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                      OS&S DRAFT 2/16/99

POWER PURCHASE AGREEMENT

Dated as of ………………………….., 1999

Between

ELECTRICITY COMPANY OF GHANA

And

(MINERGY MEMBER COMPANY)

     

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Exhibit List

Exhibit A Payment for Promised Capacity and Energy Exhibit B Description of Project Exhibit C Delivery Points; Meters Exhibit D Fuel Specifications Exhibit E Sample Invoice Exhibit F Availability Guarantees Exhibit G Testing Criteria Exhibit H Governmental Approvals Exhibit I Additional Costs Calculation Methodology

     

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POWER PURCHASE AGREEMENT

THIS POWER PURCHASE AGREEMENT (the “Agreement”), is made as of ………………., 1999 (the Effective Date”), by and between ELECTRICITY COMPANY OF GHANA, a Ghanaian company wholly-owned by the Government of the Republic of Ghana (“Seller”), and (MINERGY MEMBER COMPANY), a (Ghanaian --------------company ) (“Buyer”)

W I T N E S S E T H

WHEREAS, Affiliates of Tema Power Company Limited, a Ghanaian limited liability company (“TPC”) and Ashanti Goldfields Company Ltd., a Ghanaian limited liability company (“Ashanti”) entered into a Memorandum of Understanding dated November 13, 1997, and an extension thereof dated December 17, 1998 and TPC and Ashanti (intend to enter into) (have entered into) a long-term power purchase agreement (the “Ashanti Agreement”) pursuant to which TPC is to supply and sell to Ashanti a portion of the electrical energy to be produced by a 220 MW combined-cycle dual fuel turbine generating unit to be located near Tema, Ghana, as more fully described below, that is to be owned by, and built and operated by or on behalf of, TPC; and WHEREAS, Seller and TPC intend to enter into a power purchase agreement for another portion of the electrical energy and capacity of the TPC generating unit; and WHEREAS, Seller desires to resell such electrical energy and capacity to various purchasers, and Buyer in turn desires to buy a portion of such electrical energy and capacity; and WHEREAS, the Parties desire to enter into this agreement and to set forth their respective obligations regarding the purchase and sale of capacity and electricity; NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby specifically acknowledged, Buyer and Seller hereby covenant and agree as follows:

     

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ARTICLE 1

DEFINITIONS Wherever the following terms appear in this Agreement, they shall have the following meaning:

Section 1.1 Affiliate means with respect to any Person (i) Person that, directly or indirectly, controls or is controlled by or is under common control with such designated Person, (ii) and Person that beneficially owns or holds 50% or more of any class of voting securities of such designated Person or 50% or more of the equity interest in such designated Person, and (iii) and Person of which such designated Person beneficially owns or holds 50% or more of any class of voting securities or in which such designated Person beneficially owns or holds 50% or more of the equity interest. For the purposes of this definition,” control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of any amount of voting securities or by contract or otherwise.

Section 1.2 Agreement has the meaning set forth in the first paragraph hereof. Section 1.3 Annual Available Capacity means, as of any day, the average of the sum

of the Available Daily Capacity for each day in the twelve (12) full consecutive calendar months immediately preceding such day.

Section 1.4 Annual Contracted Capacity means, as of any day, the average of the sum

of Contracted Daily Capacity for each day in the twelve (12) full consecutive calendar months immediately preceding such day.

Section 1.5 Applicable Law means, with respect to any Person, all laws, statutes,

codes, acts, treaties, ordinances, orders, judgments writs, decrees, injunctions, rules, regulations, Governmental Approvals, directives and requirements of all Governmental authorities, in each case applicable to or binding upon such Person or any of its properties.

Section1.6 Applicable Standards means those standard constituting Prudent Utility

Practices that relate to operation of the Project; provided, however, that if any portion of such standards or codes conflicts with or is less stringent than any Applicable Law, such conflicting or less stringent portions of such standards shall not be deemed “applicable”.

Section 1.7 Ashanti has the meaning set forth in the recitals to this Agreement. Section 1.8 Ashanti Agreement has the meaning set forth in the recitals to this

Agreement. Section 1.9 Availability Factor means, at any given time, the percentage found by

dividing (x) the Aggregate Available Daily Capacity by (y) the Aggregate Contracted Capacity; provided, however, that the Availability Factor shall not exceed one (1.0).

Section 1.10 Available Daily Capacity means, for any day, the daily average of the total

available megawatts of electric power that the Project could generate as determined (in

     

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accordance with Applicable Standards) for such day by Seller. “Available Daily Capacity” shall include, without duplication, the sum of the megawatts, as so determined, associated with (a) all hours in such day in which the energy associated with such Promised Capacity or a portion thereof available and in which the energy associated with such Promised Capacity was taken as evidenced by the metered output of the Project, (b) all hours in such day in which Seller was able to make the Promised Capacity or a portion thereof available but the full amount of the energy associated with the Promised Capacity or portion thereof was not taken, (c) all hours in such day of a Major Overhaul Outage, (d) all hours in such day that a Force Majeure Event caused the Promised Capacity not to be made available to Buyer, and (e) all hours in such day related to the integration of Phase II, but not more than (……….) hours.

Section 1.11 Btu means British thermal unit. Section 1.12 Buyer has the meaning set forth in the first paragraph hereof. Section 1.13 Buyer Event of Default has the meaning set forth in Section 9.2. Section 1.14 Buyer’s Indemnitee has the meaning set forth in Section 7.1 Section 1.15 Buyer’s Share means the ration of (i) the Promised Capacity to (ii) the

Project Capacity Section 1.16 Change in Law means (i) the adoption, promulgation, modification or

reinterpretation after the Effective Date of any Applicable Law by a Governmental Authority, (ii) the imposition by a Governmental Authority after the Effective Date of any term or condition in connection with the issuance, renewal, extension, replacement or modification of any Governmental Approval that establishes new requirements for the construction, operation or maintenance of the Project that are adverse to the affected Party or to TPC and of which the affected Party or TPC was not actually aware at the Effective Date, (iii) the non-approval or non-renewal of any Governmental Approval, or the renewal of the same on terms materially less favorable than as originally issued (in each case so long as due application for such Governmental Approval was properly and timely made), or (iv) any other materially adverse restrictions or restraints imposed by Applicable Law or by other requirements, rule, regulation or order of a Governmental Authority after the Effective Date, in each case, which affects the Project or the Parties or TPC (including without limitation the adoption of any legal norm relating to the production, transmission, distribution or marketing of electricity, or a change in any law relating to tax, the environment, labor, customs or currency exchange or moveability).

Section 1.17 Contracted Daily Capacity means, as of any day, the average total

capacity over such day committed to be sold by TPC to Buyer (through ECG), to other long-term purchasers of energy and capacity from the Project, or sold by TPC into an energy exchange.

Section 1.18 Damages has the meaning set forth in Section 7.1 Section 1.19 Deemed Availability Factor means, with respect to a particular kind of Fuel,

the availability factors set out in Exhibit F.

     

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Section 1.20 Delivery Point means the physical point described in Exhibit C at which interconnection is made between the electrical systems of the Project and the National Grid.

Section 1.21 Dispute means any disagreement, dispute, controversy or claim arising out

of or relating to this agreement or the breach or termination thereof, other than (i) a Technical Disagreement and (ii) a disagreement as to the amount due under an invoice as set forth in Section 5.6.1.

Section 1.22 ECG has the meaning set forth in the first paragraph hereof.

Section 1.23 ECG Agreement means the power purchase agreement to be entered into

by and between Seller and TPC. Section 1.24 Effective Date has the meaning set forth in the first paragraph hereof Section 1.25 Energy means electrical energy, measured in kilowatt-hours, with such

voltage and frequency characteristics as may be required to satisfy the requirements of the relevant Governmental Authority from time to time that is associated with the Promised Capacity made available by Seller to Buyer at the Delivery Point pursuant to this Agreement.

Section 1.26 EPC Agreement means the agreement for the engineering, procurement

and construction of the Project to be entered into between TPC and EPC Contractor. Section 1.27 EPC Contractor means the Person selected by TPC to enter into the EPC

Agreement Section 1.28 Event of Default means a Seller Event of Default or a Buyer Event of

Default Section 1.29 Excess Capacity has the meaning set forth in Section 2.5 Section 1.30 Excess Energy has the meaning set forth in Section 2.5 Section 1.31 Financial Closing Date means the date on which TPC first has access, but

for conditions to continued funding contained in the Financing Documents, to funds provided by the Project Financiers and other entities sufficient for the construction and completion of the Project.

Section 1.32 Financing Documents means any and all loan agreements, notes,

indentures, swap and hedging agreements, security agreements, deeds of transfer, pledge agreements or deeds, letters of comfort, subordination agreements, mortgages, deeds of trust, participation agreement and other documents relating to the construction, interim and long-term financing of the Project, and any refinancing thereof, provided by the Project Financiers, including any and all modifications, extensions, renewals and replacements of any such financing or refinancing.

