having been accepted by the RoL in advance in writing) to provide services to the PCO subject to agreement in writing from the Strategic Investor and the PCO.
3.4 The PCO shall be the owner of the NNPP, the Site (from the date it is contributed by the Lithuanian Investor as anticipated by Clause 7.1 (Nature of RoL's obligations)) and related physical infrastructure and other assets developed by the PCO, except where the PCO agrees otherwise with any Third Party or the Strategic Investor that such Third Party or the Strategic Investor should own the relevant asset or where it is otherwise required by applicable Law. The PCO shall be the owner of electricity generated by the NNPP save to the extent required by applicable Law.
4. THE RELATIONSHIP: PARTNERING PRINCIPLES
4.1 In working together to achieve the objectives of this Concession Agreement, the RoL, the PCO and the Strategic Investor will act consistently with, and have regard to, the following principles:
4.1.1 to work together in an open and honest environment and to act in a co-operative and non-adversarial manner (but without prejudice to any Party's right to take such action as it considers necessary to enforce or defend its rights);
4.1.2 to foster a sound safety culture;
4.1.3 to the extent compliant with and allowed by applicable law, to co-operate to seek to ensure the readiness of the regional industry (including the Baltic States) to participate in the Project;
4.1.4 in the case of the Strategic Investor, to utilise and, in the case of the Parties, to work together best to take advantage of, such skills and experience as the Hitachi, Ltd. Group has from time to time to provide strategic guidance to the PCO on the technical project development of the NNPP;
4.1.5 in the case of the Strategic Investor, to utilise and, in the case of the Parties, to work together to best take advantage of, such skills and experience as the Hitachi, Ltd. Group has from time to time to provide access for the PCO and its Shareholders to the Japan Bank for International Cooperation, Nippon Export and Investment Insurance, Mizuho Corporate Bank and the Export-Import Bank of the United States and to work together with those institutions to maximise the amount of financing (on acceptable terms) that may be available (and subsequently committed) from those institutions for the Project up to either the date of financial close or FID, whichever is later;
4.1.6 to work together to seek to achieve the following milestones (recognising that the dates below are included on the assumption that the first LNTP is issued on the Concession Date and that the ability to meet these milestones may be significantly affected by the scope and timing of works and services agreed to be provided by the EPC Contractor in the period prior to FID and the timing and performance of Regulators, other public authorities and other Third Parties, as well as the Parties):
(A) completing the price firming process under the EPC Contract to facilitate the Shareholders to take a positive FID as soon as possible after the Concession Date;
(B) obtaining a Construction and Operation Licence by no later than 31 July 2015;
(C) First Concrete by 31 July 2016; and
(D) a Commercial Operation Date that occurs between 31 December 2020 and 31 December 2022 (inclusive of those dates);
4.1.7 in the case of the RoL, to support, insofar as it is able, the establishment and maintenance of arrangements under which the transmission system operator for the electricity system in the Republic of Lithuania does not discriminate against the NNPP, the PCO, the Shareholders, or those who purchase electricity produced by the NNPP or from the Strategic Investor and, in the case of the RoL, to facilitate, in parallel to the Project, the transmission system operators for the electricity systems of Lithuania, Latvia and/or Estonia entering into arrangements between them for the procurement of reserve power and their recovery of associated costs in order to maintain reliable and secure electricity systems in those countries; and
4.1.8 in the case of the RoL, to support, in so far as it is able, the planning and implementation of the transmission capacity and dispatch arrangements within the Republic of Lithuania so that they do not discriminate against the export of power generated by the NNPP to jurisdictions outside that of the Republic of Lithuania.
