land lease agreement (lla) for 100-150 mw power project at ... - BPDB

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land lease agreement (lla) for 100-150 mw power project at ... - BPDB

Land Lease AgreementTHIS LAND LEASE AGREEMENT (this “Lease Agreement”) is entered into as of this ___ day of____________, 2010, in Dhaka, BangladeshBY AND BETWEENBANGLADESH POWER DEVELOPMENT BOARD, with its registered office located at _____________,Dhaka, Bangladesh, and hereinafter referred to as the “BPDB”, which expression wherever the terms soadmit or imply includes its successors, representatives or assigns;AND[Name of Company], with its registered office located at _________________, Dhaka, Bangladesh, andhereinafter referred to as the “Company”, which expression wherever the terms so admit or imply shallinclude its successors, representatives and permitted assigns.RECITALSWHEREAS, the Company has agreed to design, engineer, manufacture, finance, construct, complete,permit, test, commission, insure, own, operate and maintain a Dual Fuel (HFO/Gas) fired power stationlocated at Kaliakoir Hitech Park, Gazipur, Bangladesh, to provide [insert capacity] MW (net) of electricpower generation capacity to BPDB under a Power Purchase Agreement (as defined hereinafter).WHEREAS, BPDB has obtained, a certain parcel of land at at Kaliakoir Hitech Park, Gazipur whichparcel includes the Demised Premises (as hereinafter defined) comprising approximately 8 acres atKaliakoir Hitech Park, Gazipur.NOW, THEREFORE, in consideration of the mutual benefits and covenants contained herein, BPDB andthe Company hereby agree as follows:


Land Lease Agreement“Transferee” bears the meaning ascribed thereto in Section 6.2(d); and“Transportation Facilities” bears the meaning ascribed thereto in the Gas Supply Agreement.1.2 Rules of InterpretationIn this Lease Agreement,(a)(b)(c)(d)(e)(f)the headings are for convenience only and shall be ignored in construing this LeaseAgreement;the singular includes the plural and vice versa;references to Sections and Schedules are, unless stated to the contrary, references toSections and Schedules of this Lease Agreement;the words “include”, “including” and “in particular” shall be construed as being by way ofillustration or emphasis only and shall not be construed as, nor shall they be given theeffect of, limiting the generality of any preceding words;unless otherwise provided herein, whenever a consent or approval is required hereunderby one Party from the other Party, such consent or approval shall not be unreasonablywithheld or delayed; andin carrying out its obligations and duties under this Lease Agreement, each Party shallhave an implied obligation of good faith.7


Land Lease AgreementSECTION 2: TERM2.1 TermThis Lease Agreement shall be effective upon the Project Effective Date and shall, unlessterminated earlier in accordance with the terms of this Lease Agreement, continue in full forceand effect until the earliest of (i) the last Day of the Term of the Power Purchase Agreement (assuch agreement may be extended), and (ii) the date upon which the Facility is transferred to theGOB or its designee pursuant to Section 14.1 of the Implementation Agreement (the “Term”).2.2 Scheduled Possession DateBPDB shall deliver to the Company exclusive and continuing possession of the DemisedPremises on or before the date that is no later than the Required Financial Closing Date (the“Scheduled Possession Date”). The delivery of Demised Premises shall be made inaccordance with, and subject to, Section 3.5 and the other provisions of this Lease Agreement.2.3 Possession DateThe date on which BPDB delivers to the Company exclusive and continuing possession of theDemised Premises in accordance with the provisions of this Lease Agreement shall be the“Possession Date”, provided, that the Possession Date shall not occur unless and until Take-Over has occurred in accordance with Section 3.5;8


Land Lease Agreement3.1 Demise and RegistrationSECTION 3: OBLIGATIONS OF THE COMPANY AND BPDB(a)DemiseIn consideration of the Rent hereinafter reserved and the covenants of the Companyhereinafter contained, BPDB hereby demises to the Company the Demised Premises forthe duration of the Term in accordance with the terms and conditions set out in this LeaseAgreement.(b)RegistrationBPDB shall procure the registration of this Lease Agreement under the Registration Act,1908 (Act XVI of 1908) and provide to the Company, by no later than the date ten (10)Days prior to the Required Financial Closing Date, satisfactory evidence that suchregistration has been completed. BPDB acknowledges that the Company is exemptedfrom any registration fees and duties and stamp duties pursuant to Section 12.1 of theImplementation Agreement and, accordingly, such registration shall be at no cost to theCompany.3.2 RentIn consideration for the lease by BPDB to the Company of the Demised Premises during theTerm, the Company agrees and covenants to pay the Rent to BPDB during the Term in theamount and on the terms set forth in Schedule II.3.3 Payment of Taxes and ChargesThe Company shall promptly and regularly pay to the appropriate Government Authority all Taxesand Charges payable in connection with the Demised Premises or the Facility on and from thePossession Date until the expiry of the Term.3.4 Access Road(a)(b)(c)(d)The Company shall within three (3) months of the Possession Date construct at its owncost and in accordance with the Access Road Specifications, an access road (the“Access Road”) starting from the nearest public road up to the Demised Premises. Uponcompletion of the Access Road, the Company shall hand over the completed AccessRoad to BPDB and risk and responsibility for the Access Road shall pass to BPDB fromthe time of the hand over.BPDB hereby grants to the Company the right to the non-exclusive, free and unfettereduse of the Access Road throughout the Term.BPDB shall throughout the Term maintain clear, unencumbered title (free of allmortgages and Liens) to the Access Road.Following the hand over of the completed Access Road by the Company to BPDBpursuant to Sections 3.4(a), BPDB shall at its own cost throughout the Term maintain theAccess Road each to a standard sufficient for the purposes for which the Companyintends to use it and in accordance with the terms of this Lease Agreement.9


Land Lease Agreement3.5 Take-Over(a) BPDB shall, after a joint inspection with the Company, hand over the Demised Premisesto the Company (the “Take-Over”) no later than ninety (90) days following the ProjectEffective Date. After the Take-Over, the Company shall install permanent posts todemarcate the boundary of the Demised Premises and install a security fence on theperimeter of the Demised Premises.(b) At any time, on and after the Take-Over and prior to the Possession Date, the Companyshall be entitled to enter the Demised Premises for the purpose of carrying out suchsurveys, site investigations and other inspections as the Company considers necessaryprovided that the Company has given BPDB reasonable advance written notice of suchintention to enter the Demised Premises.3.6 Permitted Use, Development and Remedy of Defects(a) Permitted UseThe Company shall use the Demised Premises and the Access Road for the purposes ofthe Project and for the generation and sale of electric generation capacity or electricenergy or both and uses reasonably incidental thereto.(b) Permitted Development and Maintenance Work by the CompanyThe Company shall, during the Term, carry out work to develop the Demised Premisesand maintain the Demised Premises including, without limitation, clearing, leveling,compacting and filling of the Demised Premises and building the Facility, the AccessRoad, roads, waterways and wells on, through, above and below the ground or on anypart of it on which the Facility, the Access Road or any part of them is to be built,including without limitation providing any materials, facilities or equipment which may berequired by the Company and its Contractor(s) for carrying out work and foraccommodation of the Company and its Contractor(s).(c)Compliance with LawThe Company agrees that it will not use or permit any person to use the DemisedPremises or any portion thereof, in a manner that contravenes any provision of the Lawsof Bangladesh.(d)Articles of ValueAll fossils, coins, articles of value or antiquity structures and any other remains ofgeological or archaeological interest discovered on the Demised Premises shall, asbetween BPDB and the Company be deemed to be the absolute property of BPDB, andthe Company shall at its own expense take all necessary precautions to prevent itsemployees, representatives and Contractor(s) or other persons from removing ordamaging any such article or thing and shall immediately upon discovery thereof, andbefore removal, acquaint BPDB with such discovery, comply with all requirements of theLaws of Bangladesh pertaining to the same or, if no such requirements relate, complywith the reasonable instructions of BPDB as to the disposal or preservation of the same.(e)Repairs and MaintenanceExcept as otherwise provided in this Lease Agreement, BPDB shall not be required tomake any repairs or improvements to the Demised Premises during the Term, or in anymanner to supply maintenance for the Demised Premises or any improvements thereon.10