Section 1.33 Force Majeure Event means any circumstance beyond the reasonable

control of a Party or TPC (which term shall for the purposes of this definition include a Party and its employees and agents and TPC and its employees and agents), acting in accordance with

     

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Prudent Utility Practices, that causes such Party or TPC to fail or be unable to perform or experience a delay in its performance of this Agreement, including but not limited to: (a) unusually severe climatic conditions or any effect of unusual natural elements, including fire, volcanic eruption, landslide, earthquake, flood, tsunami, lighting, hurricane, storm, perils of sea, and other acts of God or similar cataclysmic occurrence or natural calamity: (b) strikes or other labor or industrial disturbances on a national or industry-wide basis in Ghana involving either Party; (c) acts of war (whether declared or undeclared), war, riot, blockade or embargo, hostilities, civil disturbances, and acts of belligerence of foreign enemies (whether declared or undeclared; (d) revolution, rebellion , insurrection, coup, exercise of military or usurped power or any attempt at usurpation of power, guerrilla or terrorist activities, terrorism, sabotage, or acts of the public enemy; (e) explosion, accident, epidemic or fire; (f) nuclear emergency, radioactive contamination or ionizing radiation or the release of any hazardous waste or materials or other contamination at or affecting the Project or the site of the Project (excluding (1) any contamination or release of materials brought on to the Project site by TPC, other than as a result of a Force Majeure Event, and (2) any contamination or release of hazardous waste or materials on the Project site that was described as of the Financial Closing Date in the environmental survey of the Project site required by the Project Financiers under the Financing Documents (but only to the extent such contamination or release was illegal or subject to regulation under Applicable Law of the Republic of Ghana), (g) action ;or failure to act on ;the part of any Governmental Authority or any military or governmental agency acting under present or assumed authority in Ghana; (h) the occurrence of a System Emergency; (i) the unavailability of power, Fuel, Fuel supply, Fuel reserves or transportation or raw materials; (j) failure or unavailability of electric transmission or distribution (including due to physical unavailability or actual disconnection of the Project from the National Grid by the National Grid Operator), other than, with respect to TPC, failures of such electric transmission or distribution due to the EPC Contractor’s failure to build the transmission or distribution portions of the Project, or EPC Contractor’s failure to build such portions in accordance with the EPC Agreement, in either case prior to the date on which the warranty on such systems granted by EPC Contractor pursuant to the EPC Agreement expires; (k) the breakdown of the Project or failure of any Project equipment (only to the extent that the cause of such breakdown or failure would itself qualify under this Agreement as a Force Majeure Event); (l) any event affecting the ability of any supplier (including under the Fuel Agreement) to TPC to fulfill its obligations to TPC, so long as the cause thereof otherwise would qualify under this Agreement as a Force Majeure Event; (m)quarantine, shipwreck, accidents of navigation, or breakdown or injury of vessels, accidents affecting harbors, ports, docks, bridges, canals or other adjuncts of shipping or navigation; (n) accidents affecting oil berths, pipelines, or the Tema Oil Refinery; (o) air crash, train wreck, or any other failures or delays of transportation if the cause of such other failure or delay otherwise would qualify under this Agreement as a Force Majeure Event; (p) Change in Law; (q) the expropriation or compulsory acquisition by any Governmental Authority of any shares in a Party or TPC, or any assets or rights of a Party or TPC, if the result would be to acquire control of the subject Party or to adversely affect the performance by such Party or TPC, and any other expropriation, requisition, confiscation, nationalization or other compulsory acquisition by a government or agency, export or import restriction or other restrictions, rationing or allocations imposed by any Governmental Authority; and (r) any other event or circumstance of a nature analogous to the foregoing. Lack of money or foreign exchange and changes in market conditions shall not constitute a Force Majeure Event.

Section 1.34 Fuel means crude oil, gas and each other fuel for use in connection with the operation of the Project, which includes without limitation (i) all fuel burned, including fuel

     

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used to generate energy consumed by the auxiliary equipment, such as the fuel preparation and handling equipment, feed pumps and fans and other auxiliary systems used in the operation of the Project, and (ii) fuel held in storage.

Section 1.35 Fuel Agreement means a collective reference to each Fuel supply and

transportation agreement with respect to the supply of Fuels to be utilized at the Project, in each case to be entered into by and between TPC and a Fuel supplier or transporter, as the case may be, selected by TPC.

Section 1.36 Governmental Approval means any authorization, approval, consent,

license, franchise, lease, ruling, permit, tariff, rate, certification, exemption, filing or registration by or with any Governmental Authority.

Section 1.37 Governmental Authority means any legislative, administrative, judicial

or other governmental instrumentality, authority, agency, court, municipal body or entity with legal jurisdiction over the Person in question or the Project, including the Government of the Republic of Ghana, any Person or entity controlled by or a part of the Government of the Republic of Ghana, and any Person or entity in which the Government of the Republic of Ghana or other government participates.

Section 1.38 Heat Rate means the heat rate (calculated at HHV) for the Project,

expressed in Btus/kWh, calculated as set forth in Exhibit A. Section 1.39 HHV or LHV means higher heating value or lower heating value, as

applicable Section 1.40 ICC has the meaning set forth in Section 13.3.1 Section 1.41 Initial Delivery Date or IDD means the date specified in writing by Seller as

the IDD, which date shall be no earlier than the first date on which seller has delivered Energy to Buyer in a continuous manner for a period of forty-eight (48) consecutive hours at an average per hour of at least sixty-five (65%) of the project capacity.

Section1.42 Initial Term has the meaning set forth in section 3.1 Section 1.43 kW or kWh means kilowatt or kilowatt hour, a applicable. Section 1.44 LIBOR means, as determined on the date on which the relevant payment

becomes due, the rate for deposits in united states dollar for six (6) month period that appears on the Dow Jones Telerate service page 3750 (or service as may replace it for the purpose of displaying London inter-bank dollar-offered rates of leading reference banks), as of 11:00am., London tome ,on such date .If such rate does not appear on Dow Jones Telerate service page 3750 (or such other page or service as may replace it for the purpose of displaying London inter-bank Dollar –offered rates of leading reference banks) the rate for such date will be determined on the basis of the rates at which deposits in united States dollar are offered by leading reference banks at approximately 11:a.m., London time, on such day to prime banks in the London interbank market for six (6) months period. If at least two such quotations. If fewer than two quotation bare provided, the rate for such date will be the arithmetic mean of rates

     

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quoted by the major banks in New York City , at approximately 11:a.m., New York City time, on that loans in United States dollars to leading European banks for six (6) month period.

Section 1.45 Major Maintenance Plan means the five-year plan to be prepared by TPC

annually for the period encompassing the next five successive Operational Years, which plan shall nominate the dates of each scheduled outage and Major Overhaul Outage that TPC requires during the next Operational Year and shall describe generally the outage and overhaul plans for the next four successive Operational Years s. The dates of the scheduled outage that shall take place during the next Operational Year shall be as close to [ as possible , time relative to rainy season] as possible during the month agreed to by [Seller, Ashanti and TPC

Section 1.46 Major Overhaul Outage means a scheduled Outage for the purpose of (i) Conducting major maintenance and overhaul of plant equipment and machinery that

shall take place after every [……………… (………….)] hours of operation for a period of no more than […… (….)]days , or such longer period as is necessary based on the equipment manufacturers, specifications and recommendations consist with prudent Utility Practices, or (ii)preparing the project for the use of natural gas as a fuel.

Section 1.47 Meter means an instrument or instruments and associated measuring

equipment consistent with prudent Utility Practice and used to measure and recorded , the volume of energy delivered to the Delivery Point.

Section 1.48 MW or MWh means megawatt or megawatt-hour, as applicable. Section 1.49 National Grid means the electricity transmission and distribution system in

the Republic of Ghana as it exist from time to time. Section 1.50 National Grid Operator means VRA or its successor. Section 1.51 Notice has the meaning set forth in Section 7.3.1. Section 1.52 O&M Agreement means the agreement for the operation and maintenance

of the project entered into between TPC and the O&M Contractor. Section 1.53 O&M Contractor means the person entering into a definitive agreement with

TPC for the operation and maintenance of the project. Section 1.54 Operational Year means the period of twelve (12) months that starts on the

IDD, and each successive twelve(12) months period thereafter. For example, if the IDD occurred on July 1st, 1999 and continue up to and including June 30, 2000.\

Section 1.55 Party or Parties means a signatory or the signatories to this Agreement. Section 1.56 Payment for Capacity has the meaning set forth in section 5.1.1. Section 1.57 Payment for fixed Operation and Maintenance has the meaning set forth in

section 5.1.2.

     

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Section 1.58 Payment for Fuel has the meaning set forth in section 5.1.4. Section 1.59 Payment for Variable Operation and Maintenance has the meaning set forth

in section 5.1.3. Section 1.60 Permitted Variance shall have the meaning set forth in section 6.3.3. Section 1.61 Person means an individual , partnership, corporation, business trust , joint

stock company , trust, unincorporated association, joint ventures, governmental Authority, limited liability company or any other entity of whatever nature.

Section1.62 Phase I means the electrical generating facility of that consists of a unit

formed by a gas turbine with its corresponding generator and supplementary electric power generation equipment.

Section 1.63 Phase II means the following phase I, the electrical generating facility of the

project that consist of the heat recovery steam boiler, water treatment facilities, water cooling facilities and supplementary equipment to be connected to phase I

Section 1.64 PPL Index means, at any time, annual average ‘’Producer Price Index for

finished Goods WPUSOP 3000’’ (as the same may be retitled or recorded from time to time)as published by the US Department of labor, Bureau of labor Statistics, in the publication Supplement to producer Price Indexes for the latest calendar year preceding the date for which the determination based on such PPI Index is then being made (or such successor publications as may contain such index or, if no such index exists, such other index as may replace it for the purpose of measuring annual changes in prices of a broad range of finished goods in the US.).Such index shall be calibrated with reference to the base index set by the US Department of Labor, Bureau of Labor Statistics for 1982 (which base index as of the date hereof is 100).Such index shall be determined using the latest version of such index published as of the date on which adjustment is being calculated.

Section 1.65 Project means, (i) with respect to phase I, a simple-cycle, oil and gas-fired

electrical generating facility, and (ii) with respect to phase II , a combined-cycle, oil and gas-fired electrical facility, in either case, including without limitation all the goods, machinery and equipment owned or controlled by TPC and associated with the electrical generating units, including facilities for the receipt, transportation and storage of fuel, as well as the other properties, movable or immovable goods, equipment and machinery that can be used for the construction, installation and operation of the electric energy generating units, and other equipment, machinery and spare parts, including goods of offices, warehouses and workshops, that may need or usable by TPC to supply capacity or electric energy pursuant to the ECG Agreement and the Ashanti Agreement, including facilities owned by TPC interconnecting the project with the National Grid.

Section 1.66 Project Capacity means with respect to Phase I, (130) MW and with

respect to Phase II, (220) MW, or, in each case, such greater amount of capacity that the Project has as a result of any expansion thereof by TPC. Each then-applicable amount of capacity shall be subject to daily adjustment for deviations from average annual ambient conditions prevailing at the location of the Project.