4.2 The Parties shall, from the Concession Date until the date on which a positive FID or a final negative FID is taken, cooperate and work together with the aim of developing certain arrangements (which will apply from no later than, and shall include, the date on which a positive FID is taken) to facilitate a positive FID being taken, including separate agreements:
4.2.1 with regard to the Parties' obligations and liability in respect of the Access Road Works;
4.2.2 in relation to the period after a positive FID is taken, which, amongst other things, may address:
(A) those circumstances that may result in the Shareholders having the right to require the RoL (or its nominee) to purchase their Shares for an agreed fair value or lead to other agreed consequences;
(B) those circumstances that may result in the RoL (or its nominee) having the right to purchase the Shares from the Shareholders for an agreed fair value (which may be determined in a different way from that in Clause 4.2.2(A)) or lead to other agreed consequences; and/or
(C) those circumstances that may result in the payment of Wasted Costs or Retendering Costs (as applicable) by the RoL to the Strategic Investor or by the Strategic Investor to the RoL.
4.2.3 in relation to the circumstances in and terms on which the consent of the Strategic Investor may be required for the transfer of Shares by the RoL or a RoL Nominee (or any subsequent owner of Shares previously owned by the RoL or a RoL Nominee) to a Competitor or entity in which a Competitor has an interest, taking into account the foreseeable privatisation context in the region;
4.2.4 in relation to protection and compensation rights which may be available to the PCO and/or the Shareholders from the RoL in respect of certain discriminatory or fundamental changes in law and on the occurrence of certain other events or changes in circumstances (anticipated to include appropriate mechanisms for notifying, agreeing and providing such protection);
4.2.5 in relation to protection and compensation rights which may be available to the Indemnified Persons referred to in Clause 16.5.3 (Breach of warranty) in respect of the RoL's and the PCO's compliance with all applicable Law and procedures regarding the Strategic Investor's selection and the award of, and entry into, the Concession Agreement and each Ancillary Contract from time to time;
4.2.6 in relation to protection and compensation rights which may be available to the Nuclear Indemnified Parties referred to in Clause 15.2 (Nuclear) and other members of the supply chain for the Project with respect to nuclear liability;
4.2.7 in relation to any arrangements with respect to nuclear liability between the RoL and one or more of the governments of the Baltic States relating to the costs of damage incurred in those Baltic States;
4.2.8 in relation to any rights to which the RoL may be entitled to cause certain rights of the Strategic Investor under the Shareholders' Agreement and related agreements to be reduced or extinguished in the event of any breach by the Strategic Investor of the obligation described in Clause 31.4 (Strategic Investor transfer of ownership restrictions);
4.2.9 in relation to protection and compensation rights which may be available to the PCO and/or the Shareholders from the RoL in respect of any request, any holding, and any determination or consequences that result from any referendum in Lithuania; and
4.2.10 in relation to certain additional support to be given by the RoL to the Project and to the PCO and/or its Shareholders.
4.3 Standards of Performance
The PCO shall perform its obligations under this Concession Agreement:
4.3.1 with all due regard to safety and security; and
4.3.2 in a transparent and co-operative manner with the RoL and the Regulators, provided that it shall not be obliged to act in a manner contrary to its own interests or those of any of the Shareholders.
5. STRATEGIC INVESTOR'S OBLIGATIONS
5.1 The Strategic Investor shall:
5.1.1 comply with all applicable Law in performing its obligations under this Concession Agreement; and
5.1.2 from the Investment Date, ensure that it has, in the reasonable opinion of the RoL, the resources to perform its obligations under this Concession Agreement or, if not, shall promptly, following a written request by the RoL, provide a guarantee and indemnity from Hitachi, Ltd. substantially in the form agreed between the RoL and Hitachi, Ltd.
5.2 The Strategic Investor agrees and undertakes that each of the parties (other than the PCO) to the EPC Contract and each other Ancillary Contract are at the Concession Date, or shall be on the relevant execution date of the Ancillary Contract, an Associated Company of the Strategic Investor, and shall remain an Associated Company of the Strategic Investor until the date which is the earlier of:
5.2.1
(A) in respect of the EPC Contract, the date upon which the last defects liability period expires under the EPC Contract;
(B) in respect of any other Ancillary Contract, the date upon which it no longer has, or may have, any performance (and not, for the avoidance of doubt, payment) obligations under the relevant Ancillary Contract; and
5.2.2 the date upon which the Strategic Investor ceases to be a Party to this Concession Agreement.
