国际BOT合同(英文).doc

AGREEMENT OF BOT PROJECTThis Agreement is made and entered into by and betweenThe government of_(hereinafter called "B") representedby_(hereinafter called "A")And_Corporation, a company duly organized and existing under thelaws of the People's Republic of China with its principal officeat_(hereinafter called "C").Whereas, A and C concluded the Memorandum Concerning _Projecton the _and C had been given Exclusive Right from B to carryout investigation and implement _Project (hereinafter called"the Project") by way of joint financing between C and B (so called BOT).Whereas, the loan agreement, guarantee agreement, letter of guarantee,etc. shall constitute integral components of this Agreement. The Project'sinstalled capacity is _.Now therefore, the parties hereby agree as follows:1. Definition and Interpretation"Project" means the planning, feasibility study, design andengineering, construction, equipping, completion, testing, commissioningand 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 thestarting date of commercial operation of the infrastructure project."Completion Date" means the day upon which C certifies that theinfrastructure project has successfully completed its testing and canstart Operation Period."Force Majeure" shall have the meaning specified in Clause 16."Project Scope" means the scope of supply and services of C inconnection with the execution of the Project as described in Annex 2."Site" means the site for the infrastructure project including_, special roads, and other areas for construction as specifiedin Annex 2."Transfer Date" means the day following the last day of the OperationPeriod."New Company" means the Company to be established between C and_entity as specified in Clause 5."Investment Agreement" means the Agreement on Mutual Encouragement andProtection of Investment between the Government of the People's Republicof China and the Government of the _."Exclusive Right" means the special power granted to C or New Companyin the Memorandum, Agreement and its annex."Day" means the solar calendar day.2. The Project2.1 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 beadjusted at the stage of detailed design in consideration of the sitecondition.2.3 The Project shall be implemented on Building, Operation andTransfer Basis.2.4 The Project shall be composed of _, _,_, the details of which shall be as attached Annex 2 - Scope ofthe Project.2.5 The final feasibility study report and detailed design afteracceptance of B and C shall form basis for the development and completionof the Project.3. The Project Cost3.1 The project cost is $_, interest of the construction periodis $_, the total project cost is $_, and the details ofwhich are shown in Annex 3 - Project Cost.3.2 The total project cost shall comprise but not limited to thefollowing costs and the details of the project cost shall be as attachedAnnex 3 - Project Cost:1) Cost for feasibility study, design and engineering and otherconsulting services;2) Cost for construction and installation;3) Cost for purchasing equipment and materials;4) Cost for administration including overseas expenses;5) Overhead and miscellaneous expenses;6) Contingencies;7) Interest during the construction period (_% per annum plusbank commission);8) Premium for construction insurance and export credit insurance.3.3 The Project Cost shall be based on the feasibility study reportand in case of a substantial variation in investment arising from geologicreasons, the additional part to the Project Cost shall be approved by B.An additional investment agreement or contract should be concluded betweenB and C.4. Responsibilities for Project Execution4.1 C shall be responsible for the following provided that if andafter New Company is established, responsibilities shall be transferred toNew Company and be shared by the members of New Company:1) the design and engineering, procurement, construction andcommissioning of the Project;2) all costs in connection with the building of the infrastructureproject 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 necessary development approvals, permits,consents, site leases, access and other rights for C or New Companytogether with the fulfillment of essential requirements such as companyregistration, import license and exemption of customs duties and the like;the provision of all necessary or desirable aids for C to obtain theloan; obtaining of all regulatory, statutory and other consents, approvals,authorizations, tax concessions and investment incentives as describedhereinafter which are necessary or desirable for the implementation of theProject; obtaining of all necessary permits and approvals from the relevant_authorities for C or New Company to repatriate capital anddividends in US Dollars from _; obtaining of resident visas, work permits and other necessaryapprovals from the relevant authorities for C or New Company's personnel,design, manufacturing, installation and construction personnel as well astheir direct relatives including the travel in _; the provision of all necessary approvals and permits relating toextension of the infrastructure project and the Project facilities inorder to increase _production if C or New Company intendsto do so; the provision of all necessary security measures for construction andoperation personnel and Project facilities till the Transfer Date; the provision of communications and transport facilities of theProject construction and the operation of the infrastructure project;2) the assistance in the operation of the infrastructure project.3) providing C and/or New Company with free use of the Site, includingbut 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 with C ornew Company, the People's Insurance Company of China representatives,whose presence in the negotiation B shall ensure, and whose approval BShall obtain;5) the exportation of _percent of _ producedby the infrastructure project to _or any third country;6) the assignment of its representatives at Site and to the NewCompany to assist C or New Company and make necessary coordination betweenB and C or New Company.4.3 B ensures that the Operation Period of the Project shall be notless than _years. However if IRR (Inter Rate of Return) does notreach _percent, both parties will discuss the proper extension ofthe Operation Period until the year IRR reaches _%.4.4 Conditions PrecedentB shall