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

34.1     Without prejudice to any terms of the exclusivity arrangement referred to in Recital (C) which are expressed to remain in force following termination of that arrangement, each of the Parties to this Concession Agreement confirms that this Concession Agreement and the applicable terms of the Shareholders' Agreement represents the entire understanding between the three of them, and constitutes the whole agreement between the three of them, in relation to the subject matter of the Concession and supersedes any previous agreement between the Parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by custom, usage or course of dealing.

34.2     Each Party confirms that:

34.2.1         in entering into this Concession Agreement it has not relied on any representation, warranty, assurance, covenant, indemnity, undertaking or commitment which is not expressly set out in this Concession Agreement; and

34.2.2         in any event, without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement or any rights and remedies under any Investment Protection Treaty, the only rights or remedies in relation to any representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or action taken in connection with the Concession are pursuant to this Concession Agreement, and for the avoidance of doubt and without limitation, no Party has any other right or remedy (whether by way of a claim for contribution or otherwise) in tort (including negligence) or for misrepresentation (whether negligent or otherwise, and whether made prior to, and/or in, this Concession Agreement).

35.1     The Parties may vary this Concession Agreement at any time provided that the variation is set out in writing and is signed by or on behalf of each of the Parties to this Concession Agreement. The expression "variation" includes any variation, supplement, deletion or replacement, however effected.

35.2     Except as otherwise expressly provided in this Concession Agreement, the rights and remedies of the Parties will not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other Party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release will not prejudice or affect any other rights or remedies of the Parties. No single or partial exercise of any right or remedy will prevent any further or other exercise thereof or the exercise of any other right or remedy.

35.3     For the avoidance of doubt, on and following a termination of the rights and obligations of the Strategic Investor in accordance with Clauses 22.2 (Termination of the Strategic Investor's rights and obligations) or 23.3 (Termination in respect of the Strategic Investor due to Strategic Investor exit from Shareholding), the agreement of the Strategic Investor is required for any variation of any of the provisions referred to in Clause 27.2 (Strategic Investor's rights and obligations cease).

This Concession Agreement may be executed in any number of counterparts and by the Parties to it on separate counterparts, each of which when so executed and delivered will be an original, but all the counterparts will together constitute one and the same instrument.

If any provision or part of this Concession Agreement is void or unenforceable due to any applicable law it will be deemed to be deleted and the remaining provisions of this Concession Agreement will continue in full force and effect. If any invalid, unenforceable or illegal provision of this Concession Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary agreed between the Parties to make it legal, valid and enforceable.

Without prejudice to Clause 24 (Damages for Termination) each Party shall meet its own costs and expenses, including fees and expenses of its legal advisers, incurred in the preparation of this Concession Agreement.

If any Party fails to pay any amount due and payable by it under this Concession Agreement or under any judgment or award in connection with this Concession Agreement, that Party shall, in addition to such amount, be liable to pay to the Party or Parties to whom the same was due, interest (which shall accrue from Calendar Day to Calendar Day) on such overdue amount from the due date until the date of actual payment, after as well as before judgment or award, at EURIBOR plus four and a half per cent (4.5%) per annum.

40.1     With the exception of the rights of:

40.1.1         any Third Party Nuclear Indemnified Party to enforce the terms set out in Clauses 15.1 and 15.2 (Nuclear);

40.1.2         any member of the Hitachi, Ltd. Group, GE-Hitachi Nuclear Energy Americas LLC and Global Nuclear Fuel-Americas, LLC to enforce the terms set out in Clause 13.12 (Third Party Loss);

40.1.3         any Third Party Shareholder (as an Exiting Shareholder) to enforce the terms set out in:

(A)      Clause 16.5.1 (Breach of Warranty);

(B)       Clauses 20.2.2, 20.2.3 and 20.2.4 (Termination for a RoL Event); and

(C)       Clause 26 (RoL Event Mandatory Transfer of Shares);

40.1.4         Global Nuclear Fuel – Americas, LLC and any Associated Company of the Strategic Investor which is a party to an Ancillary Contract to enforce the terms set out in Clause 16.5.3 (Breach of Warranty); and

40.1.5         any Third Party Shareholder (as a Transferring Shareholder) to enforce the terms set out in Clause 32 (Shareholder Put Option),

and subject to Clauses 40.2 and 40.4 below, no term of this Concession Agreement is enforceable under the Contract (Rights of Third Parties) Act 1999 by a person who is not a Party.

40.2     Save where any proposed amendment would affect the rights of the Shareholders (as Exiting Shareholders or Transferring Shareholders) in Clause 26 (RoL Event Mandatory Transfer of Shares) or Clause 32 (Shareholder Put Option), the consent of any Third Party shall not be required for any amendment to, or rescission of, this Concession Agreement.

40.3     For the avoidance of doubt, and notwithstanding any termination of the Strategic Investor's rights and obligations hereunder, where this Concession Agreement provides a right for a Shareholder, the Strategic Investor shall be entitled to enforce such right as a Party to this Concession Agreement and not as a Third Party under the Contract (Rights of Third Parties) Act 1999.

40.4     The rights of the Third Parties referred to in Clause 40.1 may not be assigned absolutely without the prior written consent of all the Parties, other than by way of security, and for the avoidance of doubt, such rights may also be pledged (ikeistas), mortgaged, charged or otherwise made the subject of a security interest without consent.

It is not the intention of the Parties to create, nor shall this Concession Agreement or any document referred to in it or any arrangement contemplated by it be deemed or construed to create, a partnership between any of the Parties. The execution, completion or implementation of this Concession Agreement shall not, and shall not be deemed or construed to, confer on any of the Parties the power to act as agent for any other Party, and no Party shall have the authority to act in the name or on behalf of or otherwise to bind any other Party in any way, and nor shall any Party have the power to pledge the credit of any other Party.

42.1     The Parties acknowledge and agree that the PCO and the Shareholders are participating in the Project on the assumption that, subject to applicable Law, each Shareholder shall be entitled to purchase from the PCO, and the PCO shall be entitled to sell to each Shareholder, electricity generated by the NNPP for a price which reflects the costs incurred by the PCO related to the electricity generation and without any profit margin in fact or implied for the purposes of taxation pro-rata to the relevant Shareholder's shareholding in the PCO (the "Offtake Right").

42.2     If, after the Concession Date, a Competent Authority:

42.2.1         determines that the assumption in Clause 42.1 in respect of the Offtake Right is invalid; or

42.2.2         otherwise makes a determination which results in the Offtake Right no longer being available to or capable of being implemented by the PCO and the Shareholders,

the RoL shall if requested by the PCO in writing, provide such assistance to the PCO as is reasonable in the circumstances (with the RoL taking into account the prevailing circumstances at the time including the PCO's position on the likelihood and timing of the Shareholders taking a FID if such assistance were to be given) to put in place a mutually agreeable alternative structure for the Project which will, to the extent possible and permissible by Law, achieve materially the same effect as the Offtake Right for the benefit of the PCO and the Shareholders.

43.1     This Concession Agreement has been prepared and executed in the English and Lithuanian languages. In the event of any difference in meaning between the two (2) versions, the English language version will prevail.

43.2     All communications and deliverables provided for, required by, or made in connection with this Concession Agreement will be in the English language.

This Concession Agreement (including Clause 45 (Dispute Resolution Procedure and Arbitration)) and any non-contractual obligations arising out of, or in connection with it, shall be governed by English law.

45.1     Any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Concession Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity (a "Dispute"), shall be resolved in accordance with the procedure in this Clause 45 (Dispute Resolution Procedure and Arbitration).

