Attachment_1_Draft_DABS_PPA.pdf

DATED 20[ ]

POWER PURCHASE AGREEMENT

Re: Solar Powered 10 MW Power Generation Facility at Kandahar, Afghanistan

(1) DA AFGHANISTAN BRESHNA SHERKAT

and

(2) XYZ SOLAR POWER COMPANY LIMITED

CONTENTS

POWER PURCHASE AGREEMENT

RECITALS:

DEFINITIONS

RULES OF INTERPRETATION

ABBREVIATIONS

2. EFFECTIVE DATE; TERM AND AGREEMENTS OF THE PARTIES

EFFECTIVE DATE

TERM

SELLER CONSENTS

APPOINTMENT OF THE OPERATING COMMITTEE

OPERATING PROCEDURES

APPOINTMENT OF THE ENGINEER

SELLER LETTER OF CREDIT

SPECIFICATION OF CONTRACT CAPACITY

3. SALE AND PURCHASE OF ENERGY

SALE AND PURCHASE OF NET DELIVERED ENERGY

4. ELECTRICITY INTERCONNECTION POINT

DELIVERY OF ELECTRIC POWER TO THE FACILITY

PURCHASER OBSERVATION VISITS

5. CONTROL AND OPERATION OF FACILITY

OPERATION AND MAINTENANCE OF THE FACILITY

AVAILABILITY

FORECASTING OF NET DELIVERED ENERGY

DESPATCH INSTRUCTIONS

SCHEDULED OUTAGES AND MAINTENANCE OUTAGES

RECORDING OF COMMUNICATIONS

EMERGENCY SET-UP AND CURTAILMENT PLANS

EMPLOYMENT OF QUALIFIED PERSONNEL

OPERATING COMMITTEE DUTIES

MAINTENANCE OF OPERATING RECORDS

TAMPERING WITH THE METERING SYSTEM AND THE FACILITY MONITORING SYSTEM

CESSATION OF OPERATION OF THE FACILITY

FREE OF LIENS

FORCED OUTAGES OR PARTIAL FORCED OUTAGES

6. INTERCONNECTION FACILITIES

CONSTRUCTION OF THE SELLER INTERCONNECTION FACILITIES

PURCHASER INTERCONNECTION FACILITIES

DATA NECESSARY FOR CONSTRUCTION OF INTERCONNECTION FACILITIES

GRANTING OF EASEMENTS AND RIGHTS-OF-WAY

CONSTRUCTION AND COMPLETION OF PURCHASER INTERCONNECTION FACILITIES

PROTECTIVE DEVICES

TESTING

7. METERING

METERING SYSTEM

INSTALLATION OF METERING SYSTEM

TESTING OF METERING SYSTEM

READING METERS

SEALING OF METERING SYSTEM

REPAIR, REPLACEMENT OR RECALIBRATION OF METERING SYSTEM

PROTECTIVE DEVICES AND TELECOMMUNICATIONS CIRCUIT

8. TESTING OF THE INTERCONNECTION FACILITIES

TESTING OF THE SELLER INTERCONNECTION FACILITIES

COPIES OF TEST RESULTS AND CERTIFICATES

PAYMENT FOR NET DELIVERED ENERGY DURING TESTING

9. COMPENSATION; PAYMENT AND BILLING

ENERGY PAYMENT

PASS-THROUGH ITEMS; SUPPLEMENTAL TARIFFS

LIQUIDATED DAMAGES

BILLING

PAYMENT

PAYMENT DISPUTES

SUPPORTING DATA

10. LIABILITY

11. INDEMNIFICATION

INDEMNIFICATION

ASSERTION OF CLAIMS TO EXCEED MINIMUM INDEMNIFICATION AMOUNT

INDEMNIFICATION FOR FINES AND PENALTIES

DEFENCE OF CLAIMS

NOTICE OF CLAIMS

12. INSURANCE

MAINTENANCE OF INSURANCE POLICIES