Land Lease Agreement(f)Unexploded Ordnance and ContaminationIf unexploded ordnance or other contamination likely to be harmful is discovered on theDemised Premises, the Company will, without prejudice to the Company’s right toindemnification from BPDB pursuant to Section 5.2(a), at its own cost and in accordancewith the Environmental Guidelines and the Laws of Bangladesh, be responsible forrendering safe the Demised Premises as the case may be, by the clearance of thecontamination or the removal and the subsequent destruction or by in situ destruction ofany unexploded ordnance. BPDB shall use reasonable efforts to assist the Companyand any Contractor(s) in connection with the clearance of contamination and the removaland destruction of unexploded ordinance.(g)Site SafetyThe Company shall, and shall ensure that its employees, representatives andContractor(s) and other persons allowed on to the Demised Premises by it shall complywith the safety and site requirements applicable from time to time.3.7 Insurance(a) The Company shall at all times while the Power Purchase Agreement is in effect obtainand maintain insurance in accordance with Section 14 of the Power PurchaseAgreement.(b) The Company will name BPDB as an additional insured to the extent of BPDB’s insurableinterest under the insurance policies required to be maintained pursuant to Section 3.7(a)as required under Section 14 of the Power Purchase Agreement.3.8 Quiet EnjoymentBPDB covenants that, provided that the Company pays the Rent set out in Schedule II andcomplies with the terms of this Lease Agreement, the Company shall not be impaired orotherwise prevented by BPDB from using the Demised Premises and the Access Road for thepurposes set out in this Lease Agreement and may peaceably enjoy the Access Road and theDemised Premises from the Possession Date until the end of the Term.3.9 Easement Rights(a)Electrical Interconnection FacilitiesBPDB shall, upon request by the Company which shall not be made earlier than onehundred and twenty (120) Days after the Project Effective Date, grant to the Companyeasements and rights of way as necessary to install, operate, maintain the ElectricalInterconnection Facilities, tele-metering and telecommunication facilities and any otherfacilities that may be required for connecting the Facility to the interconnection andtransmission facilities.(b)Easements and Rights-of-Way for Transportation FacilitiesBPDB shall, upon request by the Company which shall not be made earlier than onehundred and twenty (120) Days after the Project Effective Date, grant to the Companysuch, easements and rights-of-way above and beneath the Access Road as may benecessary for the purposes incidental to the construction and/or the operation of theTransportation Facilities, the Company Transportation Facilities and the CompanyCommunication Facilities.11


Land Lease Agreement(c)Additional EasementsBPDB shall, upon request by the Company which shall not be made earlier than onehundred and twenty (120) Days after the Project Effective Date, grant to the Companysuch additional easements and rights-of-way as may be necessary for purposesincidental to the construction and/or the operations of the Facility, including but not limitedto drainage and construction of water out-take channels (to the extent not affecting theoperation of the second power plant to be constructed in at Kaliakoir Hitech Park,Gazipur complex).(d)No Additional ConsiderationConsideration for such rights (for both the Company and BPDB in this Section 3.9) shallbe the execution of this Lease Agreement and no other consideration shall be required.12


Land Lease AgreementSECTION 4: REPRESENTATIONS, WARRANTIES AND COVENANTS4.1 Representations, Warranties and Covenants of BPDB(a)(b)BPDB represents and warrants that:(i) it has all requisite corporate power and authority to grant the lease, licenses,easements and other rights envisaged under this Lease Agreement and toexecute, deliver and perform its obligations under this Lease Agreement;(ii) the execution, delivery and performance of this Lease Agreement and theconsummation of the transactions contemplated hereby have been duly andvalidly authorised by BPDB and no other proceedings on the part of BPDB arenecessary for the grant of this Lease Agreement;(iii) this Lease Agreement has been duly and validly executed and delivered byBPDB and constitutes a valid and binding commitment of it;(iv) there is no investigation, inquiry or proceeding concerning any EnvironmentalMatter relating to or affecting the Demised Premises and so far as BPDB isaware none is pending or threatened nor is there any fact or circumstanceexisting which might give rise to any of the foregoing;Covenants of BPDBBPDB covenants that, as of the Possession Date:(i)(ii)(iii)(iv)(v)it shall have clear, unencumbered, title (free and clear of all mortgages and Liensother than Permitted Liens) to the Demised Premises;the Demised Premises shall not be subject to any adverse estate, right, interest,covenant, restriction, easement, option, right of pre-emption, wayleave,irrevocable license or other right or arrangement in favour of any third party(whether in the nature of a public or private right or obligation or otherwise), noris there any agreement to give or create any of the foregoing, and all rights oflight, air, water and support associated with the Demised Premises are enjoyedfully by BPDB as of right;there shall not be any outstanding actions, disputes, claims or demands betweenBPDB and any third party or between the GOB and any third party affectingBPDB’s title to the Demised Premises or its right or ability to enter into this LeaseAgreement;there shall not be any Environmental Matters relating to or affecting the DemisedPremises;it has provided adequate compensation (as required under the Laws ofBangladesh and the then-applicable guidelines of the World Bank Group) to allpersons:(A) who may have been displaced;(B) whose land may have been acquired; or(C) whose livelihood may have been affected,when the Demised Premises was acquired.BPDB further covenants that all representations and warranties set out in Section 4.1(a)shall be true and correct, mutatis mutandis, on the Possession Date.13


Land Lease Agreement4.2 Representations, Warranties and Covenants of the Company(a)Representations and Warranties of the CompanyThe Company represents and warrants to BPDB that:(i)(ii)It is a company validly existing and in good standing under the laws ofBangladesh, and it has all requisite power and authority to conduct its business,to own its properties and to execute, deliver and perform its obligations under thisLease Agreement;the execution, delivery and performance by it of this Lease Agreement have beenduly authorised by all necessary corporate action, and do not and will not:(A)(B)require any consent or approval of its board of directors, shareholders orpartners other than those which have been obtained (evidence of whichshall be, if it has not been, delivered to BPDB upon its request); andto the best of its knowledge, violate or breach any provisions of orconstitute a default under its corporate charter or bylaws or other organicdocuments, any material indenture, contract, or agreement to which it isa party or by which it or its properties may be bound or any material law,rule, regulation, order, writ, judgment, injunction, decree, determination,or award presently in effect having applicability to the Company.(iii)(iv)this Lease Agreement is a valid and binding obligation of the Company; andthere is no pending or, to the best of the its knowledge, threatened action orproceeding against it before any court, Government Authority, or arbitrator thatcould reasonably be expected to materially adversely affect the ability of theCompany to perform its obligations hereunder, or which could reasonably beexpected to affect the legality, validity or enforceability of this Lease Agreement,or any material part thereof.(b)Covenants of the CompanyThe Company covenants that, as of the Possession Date:(i)The Company shall have in full force and effect and continue thereafter tomaintain insurance in accordance with Section 14 of the Power PurchaseAgreement.The Company further covenants that all representations and warranties set out in Section4.2(a) shall be true and correct, mutatis mutandis, as of the Possession Date.14


Land Lease AgreementSECTION 5: LIABILITY AND INDEMNIFICATION5.1 Limitation of LiabilityExcept as required by Section 5.2, neither Party shall be liable to the other Party in contract, tort,warranty, strict liability or any other legal theory for any indirect, consequential, incidental, punitiveor exemplary damages. Neither Party shall have any liability to the other Party except pursuantto, or for breach of, this Lease Agreement; provided, however, that this provision is not intendedto constitute a waiver of any rights of one Party against the other with regard to matters unrelatedto this Lease Agreement or any activity not contemplated by this Lease Agreement.5.2 Indemnification(a) BPDB shall bear responsibility for (i) loss of or damage to property, death or injury toperson (or any claim against the Company or its Contractor(s) or their respective officers,directors and employees in respect thereof) and all expenses relating thereto (includingwithout limitation reasonable legal fees) suffered by the Company or its Contractor(s) orits respective officers, directors and employees in connection with the Facility resultingfrom any negligent or intentional act or omission of BPDB (or it officers, directors,members (of the board) and employees), without recourse to the Company or itsContractor(s), and (ii) any Loss arising out of or in connection with any HazardousMaterial or any Environmental Matter which was present at the Demised Premises priorto the Possession Date or any failure by BPDB to comply with the Laws of Bangladesh(insofar as they relate to Environmental Matters), or the Environmental Guidelines.BPDB will hold the Company or its Contractor(s) fully indemnified in respect thereof. Thisindemnity shall not extend to any loss, damage, death or injury (or any claim in respectthereof) or any expenses relating thereto to the extent that it was caused by any act oromission of the Company or its Contractor(s) or the failure of the Company or itsContractor(s) to take reasonable steps in mitigation thereof. Notwithstanding anything tothe contrary contained in the preceding sentence, nothing in this Section 5.2(a) shallapply to any loss, damage, cost or expense in respect of which, and to the extent that,the Company or its Contractor(s) are compensated pursuant to the terms of any policy ofinsurance, agreement or through any other means.(b) The Company shall bear responsibility for (i) loss of or damage to property, death orinjury to person (or any claim against BPDB or its respective officers, directors, members(of the board) and employees in respect thereof) and all expenses relating thereto(including without limitation reasonable legal fees) suffered by BPDB or its respectiveofficers, directors, members (of the board) and employees in connection with the Facilityresulting from any negligent or intentional act or omission of the Company or itsContractor(s) (or its respective officers, directors and employees), without recourse toBPDB, and (ii) any Loss arising out of or in connection with any Environmental Liabilitiesarising as a result of any act or omission by the Company or any failure by the Companyto comply with the Laws of Bangladesh (insofar as they relate to Environmental Matters),or the Environmental Guidelines. The Company will hold BPDB fully indemnified inrespect thereof. This indemnity shall not extend to any loss, damage, death or injury (orany claim in respect thereof) or any expenses relating thereto to the extent that it wascaused by any act or omission of BPDB or the failure of BPDB to take reasonable stepsin mitigation thereof. Notwithstanding anything to the contrary contained in the precedingsentence, nothing in this Section 5.2(b) shall apply to any loss, damage, cost or expensein respect of which, and to the extent that, BPDB is compensated pursuant to the termsof any policy of insurance, agreement or through any other means.(c) In the event that any Loss results from the joint or concurrent negligent or intentional actsof the Parties, each shall be liable under this indemnification in proportion to its relativedegree of fault.(d) The provisions of this Section 5.2 shall survive for a period of five (5) years following thetermination of this Lease Agreement.15