45.2     The party raising any Dispute shall first serve written notification of the Dispute to the other party in accordance with Clause 45.6 (a "Notice of Dispute"). The Notice of Dispute shall briefly describe the nature and circumstances of the Dispute.

45.3     The parties shall take reasonable measures to resolve the Dispute amicably. If the relevant parties have not reached an amicable agreement after one (1) Month of the date of service of the Notice of Dispute, unless the parties to the Dispute mutually agree to an extension the parties agree and consent that such Dispute shall be referred to and finally resolved by arbitration in accordance with Clause 45.4 (ICSID Arbitration) and only if the jurisdiction of International Centre for Settlement of Investment Disputes (the "Centre") is not available, then the Dispute shall be referred to arbitration in accordance with Clause 45.5 (LCIA Arbitration).

45.4     ICSID Arbitration

45.4.1         The Parties hereby consent to submit to the Centre any Dispute for settlement by arbitration pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States, done at Washington, 18 March 1965 (the "ICSID Convention").

45.4.2         It is further hereby agreed that:

(A)      this Concession Agreement is an "investment" for the purposes of Article 25 of the ICSID Convention;

(B)       any Dispute shall be deemed to be a "legal dispute arising directly out of an investment", for the purposes of Article 25(1) of the ICSID Convention; and

(C)       the PCO and the Strategic Investor are a "national of another Contracting State" for purposes of Article 25(2)(b) of the ICSID Convention.

45.4.3         The consent given in this Clause 45 (Dispute Resolution Procedure and Arbitration) shall be considered to satisfy the requirement for:

(A)      "consent in writing" of the parties to a dispute for purposes of Article 25 of the ICSID Convention; and

(B)       an "agreement in writing" for the purposes of Article II of the New York Convention.

45.4.4         In the event of arbitration under the ICSID Convention, all hearings shall be held in London, England unless the disputing parties agree otherwise.

45.5     LCIA Arbitration

45.5.1         If the jurisdiction of the Centre is not available for the determination of a Dispute, any Dispute shall be referred to and finally resolved by arbitration under the LCIA Arbitration Rules (for the purpose of this Clause 45.5 (LCIA Arbitration), the "Rules").

45.5.2         The Rules are incorporated by reference into this Clause 45.5 (LCIA Arbitration) and capitalised terms used in this Clause 45.5 (LCIA Arbitration) which are not otherwise defined in this Concession Agreement have the meaning given to them in the Rules.

45.5.3         The seat or legal place of arbitration shall be London, England.

45.5.4         The number of arbitrators shall be three. Each party shall nominate one arbitrator and the two arbitrators nominated by the parties shall (in consultation with the party which nominated him or her) within twenty (20) Business Days of the appointment of the second arbitrator agree upon a third arbitrator who shall act as chairman of the tribunal. If no agreement is reached within twenty (20) Business Days of the appointment of the second arbitrator, the LCIA Court shall nominate and appoint a third arbitrator to act as chairman of the tribunal.

45.5.5         If there are multiple claimants and/or multiple respondents, all claimants and/or all respondents shall attempt to agree upon their respective appointment(s). If there are multiple claimants and they fail to make a joint appointment of an arbitrator in their request for arbitration, an arbitrator shall be appointed on their behalf by the LCIA Court in accordance with the Rules. If there are multiple respondents and they fail to nominate an arbitrator within twenty (20) Business Days from the date of service of the request for arbitration on them, an arbitrator shall be appointed on their behalf by the LCIA Court in accordance with the Rules. In such circumstances, any existing nomination or confirmation of the arbitrator chosen by the party or parties on the other side of the proposed arbitration shall be unaffected, and the remaining arbitrator shall be appointed in accordance with the Rules. The two arbitrators nominated by the parties (or by the LCIA Court) shall within twenty (20) Business Days of the appointment of the second arbitrator agree upon a third arbitrator who shall act as chairman of the tribunal. If no agreement is reached within twenty (20) Business Days of the appointment of the second arbitrator, the LCIA Court shall nominate and appoint a third arbitrator to act as chairman of the tribunal.

45.5.6         Each Party expressly agrees and consents to this procedure for nominating and appointing the arbitral tribunal; and to the extent it is not permitted to choose its own arbitrator pursuant to this Clause, irrevocably and unconditionally waives any right to choose its own arbitrator.

45.5.7         The jurisdiction of the English courts under section 45 and section 69 of the Arbitration Act 1996 is excluded.

45.5.8         If arbitral proceedings have already been commenced under Clause 45.5 (LCIA Arbitration) or any Related Agreement under a corresponding LCIA provision (a "Pre-Existing Arbitration"), and a Party or a party to a Related Agreement contends that a dispute has arisen relating to issues which are substantially related to and/or involve the same parties as issues to be determined in a Pre-Existing Arbitration (a "Related Dispute"), then that party may seek to refer the relevant dispute to the arbitral tribunal in the Pre-Existing Arbitration. The Parties agree that the arbitral tribunal in the Pre-Existing Arbitration shall have the discretion, taking into account the interests of justice and efficiency, the stage of the proceedings and all other relevant circumstances, to determine the Related Dispute in the Pre-Existing Arbitration upon such terms or conditions as the arbitral tribunal thinks fit.

45.5.9         If more than one arbitration is commenced under Clause 45.5 (LCIA Arbitration) and any Related Agreement and any Party contends that two or more arbitrations are substantially related and/or involve the same parties and that the issues should be heard in one proceeding, the arbitral tribunal appointed in the first-filed of such proceedings shall have the power to determine, taking into account the interests of justice and efficiency, the stage of the proceedings and all other relevant circumstances, whether the whole or part of the matters at issue should be consolidated before that arbitral tribunal upon such terms or conditions as the arbitral tribunal thinks fit. In that case, the arbitral tribunal appointed in the second arbitration, or in a subsequent arbitration, shall have the power to suspend its proceedings.

45.5.10       Subject to Clauses 45.3 and 45.4 (ICSID Arbitration), if the jurisdiction of the Centre is not available and a Dispute is referred to arbitration under Clause 45.5 (LCIA Arbitration), the Dispute may be disposed of in the same arbitration proceedings as any other dispute arising under another Related Agreement, even in the presence of parties other than the Parties to this Agreement.

45.5.11       Any respondent named in a request for arbitration may join any other party to any arbitral proceedings under this Agreement, provided that:

(A)      such joinder is based upon a dispute substantially related to the Dispute referred to arbitration under Clause 45.5 (LCIA Arbitration) or a Related Dispute in the relevant request for arbitration; and

(B)       such joinder is made by written notice to the LCIA Court and to all other Parties within either twenty (20) Business Days from the receipt by such respondent of the relevant request for arbitration or such longer time as may be determined by the LCIA Court or the arbitrators.

45.5.12       The arbitral tribunal in the relevant arbitration shall have the power to determine whether such joinder is appropriate taking into account the interests of justice and efficiency and all other relevant circumstances.

45.5.13       Each of the Parties hereby consents to be joined to arbitration proceedings in relation to any Dispute referred to arbitration under Clause 45.5 (LCIA Arbitration) or any Related Dispute at the request of a party to that Dispute following any party's request for joinder of parties or consolidation of disputes or arbitral proceedings.

45.5.14       Any joined party may make a counterclaim against any party, provided that:

(A)      such counterclaim is based upon a Dispute or a Related Dispute substantially related to the dispute in issue, in the relevant request for arbitration; and

(B)       such counterclaim is made by written notice to the LCIA Court and to all other parties within either twenty (20) Business Days from the receipt by such party of the relevant notice of arbitration or such longer time as may be determined by the LCIA Court or the arbitrators.

45.5.15       Any joined party shall be bound by any award rendered by the arbitral tribunal even if such party chooses not to participate in the arbitral proceedings.

