Lietuvos Respublikos įstatymas dėl koncesijos suteikimo ir Lietuvos Respublikos esminių turtinių įsipareigojimų prisiėmimo Visagino branduolinės (atominės) elektrinės projekte

the RoL shall indemnify each of the Shareholders for a sum equal to the amounts which would otherwise, but for the determination that this Concession Agreement and/or the right to payment pursuant to Clause 26.4 (Payment of the Mandatory Transfer Price) is void, ineffective or unenforceable (in each case in whole or in part), be due and payable to that Shareholder under Clause 26.4 (Payment of the Mandatory Transfer Price).

16.5.2         If it has been agreed or determined pursuant to Clause 20.2 (Termination for a RoL Event) that this Concession Agreement is to be terminated or has terminated for a RoL Event of the type set out in Clause 20.1.1 (Events of RoL Event) or if the RoL has served a termination notice under Clause 16.5.7, Clause 16.5.3 shall cease to apply solely in respect of losses directly relating to the value of the Shares.

16.5.3

(A)      Subject to Clause 16.5.4, the RoL shall indemnify and hold harmless the PCO, the Strategic Investor, Global Nuclear Fuel-Americas, LLC and any Associated Company of the Strategic Investor which is party to an Ancillary Contract (each an "Indemnified Person") 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 Claim") from time to time in any jurisdiction against or otherwise involving an Indemnified Person and from all Losses which an Indemnified Person may suffer or incur from time to time (including all Losses incurred in relation to any amounts clawed back or otherwise being required to be returned under applicable Law and/or in disputing any Relevant Claim and/or in bringing a claim under this Clause and/or in seeking advice regarding any Relevant Claim or in any way related to or in connection with the indemnity in this Clause), in any such case arising out of, based upon or in connection with, whether directly or indirectly, any:

(1)       breach or failure to observe by the RoL of the RoL's obligations under all applicable Laws and regulations (including European Union law and any procedures for competitive bidding in the field of public works concessions) in relation to the selection of the Strategic Investor, the award of the Concession, the entry into and/or award of the Concession Agreement and/or the entry into and/or the award of the Ancillary Contracts and/or any variation of a Project Agreement; or

(2)       breach of (and/or the facts or circumstances giving rise to a breach of) the warranty provided under Clause 28.1.2 (Warranties).

(B)       If any of the PCO, the Shareholders (or any of their Associated Companies), the Strategic Investor (or any of its Associated Companies), Global Nuclear Fuel-Americas, LLC (or its Associated Companies) and any member of the Hitachi, Ltd. Group challenges (the "Challenging Entity") the RoL's observation of the RoL's obligations under all applicable Laws and regulations (including European Union law and any procedures for competitive bidding in the field of public works concessions) in relation to the selection of the Strategic Investor, the award of the Concession, the entry into and/or the award of the Concession Agreement and/or the entry into and/or the award of the Ancillary Contracts and/or any variation of a Project Agreement, an Indemnified Person shall not be entitled to claim under the indemnity in Clause 16.5.3(A) if:

(1)       the Indemnified Person is also the Challenging Entity; or

(2)       the Indemnified Person is an Associated Company of the Challenging Entity.

(C)       Without prejudice to their contractual rights under the relevant Ancillary Contract, if any Ancillary Contract or this Concession Agreement is challenged but is not or has not yet been declared void, ineffective or unenforceable by any competent court or pursuant to any other dispute forum, Global Nuclear Fuel-Americas, LLC and any Associated Company of the Strategic Investor which is party to an Ancillary Contract shall not be entitled to claim under the indemnity in Clause 16.5.3(A) unless and until it has a Loss in respect of the relevant Ancillary Contract being declared void, ineffective or unenforceable, other than in respect of any Loss in relation to any amounts which have been clawed back or otherwise required to be returned under applicable Law.

(D)      If Global Nuclear Fuel-Americas, LLC or any Associated Company of the Strategic Investor which is party to an Ancillary Contract is entitled to claim under the indemnity in Clause 16.5.3(A) for Losses in respect of any Ancillary Contract being declared void, ineffective or unenforceable by any competent court or pursuant to any other dispute forum, it shall not be entitled to claim under the indemnity in Clause 16.5.3(A) for any greater sum than:

(1)       is or would have (had the relevant Ancillary Contract not been declared void, ineffective or unenforceable) been payable to it under the relevant Ancillary Contract at that point in time if that Ancillary Contract had been terminated for PCO default (without prejudice to the right under the indemnity in Clause 16.5.3(A) to claim the Losses incurred in disputing any Relevant Claim, bringing a claim or seeking advice); and

(2)       has been clawed back or otherwise required to be returned under applicable Law (to the extent not included in Clause 16.5.3(D)(1)).

16.5.4         The liability of the RoL under or in respect of the indemnity under Clause 16.5.3 (Breach of warranty) shall be reduced to the extent that the Indemnified Person (whether or not a Party) has not taken all reasonable steps to mitigate its Loss (provided that the costs of such mitigation shall be recoverable under that indemnity).

16.5.5         Neither the PCO nor the Strategic Investor shall have any liability for any act, omission, decision, breach or failure to observe by the RoL in respect of the RoL's obligations to comply with all applicable Laws and regulations (including European Union law and any procedures for competitive bidding in the field of public works concessions).

16.5.6         The indemnities in Clauses 16.5.1 and 16.5.3 and the right to terminate under Clause 20.1.1 and be paid in respect of that termination under Clause 26.4 (Payment of the Mandatory Transfer Price) shall be the sole remedy of the PCO and the Shareholders (as applicable) for breach of the warranty in Clause 28.1.2 (Warranties).

16.5.7         If, during the period from the Concession Date until the date on which a positive FID or a final negative FID is taken (as notified to the RoL pursuant to Clause 11.4 (Notification of taking FID)), any person (including any Party) makes any Claim under Clause 16.5.3, the RoL shall, for so long as any Claim under Clause 16.5.3 subsists, and at any point in that period, be entitled to terminate this Concession Agreement. If the RoL wishes to exercise such right to terminate, it shall serve notice on the PCO (copied to the Strategic Investor), notifying the PCO that the RoL has elected to terminate this Concession Agreement.

16.5.8         If the RoL issues a notice pursuant to Clause 16.5.7, then Clauses 16.5.1 (Breach of warranty), 20.3 (Consequences of a RoL Event), 20.4 (Mitigation following a RoL Event) and 26 (RoL Event and Mandatory Transfer of Shares) shall apply mutatis mutandis.

16.5.9

(A)      The warranty given in Clause 28.1.2 shall cease to apply automatically if the Shareholders take a final negative FID or a positive FID (as notified to the RoL pursuant to Clause 11.4 (Notification of taking FID)).

(B)       Without prejudice to any accrued rights in respect of the indemnities given in Clauses 16.5.1 and 16.5.3 (whether or not known or then claimed) in respect of facts, circumstances, actions or inactions (including where giving rise to any subsequent claw back of any payment or any other requirement to return a payment under applicable Law) which commenced or occurred before the Shareholders take a positive FID or a final negative FID (as notified to the RoL pursuant to Clause 11.4 (Notification of taking FID)), such indemnities shall terminate automatically if the Shareholders take a final negative FID or positive FID.

(C)       Clause 16.5.7 shall cease to apply automatically if the Shareholders take a final negative FID or a positive FID (as notified to the RoL pursuant to Clause 11.4 (Notification of taking FID)).

17.1     Without prejudice to any other rights or remedies that the Parties may have, the Parties acknowledge and agree that damages alone might not be an adequate remedy for any breach by them of Clause 13 (Confidentiality) and that the remedies of injunction and specific performance as well as any equitable relief for any threatened or actual breach of Clause 13 (Confidentiality) by any Party may be more appropriate remedies.

17.2     The Parties agree that they shall not exercise the remedies of injunction and specific performance in respect of Clauses 4 (The Relationship: Partnering Principles), 5 (Strategic Investor's Obligations), 6 (PCO Obligations) and 18 (Insurance).

The PCO shall take out and maintain, or procure the maintenance of, the Required Insurances to the extent available in the market. If such Required Insurances are not available or readily available in the market, the PCO shall use reasonable endeavours to negotiate the provision of such insurance or seek alternative means of providing such Required Insurances.

PART 7: TERMINATION

19.1     Termination

19.1.1         Subject to Clause 2.2 (Award of Concession and Term), this Concession Agreement shall only be capable of termination in accordance with:

(A)      any of the provisions referred to in Clause 19.1.2; or

(B)       Clause 23.1 (Termination by Agreement of the Parties),

and the provisions referred to in Clauses 19.1.1(A) and 19.1.1(B) state fully all rights of any Party to terminate this Concession Agreement and any other right of termination which any Party would otherwise have had by virtue of common law (including termination for repudiatory breach), in equity, statute or otherwise is excluded.

19.1.2         In the period from the Concession Date until the date on which a positive FID or a final negative FID is taken (as notified to the RoL pursuant to Clause 11.4 (Notification of taking FID)), this Concession Agreement may:

(A)      be terminated by the RoL in accordance with Clause 21.3.1 (Consequences of a PCO Default); or

(B)       be terminated in accordance with Clause 16.5.7 (Breach of warranty); or

(C)       terminate automatically in accordance with Clauses 23.2 (Termination following a negative FID or decision not to proceed to any further LNTP phase) or 26.5 (Termination and further provisions).