Land Lease Agreement5.3 Assertion of ClaimsNeither Party shall be entitled to assert any claim for indemnification until such time as all claimsof such Party for indemnification under this Lease Agreement exceed an amount equal to thesum of one hundred thousand Dollars (US$100,000), in the aggregate, at which time all claims ofsuch Party for indemnification under this Lease Agreement may be asserted; provided, however,that when such claims have been asserted the same rule shall apply in respect of future claims.Notwithstanding the preceding sentence, either Party may assert a claim for indemnificationregardless of amount upon the expiry or earlier termination of this Lease Agreement or if suchclaim would otherwise be barred by the applicable statute of limitations.5.4 Defence of Claims(a)(b)(c)(d)Each Party shall promptly notify the other Party of any loss of, or damage to property,death or injury to person (or any claim or proceeding in respect thereof) in respect ofwhich it is or may be entitled to indemnification under Section 5.2. Such notice shall begiven as soon as reasonably practicable after the relevant Party becomes aware of suchloss, damage, death or injury (or any claim or proceeding in respect thereof);The indemnified Party shall have the right, but not the obligation, to contest, defend andlitigate any claim, action, suit or proceeding by any third party alleged or asserted againstsuch party in respect of, resulting from, related to or arising out of any matter for which itis entitled to be indemnified hereunder, and the reasonable costs and expenses thereofshall be subject to the indemnification obligations of the indemnifying Party hereunderprovided, however, that if the indemnifying Party acknowledges in writing its obligationsto indemnify the indemnified Party in respect of loss to the full extent provided by Section5.2, the indemnifying Party shall be entitled, at its option, to assume and control thedefence of such claim, action, suit or proceeding at its expense and through counsel of itschoice if it gives prompt notice of its intention to do so to the indemnified Party andreimburses the indemnified Party for the reasonable costs and expenses incurred by theindemnified Party prior to the assumption by the indemnifying party of such defence.Neither Party shall settle or compromise any such claim, action, suit or proceedingwithout the prior written consent of the other Party, which consent shall not beunreasonably withheld or delayed; provided, that after agreeing in writing to indemnify theindemnified Party, the indemnifying Party may settle or compromise any claim without theprior approval of the indemnified Party.Notwithstanding the foregoing, the indemnified Party shall have the right to employ itsown counsel and such counsel may participate in such action, but the fees and expensesof such counsel shall be at the expense of such indemnified Party, when and as incurredunless:(i)(ii)(iii)the employment of counsel by such indemnified Party has been authorised inwriting by the indemnifying Party;the indemnified Party shall have reasonably concluded that there may be aconflict of interest between the indemnifying Party and the indemnified Party inthe conduct of the defence of such action;the indemnifying Party shall not in fact have employed independent counselreasonably satisfactory to the indemnified Party to assume the defence of suchaction and shall have been so notified by the indemnified Party; or16


Land Lease Agreement(iv)the indemnified Party shall have reasonably concluded and specifically notifiedthe indemnifying Party either that there may be specific defences available to itwhich are different from or additional to those available to the indemnifying Partyor that such claim, action, suit or proceeding involves or could have a materialadverse effect upon it beyond the scope of this Lease Agreement.(e)If paragraph (ii), (iii) or (iv) of subparagraph (d) above shall be applicable, then counselfor the indemnified Party shall have the right to direct the defence of such claim, action,suit or proceeding on behalf of the indemnified Party and the reasonable fees anddisbursements of such counsel shall constitute legal or other expenses hereunder.17


Land Lease AgreementSECTION 6: ASSIGNMENT AND SECURITY6.1 AssignmentThis Lease Agreement may not be assigned by either Party other than by mutual agreementbetween the Parties in writing.6.2 Creation of Security(a)(b)Notwithstanding the foregoing, for the purpose of financing the Facility, the Companymay assign to, or grant a security interest in favour of, the Lenders in its rights andinterests under or pursuant to: (i) this Lease Agreement, (ii) any agreement or documentincluded within the Security Package, (iii) the Demised Premises, (iv) the Access Road,(v) the movable, immovable and intellectual property of the Company, or (vi) therevenues or any of the rights or assets of the Company. The Company shall not createany security over its rights and interests under this Lease Agreement without the priorwritten consent of BPDB except as already provided above.The Lenders shall have no obligation to BPDB under this Lease Agreement until suchtime as the Lenders or their designees succeed to the Company’s interests under thisLease Agreement, whether by exercise of their rights or remedies under the FinancingDocuments or otherwise, in which case the Lenders or their designees shall give writtennotice of such succession (a “Succession Notice”) to BPDB and assume liability for allof the Company’s obligations under this Lease Agreement, including without limitationpayment of any amounts due and owing to BPDB for payment defaults by the Companyunder this Lease Agreement (other than, so long as the liability insurance required bySection 3.7 has been and is in effect), damages or penalties incurred by the Companyunder Section 5.2(b), arising during the period prior to the Lenders’ or such designees’succession to the Company’s interests in and under this Lease Agreement, provided thatany liability of the Lenders or their designees shall be strictly limited to the Lenders’interest in the Demised Premises, the Access Road.Except as otherwise set forth in the immediately preceding sentence, none of theLenders or their designees shall be liable for the performance or observance of any of theobligations or duties of the Company under this Lease Agreement, nor shall theassignment by the Company of this Lease Agreement to the Lenders give rise to anyduties or obligations whatsoever on the part of any of the Lenders owing to BPDB.(c)Upon notification by the Lenders or the Agent to BPDB of the occurrence andcontinuance of an event of default under the Financing Documents and the succession ofthe Lenders to the Company’s interests in and under this Lease Agreement, the Lendersshall have the right, among others, to: (i) take possession of the Demised Premises anduse the same and the Access Road for the purposes permitted under this LeaseAgreement; and (ii) cure any continuing Company Event of Default under this LeaseAgreement as provided in Section 7.1(a).Notwithstanding the foregoing, upon the delivery of a Succession Notice, the Lendersshall have no obligation to cure any Company Event of Default occurring before thedelivery of such Succession Notice that is not capable of being cured and no right willexist for BPDB to terminate this Lease Agreement based upon such Company Event ofDefault occurring prior to the delivery of the Lenders’ Succession Notice.18


