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

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

2 straipsnis. Sprendimas dėl koncesijos

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).

3 straipsnis. Esminiai turtiniai įsipareigojimai

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).

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

1.1       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.

2.1       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").

3.1       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.

4.1       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.

5.1       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.

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.

7.1       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.

8.1       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

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

10.1     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

11.1     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.

12.1     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

13.1     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 these purposes the knowledge of any RoL entity shall not be considered to be public domain;

13.3.2        information which is disclosed to the Recipient by a Third Party (other than a RoL entity) who is not in breach of any undertaking or duty as to confidentiality, whether express or implied, in relation to that information;

13.3.3        information which the Recipient can prove that it lawfully possessed (other than from a RoL entity) prior to obtaining it from the Disclosing Party and such information was not subject to any undertaking or duty as to confidentiality, whether express or implied;

13.3.4        this Concession Agreement itself and its existence; and

13.3.5        the existence of any Project Agreement other than the Concession Agreement.

13.4     Permitted Disclosure

Subject to Clause 13.9 (Highly Sensitive Information), the consent referred to in Clause 13.2 (Confidential Information) shall not be required for disclosure by the Recipient of any confidential information:

13.4.1        to its officers, employees, representatives and agents or to its Associated Companies and their officers, employees, representatives and agents, in each case to the extent that:

(A)      such disclosure is for the purposes of the Project or in relation to matters contemplated by this Concession Agreement;

(B)       those officers, employees, representatives and agents need to know the relevant confidential information in order to perform their duties in connection with the Project; or

(C)       such disclosure is required to enable the Recipient to carry out its obligations or exercise its rights under this Concession Agreement,

and who shall in each case be made aware by the Recipient of its obligations under this Concession Agreement and who shall be required by the Recipient to observe the same restrictions on the use of the relevant information as are contained in this Clause 13 (Confidentiality);

13.4.2        where the RoL is the Recipient, to the Parliament and the Government of the Republic of Lithuania, including all ministries and ministers, and each of their respective officers, employees, representatives and agents, in each case to the extent reasonably necessary:

(A)      to comply with the Government of the Republic of Lithuania's statutory functions and duties;

(B)       for the implementation of any relevant policy of the Government of the Republic of Lithuania;

(C)       for the purposes of national security or safety; or

(D)      for the purposes of approving or issuing opinions in connection with this Concession Agreement and the Project,

and who shall in each case be made aware by the Recipient of its obligations under this Concession Agreement and who shall be required by the Recipient to observe the same restrictions on the use of the relevant information as are contained in this Clause 13 (Confidentiality);

13.4.3        subject to Clause 13.5, to its professional advisers who are bound to the Recipient by a duty of confidence which applies to any information disclosed;

13.4.4        subject to Clause 13.5, to its insurers upon obtaining an undertaking of confidentiality for the benefit of the Recipient equivalent to that contained in this Clause 13 (Confidentiality);

13.4.5        subject to Clause 13.5, to potential or actual Financiers upon obtaining an undertaking of confidentiality for the benefit of the Recipient equivalent to that contained in this Clause 13 (Confidentiality);

13.4.6        to Shareholders, a direct or indirect investor in the PCO (other than a direct or indirect investor in a RoL Nominee) or persons with whom the PCO and/or any Shareholder(s) are in discussions in relation to becoming a Shareholder or a direct or indirect investor in the PCO (other than a direct or indirect investor in a RoL Nominee) upon obtaining an undertaking of confidentiality for the benefit of the Recipient equivalent to that contained in this Clause 13 (Confidentiality);

13.4.7        to the minimum extent required by applicable law (including to any Regulator) or by the regulations of any stock exchange or regulatory or supervisory authority to which the Recipient or any of its Associated Companies is subject or pursuant to any binding order of any court of competent jurisdiction or other Competent Authority or tribunal;

13.4.8        to a court or tribunal in relation to any Dispute or in relation to any claim in connection with the Project made under an Investment Protection Treaty; or

13.4.9        to the Parliament and the Government of the Republic of Latvia and the Parliament and the Government of the Republic of Estonia (as applicable), including all ministries and ministers, and each of their respective officers, employees, representatives and agents ("Regional Partner Government") (whether directly or via the Shareholders), in each case to the extent reasonably necessary:

(A)         to comply with the statutory functions and duties of the Regional Partner Government;

(B)         for the implementation of any relevant policy of the Regional Partner Government;

(C)         for the purposes of national security or safety; or

(D)         for the purposes of approving or issuing opinions in connection with this Concession Agreement and the Project,

and who shall in each case be made aware of the Recipient's obligations under this Concession Agreement and who shall be required by the Recipient to observe the same restrictions on the use of the relevant information as are contained in this Clause 13 (Confidentiality).