19.1.3         In the period from the Concession Date until the date on which a positive FID or final negative FID is taken (as notified to the RoL pursuant to Clause 11.4 (Notification of taking FID)), the rights and obligations of the Strategic Investor under this Concession Agreement may be terminated in accordance with Clause 22.2 (Termination of the Strategic Investor's rights and obligations) and, should such a termination occur, this Concession Agreement shall continue in full force and effect as between the RoL and the PCO.

19.1.4         The rights and obligations of the Strategic Investor under this Concession Agreement may be terminated at any time in accordance with Clause 23.3 (Termination in respect of the Strategic Investor due to Strategic Investor exit from Shareholding) and, should such a termination occur, this Concession Agreement shall continue in full force and effect as between the RoL and the PCO.

19.1.5         For the avoidance of doubt, following a positive FID, this Concession Agreement may only be terminated in accordance with Clause 23.1 (Termination by Agreement of the Parties).

19.2     Sole remedies for RoL Event, PCO Default, and Strategic Investor Default

19.2.1         The limitations in this Clause 19.2 are without prejudice to (i) any rights or remedies under any Investment Protection Treaty (but subject to Clause 16.2 (Interaction between Claims under the Concession Agreement and Claims under Investment Protection Treaties)); and (ii) subject to Clause 17 (Damages are insufficient compensation and equitable remedies are to be available), any right to injunctive relief and specific performance in respect of enforcing the remedies referred to in this Clause 19.2 (Sole remedies for RoL Event, PCO Default and Strategic Investor Default).

19.2.2         Without prejudice to the indemnities in Clause 16.5 (Breach of warranty), the sole remedy of the Strategic Investor for a RoL Event shall be:

(A)      where the RoL Event is or includes breach of a payment obligation (including under an indemnity), to enforce and receive payment of the relevant sum;

(B)       its right for payment by the RoL of Wasted Costs in accordance with Clause 24.1 (Damages Payable by the RoL in respect of Wasted Costs);

(C)       the payment by the RoL to the Strategic Investor of the Mandatory Transfer Price for the transfer of its Shareholder's Interest in accordance with Clause 26.4 (Payment of the Mandatory Transfer Price); and

(D)      if there is a RoL Event under Clause 20.1.3 (Events of RoL Event) which includes a repudiatory breach of Clause 13 (Confidentiality) by the RoL, a Claim in respect of such breach,

and the Strategic Investor shall have no additional right or remedy against the RoL for a RoL Event arising by common law (including termination for repudiatory breach), in equity, by statute or otherwise.

19.2.3         Without prejudice to Clause 19.2.2 and the indemnities in Clause 16.5 (Breach of warranty), the sole remedy and exclusive right of any Shareholder for a RoL Event shall be the payment by the RoL to that Shareholder of the Mandatory Transfer Price for the transfer of its Shareholder's Interest in accordance with Clause 26.4 (Payment of the Mandatory Transfer Price) and each Shareholder shall have no additional right or remedy against the RoL for a RoL Event arising by common law (including termination for repudiatory breach), in equity, by statute or otherwise. This Clause 19.2.3 shall not apply to the Strategic Investor; the Strategic Investor's rights and remedies are as set out in Clause 19.2.2.

19.2.4         Without prejudice to the indemnities in Clause 16.5 (Breach of warranty), the sole remedies of the PCO for a RoL Event shall be:

(A)      its right to serve a RoL Event Notice under Clause 20.2.1(Termination for a RoL Event);

(B)       the PCO's right under Clause 20.2 (Termination for a RoL Event) to refer the matter to be determined in accordance with the Dispute Resolution Procedure;

(C)       where the RoL Event is or includes breach of a payment obligation (including under an indemnity), to enforce and receive payment of the relevant sum; and

(D)      if there is a RoL Event under Clause 20.1.3 which includes a repudiatory breach of Clause 13 (Confidentiality) by the RoL, a Claim in respect of such breach,

and the PCO shall have no additional right or remedy against the RoL for a RoL Event arising by common law (including termination for repudiatory breach), in equity, by statute or otherwise.

19.2.5         The sole remedies and exclusive rights of the RoL against the Strategic Investor for a Strategic Investor Default shall be:

(A)      termination of the Strategic Investor's rights and obligations under this Concession Agreement in accordance with Clause 22.2 (Termination of the Strategic Investor's rights and obligations);

(B)       following termination of this Concession Agreement in accordance with Clause 22.2 (Termination of the Strategic Investor's rights and obligations), the payment by the Strategic Investor of Wasted Costs or Retendering Costs under Clause 24.2 (Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs); and

(C)       following termination of the Strategic Investor's rights and obligations for a Strategic Investor Default under Clause 22.1.1 (Breach of Strategic Investor Obligations), which includes a material breach of Clause 13 (Confidentiality) by the Strategic Investor, a Claim in respect of such breach,

and the RoL shall have no additional right or remedy against the Strategic Investor for a Strategic Investor Default arising by common law (including termination for repudiatory breach), in equity, by statute or otherwise.

19.2.6         Without prejudice to any Claim the RoL may have against the Strategic Investor for the payment of Wasted Costs or Retendering Costs under Clause 21.3 (Consequences of a PCO Default) and Clause 24.2 (Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs) in respect of specified PCO Defaults, the sole remedy and exclusive right of the RoL against the PCO for any PCO Default shall be termination of this Concession Agreement under Clause 21 (PCO Default) and the RoL shall have no additional right or remedy against the PCO for a PCO Default arising by common law (including termination for repudiatory breach), in equity, by statute or otherwise.

20.1     Events of RoL Event

Each of the following events shall be a RoL Event:

20.1.1         if there is an action, suit or proceeding brought by a Third Party Claimant to a Competent Authority challenging the selection of the Strategic Investor by the RoL and/or the entry by the RoL into and/or the award (as appropriate) of the Concession and/or this Concession Agreement and/or the award and/or the entry into of any Ancillary Contract and/or the issuance of any LNTP or FNTP and/or any amendment or variation of this Concession Agreement or any Ancillary Contract, on the basis that either the RoL or the PCO has not acted in full compliance with all applicable Law and procedures and:

(A)      such action, suit or proceeding is not withdrawn or dismissed within three (3) Months of its commencement; and/or

(B)       the amounts payable by the RoL under Clause 16.5.3 (Breach of warranty) are greater than five million Euros (€5,000,000);

20.1.2         the occurrence of a Pre-FID Fundamental Change;

20.1.3         the RoL commits a repudiatory breach of this Concession Agreement and such repudiatory breach does not also constitute a RoL Event under Clause 20.1.1; or

20.1.4         failure by the RoL to make any undisputed payment for a sum over five million Euros (€5,000,000) (indexed at the indexation rate) within sixty (60) Calendar Days of such sum being due and payable.

20.2     Termination for a RoL Event

20.2.1         In the event that the PCO serves on the RoL a notice asserting the occurrence of a RoL Event (the "RoL Event Notice"), such notice shall:

(A)      specify the type of RoL Event asserted by reference to Clause 20.1 (Events of Default), giving reasonable details thereof; and

(B)       specify which Shareholder(s) voted in favour of the issuance of a RoL Event Notice by the PCO and which of those Shareholder(s) wishes to exercise its respective buy-out rights in accordance with the Shareholders' Agreement (each, an "Exiting Shareholder").

20.2.2         As soon as practicable and, in any event, within five (5) Business Days after receipt of the RoL Event Notice, the PCO and the RoL shall discuss, together with any Exiting Shareholder wishing to participate in such discussion, and attempt all to agree whether the RoL Event asserted in that RoL Event Notice has occurred.

20.2.3         Subject to Clause 20.2.4, if within fifteen (15) Business Days of the date of service of the RoL Event Notice, the PCO, the RoL and any Exiting Shareholder that participates in the discussions referred to in Clause 20.2.2 are unable to agree whether the RoL Event asserted in the RoL Event Notice has occurred, the RoL, the PCO or any Exiting Shareholder that has participated in the discussion referred to in Clause 20.2.2, may within a further ten (10) Business Days refer the matter to be determined in accordance with the Dispute Resolution Procedure.

20.2.4         Upon written notice to the PCO under the Shareholders' Agreement by any Exiting Shareholder (given within ten (10) Business Days of the expiry of the ten (10) Business Day period referred to in Clause 20.2.3), the PCO shall refer the matter to be determined in accordance with the Dispute Resolution Procedure.

20.2.5         If it is agreed or determined that the RoL Event set out in the RoL Event Notice has occurred and such RoL Event is subsisting, then Clause 20.3 (Consequences of a RoL Event) shall apply.

20.3     Consequences of a RoL Event

20.3.1         If it is agreed or determined in accordance with Clause 20.2 (Termination for a RoL Event) that a RoL Event has occurred then following a period of forty five (45) Business Days of that agreement or determination, Clause 26 (RoL Event Mandatory Transfer of Shares) shall apply.