5.3 Subject to and in accordance with the terms of the Shareholders' Agreement and/or any other agreement between the Shareholders, the Strategic Investor shall invest twenty per cent (20%) of the total investment in the PCO by the Shareholders.
6. PCO OBLIGATIONS
Nature of PCO's obligations
6.1 The PCO shall:
6.1.1 comply with all applicable Law, including Environmental Regulations, in relation to its performance of the Concession;
6.1.2 take all reasonable steps to comply with its obligations (or remedy any breach in respect of such obligations), from time to time, under any Ancillary Contract to the extent required to ensure that no Ancillary Contract becomes terminable by any counterparty to that Ancillary Contract for breach by the PCO;
6.1.3 if a positive FID is adopted by the Shareholders, subject to the terms of the EPC Contract relating to force majeure, issue the Full Notice to Proceed within ninety (90) Calendar Days after the date of the positive FID;
6.1.4 perform, or procure the performance of, the designing, developing, financing, constructing, testing and commissioning of the NNPP in such manner as the PCO determines;
6.1.5 act as the operator and maintainer, or procure the operation and maintenance, of the NNPP in such manner as the PCO determines;
6.1.6 comply with its obligations under applicable Law in relation to:
(A) the funding of radioactive waste management and decommissioning (such applicable Law reflecting the Decommissioning and Waste Funding Principles as developed and agreed between the Parties);
(B) if relevant because the PCO has elected to decommission, the decommissioning of the NNPP; and
(C) if relevant because the PCO has elected not to decommission, transfer of the Site to the RoL;
6.1.7 procure that the EPC Contractor provides:
(A) an advance payment guarantee in respect of any advance payments to be made under the EPC Contract, except where and to the extent that the parties to the EPC Contract have agreed under the EPC Contract that an advance payment guarantee will not be needed in respect of any elements of the price under the EPC Contract which are to be paid in advance;
(B) a performance bond as security for the EPC Contractor's obligations under the EPC Contract; and
(C) a parent company guarantee in respect of the EPC Contractor's performance of its obligations under the EPC Contract, and any further or revised bonds or guarantees which the EPC Contractor is required to provide under the EPC Contract,
in each case when required to be provided by the EPC Contractor in accordance with and subject to the terms of the EPC Contract;
6.1.8 use all reasonable endeavours to procure that the Shareholders take a final FID (whether positive or negative) by the earlier of 31 December 2015 or the date thirty three (33) Months after the date of the issuance of the first LNTP, or such later date as the RoL may agree (acting reasonably taking into account the prevailing circumstances including the PCO's view on behalf of the Shareholders of when a FID is likely to be taken should the date in this Clause 6.1.8 be extended); and
6.1.9 if the milestones set out in Clause 4.1.6 (The Relationship: Partnering Principles) are not achieved, or not likely to be achieved, consult with the RoL as soon as reasonably practicable in relation to the actions the PCO intends to take.
6.2 PCO Responsibilities
The subcontracting or delegation of any of the PCO's obligations under this Concession Agreement (including to the Strategic Investor or any Associated Company of the Strategic Investor) shall not relieve or excuse the PCO from any obligation or liability under this Concession Agreement, nor shall performance of the PCO's obligations be affected by the appointment by the PCO of any Subcontractor or its or their subcontractors or any delegation of its duties under this Concession Agreement. Under this Concession Agreement (without prejudice to Clause 24.2 (Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs)), as between the Parties, the PCO shall be responsible for the failure of its Subcontractors and its or their sub‑subcontractors to comply with the terms of the relevant Subcontract as though those acts or omissions were acts or omissions of the PCO.