be responsible for the provision of the following documentsfor C to make available any part of this Agreement within _monthsfrom the date of signing this Agreement and such documents shall be validand effective to New Company:1) a power guarantee issued by _parliamentacceptable to C in the form defined in Annex 7, which shall be returned toB on the Transfer Date;2) warranty to be issued and loan agreement to be concluded with theproposal made by B for bearing _percent of the Project Cost, theBank of _as the loanee and _Finance Ministry as theguarantor and acceptable to the Bank of China and the People's InsuranceCompany of China, and a letter of credit or letter of guarantee to beissued as required by the Bank of China provided that the length ofmaturity is_ years including a _year construction periodand loan interest is _percent per annum; B may make earlierreimbursement;3) loan guarantee and warranty for C's sharing _% of theProject Cost including interest of the construction period to be issued bythe Bank of _ and _Finance Ministry respectively,acceptable to the People's Insurance Company of China and the Lending Bankand valid until to the Transfer Date (_), providing all necessaryassistance in enabling C to obtain the loan from international primebanks;4) the legal certificate issued by _President of SupremeCourt and the legal certificate issued by_ ProcuratorGeneral, certifying that this Agreement shall be valid and enforceableunder the laws of _in every respect in the form defined inAnnex 8; the certificate of approval issued by the Government of_, certifying that the Project is lawful and legitimate;5) B shall permit the construction machinery, material and equipmentnecessary 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 customsauthorities.4.5 B warrants and undertakes that B shall not change or permit othersto change the environment of the Site which adversely affects theconstruction or operation of the Project. Such change shall include, butnot limited to, _.4.6 Buyer's Credit for B's sharing _% of the Project Costshall be provided by the Chinese side, payment terms of which to C are asfollows:1)_% of the credit shall be paid within _days after thedate 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 thatenables each party to have a clear understanding of the principal issuesthat affect matters associated with the Project.4.8 The parties hereto shall mutually collaborate with each other inorder to achieve the objectives of this Agreement and the performance byeach party of their respective obligations.5. New Company5.1 The parties agree to establish a New Company at the time when themembers of New Company are ready to invest their portions, but before thecompletion of the Project and for this purpose B shall recommend anddesignate a _entity which will be a member of New Company. Chaving _ percent of equity, shall be the leading company andshall appoint chairman of New Company. The remaining portion of equityshall be shared by _entity.5.2 Design and Construction of the Project shall be executed by C. Atmonthly intervals until _day (subject to postponement in caseof_) of each month, C shall execute a statement of a claim forprogress payment based on the prices for the construction works done inthe preceding month to B and such statement shall be the conclusiveevidence proving fairness of such claim except manifest calculation error.5.3 B shall make its effort to assist in registering New Company atauthority concerned in _and to obtain all required permits orapprovals from the relating authorities in _.5.4 New Company shall be granted the same privileged rights as thosegranted to C specified in Clause 9.2 and C's obligations andresponsibilities specified in this Agreement shall be transferred to NewCompany and be shared by the members of New Company.The members of New Company shall describe the provisions on theirrights and responsibilities in the articles of incorporation to be made onthe basis of the provisions in this Agreement at the time of theestablishment of New Company.5.5 If members of New Company do not reach an agreement about anymatters in relation with the Project, the opinion and decision of themajor shareholder shall be final and binding upon the other members of NewCompany.6. Construction of the infrastructure project6.1 In pursuance of its obligations in relation with the constructionof the infrastructure project under clause 4.1, C shall do followings withits full right in consultation with B:1) to prepare detailed design and engineering in conformity with thenational standards of P.R.China in force;2) to appoint consultants and professional advisers;3) to purchase equipment and materials including constructionequipment, the specification of which and installation and testing shallmeet the national standards of P.R.China in force;4) to appoint, organize and direct staff; manage and supervise theProject;5) to enter into contracts for the supply of equipment and materialsand services;6) to do all other thins necessary or desirable for the completion ofthe 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 andquality of the construction and installation work and for this purpose Cshall:1) ensure that B and any experts appointed by B in connection with theProject are afforded reasonable access to the Site provided that suchaccess does not materially interfere with the works;2) make available copies of plans and designs for inspection at theSite;3) after _months of the completion of the Project, supply Bwith _sets of copies of "as built" drawings and other documents.6.3 B shall ensure that all infrastructure requirements and utilitiesnecessary for the completion of the infrastructure project are madeavailable in a timely fashion and accordingly shall at its own cost,interalia:1) give free possession of the Site to C during the constructionperiod;2) ensure that custom clearance system is available to C to importequipment and materials for the Project without any delay andinterference;3) ensure that C will use electricity for construction andcommunication facilities in _, the cost of the utilization of whichshall be for C's account at _current_ rate andshall be included in the Project Cost as cost for construction or cost foradministration as stipulated in Clause 3.2; C shall pay_charge to _authority every other months duringthe construction period;4) ensure that C