13.5     Any disclosure of confidential information by a Recipient to its professional advisers, insurers or any Financiers under Clauses 13.4.3, 13.4.4 and 13.4.5 respectively shall be limited to the extent that:

13.5.1       such disclosure is for the purposes of the Project or in relation to matters contemplated by this Concession Agreement; and

13.5.2       those professional advisers, insurers or Financiers (as applicable) need to know the relevant confidential information in order to perform their current or future obligations or duties to the Recipient.

13.6     Liability

Each Recipient shall be fully responsible for, and liable to the Disclosing Party for, any further disclosure of a Disclosing Party's confidential information made by a Third Party recipient (and any of their recipients) as though such disclosure were made by the Recipient under this Concession Agreement. For the avoidance of doubt, any person who receives confidential information pursuant to Clause 13.4 (Permitted Disclosure) (including any RoL entity) shall be a "Third Party recipient".

13.7     Consent

If a Recipient requests the Disclosing Party's consent to disclose any of the Disclosing Party's confidential information that consent shall not be unreasonably withheld or delayed. This Clause 13.7 (Consent) shall not apply to Highly Sensitive Information.

13.8     If any Recipient becomes required, in circumstances contemplated by Clauses 13.4.7 (Permitted Disclosure) or 13.9.1(B) (Highly Sensitive Information) to disclose any confidential information (including Highly Sensitive Information), the Recipient shall, to the extent permissible by applicable law:

13.8.1           give to the Disclosing Party such notice as is reasonably practical in the circumstances of such disclosure;

13.8.2           cooperate with the Disclosing Party (having due regard to the Disclosing Party's views) and take such steps as the Disclosing Party may reasonably require in order to enable it to mitigate the effects of, or avoid the requirements for, any such disclosure; and

13.8.3           in consultation with the Disclosing Party, take such measures as are reasonably practicable to minimise the extent of any such disclosure, including by disclosing the minimum amount of confidential information required to comply with such law, regulation or order.

13.9     Highly Sensitive Information

13.9.1    Notwithstanding any other provision of this Concession Agreement, the Parties agree and acknowledge that neither the PCO nor the Strategic Investor shall be required, whether as part of a report or otherwise, to provide the RoL with any Highly Sensitive Information under this Concession Agreement or otherwise (except to the extent required by applicable Law including where lawfully compelled by any Lithuanian Regulator). To the extent that the RoL (including, for the avoidance of doubt, each RoL entity) is provided with Highly Sensitive Information, the RoL (including, for the avoidance of doubt, each RoL entity), notwithstanding Clause 13.4 (Permitted Disclosure), shall not disclose that Highly Sensitive Information to any other person unless:

(A)      the RoL has first consulted with the Strategic Investor regarding such disclosure and obtained the prior consent of the Strategic Investor; or

(B)       disclosure is required by applicable Law (including where lawfully required by any Regulator).

13.9.2           For the avoidance of doubt, and subject to Clause 13.9.3, the RoL agrees that it will be liable for any disclosure of any Highly Sensitive Information by any RoL entity where such disclosure is not permitted by Clause 13.9.1, irrespective of how such RoL entity obtained the Highly Sensitive Information.

13.9.3           The Strategic Investor (or the PCO) may inform the MoE or any other RoL entity that any particular information is Highly Sensitive Information at the time of, or at any time after, such information is disclosed to such other RoL entity and the RoL shall only be liable for any disclosure of Highly Sensitive Information if the MoE or such other RoL entity has been informed, prior to that disclosure, that the particular information is Highly Sensitive Information.

13.9.4           If the MoE or another RoL entity obtains Highly Sensitive Information (including through any voluntary disclosure by the Strategic Investor or the PCO) and MoE or such other RoL entity is informed that the relevant information is Highly Sensitive Information and/or such information is marked with the words (or words to the effect of) "Highly Sensitive Information subject to a confidentiality undertaking under the Concession Agreement", then, for the purposes of any subsequent disclosure by the MoE or such RoL entity, the Strategic Investor (or the PCO) shall be deemed to have informed any subsequent recipients that the information is Highly Sensitive Information.