     

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Section 1.67 Project Financiers means any and all lenders providing senior or subordinated construction, interim or long-term debt financing or refinancing for the initial and permanent construction of the Project, and any trustee or agent acting on their behalf, whether through a lease, loan, trust, purchase of securities or other financing mechanism.

Section 1.68 Promised Capacity means (i) with respect to Phase I, (…….) MW of the

Project’s Capacity (, which amount shall be determined by calculating Buyer’s weighted share of thirty (30) MW, based on the number of MW Buyer has committed to purchase under Clause (ii) with respect to Phase II and the number of MW other long-term purchasers from the Project (other than Ashanti) have committed to purchase with respect to Phase II), and (ii) with respect to Phase II, (…..) MW of the Project’s Capacity. Each then-applicable amount of Promised Capacity shall be subject to daily adjustment (A) pursuant to Section 2.4 (if applicable on such day), and (B) for deviations from average annual ambient conditions prevailing at the location of the Project.

Section 1.69 Prudent Utility Practices means those practices, methods, equipment,

specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by professional organizations performing design, procurement, engineering, construction, operation or maintenance services on facilities or dispatching facilities of the type and size similar to the Project, which in the exercise of reasonable judgment and the light of the facts known at the time the decision was made, are considered good, safe and prudent practices in connection with the design, procurement, construction, maintenance and operation of electrical and other equipment, facilities and improvements, with commensurate standards of safety, performance, dependability, efficiency and economy. Prudent Utility Practices are not intended to be limited to the optimum practice or method to the exclusion of all others, but rather to include reasonable and prudent practices and methods. In applying those conditions to any matter under this Agreement, equitable consideration should be given to the circumstances, requirements and obligations of each of the Parties.

Section 1.70 Renewal Term has the meaning set forth in Section 3.1 Section 1.71 Scheduled Outage means an interruption in the production of the Project

as required or recommended for inspection, preventive maintenance or corrective maintenance of the Project or its components that is scheduled pursuant to Section 4.1.3, as specified by TPC or recommended or required by the manufacturer of the equipment, all in accordance with TPC’s standard operating procedure and Prudent Utility Practices.

Section 1.72 Seller has the meaning set forth in the first paragraph hereof. Section 1.73 Seller Event of Default has the meaning set forth in Section 9.1

Section 1.74 Seller’s Indemnitee has the meaning set forth in Section 7.2 Section 1.75 Start-up means the process of starting, synchronizing and loading the

Project until steady-state base load operation has been achieved. Section 1.76 System Emergency means TPC ceasing to operate or reducing the loan of

the Project in whole or in part due to (a) a disconnection by the National Grid Operator (other than due to TPC’s fault0, or (b) the occurrence of a condition or situation where delivery of

     

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Energy to the National Grid or making available the Promised Capacity could be expected, in the reasonable opinion of TPC in light of Prudent Utility Practices, to cause (i) harm to life or limb or imminent serious threat of harm to life or limb, (ii) material damage to the Project or imminent danger of material damage to property, including without limitation the Project, OR (iii) other dangerous occurrences that in the exercise of Prudent Utility Practices should be prevented or curtailed.

Section 1.77 Technical Disagreement means any disagreement, dispute, controversy or

claim arising out of or relating to this Agreement and relating to a technical or engineering issue that does not implicate the safety of the Project or any other Person, the breach or termination hereof, or the commercial terms contained in this Agreement.

Section 1.78 TPC has the meaning set forth in the recitals to this Agreement. Section 1.79 Technical Inspector means the Person selected by Seller and TPC

pursuant to the ECG Agreement who shall have experience in the engineering, construction, operation and maintenance of independent electric power generation facilities.

Section 1.80 Term has the mean set forth in Section 3.1 Section 1.81 VRA means the Volta River Authority, a Ghanaian company wholly-owned

by the Government of the Republic of Ghana, or its successor.

     

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ARTICLE 2

SALE OF ENERGY AND CAPACITY

Section 2.1 Obligation to Purchase and Sell. Subject to all of the terms and

conditions herein, from and after the IDD (expect during integration of Phase II), Seller agrees to sell and make available the Promised Capacity and to sell and supply the Energy to Buyer, and Buyer agrees to pay Seller for making available the Promised Capacity, and to take and pay for the Energy, in each case at the prices and under the other terms and conditions set forth in this Agreement. (Seller shall not be obligated under this Agreement to provide to Buyer or compensate Buyer for electric energy or capacity supplied to Buyer from other sources to replace Energy or Promised Capacity during any period when the Project is not operating). Buyer acknowledges and agrees that its obligation to take the Promised Capacity is an absolute take-or-pay obligation as set forth in Section 5.2.

Section 2.2 Development, Construction and Operation of the Project. During the Term, TPC shall, in accordance with Prudent Utility Practices and at its own expense, perform all work and services (including without limitation the provision of all materials, equipment and labor) required for the design, engineering, licensing, ownership, construction, commissioning, operation and maintenance of the Project.

Section 2.3 Sale to Others

Section 2.3.1 Ashanti Agreement. Buyer expressed acknowledge that TPC [is

contemplating entering][has entered]into the Ashanti Agreement, which [will provide] [provides], among other things, for the sale by TPC to Ashanti of a portion of the capacity and associated energy from the project.

Section 2.3.2 Resale in the event that the buyer determines that it does not require all or

some portion of the energy , buyer may resell such amount of energy to a third party , and seller shall, upon reasonable advance notice from buyer , act as buyer’s agent in such resal ; provided, however, that buyer shall remain fully liable hereunder for payment for such Energy, notwithstanding any payment arrangements for such resales between such third party and buyer and provided, further, that, absent mutual agreement to the contrary, buyer shall remain liable for payments for promised capacity as a set forth in section 5.1.1. If buyer cannot resell such amount of energy buyer shall be liable for all additional costs and expenses incurred or paid by seller, TPC or other third party purchasers from the project in connection with such reduction in load (including any resulting increased costs due to inefficient use of fuel) as calculated pursuant to exhibit I.

Section 2.3.3 Third Parties. Subject to Buyer’s entitlement to the promised capacity and

energy, seller shall be permitted to make sales of capacity and or energy from the project from time to time to other third parties. On an annual basis, at least one (1) month prior to the commencement of the subsequent Operating Year , sellers shall notify the buyer of all third-

     

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party electricity sale arrangement that are then in effect and shall confirm the amount of any uncommitted capacity of the project to which ECG is entitled that is then available.

Section 2.4 Pro Rata Reduction. For any given hour, in the event that the available shall

Daily Capacity for that hour is less than the project capacity, the promised capacity for the day shall be reduce to multiple of buyer’s share times the applicable available Daily Capacity. Seller shall notify Buyer promptly whenever it becomes aware that the promised Capacity is to be reduced in accordance with this provision, giving details of the reduction in the Available Daily Capacity and the reasons therefore.

Section 2.5 Excess Energy Seller shall have no obligation to make available or deliver to

Buyer any quantity of energy from the project to which Seller is entitled in excess of energy (‘’Excess Energy’’) or any quantity of capacity from the project to which Seller is entitled in excess of Promised Capacity (“Excess Capacity”), and the shall be no penalty or other consequence to seller for failing to make available or deliver or buyer any excess energy or excess capacity. Buyer may, at any time, notify seller that Buyer would be interested in purchasing any excess Energy or excess Capacity that the seller may have available. Neither Buyer nor Seller shall any obligation to agree to any such purchase or any terms and conditions under which such purchase would be made except in the exercise of such party’s sole discretion. In addition, at a Buyer’s request, seller shall meet with Buyer to discuss providing to Buyer Excess Energy or Excess Capacity in connection with any expansions of or modifications to Buyer’s facilities; provided, however, that seller nor Buyer shall be obligated to supply or purchase, as the case may be, any Excess Energy or Excess capacity in connection with any such modification or expansion unless such obligation is reflected in a definitive agreement executed by each party acting in its sole discretion.

Section 2.6 System Emergencies. If Seller is notified by TPC that TPC has determined

that a System Emergency has occurred, Seller may suspend or reduce the delivery of Energy and may cease to make available in whole or in part the Promised Capacity, in each case to the extent necessary to counter or reduce the effects of such System Emergency. Seller shall notify Buyer as to the occurrence of any System Emergency, its cause and its impact on the delivery of Energy, as soon as is practicable. In the case of System Emergencies occurring due to conditions on or affecting the National Grid, Seller and Buyer shall cooperate with the National Grid Operator so that it can take appropriate measures to correct the condition. Seller shall not be obligated to supply Energy or the Promised Capacity until such time as the System Emergency has ceased; provided, however, that TPC shall take all commercially reasonable actions at the Project necessary to resolve or mitigate such System Emergency.

     

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ARTICLE 3

TERM, CONDITIONS PRECEDENT

Section 3.1 Term. This Agreement shall be effective as of the Effective Date, and unless

earlier terminated in accordance with the terms hereof shall continue in effect for a term that shall end at 11:59 p.m. on the last day of the (…..) consecutive month counting in succession from the IDD (the “Initial Term”). Following expiration of the Initial Term, this Agreement may be renewed for an additional renewal term equal to the amount of time then remaining in the initial term of the Ashanti Agreement, at the same prices and under the same terms and conditions of this Agreement, upon written notice from Buyer to Seller and TPC no less than (twenty-four (24)) months prior to the end of the Initial Term (the “Renewal Term”, and together with ;the Initial Term, the “Term”).

Section 3.2 Conditions Precedent Each of the Parties shall use reasonable efforts to

cooperate with the other Party’s efforts to fulfill its conditions precedent. Each of the Parties shall endeavor in good faith to fulfill in a timely manner those conditions on which its obligations are contingent.

Section 3.2.1 Seller’s Conditions Precedent. The duty of Seller to perform its obligations

under this Agreement (other than the obligations set forth in the preamble of Section 3.2, in Sections 4.2.2, 7.3.4, 8.1.1, 8.1.2, 8.1.3, and in Articles 12 and 15) shall be subject to the Ashanti Agreement and the ECG Agreement becoming fully effective, as evidenced by the receipt of a notice from TPC stating that the Ashanti Agreement and the ECG Agreement have become fully effective.