6.3 Enforcement of PCO and Strategic Investor obligations
6.3.1 The Strategic Investor acknowledges and agrees that it shall not be entitled to enforce any obligations of the PCO under this Concession Agreement save for under Clause 15.1 (Nuclear).
6.3.2 The PCO acknowledges and agrees that it shall not be entitled to enforce any obligations of the Strategic Investor under this Concession Agreement.
7. ROL OBLIGATIONS
7.1 Nature of RoL's obligations
The RoL shall:
7.1.1 procure that the Lithuanian Investor:
(A) contributes ownership title in, and any agreed access rights to, the Site to the PCO; and
(B) transfers or licenses (or procures the transfer or licensing of) the LIV IP to the PCO,
at the time (which shall not be earlier than the date on which the Shareholders take a positive FID) and on the terms to be agreed before the date on which the Shareholders take a positive FID, in each case as between the Lithuanian Investor and the PCO (each acting reasonably), save that it is acknowledged and agreed by the Parties that the aggregate value attributable to the Site and the LIV IP shall be no less than fifty million Euros (€50,000,000) (indexed from 1 January 2011 at the indexation rate); and
7.1.2 perform (or procure the performance of) the obligations in Schedule 2 (Access Road Works) in relation to the works required to the permanent main haul road from Klaipėda seaport to the Site.
7.2 RoL Responsibilities
The subcontracting or delegation of any of the RoL's obligations under this Concession Agreement shall not relieve or excuse the RoL from any obligation or liability under this Concession Agreement, nor shall performance of the RoL's obligations be affected by the appointment by the RoL of any subcontractor or its or their subcontractors or delegation of its duties under this Concession Agreement. Under this Concession Agreement, as between the Parties, the RoL shall be responsible for the acts and omissions of its subcontractors and the acts and omissions of their sub-subcontractors as though those acts or omissions were acts or omissions of the RoL.
7.3 RoL Nominee
Save as otherwise consented to by the Strategic Investor, the RoL shall ensure that:
7.3.1 all Shares owned at any time by the RoL or any RoL Nominee shall not be transferred, whether by the RoL, a RoL Nominee or any subsequent owner of the Shares which were once owned by the Lithuanian Investor, the RoL or a RoL Nominee to any Competitor or any person in which a Competitor is a direct or indirect shareholder; and
7.3.2 a Competitor does not become a direct or indirect legal or beneficial owner of any shares in a RoL Nominee.
8. CHANGES TO the SHAREHOLDERS' AGREEMENT
8.1 The PCO agrees that it shall not (without first obtaining the consent of the RoL, such consent not to be unreasonably withheld, including as to the terms or conditions of any amendment or waiver) agree to any amendment to, or waiver of, any term of the Shareholders' Agreement (including any related terms, definitions or interpretation provisions used in, or affecting, such term) in circumstances where:
8.1.1 such amendment or waiver materially affects any contractual third party right of the RoL under the Shareholders' Agreement; or
8.1.2 such amendment or waiver affects the definition in the Shareholders' Agreement of "Prohibited Change of Control", "Relevant Obligations", "Credit Payment" or "Competitor".
PART 2: SHAREHOLDINGS IN THE PCO
9. SHAREHOLDINGS IN THE PCO
Details of the initial Shareholders of the PCO are set out in Schedule 3 (Initial Shareholders' Details and Shareholding). This Clause 9 (Shareholdings in the PCO) is without prejudice to the exercise of any rights to subscribe for or to transfer any Shares in accordance with and subject to the terms of the Shareholders' Agreement and this Concession Agreement (including Clause 26 (RoL Event Mandatory Transfer of Shares), Clause 31 (Restrictions on Transfer of Shares and Change of Control) and Clause 32 (Shareholder Put Option)).