45.5.16       The Parties agree that in the event of any joinder or consolidation of proceedings, at the application of any party to the proceedings, the Parties may ask the LCIA Court to fix separate advances on costs in respect of each claim, counterclaim or cross-claim in the proceedings, and the Parties hereby give their consent to any such application.

45.6     Notices

45.6.1         The language used in the arbitral proceedings referred to in this Clause 45 (Dispute Resolution Procedure and Arbitration) shall be English. All documents submitted in connection with the proceedings shall be in the English language, or, if in another language, accompanied by an English translation.

45.6.2         Service of a Notice of Dispute made pursuant to this Clause 45 (Dispute Resolution Procedure and Arbitration) shall be by registered post at the address given for the sending of notices under this Concession Agreement at Clause 33.1 (Notices).

45.7     Service of Process

45.7.1         The RoL irrevocably appoints the Embassy of the Republic of Lithuania to the United Kingdom of Great Britain and Northern Ireland to the court of St. James's for the time being as its agent under this Concession Agreement for service of process in any proceedings before the English courts in support of arbitration, including proceedings to enforce, recognise or execute any arbitral award rendered by an arbitral tribunal. If any person appointed as process agent is unable under this Clause 45.7 (Service of Process) for any reason to so act, the RoL must immediately appoint another agent. Failing this, the claimant in those proceedings (or claimants jointly) may appoint another process agent for this purpose.

45.7.2         The PCO irrevocably appoints [•] as its agent under this Concession Agreement for service of process in any proceedings before the English courts in support of arbitration, including proceedings to enforce, recognise or execute any arbitral award rendered by a tribunal. If any person appointed as process agent is unable under this Clause 45.7 (Service of Process) for any reason to so act, the PCO must immediately appoint another agent. Failing this, the claimant in those proceedings (or claimants jointly) may appoint another process agent for this purpose.

45.7.3         The Strategic Investor irrevocably appoints [•] as its agent under this Concession Agreement for service of process in any proceedings before the English courts in support of arbitration, including proceedings to enforce, recognise or execute any arbitral award rendered by a tribunal. If any person appointed as process agent is unable under this Clause 45.7 (Service of Process) for any reason to so act, the Strategic Investor must immediately appoint another agent. Failing this, the claimant in those proceedings (or claimants jointly) may appoint another process agent for this purpose.

45.7.4         The Parties agree that failure by a process agent to notify of any process will not invalidate the relevant proceedings. This Clause 45.7 (Service of Process) does not affect any other method of service allowed by law.

46.1     The RoL irrevocably and unconditionally waives any and all claims to immunity in regard to any arbitration proceedings and any court proceedings in any jurisdiction in support of arbitration, including proceedings to enforce, recognise or execute any arbitral award rendered by a tribunal constituted pursuant to this Concession Agreement, including immunity from service of process and immunity from the jurisdiction of any court, and immunity from execution in respect of any of its assets with the exception of Excepted Property (as defined below).

46.2     For the avoidance of any doubt, the RoL irrevocably and unconditionally: (i) submits to the jurisdiction of the English courts and the courts of any other jurisdiction in relation to the recognition of any judgment or order of the English courts in support of any arbitration in respect of any Dispute and in relation to the recognition of any arbitral award in respect of any Dispute, and (ii) consents for the purpose of the State Immunity Act 1978 of the United Kingdom and waives its right to claim immunity from execution in relation to the enforcement of any order or judgment in support of an arbitration in respect of any Dispute or any award made or given in connection with any Dispute and the giving of any relief in the English courts and the courts of any other jurisdiction in support of an arbitration in respect of any Dispute whether before or after a final arbitral award including:

46.2.1           relief by way of interim or final injunction or order for specific performance or recovery of any property other than Excepted Property;

46.2.2           attachment of its assets other than Excepted Property;

46.2.3           enforcement or execution against any property, revenues or other assets other than Excepted Property; and

46.2.4           any other relief available under applicable law in relation to its assets other than Excepted Property.

46.3     "Excepted Property" means:

46.3.1           premises of the mission as defined in the Vienna Convention on Diplomatic Relations signed in 1961;

46.3.2           consular premises as defined in the Vienna Convention on Consular Relations signed in 1963;

46.3.3           property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the State or its consular posts, special missions, missions to international organisations or delegations to organs of international organisations or to international conferences;

46.3.4           property of a military character or used or intended for use in the performance of military functions;

46.3.5           property of the central bank or other monetary authority of the State;

46.3.6           property forming part of the cultural heritage of the State or part of its archives and not placed or intended to be placed on sale; and

46.3.7           property forming part of an exhibition of objects of scientific, cultural or historical interest and not placed or intended to be placed on sale.

46.4     For the avoidance of any doubt, the Parties expressly acknowledge and confirm that this Concession Agreement is a commercial rather than a public or governmental act.

IN WITNESS of which the Parties have executed this Concession Agreement on the date first above mentioned

SIGNED by THE REPUBLIC OF                                                                                           )

LITHUANIA acting by THE MINISTRY OF                                                                         )

ENERGY                                                                                                                                    )

SIGNED by [•]                                                                                                                            )

[•], as [•] [attorney]                                                                                                                       )

for and on behalf of                                                                                                                      )

[SPV OF HITACHI, LTD.]                                                                                                       )

[(in exercise of a power of attorney                                                                                              )

dated [•])]                                                                                                                                     )

SIGNED by [•]                                                                                                                            )

[•], as [•] [attorney]                                                                                                                       )

for and on behalf of the PCO                                                                                                      )

[(in exercise of a power of attorney                                                                                              )

dated [•])]                                                                                                                                     )

SCHEDULE 1

DEFINITIONS

DEFINITIONS

"Abandonment"

means, in the period from the Concession Date until the date on which a positive FID or a final negative FID is taken, the occurrence of any of the following events: (A) (1) the Shareholders adopt a decision to liquidate the PCO; (2) a court ruling to initiate bankruptcy proceedings in respect of the PCO comes into effect and which proceedings are not withdrawn or dismissed within twenty (20) Business Days of such court ruling; or (3) any creditor(s) of the PCO (other than the RoL or any Associated Company of the RoL) adopt a decision to initiate out-of-court bankruptcy proceedings against the PCO and: (i) which decision is not withdrawn prior to the commencement of such out-of-court bankruptcy proceedings; or (ii) if proceedings are commenced pursuant to such decision, such proceedings are not frivolous or vexatious or withdrawn or dismissed within twenty (20) Business Days of their commencement; or (B) other than as a result of a Force Majeure Event or applicable law (save where such applicable law, including any Regulatory Requirement is in response to an act or omission of the PCO or any of its Subcontractors), neither a positive nor negative FID has been taken by the Shareholders by the earlier of 31 December 2015 or by the date thirty three (33) Months after the date of the issuance of the first LNTP or such later date as may have been agreed by the RoL; (C) the PCO commits a repudiatory breach of this Concession Agreement, other than where such event is as a direct result of a RoL Event or any failure of the RoL to meet its obligations under this Concession Agreement;

"Access Road"

has the meaning given to it in Paragraph 1 (Definitions and Interpretation) of Schedule 2 (Road Access Works);

"Access Road Construction Contracts"

means any construction contract, professional appointment or similar or related agreement entered into by or on behalf of the RoL with a Third Party in connection with the design, construction or maintenance of the Access Road Works;

"Access Road Works"

has the meaning given to it in Paragraph 1 (Definitions and Interpretation) of Schedule 2 (Access Road Works);

"Affected Party"

means the Party or Parties affected by a Force Majeure Event;

"Amended Vienna Convention"

means the Vienna Convention on Civil Liability for Nuclear Damage 1963 as amended by the Vienna Protocol;