Section 3.2.2 Buyer’s Conditions Precedent. The duty of Buyer to perform its obligations

under this Agreement (other than the obligations set forth in the preamble of Section 3.2, in Sections 4.2.2, 7.3.4, 8.2.1, 8.2.2, 8.2.3, and in Articles 12 and 15) shall be subject to the Ashanti Agreement and the ECG Agreement becoming fully effective, as evidenced by the receipt of a notice from TPC stating that the Ashanti Agreement and the ECG Agreement have become fully effective.

     

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ARTICLE 4

CERTAIN COVENANTS; COMMERCIAL DELIVERIES

Section 4.1 Seller’s Covenants. Section 4.1.1 Reporting, Approved Construction Contractors. Seller shall provide to

Buyer, on a monthly basis during the period from the commencement of construction up to the IDD, status reports on the progress of construction of the Project, including (i) whether the construction is proceeding on schedule to achieve the IDD, and, if not, the reasons for the probable duration of any delays, and (ii) if at any time TPC ceases construction of the Project for more than ninety (90) consecutive days.

Section 4.1.2 Transmission Agreement Seller shall cooperate with Buyer and support

Buyer’s efforts to enter into a long-term transmission services agreement with the National Grid Operator that meets Buyer’s needs.

Section 4.1.3 Major Maintenance Plan. No later than thirty (30) days prior to the end of

each Operational Yea, TPC shall submit to ECG, for transmittal to the Buyer, a Major Maintenance Plan.

Section 4.1.4 No Liens. Seller shall deliver Energy to Buyer hereunder free of any lien,

charge or other encumbrance. Section 4.2 Buyer’s Covenants. Section 4.2.1 Coordination During Construction. During the period of construction of the

Project, Buyer shall cooperate with Seller and TPC for purposes of planning for the transition of primary responsibility for supply the electrical needs ob Buyer (from VRA) to TPC.

Section 4.2.2 Duty to Cooperate. Buyer acknowledges that the development and

construction of the Project will require third-party financing. Buyer agrees to cooperate with TPC and Seller in connection with such financing by providing such consents, agreements and other instruments and documents (including, without limitation, financial statements and other information about Buyer as the Project Financiers may reasonably request). Buyer further agrees to co-operate with Seller and TPC in good faith to satisfy the requirements of any financing and re-financing of the Project. Seller shall on demand (as demonstrated by the production of relevant invoices) reimburse al third-party costs and expenses reasonably incurred by the Buyer in fulfilling its obligations under this Section 4.2.2.

     

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Section 4.2.3 Scheduling. Buyer shall provide Seller with Buyer’s best estimate of its expected requirements (which estimate shall not be binding) for energy and capacity during the Term.

a) for each calendar year, at least ninety (90) days prior to the start of such year (or, in

the case of the calendar year in which the IDD occurs, forty-five (45) days prior to the projected IDD as notified by the Seller in accordance with Section 4.1.1; and

b) for each month, at least ten (10) days prior to the end of the preceding month; and

c) for each week (beginning Monday), by Friday of the preceding week In addition, Buyer shall provide Seller with all other information necessary to allow Seller to make Energy and Promised Capacity available to Buyer in compliance with the standards of the National Grid Operator and to allow Seller to fulfill the scheduling and other requirements of the National Grid Operator. Buyer shall advise Seller of any significant changes in its expected requirements for Energy or capacity and purchases hereunder as soon as practical, and shall coordinate changes in its actual requirements through the control room of Seller.

Section 4.3 Initial Delivery Date. Subject to Buyer cooperating with and supporting

Seller’s obligation under this Section 4.3, Seller shall use all reasonable efforts to cooperate with TPC to cause the IDD to occur on or before (………months after delivery of the Notice to Proceed under the EPC Agreement); provided, however, that delays caused directly or indirectly by Buyer shall result in an equitable adjustment of the planned IDD.

Section 4.4 Deliveries Prior to the Initial Delivery Date. Prior to the IDD Seller may

make available, and Buyer shall take, energy produced during Start-up of the Project up to a maximum in any given hour of an amount equal to the Promised Capacity, as expressed in kilowatt-hours, unless Buyer expressly agrees to a higher amount. Buyer shall pay Seller for such energy in accordance with Section 5.5. Buyer shall cooperate in good faith with Seller (and TPC) to allow Seller to deliver energy to Buyer in connection with TPCs schedule and protocol for Start-up of the Project.

Section 4.5 DELIVERY Point; Title and Risk of Loss. Title to and risk of loss of the

Energy shall pass to and rest in Buyer when the same is made available by Seller at the Delivery Point. Until title to Energy passes to Buyer, Seller shall be deemed in exclusive control of the same and shall be responsible for any damage or injury caused thereby.

Section 4.6 Transmission and Other Charges. After title to Energy passes to Buyer,

Buyer shall be deemed in exclusive control of the same and shall be responsible for arranging for and paying all of the costs associated with any necessary transmission and distribution services (including but not limited to any system losses), and for any damage or injury caused thereby, back-up power, system administration charges, fees, or taxes, and any purchase of

     

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capacity and associated energy in excess of the Promised Capacity (as well as transmission, distribution and other similar costs associated therewith).

Section 4.7 Integration of Phase II. Seller shall provide Buyer with at least thirty (30)

days’ written notice of TPC’s intention to commence the integration of Phase II of the Project and shall provide Buyer with information with respect to the periods when TPC anticipates that the Project will not be available for the generation of Energy as a result of the integration works, which information Seller shall update from time to time, as such updated information is made available to Seller by TPC. Seller shall use all reasonable endeavors to minimize any interruption in the availability of the Project for the supply of Energy to Buyer as a result of the integration works and shall provide Buyer with as much notice as reasonably practicable of the expected date of completion of the integration works.

     

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ARTICLE 5

PAYMENTS

Section 5.1 Capacity, Fixed and Variable Operation and Maintenance, Fuel. Starting

on the IDD, Buyer shall pay to Seller every month, for making available to Buyer the Promised Capacity and for delivering the Energy, the sum of: (i) the Payment for Capacity, (ii) the Payment for Fixed Operation and Maintenance, (iii) the Payment for Variable Operation and Maintenance, and (iv) the Payment for Fuel.

Section 5.1.1 Payment for Capacity. Each month Buyer shall pay Seller a payment for making available the Promised

Capacity (the “Payment for Capacity”) equal to: R x PC x AF where: R = the amount set forth in Section 1 of Exhibit A (subject to Section 5.2 below) PC = the Promised Capacity averaged over the period of the invoice; and AF = the Availability Factor (or the Deemed Availability Factor, if applicable pursuant to Section 5.1.5) calculated for such month Section 5.1.2 Payment for Fixed Operation and Maintenance.

Each month, Buyer shall pay Seller a payment for fixed operation and maintenance of the Project (the “Payment for Fixed Operation and Maintenance”) equal to: FOM x PC

where:

FOM = the amount set forth in Section 2 of Exhibit A (subject to Section 5.2 below)

PC = the Promised Capacity

     

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Section 5.1.3 Payment for Energy. Each month, Buyer shall pay Seller a payment for the variable operation and

maintenance of the Project (the “Payment for Variable Operation and Maintenance”) equal to : VOM x Energy

where: VOM = the amount set forth in Section 3 of Exhibit A Section 5.1.4 Payment for Fuel. Each month, Buyer shall pay Seller a payment for the

Fuel (the “Payment for Fuel”) calculated in accordance with Exhibit A. Section 5.1.5 Deemed Availability Factor. During the first Operational Year, the

Availability Factor shall be the Deemed Availability Factor; Provided, however, that within ninety (90) days after the end of the first Operation Year, the actual Availability Factor for the first Operational Year is less than or greater than the Deemed Availability Factor, the next monthly invoice delivered pursuant to Section 5.6.1 following the date on which the above calculation is completed shall contain a charge or credit, as the case may be, equal to the difference between (a) the payments due Seller, as calculated pursuant to Section 5.1.1, based on the Deemed Availability Factor and (b) such payments calculated based on the actual Availability Factor.

Section 5.1.6 Sole Remedy. The reduction in the Payment for Capacity as calculated

under Section 5.1.1 due to any decreases in the Availability Factor shall be Buyer’s sole remedy for Seller’s failure to make available, in whole or in part, Promised Capacity or Energy

Section 5.2 Take-or-Pay Payments. Notwithstanding any other provision hereof to the

contrary, the obligation of Buyer to make the payments under Sections 5.1.1 and 5.1.2 in each month is a “take-or-pay” Obligation of Buyer to make the payments under section 5.1.1 and 5.1.2 in each month is ‘’take or pay’’ obligation that is absolute and unconditional and each such payment shall be paid free and clear of any and all claims, demands or set-offs of whatever nature.

Section 5.3 Payments Due to System Emergencies. In the event that there is a system

Emergency during any month and such system Emergency causes TPC to incur damages or penalties or a minimum payment for that month to any person to whom TPC may owe fixed charges related to acquisition of fuel or other consumable goods related to the operation and maintenance of the Project, then Buyer shall pay to seller an amount equal to any such damages or penalties based on Buyer’s share to the extent such damages, penalties or minimum payments are not included under section 5.1.4.

     

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Section 5.4 Cost Increases Due to Changes in Law. In the event there is any change in law with respect to the Republic of Ghana applicable to TPC or the project that causes TPC to incur additional capital, operating, financing or other costs (including any additional taxes) or other similar charges incurred by or levied on TPC, the project or on fuel used at or in respect of the project), then, to the extent, that, within each subsequent five (5) years period of the team after the date of such change in law, such additional costs, each individually or in the aggregate, or when added to Buyer ‘s share of all other such cost s incurred in connection with all other changes in Law that have occurred prior to the date of such change in Law within the relevant five-year period, will exceed $100,000 (as such amount is adjusted for inflation by the percentage change in the PPI Index, calculated by dividing the PPI index at the time the calculation is performed by the PPI Index as the Effective date), then Buyer shall pay seller an amount equal to such additional costs, for reimbursement to TPC. Such reimbursement payment may be made either (i)monthly, at Buyer’s option, if such costs are amortized over a period not to exceed the term of any financing obtained to finance such additional capital costs or the remaining Term of the agreement, whichever is shorter (subject to a mutually agreeable interest rate on amount not yet paid), or, (ii) in a single payment (if no agreement as to interest can be reached by Buyer and Seller).