20.3.2         If this Concession Agreement is terminated under Clause 26.5.1 (Termination and further provisions) or the Strategic Investor's Shareholder's Interest is acquired by the RoL or a RoL Nominee under Clause 26.4 (Payment of the Mandatory Transfer Price) or the Strategic Investor's Relevant Obligations under the Shareholders' Agreement cease to apply, then Clause 24.1 (Damages Payable by the RoL in respect of Wasted Costs) shall apply.

20.4     Mitigation following a RoL Event

If it is agreed or determined in accordance with Clause 20.2 (Termination for a RoL Event) that a RoL Event has occurred and each of the Shareholders other than the Lithuanian Investor is an Exiting Shareholder, the PCO shall from that time, at the expense of the RoL (such amounts to be paid in advance), until the last transfer of an Exiting Shareholder's Shareholder's Interests is completed in accordance with Clause 26.4 (Payment of the Mandatory Transfer Price) take all reasonable steps which the RoL may reasonably request (the RoL taking into account that the Concession Agreement may not ultimately terminate) to mitigate any liabilities which it may accrue in connection with the termination and ensure that it does not incur or accelerate the incurrence under any Related Agreements or otherwise of any third party liability which might reasonably be avoided or delayed.

21.1     Events of PCO Default

Abandonment shall be the only PCO Default.

21.2     Termination for PCO Default

21.2.1           If the RoL believes that a PCO Default has occurred, the RoL may serve on the PCO a notice asserting the occurrence of such default (the "PCO Default Notice"), and shall copy the PCO Default Notice to the Strategic Investor. The PCO Default Notice shall specify the type of PCO Default that is asserted by reference to Clause 21.1 (Events of PCO Default), giving reasonable details thereof.

21.2.2           As soon as practicable and, in any event, within five (5) Business Days after receipt of the PCO Default Notice, the RoL and the PCO shall discuss and attempt to agree whether the PCO Default asserted in the PCO Default Notice has occurred.

21.2.3           If, within fifteen (15) Business Days of the date of service of the PCO Default Notice, the RoL and the PCO are unable to agree whether the PCO Default asserted in the PCO Default Notice has occurred, the RoL or the PCO may refer the matter to be determined in accordance with the Dispute Resolution Procedure.

21.2.4           If it is agreed or determined that the PCO Default set out in the PCO Default Notice has occurred and such PCO Default is subsisting, the RoL shall be entitled to terminate this Concession Agreement in accordance with Clause 21.3 (Consequences of a PCO Default).

21.3     Consequences of a PCO Default

21.3.1           If it is agreed or determined in accordance with Clause 21.2 (Termination for PCO Default) that a PCO Default has occurred, the RoL shall be entitled to terminate this Concession Agreement by giving notice to the other Parties of the date of such termination, being a date no fewer than twenty five (25) Business Days after the date of the agreement or determination that a PCO Default has occurred, and this Concession Agreement shall terminate on the date set out in such termination notice.

21.3.2           On and in respect of termination of this Concession Agreement under Clause 21.3.1, Clause 25 (RoL's third party rights under the Shareholders' Agreement) shall apply.

21.3.3           If this Concession Agreement is terminated under Clause 21.3.1 where the PCO Default is directly caused by and originates from:

(A)      the termination of the EPC Contract for an EPC Contractor Default under the terms of the EPC Contract; or

(B)       after the Investment Date, the Strategic Investor having committed a funding default under the Shareholders' Agreement and the Strategic Investor not having remedied that funding default within the period provided by the Shareholders' Agreement following the Strategic Investor's receipt of a default notice,

Clause 24.2 (Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs) shall apply.

21.4     Other Consequences of Termination for PCO Default

21.4.1           If it is agreed or determined in accordance with Clause 21.2 (Termination for PCO Default) that a PCO Default has occurred and the RoL has served a PCO Default Notice, the PCO shall from that time, subject to Clause 21.4.2:

(A)      take all reasonable steps to mitigate any liabilities which may accrue to the PCO in connection with such termination of this Concession Agreement; and

(B)       except as it is otherwise bound to do so by any Related Agreement or applicable law, not sell, dispose of, or transfer or cause a diminution in value of any of its material assets without the RoL's prior written consent,

until the RoL, having exercised its rights in accordance with Clause 25.1 (RoL's third party rights under the Shareholders' Agreement) to require each Shareholder to transfer its Shareholder's Interest to the RoL in accordance with the Shareholders' Agreement, has completed such transfer, or any such rights having lapsed in accordance with the Shareholders' Agreement.

21.4.2           If the RoL has exercised its third party rights under the Shareholders' Agreement to require all Shareholders (including the Strategic Investor) to transfer all but not part of their Shareholder's Interests to the RoL (or a RoL Nominee) under Clause 25 (RoL's third party rights under the Shareholders' Agreement), then the actions to be taken by the PCO under Clause 21.4.1 shall include the exercise by the PCO of any rights it has under any Related Agreements as may be reasonably requested by the RoL in writing from time to time.

22.1     Events of Strategic Investor Default

Each of the following events shall be a Strategic Investor Default:

Breach of Strategic Investor Obligations

22.1.1           after the Investment Date, a material breach by the Strategic Investor of any of its obligations under this Concession Agreement where such breach materially and adversely affects the performance of this Concession Agreement, including a repudiatory breach by the Strategic Investor of this Concession Agreement;

Winding Up of the Strategic Investor

22.1.2           the shareholders of the Strategic Investor adopt a decision to liquidate the Strategic Investor or the Strategic Investor is otherwise liquidated;

Buy Out of the Strategic Investor

22.1.3           the Strategic Investor has committed a funding default under the Shareholders' Agreement after the Investment Date, and the transfer of the Strategic Investor's Shares to the other Shareholders or a permitted third party transferee in accordance with the buy-out provisions in the Shareholders' Agreement as a direct result of that funding default has been completed; or

Failure to remain an Associated Company of Hitachi, Ltd. and invalid transfer of shares in the Strategic Investor

22.1.4           the Strategic Investor is in breach of any of its obligations under Clauses 31.4.1 or 31.4.2 (Strategic Investor transfer of ownership restrictions).

22.2     Termination of the Strategic Investor's rights and obligations

22.2.1           In the case of a Strategic Investor Default contemplated by:

(A)      Clause 22.1.1 (Breach of Strategic Investor Obligations) or Clause 22.1.4 (Failure to remain an Associated Company of Hitachi, Ltd. and Invalid transfer of shares in the Strategic Investor), Clauses 22.2.2 to 22.2.7 (inclusive) shall apply;

(B)       Clause 22.1.2 (Winding Up of the Strategic Investor), the RoL may (in consultation with the PCO and subject to compliance by the RoL with Clause 22.2.7) within twenty (20) Business Days of becoming aware of the relevant Strategic Investor Default terminate the Strategic Investor's rights and obligations under this Concession Agreement, either with immediate effect or on such period of notice not exceeding ten (10) Business Days as the RoL reasonably determines to be appropriate by serving a termination notice on the Strategic Investor and the Concession Agreement shall continue in full force and effect as between the RoL and the PCO; the RoL shall copy any such termination notice to the PCO; or

(C)       Clause 22.1.3 (Buy Out of the Strategic Investor), the Strategic Investor's rights and obligations under this Concession Agreement shall terminate automatically upon the completion of the transfer of the Strategic Investor's Shares to the other Shareholders or a permitted third party transferee in accordance with the buy-out provisions on default in the Shareholders' Agreement.

22.2.2           Prior to serving a Strategic Investor Default Notice (as defined in Clause 22.2.3), the RoL shall consult with the PCO in respect of the relevant Strategic Investor Default and may, to the extent the RoL acting reasonably determines necessary, request information from the PCO (which the PCO shall provide) in connection with that Strategic Investor Default.

22.2.3           If the RoL believes that a Strategic Investor Default under Clause 22.1.1 (Breach of Strategic Investor Obligations) or Clause 22.1.4 (Failure to remain an Associated Company of Hitachi, Ltd. and Invalid transfer of shares in the Strategic Investor) has occurred, the RoL may serve on the Strategic Investor a notice asserting the occurrence of a Strategic Investor Default (the "Strategic Investor Default Notice"), and shall copy the Strategic Investor Default Notice to the PCO. The Strategic Investor Default Notice shall specify the type of Strategic Investor Default, giving reasonable details thereof.

22.2.4           As soon as practicable and, in any event, within five (5) Business Days after receipt of the Strategic Investor Default Notice, the RoL and the Strategic Investor shall discuss and attempt to agree whether the Strategic Investor Default asserted in that Strategic Investor Default Notice has occurred. The RoL shall consult with the PCO in respect of the discussions between the RoL and the Strategic Investor and the PCO shall take part in the discussions if so requested by the RoL or if the PCO so desires.

22.2.5           If, within fifteen (15) Business Days of the date of service of the Strategic Investor Default Notice, the RoL and the Strategic Investor are unable to agree whether the Strategic Investor Default asserted in the Strategic Investor Default Notice has occurred, the RoL or the Strategic Investor may refer the matter to be determined in accordance with the Dispute Resolution Procedure.

22.2.6           If it is agreed or determined that the Strategic Investor Default set out in the Strategic Investor Default Notice has occurred and such Strategic Investor Default is subsisting, then the RoL may (acting reasonably in consultation with the PCO and subject to compliance by the RoL with Clause 22.2.7) terminate the Strategic Investor's rights and obligations under this Concession Agreement with immediate effect or on such period of notice not exceeding ten (10) Business Days as the RoL reasonably determines appropriate by serving a termination notice on the Strategic Investor. The RoL shall copy any such termination notice to the PCO.