"American Company"

has the meaning given to it in Clause 31.4.1 (Strategic Investor transfer of ownership restrictions);

"Ancillary Contract"

means the EPC Contract and, if applicable, the O&M Support Contract and/or Fuel Supply Contract and "Ancillary Contracts" shall be construed accordingly;

"Ancillary Contractor"

means any contractor providing works or services which is a party to an Ancillary Contract;

"Associated Company"

means any Formation which directly or indirectly Controls, is Controlled by, or is under common Control with the relevant entity (and, where the relevant entity is a consortium, any member of the consortium);

"Business Day"

means a Calendar Day other than a Saturday, Sunday or a legal or bank holiday in Lithuania;

"Calculation Date"

means for the purpose of the calculation of Invested Capital and the proportion of the Invested Capital Statement under Clause 26 (RoL Event Mandatory Transfer of Shares), the date on which the relevant RoL Event is agreed or determined to have occurred under Clause 20.2 (Termination for a RoL Event);

"Calendar Day"

means a period of twenty-four (24) hours ending at twelve (12) midnight;

"Centre"

has the meaning given to it in Clause 45.3 (Dispute Resolution Procedure and Arbitration);

"Challenging Entity"

has the meaning given to it in Clause 16.5.3(B) (Breach of warranty);

"Claim"

means any claim, demand, action or suit, cause of action or proceeding under or in connection with this Concession Agreement;

"COD" or "Commercial Operation Date"

means the date that the NNPP begins generating electricity for export to the national transmission grid for commercial purposes (and not solely for the purposes of testing the completed NNPP);

"Competent Authority"

means any national or supra-national agency, authority, inspectorate at the international, European Union, State or municipal level, court or tribunal of the European Union or the Republic of Lithuania or any part of it which has jurisdiction over all or any part of the PCO, the PCO Assets, the Shares and/or the Project;

"Competitor" "Concession"

has the meaning given to it in the Shareholders' Agreement; has the meaning given to it in Recital E;

"Concession Date"

means the date of this Concession Agreement being also the date on which the RoL awards the Concession to the PCO;

"Consents"

means any authorisation, consent, licence, permit, permission, order, agreement, notice or other form of approval by or with any Competent Authority which is required by Law, relating to the acquisition, ownership, occupation, construction, start-up, commissioning, testing, fuelling, operation, repair, decommissioning or maintenance of the NNPP (including the Construction and Operation Licence) and, without prejudice to the generality of the foregoing, shall include any condition precedent or other requirement of any Competent Authority which must as a matter of Law be satisfied prior to the grant, issuance, renewal, variation, extension, continuation and/or reconfirmation of any such authorisation, consent, licence, permit, permission, order, agreement, notice or other form of approval (including the Construction and Operation Licence);

"Construction and Operation Licence"

means a licence granted under the Law on Nuclear Safety on the Republic of Lithuania of 28 June 2011, No. XI-1539 to construct and operate nuclear energy object(s);

"Contract Claim"

has the meaning given to it in Clause 16.2.2 (Concurrent Claims);

"Contract Term"

has the meaning given to it in Clause 2.2 (Award of Concession and Term);

"Contractual National Security Criteria"

means the criteria set out in Schedule 4 (National Security Criteria);

"Control"

including, with its correlative meanings, "Controlled by" and "under common Control with" means:

(A) the power (whether directly or indirectly, and whether by the ownership of share capital, the possession of voting power, contract or otherwise): (i) to appoint and/or remove all or such of the members of the board of directors or other governing body of a person as are able to cast a majority of the votes capable of being cast by the members of that board or body; and/or (ii) to control the policies and affairs of that person, in both cases in all, or substantially all, matters; or

(B) the holding and/or possession of the beneficial interest in and/or the ability to exercise the voting rights applicable to shares or other securities in any person (whether directly or by means of holding such interests in one or more other persons) which confer in aggregate on the holders thereof 50 per cent or more of the total voting rights exercisable at general meetings of that person on all, or substantially all, matters.

For the avoidance of doubt, the appointment of a receiver, receiver and manager, administrative receiver, administrator, liquidator, insolvency official or similar in any jurisdiction in respect of any person or the property of any person (or the exercise by any such receiver, receiver and manager, administrative receiver, administrator, liquidator, insolvency official or similar, of any of its powers other than a power of sale in respect of relevant shares or securities) shall not be considered to alter who Controls such person;

"Convention on Supplementary Compensation"

means the Convention on Supplementary Compensation for Nuclear Damage 1997;

"Credit Payments"

has the meaning given to it in the Shareholders' Agreement;

"Decommissioning Phase"

means the period from and including the date that the decommissioning of the NNPP in accordance with applicable Law commences;

"Decommissioning and Waste Funding Principles"

means the principles set out in Schedule 6 (Decommissioning and Waste Funding Principles);

"Development Timetable"

means the overall timetable for the development of the Project as prepared by the PCO;

"Disclosing Party"

has the meaning given to it in Clause 13.2 (Confidential Information);

"Dispute"

has the meaning given to it in the Dispute Resolution Procedure in Clause 45 (Dispute Resolution Procedure and Arbitration);

"Dispute Resolution Procedure"

means the dispute resolution procedure set out in Clause 45 (Dispute Resolution Procedure and Arbitration);

"Eesti Energia"

[means Eesti Energia AS, a company incorporated under the laws of Estonia with registration number 10421629 whose registered office is at: Laki tn. 24, 12915 Tallinn, Estonia;]

"Encumbrance"

means any charge, mortgage, lien, option, equity, power of sale, hypothecation, usufruct, retentioned title, right of pre-emption, right of first refusal or other third party right in the nature of a security interest or an agreement, arrangement or obligation to create any of the foregoing;

"Energy Charter Treaty"

means the Energy Charter Treaty as opened for signature in Lisbon on 17 December 1994 and in force as of 16 April 1998;

"Energy Charter Treaty Replacement"

has the meaning given to it in Paragraph 1.3 of Schedule 8 (Fundamental Change);

"ENSREG"

means the European Nuclear Safety Regulators Group and/or any organisation which has taken over, or carries out on behalf of the ENSREG, all or part of the functions or responsibilities of the ENSREG;

"Environment"

means air (including air within buildings and air within other natural or man-made structures above or below ground), water (including territorial and coastal and inland waters, groundwater and water within any natural or man-made structure) and land (including land under water, surface land and sub-surface land) and any organisms or ecosystems supported by the air, water or land;

"Environmental Regulations"

means each applicable Law relating to the pollution or protection of the Environment, or human health and safety, or the generation, transportation, storage, treatment, disposal or presence of any Hazardous Substance;

"EPC Contract"

means any engineering, procurement and construction contract under which the EPC Contractor will provide engineering, procurement and construction services, support services and, if agreed under the terms of that contract, certain fuel services to the PCO for the purposes of the Project;

"EPC Contractor"

means any one or more Associated Companies of the Strategic Investor, which may be or include Hitachi-GE Nuclear Energy, Ltd., (the identity of which, if not Hitachi-GE Nuclear Energy, Ltd. or not guaranteed by Hitachi-GE Nuclear Energy, Ltd. or Hitachi, Ltd. (in a form accepted by the PCO) shall be subject to acceptance by the RoL) that enters into an EPC Contract with the PCO;

"EPC Contractor Default"

means where the EPC Contractor is in breach or default of the EPC Contract and such breach entitles the PCO to terminate the EPC Contract;

"EPC Sub-Contractor"

has the meaning given to it in Clause 31.4.1 (Strategic Investor transfer of ownership restrictions);

"EURATOM"

means the European Atomic Energy Community and/or any organisation which has taken over, or carries out on behalf of the EURATOM, all or part of the functions or responsibilities of the EURATOM;