Section 5.5 Payments for Variable Operation and Maintenance and Fuel Prior to the

IDD. Prior to the IDD, Buyer shall pay to seller an amount equal to the sum of the payment for Variable Operation and Maintenance and the payment for fuel for all energy delivered to Buyer in accordance with section 4.4.

Section 5.6 Invoicing and Payment. Section 5.6.1 Monthly Invoice

(i) Seller shall deliver to Buyer a monthly invoicing statement indicating the amount of payment to be made by Buyer to Seller in previous month, calculated in accordance with this Article 5. An example of invoices, which includes a hypothetical case, is attached with this agreement as Exhibited E. Buyer shall pay all the invoices on or before the twenty-fifth (25) day after delivery of such invoice to Buyer

(ii) Acting in good faith the Buyer is entitled to serve a notice on sellers within

twenty (20) days of receipt of an invoice starting that Buyer disputes the amount due under such invoice. Such notice shall Specify the invoice to which it relates and the payments Items that are in DISPUTE. Buyer shall be entitled to withhold disputed amounts until the disputed is resolved; provided, however, that the full amount of all undisputed amounts is paid when due under section 5.6(i);

(iii) The parties shall meet and attempt to agree to the matter in dispute in

good faith as soon as reasonably practical after the dispute notice has been issued, but if the parties are unable to agree ton resolution of the dispute within (10) days of receipt by Seller of the dispute notice from Buyer, an independent auditor shall be appointed to resolve the dispute in

     

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accordance with this Agreement. Each Party shall be obliged to corporate with the auditor including providing access to all relevant information and records that the auditor may reasonably request. The costs of audit shall paid by Buyer; provided, however, that if the auditor de4termines that the actual amount due to Seller was more than twenty-five percent (25%) less than the dispute amount shown on the invoice, Seller shall pay the costs of the audit.

(iv) If the Parties are able to agree on a resolution of the dispute, or upon the auditors conclusions being received by the Seller, the Seller shall forthwith issue a corrected invoice (if necessary) based on such determination; and

(v) In the event that a dispute arises after an invoice has been paid, the above provisions shall be apply with such modification as are necessary, including in relation to amount to be refunded to the Buyer bearing interest from the date that such amount were paid.

Section 5.6.2 Payment Method. Payments shall be made at the places and to the

accounts indicated by the Party to which such payments are due from time to time. [All payment shall be made in United States Dollar (US$) in immediately available funds payable to the party to which such payment are due or its order, which transfers shall be confirmed on the dates such payment are due. It shall be the responsibility of Buyer to obtain United States Dollar on the date and in the amount necessary to satisfy payment obligations under this Agreement.]

Section 5.6.3 Additional Payments. If any adjustment pursuant to section 5.6.1 or

section 6.3.4 requires an additional payment on the part of Buyer, Buyer shall make said payment within fifteen (15) days after delivery of the adjusted invoice. In the event that the adjustment produces a credit in favor of Buyer, the credit shall be applied to the charges of the following month, or if such credit is calculated within (15) days prior to the termination of this agreement, the amount of credit shall be refunded by seller for the period from the date of original incorrect invoice to the date such payments is actually paid to Buyer. In either case, the party paying such difference shall also pay interest at an annual rate equal to LIBOR plus four hundred (400 basis point, calculated for the period from the date of original incorrect invoice to the date such payment is actually made.

Section 5.7 Delay in Payments. In the event either Buyer or Seller remits any payments

due under this agreement on a date later than the date specified for its payment, there shall be a delay charge on such outstanding balance of the debtor at an annual rate equal to LIBOR plus four hundred (400) basis points

Section 5.8 Currency Conversion. Any payments due under this Agreement and

originally made or incurred in a currency other than U.S. dollars shall be paid by the Party owing

     

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such payment in U.S dollars, calculated at the official exchange rate prevailing as of the date such payment was made or incurred, as the case may be, without deducting from any such payment any taxes, imposts, commissions or other charges, which shall be paid by the Party owing such payment.

     

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ARTICLE 6

MEASUREMENT AND METERING Section 6.1 Metering Equipment. Unless otherwise specified on Exhibit C, and in

accordance with the Prudent Utility Practices, Seller shall ensure that TPC shall (i) as part of the Project, provide and install appropriate Meters necessary to permit an accurate determination of the quantities of Energy delivered under this Agreement, and (ii) exercise reasonable care in the maintenance and operation of such Meters so as to assure to the maximum extent reasonably practicable an accurate determination of such quantities. Seller shall ensure that TPC’s Meters shall be located as indicated on Exhibit C. Seller also shall ensure that TPC’s Meters shall comply with the standards required by the National Grid Operator.

Section 6.2 Measurements. Readings of TPC’s Meters shall be conclusive as to the

amount of Energy delivered to Buyer hereunder; provided, however, that in the event any of TPC’s Meters is out of service or is determined, pursuant to Section 6.3, to be registering inaccurately, measurement of Energy delivered hereunder shall be determined by:

(ii) making a mathematical calculation if upon a calibration test of TPC’s Meter a

percentage error is ascertainable; or

(iii) in the absence of an ascertainable percentage of error, estimating by reference to quantities measured during periods of similar conditions when TPC’s Meter was registered accurately; or

(iv) If no reliable information exists as to the period over which such Meter was registering inaccurately, it shall be assumed for correction purposes hereunder that such inaccuracy began at a point in time midway between the testing date and the last previous date on which such Meer was tested and found to be accurate, but not to exceed three (3) months prior to the testing date.

Section 6.3 Testing and Correction.

Section 6.3.1 Annual Testing. Seller shall ensure that the accuracy of each of TPC’s

Meters shall be tested and verified by TPC at least annually. Seller shall bear the cost of the annual testing of its Meters.

Section 6.3.2 Metering Disputes. If Buyer disputes a Meter’s accuracy or condition, it

shall so advise Seller in writing. Seller shall, within fifteen (15) days after receiving such notice, advise Buyer in writing as to its position concerning the Meter’s accuracy and reasons for taking such position. If the Parties are unable to resolve their disagreement through reasonable negotiations, l then either Party may submit such dispute to the Technical Inspector to test the Meter. Should the Meter be found to be registering within its Permitted Variance, Buyer shall bear the cost of inspection; otherwise, the cost shall be borne by Seller. (Any repair or replacement shall be made at Seller’s expense as soon as practicable in conjunction with TPC, based on the Technical Inspector’s report).

     

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Section 6.3.3 Variances and Correction. Each Meter (or type of meter) shall be accurate within the variances set forth in Exhibit C or, if not there set forth, as specified by its manufacturer (each, a “Permitted Variance”). If, upon testing, any Meter is found to be accurate or to be in error by not more than the Permitted Variance, previous recordings of such Meter shall be considered accurate in computing deliveries hereunder, but if in error, such Meter shall be promptly adjusted to record correctly. If, upon testing, any Meter shall be found to be in error by an amount exceeding the Permitted Variance, then such Meter shall be promptly adjusted to record properly and any previous recordings by such Meter shall be adjusted in accordance with Section 6.2.

Section 6.3.4 Payment Adjustments. If, upon testing, any of TPC’s Meters is found to

be in error by more than the Permitted Variance, the payments for Energy made since the previous test of such Meter shall be adjusted pursuant to Section 5.6.3 to reflect the corrected measurements determined pursuant to Section 6.2.

Section 6.3.5 Monthly Readings. Seller shall ensure that readings of all Meters shall be

conducted on a monthly basis and shall promptly notify Buyer of the time and date of such readings.

     

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ARTICLE 7

INDEMNIFICATION; LIMITATION OF LIABILITIES

Section 7.1 Indemnification of Buyer. Subject to the limitations set forth in Section

7.3.4, Seller hereby agrees to indemnify and hold harmless Buyer and its shareholders, officers, directors, agents and employees (collectively, “Buyer’s Indemnitee”) from and against all losses, liabilities, damages, demands, claims, suits, actions, judgments or causes of action, assessments, interest, penalties, costs and expenses, including, without limitation, attorneys’ fees, and expensed (whether suit is instituted or not and, if instituted, whether at trial or appellate levels) (collectively “Damages”) asserted against, resulting to, imposed upon, or incurred or suffered by Buyer’s Indemnitee on account of any claim by a Person not a Party to this Agreement arising out of , caused by or resulting from the breach by Seller, or gross negligence or willful misconduct in the performance of its obligations hereunder; provided, that such indemnification does not apply to the extent that such Damages arise from Buyer’s Indemnitee’s willful misconduct or gross negligence.

Section 7.2 Indemnification of Seller. Subject to the limitations set forth in Section 7.3.4, Buyer shall indemnify and hold harmless Seller and its shareholders, and its officers, directors, agents and employees (collectively, “Seller’s Indemnitee”) from and against all Damages asserted against, resulting to , imposed upon, or incurred or suffered by Seller’s Indemnitee on account of any claim by a Person not a Party to this Agreement arising out of, caused by or resulting from the death of or injury to any person resulting from the breach by Buyer, or gross negligence or willful misconduct in the performance of its obligations hereunder; provided, that such indemnification does not apply to the extent that such Damages arise from Seller’s Indemnitee’s willful misconduct or gross negligence.

