AGREEMENT OF BOT PROJECT.doc

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1、AGREEMENT OF BOT PROJECTThis Agreement is made and entered into by and between the government of_(hereinafter called B) represented by_(hereinafter called A) and _Corporation, a company duly organized and existing under the laws of the Peoples Republic of China with its principal office at_(hereinaf

2、ter called C). Whereas, A and C concluded the Memorandum Concerning _Project on the _and C had been given Exclusive Right from B to carry out investigation and implement _Project (hereinafter called the Project) by way of joint financing between C and B (so called BOT). Whereas, the loan agreement,

3、guarantee agreement, letter of guarantee, etc. shall constitute integral components of this Agreement. The Projects installed capacity is _. Now therefore, the parties hereby agree as follows: 1. Definition and Interpretation Project means the planning, feasibility study, design and engineering, con

4、struction, equipping, completion, testing, commissioning and operation of the infrastructure project. Project Cost means the cost specified in Clause 3. Operation Period means the period specified in Clause 10.1 from the starting date of commercial operation of the infrastructure project.Completion

5、Date means the day upon which C certifies that the infrastructure project has successfully completed its testing and can start Operation Period. Force Majeure shall have the meaning specified in Clause 16. Project Scope means the scope of supply and services of C in connection with the execution of

6、the Project as described in Annex 2. Site means the site for the infrastructure project including _, special roads, and other areas for construction as specified in Annex 2. Transfer Date means the day following the last day of the Operation Period. New Company means the Company to be established be

7、tween C and _entity as specified in Clause 5. Investment Agreement means the Agreement on Mutual Encouragement and Protection of Investment between the Government of the Peoples Republic of China and the Government of the _. Exclusive Right means the special power granted to C or New Company in the

8、Memorandum, Agreement and its annex. Day means the solar calendar day. 2. The Project 2.1 The Project shall be named as _. 2.2 The infrastructure project is intended to be located at _. The exact location of the infrastructure project may be adjusted at the stage of detailed design in consideration

9、of the site condition. 2.3 The Project shall be implemented on Building, Operation and Transfer Basis. 2.4 The Project shall be composed of _, _, _, the details of which shall be as attached Annex 2 - Scope of the Project. 2.5 The final feasibility study report and detailed design after acceptance o

10、f B and C shall form basis for the development and completion of the Project. 3. The Project Cost 3.1 The project cost is $_, interest of the construction period is $_, the total project cost is $_, and the details of which are shown in Annex 3 - Project Cost. 3.2 The total project cost shall compri

11、se but not limited to the following costs and the details of the project cost shall be as attached Annex 3 - Project Cost: 1) Cost for feasibility study, design and engineering and other consulting services; 2) Cost for construction and installation; 3) Cost for purchasing equipment and materials; 4

12、) Cost for administration including overseas expenses; 5) Overhead and miscellaneous expenses; 6) Contingencies; 7) Interest during the construction period (_% per annum plus bank commission); 8) Premium for construction insurance and export credit insurance. 3.3 The Project Cost shall be based on t

13、he feasibility study report and in case of a substantial variation in investment arising from geologic reasons, the additional part to the Project Cost shall be approved by B. An additional investment agreement or contract should be concluded between B and C. 4. Responsibilities for Project Executio

14、n 4.1 C shall be responsible for the following provided that if and after New Company is established, responsibilities shall be transferred to New Company and be shared by the members of New Company: 1) the design and engineering, procurement, construction and commissioning of the Project; 2) all co

15、sts in connection with the building of the infrastructure project and the arrangement of all necessary funding; 3) operation of the infrastructure project; 4) transfer of the infrastructure project to B on the Transfer Date; 4.2 B shall be responsible for: 1) the arrangement of: the provision of all

16、 necessary development approvals, permits, consents, site leases, access and other rights for C or New Company together with the fulfillment of essential requirements such as company registration, import license and exemption of customs duties and the like; the provision of all necessary or desirabl

17、e aids for C to obtain the loan; obtaining of all regulatory, statutory and other consents, approvals, authorizations, tax concessions and investment incentives as described hereinafter which are necessary or desirable for the implementation of the Project;obtaining of all necessary permits and appr

18、ovals from the relevant _authorities for C or New Company to repatriate capital and dividends in US Dollars from _;obtaining of resident visas, work permits and other necessary approvals from the relevant authorities for C or New Companys personnel, design, manufacturing, installation and constructi

19、on personnel as well as their direct relatives including the travel in _; the provision of all necessary approvals and permits relating to extension of the infrastructure project and the Project facilities in order to increase _production if C or New Company intends to do so;the provision of all nec

20、essary security measures for construction and operation personnel and Project facilities till the Transfer Date;the provision of communications and transport facilities of the Project construction and the operation of the infrastructure project; 2) the assistance in the operation of the infrastructu

21、re project. 3) providing C and/or New Company with free use of the Site, including but not limited to the area of construction site, access road, transmission line right of way, _and etc. 4) the negotiation and conclusion of service agreement with _Government or other countries governments jointly w

22、ith C or new Company, the Peoples Insurance Company of China representatives, whose presence in the negotiation B shall ensure, and whose approval B Shall obtain; 5) the exportation of _percent of _ produced by the infrastructure project to _or any third country; 6) the assignment of its representat

23、ives at Site and to the New Company to assist C or New Company and make necessary coordination between B and C or New Company. 4.3 B ensures that the Operation Period of the Project shall be not less than _years. However if IRR (Inter Rate of Return) does not reach _percent, both parties will discus