"EURIBOR"

means, in relation to an overdue amount, the percentage rate equal to the six (6) Month Euro Interbank Offered Rate determined by the Banking Federation of the European Union displayed on the appropriate page of the Reuters screen at 11.00 a.m. on the date on which such amount became due;

"Excepted Property"

has the meaning given to it in Clause 46.3 (Sovereign Immunity Waiver);

"Exiting Shareholder"

has the meaning given to it in Clause 20.2.1 (Termination for a RoL Event);

"FID"

means a final investment decision in relation to the Project as provided for in the Shareholders' Agreement and "positive FID" shall be construed as a final investment decision to proceed with the Project and "negative FID" shall be construed as a final investment decision not to proceed with the Project;

"final negative FID"

has the meaning given to it in Clause 11.4.1 (Notification of taking FID);

"Financier"

means: (A) any person who provides, commits to provide, underwrites, insures and/or guarantees any direct or indirect financial accommodation (including, without limitation, loans, securities, letters of credit, performance guarantees, other documentary credits, derivatives or other forms of financial indebtedness) to or for the account of the PCO or any Shareholder(s); and

(B) any agent or trustee on behalf of any of the persons referred to in paragraph (A) above; and (C) any rating agency who may issue a public or private rating in respect of any such financial accommodation;

"First Concrete"

means the commencement of the first reactor building structural concrete pour by the EPC Contractor in accordance with the EPC Contract and as shown on the Development Timetable;

"Force Majeure Event"

means any act, event or occurrence affecting any Party's performance of its obligations under this Concession Agreement, the cause of which is not of such Party's making nor within that Party's reasonable control (and, in relation to the PCO having acted in accordance with Good Industry Practice or, in relation to the RoL having acted in a reasonable and prudent manner to avoid such act, event or occurrence), including (to the extent not of that Party's making nor within that Party's reasonable control): (A) epidemic, war, hostilities (whether or not war has been declared), blockades, terrorist acts or acts of any civil or military authority; (B) riot, insurrection, civil commotion, public disobedience, public demonstration, sabotage or acts of vandalism; (C) acts of God including fire, flood, earthquake, adverse weather, meteorological and sea conditions, landslides, lightning, volcanic eruption or explosion; (D) impact from aircraft or things falling from aircraft; (E) any strike, lock-out, trade dispute or other labour disruptions (i) not involving solely the personnel or subcontractors of that Party; and (ii) not originating with that Party's personnel or subcontractors or the personnel or subcontractors of any Associated Company of that Party; or (F) any ionising radiation, contamination by radioactivity, radioactive, chemical or biological contamination;

"Formation"

means any company, partnership, limited liability partnership, trust, fund or other entity (whether being a legal person or not);

"Fuel Supply Contract"

means any nuclear fuel supply and related services contract which may be entered into by the PCO and the Nuclear Fuel Supplier as contemplated by the Nuclear Fuel Supply Terms;

"Full Notice to Proceed" or "FNTP"

means the "FNTP" or Full Notice to Proceed issued under the EPC Contract;

"GE-Hitachi Nuclear Energy Americas LLC"

means a company registered and incorporated in [•] [under company number [•¶ whose address is at [•¶;

"Global Nuclear Fuel-Americas, LLC"

means a company registered and incorporated in [•] [under company number [•¶ whose address is at [•¶;

"Good Industry Practice"

means exercising the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected of a skilled and experienced contractor, owner or operator (as applicable) engaged in activities: (A) as applicable to the PCO (i) of a similar nature, scope, value and complexity to the Concession activities and under the same or similar circumstances, (ii) in relation to the maintenance and operation of a new nuclear power plant of a similar nature, scope, value and complexity to the completed NNPP, and (iii) in relation to clean-up and/or decommissioning activities of a nuclear site and new nuclear power plant of a similar nature, scope, value and complexity to the completed NNPP; and (B) as applicable to the RoL, activities of a similar nature, scope, value and complexity to the design, construction and maintenance of the Access Road, in each case (as applicable), where such contractor, owner or operator (as applicable) is seeking to comply with its contractual obligations, including in relation to all applicable Laws, Consents, codes of practice and standards;

"Hazardous Substance"

means any natural or artificial substance or thing (whether in solid, liquid or gaseous form) which is (alone or in combination) capable of causing harm to the Environment or harm to human health;

"Highly Sensitive Information"

means: (A) information relating to the design and construction of all or any part of a Hitachi, Ltd., Hitachi-GE Nuclear Energy, Ltd., GE-Hitachi Nuclear Energy Americas LLC or one of their Associated Company's ABWR nuclear power plants;

(B) information relating to the design or manufacturing of any nuclear fuel by Global Nuclear Fuel – Americas, LLC; and (C) pricing information to be provided by the EPC Contractor, the Nuclear Fuel Supplier and/or the O&M Support Contractor under or in connection with the EPC Contract, the Fuel Supply Contract and/or the O&M Support Contract, but not for the avoidance of doubt information in respect of the overall price relating to (i) the LNTP and FNTP phases under the EPC Contract, (ii) the Fuel Supply Contract, or (iii) the O&M Support Contract;

"Hitachi-GE Nuclear Energy, Ltd."

means a company registered and incorporated in [•] [under company number [•¶ whose address is at [•¶;

"Hitachi, Ltd."

means a company registered and incorporated in [•] [under company number [•¶ whose address is at [•¶ being the [ultimate] parent company of the Strategic Investor;

"Hitachi, Ltd. Group"

means Hitachi, Ltd. and its Associated Companies;

"IAEA"

means the International Atomic Energy Agency and/or any organisation which has taken over, or carries out on behalf of the IAEA, all or part of the functions or responsibilities of the IAEA;

"IAEA Agreement"

means the Agreement on the Privileges and Immunities of the International Atomic Energy Agency of 1967;

"IAEA Statute"

means the Statute of the International Atomic Energy Agency of 1956;

"ICSID Convention"

has the meaning given to it in Clause 45.4.1 (ICSID Arbitration);

"Indemnified Person"

has the meaning given to it in Clause 16.5.3 (Breach of warranty);

"indexation rate"

means the Production Price Index for Lithuania, published by EUROSTAT;

"Individual"

means a physical person who is a director, officer, partner, member, employee and/or consultant of a Project Participant or a Related Person;

"Intellectual Property Rights"

means any and all worldwide: (A) patent rights and inventions (whether patentable or not), including all patent applications and disclosures thereto, design rights, utility models, copyrights and neighbouring rights and related rights (including rights in software), moral rights, mask work rights, semiconductor topography rights, database rights, trade marks, trade names, business names, domain names and know-how;

(B) applications for registration and the right to apply for registration thereto; and

(C) other intellectual property, industrial property or proprietary rights of a corresponding or similar nature recognised in any country or jurisdiction worldwide,

in each case regardless of whether existing under statute, common law or equity, whether registered or unregistered, and all tangible embodiments thereof;

"Invested Capital"

means in respect of each Exiting Shareholder the aggregate on the Calculation Date of (i) the capital sums invested by that Exiting Shareholder in the PCO by way of either Subscription Payments or Principal Amounts and (ii) Credit Payments in respect of that Exiting Shareholder;

"Invested Capital Statement"

means the table in agreed form set out in Schedule 9 (Invested Capital Statement);

"Investment Date"

means the date on which the Shareholders fund the PCO pursuant to the Shareholders' Agreement in order to provide it with the funding required for the first LNTP;

"Investment Protection Treaty"

means any investment protection treaty between the RoL and one or more other countries (and includes the Energy Charter Treaty);

"Japanese Company"

has the meaning given to it in Clause 31.4.1 (Strategic Investor transfer of ownership restrictions);