Section 7.3 Indemnity Claim Procedures. Section 7.3.1 Notice of Claim. If any Person not a Party to this Agreement shall make

any demand or claim or file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result in Damages to any Party pursuant to the indemnification provisions of this Agreement, then in any such event, within ten (10) days after notice by the indemnified Party (the “Notice”) to the indemnifying Party of such demand, claim or lawsuit provided, however, that the failure to give the Notice shall not relieve the indemnifying Party of its obligations under this Agreement unless, and only to the extent that, such failure causes the Damages for which the indemnifying Party is obligated to provide the indemnity hereunder to be greater than they would otherwise have been had the indemnified Party given prompt notice under this Agreement), the indemnifying Party shall have the option, at its sole cost and expense, to retain counsel for the indemnified Party (which counsel shall be selected by or be reasonably satisfactory to the indemnified Party), to defend any such demand, claim or lawsuit; provided, that if the named parties to any such proceeding (including any impeded parties) include both the indemnifying Party and the indemnified Party, or if the indemnifying Party proposes that the same counsel represent both the indemnified Party and the indemnifying Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the indemnified Party shall have the right to retain its own counsel at the cost and expense of the indemnifying Party. If the indemnifying Party shall fail to respond within twenty (20) days after receipt of the Notice, the indemnified

     

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Party may retain counsel and conduct the defense of such demand, claim or lawsuit, as it may in its sole discretion deem proper, at the sole cost and expense of the indemnifying Party.

Section 7.3.2 Access to Records. The indemnified Party shall provide reasonable

assistance to the indemnifying Party and provide access to its books, records and personnel as the indemnifying Party reasonably request in connection with the investigation or defense of the indemnified Damages. Upon receipt of reasonable supporting documentation, the indemnifying Party shall promptly reimburse the indemnified Party for out-of-pocket costs and expenses in incurred by the latter in providing the requested assistance.

Section 7.3.3 Payment of Claims. With regard to Damages for which indemnification is

payable under this Agreement, such indemnification shall be paid by the indemnifying Party upon: (i) the entry of a judgment against the indemnified Party and the expiration of any applicable appeal period; (ii) the entry of an unappealable judgment or final appellate decision against the indemnified Party; or (iii) a settlement with the consent of the indemnifying Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, provided that there is no dispute as to the applicability of indemnification, expenses of counsel to the indemnified Party shall be reimbursed on a current basis by the indemnifying party if such expenses are a liability of the indemnifying Party as provided under Section 7.3.1.

Section 7.3.4 Exclusion of Consequential Damages. Neither Party, its Affiliates nor their

respective employees, officers, directors, agents, suppliers or subcontractors shall be liable suppliers or subcontractors, whether based in contract, in tort (including negligence and strict liability), under warranty or otherwise, for any special, indirect, incidental, exemplary or consequential loss or damage whatsoever, including without limitation, loss of use, opportunity or profits, replacement power costs, damages to good will or reputation, or punitive damages. The inclusion of this provision has been a material inducement for each of the Parties to enter into this Agreement.

     

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ARTICLE 8

REPRESENTATIONS AND WARRANTIES

Section 8.1 seller’s Representations and Warranties Section 8.1.1 Organization. Seller represents and warrants that it is a Ghanaian

company duly organized, validly existing and in good standing under the laws of the Republic of Ghana, is qualified to do business and is in good standing under the laws of each jurisdiction where its activities require such qualification (except where the failure to so qualify would not have a material adverse effect on its performance hereunder), and that it has full power, authority and legal right to enter into and perform its obligations under this Agreement.

Section 8.1.2 Authorization. Seller represent and warrants that the execution, delivery

and performance of this Agreement have been duly authorized and that this Agreement constitutes the legal, valid and binding obligation of Seller in according with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforcement is considered in equity or at law).

Section 8.1.3 No Defaults. Seller represents and warrants that the execution, delivery

and performance by seller of this Agreement will not conflict with, constitute a default under or result in a breach or violation of the company regulations, corporate charter or by-laws of Seller or any material agreement to which Seller is a Party or by which it or any of its property is bound.

Section 8.2 Buyer’s Representations and Warranties. Section 8.2.1 Organization. Buyer represents and warrants that it is a (……………)

company, duly organized, validly existing and in good standing under the laws of the Republic of Ghana, is qualified to do business and is in good standing under the laws of each jurisdiction where its activities require such qualification (except where the failure to so qualify would not have a material adverse effect on its performance hereunder), and that it has full power, authority and legal right to enter into and perform its obligations under this Agreement.

Section 8.2.2 Authorization. Buyer represents and warrants that the execution, delivery

and performance of this Agreement have been duly authorized and that this Agreement constitutes the legal, valid and binding obligation of Buyer in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforcement is considered in equity or at law).

Section 8.2.3 No Defaults. Buyer represents and warrants that the execution, delivery

and performance by Buyer of this Agreement will not conflict with, constitute a default under or result in a breach or violation of the company regulations, corporate charter or by-laws of Buyer or any material agreement to which Buyer is a Party or by which it or any of its property is bound.

     

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ARTICLE 9

DEFAULT AND REMEDIES

Section 9.1 Seller Event of Default. The occurrence of any one or more of the

following events (other than due to a Buyer Event of Default or, in respect of Clauses (i), (ii) and (iii) below, the occurrence of a Force Majeure Event) shall constitute an event of default by Seller hereunder (“Seller Event of Default”):

(i) The cessation of construction or operation of the Project for ninety (90)

consecutive days other than due to a Force Majeure Event or requirement of a Governmental Authority; provided, however, that no Seller Event of Default shall be deemed to have occurred under this Clause (i) if (A) Seller demonstrates to Buyer’s reasonable satisfaction that TPC is using commercially reasonable best efforts to recommence construction or operation as soon as reasonably practicable in the circumstances, or (B) the Project Financiers do not consent to such construction or operation;

(ii) Failure by TPC to proceed diligently with work to construct, repair, rebuild or replace destroyed or damaged material portions of the Project; provided, however, that no Seller Event of Default shall be deemed to have occurred under this Clause (ii) if (A) Seller demonstrates to Buyer’s reasonable satisfaction that TPC is diligently pursing a rectification plan that has a reasonable probability of success, or (B) the Project Financiers do not consent to such construction, repair, rebuilding or replacement;

(iii) Material failure by Seller to perform any other material provision of this Agreement (other than a failure to make available all or a portion of Promised Capacity or Energy), where such failure has a material adverse effect on Buyer, and (A) such failure continues for a period of sixty (60) days after delivery to Seller of written notice of such non-performance, or (B) if Seller shall have commenced within such sixty (60) day period and shall thereafter proceed with all due diligence to cure such failure, but fails to cure such failure within the shorter of three hundred sixty-five (365) days of the Buyer’s written notice of non-performance and such shorter period as is reasonably necessary for Seller to cure the same with all due diligence;

(iv) If by order of a court of competent jurisdiction, a receiver or administrator or liquidator or trustee of Seller or of any of the property of Seller shall be appointed, and such receiver or administrator or liquidator shall not have been discharged within a period of (ninety (90) days; or if by decree of such a court, a moratorium (whether provisional or not) shall be granted in respect of Seller, or Seller shall be adjudicated bankrupt or insolvent or any substantial part of the property of Seller shall have been sequestered, and such decree shall have continued undischarged and unstayed for a

     

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period of (ninety (90)) days after the entry thereof; or if a petition to grant a moratorium or to declare bankruptcy or to reorganize Seller in connection therewith pursuant to any of the provisions of applicable bankruptcy law, as it now exists or as it may hereafter be amended, modified or supplemented, shall be filed against Seller and shall not be dismissed within (ninety (90)) days after such filing;

(v) If Seller shall file a voluntary petition for a moratorium or for bankruptcy under any provision of any moratorium or bankruptcy law of any applicable jurisdiction or shall consent to the filing of any moratorium, bankruptcy or reorganization petition against it under any similar law; or, without limitation of the generality of the foregoing, if Seller shall file a petition or answer or consent seeking relief or assisting in seeking relief in a proceeding under any of the moratorium or bankruptcy provisions of any Applicable Law, as now or hereafter in effect, or an answer admitting the material allegations of a petition filed against it in such a proceeding; or if Seller shall make a general assignment for the benefit of its creditors; or if Seller shall admit in writing its inability to pay its debts generally as they become due; or if Seller shall consent to the appointment of a receiver or receivers, administrator or administrators, or trustee or trustees, or liquidator or liquidators of it or of all or any part of its property; or

(vi) If Seller fails to make payment of any amounts due and payable to Buyer under this Agreement within five (5) days of receipt of written notice (excluding, for the avoidance of doubt, the initial invoice) from the Buyer stating that an Event of Default will arise unless the amount is paid within five (5) days.

Section 9.2 Buyer Event of Default. The occurrence of any one or more of the following events (other than due to a seller event of default under the ECG Agreement or, in respect of Clause (ii) below, due to the occurrence of a Force Majeure Event) shall constitute an event of default by Buyer hereunder (“Buyer Event of Default).

i) If Buyer fails to make payment of any amounts due and payable to Seller under this Agreement within five (5) days of receipt of written notice (excluding, for the avoidance of doubt, the initial invoice) from the Seller stating that an Event of Default will arise unless the amount is paid within five (5) days.

ii) Failure by Buyer to fully perform any other material provision of this Agreement, where such failure has a material adverse effect on Seller, and (A) such failure continues for a period of sixty (60) days after delivery to Buyer of written notice of such non-performance or (B) Buyer shall have commenced within such sixty (60) days and shall thereafter proceed with all due diligence to cure such failure, but fails to cure such failure within

     

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the shorter of three hundred and sixty-five (365) days of the Seller’s written notice of non-performance and such shorter period as is reasonably necessary for Buyer to cure the same with all due diligence;

iii) If by order of a court of competent jurisdiction, a receiver or administrator or liquidator or trustee of Buyer or of any of the property of Buyer shall be appointed, and such receiver or administrator or liquidator or trustee shall not have been discharged within a period of ninety (90)days; or if by decree of such a court, a moratorium (whether provisional or not) shall be granted in respect of Buyer, or Buyer shall be adjudicated bankrupt or insolvent or any substantial part of the property of Buyer shall have been sequestered, and such decree shall have continued discharged and unstayed for a period of [(ninety (90)] days after the entry hereof; or if a petition to grant a moratorium or to declare bankruptcy or to reorganize Buyer in connection therewith pursuant to any of the provisions of applicable moratorium or bankruptcy law, as it now exists or as it may hereafter be amended, modified or supplemented, shall be filed against Buyer and shall not be dismissed within [ninety (90)] days after such filing; or

iv) If Buyer shall file a voluntary petition for a moratorium or for bankruptcy under any provision of any moratorium or bankruptcy law of any applicable jurisdiction or shall consent to the filing of any moratorium, bankruptcy or reorganization petition against it under any similar law; or, without limitation of the generality of the foregoing, if Buyer shall file a petition or answer or consent seeking relief or assisting in seeking relief in a proceeding under any of the moratorium or bankruptcy provisions of any Applicable Law, as now or hereafter in effect, or an answer admitting the material allegations of a petition filed against it in such a proceeding; or it Buyer shall make a general assignment for the benefit of its creditors; or if Buyer shall admit in writing its inability to pay its debts generally as they become due; or if Buyer shall consent to the appointment of a receiver or receivers, or administrator or administrators, or trustee or trustees, or liquidator or liquidators of it or of all or any part of its property.