13.10         RoL entity

For the purposes of this Clause 13 (Confidentiality), "RoL entity" shall mean the Parliament of the Republic of Lithuania (including any member of the Parliament), the Government of the Republic of Lithuania (including any prime minister, minister or vice-minister), the President of the Republic of Lithuania (and the Office of the President) and any subdivision of the legal entity that is the Republic of Lithuania including all departments, commissions, boards, bureaux, ministries, inspectorates, each Lithuanian Regulator, agencies, offices or other instrumentalities and each of their respective officers, employees, representatives and agents whether or not having rights as a legal person.

13.11         Loss

13.11.1           If the RoL is liable under Clause 13.9 (Highly Sensitive Information) other than in respect of a disclosure by the MoE or a disclosure of information (including Highly Sensitive Information) originally provided to the MoE, direct losses of the type set out in Clauses 16.3.1(B), 16.3.1(C), 16.3.1(D) and 16.3.1(E) (Limitation of Liability) shall not be excluded.

13.11.2           If the RoL is liable under this Clause 13 (Confidentiality) save as contemplated in Clause 13.11.1, losses (whether direct or indirect) of the type set out in Clauses 16.3.1(A) to 16.3.1(F) (Limitation of Liability) (inclusive) shall not be excluded.

13.12         Third Party Loss

In addition to the above, the RoL shall have obligations of confidentiality to members of the Hitachi, Ltd. Group, GE-Hitachi Nuclear Energy Americas LLC and Global Nuclear Fuel-Americas, LLC on the same terms (to apply mutatis mutandis) as its obligations to the Strategic Investor under this Clause 13 (Confidentiality).

13.13         Freedom of Information

The Parties agree, and the RoL shall ensure, that no member of the public shall be entitled to receive all or any information provided to the RoL (including, for the avoidance of doubt, any RoL entity and any recipient of information pursuant to Clause 13.4.2 (Permitted Disclosure)) in connection with the Project pursuant to any applicable Law relating to or in connection with freedom of information. The foregoing shall be without prejudice to the right of the RoL to disclose information in connection with the Project subject to and fully in compliance with this Clause 13 (Confidentiality).

Subject to the provisions of Clause 13 (Confidentiality), each Party may make such disclosures or announcements concerning the terms or the subject matter of this Concession Agreement or the Project as they wish.

PART 6: NUCLEAR, LIABILITY AND INSURANCE

15.1     The RoL and the PCO each irrevocably and unconditionally acknowledges and agrees that, notwithstanding any provision to the contrary in this Concession Agreement, any Ancillary Contract, the Shareholders' Agreement, any subcontract (of any tier relating to any of the foregoing) or any other contract between the RoL or the PCO (as the case may be) and one or more Project Participants or their Related Persons in relation to or in connection with the Project, no such contract or any other contract in writing provides for or shall provide for a right of recourse which would be permitted under Article X(a) of the Vienna Convention 1963 or the Amended Vienna Convention or Article 10(a) of the Annex to the Convention on Supplementary Compensation.

15.2     The RoL shall indemnify on demand and hold harmless each member of the Hitachi, Ltd. Group, GE-Hitachi Nuclear Energy Americas LLC and Global Nuclear Fuel-Americas, LLC (the "Nuclear Indemnified Parties") from and against any and all Claims (whether or not successful, compromised or settled) which may be instituted, made, threatened, alleged, asserted or established (each a "Relevant Nuclear Claim") from time to time in any jurisdiction against or otherwise involving a Nuclear Indemnified Party and for all Losses which a Nuclear Indemnified Party may suffer or incur from time to time (including all Losses incurred in disputing any Relevant Nuclear Claim and/or in bringing a Relevant Nuclear Claim under this Clause 15.2 (Nuclear) and/or in seeking advice regarding any Relevant Nuclear Claim or in any way related to or in connection with the indemnity in this Clause 15.2 (Nuclear)), in any such case arising out of, based upon, in connection with or to any extent as a consequence of, the use by any person of any work product or other deliverables provided by or on behalf of any Ancillary Contractor pursuant to an Ancillary Contract to the extent that such use occurs on or after the date (if any) on which the RoL and/or one or more RoL Nominees and/or any subsequent owner(s) of Shares which were once owned by the Lithuanian Investor, the RoL or a RoL Nominee first becomes the owner of all of the Shares which are not then owned by the Lithuanian Investor.