"Joint Protocol"

means the Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention of 1988;

"Key Subcontractor"

means an entity who enters into any Key Subcontract with the PCO;

"Key Subcontract"

means a Subcontract which is of material importance to the performance of the Concession, whether because it is of significant value, key to the performance of the PCO's obligations under this Concession Agreement (including a Subcontract with a key technology provider, a supplier of key materials or a key development works contractor), relates to goods or services where there are limited alternative sources or otherwise (and includes any Ancillary Contract);

"Latvenergo"

[means Latvenergo AS, a company incorporated under the laws of Latvia with registration number 40003032949 whose registered office is at: Pulkveza Brieza iela 12, Riga, LV-1230, Latvia;]

"Law"

means: (A) any law passed by the Parliament of the Republic of Lithuania;

(B) any resolution passed by the Government of the Republic of Lithuania that has the force of the law; (C) any Regulatory Requirement; (D) any decision, order, resolution, regulation, rule, notice adopted at the State or municipal level within the Republic of Lithuania that has the force of the law; (E) the Lithuanian Constitution; (F) any stock exchange regulation, court practices and rulings within the Republic of Lithuania that have the force of law; and (G) any EU law, treaties or other international law acts, in each case as effective in the Republic of Lithuania;

"Law on Concessions"

means the Law on Concessions of the Republic of Lithuania of 24 June 2003, No. IX-1647 (as amended);

"liability"

has the meaning given to it in Clause 1.2.18;

"Limited Notice to Proceed" or "LNTP"

means the "LNTP" or Limited Notice to Proceed issued under the EPC Contract;

"Lithuanian Constitution"

means the Constitution of the Republic of Lithuania adopted by citizens of the Republic of Lithuania under the referendum of 25th October 1992 (as amended from time to time);

"Lithuanian Investor"

means UAB "Visagino atominė elektrinė", a company registered and incorporated in Lithuania under company number 301844044 whose address is at Žvejų g. 14, LT-09310 Vilnius, Lithuania;

"LIV IP"

means all Intellectual Property Rights in the studies and reports relating to the Project as set out in Schedule 7 (LIV IP);

"Losses"

means all losses, damages, liabilities, costs and expenses (including reasonable legal fees and expenses) and "Loss" shall be construed accordingly;

"Mandatory Transfer Price"

has the meaning given to it in Clause 26.2 (Calculation and notification of Mandatory Transfer Price);

"Margin"

has the meaning given to it in Clause 26.2.1 (Calculation and notification of Mandatory Transfer Price);

"MoE"

means the Ministry of Energy of the Republic of Lithuania;

"Month"

means a calendar month which is a period of time consisting of thirty (30) Calendar Days if the period commences in April, June, September and November, and thirty one (31) Calendar Days if it commences in any other month excepting February when it consists of twenty-eight (28) Calendar Days or twenty-nine (29) Calendar Days in a leap year and "Monthly" shall be construed accordingly;

"National Security Criteria"

means the criteria indicated in Part 10, Article 7 and Article 8 of the Law on Enterprises and Facilities of Strategic Importance to National Security and Other Enterprises of Importance to Ensuring National Security of the Republic of Lithuania of 21 July 2009, No. XI-375 and such criteria that substitute or amend the former from time to time;

"New York Convention"

means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958;

"New York Convention Replacement"

has the meaning given to it in Paragraph 1.4 of Schedule 8 (Fundamental Change);

"NNPP"

has the meaning given to it in Recital C;

"non-Affected Party"

means the Party or Parties not affected by a Force Majeure Event;

"Non-EEA State"

shall mean, from time to time, any State that has not acceded to the European Economic Area as a full member;

"Non-NATO State"

shall mean, from time to time, any State that has not acceded to the North Atlantic Treaty Organisation as a full member;

"Non-Proliferation Treaty"

means the Treaty on the Non Proliferation of Nuclear Weapons of 1968;

"Notice of Dispute"

has the meaning given to it in Clause 45.2 (Dispute Resolution Procedure and Arbitration);

"Nuclear Fuel Supplier"

means an Associated Company of the Strategic Investor (the identity of which, if not Hitachi-GE Nuclear Energy, Ltd. and not guaranteed by Hitachi-GE Nuclear Energy, Ltd. or Hitachi, Ltd. (in a form accepted by the PCO) shall be subject to acceptance by the RoL) which enters into the Fuel Supply Contract;

"Nuclear Fuel Supply Terms"

means the terms (in the form of an initialled termsheet) agreed in principle on or about the Concession Date between the PCO and the Nuclear Fuel Supplier in relation to the supply of nuclear fuel and related services to the PCO by the Nuclear Fuel Supplier;

"Nuclear Indemnified Parties"

has the meaning given to it in Clause 15.2 (Nuclear);

"Nuclear Safety Treaty"

means (a) the Convention on Early Notification of a Nuclear Accident of 1986; (b) the Convention on Nuclear Safety of 1994; (c) the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency of 1986; (d) the Convention on the Physical Protection of Nuclear Material of 1980; or (e) the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management of 1997, and "Nuclear Safety Treaties" shall mean all or any of them;

"O&M Support Contract"

means any operations and maintenance support services contract which may be entered into by the PCO and the O&M Support Contractor as contemplated by the O&M Support Terms;

"O&M Support Contractor"

means an Associated Company of the Strategic Investor (the identity of which, if not Hitachi-GE Nuclear Energy, Ltd. and not guaranteed by Hitachi-GE Nuclear Energy, Ltd. or Hitachi, Ltd. (in a form accepted by the PCO) shall be subject to acceptance by the RoL) which enters into the O&M Support Contract;

"O&M Support Terms"

means the terms (in the form of an initialled termsheet) agreed in principle on or about the Concession Date between the PCO and the O&M Support Contractor or the Strategic Investor on behalf of the O&M Support Contractor in relation to the provision of operations and maintenance support services to the PCO by the O&M Support Contractor;

"Official Gazette"

means Official Gazette of the Republic of Lithuania (Valstybės žinios), including the supplementary issue Information Notices (Informaciniai pranešimai);

"Offtake Right"

has the meaning given to it in Clause 42.1 (Further Assurances and Co-operation in relation to the Power at Cost Structure);

"PCO Assets"

means all assets owned by the PCO to the extent that the same are used or required for the performance by the PCO of the Concession and its obligations under this Concession Agreement;

"PCO Default"

has the meaning given to it in Clause 21 (PCO Default);

"PCO Default Notice"

has the meaning given to it in Clause 21.2.1 (Termination for PCO Default);

"Post-COD Report"

has the meaning given to it in Clause 11.1.1(B) (Project Management);

"Pre-COD Report"

has the meaning given to it in Clause 11.1.1(A) (Project Management);

"Pre-Existing Arbitration"

has the meaning given to it in Clause 45.5.8 (LCIA Arbitration);

"Pre-FID Fundamental Change"

has the meaning given to it in Paragraph 1 (Pre-FID Fundamental Changes) of Schedule 8 (Fundamental Change);

"Principal Amount"

shall mean in respect of a Shareholder any amount of principal drawn down by the PCO from that Shareholder under a Shareholder Loan, excluding any amount of interest paid in kind and capitalised as principal under that Shareholder Loan, less any amount of such draw down principal repaid or prepaid by the PCO to such Shareholder;

"Principles, Standards or Guidelines"

has the meaning given to it in Paragraph 2.1.4(B) of Schedule 8 (Fundamental Change);

"Prohibited Change of Control"

has the meaning given to it in the Shareholders' Agreement;

"Project"

means the design, development, manufacture, supply, construction, operation and decommissioning of the NNPP;