Section 9.3 Remedies for Breach. Upon the occurrence and during the continuation of any Event of Default hereunder, the Party not in default shall have the right upon serving the defaulting Party with a notice specifying the Event of Default:

i) to suspend performance of its obligations and duties hereunder upon written notice to the defaulting Party (and, during any period of suspension in respect of a Buyer Event of Default, Seller may sell Promised Capacity or Energy it would otherwise have sold to Buyer to any third party.

     

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ii) to terminate this Agreement upon one hundred and eighty (180) day’s written notice to the defaulting Party (Provided, that if the Event of Default is cured at any time prior to the delivery of a termination notice in accordance with Section 9.3. (ii), then the non-defaulting Party shall have no right to terminate this Agreement in respect of such cured Event of Default); and

iii) to pursue any other remedy given this Agreement, or now or hereafter existing, at law or in equity or otherwise;

provided, however, that in the case of Seller Event of Default, Buyer shall provide TPC with notice of such Seller Event of Default and TPC shall have the right (but not the obligation) for one hundred and eighty (180) days after receipt of such notice either to cure Seller Event of Default on behalf of Seller, or, upon payment to Buyer of amounts due from Seller but not paid by Seller (if any), to assume, or cause its designee or a lessee or purchaser of the Plant to assume, in writing, all of the rights and obligations of Seller under this Agreement arising after the date of such assumption. In the event that TPC or its designee assumes this Agreement in accordance with this Section 9.3: (x) Seller shall be released and discharged from any obligations to Buyer arising or accruing hereunder from and after the date of such assumption; and (y) Buyer shall continue this Agreement with TPC or its designee, as the case may be, substituted in the place of Seller hereunder.

Section 9.4 Specific Performance and Injunctive Relief . If, due to an actual or

threatened material breach of any material obligation or an actual or threatened Seller Event of Default or Buyer Event of Default, a Party is suffering irreparable harm for which monetary damages are inadequate, such Party shall be entitled to seek a decree compelling specific performance with respect to, and shall be entitled to seek a decree compelling specific performance with respect to, and shall be entitled to seek the restraint by injunction of, such actual or threatened breach of any material obligation or actual or threatened Seller Event of Default or Buyer Event of Default under this Agreement without the necessity of filing any bond expect when otherwise required, and not waivable, under Applicable Law. The Parties agree that with respect to any action for specific performance or restraint by injunction, all expenses incurred in such proceedings, including but not limited to reasonable counsel fees, shall be paid upon the final decision in such proceedings by the Party against whose position the court decided.

     

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ARTICLE 10

INSURANCE Section 10.1 Seller’s Insurance. Seller shall obtain and maintain in force the following

insurance policies (which shall be written on occurrence policy forms) during that portion of the Term that is after the expiration or termination, as the case may be, of all of the Financing Documents.

a) Global comprehensive or general risk commercial insurance with the

combination of risk of material damage and injuries, with a combined and one-time risk limit of [US$............] per each occurrence. Said insurance shall include, the but not be limited to, specific coverage of contractual risk, including the indemnification provisions of section 7.1, full risk of damages to property, risk of bodily injuries, coverage against risk of explosions and building collapses, wherever applicable, risk of protection of ships or indemnification.

b) Insurance of comprehensive automotive driving brisk with coverage of combined bodily injuries and properties limits of [US$............] per occurrence, covering owned, rent third-part under sectio1o.auto automobiles; and

c) General risk insurance with an individual limit of at least [US $ per………..] [e occurrence in excess of insurance limit stipulated in paragraph a)and b mentioned above.

Section 10.2 Endorsement. Seller shall ask for the following endorsements from its insurers with respect to coverage required under section 10.1 (to the extent appropriate to each such policy.

a) Buyer, its officers ,directors, agents and employee are additional insured under the policy.

b) The insurance is primary with respect to the interest of Buyer. Its officers,

directors, agent and employee and any other insurance maintained for buyers is in excess and not contributory with such insurance.

c) The insurance waive all rights of subrogation against Buyer, its officers,

directors, agents, and employees; and

d) Regardless of any provision of the policy, the policy may not be canceled or renewed or materially altered by the insurer without written notice, thirty (30) days in advance, given to Buyer.

     

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Section 10.3 Certificates. Seller shall have its insurers and agents provide Buyer with insurance certificates evidencing the above-mentioned policies and endorsements.

     

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ARTICLE 11

FORCE MAJEURE

Section 11.1 Force Majeure. Neither of the Parties shall be responsible for, or

liable for breach of contract for, any non-performance or delay in the performance of its respective obligations as described herein or hereunder owning to the occurrence of a Force Majeure Event, provided, that:

a) The Party failing to comply sends to the other Party, as soon as practicable, a written notice describing the particulars of the Force Majeure Event;

b) The suspension of operations or reduction in production output or other non-performance or delay in performance is not of greater extent or duration than is reasonably necessary given the nature and scope of the Force Majeure Event; and

c) The Force Majeure Event has not been caused by noncompliance, on the part of the Party experiencing the Force Majeure Event, with any Governmental Approval, or by the gross negligence of, or breach hereof by, such Party.

Section 11.2 Mitigation of Force Majeure. Each Party suffering a Force Majeure Event

shall take, or cause to be taken, such reasonable action as may be necessary to void, or nullify, or otherwise to mitigate, in all material respects, the effects of such Force Majeure Event. The Parties shall take all reasonable steps to ensure resumption of normal performance under this Agreement after the cessation of any Force Majeure Event. When the Party experiencing the Force Majeure Event can resume the performance of its obligations under this Agreement, said Party shall notify the other Party thereof, in writing, and shall thereafter resume such performance.

Section 11.3 Payment Obligations Unaffected. No event, whether or not it constitute a Force Majeure Event, shall excuse a Party from the obligation to make any payment due and payable under this Agreement arising prior to the occurrence of such Force Majeure Event.

     

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ARTICLE 12

TERMINATION

Section 12.1 Termination Due to Failure of Conditions Precedent. If the conditions precedent in Section 3.2.1 or 3.2.2, as the case may be, have not been satisfied or waived by the respective date set forth therein, then Seller, in respect of Section 3.2.1 or Buyer, in respect of Section 3.2.2., as the case may be, shall have the right to terminate this Agreement without cost or penalty upon not less than thirty (30) days’ prior written notice to the other Party.

Section 12.2 Seller’s Termination Rights. Seller may terminate this Agreement without cost or penalty at any time prior to the Financial Closing Date by delivery to Buyer of twenty days’ prior written notice stating the TPC has determined, in its sole discretion, that the Project is not financially viable (which determination may include, but shall not be limited to, a determination that project financing cannot be obtained for the Project).

Section 12.3 Discharge of Obligation Upon Termination. In the event of termination of this Agreement, upon the payment of any past due amounts, the Parties shall be released and discharged from any obligations arising or accruing hereunder from and after the date of such termination (other than the indemnity obligations under Article 7 and obligations arising upon termination, including, without limitation, the obligation to pay any amounts in respect of such termination or otherwise hereunder, and any other obligation which survives the termination hereof). Termination of this Agreement shall not discharge or relieve either Party from any indemnity obligations under Article 7 with respect to any event occurring prior to the termination of this Agreement, and from their respective obligations under Section 15.2.

     

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ARTICLE 13

DISPUTE RESOLUTION

Section 13.1 Senior Representatives Discussion, Arbitration. Any Dispute between the Parties under this Agreement shall be referred as promptly as practicable to senior representatives of each of the Parties designated by such Party for discussion on an informal basis. In the event the senior representatives are unable to reach agreement within seven (7) days of referral of a Dispute to them, or such longer period as they may agree upon, then either Party may thereafter refer the Dispute to arbitration on written notice to the other Party.

Section 13.2 Arbitration of Technical Disagreements. Any Technical Disagreement between the Parties under this Agreement that the Parties are unable to resolve informally shall be submitted by the disputing Party to the Technical Inspector within twenty-four (24) hours of the time written notice of the Technical Disagreement is received by one of the Parties from the other, or such other period as the Parties may jointly agree upon, and shall be resolved in accordance with the arbitration procedures set forth in this Section 13.2. Such submission shall be in the form of written statements of position by one or both of the Parties, which statement shall be provided to both the other Party and the Technical Inspector, with each Party having an opportunity to respond to such written statements of the other Party and any requests for statements or information by the Technical Inspector; provided, however, that all such submissions by the Parties shall be made within forty-eight (48) hours of receipt of the initial submissions of the Technical Disagreement to the Technical Inspector or of the request and, notwithstanding any provision herein to the contrary, any unresolved disputed items shall be determined by the Technical Inspector within forty-eight (48) hours of receipt by the Technical Inspector of the Parties’ submissions of information. The decision of the Technical Inspector shall be binding on each of the Parties and may be enforced by either Party as permitted under Section 13.3.2. The Parties shall each bear their own costs with respect to the arbitration of any Technical Disagreement. Section 13.3 Procedures.