15.3     The indemnity in Clause 15.2 (Nuclear) shall not apply in respect of Relevant Nuclear Claims or Losses of any Nuclear Indemnified Party to the extent that such Relevant Nuclear Claims or Losses arise as a consequence of the use of any such work product or other deliverable(s):

15.3.1         by that Nuclear Indemnified Party; or

15.3.2         by any person who is a Shareholder at the Concession Date (other than the Lithuanian Investor); or

15.3.3         by any Third Party that receives, whether directly or indirectly, such work product or other deliverable(s) from a Nuclear Indemnified Party where such work product or other deliverable(s) were originally provided by a Nuclear Indemnified Party for a purpose which is not related to the Project.

15.4     This indemnity shall terminate automatically if a positive FID is taken by the Shareholders (as notified to the RoL pursuant to Clause 11.4 (Notification of taking FID)).

16.1     Liability pursuant to Clause 4 (The Relationship: Partnering Principles)

Save for, and without prejudice to, Clause 6.1.9 (PCO's obligations), which shall be a binding obligation, Clause 4 (The Relationship: Partnering Principles) shall not create (and is not intended to create) legally binding rights and obligations for any Party and no Party shall be liable to any other Party under this Concession Agreement or otherwise and this Concession Agreement may not be terminated in relation to any breach or non-performance of all or any part of Clause 4 (The Relationship: Partnering Principles). Accordingly, the Parties acknowledge and agree that no part of Clause 4 (The Relationship: Partnering Principles) shall or is intended to prevent any Party from exercising any right, seeking or enforcing performance of any obligation, and is without prejudice to any rights and obligations, under this Concession Agreement. Furthermore, save in respect of Clause 6.1.9 (PCO's obligations), it is agreed and acknowledged that the provisions of Clause 4 (The Relationship: Partnering Principles) shall not be relevant to the construction or interpretation of any other provision of this Concession Agreement.

16.2     Interaction between Claims under the Concession Agreement and Claims under Investment Protection Treaties

Level of compensation in the Concession Agreement to be considered by investment tribunals

16.2.1         If a Party seeks relief under any applicable Investment Protection Treaty in respect of an event for which it would also be entitled to redress under this Concession Agreement, when deciding the level of compensation to be awarded to the relevant Party, any arbitral tribunal seized of such a Claim shall be guided by any relevant levels of compensation agreed in Clause 16.3 (Limitation of Liability), Clause 24.1 (Damages Payable by the RoL in respect of Wasted Costs) and Clause 26 (RoL Event Mandatory Transfer of Shares).

Concurrent Claims

16.2.2         Where a particular circumstance gives rise to Dispute, as defined in Clause 45.1 (Dispute Resolution Procedure and Arbitration), for which a Party may initiate international arbitration proceedings under an Investment Protection Treaty (a "Treaty Claim") or make a Claim under the Concession Agreement (a "Contract Claim"):

(A)      the relevant Party may, at its election, bring the Treaty Claim and the Contract Claim under a single arbitration proceeding in accordance with the ICSID Convention and the Parties hereby agree that such Claims may be heard concurrently in the same proceedings by the same arbitral tribunal;

(B)       if the relevant Party does not bring the Treaty Claim and the Contract Claim under a single proceeding at the Centre, then, to the extent permitted by law, if:

(1)       the relevant Party first makes a Contract Claim, it shall not be entitled to bring a Treaty Claim to the extent that the relief sought in any Treaty Claim directly or indirectly seeks the enforcement of the specified consequences in Clause 16.3 (Limitation of Liability), Clause 24.1 (Damages Payable by the RoL in respect of Wasted Costs) and Clause 26 (RoL Event Mandatory Transfer of Shares), but not otherwise, until the arbitral tribunal constituted to determine the Contract Claim issues its final award or the proceedings are otherwise terminated; and

(2)       the relevant Party first makes a Treaty Claim, it shall not be entitled to bring a Contract Claim to the extent that the relief sought in the Treaty Claim directly or indirectly seeks the enforcement of the same specified consequences as would be invoked in the Contract Claim, but not otherwise, until the arbitral tribunal constituted to determine the Treaty Claim issues its final award or the proceedings are otherwise terminated;

(C)       if the relevant Party brings a Treaty Claim and a Contract Claim under a single proceeding at the Centre, but for any reason those Claims cannot be heard in a single proceeding and by the same tribunal, the relevant Party may bring separate proceedings in relation to those Claims.