24、s the proper extension of the Operation Period until the year IRR reaches _%. 4.4 Conditions Precedent B shall be responsible for the provision of the following documents for C to make available any part of this Agreement within _months from the date of signing this Agreement and such documents shal

25、l be valid and effective to New Company: 1) a power guarantee issued by _parliament acceptable to C in the form defined in Annex 7, which shall be returned to B on the Transfer Date; 2) warranty to be issued and loan agreement to be concluded with the proposal made by B for bearing _percent of the P

26、roject Cost, the Bank of _as the loanee and _Finance Ministry as the guarantor and acceptable to the Bank of China and the Peoples Insurance Company of China, and a letter of credit or letter of guarantee to be issued as required by the Bank of China provided that the length of maturity is_ years in

27、cluding a _year construction period and loan interest is _percent per annum; B may make earlier reimbursement; 3) loan guarantee and warranty for Cs sharing _% of the Project Cost including interest of the construction period to be issued by the Bank of _ and _Finance Ministry respectively, acceptab

28、le to the Peoples Insurance Company of China and the Lending Bank and valid until to the Transfer Date (_), providing all necessary assistance in enabling C to obtain the loan from international prime banks; 4) the legal certificate issued by _President of Supreme Court and the legal certificate iss

29、ued by_ Procurator General, certifying that this Agreement shall be valid and enforceable under the laws of _in every respect in the form defined in Annex 8; the certificate of approval issued by the Government of _, certifying that the Project is lawful and legitimate; 5) B shall permit the constru

30、ction machinery, material and equipment necessary for the Project to be transported into _via _by sea, and/or by road through _as Well as by air, ensuring facilities from the _border control and customs authorities. 4.5 B warrants and undertakes that B shall not change or permit others to change the

31、 environment of the Site which adversely affects the construction or operation of the Project. Such change shall include, but not limited to, _. 4.6 Buyers Credit for Bs sharing _% of the Project Cost shall be provided by the Chinese side, payment terms of which to C are as follows: 1)_% of the cred

32、it shall be paid within _days after the date of the conclusion of this Agreement; 2)_% of the credit shall be paid by _; 3)_% of the credit shall be paid by _; 4.7 The parties shall provide each other sufficient information that enables each party to have a clear understanding of the principal issue

33、s that affect matters associated with the Project. 4.8 The parties hereto shall mutually collaborate with each other in order to achieve the objectives of this Agreement and the performance by each party of their respective obligations. 5. New Company 5.1 The parties agree to establish a New Company

34、 at the time when the members of New Company are ready to invest their portions, but before the completion of the Project and for this purpose B shall recommend and designate a _entity which will be a member of New Company. C having _ percent of equity, shall be the leading company and shall appoint

35、 chairman of New Company. The remaining portion of equity shall be shared by _entity. 5.2 Design and Construction of the Project shall be executed by C. At monthly intervals until _day (subject to postponement in case of_) of each month, C shall execute a statement of a claim for progress payment ba

36、sed on the prices for the construction works done in the preceding month to B and such statement shall be the conclusive evidence proving fairness of such claim except manifest calculation error. 5.3 B shall make its effort to assist in registering New Company at authority concerned in _and to obtai

37、n all required permits or approvals from the relating authorities in _. 5.4 New Company shall be granted the same privileged rights as those granted to C specified in Clause 9.2 and Cs obligations and responsibilities specified in this Agreement shall be transferred to New Company and be shared by t

38、he members of New Company. The members of New Company shall describe the provisions on their rights and responsibilities in the articles of incorporation to be made on the basis of the provisions in this Agreement at the time of the establishment of New Company. 5.5 If members of New Company do not

39、reach an agreement about any matters in relation with the Project, the opinion and decision of the major shareholder shall be final and binding upon the other members of New Company. 6. Construction of the infrastructure project 6.1 In pursuance of its obligations in relation with the construction o

40、f the infrastructure project under clause 4.1, C shall do followings with its full right in consultation with B: 1) to prepare detailed design and engineering in conformity with the national standards of P.R.China in force; 2) to appoint consultants and professional advisers; 3) to purchase equipmen

41、t and materials including construction equipment, the specification of which and installation and testing shall meet the national standards of P.R.China in force; 4) to appoint, organize and direct staff; manage and supervise the Project; 5) to enter into contracts for the supply of equipment and ma

42、terials and services; 6) to do all other thins necessary or desirable for the completion of the infrastructure project in accordance with the engineering standards;7) to select subcontractors; 6.2 B shall be entitled at its own cost to monitor the progress and quality of the construction and install

43、ation work and for this purpose C shall: 1) ensure that B and any experts appointed by B in connection with the Project are afforded reasonable access to the Site provided that such access does not materially interfere with the works; 2) make available copies of plans and designs for inspection at t

44、he Site; 3) after _months of the completion of the Project, supply B with _sets of copies of as built drawings and other documents. 6.3 B shall ensure that all infrastructure requirements and utilities necessary for the completion of the infrastructure project are made available in a timely fashion

45、and accordingly shall at its own cost, interalia: 1) give free possession of the Site to C during the construction period; 2) ensure that custom clearance system is available to C to import equipment and materials for the Project without any delay and interference; 3) ensure that C will use electric

46、ity for construction and communication facilities in _, the cost of the utilization of which shall be for Cs account at _current_ rate and shall be included in the Project Cost as cost for construction or cost for administration as stipulated in Clause 3.2; C shall pay _charge to _authority every ot

47、her months during the construction period; 4) ensure that C will build transmission line from_ or another still nearer place to the Site for the use of _in construction, which will be used to transmit _ from the infrastructure project after the completion of the Project; 5) jointly with C negotiate with _or other countriesgovernments to take necessary actions for the _to be c