Land Lease AgreementWithout the requirement of obtaining any further consent from BPDB, upon the exerciseby the Lenders or their designees of any of the remedies set forth in the FinancingDocuments, the Lenders may assign their rights and interests and the rights of theCompany under this Lease Agreement to a Transferee acceptable to the GOB so long assuch Transferee shall assume all of the obligations of the Company under this LeaseAgreement.Upon such assignment and assumption, the Lenders shall be relieved of all obligationsunder this Lease Agreement arising after such assignment and assumption.(d)(e)(f)As used herein, a “Transferee” shall be a person who: (i) is a company organized underthe Laws of Bangladesh, (ii) either is an experienced and qualified power plant operatoror who shall have agreed to engage the services of a person who is an experienced andqualified power plant operator, (iii) shall have paid all amounts, if any, then due andpayable to BPDB under this Lease Agreement, and (iv) shall have expressly assumed inwriting for the benefit of BPDB the ongoing obligations of the Company under this LeaseAgreement.At the request of the Company, delivered to BPDB not less than thirty (30) Days inadvance, BPDB shall execute and deliver at the Financial Closing, all suchacknowledgments to the Lenders or their designees of any security created inaccordance with this Section 6.2 as are reasonably requested by the Company and theLenders to give effect to the foregoing.Notwithstanding the foregoing, BPDB shall have the right to assign this Lease Agreementto PGCB or any other entity or entities assuming all or part of BPDB’s rights andobligations pursuant to the Power Purchase Agreement; provided, that the GOB withoutinterruption guarantees the performance of PGCB or such other succeeding entity orentities on the same terms and conditions as the Guarantee or such other commercialsecurity is provided for the obligations of the succeeding entity or entities that in thereasonable business judgment of the Company provides an adequate alternative to theGuarantee and all of BPDB’s obligations under this Lease Agreement are assignedpursuant to law to or contractually assumed, through a novation, by one or more entities,each of which has the legal capacity and appropriate commercial function to performsuch obligations.19


Land Lease AgreementSECTION 7: TERMINATION7.1 Company Events of Default -- Termination by BPDB(a)BPDB may give notice of default under this Lease Agreement (a “BPDB Notice ofDefault”) upon the occurrence of any of the following events (“Company Event ofDefault”) unless such Company Event of Default results from a breach (a) by BPDB ofthis Lease Agreement or the Power Purchase Agreement, (b) by the GOB of theImplementation Agreement or the Guarantee, or (c) by the Gas Supplier of the GasSupply Agreement:(i)any statement, representation or warranty by the Company in this LeaseAgreement proving to have been incorrect, in any material respect, when madeor when deemed to have been made and the circumstances that cause suchfailure or incorrect statement, representation or warranty to be incorrect having amaterial and adverse effect on BPDB’s ability to perform its obligations under thisLease Agreement;(ii)the failure of the Company to perform its obligations under Sections 3.4(a) and(b) in accordance with the times specified therein for such performance save tothe extent that such failure is attributable to the occurrence of a Force MajeureEvent;(iii)any other material breach by the Company of this Lease Agreement that is notremedied within thirty (30) Days after notice from BPDB stating that a materialbreach of this Lease Agreement has occurred and is continuing that could resultin the termination of this Lease Agreement, identifying the material breach inquestion in reasonable detail, and demanding remedy thereof;(iv)(v)a termination of the Implementation Agreement as a result of any cause otherthan a GOB Event of Default or a termination of the Power Purchase Agreementas a result of any cause other than a BPDB Event of Default thereunder or atermination of the Gas Supply Agreement as a result of any cause other than aGas Supplier Event of Default thereunder, and in either case the GOB acquiresall of the Company’s rights, title and interests in and to the Facility pursuant tothe provisions of the Implementation Agreement; orthe failure by the Company to make any payment of the Rent or other charges orpayments required to be made by it hereunder within thirty-five (35) Days of thedue date therefor.7.2 BPDB Events of Default --Termination by the Company(a)The Company may give a notice of default under this Lease Agreement (a “CompanyNotice of Default”) upon the occurrence of any of the following events (“BPDB Event ofDefault”) unless such BPDB Event of Default results from a breach by the Company ofthis Lease Agreement, the Power Purchase Agreement, the Implementation Agreementor the Gas Supply Agreement:(i)any statement, representation or warranty by BPDB in this Lease Agreementproving to have been incorrect, in any material respect, when made or whendeemed to have been made and the circumstance that cause such failure or20


Land Lease Agreement(ii)(iii)(iv)incorrect statement, representation or warranty to be incorrect having a materialand adverse effect on the Company’s ability to perform its obligations under thisLease Agreement;any material breach by BPDB of this Lease Agreement that is not remediedwithin thirty (30) Days after notice from the Company to BPDB stating that amaterial breach of this Lease Agreement has occurred and is continuing thatcould result in termination of this Lease Agreement, identifying the materialbreach in question in reasonable detail, and demanding remedy thereof;the Possession Date does not occur within one hundred and eighty (180) Days ofthe Financial Closing Date; ora termination of the Implementation Agreement due to a GOB Event of Default ora termination of the Power Purchase Agreement due to a BPDB Event of Defaultthereunder or a termination of the Gas Supply Agreement due to a Gas SupplierEvent of Default thereunder.7.3 Rights and Remedies Upon an Event of Default(a)Notice of Intent to Terminate(i)(ii)Upon the occurrence of a BPDB Event of Default or a Company Event of Default,as the case may be, that is not cured within the applicable period (if any) for cure,the non-defaulting Party may, at its option, initiate termination of this LeaseAgreement by delivering a notice (a “Notice of Intent to Terminate”) of its intentto terminate this Lease Agreement to the defaulting Party.The Notice of Intent to Terminate shall specify in reasonable detail the CompanyEvent of Default or BPDB Event of Default, as the case may be, giving rise to theNotice of Intent to Terminate.(b)Consultation(i)Following the delivery of a Notice of Intent to Terminate, the Parties shall consultfor a period of:(A)(B)thirty (30) Days in case of a failure by either Party to make paymentswhen due, andforty five (45) Days with respect to any other Event of Default (or in eachcase such longer period as the Parties mutually may agree)as to what steps shall be taken with a view to resolving or mitigating theconsequences of the relevant Event of Default:(ii)Notwithstanding any such consultations, during the period following the deliveryof the Notice of Intent to Terminate, the Party in default may continue toundertake efforts to cure the default, and if the default is cured at any time priorto the delivery of a Termination Notice in accordance with Section 7.3(c), thenthe non-defaulting Party shall have no right to terminate this Lease Agreement inrespect of such cured default.21


Land Lease Agreement(c)Termination NoticeSubject to the provisions of Sections 7.4 and 7.6, as the case may be, upon expiration ofthe consultation period described in Section 7.3(b) and unless the Parties shall haveotherwise agreed or unless the Event of Default giving rise to the Notice of Intent toTerminate shall have been remedied, subject to Section 7.4 or Section 7.6, as the casemay be, the Party having given the Notice of Intent to Terminate may terminate thisLease Agreement by delivery of a Termination Notice to the other Party, whereupon thisLease Agreement shall immediately terminate immediately upon delivery of such noticeto such other Party.7.4 Notice to Lenders of Company Event of Default(a)No Termination Without Notice to LendersNotwithstanding anything in this Lease Agreement, from and after the occurrence of theFinancial Closing Date, BPDB shall not seek to terminate this Lease Agreement withoutfirst giving to the Lenders a copy of any notices given to the Company under Sections 7.1and 7.3, such notice to be coupled with a request to the Lenders to cure any such defaultwithin the cure period specified in Section 7.3(b) (the “Initial Cure Period”), which periodshall commence upon delivery of each such notice to the Lenders.(b)Designation of Agent and Notification Procedure(i) The Lenders will designate in writing to BPDB an agent (the “Agent”) and anynotice required hereunder shall be delivered to such Agent, such notice to beeffective upon delivery to the Agent as if delivered to each of the Lenders.(ii) Each such notice shall be in writing and shall be deemed to have been delivered:(A) when presented personally to the Lenders or the Agent;(B) when transmitted by BPDB and received by the Lenders or the Agent byfacsimile to the number specified in accordance with the procedure setforth below; or(C) five (5) Days after being deposited in a regularly maintained receptaclefor the postal service in Bangladesh, postage prepaid, registered orcertified, return receipt requested, addressed to the Lenders at theaddress indicated at Financial Closing (or such other address or to theAgent at such address as the Lenders may have specified by writtennotice delivered in accordance herewith).Any notice given by facsimile under this Section 7.4 shall be confirmed in writingdelivered personally or sent by prepaid post, but failure to so confirm shall not void orinvalidate the original notice if it is in fact received by the Lender or the Agent.(iii)Notwithstanding the foregoing, if the address of the Lenders or Agent is outsideBangladesh, any notice delivered to the Lender or Agent pursuant to this Section7.4 shall be:(A)(B)presented personally or sent by international courier or facsimile; andif sent by facsimile, confirmed by international courier,and the Initial Cure Period shall commence upon receipt by the Lenders or the Agent ofthe notice referenced above.22