22.2.7           Prior to exercising its right to terminate the Strategic Investor's rights and obligations under this Concession Agreement under Clauses 22.2.1(B) or 22.2.6, the RoL shall obtain the consent of the PCO to such proposed termination and any termination notice given by the RoL under Clauses 22.2.1(B) or 22.2.6 shall be ineffective if the consent of the PCO to such proposed termination was not so obtained.

22.3     Consequences of Termination

22.3.1           If the Strategic Investor's rights and obligations under this Concession Agreement are terminated under Clause 22.2 (Termination of the Strategic Investor's rights and obligations), Clause 24.2 (Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs) shall apply.

22.3.2           Notwithstanding the termination of the Strategic Investor's rights and obligations under this Concession Agreement, this Concession Agreement shall continue in full force and effect as between the RoL and the PCO.

23.1     Termination by Agreement of the Parties

At any time (including for the avoidance of doubt after a positive FID), the Parties shall be entitled to terminate this Concession Agreement by agreement if all (but not some) of the Parties agree in writing, specifying the reason for termination, the consequences of termination, and the date when termination shall take effect.

23.2     Termination following a negative FID or decision not to proceed to any further LNTP phase

23.2.1           This Concession Agreement shall terminate automatically with immediate effect if the PCO notifies the RoL in accordance with Clause 11.3 (Notification of a decision not to proceed to any further LNTP phase) that the PCO has decided not to proceed to any further LNTP phase.

23.2.2           This Concession Agreement shall terminate automatically with immediate effect if the PCO notifies the RoL in accordance with Clause 11.4 (Notification of taking FID) that a final negative FID has been taken.

23.3     Termination in respect of the Strategic Investor due to Strategic Investor exit from Shareholding

The Strategic Investor's rights and obligations under this Concession Agreement shall terminate automatically on the date on which its Relevant Obligations under the Shareholders' Agreement cease to apply, however the Concession Agreement shall continue in full force and effect as between the RoL and the PCO.

23.4     RoL Call Option on Non-Default Termination

If the Concession Agreement is terminated under Clauses 23.1 (Termination by Agreement of the Parties) (if expressly agreed by the Parties as part of that termination by agreement) or 23.2 (Termination following a negative FID or decision not to proceed to any further LNTP phase), Clause 25 (RoL's third party rights under the Shareholders' Agreement) shall apply.

23.5     Consequences of Non-Default Termination

23.5.1           The RoL shall have no liability to the PCO or the Strategic Investor as a consequence of the termination of this Concession Agreement in accordance with this Clause 23 (Non-Default Termination) other than its liability to the Strategic Investor (as a Shareholder) pursuant to Clauses 23.4 (RoL Call Option on Non-Default Termination) and 25 (RoL's third party rights under the Shareholders' Agreement) or as otherwise agreed between the Parties.

23.5.2           If the RoL has exercised its third party rights under the Shareholders' Agreement to require the Shareholders (including the Strategic Investor) to transfer all but not part of their Shares to the RoL or a RoL Nominee under Clauses 23.4 (RoL Call Option on Non-Default Termination) and 25 (RoL's third party rights under the Shareholders' Agreement), then the RoL may request that the PCO (at the RoL's expense, such amounts to be paid in advance) takes reasonable steps to mitigate any liabilities which it may accrue in connection with the termination which may include the exercise by the PCO of any rights it has under any Related Agreements as may be reasonably requested by the RoL in writing from time to time.

24.1     Damages Payable by the RoL in respect of Wasted Costs

24.1.1           If:

(A)      this Concession Agreement is terminated under Clause 26.5.1 (Termination and further provisions);

(B)       the Strategic Investor is an Exiting Shareholder and is entitled to have its Shareholder's Interest acquired by the RoL or a RoL Nominee under Clause 26.4.1 (Payment of the Mandatory Transfer Price); or

(C)       the Strategic Investor's Relevant Obligations under the Shareholders' Agreement cease to apply:

then:

(1)       the Strategic Investor may, within two (2) Months of the date of termination or entitlement (as applicable), invoice the RoL for the Strategic Investor's Wasted Costs together with supporting documentary evidence (in a form and detail satisfactory to the RoL acting reasonably) for all Wasted Costs claimed; and

(2)       the RoL shall, subject to Clause 24.1.2 and to the extent the Wasted Costs are agreed or determined amounts, pay to the Strategic Investor the invoiced Wasted Costs on or before the date falling two (2) Months after receiving the invoice for the Strategic Investor's Wasted Costs.

24.1.2           The RoL's maximum liability for Wasted Costs payable under Clause 24.1.1 shall not exceed the amount of ten million Euros (€10,000,000).

24.2     Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs

24.2.1           If:

(A)      the Strategic Investor's rights and obligations under this Concession Agreement are terminated under Clause 22.2 (Termination of the Strategic Investor's rights and obligations); or

(B)       this Concession Agreement is terminated in its entirety under Clause 21.2 (Termination for PCO Default) for a PCO Default caused by an event set out in Clause 21.3.3 (Consequences of a PCO Default),

the RoL may elect (in its sole discretion) whether or not to commence a Retender Process.

24.2.2           If under Clause 24.2.1:

(A)      the RoL elects to commence a Retender Process within twenty four (24) Months after termination:

(1)       the RoL may, within two (2) Months of that election, invoice the Strategic Investor for the RoL's Retendering Costs together with supporting documentary evidence (in a form and detail satisfactory to the Strategic Investor acting reasonably) for all Retendering Costs claimed; and

(2)       the Strategic Investor shall, subject to Clause 24.2.3 and to the extent the Retendering Costs are agreed or determined amounts, pay to the RoL the invoiced Retendering Costs on or before the date falling two (2) Months after receiving an invoice for the same from the RoL; or

(B)       the RoL elects not to commence a Retender Process within twenty four (24) Months after termination:

(1)       the RoL may, within two (2) Months of that election, invoice the Strategic Investor for the RoL's Wasted Costs together with supporting documentary evidence (in a form and detail satisfactory to the Strategic Investor acting reasonably) for all Wasted Costs claimed; and

(2)       the Strategic Investor shall, subject to Clause 24.2.3 and to the extent the Wasted Costs are agreed or determined amounts, pay to the RoL the invoiced Wasted Costs on or before the date falling two (2) Months after receiving an invoice for the same from the RoL.

24.2.3           The Strategic Investor's maximum liability for Wasted Costs or Retendering Costs (as applicable) payable in accordance with Clause 24.2.2 shall not exceed the amount of ten million Euros (€10,000,000). For the avoidance of doubt, the RoL may not claim both Wasted Costs and Retendering Costs.

24.3     Disputes

Any disagreement between the RoL and the Strategic Investor in respect of the quantum or evidence to support a claim by the Strategic Investor for Wasted Costs under Clause 24.1 (Damages Payable by the RoL in respect of Wasted Costs) or a claim by the RoL for Retendering Costs or Wasted Costs under Clause 24.2 (Damages Payable by the Strategic Investor in respect of Wasted Costs or Retendering Costs) may be referred by either Party to be determined in accordance with the Dispute Resolution Procedure.

25.1     On termination of this Concession Agreement under Clause 21.2 (Termination for PCO Default) or Clause 23.2 (Termination following a negative FID or decision not to proceed to any further LNTP phase) the Parties:

25.1.1           acknowledge that the RoL will have certain third party rights under the Shareholders' Agreement to require all or some, as the case may be, of the Shareholders (including the Strategic Investor) to transfer their Shareholders' Interests as it stands from time to time, to the RoL or a RoL Nominee; and

25.1.2           agree that the sums payable by the RoL in the event of an exercise by it of any of the rights referred to in Clause 25.1.1 shall be determined pursuant to a valuation procedure described in the Shareholders' Agreement and those sums shall not exceed such sums as would be payable by the RoL to each Shareholder for its respective Shareholder's Interest in accordance with Clause 26.4 (Payment of the Mandatory Transfer Price).

26.1     PCO to deliver Invested Capital Statement

26.1.1           The PCO shall, within ten (10) Business Days of the expiry of the period in Clause 20.3.1 (Consequences of a RoL Event), notify the RoL of the composition of the capital of the PCO by delivering to the RoL a completed Invested Capital Statement stating the total Invested Capital in respect of each Exiting Shareholder as at the Calculation Date.

26.1.2           The Parties agree and acknowledge that each Exiting Shareholder shall, in accordance with the requirements of the Shareholders' Agreement, provide the PCO promptly with any information the PCO may reasonably require in order to provide the RoL with the Invested Capital Statement in accordance with Clause 26.1.1.