16.3     Limitation of Liability

16.3.1         Subject to Clause 13.11 (Loss) and Clause 16.3.3 and except where such losses are caused by a Party's fraud or deliberate default, the Parties shall have no liability under this Concession Agreement in any circumstances whatsoever in respect of any actual or expected:

(A)      special, indirect or consequential loss;

(B)       loss of profit;

(C)       loss of revenue, loss of goodwill, loss of opportunity or loss of business;

(D)      increased costs or expenses;

(E)       wasted expenditure including pre-contract expenditure (except as expressly provided for in Clause 24 (Damages for Termination)); or

(F)       punitive damages,

which may be sustained or claimed by any Party under or in connection with this Concession Agreement. For the avoidance of doubt, the losses referred to in Clauses 16.3.1(B), (C), (D) and (E) include both indirect and direct loss.

16.3.2         Subject to Clause 16.3.3:

(A)      the RoL shall have no liability under or in connection with this Concession Agreement whatsoever for any Claim in relation to Clause 7.1 (Nature of RoL's obligations) or 42.2 (Co-operation in relation to the Power at Cost Structure);

(B)       without prejudice to Clause 19.2.6 (Sole remedies for RoL Event, PCO Default, and Strategic Investor Default), the PCO shall have no liability under or in connection with this Concession Agreement whatsoever save in respect of all successful Claims against it in relation to Clauses 13 (Confidentiality), 28 (Warranties) and 30 (Assignment);

(C)       without prejudice to Clause 19.2.5 (Sole remedies for RoL Event, PCO Default, and Strategic Investor Default), the Strategic Investor shall have no liability under or in connection with this Concession Agreement whatsoever save in respect of all successful Claims against it in relation to Clauses 13 (Confidentiality), 24.2 (Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs), 28 (Warranties) and 30 (Assignment).

16.3.3         The limitations on liability set out in this Clause 16.3 (Limitation of Liability) shall not exclude or limit:

(A)      any Party's liability to an individual (or to the estate of a deceased individual) for the death of, or personal injury sustained by, such individual to the extent such death or personal injury was caused by that Party's negligence, or the negligence of that Party's employees, agents or subcontractors (as applicable);

(B)       any Party's liability to the extent any such limitation or exclusion of liability would be in contravention of applicable law;

(C)       any Party's obligation to pay any amount due and payable under or in connection with Clause 24 (Damages for Termination);

(D)      the RoL's liabilities in respect of its obligations to make the payments referred to in Clause 26 (RoL Event Mandatory Transfer of Shares) or Clause 32 (Shareholder Put Option) either under those Clauses or Clause 16.5 (Breach of warranty); and

(E)       the RoL's liabilities in respect of its obligations under or in connection with Clause 7.3 (RoL Nominee), Clause 15 (Nuclear), Clause 16.5.1 and Clause 16.5.3 (Breach of warranty).

16.4     General

16.4.1         Nothing in this Clause 16 (Liability) restricts or limits the general obligation at law of each of the Parties to mitigate any Losses which they may suffer or incur as a consequence of any breach of any provision of this Concession Agreement.

16.4.2         This Clause 16 (Liability) applies notwithstanding any other provision of this Concession Agreement to the contrary and shall not cease to have effect as a consequence of any rescission or termination of any other provisions of this Concession Agreement.

16.5     Breach of warranty

The other provisions of this Clause 16.5 (Breach of warranty) are subject to Clause 16.5.9.

16.5.1         If:

(A)      this Concession Agreement could have been terminable for a RoL Event but for this Concession Agreement having been determined by a competent court or pursuant to the Dispute Resolution Procedure to be void, ineffective or unenforceable (in each case in whole or in part); and/or

(B)       an Exiting Shareholder would have had a right to payment pursuant to Clause 26.4 (Payment of the Mandatory Transfer Price) but for this Concession Agreement having been determined by a competent court or pursuant to the Dispute Resolution Procedure to be void, ineffective or unenforceable (in each case in whole or in part); and/or

(C)       pursuant to Clause 20.2 (Termination for a RoL Event), this Concession Agreement has terminated for a RoL Event of the type set out in Clause 20.1.1 (Events of RoL Event) and Clause 26.4 (Payment of the Mandatory Transfer Price) has been determined by a competent court or pursuant to the Dispute Resolution Procedure to be void, ineffective or unenforceable (in each case in whole or in part),