Land Lease Agreement(iv)The address and facsimile number for the Lenders or Agent shall be provided toBPDB by the Company at Financial Closing and thereafter may be changed bythe Lenders or the Agent by subsequent delivery of a notice to BPDB at theaddress or facsimile number of BPDB set out in Section 10.1(a) (or at such otheraddress or facsimile number in accordance with Section 7.4(b)(i)) and otherwisein accordance with the requirements of Section 10.1.(c)Termination Not Valid Without Notice to Lenders(i)(ii)From and after Financial Closing no rescission or termination of this LeaseAgreement by BPDB (other than as a result of a Company Event of Default underSection 7.1(a)(iv)) shall be valid or binding upon the Lenders without such notice,until the expiration of:(A)(B)(C)the Initial Cure Period;the Evaluation Period provided in Section 7.4(d); andif applicable, the Lenders Cure Period, provided in Section 7.4(e), assuch Lenders Cure Period may be extended.The Lenders may make, but shall be under no obligation to make any payment orperform or procure the performance of any act required to be made or performedby the Company, with the same effect as if made or performed by the Company.(d)Failure of Lenders to Cure DefaultIf the Lenders fail to cure or are unable or unwilling to cure any Company Event ofDefault that is required to be cured prior to the expiration of periods referred to above inthis Section 7.4, BPDB shall have all its rights and remedies with respect to such defaultas set forth in this Lease Agreement; provided, that:(i)upon the expiration of the Initial Cure Period, the Lenders shall have a furtherperiod (the “Evaluation Period”) during which the Lenders may evaluate suchCompany Event of Default, the condition of the Facility, and other mattersrelevant to the actions to be taken by the Lenders concerning such CompanyEvent of Default, and(e)(ii) the Evaluation Period shall end on the sooner to occur of:(A) the delivery by the Lenders to BPDB of a notice that the Lenders haveelected to procure the cure of such Company Event of Default orotherwise pursue their remedies under the Financing Documents (an“Election Notice”); and(B) thirty (30) Days following the end of the Initial Cure Period.During the Evaluation Period, BPDB’s rights and remedies with respect to a CompanyEvent of Default shall be suspended.Delivery of Election Notice(i)Upon the delivery of the Election Notice, the Lenders shall be permitted anadditional period of one hundred and eighty (180) Days to cure any CompanyEvent of Default ( the “Lenders Cure Period”).23


Land Lease Agreement(ii)During such Lenders Cure Period, BPDB’s right to terminate this LeaseAgreement shall be suspended so long as Lenders are diligently:(A) attempting to procure (other than by the Company, unless the Companyis acting at the direction of the Lenders) the cure of such default; or(B) pursuing the enforcement of their rights and remedies under theFinancing Documents against the Company.(f) Expiry of Cure PeriodIn the event that the Lenders fail to cure any Company Event of Default on or before theexpiration of the Lenders Cure Period, BPDB may exercise its rights and remedies withrespect to such default set forth in this Lease Agreement and BPDB may immediatelyterminate this Lease Agreement, and such termination shall be effective on delivery tothe Lenders or the Agent of notice of such termination.7.5 Notice to the GOB of BPDB’s Default(a) No Termination Without Notice to the GOBNotwithstanding anything in this Lease Agreement, the Company shall not seek toterminate this Lease Agreement as a result of any default of BPDB without first giving acopy of any notices given to BPDB under Sections 7.2 and 7.3 to the GOB, such noticesto be coupled with a request to the GOB to cure any such default within the same cureperiod as provided to BPDB hereunder and such cure period to commence upon deliveryof each such notice to the GOB.(b) Notification ProcedureEach such notice shall be deemed to have been delivered: (i) when presented personallyto the GOB, (ii) when transmitted by facsimile, or (iii) five (5) Days after being depositedin a regularly maintained receptacle for the postal service in Bangladesh, postageprepaid, registered or certified, return receipt requested, addressed to the GOB, at theaddress indicated in Section 17 of the Implementation Agreement (or such other addressas the GOB may have specified by written notice delivered in accordance therewith).Any notice given by facsimile under this Section 7.5 shall be confirmed in writingdelivered personally or sent by prepaid post, but failure to so confirm shall not void orinvalidate the original notice if it is in fact received by the GOB.(c) Termination Not Valid Without Notice to the GOB(i) No rescission or termination of this Lease Agreement by the Company shall be ofany effect without such notice and expiration of such cure period.(d)(ii)The GOB may make or perform, but shall be under no obligation to make anypayment (other than as required under the Guarantee) or to perform any actrequired of BPDB hereunder with the same effect as if the payment or act hadbeen made or performed by BPDB.Failure to Cure Default(i) If the GOB fails to cure or is unable or unwilling to cure a BPDB Event of Defaultwithin the cure periods provided to BPDB under this Lease Agreement, theCompany shall have all its rights and remedies with respect to such default asset forth in this Lease Agreement:(ii) Provided, that if the GOB is diligently attempting to cure such default, other thana payment default of BPDB, and demonstrable progress toward effecting suchcure is being made, the GOB shall be granted an additional period not exceedingninety (90) Days to effect such cure before the Company may exercise its rightsand remedies with respect to such default set forth in this Lease Agreement.24


Land Lease AgreementSECTION 8: RIGHTS AND OBLIGATIONS OF PARTIES UPON TERMINATION8.1 Obligations Upon TerminationUpon expiration or termination of this Lease Agreement, the Company shall immediatelysurrender the Demised Premises and the Parties shall have no further obligations hereunderexcept for obligations that arose prior to such expiration or termination and that expressly survivesuch expiration or termination pursuant to this Lease Agreement. For each Day following the endof the Term that the Company has not surrendered possession of the Demised Premises, theCompany shall be a holdover tenant, and the Company shall pay to BPDB the Rent applicable tothe last Contract Year of the Term, divided by three hundred and sixty-five (365) and multiplied bythree (3). The Company irrevocably agrees that this rent is reasonable and constitutes liquidateddamages to BPDB and is not and shall not be construed to be a penalty.8.2 Other Remedies(a)(b)(c)Remedies CumulativeExcept as otherwise provided herein:(i) the exercise of the right of a Party to terminate this Lease Agreement, asprovided herein, does not preclude such Party from exercising other remediesthat are provided herein or are available at law or in equity; and(ii) remedies are cumulative, and the exercise of, or failure to exercise, one or moreof them by a Party shall not limit or preclude the exercise of, or constitute awaiver of, other remedies by such Party.Limitations of Damages of the CompanyNotwithstanding Section 8.2(a), the Parties agree that the Company may be damaged inamounts that may be difficult or impossible to determine in the event that this LeaseAgreement is terminated by the Company as a result of a BPDB Event of Default.Therefore, the Parties have agreed that the termination of this Lease Agreement and theremedies provided therefor under the Implementation Agreement, including, if applicable,the termination of the Implementation Agreement by the Company under Section 13.2 ofthe Implementation Agreement (and the termination of this Lease Agreement underSection 7.2(a)(iii)) and the payment to the Company by the GOB of the compensationprovided under Section 14.1 of the Implementation Agreement as a result thereof, is inlieu of actual damages and any other liquidated damages which may otherwise bepayable under this Lease Agreement in respect of such termination and the collection ofsuch amount (and, if applicable, the termination of the Implementation Agreement) is thesole remedy of the Company in respect of such termination. The provisions of thisSection 8.2 shall be without prejudice to any right or remedy of the Company whicharises prior to termination of this Lease Agreement.Limitations of Damages of BPDBNotwithstanding the foregoing or any other provision of this Lease Agreement, the Partiesagree that, in the event that BPDB terminates this Lease Agreement as a result of aCompany Event of Default under Section 7.1(a)(iii) and the GOB elects to purchase theFacility and the Company transfers the Facility to the GOB pursuant to Section 14.1 ofthe Implementation Agreement, upon such transfer and payment by the GOB of thecompensation provided under Section 14.1 of the Implementation Agreement, any claimsby BPDB against or liability of the Company under this Lease Agreement (except asprovided in Section 8.1) shall be fully extinguished and BPDB shall have no further claimor recourse against the Company under this Lease Agreement. The provisions of thisSection 8.2 shall be without prejudice to any right or remedy of the Company whicharises prior to termination of this Lease Agreement.25