26.2     Calculation and notification of Mandatory Transfer Price

No more than ten (10) Business Days after the date of the notification of the Invested Capital Statement pursuant to Clause 26.1, the RoL shall:

26.2.1           determine its calculation of the price payable to each Exiting Shareholder cited in the RoL Event Notice as wishing to exercise its buyout rights in respect of its Shareholder's Interest (the "Mandatory Transfer Price") represented by "x" below and calculated as follows:

x = a + (a1 x b x c1) + (a2 x b x c2) ... – d

where:

a = Invested Capital (and an= each Tranche thereof, disregarding any return of Share capital to an Exiting Shareholder (in the case of a Subscription Payment) or a repayment or prepayment to an Exiting Shareholder by the PCO of the principal amount of any Shareholder Loan (in the case of a Principal Amount) which occurs prior to the Calculation Date)

b = a margin of 5% per annum (calculated on the basis of a 360-day year) applicable to each Tranche (the "Margin")

cn = (i) the number of Calendar Days comprising the period from the date on which the PCO received the relevant Tranche of Invested Capital to the Calculation Date, as the case may be, divided by (ii) 360

d = the aggregate amount of (i) any distribution of income or profit paid in cash or cash equivalents by the PCO and received by the relevant Exiting Shareholder in respect of any Tranche of Shares issued to such Exiting Shareholder in consideration for its Subscription Payments, and (ii) any Return Amount

"Return Amount" means if:

(A)      any Tranche of Invested Capital is the subject of (i) a return of Share capital to an Exiting Shareholder (in the case of a Subscription Payment), (ii) a repayment or prepayment to an Exiting Shareholder by the PCO of the principal amount of any Shareholder Loan (in the case of a Principal Amount), or (iii) a payment of any interest in cash or cash equivalent by the PCO and received by the relevant Exiting Shareholder (in the case of a Principal Amount) an amount equal to the aggregate of (in respect of each such return, repayment, prepayment or interest payment):

e x f x g

where:

e =       is the amount of the relevant return, repayment, prepayment or interest payment received by the Exiting Shareholder;

f =        is the Margin; and

g =       is the number of Calendar Days comprising the period from the date on which the Exiting Shareholder received the relevant return, repayment, prepayment or interest payment to the Calculation Date, divided by 360; or

(B)       otherwise, zero,

and

26.2.2           notify the PCO of its calculation of the Mandatory Transfer Price in respect of each Exiting Shareholder's Shareholder's Interest,

and the PCO shall within five (5) Business Days notify the Exiting Shareholder of the Mandatory Transfer Price as determined by the RoL and notified to the PCO in accordance with this Clause 26.2.

26.3     Disputing the Mandatory Transfer Price

26.3.1           If, having been notified by the PCO of the RoL's calculation of the Mandatory Transfer Price in respect of its Shareholder's Interest pursuant to Clause 26.2.2 (Calculation and notification of Mandatory Transfer Price), an Exiting Shareholder notifies the PCO that it wishes to challenge its notified Mandatory Transfer Price, the PCO shall within twenty (20) Business Days of such Exiting Shareholder's notification issue to the RoL a Notice of Dispute in accordance with the Dispute Resolution Procedure. If no such notice is served by an Exiting Shareholder on the PCO within twenty (20) Business Days of that Exiting Shareholder being notified by the PCO of the RoL's calculation of its Mandatory Transfer Price, the PCO shall notify the RoL of such fact and the Mandatory Transfer Price for that Exiting Shareholder shall be deemed to be the RoL's calculation thereof.

26.3.2           Subject to Clause 26.4.4 (Payment of the Mandatory Transfer Price), in the event of service by the PCO of a Notice of Dispute in accordance with Clause 26.3.1, the RoL's payment obligation under Clause 26.4 (Payment of the Mandatory Transfer Price) to that Exiting Shareholder shall be suspended, until the earlier of:

(A)      a final determination of the Mandatory Transfer Price in accordance with the Dispute Resolution Procedure; or

(B)       the RoL and that Exiting Shareholder agreeing in writing the Mandatory Transfer Price in respect of such Exiting Shareholder's Shareholder's Interest.

26.4     Payment of the Mandatory Transfer Price

26.4.1           The RoL shall pay:

(A)      the Mandatory Transfer Price; and

(B)       the Supplementary Margin,

to the Exiting Shareholder by no later than ten (10) Business Days after the date on which either (i) the RoL and the Exiting Shareholder agree (or are deemed to have agreed) the Mandatory Transfer Price in each case in accordance with Clause 26.3, or (ii) subject to Clause 26.4.4, the Mandatory Transfer Price is finally determined in accordance with the Dispute Resolution Procedure and Clause 26.3.1, save in the event that a Voluntary Encumbrance remains in place on the expiry of such period, in which case, no later than ten (10) Business Days after the release of such Voluntary Encumbrance.

26.4.2           The Parties acknowledge that in accordance with the Shareholders' Agreement, each Exiting Shareholder shall, within ten (10) Business Days after the date on which either (i) the RoL and the Exiting Shareholder agree (or are deemed to have agreed) the Mandatory Transfer Price in each case in accordance with Clause 26.3.1 or (ii) subject to Clause 26.4.4 the Mandatory Transfer Price is finally determined in accordance with the Dispute Resolution Procedure in accordance with Clause 26.3.1, and in each case upon payment of the Mandatory Transfer Price and the Supplementary Margin, do everything within its power to transfer its Shareholder's Interests to the RoL or the RoL Nominee. If an Exiting Shareholder cannot complete such transfer of its Shareholder's Interest (or any part thereof) owing to any Voluntary Encumbrance, the Parties acknowledge that it will be required by the Shareholders' Agreement to hold on trust for the RoL its Shareholders' Interest pending release of any Voluntary Encumbrance. The terms of this trust will be set out in the Shareholders' Agreement.

26.4.3           For the avoidance of doubt, the Mandatory Transfer Price and the Supplementary Margin shall be due and payable by the RoL under Clause 26.4.1 notwithstanding any restriction or impediment on the ability of an Exiting Shareholder to transfer its Shareholder's Interest (or any part thereof) to the RoL or the RoL Nominee (other than, as described in Clauses 26.4.1 and 26.4.2, owing to any Voluntary Encumbrance over the Exiting Shareholder's Shareholder's Interest). The Parties acknowledge that in accordance with the Shareholders' Agreement, there shall be no obligation on the relevant Exiting Shareholder to refund, reimburse or compensate the RoL in the event of any delay in or impossibility of transferring its Shareholder's Interest pursuant to this Clause 26 provided that the Exiting Shareholder has complied with its obligations under Clause 26.4.2.

26.4.4           Following the service of a Notice of Dispute, the RoL shall pay the portion of the Mandatory Transfer Price and the respective Supplementary Margin to that Exiting Shareholder that is agreed by the RoL and that Exiting Shareholder within ten (10) Business Days of the date on which the RoL and the Exiting Shareholder agree such portion. The obligation of the RoL to pay any additional amount and any respective Supplementary Margin shall only arise following determination being made pursuant to the Dispute Resolution Procedure or the RoL and the relevant Exiting Shareholder reaching agreement in relation to that additional amount.

26.4.5           The Mandatory Transfer Price and the Supplementary Margin shall be paid in Euros, free and clear of all deductions or withholdings by the RoL of any kind, except for those required by Law, and if any deduction or withholding by the RoL must be made by Law, the RoL will pay that additional amount which is necessary to ensure that each Exiting Shareholder receives a net amount equal to the full Mandatory Transfer Price and the Supplementary Margin which it would have received if the payment had been made without the deduction or withholding by the RoL.

26.4.6           Subject to Clause 26.4.7, the RoL shall pay to an Exiting Shareholder:

(A)      an amount equal to amount, if any, of Lithuanian Tax due from the Exiting Shareholder as a result of the RoL's payment to it of the Mandatory Transfer Price, any amount pursuant to Clause 26.4.5 and the Supplementary Margin;

(B)       an amount equal to the amount, if any, of all Lithuanian stamp duty, registration or other similar Lithuanian Taxes due and payable by the Exiting Shareholder in respect of the transfer of its Shareholder's Interest to the RoL or a RoL Nominee; and

(C)       an amount equal to the amount, if any, of any Lithuanian VAT due as a result of (i) the RoL's payment to it of the Mandatory Transfer Price, any amount pursuant to Clause 26.4.5 and the Supplementary Margin (and the Parties acknowledge that the Mandatory Transfer Price, any amount pursuant to Clause 26.4.5 and the Supplementary Margin is exclusive of any VAT in Lithuania), (ii) a full or partial termination of this Concession Agreement, or (iii) the transfer to the RoL or a RoL Nominee of the Exiting Shareholder's Shareholder's Interest,

such payment by the RoL of any amount required under Clause 26.4.7 (A), (B) or (C) being payable prior to the date on which the relevant Lithuanian Tax, stamp duty, registration, or other similar Lithuanian Tax or Lithuanian VAT becomes payable by such Exiting Shareholder.

26.4.7           If the RoL disputes any amount in a demand received by it under Clause 26.4.6 it shall make payment of any undisputed amount in the demand on or before the due date for such amount under that demand and shall issue a Notice of Dispute to the relevant Exiting Shareholder specifying the amount in dispute and shall not be obliged to pay such disputed amount until the dispute is resolved in accordance with the Dispute Resolution Procedure or otherwise by agreement between the RoL and the relevant Exiting Shareholder.