Section 13.3.1 Selection of Arbitrators. Unless the Parties agree otherwise, any Dispute not resolved informally pursuant to Section 13.1 shall be resolved by final and binding arbitration in London, England in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC”). There shall be three arbitrators, each of whom shall be neutral, independent and impartial. Each Party shall nominate one arbitrator and the two Party-nominated arbitrators shall endeavor to agree on a third arbitrator; provided, however, that if either Party fails to nominate an arbitrator, or if the Party-nominated arbitrators are unsuccessful in selecting an arbitral chairperson within sixty (60) days of nomination of the first arbitrator, the arbitrators not then selected shall be appointed in accordance with the ICC rules. The language to be used in the arbitral proceeding shall be English. The arbitrators shall render a written award stating the reasons for the decision. Judgment on an arbitral award may be entered by any court of competent jurisdiction, or application may be made to such a court for judicial acceptance of the award and any appropriate order including enforcement. Notwithstanding the foregoing, the remedies set forth in Section 9.4 shall be available to the

     

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Parties by judicial proceedings at any time and, for such purpose and for the purpose of enforcing any arbitral award or decision, the Parties hereby submit to the exclusive jurisdiction and venue of the courts in England and Wales.

Section 13.3.2 Consent. Buyer and Seller each hereby consents to the submission of

any Dispute or Technical Disagreement for settlement by final and binding arbitration in accordance with Sections 13.2 and 13.3. Such consent shall satisfy the requirement for an “agreement in writing” pursuant to Article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitration Awards, done at New York on June 10, 1958.

Section 13.3.3 Award Enforcement. Buyer and Seller each undertakes to carry out without delay the provisions of any arbitral award or decision, and each agrees that any such award or decision may be enforced by any competent tribunal.

Section 13.3.4 Continuing Performance. During the continuation of any Dispute or Technical Disagreement arising under this Agreement the Parties shall continue to perform their respective obligations under this Agreement, including prompt and timely payment of all amount due hereunder, until a final non-appealable resolution is reached.

     

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ARTICLE 14

ASSIGNMENT, ASSUMPTION AND OTHER PROVISIONS

Section 14.1 Assignment. Subject to Section 14.2, neither Party shall assign any or all

of its rights and obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld.

Section 14.2 Assumption Rights of TPC and the Project Financiers.

Buyer hereby acknowledges and agrees that Seller shall collaterally assign all of its rights and obligations hereunder and in respect of the Project to TPC or the Project Financiers and that, upon a Seller event of default under the ECG Agreement, TPC or the Project Financiers may (but shall not be obligated to) assume, or cause its designee or a new lessee or purchaser of the Project to assume, all of the interests, rights and obligations of Seller thereafter arising under this Agreement. If the rights and interest of Seller in this Agreement shall be assumed, sold or transferred as hereinbefore provided, and the assuming party shall agree in writing to be bound by and to assume the terms and conditions of this Agreement and any and all obligations to Buyer arising or accruing thereunder, except with respect to obligations arising or accruing hereunder prior to the date of such transfer (as to which Seller shall remain obligated), Seller shall be released and discharged from the terms and conditions hereof and each such obligation hereunder, and Buyer shall continue this Agreement. The provisions of this Section 14.2 are for the benefit of TPC and the Project Financiers as well as the Parties, and shall be enforceable by TPC and the Project Financier as express third-party beneficiaries hereof. It TPC or its designee or a Project Financier or its designee or the Project Financier or its designee shall have all of the rights, liabilities and obligations of Seller provided in this Agreement other than those arising or accruing prior to the date such Person became a party hereto.

     

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ARTICLE 15

MISCELLANEOUS Section 15.1 Communications. Any written communication or notification that is

required to be made in accordance with this Agreement may be made by the following means: by action of court officer, international messenger services (such as FedEx and DHL), or telecopier. Said communications must be sent to the Parties at their respective domiciles, directed to the persons indicated below. Except where agreed otherwise, any notice sent by one Party shall be considered as received by the other upon presentation of a document attesting to the fact that said notice was properly sent.

If to Seller: (ECG Address) with a copy to: Tema Power Company Limited c/o KMR Power (Caymans) Ltd. 1000 Wilson Blvd., Suite 900 Arlington, VA 22209 United States of America Tel: 703-247-3500 Fax: 703-276-1515 and

Any of the Parties may, by written notice sent to the other Party, change their domicile or the representative or address to which said notices and communications are to be sent. Section 15.2 Confidentiality and Publicity. Except as set forth in this Section 15.2 and with respect to communications with TPC or the Project Financiers, Buyer and Seller shall hold in confidence for the Term of this Agreement and for a period of either five (50 years from the date of termination, or two (2) years from the scheduled date of expiration hereof, as the case may be, any information supplied by either Party to the other. Each Party shall inform its subcontractors, suppliers, vendors and employees of its obligations under this Section 15.2. Notwithstanding the foregoing, Buyer and Seller may disclose the following categories of information or any combination thereof:

i) information that was in the public domain prior to receipt thereof by such Party or that subsequently becomes part of the public domain by publication or otherwise except by a wrongful act of such Party;

ii) information that such Party can show was lawfully in its possession prior to receipt thereof from the other Party through no breach of any confidentiality obligation;

iii) information received by such Party from a their party having no obligation of confidentiality with respect thereto;

     

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iv) information at any time developed independently by such Party providing it is not developed from otherwise confidential information;

v) information disclosed pursuant to and in conformity with the law or a judicial order or in connection with any legal proceedings or under the arbitration procedure described in Article 13, and

vi) information required to be disclosed under securities laws applicable to publicly traded companies and their subsidiaries.

Notwithstanding the foregoing, either Seller or Buyer may publish information regarding this Agreement with the express written consent of the other Party, which consent shall not be unreasonably withheld. Neither Party shall issue any press or publicity release or otherwise release, distribute or disseminate any material information for publication concerning this Agreement or the participation of the other Party in the transactions contemplated hereby without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, however, that such limitation on disclosure shall not apply to disclosures or reporting required by a Governmental Authority if the Party seeking disclosure informs the other Party of the need for such discloser and if reasonably requested by the other Party, seeks, through a protective order or other appropriate mechanism, to maintain the confidentiality of confidential information. Section 15.3 Legalization Expenses. If applicable, the expenses for registration and/or legalization of this Agreement including any “stamp” or similar tax or recording fee, shall be paid in equal parts by the Parties. Section 15.4 Governing Law. This Agreement shall be governed by and interpreted in accordance with the positive laws of England and Wales without regard to choice of law rules thereof. Section 15.5 Rules of Interpretation. Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement shall have the meanings specified in Article 1; (b) the singular shall include the plural; (c) references to “Articles,; “Sections,” “Clauses”, “Schedules,” “Annexes” “Appendices” or “Exhibits” (if any) shall be to articles, sections, clauses, schedules, annexes, appendices or exhibits (if any) of this Agreement; (d) all references to a particular entity shall include a reference to such entity’s successors and permitted assigns; (e) the words “herein”, “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; (f) all accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles in the United States of America, consistently applied; (g) references to this Agreement shall include a reference to all appendices, annexes, schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time; and (h) references to any agreement, document or instrument shall mean a reference to such agreement, document or instrument as the same may be amended, modified, supplemented or replaced from time to time. The Parties collectively have prepared

     

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this Agreement, and none of the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof. Section 15.6 Modifications in Writing. This Agreement may be modified only by written agreement of the Parties. Section 15.7 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes in full all other agreements or documents between the Parties, whether oral or written. Section 15.8 No Waiver. The failure of any of the Parties to insist, on one or more occasions, on the strict compliance with any of the provisions of this Agreement, or to avail itself of or repudiate any of its rights under the same, shall not be interpreted as a waiver of any of the provisions of this Agreement, or of any right contained herein, which shall remain in effect and valid. Either Party may waive a breach by the other Party; provided, however, that no waiver by or on behalf of either Party of any breach of any of the covenants, provisions, conditions, restrictions or stipulations contained in this Agreement shall take effect or be binding on such party unless the waiver is reduced to writing and executed by such Party, and any such waiver shall be deemed to extend only to the particular breach waived and shall not limit or otherwise affect any rights that such Party may have with respect to any other or future breach.

Section 15.9 No Agency. Except as otherwise expressly provided herein, this Agreement shall not be interpreted as creating an association, agency relationship, company or trust, or to impose any corporate or trust duties on any of the Parties or TPC. None of the Parties shall have the right, authority or power to enter into any agreement of understanding or to act in the name of, or act as or be the agent or representative of, or in any other way commit, the other Party or TPC. Section 15.10 Surviving Provisions. The cancellation, expiration or anticipatory termination of this Agreement shall not relieve the Parties of any obligations that, expressly or by their nature, should survive said cancellation, expiration or termination, including without limitation provision relating to guarantees, solutions, indemnification obligations and dispute resolution. Section 15.11 Severability. The invalidity of any provision of this Agreement shall not affect the validity or excitability of any other clause contained herein. Section 15.12 Additional Documents. Each Party shall, at the cost of the other Party, execute such additional documents including, without limitation, a consent to assignment, legal opinions, estoppels letters or similar documents, and shall cause such additional actions to be taken as may be reasonably required by the other Party or TPC or, in the judgment of any Project Financier, be necessary or desirable, to effect or evidence the provisions of this Agreement and the transactions contemplated hereby. Section 15.13 Counterparts. This Agreement may be executed in any number of counterparts, which together shall constitute but one and the same instrument and each counterpart shall have the same force and effect as if they were one original.

     

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Section 15.14 No Other Third-Party Beneficiaries. This Agreement is created sole for the benefit of the Parties and their successors and permitted assigns, and nothing is this Agreement shall be interpreted to create any obligation, standard of care with respect to, or responsibility for, any person who is not a Party other than (i)TPC, and (ii) each of the Project Financiers.

Section 15.15 Headings. All indices, titles, subject headings, section titles and similar

items are provided for the purpose of reference and convenience and are not intended to be inclusive, definitive or to affect the meaning, content or scope of this Agreement.

Section 15.16 English The official language periling for the administration or

interpretation of this Agreement is English, in which the Agreement has been drawn up an in which communications shall be made. Except as otherwise specifically agreed to by the Parties, all of the reports, technical information, certificates, and other documents concerning the Agreement or the Project that are handed over by either of the Parties shall be written in English.

     

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. SELLER COMPANY BUYER COMPANY By………………………………………… By………………………………………. Title…………………………………….. Title……………………………………