Land Lease AgreementSECTION 9: RESOLUTION OF DISPUTES9.1 Governing LawThis Lease Agreement and the rights and obligations of the Parties hereunder shall beinterpreted, construed and governed by the laws of Bangladesh.9.2 Resolution by Parties(a)Mutual Discussions(i)(ii)In the event that a Dispute arises, the Parties shall attempt in good faith to settlesuch Dispute by mutual discussions within thirty (30) Days after the date that thedisputing Party gives written notice of the Dispute to the other Party identifyingthe Dispute in reasonable detail and requesting consultations between theParties to resolve the Dispute.If the Dispute involves the amount of an invoice and after ten (10) Business Daysof mutual discussion either Party has determined that further discussion is notlikely to resolve the Dispute to its satisfaction, such Party may immediately referthe matter to the Expert for consideration pursuant to Section 9.3.(b)Referral to Chief Executive Officer(i)(ii)In the event that the Dispute is not resolved in accordance with Section 9.2(a),either Party may refer the Dispute to the chief executive officer or chief operatingofficer of the Company and the designated representative for system operationsof BPDB (or such other official authorised by BPDB) for further consideration.In the event that such individuals are unable to reach agreement within fifteen(15) Days, or such longer period as they may agree, then either Party may referthe matter to an Expert in accordance with Section 9.3 or, if the Dispute is not ofa type required to be referred to an Expert under Section 9.3, commencearbitration of the Dispute in accordance with Section 9.4.9.3 Mediation by Expert(a)(b)In the event that the Parties are unable to resolve a Dispute in accordance with Section9.2, then either Party, in accordance with this Section 9.3, may refer the Dispute to anExpert for consideration of the Dispute and to obtain a recommendation from the Expertas to the resolution of the Dispute.The Party initiating submission of the Dispute to the Expert shall provide the other Partywith a notice stating that it is submitting the Dispute to an Expert and nominating theperson it proposes to be the Expert. The other Party shall, within fifteen (15) Days ofreceiving such notice, notify the initiating Party whether such person is acceptable. If theParty receiving such notice fails to respond or notifies the initiating Party that the personis not acceptable, the Parties shall meet and discuss in good faith for a period of ten (10)Days to agree upon a person to be the Expert. If the Parties are unable to agree withinsuch ten (10) Day period, the Expert shall be selected by the International Chamber ofCommerce following a request of either Party.26


Land Lease Agreement(c)Consideration of the Dispute by an Expert shall be initiated by the Party who is seekingconsideration of the Dispute by the Expert submitting to both the Expert and the otherParty written materials setting forth:(i)(ii)(iii)a description of the Dispute;a statement of the Party’s position; andcopies of records supporting the Party’s position.(d)Within ten (10) Days of the date that a Party has submitted the materials described inSection 9.3(c), the other Party may submit to the Expert:(i)(ii)(iii)a description of the Dispute;a statement of the Party’s position; andcopies of any records supporting the Party’s position.(e)(f)(g)(h)(i)The Expert shall consider any such information submitted by the responding Party withinthe period provided in Section 9.3(d) and, in the Expert’s discretion, may consider anyadditional information submitted by either Party at a later date.The Parties shall not be entitled to apply for discovery of documents, but shall be entitledto have access to the other Party’s relevant records and to receive copies of the recordssubmitted by the other Party.Each Party shall designate one person knowledgeable about the issues in Dispute whoshall be available to the Expert to answer questions and provide any additionalinformation requested by the Expert. Except for such person, a Party shall not berequired to, but may, provide oral statements or presentations to the Expert or make anyparticular individuals available to the Expert.Except as provided in Section 9.3(j) with respect to the payment of costs, theproceedings shall be without prejudice to any Party and any evidence given orstatements made in the course of this process may not be used against a Party in anyother proceedings. The process shall not be regarded as an arbitration and the lawsrelating to commercial arbitration shall not apply. Except as expressly provided otherwisein this Lease Agreement or unless the Parties agree in writing signed by both Parties atthe time the Expert is selected stating that the decision of the Expert will be binding (inwhich case the determination of the Expert shall be binding), the determination of theExpert shall not be binding.When consideration of the Dispute by an Expert is initiated, the Expert shall be requestedto provide a recommendation within fifteen (15) Days after the ten (10) Day responseperiod provided in Section 9.3(d) above has run. If the Expert’s recommendation is givenwithin such fifteen (15) Day period, or if the Expert’s recommendation is given at a latertime and neither Party has at such time initiated any other proceeding concerning theDispute, except for such Disputes where the Expert’s determination is final and bindingon the Parties, the Parties shall review and discuss the recommendation with each otherin good faith for a period of ten (10) Days following delivery of the recommendationbefore proceeding with any other actions.27


Land Lease Agreement(j)(k)If a Party does not accept the recommendation of the Expert with respect to the Dispute,except for such Disputes where the Expert’s determination is final and binding on theParties, it may initiate arbitration proceedings in accordance with Section 9.4; provided,that prior to initiating the arbitration proceedings it shall have paid all costs of the Expert(including the reimbursement of any costs paid to the Expert by the other Party) and allout-of-pocket costs of the other Party. Similarly if the Expert has not submitted itsrecommendation within the time period provided in Section 9.3(i), a Party may initiatearbitration proceedings in accordance with Section 9.4; provided, that prior to initiatingthe arbitration proceedings it shall have paid all costs of the Expert (including thereimbursement of any costs paid to the Expert by the other Party). Notwithstanding theforegoing provisions of this Section 9.3(j), the Parties shall be bound by the decision ofthe Expert pending resolution of the Dispute by arbitration and shall not be excused fromperformance or be entitled to additional time for performance by reason of the Expert’sdecision and any discrepancy in respect thereof or the instigation of such arbitration.Except as provided in Section 9.3(j), the costs of engaging an Expert shall be borneequally by the Parties, and each Party shall bear its own costs in preparing materials for,and making presentations to, the Expert.9.4 Arbitration(a)(b)The Parties agree that any Dispute that has not been resolved following the proceduresdescribed in Section 9.2 and 9.3 shall (subject only to the provisions of Section 9.4(b)) befinally settled by means of arbitration, which, except as provided in Section 9.4(b), shallbe in accordance with the Rules of Procedure for Arbitration Proceedings, hereinafterreferred to as the “ICSID Rules”, from time to time, of the International Centre for theSettlement of Investment Disputes hereinafter referred to as the “Centre” establishedpursuant to the Convention on the Settlement of Investment Disputes between Statesand Nationals of other States 1965 hereinafter referred to as the “Convention”, and,except as provided in Section 9.4(b), the Parties accordingly irrevocably andunconditionally agree to submit themselves and any such Dispute to the jurisdiction of theCentre. For the purposes specified in Articles 25(1) and 25(2)(b) of the Convention withrespect to the jurisdiction of the Centre pursuant to the Convention, the Parties agree that(a) any such Dispute is a legal dispute arising directly out of an investment between aContracting State and a national of another Contracting State and (b) the Company isand shall at all times remain a national of another Contracting State by reason of foreigncontrol unless and until (by reason only of the voluntary sale or transfer of any part of theOrdinary Share Capital by Foreign Investors) the amount of the Ordinary Share Capitalheld by Foreign Investors amounts in aggregate to less than fifty-one (51%) of theOrdinary Share Capital of the Company. Where there is a reduction in the amount ofOrdinary Share Capital other than by reason of such voluntary sale or transfer, suchreduction shall not be included in the determination of the percentage ownership ofOrdinary Share Capital by Foreign Investors.In the event that (i) any request for arbitration made in pursuance of Section 9.4(a) andArticle 6 of the Convention is not registered by the Secretary-General under Article 36(3)of the Convention or (ii) the Centre or the arbitral tribunal fails or refuses to assume or toexercise jurisdiction or to continue to exercise jurisdiction with respect to any Disputereferred to it or (iii) for any other reason the Dispute cannot be finally determined byarbitral proceedings pursuant to the ICSID Rules, then any such Dispute shall bedetermined by means of arbitration in accordance with the Rules of Arbitration of theInternational Chamber of Commerce (the “ICC Rules”); provided, that, notwithstandingthe foregoing, any arbitration to be conducted in Dhaka, Bangladesh pursuant to thisSection 9.4 shall be carried out under the provisions of Bangladesh Arbitration Act of2001, (Act I of 2001).28