26.5     Termination and further provisions

26.5.1           If all Shareholders are Exiting Shareholders, this Concession Agreement shall terminate automatically upon the completion of the transfer of the last Exiting Shareholder's Shareholder's Interest to the RoL. Where any Exiting Shareholder's Shareholder's Interest has been settled on trust under Clause 26.4 (Payment of the Mandatory Transfer Price), the transfer of such Exiting Shareholder's Shareholder's Interest shall be deemed to be completed six (6) Months after the date of its settlement on trust.

26.5.2           The PCO shall take such action as is within its powers and may be required to give effect to the provisions of this Clause 26 (RoL Event Mandatory Transfer of Shares).

26.5.3           The RoL shall indemnify on demand and hold harmless each Exiting Shareholder from payments it makes in response to a call for funding, or requested by way of such a call but not yet made, (which, if made, would constitute either a Principal Amount or a Subscription Payment) notified in either case by the PCO to such an Exiting Shareholder in accordance with the Shareholders' Agreement during the period from the date of the agreement or determination that a RoL Event has occurred under Clause 20.2 until the date on which the Exiting Shareholder ceases to hold any Shares.

PART 8: GENERAL PROVISIONS

27.1     Termination of the Concession Agreement

Notwithstanding any other provisions of this Concession Agreement (including any provision that provides for the termination of any rights or obligations of any Party), if this Concession Agreement is terminated in respect of all Parties for any reason (including, for the avoidance of doubt, as a result of repudiatory breach):

27.1.1           this Clause 27.1 and the following provisions of this Concession Agreement (and any defined terms, Clauses and/or Schedules, Appendices and Annexes referred to in them and/or necessary in order to give effect to them) including all rights and obligations arising under those provisions will survive such termination of this Concession Agreement:

(A)      Clauses 1 (Definitions and Interpretation), 6.2 (PCO Responsibilities), 6.3 (Enforcement of PCO and Strategic Investor Obligations), 7.2 (RoL Responsibilities), 7.3 (RoL Nominee), 8.1 (Changes to the Shareholders' Agreement), 11.1.3 (Project Management), 11.3.2 (Notification of a decision not to proceed to any further LNTP phase), 11.4.2 (Notification of taking FID), 13 (Confidentiality), 14 (Publicity), 15.1, 15.2, 15.3 (Nuclear), 16 (Liability), 17 (Damages are Insufficient Compensation and Equitable Remedies are to be Available), 19 (Application of Clauses 19 to 26 Inclusive: Termination), 20.3 (Consequences of a RoL Event), 20.4 (Mitigation following a RoL Event), 21.3 (Consequences of a PCO Default), 21.4 (Other Consequences of Termination for PCO Default), 23.1 (Termination by Agreement of the Parties), 23.4 (RoL Call Option on Non-Default Termination), 23.5 (Consequences of Non-Default Termination), 24 (Damages for Termination), 25 (RoL's Third Party Rights under the Shareholders' Agreement), 26 (RoL Event Mandatory Transfer of Shares), 28.1.3 (Warranties), 29 (Force Majeure), 30 (Assignment), 32 (Shareholder Put Option), 33 (Notices), 34 (Entire Agreement), 35 (Variation and Waiver), 37 (Severability), 38 (Costs and Expenses), 39 (Interest to Run on Default), 40 (Contracts (Rights of Third Parties) Act), 41 (No Partnership/Agency), 43 (Language), 44 (Governing Law), 45 (Dispute Resolution and Arbitration) and 46 (Sovereign Immunity Waiver); and

(B)       any other provisions of this Concession Agreement which expressly survive termination of the Concession Agreement or which are required to give effect to such termination or the consequences of such termination;

27.1.2           save as expressly provided in this Concession Agreement, upon termination of this Concession Agreement (for whatever cause) any accrued rights or obligations to which the Parties may be entitled or be subject to before the date of such termination will remain in full force and effect; and

27.1.3           save as provided for in this Clause 27 (Survival, Rights and Obligations), all rights and obligations of each Party under this Concession Agreement will cease and be of no further force or effect upon termination of this Concession Agreement.

27.2     Strategic Investor's rights and obligations cease

Notwithstanding any other provision of this Concession Agreement (including any provision that provides for termination of any rights or obligations of any Party), if the Strategic Investor's rights and obligations under this Concession Agreement are terminated (including, for the avoidance of doubt, as a result of a repudiatory breach) under Clause 22.2 (Termination of the Strategic Investor's rights and obligations) or Clause 23.3 (Termination in respect of the Strategic Investor due to Strategic Investor exit from Shareholding):

27.2.1           this Clause 27.2 and the following provisions of this Concession Agreement (and any defined terms, Clauses and/or Schedules, Appendices and Annexes referred to in them and/or necessary in order to give effect to them) including all rights and obligations of the Strategic Investor arising under those provisions will survive:

(A)      Clauses 1 (Definitions and Interpretation), 6.2 (PCO Responsibilities), 6.3 (Enforcement of PCO and Strategic Investor Obligations), 7.2 (RoL Responsibilities), 7.3 (RoL Nominee), 13 (Confidentiality), 14 (Publicity), 15.1, 15.2, 15.3 (Nuclear), 16 (Liability), 17 (Damages are Insufficient Compensation and Equitable Remedies are to be Available), 19 (Application of Clauses 19 to 26 Inclusive: Termination), 20.3 (Consequences of a RoL Event), 22.3 (Consequences of Termination), 23.5 (Consequences of Non-Default Termination), 24 (Damages for Termination), 25 (RoL's Third Party Rights under the Shareholders' Agreement), 26 (RoL Event Mandatory Transfer of Shares), 28.1.3 (Warranties), 29 (Force Majeure), 30 (Assignment), 32 (Shareholder Put Option), 33 (Notices), 34 (Entire Agreement), 35 (Variation and Waiver), 37 (Severability), 38 (Costs and Expenses), 39 (Interest to Run on Default), 40 (Contracts (Rights of Third Parties) Act), 41 (No Partnership/Agency), 43 (Language), 44 (Governing Law), 45 (Dispute Resolution and Arbitration) and 46 (Sovereign Immunity Waiver); and

(B)       any other provisions of this Concession Agreement which expressly survive termination of the Concession Agreement in respect of the Strategic Investor's rights and obligations or which are required to give effect to such termination or the consequences of such termination;

27.2.2           save as expressly provided in this Concession Agreement, upon termination of this Concession Agreement in respect of the Strategic Investor's rights and obligations (for whatever cause) any accrued rights or obligations to which the Parties may be entitled or be subject to before the date of such termination will remain in full force and effect; and

27.2.3           save as provided for in this Clause 27.2 (Survival, Rights and Obligations), all rights and obligations of the Strategic Investor under this Concession Agreement will cease and be of no further force or effect upon termination of this Concession Agreement in respect of the Strategic Investor's rights and obligations only.

28.1

28.1.1           Each Party represents, warrants and undertakes to the other Parties that, as at the Concession Date and the Investment Date (but, in respect of the PCO only, subject to the PCO obtaining any necessary Consents or third party approvals (including approvals of the Shareholders) required either by Law, this Concession Agreement or the Shareholders' Agreement to exercise its rights or comply with its obligations under this Concession Agreement):

(A)      it has the legal right and full power and authority to enter into, and exercise its rights and perform its obligations under, this Concession Agreement;

(B)       save as provided for in this Concession Agreement, all actions required by it to authorise the execution and delivery of, and to exercise its rights and perform its obligations under, this Concession Agreement have been duly taken and this Concession Agreement shall constitute binding obligations upon it;

(C)       the execution and delivery of, and the exercise by it of its rights, and the performance by it of its obligations, under this Concession Agreement do not and shall not:

(1)       constitute a default under any provision of any agreement or instrument to which it is a party;

(2)       result in a breach of any provision of its memorandum or articles of association (or equivalent documents); or

(3)       result in a breach of any lien, lease, order, judgment, award, injunction, decree, ordinance or regulation or any other restriction of any kind or character by which it is bound; and

(D)      save as provided in, or obtained prior to the execution of, this Concession Agreement, no Consent of any government agency or other person is required by it for entry into this Concession Agreement.

28.1.2           Subject and without prejudice to Clause 16.5.9(A), the RoL represents and warrants that:

(A)      on the Concession Date and each day after the Concession Date (by reference to the facts and circumstances then existing), the Strategic Investor has been selected, the Concession has been awarded and this Concession Agreement has been entered into and/or awarded (as appropriate);

(B)       on each of the dates on which each Ancillary Contract is entered into and each day thereafter (by reference to the facts and circumstances then existing) (as applicable for each Ancillary Contract), each Ancillary Contract has been entered into and/or awarded,

by the RoL and the PCO in full compliance with all applicable Law and procedures relating to procurement and competitive bidding and the RoL acknowledges that the PCO and the Strategic Investor enter into this Concession Agreement and undertake the Project in reliance on this repeating representation and warranty.

28.1.3           The RoL:

(A)      represents and warrants on the Concession Date and on each day after the Concession Date (by reference to the facts and circumstances then existing) that the central bank of Lithuania (Lietuvos bankas) has a different legal and juridical personality from that of the RoL such that its assets are not available for the satisfaction of any successful claim against the RoL; and

(B)       undertakes that it shall not transfer any of the RoL's assets to the central bank of Lithuania (Lietuvos bankas) for the sole purpose of avoiding such assets being available for the satisfaction of any Claim against it.