PART 3: GENERAL OBLIGATIONS
10. OUTSOURCING/SUBCONTRACTING
10.1 Subcontracting
10.1.1 Subject to Clause 10.1.2 below, the PCO shall ensure that under each Key Subcontract, the relevant Key Subcontractor shall not be entitled to terminate or amend the relevant Key Subcontract as a result of any change in the ownership, management or Control of the PCO to the RoL or a RoL Nominee.
10.1.2 Where the PCO proposes to enter into a Key Subcontract on the basis of the Key Subcontractor's standard terms which are inconsistent with the requirements of Clause 10.1.1, the PCO shall not be in breach of Clause 10.1.1 if it has used all reasonable endeavours to comply with the requirements of Clause 10.1.1.
10.2 Outsourcing
Provided that a positive FID is taken, the Strategic Investor shall procure that, as at COD, those of its Associated Companies that are party to an Ancillary Contract(s) shall have outsourced to Third Parties no less than ten per cent (10%) of the aggregate value of the works or services or any combination thereof performed in aggregate under all Ancillary Contracts. This obligation shall not apply if the EPC Contact is terminated before COD.
PART 4: PROJECT MANAGEMENT
11. REPORTS AND MONITORING
11.1 Project Management
11.1.1 Subject to Clauses 11.1.4 and 13 (Confidentiality), the PCO shall provide to the MoE, on behalf of the RoL:
(A) every three (3) Months commencing on the date six (6) Months after the Investment Date and until COD, a report (the "Pre‑COD Report") in relation to the following:
(1) the progress of the Project in accordance with the Development Timetable and any programme (including in relation to any key dates or milestones set out in the EPC Contract and any milestone set out in Clauses 4.1.6 (The Relationship: Partnering Principles) and 6.1.8 (PCO Obligations)), together with any material information regarding the performance of the Strategic Investor's obligations and the PCO's obligations under this Concession Agreement and the performance of any Key Subcontracts (as applicable in relation to each of them);
(2) information in relation to any material matters which will or may be reasonably considered to be likely to lead to a delay of the achievement of any key dates or milestones set out in the EPC Contract and any milestone set out in Clauses 4.1.6 (The Relationship: Partnering Principles) and 6.1.8 (PCO Obligations), together with such supporting information and in such detail as the RoL may reasonably request or require in order to enable the RoL to form a reasonable understanding of the issue(s) arising and any related cause of such delay; and
(3) any other material information which the RoL may reasonably request, and
(B) every six (6) Months commencing on the date six (6) Months after COD, a report (the "Post‑COD Report"), in relation to material operational and (if the PCO elects to carry out the decommissioning of the NNPP) decommissioning related matters relevant to the Project,
(the Post‑COD Reports and Pre‑COD Reports being the "Reports" and each a "Report"), each Report in the form and to a level of detail to be agreed (within one (1) Month of the Investment Date or COD, as applicable) between the PCO and the RoL each acting reasonably.
11.1.2 Subject to Clauses 11.1.4 and 13 (Confidentiality), if reasonably requested by the MoE, on behalf of the RoL, after the Investment Date, senior officers of the PCO shall attend and participate in meetings with the MoE, for and on behalf of the RoL, and such other government bodies in connection with the Project as the MoE, for and on behalf of the RoL, may reasonably require.
11.1.3 Subject to Clauses 11.1.4 and 13 (Confidentiality), the PCO shall provide the RoL with any additional information the RoL may reasonably request to clarify any information included or referred to in a Report provided that any such request is made by the RoL within one (1) Month after the date on which the RoL receives the relevant Report.