Land Lease Agreement(c)(d)(e)(f)(g)Any arbitral proceeding under this Section 9.4 shall be conducted in Dhaka, Bangladesh;provided, that if the Company desires that the arbitration be conducted outside ofBangladesh, the arbitration shall be carried out at the seat of the Singapore InternationalArbitration Centre in the Republic of Singapore and the Company shall pay all of BPDB’scosts of the arbitration, as and when incurred by BPDB, including the out of pocket costsof the arbitration of BPDB in excess of the costs that would have been otherwise incurredby BPDB had the arbitration been conducted in Dhaka, Bangladesh (the “IncrementalCosts”). The arbitrator shall resolve any Disputes as to whether a cost would have beenincurred in connection with the arbitration in Dhaka, Bangladesh or are IncrementalCosts. The arbitrator may order that BPDB bear its own Incremental Costs in part or infull if he finds that BPDB’s claim or defence in the arbitration was spurious and withoutany merit whatsoever, and BPDB shall pay the amount ordered; provided, however, thatif a matter in Dispute involves a sum of ten million Dollars (US$ 10,000,000) or more, orthe legality, validity or enforceability of this Lease Agreement, or the termination of thisLease Agreement, the arbitration shall, unless otherwise agreed by the Parties, beconducted in Singapore, and, in such case, each Party shall pay its own costs ofarbitration as and when incurred, unless such costs are ordered by the arbitrator to bepaid by one Party, in which case they shall be paid by such Party.The Parties agree that the arbitral tribunal constituted in pursuance of a request forarbitration made under Sections 9.4(a) or (b), shall consist of a sole arbitrator who shallbe a person who has held judicial office for a period of not less than three (3) years in acourt of record in England or in a jurisdiction whose laws are substantially derived fromthe common law of England. The Parties further agree that, except in the case of anappointment made by the Chairman of the Administrative Council pursuant to Article 38of the Convention and Rule 4(1) of the ICSID Rules, any person appointed as solearbitrator need not be a person designated to serve on the Panel of Arbitratorsconstituted under Section 4 of Chapter I of the Convention.No arbitrator appointed pursuant to this Section 9.4 shall be a national or resident of thejurisdiction of either Party or of any shareholder or group of shareholders owning directlyor indirectly five percent (5%) or more of the Ordinary Share Capital, nor shall any sucharbitrator be an employee or agent or former employee or agent of or have any materialinterest in the business of or in any Party or any such person.Subject (in the case of arbitral proceedings under Section 9.4(a)) to the provision ofSection 5 of Chapter IV of the Convention and Chapter VII of the ICSID Rules, eachParty hereby irrevocably undertakes (i) to treat any arbitral award or procedural ordermade by the arbitral tribunal constituted pursuant to this Section 9.4 as final and bindingand (ii) undertakes to comply with and to carry out any such arbitral award or proceduralorder, fully and without delay.Without prejudice to the provisions of Article 47 of the Convention and Rule 39 of ICSIDRules (in the case of any arbitral proceeding begun in pursuance of Section 9.4(a)), theParties agree that the arbitral tribunal may, upon the application of either Party, order aParty or the Parties to take such interim measure or measures of protection as thearbitral tribunal may consider necessary with respect to the subject matter of the Disputeor any ancillary claim referred to it, the maintenance or efficient conduct of the arbitrationor the preservation of the rights and interests of any Party under or with respect to thisLease Agreement and the arbitration agreements set forth in this Section 9.4, including,without limitation, the making of an order requiring any Party to refrain from filing orpursuing or to terminate or withdraw any action, suit or proceeding in any court ofcompetent jurisdiction or, to the extent not prohibited by law, other authority which has(directly or indirectly) a connection with the subject matter of the arbitral proceeding orjurisdiction relating to such subject matter, and the Parties agree to abide by and complywith such order(s).29


Land Lease Agreement(h)(i)Until such time as any arbitral proceedings begun in pursuance of Sections 9.4(a) or (b)have been finally concluded (and, for this purpose, all rights of appeal, if any, shall havebeen exhausted), each Party irrevocably agrees not to initiate any proceedings, file anyaction or suit in any court of competent jurisdiction or before any judicial or other authorityarising under, out of, in connection with or relating to this Lease Agreement, thearbitration agreements set forth in this Section 9.4, any Dispute (whether or not any suchDispute shall have been referred to arbitration in pursuance of Sections 9.4(a) and (b)),the subject matter of any Dispute or any arbitral proceeding begun in pursuance ofSections 9.4(a) or (b), including without limitation (i) proceedings brought with a view torecourse or appeal against or revision or the annulment of any arbitral award orprocedural order made by the arbitral tribunal or proceedings or (ii) proceedings in whichrelief or remedy is sought by way of injunction or other judicial order (interlocutory or final)which would have the effect (directly or indirectly) of restraining or impeding themaintenance or prosecution by either Party of any arbitral proceeding initiated inpursuance of Sections 9.4(a) or (b), except proceedings brought exclusively for thepurpose of recognition and enforcement of any arbitral award or procedural order madeby the arbitral tribunal.The language of the arbitration shall be English.9.5 Commercial Acts; Sovereign Immunity; Jurisdiction(a)BPDB unconditionally and irrevocably agrees that the execution, delivery andperformance by it of this Lease Agreement constitute private and commercial acts. Infurtherance of the foregoing, BPDB hereby irrevocably and unconditionally agrees that:(i)(ii)(iii)should any proceedings be brought against BPDB in Bangladesh or in anyjurisdiction where any material assets or property of BPDB is located or againstBPDB’s assets, other than electric generation assets and equipment, electricdistribution assets, other any assets or property of a type protected by thediplomatic and consular privileges under the Immunity Act, 1978 of the UnitedKingdom or the Sovereign Immunities Act, 1976 of the United States or anyanalogous legislation (collectively, the “Protected Assets”) to enforce any awardor decision of any arbitrator(s) who were duly appointed under this LeaseAgreement to resolve a Dispute between the Parties, no claim of immunity fromsuch proceedings will be claimed by or on behalf of BPDB on behalf of itself orany of its assets (other than the Protected Assets).it waives any right of immunity which it or any of its assets (other than theProtected Assets) now has or may in the future have in any jurisdiction inconnection with any such proceedings; andit consents generally to the jurisdiction of any court of competent jurisdiction(including courts in Bangladesh) for any action filed by the Company to enforceany award or decision of any arbitrator who was duly appointed under this LeaseAgreement to resolve any Dispute between the Parties (including withoutlimitation, the making, enforcement or execution against or in respect of any of itsassets (other than the Protected Assets) regardless of its use or intended use)and specifically waives any objection that any such action or proceeding wasbrought in an inconvenient forum and agrees not to plead or claim the same.BPDB agrees that service of process in any such action or proceeding may beeffected in any manner permitted by the law applicable to the aforementionedcourt.30


Land Lease Agreement9.6 Company’s Consent to Jurisdiction(a)(b)The Company hereby unconditionally and irrevocably consents generally to thejurisdiction with respect to itself and all of its assets and property that it now has or maythereafter acquire of the courts of any competent jurisdiction, including the courts inBangladesh, for any action or proceeding filed by BPDB to enforce any award or decisionof any arbitrator(s) or Expert who were duly appointed under this Lease Agreement toresolve any Dispute between the Parties. The Company waives any objection that it maynow or hereafter have to the venue of any action or proceeding brought as consented toin this Section 19.6 and specifically waives any objection that any such action orproceeding was brought in an inconvenient forum and agrees not to plead or claim thesame. The Company agrees that service of process in any such action or proceedingmay be effected in any manner permitted by the law applicable to the aforementionedcourt. The Company irrevocably waives any and all rights it may have to enforce anyjudgment or claim against the Protected Assets in the courts of any jurisdictionFor the avoidance of doubt any dispute or difference between the Parties as to whethereither Party has complied with the affirmation set out in Section 9.5 or this Section 9.6 orboth shall be referred for determination under Section 9.3 and shall fall within thedefinition of Dispute.31


