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

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

13.11         Loss

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

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

13.12         Third Party Loss

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

13.13         Freedom of Information

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

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

PART 6: NUCLEAR, LIABILITY AND INSURANCE

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

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

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

15.3.1         by that Nuclear Indemnified Party; or

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

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

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

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

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

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

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

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

Concurrent Claims

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

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

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

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

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

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

16.3     Limitation of Liability

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

(A)      special, indirect or consequential loss;

(B)       loss of profit;

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

(D)      increased costs or expenses;

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

(F)       punitive damages,

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

16.3.2         Subject to Clause 16.3.3:

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

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

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

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

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

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

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

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

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

16.4     General

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

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

16.5     Breach of warranty

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

16.5.1         If:

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

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

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

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

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

16.5.3

(A)      Subject to Clause 16.5.4, the RoL shall indemnify and hold harmless the PCO, the Strategic Investor, Global Nuclear Fuel-Americas, LLC and any Associated Company of the Strategic Investor which is party to an Ancillary Contract (each an "Indemnified Person") from and against any and all Claims (whether or not successful, compromised or settled) which may be instituted, made, threatened, alleged, asserted or established (each a "Relevant Claim") from time to time in any jurisdiction against or otherwise involving an Indemnified Person and from all Losses which an Indemnified Person may suffer or incur from time to time (including all Losses incurred in relation to any amounts clawed back or otherwise being required to be returned under applicable Law and/or in disputing any Relevant Claim and/or in bringing a claim under this Clause and/or in seeking advice regarding any Relevant Claim or in any way related to or in connection with the indemnity in this Clause), in any such case arising out of, based upon or in connection with, whether directly or indirectly, any:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16.5.9

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

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

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

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

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

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

PART 7: TERMINATION

19.1     Termination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20.1     Events of RoL Event

Each of the following events shall be a RoL Event:

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

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

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

20.1.2         the occurrence of a Pre-FID Fundamental Change;

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

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

20.2     Termination for a RoL Event

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

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

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

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

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

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

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

20.3     Consequences of a RoL Event

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

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

20.4     Mitigation following a RoL Event

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

21.1     Events of PCO Default

Abandonment shall be the only PCO Default.

21.2     Termination for PCO Default

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

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

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

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

21.3     Consequences of a PCO Default

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

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

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

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

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

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

21.4     Other Consequences of Termination for PCO Default

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

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

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

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

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

22.1     Events of Strategic Investor Default

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

Breach of Strategic Investor Obligations

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

Winding Up of the Strategic Investor

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

Buy Out of the Strategic Investor

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

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

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

22.2     Termination of the Strategic Investor's rights and obligations

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

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

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

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

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

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

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

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

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

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

22.3     Consequences of Termination

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

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

23.1     Termination by Agreement of the Parties

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

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

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

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

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

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

23.4     RoL Call Option on Non-Default Termination

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

23.5     Consequences of Non-Default Termination

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

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

24.1     Damages Payable by the RoL in respect of Wasted Costs

24.1.1           If:

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

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

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

then:

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

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

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

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

24.2.1           If:

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

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

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

24.2.2           If under Clause 24.2.1:

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

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

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

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

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

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

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

24.3     Disputes

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

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

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

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

26.1     PCO to deliver Invested Capital Statement

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

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

26.2     Calculation and notification of Mandatory Transfer Price

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

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

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

where:

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

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

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

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

"Return Amount" means if:

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

e x f x g

where:

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

f =        is the Margin; and

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

(B)       otherwise, zero,

and

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

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

26.3     Disputing the Mandatory Transfer Price

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

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

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

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

26.4     Payment of the Mandatory Transfer Price

26.4.1           The RoL shall pay:

(A)      the Mandatory Transfer Price; and

(B)       the Supplementary Margin,

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

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

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

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

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

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

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

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

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

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

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

26.5     Termination and further provisions

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

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

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

PART 8: GENERAL PROVISIONS

27.1     Termination of the Concession Agreement

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

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