"Project Agreements"

means this Concession Agreement, the Ancillary Contracts and the Shareholders' Agreement, and "Project Agreement" shall be construed accordingly;

"Project Participants"

means each of: (A) Hitachi, Ltd.;

(B) the Strategic Investor, the EPC Contractor, the O&M Support Contractor and the Nuclear Fuel Supplier; (C) any sub-contractor (of any type and tier) or supplier (of any type and tier) of any of the entities referred to in paragraph (B) above; (D) any Financier; (E) the advisers or agents of any of the entities referenced in paragraph (A), (B), (C) (above) and (F) (below); and (F) the Associated Companies of each of the entities or persons referred to in paragraphs (A), (B), (C), (D) and (C) above, and once a person is or becomes a Project Participant it shall remain a Project Participant notwithstanding that it may subsequently cease to meet any or all of the criteria referred to above;

"Recipient"

has the meaning given to it in Clause 13.2 (Confidentiality);

"Recommended Measure(s)"

has the meaning given to it in Paragraph 2.1.5 of Schedule 8 (Fundamental Change);

"Regional Partner"

shall be such of Latvenergo AS and Eesti Energia AS and PGE Polska Grupa Energetyczna S.A. and any other key partners of the Republic of Lithuania from time to time which may, subject to agreement in accordance with the Shareholders' Agreement and applicable Law, participate in the Project as a Shareholder, and "Regional Partners" will be construed accordingly;

"Regulators"

means the State Nuclear Power Safety Inspectorate (Valstybinė atominės energetikos saugos inspekcija VATESI), the State Territorial Planning and Construction Inspectorate under the Ministry of Environment (Valstybinė teritorijų planavimo ir statybos inspekcija prie Aplinkos ministerijos) and Utena Region Environmental Protection Department of the Ministry of Environment of the Republic of Lithuania (Lietuvos Respublikos aplinkos ministerijos Utenos regiono aplinkos apsaugos departamentas) and others specific to the relevant Party's obligations under this Concession Agreement and as applicable in the relevant jurisdiction (including in relation to international waters) where that Party's obligations under this Concession Agreement are carried out and "Regulator" shall mean any one of them;

"Regulatory Requirement"

means any legally enforceable requirement of any Regulator in Lithuania;

"Related Agreement"

means any agreement entered into by any Party, including any such agreement with any Third Party, as may be required for the Project, but shall exclude the Access Road Construction Contracts;

"Related Dispute"

has the meaning given to it in Clause 45.5.8 (LCIA Arbitration);

"Related Persons"

means: (A) the Ultimate Holding Company of any Project Participant; (B) the Associated Companies of any entity within paragraph (A) above; and (C) Individuals, and that once an entity is or becomes a Related Person it shall remain a Related Person notwithstanding that it may subsequently cease to meet any or all of the criteria referred to above. It is acknowledged that The General Electric Company is a Related Person;

"Relevant Claim"

has the meaning given to it in Clause 16.5.3 (Breach of warranty);

"Relevant Obligations"

shall have the meaning given to it in the Shareholders' Agreement;

"Replacement Measure"

has the meaning given to it in Paragraph 3 of Schedule 8 (Fundamental Change);

"Report"

has the meaning given to it in Clause 11.1.1 (Project Management);

"Required Insurances"

means those insurances required to be taken out and held by Law;

"Restricted Group"

has the meaning given to it in Clause 31.4.1 (Strategic Investor transfer of ownership restrictions);

"Retender Process"

means any reasonable process initiated by the RoL to retender the Concession (and/or any of the unperformed works and services provided under any one or more of the Ancillary Contracts) and/or to retender the Strategic Investor's role in the Concession;

"Retendering Costs"

means those reasonable costs and expenses reasonably and properly incurred by the RoL and/or its nominee directly in connection with undertaking a Retender Process;

"RoL entity"

has the meaning given to it in Clause 13.10 (RoL entity);

"RoL Event"

means any of the events described in Clause 20.1 (Events of RoL Event);

"RoL Event Notice"

has the meaning given to it in Clause 20.2.1 (Termination for a RoL Event);

"RoL Nominee"

means any Lithuanian company nominated by the RoL which is not a Competitor and which does not have a Competitor as a direct or indirect legal or beneficial owner of any of its shares;

"RoL NSC Offer"

has the meaning given to it in Clause 32.1.1 (National Security Criteria Put Option);

"Rules"

has the meaning given to it in Clause 45.5.1 (LCIA Arbitration);

"SCC Transfer Notice"

means a notice sent to the Strategic Companies Commission pursuant to the Shareholders' Agreement and applicable Law in relation to an intended transfer by a Shareholder of all or any of its Shares;

"Shares"

means all or any of the share capital of any class in the PCO;

"Shareholder Loan"

means, in respect of a Shareholder, any loan made to the PCO by that Shareholder in accordance with the Shareholders' Agreement;

"Shareholders"

means the holders of the Shares from time to time, the initial holders being those set out in Schedule 3 (Initial Shareholders' Details and Shareholding);

"Shareholders' Agreement"

means the agreement in force from time to time to which all of the Shareholders are party in relation to (inter alia) their investment in, and the governance and funding of, the PCO which includes a term explicitly identifying such agreement as the "Shareholders' Agreement" for the purposes of this Concession Agreement;

"Shareholder's Interest"

means, in respect of a Shareholder, its Shares and Shareholder Loans;

"Site"

has the meaning given to it in Schedule 5 (Site);

"Specified Nuclear Treaty Replacement"

has the meaning given to it in Paragraph 1.2 of Schedule 8 (Fundamental Change);

"Strategic Companies Commission"

means the Commission for Assessment of Compliance to the Interests of National Security of Potential Members of Companies of Strategic or Significant Importance to National Security (Strateginę ar svarbią reikšmę nacionaliniam saugumui turinčių įmonių potencialių dalyvių atitikties nacionalinio saugumo interesams įvertinimo komisija) as indicated in Part 3, Article 7 of the Law on Enterprises and Facilities of Strategic Importance to National Security and Other Enterprises of Importance to Ensuring National Security of 21 July 2009, No. XI-375 as amended, any successors thereof and any bodies to which functions thereof are transferred in part or in full;

"Strategic Investor Default"

has the meaning given to it in Clause 22.1 (Strategic Investor Default);

"Strategic Investor Default Notice"

has the meaning given to it in Clause 22.2.3 (Termination of the Strategic Investor's rights and obligations);

"Strategic Investor Shareholder"

means the legal or beneficial owner of any Strategic Investor Shares from time to time;

"Strategic Investor Shares"

means all or any of the share capital of any class in the Strategic Investor;

"Subcontract"

means any agreement entered into by the PCO in connection with the performance of its obligations under this Concession Agreement or in relation to carrying out the Concession including any Ancillary Contract and any agreement entered into between the PCO and any Key Subcontractor;

"Subcontractor"

means any person who has entered into a Subcontract with the PCO including the EPC Contractor and any O&M Support Contractor, Nuclear Fuel Supplier and/or Key Subcontractor;

"Subscription Payments"

shall mean the payments received by the PCO from a Shareholder in subscription for Shares (whether in partial or full payment up of nominal value, and whether in respect of nominal value or Share premium) issued by the PCO to such Shareholder, less any amounts of such Share capital returned to such Shareholder by the PCO;

"Supplementary Margin"

means an amount equal to the Invested Capital as agreed or finally determined under Clause 26.3 (Disputing the Mandatory Transfer Price), multiplied by (i) the Margin, multiplied by (ii) the number of Calendar Days comprising the period from the Calculation Date to the date on which the payment of the Mandatory Transfer Price (or part thereof) is made under Clause 26.4, divided by (iii) 360, less (iv) the aggregate of any (a) interest paid in cash or cash equivalent by the PCO and received by the relevant Exiting Shareholder, in respect of any Tranche of a Shareholder Loan comprising Invested Capital, and (b) 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, in each case ((a) and (b)) during the period referred to in (ii) above;