11.1.4 Nothing in this Clause 11.1 (Project Management), Clause 11.3 (Notification of a decision not to proceed to any further LNTP phase), Clause 11.4.2 (Notification of taking FID) or Clause 12 (Regulatory Interface) shall oblige the PCO to disclose information which:
(A) the PCO must keep confidential as a matter of applicable law in respect of safety and security matters;
(B) is the subject of a duty or undertaking of confidentiality between the PCO and a Third Party or the Strategic Investor under any contract or otherwise where to disclose such information would be a breach by the PCO of such duty or undertaking of confidentiality, provided that, if the PCO may be entitled to disclose such information with the consent of such Third Party or the Strategic Investor (as appropriate), the PCO shall use reasonable endeavours to obtain such consent;
(C) is commercially sensitive to the PCO or the Strategic Investor or constitutes confidential information for the purposes of Clause 13.2 (Confidential Information); or
(D) is legally privileged (or which the PCO reasonably asserts is legally privileged).
11.2 Inspection
The Parties acknowledge that VATESI has the right under applicable Law to inspect the NNPP, including for the purposes of fulfilling the RoL's rights of inspection as granting authority under the Law on Concessions.
11.3 Notification of a decision not to proceed to any further LNTP phase
11.3.1 If after the first LNTP phase, the Shareholders decide that the PCO will not proceed to any further LNTP phase (if any) and such decision is final, the PCO shall notify the MoE on behalf of the RoL as soon as possible following the taking of such decision.
11.3.2 If such a decision has been taken, Clause 23.2.1 (Termination following a negative FID or decision not to proceed to any further LNTP phase) shall apply and, subject to Clauses 11.1.4 (Project Management) and 13 (Confidentiality), the PCO shall provide the MoE on behalf of the RoL with reasonable details in respect of the reasons for such decision.
11.3.3 The final decision not to proceed to any further LNTP phase (if any) shall be deemed to be a final negative FID (as defined in Clause 11.4.1) and references to notification to the RoL of a final negative FID pursuant to Clause 11.4 (Notification of taking FID) shall be deemed to include the deemed final negative FID under this Clause 11.3 (Notification of a decision not to proceed to any further LNTP phase).
11.4 Notification of taking FID
11.4.1 If the Shareholders take:
(A) a negative FID which they conclude is final and they conclude that no further FID(s) will be taken (a "final negative FID"); or
(B) a positive FID,
the PCO shall notify the MoE on behalf of the RoL as soon as possible following the taking of such FID.
11.4.2 If a final negative FID has been taken, Clause 23.2.2 (Termination following a negative FID or decision not to proceed to any further LNTP phase) shall apply and, subject to Clauses 11.1.4 (Project Management) and 13 (Confidentiality), the PCO shall provide the MoE on behalf of the RoL with reasonable details in respect of why a final negative FID has been taken.
12. REGULATORY INTERFACE
12.1 Save where prohibited by applicable law, including any Regulatory Requirements, and subject to Clauses 11.1.4 (Project Management) and 13 (Confidentiality) and Clause 12.3 below, the PCO shall, after the Investment Date, promptly notify the MoE, for and on behalf of the RoL, in writing of any material action by a Regulator (including any suspension notices, enforcement notices and/or material amendments required to relevant procedures) in relation to the Project.
12.2 Save where prohibited by applicable law, including any Regulatory Requirements, and subject to Clauses 11.1.4 (Project Management) and 13 (Confidentiality) and Clause 12.3 below, the MoE, for and on behalf of the RoL, shall, after the Investment Date, be entitled to require discussions with the PCO, whether by way of meetings or otherwise, to understand the circumstances that have prompted such action from any Regulator.
12.3 For the purposes of this Clause 12 (Regulatory Interface), references to "Regulator" shall mean only those Lithuanian Regulators who have statutory authority to oversee and regulate the undertaking of any of the design, construction, testing, commissioning, operation, maintenance and/or decommissioning of the NNPP.