29.1     Performance of Obligations

Subject to Clause 29.2 (Notification and Mitigation), if an Affected Party is, or could reasonably be expected to be, materially hindered, prevented or delayed from performing any of its obligations under this Concession Agreement (other than an obligation to pay any sum due) by reason of a Force Majeure Event or the consequences of that Force Majeure Event, such obligations shall be suspended (to the extent affected) for a period equal to the duration of the Force Majeure Event and its consequences.

29.2     Notification and Mitigation

29.2.1           The Affected Party shall, promptly on becoming aware of a Force Majeure Event, notify the other Parties of:

(A)      the nature of the Force Majeure Event relied on;

(B)       the estimated effect of the Force Majeure Event on the Affected Party's ability to perform its obligations under this Concession Agreement (including any effect on the Affected Party's ability to achieve any key dates or milestones under this Concession Agreement);

(C)       any action proposed to mitigate its effect; and

(D)      the period for which it is estimated the Force Majeure Event and its consequences will continue.

29.2.2           As soon as reasonably practicable following notification pursuant to Clause 29.2.1, the Parties shall consult with each other and use all reasonable endeavours to agree whether any extension(s) of time in relation to any key dates or milestones under this Concession Agreement are required (having regard to the nature of the Force Majeure Event and its consequences and their effect on performance of the relevant obligations) and, if so, what the extension(s) will be, and appropriate arrangements to mitigate the effects of the Force Majeure Event and its consequences and facilitate the resumption of any affected obligations. If the Parties cannot agree on any of the foregoing matters, the issue can be referred by any Party to the Dispute Resolution Procedure for determination.

29.2.3           The Affected Party shall:

(A)      use all reasonable endeavours to minimise the effects of the Force Majeure Event on the performance of its obligations under this Concession Agreement;

(B)       provide to the non‑Affected Party written reports as often as reasonably required by the non‑Affected Party containing information as to the circumstances of the Affected Party's progress in minimising the effects of the Force Majeure Event and indicating when it is estimated that performance of any affected obligations will resume;

(C)       so far as is reasonably practicable, provide any information relating to the Force Majeure Event and its effects as any other Party may reasonably request; and

(D)      (without prejudice to any applicable law and/or Regulatory Requirement) make any alternative arrangements for resuming the performance of its obligations as may be practicable without incurring material additional expense.

29.2.4           Where the Affected Party is the PCO, the PCO shall at all times during which a Force Majeure Event is subsisting take all steps reasonably necessary in accordance with Good Industry Practice to overcome or minimise the consequences of the Force Majeure Event.

29.2.5           If the RoL or the Strategic Investor is the Affected Party, it shall at all times during which a Force Majeure Event is subsisting take all steps reasonably necessary to overcome or minimise the consequences of the Force Majeure Event.

29.2.6           As soon as reasonably practicable after the cessation of the consequences of a Force Majeure Event, the Affected Party shall notify the other Parties that the Force Majeure Event has ended and (without prejudice to any applicable law, including any Regulatory Requirements) shall resume the full performance of its obligations under this Concession Agreement as soon as is reasonably practicable (subject to any agreement or, if necessary, further agreement pursuant to Clause 29.2.7, between the Parties as to the extension(s) of time, having regard to the nature of the Force Majeure Event and its effect on performance of the relevant obligations).

29.2.7           If any extension of time has been agreed or determined pursuant to Clause 29.2.2 and, following the cessation of the consequences of the Force Majeure Event, any of the Parties consider that the duration of the extension of time should be revisited and extended further, the Parties shall consult each other and use all reasonable endeavours to agree what the extension(s) of time in relation to any key dates or milestones should have been and, if the Parties cannot agree on what any extension(s) of time should have been, the issue can be referred by any Party to the Dispute Resolution Procedure for determination.

29.2.8           For the avoidance of doubt, save to the extent stipulated in this Clause 29 (Force Majeure), no Party shall be released from any of its obligations under this Concession Agreement as a result of the occurrence of a Force Majeure Event (subject to any agreement between the Parties as to the extension(s) of time, having regard to the nature of the Force Majeure Event and its effect on performance of the relevant obligations).

30.1     The RoL may not assign (whether absolutely or by way of security and whether in whole or in part), transfer, pledge (įkeitimas), mortgage, charge or otherwise dispose in any manner whatsoever of the benefit of, or rights under, this Concession Agreement (each of the above a "dealing") without the prior written consent of each of the Strategic Investor and the PCO and any purported dealing in contravention of this Clause 30 (Assignment) shall be ineffective.

30.2     Subject to Clause 30.5, the PCO may not assign (whether absolutely or by way of security and whether in whole or in part), transfer, pledge (įkeitimas), mortgage, charge or otherwise dispose in any manner whatsoever of the benefit of, or rights under, this Concession Agreement (each of the above a "dealing") without the prior written consent of the RoL and any purported dealing in contravention of this Clause 30 (Assignment) shall be ineffective.

30.3     Subject to Clause 30.5, the Strategic Investor may not assign (whether absolutely or by way of security and whether in whole or in part), transfer, pledge (įkeitimas), mortgage, charge or otherwise dispose in any manner whatsoever of the benefit of, or rights under, this Concession Agreement (each of the above a "dealing") without the prior written consent of the RoL (subject to the compliance by the RoL with Clause 30.4), and any purported dealing in contravention of this Clause 30 (Assignment) shall be ineffective.

30.4     Prior to giving its consent under Clause 30.3, but without prejudice to Clause 30.5, the RoL shall seek the consent of the PCO to the proposed dealing by the Strategic Investor (and any consent purported to be given by the RoL under Clause 30.3 shall be ineffective if the consent of the PCO is not so obtained).

30.5     The RoL hereby consents to any assignment (by way of security) or the grant of other security interests to a Financier of the benefit, or rights, of the Strategic Investor and/or the PCO under this Concession Agreement. The RoL agrees that, if so requested by the Strategic Investor and/or the PCO (each acting reasonably), it will enter into discussions in relation to direct agreements with applicable Financiers of, or direct or indirect equity investors in, the Strategic Investor and/or the PCO.

30.6     The terms of this Concession Agreement shall be binding on any permitted successors and assigns and shall inure to the benefit of and be enforceable by the other Parties and their respective permitted successors and assigns.

31.1     Restriction

The PCO undertakes to the RoL not to register a transfer of Shares by a Shareholder unless the intended transferee either:

31.1.1         has been approved by the Strategic Companies Commission in relation to the National Security Criteria if such approval is required by applicable Law; or

31.1.2         is the RoL (or a RoL Nominee).

31.2     Rights granted to the RoL in relation to Share Transfer and Prohibited Change of Control under the Shareholders' Agreement

31.2.1         The Parties acknowledge the option granted in the Shareholders' Agreement to the RoL (as a third party) to acquire the Shareholder's Interests of a Shareholder in the event that a Prohibited Change of Control affects such a Shareholder.

31.2.2         The Parties further acknowledge that, pursuant to the Shareholders' Agreement and if required by applicable Law from time to time, a Shareholder intending to transfer any of its Shares (a "Transferring Shareholder") shall be required to promptly notify:

(A)      the PCO and provide it with all relevant information of the intended transfer for the PCO to notify the Strategic Companies Commission by means of a SCC Transfer Notice; and

(B)       the RoL of the intended transfer by means of a related Transfer Notice, which shall include the Transfer Price.

31.3     Review and determination of proposed transfer against National Security Criteria

Upon receipt of an SCC Transfer Notice by the Strategic Companies Commission, delivered pursuant to and satisfying the information requirements of the Shareholders' Agreement and applicable Law, the RoL shall use its reasonable endeavours to procure that the Strategic Companies Commission:

31.3.1         considers without delay whether the National Security Criteria are satisfied in relation to the transferee identified in the SCC Transfer Notice; and

31.3.2         notifies its decision to the Transferring Shareholder as soon as reasonably practicable and in any event not later than within two (2) Months of receipt of the SCC Transfer Notice (or such shorter period as required by Law).

31.4     Strategic Investor transfer of ownership restrictions

31.4.1         The Strategic Investor shall procure that:

(A)      it remains an Associated Company of Hitachi, Ltd.;

(B)       no person owns (disregarding any security interest granted by any person) directly or indirectly the shares of the Strategic Investor in issue from time to time unless such person is one or more of:

(1)       Hitachi, Ltd. or an Associated Company of Hitachi, Ltd.;

(2)       a Japanese Company;

(3)       an American Company;

(4)       an EPC Sub-Contractor; or

(5)       a person to whom the RoL has consented in writing in advance,

provided that in the case of (3) and (4) above, the relevant person is not, at the date on which it first owns (disregarding any security interest granted by any person) directly or indirectly any shares of the Strategic Investor, a member of a Restricted Group,

where for the purposes of this Clause 31.4 (Strategic Investor transfer of ownership restrictions):

"Japanese Company"

means a company, body corporate or other legal person of any kind formed under the laws of Japan and at least one of its headquarters, principal place of business, or place of central management and control is situated in Japan, together with any wholly-owned direct or indirect subsidiaries thereof;

"American Company"

means a company or body corporate or other legal person of any kind formed under the laws of any of the States of the United States of America or the District of Columbia and at least one of its headquarters, principal place of business, or place of central management and control is situated in the United States, together with any wholly-owned direct or indirect subsidiaries thereof;

"EPC Sub-Contractor"

means any person who is or is anticipated to be (i) a party to a contract with the EPC Contractor in connection with the Project and provides, pursuant to such contract, material work, goods or services to the EPC Contractor in connection with the Project; (ii) an Associated Company of a person covered by (i) above; or (iii) a direct or indirect supplier of material work, goods or services to a person covered by either (i) or (ii) above (material work, goods or services being that which has, or is anticipated to have, a value in excess of €50,000,000);

"Restricted Group"

means an Ultimate Holding Company and each of its Associated Companies the principal business activity of which (taken together) is generating, supplying, transmitting or distributing electricity, regardless in each case of the geographical location in which any such activities are carried out; and

"Ultimate Holding Company"

means a body corporate which does not have a holding company (where holding company has the meaning given to it in section 1159 of the Companies Act 2006).