Land Lease AgreementSECTION 10: MISCELLANEOUS PROVISIONS10.1 Notices(a)Except as otherwise expressly provided in this Lease Agreement, all notices or othercommunications to be given or made hereunder shall be in writing, shall be addressed forthe attention of the persons indicated below and shall either be delivered personally orsent by courier, registered or certified mail or facsimile. The addresses for service of theParties and their respective facsimile numbers shall be:If to the Company:Address:Attention:Facsimile:[__________________][__________________][__________________][__________________]If to BPDB:[Bangladesh Power Development BoardAddress:1 st Floor, WAPDA Building, Motijheel C/ADhaka-1000, BangladeshAttention:SecretaryFacsimile: (880) 2-956-6765]With a copy to:[__________________](b)(c)(d)All notices shall be deemed delivered when(i)(ii)(iii)(iv)presented personally;if received on a business day for the receiving Party when transmitted byfacsimile to the receiving Party’s facsimile number specified above; and ifreceived on a Day that is not a Business Day for the receiving Party, on the firstBusiness Day following the date transmitted by facsimile to the receiving Party’sfacsimile number specified above;one (1) Business Day after being delivered to a courier for overnight delivery,addressed to the receiving Party, at the address indicated above (or such otheraddress as such Party may have specified by written notice delivered to thedelivering Party at its address or facsimile number specified above in accordanceherewith); andfive (5) Days after being deposited in a regularly maintained receptacle for thepostal service in Bangladesh, postage prepaid, registered or certified, returnreceipt requested, addressed to the receiving Party, at the address indicatedabove (or such other address as the receiving Party may have specified bywritten notice delivered to the delivering Party at its address or facsimile numberspecified above in accordance herewith).Any notice given by facsimile shall be confirmed in writing delivered personally or sent byregistered or certified mail, but the failure to so confirm shall not void or invalidate theoriginal notice if it is in fact received by the Party to which it is addressed.Either Party may by not less than ten (10) days’ prior written notice change theaddressees and/or addresses to which such notices and communications to it are to bedelivered or mailed.10.2 AmendmentThis Lease Agreement can be amended only by agreement between the Parties in writing,executed by a duly authorised representative of each of the Parties.32


Land Lease Agreement10.3 Third PartiesThis Lease Agreement is intended solely for the benefit of the Parties and, except for rightsexpressly granted to the Lenders, nothing in this Lease Agreement shall be construed to createany duty or any liability to or any right of suit or action whatsoever, to any person not a Party.10.4 No Waiver(a) The failure or delay of either Party to enforce at any time any of the provisions of thisLease Agreement, or to require at any time performance by the other Party of anyprovision hereof, shall neither be construed to be a waiver of such provisions nor affectthe validity of this Lease Agreement or any part hereof or the right of such Partythereafter to enforce each and every such provision.(b) No waiver by either Party of any default or defaults by the other Party in the performanceof any of the provisions of this Lease Agreement:(i) shall operate or be construed as a waiver of any other or further default ordefaults whether of a like or different character; or(ii) shall be effective unless in writing duly executed by a duly authorisedrepresentative of such Party.10.5 SurvivalCancellation, expiration, termination of this Lease Agreement or arbitration of disputes shall notrelieve the Parties of obligations that by their nature should survive such cancellation, expirationor termination, including, without limitation, warranties, remedies, promises of indemnity andconfidentiality.10.6 LanguageThe language of this Lease Agreement shall be English. All documents, notices, waivers and allother communication written or otherwise between the Parties in connection with this LeaseAgreement shall be in English.10.7 EntiretyThis Lease Agreement and the Schedules attached hereto are intended by the Parties as the finalexpression of their agreement and are intended also as a complete and exclusive statement ofthe terms of their agreement with respect to the subject matter hereof. All prior written or oralunderstandings, offers or other communications of every kind are hereby abrogated andwithdrawn.10.8 Successors and AssignsThis Lease Agreement shall be binding upon, and inure to the benefit of, the Parties and theirrespective permitted successors and permitted assigns.10.9 Double JeopardyA final, non-appealable order issued in a proceeding initiated by the GOB and based on a claimof breach of the Implementation Agreement shall be with prejudice to any proceedings againstthe Company that BPDB could otherwise bring for breach by the Company of substantially thesame obligations under this Lease Agreement. Nothing in this Section 10.9 shall prevent BPDBand the GOB from separately initiating proceedings to terminate this Lease Agreement and theImplementation Agreement, respectively, pursuant to Section 7.4 and Sections 13.1 and 13.3 ofthe Implementation Agreement.10.10 CounterpartsThis Lease Agreement is executed in English in counterparts and all so executed counterpartsshall constitute one agreement binding on both Parties.10.11 Comments/VettingThe Comments/Vetting to be provided by the Ministry of Law & Parliamentary Affairs, Ministry ofCommerce and National Board of Revenue will be a part of this Contract.33


Land Lease AgreementIN WITNESS WHEREOF, the Parties have executed and delivered this Lease Agreement as of the datefirst above written.BANGLADESH POWER DEVELOPMENT BOARD[NAME OF COMPANY]By:Name:Title:By:Name:Title:[ SEAL ][ SEAL ]WITNESSWITNESS34


Land Lease AgreementSCHEDULE I: SITE DESCRIPTIONPART A. DESCRIPTION OF THE DEMISED PREMISESKaliakoir Hitech Park, Gazipur power plant complex site will be on a piece of land of 8 (eight) acres. Landwill be provided in "as is" condition for the Facility. Required land development including leveling, filling tothe final elevation, soil compaction will be performed by the Company.PART B. DESCRIPTION OF THE ACCESS ROADThe access road will be constructed (if required) by the Company to connect the Demised Premises withthe nearest public road. The Access Road will need to be elevated above the highest flood level.


Land Lease AgreementSCHEDULE II: RENT PAYMENT TERMS1. The rent payable for the Demised Premises (the “Rent”) shall be Taka four million (Tk. 40,00,000)per Contract Year for the first five (5) Contract Years commencing on the Possession Date. At theend of each fifth Contract Year thereafter, the Rent payable for the next five (5) Contract Yearsshall be automatically increased by an amount equal to twenty percent (20%) of the Rent payablein each of the immediately preceding five (5) Contract Years. The increased Rent amount shallbe applicable (without any further increase until the expiry of another five (5) Contract Yearsthereafter) for the next five (5) Contract Years.2. The Rent for each Contract Year shall be payable by the Company in two equal semiannualinstallments, one on the 1 st Day of the relevant Contract Year and the other on the 1 st Day of theseventh (7 th ) month of each Contract Year; provided always that the first payment of Rent shall bemade by the Company only seven (7) Days after the Possession Date.3. In case of default in paying any installment or installments, the Company shall pay interest at theBank Rate plus four percent (4%) per annum until full realization.


Land Lease AgreementSCHEDULE III: ROAD SPECIFICATIONSACCESS ROAD1.0 GeneralThe Access Road connecting the Demised Premises shall be a bitumen-paved road.2.0 Baseline Criteria(i) Overall width of the Access Road shall be 7.0 m.(ii)(iii)(iv)(v)Design speed of the Access Road shall be 70 km/hr.The elevation of the Access Road embankment shall be at a minimum elevation of 1.0 mabove the HFL.Road lighting shall be required to be provided.Road drainage shall be required to be provided.3.0 DesignThe Access Road shall be built based on the following:(i)(ii)(iii)Surface type = pavedCarriage-way width = 5mShoulder width = 1.0 m(iv) Maximum gradient = 10%(v)Terrain / Design Speed = Level / 70 Km/h.3.1 Geometric Design for the Road(i)(ii)Elevation of the Road: The elevation of the Access Road surface shall be 1 meterabove the HFL of last 25 years.Crossfall: Crossfall should be sufficient to provide adequate surface drainage whilst notbeing so great as to be hazardous by making steering difficult. Crossfall for the surfacewill be 3% (including the shoulders of Access Road).2


Land Lease Agreement(iii)Radius of Curvature: The radius of curvature for the road shall be derived from thefollowing equation :2VR =127×(c + f)Where :R = Radius of curvature (meters)V = Speed of vehicles (km/h), 70Km/hc = Cross-fall of road (meters per meter)f = Coefficient of side friction force developed between the vehicle tires androad pavementAccording to Overseas Road Note 6, c=0.03, f=0.15-0.33, when V=70Km/h, f=0.2.This gives R=167.75mHence R=200m is proposed3.2 Drainage Design for the RoadSince the pavement of the road will be designed to shed water completely, there is no need toprovide drainage for pavement. But drainage for the Access Road shall be installed to protect theAccess Road from erosion.3


Land Lease AgreementAbbreviationsAbbreviations used in this ScheduleThe following abbreviations are used in this scheduleFL:Finished LevelHFL: Highest Flood LevelMHWL: Mean Highest Water LevelMHFL: Mean Highest Flood LevelMLWL: Mean Lowest Water LevelMLFL: Mean Lowest Flood LevelNLWL: Normal Lowest Water LevelPWD: Public Works Datummmmillimetremm 2square millimetremmeterm 2m 3kmsquare metercubic meterkilometre0 C degree Centigrade% percentkgkilogramNrnumberLlitressecondhrhourNNewtonKNkilo NewtonHahectarettonnediaDiameter4

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