MAINTENANCE OF “OCCURRENCE” FORM POLICIES

POLICY ENDORSEMENTS

ENDORSEMENTS TO FIRE, PERILS AND MACHINERY BREAKDOWN POLICIES

CERTIFICATES OF INSURANCE

INSURANCE REPORTS

13. REPRESENTATIONS, WARRANTIES AND COVENANTS

REPRESENTATIONS AND WARRANTIES OF THE SELLER

CERTIFICATES

REPRESENTATIONS AND WARRANTIES OF PURCHASER

14. TAXES

TAXES APPLICABLE TO THE SELLER

TAXES APPLICABLE TO PURCHASER

NOTICE OF CHANGES IN TAX

CONSEQUENCES FOR TAX COSTS OR TAX SAVINGS

DISPUTED TAXES

15. FORCE MAJEURE

DEFINITION OF FORCE MAJEURE

NOTIFICATION OBLIGATIONS

DUTY TO MITIGATE

DELAY CAUSED BY FORCE MAJEURE

PAYMENT DURING FORCE MAJEURE EVENT

COMPENSATION FOR APFME OR CLFME

APPRAISAL REPORT AND USE OF EXPERT

SUPPLEMENTAL TARIFFS

TERMINATION AS A RESULT OF A FORCE MAJEURE EVENT

NOTICE OF TERMINATION

16. TERMINATION

SELLER EVENTS OF DEFAULT

PURCHASER EVENTS OF DEFAULT

NOTICE OF INTENT TO TERMINATE

TERMINATION NOTICE

NOTICE TO THE LENDERS OF THE SELLER’S DEFAULT

OBLIGATIONS UPON TERMINATION

REIMBURSEMENT

OTHER REMEDIES

NOTICE TO THE GOA OF A PURCHASER EVENT OF DEFAULT

17. RIGHTS AND OBLIGATIONS OF PARTIES ON TERMINATION

SURVIVAL OF RIGHTS AND OBLIGATIONS

LIABILITY OF THE PARTIES ON TERMINATION

18. RESOLUTION OF DISPUTES

RESOLUTION BY PARTIES

DETERMINATION BY EXPERT

ARBITRATION

SOVEREIGN IMMUNITY; JURISDICTION

19. MISCELLANEOUS PROVISIONS

NOTICES

AMENDMENT

THIRD PARTIES

NO WAIVER

RELATIONSHIP OF THE PARTIES

LANGUAGE

GOVERNING LAW

ENTIRETY

ASSIGNMENT

CONFIDENTIALITY

SUCCESSORS AND ASSIGNS

NO LIABILITY FOR REVIEW

COUNTERPARTS

SEVERABILITY

PARTIAL INVALIDITY

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

SCHEDULE 5

SCHEDULE 6

LIST OF SCHEDULES

SCHEDULE 1 TARIFF

SCHEDULE 2 SELLER AND PURCHASER INTERCONNECTION FACILITIES; INTERCONNECTION POINT

SCHEDULE 3 METERING

SCHEDULE 4 INSURANCE

SCHEDULE 5 BANK GUARANTEE

SCHEDULE 6 NPMV MEASUREMENT PROTOCOL

POWER PURCHASE AGREEMENT made at [__________] on ______________.2015 (“Agreement”).

PARTIES:

(1) DA AFGHANISTAN BRESHNA SHERKAT (DABS), a company incorporated in Afghanistan

(registered number [ ]) whose registered office is at [ ] (the “Purchaser); and

(2) [XYZ SOLAR POWER COMPANY LIMITED] [of [ ]] [OR] [a company incorporated in

Afghanistan (registered number [ ]) whose registered office is at [ ] (the “Seller”).

(The Purchaser and the Seller are hereinafter referred to individually as a “Party” and collectively as the “Parties”).