31.4.2         The Strategic Investor undertakes not to register any transfer of Strategic Investor Shares by any Strategic Investor Shareholder if it is aware, after due enquiry, that such transfer would constitute a breach by it of Clause 31.4.1. The Strategic Investor shall, within twenty (20) Business Days of receiving a written request from the RoL, provide the RoL with a certified copy of the register of members (akcininkų asmeninių vertybinių popierių sąskaitos) of the Strategic Investor.

32.1     National Security Criteria Put Option

32.1.1         If the Strategic Companies Commission determines that a proposed transferee identified to it in an SCC Transfer Notice does not satisfy the National Security Criteria (and a refusal by the Strategic Companies Commission to determine or a failure by the Strategic Companies Commission to make a determination within two (2) months of receipt of the SCC Transfer Notice shall be considered to be a determination that a proposed transferee does not satisfy the National Security Criteria), but in each case either:

(A)      the proposed transferee is a Shareholder;

(B)       the Contractual National Security Criteria are satisfied; or

(C)       a determination is made under the Dispute Resolution Procedure that the Contractual National Security Criteria are satisfied,

then subject to each Shareholder's pre-emption right in the Shareholders' Agreement, the RoL shall, within two (2) Months of (i) the determination of the Strategic Companies Commission in the case of (A) or (B), and (ii) the determination under the Dispute Resolution Procedure in the case of (C), offer to purchase from the Transferring Shareholder on the same terms as those specified in the related Transfer Notice (including the Transfer Price), all the Transferring Interest in respect of which any pre-emption rights of any Shareholders have not been exercised in accordance with the Shareholders' Agreement (the "RoL NSC Offer"). Where the RoL fails to make a RoL NSC Offer to a Transferring Shareholder in respect of such whole or partial Transferring Interest within two (2) Months of the relevant determination, the RoL shall be deemed to have made a RoL NSC Offer to such Shareholder immediately upon the expiry of that two (2) Month period.

32.1.2         The remaining provisions of this Clause 32.1 (National Security Criteria Put Option) are subject to the Transferring Shareholder providing notice to the RoL that it either accepts or rejects the RoL NSC Offer (a "Transfer Decision Notice") within twenty (20) Business Days of the date of the RoL NSC Offer ("Transfer Decision Period").

32.1.3         If the Transferring Shareholder has provided the RoL with a Transfer Decision Notice during the Transfer Decision Period accepting the RoL NSC Offer, the RoL shall, within ten (10) Business Days of the service of the Transfer Decision Notice pay the Transfer Price to the Transferring Shareholder subject to:

(A)      the Transferring Shareholder having completed the transfer of its Transferring Interest to the RoL (or the RoL Nominee) in accordance with the Shareholders' Agreement; or

(B)       where the Transferring Shareholder's ability to transfer its Shareholder's Interest to the RoL (or the RoL Nominee) cannot be completed in accordance with the Shareholders' Agreement owing to an Encumbrance (save an Encumbrance voluntarily entered into) or a regulatory impediment, such Transferring Shareholder has delivered to the RoL a duly executed deed of the Transferring Shareholder declaring and settling its Shareholder's Interest on trust for RoL (or the RoL Nominee) until such time as a transfer of its Shareholder's Interest to the RoL (or the RoL Nominee) can be completed.

32.1.4         If the Transferring Shareholder does not give a Transfer Decision Notice during the Transfer Decision Period, or the Transferring Shareholder gives a Transfer Decision Notice during the Transfer Decision Period rejecting the RoL NSC Offer, the RoL NSC Offer shall lapse and the RoL shall be under no obligation to purchase or offer to purchase such Transferring Interest from the Transferring Shareholder.

32.1.5         The PCO shall take such action within its power as may be required to give effect to the provisions of this Clause 32 (Shareholder Put Option).

32.1.6         Without prejudice to any other rights or remedies, either pursuant to this Concession Agreement or otherwise, including in respect of fraud, in the event that within six (6) Months from the date of a transfer of a Transferring Interest to the RoL pursuant to this Clause 32 (Shareholder Put Option) it transpires that any of the Contractual National Security Criteria have not been satisfied, the Parties agree that the relevant Transferring Shareholder, at the option of the RoL, shall be required by the Shareholders' Agreement to re-acquire the Transferring Interest at the Transfer Price plus interest calculated in accordance with Clause 39 (Interest to Run on Default) from the date that the original Transfer Price was paid to the Transferring Shareholder in accordance with this clause.

33.1     Notices in Writing

Unless permitted to be sent, and sent, by email under Clause 33.2 (Notices by Email), any notice under and in connection with this Concession Agreement:

33.1.1         shall be in writing and shall be in the English language;

33.1.2         shall be left at the address of the addressee or sent by pre-paid recorded delivery to the address of the addressee or sent by facsimile to the facsimile number of the addressee in each case which is specified in this Clause 33.1.2 in relation to the Party to whom the notice is addressed, and marked for the attention of the person so specified and/or marked for the attention of such other person as the relevant Party may from time to time specify by notice given in accordance with Clause 33.3 (Change in Notice Details). For the purposes of this Clause 33.1.2, the relevant details of each Party at the Concession Date are:

RoL

Address:

Facsimile:

Attention:

Strategic Investor

Address:

Facsimile:

Attention:

PCO

Address:

Facsimile:

Attention:

33.1.3         shall, in the absence of evidence of earlier receipt, take effect from the time that each notice is deemed to be received which, subject to Clause 33.1.4, shall be deemed to be:

(A)      in the case of a notice left at the address of the addressee, upon delivery at that address;

(B)       in the case of a posted letter, on the fifth (5th) Calendar Day after posting if posted within the European Union or on the fourteenth (14th) Calendar Day after posting if posted from/to outside the European Union; and

(C)       in the case of a facsimile, on production of a transmission report from the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient provided that a confirmatory copy of such facsimile has been sent by post in accordance with this Clause 33.1 within twenty-four (24) hours of such transmission; and

33.1.4         which are received or deemed to be received under Clause 33.1.3 on a Calendar Day which is not a Business Day, or after 5.00 pm on any Business Day, shall be deemed to be received at 9.00 am on the following Business Day. References to time in this Clause 33.1.4 are to local time in the country of the addressee.

33.2     Notices by Email

33.2.1         Any notification or provision of information pursuant to Clauses 12.1 and 12.2 (Regulatory Interface) shall be permitted (but not required) to be sent by email.

33.2.2         If a notice, as permitted by Clause 33.2.1, is sent by email it shall be in the English language and shall be sent from and to the following representatives of the Parties only at the email address which is specified in this Clause 33.2.2. For the purposes of this Clause 33.2.2, the relevant details of each Party as at the Concession Date are:

RoL

Name/Position/Department:

Email address:

Strategic Investor:

Name/Position/Department:

Email address:

PCO:

Name/Position/Department:

Email address:

33.2.3         Any notice given by email under this Clause 33.2 (Notices by Email) shall, subject to Clause 33.2.4, be deemed to be received when the email is first stored in the recipient's email box. The place of receipt of the email shall be deemed to be the postal address nominated by the recipient Party in Clause 33.1.2.

33.2.4         Any notice given by email under this Clause 33.2 (Notices by Email) which is deemed to be received in accordance with Clause 33.2.3 on a Calendar Day which is not a Business Day, or after 5 p.m. on any Business Day, shall be deemed to be received at 9.00am on the following Business Day. References to time in this Clause 33.2.4 are to local time in the country of the place of receipt.

33.3     Change in Notice Details

Each Party undertakes to notify the other Parties by notice served in accordance with Clause 33.1 (Notices in Writing) if the addressee, address, facsimile number or email address (as applicable) specified in Clauses 33.1.2 and/or 33.2.2 is no longer appropriate and to provide new replacement details for the service of notices. The new details provided under this Clause 33.3 shall, in respect of each of the other Parties individually, be deemed to replace the details listed at Clauses 33.1.2 and/or 33.2.2 (as applicable) from the date of receipt of the notice by that other Party.

33.4     Communication with the RoL

Any communication or document to be made or delivered to the RoL in accordance with this Concession Agreement shall be sent to the MoE which, subject and without prejudice to the foregoing provisions of this Clause 33 (Notices), shall be deemed to have received and accepted such communication or document on behalf of the RoL.