PART 5: CONFIDENTIALITY AND PUBLICITY
13. CONFIDENTIALITY
13.1 Parties
The Parties acknowledge and agree that:
13.1.1 Clauses 13.2 (Confidential Information) to 13.11 (Loss) (inclusive) shall apply as between: (1) the RoL and the PCO; and (2) the RoL and the Strategic Investor, and shall not apply as between the PCO and the Strategic Investor and references to "Party", "Recipient" or "Disclosing Party" shall be construed accordingly;
13.1.2 for the purposes of this Clause 13 (Confidentiality) only (other than Clause 13.9 (Highly Sensitive Information)), each reference to the RoL shall:
(A) where the RoL is the Recipient (other than under Clause 13.6 (Liability)), be deemed to be a reference to the MoE and not a reference to any other RoL entity (as defined in Clause 13.10 (RoL entity) below); and
(B) in relation to disclosure (and liability for such disclosure including under Clause 13.6 (Liability)) of such information provided to or obtained by the MoE, references shall be to the RoL; and
13.1.3 notwithstanding the foregoing, the RoL remains fully liable for the actions and inactions of the MoE as though they were the actions or inactions of the RoL in connection with this Clause 13 (Confidentiality).
13.2 Confidential Information
Subject to Clauses 13.3 (Exclusions) and 13.4 (Permitted Disclosure), each Party (the "Recipient") undertakes to the other Party (the "Disclosing Party") that (unless the prior written consent of the Disclosing Party shall first have been obtained) the Recipient shall, and shall procure that its officers, employees, advisors, representatives and agents shall, keep confidential and not by failure to exercise due care or otherwise by any act or omission disclose to any person whatsoever, or use or exploit for its or their own purposes or the purposes of any other person (whether commercial or otherwise), any of the confidential information of the Disclosing Party. For the purposes of this Clause 13 (Confidentiality) and subject to Clause 13.3 (Exclusions), "confidential information" means:
13.2.1 any agreement or arrangement contemplated by this Concession Agreement whether that agreement or arrangement is provided directly or indirectly through the Strategic Investor, the PCO or otherwise, provided that, in relation to the Ancillary Contracts and the Shareholders' Agreement, each of the PCO and the Strategic Investor shall be considered to be the Disclosing Party irrespective of who makes the disclosure;
13.2.2 information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, know-how, customers, suppliers, processes or affairs of the Disclosing Party;
13.2.3 information of whatever nature concerning the business, finances, assets, liabilities, dealings, transactions, know-how, customers, suppliers, processes or affairs of any member of the Hitachi, Ltd. Group or GE-Hitachi Nuclear Energy Americas LLC or Global Nuclear Fuel – Americas, LLC, whether that information was provided directly or indirectly through the Strategic Investor, the PCO or otherwise and in relation to such information the Strategic Investor shall be considered to be the Disclosing Party irrespective of who makes the disclosure;
13.2.4 Highly Sensitive Information, whether that information was provided directly or indirectly through the Strategic Investor, the PCO or otherwise and in relation to such information the Strategic Investor shall be considered to be the Disclosing Party irrespective of who makes the disclosure;
13.2.5 any documents, materials and other information which is expressly indicated to be confidential or is imparted by the Disclosing Party to the Recipient in circumstances importing an obligation of confidence and any Reports provided under Clause 11 (Reports and Monitoring); and
13.2.6 information of whatever nature relating to the negotiation of agreements in relation to the Project following the Concession Date to the extent that such negotiations are not subject to the terms of any other confidentiality undertaking entered into after the Concession Date between the RoL and the PCO or between the Strategic Investor and the RoL and in relation to such information which also falls within either of Clauses 13.2.3 or 13.2.4 above, the Strategic Investor shall be considered to be the Disclosing Party irrespective of who makes the disclosure,
and which the Recipient may from time to time receive or obtain (orally or in writing or in disk or electronic form) as a result of entering into, or performing its obligations pursuant to, this Concession Agreement or (in relation only to the RoL and its receipt of or obtaining Highly Sensitive Information) otherwise.
13.3 Exclusions
Notwithstanding Clause 13.2 (Confidential Information), confidential information shall not include:
13.3.1 information which is in the public domain other than as a result of a breach of this Concession Agreement by the Recipient and for t …
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