"Tax"

means any of the following tax, levy, impost, duty, charge or withholding of a similar nature, including any penalty or interest payable in connection with any failure to pay or delay in paying any of the same;

"Tender Process"

means the process by which the MoE, on behalf of the RoL, sought to identify an investor to take an interest in a new nuclear power plant project-implementing company pursuant to the notice published in the Official Journal of the EU on 10 December 2009 (No. 2009/S 238-340935);

"Third Party"

means any person other than the Parties;

"Third Party Claimant"

means any Third Party other than: (A) any Shareholder; (B) any party to an Ancillary Contract or any subcontractor (of any types and tier) or supplier (of any type and tier) of any Ancillary Contractor under an Ancillary Contract; and (C) any Associated Company of any entity referred to in paragraphs (A) and (B) above;

"Third Party recipient"

has the meaning given to it in Clause 13.6 (Liability);

"Tranche"

means each separate payment being a Subscription Payment, Principal Amount, or Credit Payment;

"Transfer Decision Notice"

has the meaning given to it in Clause 32.1.2 (National Security Criteria Put Option);

"Transfer Decision Period"

has the meaning given to it in Clause 32.1.2 (National Security Criteria Put Option);

"Transfer Notice"

means the transfer notice issued by any Shareholder(s) under the Shareholders' Agreement;

"Transfer Price"

shall mean the cash consideration offered by a transferee to a Transferring Shareholder determined in accordance with the Shareholders' Agreement;

"Transferring Shareholder"

has the meaning given to it in Clause 31.2.2 (Rights granted to the RoL in relation to Share Transfers and Prohibited Change of Control under the Shareholders' Agreement);

"Transferring Interest"

means in respect of a Transferring Shareholder its Shares, and any rights and interests under any Shareholder Loan;

"Transnational Laws"

has the meaning given to it in Paragraph 2.1.4(B) of Schedule 8 (Fundamental Change);

"Treaty Claim"

has the meaning given to it in Clause 16.2.2 (Concurrent Claims);

"Ultimate Holding Company"

has the meaning given to it in Clause 31.4.1 (Strategic Investor transfer of ownership restrictions);

"VATESI"

means the State Nuclear Power Safety Inspectorate (Valstybinė atominės energetikos saugos inspekcija);

"Visaginas New Nuclear Power Plant"

has the meaning given to it in Recital C;

"Vienna Convention 1963"

means the Vienna Convention on Civil Liability for Nuclear Damage of 1963;

"Vienna Protocol"

means the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage of 1997;

"Voluntary Encumbrance"

means in respect of an Exiting Shareholder an Encumbrance put in place by, or resulting from the action, initiative or consent of, such Exiting Shareholder, over such Exiting Shareholder's Shareholder's Interest or any part thereof;

"Wasted Costs"

means: (A) in respect of the RoL, those reasonable costs and expenses reasonably and properly incurred by the RoL or on behalf of the RoL by the Lithuanian Investor; or

(B) in respect of the Strategic Investor, those reasonable costs and expenses reasonably and properly incurred by the Strategic Investor or on behalf of the Strategic Investor by an Associated Company of the Strategic Investor, during the period from (and including) 14 July 2011 up to (and including) the Concession Date in connection with the Tender Process, including the costs and expenses of activities, works or services performed to progress the Project and the costs and expenses incurred in negotiating this Concession Agreement and each of the Ancillary Contracts; and

"WENRA"

means the Western European Nuclear Regulators' Association and/or any organisation which has taken over, or carries out on behalf of the WENRA, all or part of the functions or responsibilities of the WENRA.

SCHEDULE 2

ACCESS ROAD WORKS

In this Schedule:

1.1       unless the context otherwise requires, the following words and phrases shall have the following meanings:

"Access Road" means the road commencing at Klaipeda seaport pier and ending at the boundary to the Construction Site, and which is intended for the transportation of equipment and materials in connection with the Project;

"Access Road Route" has the meaning specified in paragraph 2.3;

"Access Road Specification" has the meaning specified in paragraph 2.1.1;

"Access Road Works" means all works required to the Access Road so that it complies with the Access Road Specification; and

1.2       for the purposes of this Schedule, references to the RoL shall include the RoL acting through state institutions or agencies or other entities of state administration.

2.1       General

2.1.1      A copy of the functional specification for the construction, maintenance, repair and upgrade works required to the Access Road in order to facilitate the Project (the "Access Road Specification") is appended at Annex B to this Schedule.

2.1.2      The RoL intends to develop the design, to undertake the construction, and thereafter to maintain the Access Road in accordance with the Access Road Specification if a positive FID for the Project is taken by the Shareholders.

2.2       Target Date for the completion of the Access Road Works

2.2.1      Without prejudice to the remainder of this Schedule, the RoL confirms that it intends to develop the design of the Access Road on the assumption that the Access Road Works will need to be completed by 31 December 2015.

2.2.2      The RoL and the PCO will, after the Concession Date, negotiate in good faith in order to agree before FID a target date for the completion of the Access Road Works which shall apply if a positive FID for the Project is taken by the Shareholders.

2.3       Route for the Access Road

A plan which shows the proposed course of the Access Road has been appended at Annex A to this Schedule (the "Access Road Route"). The Access Road Route currently provides two options for the exit route (shown in red and blue) from Klaipeda seaport. The Parties acknowledge that one of the proposed options for the exit route will need to be selected by the later of 31 December 2012 and the date which falls sixty (60) Calendar Days after the date of the issue of the first Limited Notice to Proceed under the EPC Contract.

2.4       Liability and Other Matters

2.4.1      It is acknowledged by the Parties that the arrangements in respect of the Access Road Works are still being developed, and that the RoL and the PCO shall therefore negotiate in good faith in order to reach a separate agreement relating to the liability regime for the Access Road Works which shall apply if a positive FID for the Project is taken by the Shareholders.

2.4.2      Notwithstanding any other provision of this Concession Agreement, it is acknowledged and agreed that no Party shall have any liability in connection with the Access Road Works other than as may subsequently be agreed in writing pursuant to paragraph 2.4.1.

Annex A to Schedule 2

Plan showing the route of the Access Road Works

(žemėlapis)

Annex B to Schedule 2

Access Road Specification

TABLE OF CONTENTS

ACCESS ROAD SPECIFICATION

101.1   Owner:  Republic of Lithuania (RoL)

101.2   Name of Project:           Visaginas Nuclear Power Plant (VNPP)

101.3   Location of Project: Lithuania

102.1       Project Background:

a.         As part of the Visaginas Nuclear Power Plant project in Lithuania, a corridor has been identified as a heavy haul corridor that will be used to transport and deliver nuclear facility equipment to the project site, as indicated in Article 116.1.a. The equipment exceeds typical highway restrictions and limitations for weight, width, and height, and a specialized heavy haul transporter vehicle operated by a qualified contractor will be required to haul the equipment.

b.         The corridor originates in the city of Klaipeda, Lithuania, on the Baltic Sea, where the equipment will be offloaded from heavy lift shipping vessels and transferred to heavy haul transporter vehicles, and continues for approximately 550 kilometers to the project site located in Visaginas. The limits of Work defined in this Specification are from Klaipeda port pier to the boundary of the VNPP construction site.

c.         The corridor was identified and selected primarily to utilize public roads suitable for heavy haul transportation and to avoid fixed overhead obstructions; however, the corridor poses several unique challenges to improve and upgrade the infrastructure in order to achieve a serviceable haul road.