RECITALS:

(A) WHEREAS, the Seller has proposed to the Purchaser that the Seller will operate and transfer in approximately ten (10) MWAC(Gross) solar powered electric generation facility (the “Facility”, as hereinafter defined) to be located at the Site (as hereinafter defined) near Kandahar City Province of Kandahar, Afghanistan;

(B) WHEREAS, the Government of Afghanistan (“GOA”, as hereinafter defined), through the

[_______] (as hereinafter defined), on [●] issued to the Seller a Letter of Award (as hereinafter defined) for the operation and transfer of the Facility (the “Project”, as hereinafter defined);

(C) WHEREAS, the Seller wishes to sell and the Purchaser wishes to purchase all of the Net

Delivered Energy (as hereinafter defined) generated by the Facility and delivered to the

Interconnection Point (as hereinafter defined) on and pursuant to the terms and conditions contained herein;

(D) WHEREAS, the Seller is entering into or has entered into an Implementation Agreement with the GOA (as hereinafter defined);

(E) WHEREAS, on the date hereof, the Seller is entering into or has entered into or has entered into the Site Lease (as hereinafter defined) with the [.] (as hereinafter defined); and

(F) WHEREAS, the Seller has been issued Generation License (as hereinafter defined) and has been awarded the tariff pursuant to the Tariff (as hereinafter defined) by the Board of Directors of

DABS.

NOW, THEREFORE, in view of the foregoing premises and in consideration of the mutual benefits to be derived and the representations and warranties, covenants and agreements contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

definitions; Interpretation

DEFINITIONS

“Abandonment” — The Seller’s voluntary cessation of operation of the Facility, and the withdrawal of all, or substantially all, personnel from the Site for reasons other than (i) a breach or default by the

Purchaser under this Agreement; or (ii) a breach or default by the GOA under the Site Lease; or (iii) a

Force Majeure Event; or (iv) an Emergency where the Purchaser requests or approves cessation of operation of the Facility or withdrawal of the Seller’s personnel from the Site in accordance with the

Emergency procedures developed in accordance with Section 5.7.

“Actual Capacity Factor” – The actual annual Capacity Factor of the Facility for any Agreement Year in question, being the ratio of (i) the sum of Net Delivered Energy and Non-Project Missed Volume invoiced by the Seller in such Agreement Year, and (ii) the Permitted Degraded Capacity for that

Agreement Year.

“Affiliate” — Any Person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with another Person.

“Afghani” or “AFN” — The lawful currency of the Islamic Republic of Afghanistan.

“Afghanistan Political Event” – The meaning ascribed thereto in Section 15.1(a).

“Afghanistan Political Force Majeure Event” or “APFME” – The meaning ascribed thereto in Section

15.1(a).

“Agent” — The meaning ascribed thereto in Section 16.5(a).

“Agreement Year” — A period of twelve (12) consecutive months commencing on each consecutive anniversary of the Commercial Operations Date and ending as of the end of the Day preceding the next anniversary of the Commercial Operations Date, except for the first Agreement Year which shall start on the Commercial Operations Date; provided, however, that each Agreement Year shall automatically be extended proportionately by the occurrence of an Other Force Majeure Event declared by the Seller within such Agreement Year for the period for which it was unable to generate Net Delivered Energy due to such Other Force Majeure Event and the number of days such Other Force Majeure Event subsisted;

provided further that in the event of such extension, the immediately succeeding Agreement Year shall commence on the Day following the last Day of such extension and end after a period of twelve (12) consecutive months, and each Agreement Year thereafter shall have a period of twelve (12) consecutive months, in each case subject to any extension for Other Force Majeure Event(s) declared by the Seller.

“Agreement” — This Power Purchase Agreement, together with all of the Schedules attached hereto, dated as of the date first written above, between the Purchaser and the Seller, as may be amended by the

Parties from time to time.

“Ambient Site Conditions” — The climatic conditions at the Site for generation of Net Delivered

Energy or which have an impact on the electrical output and efficiency of the Facility, including, without limitation, solar irradiation, temperature and rainfall, as measured by the Meteorological Station.

“Annual Degradation Factor” – For any Agreement Year, the maximum permitted Degradation in the

Capacity Factor of the Facility for the purposes of this Agreement, being the lower of:

(i) the Initial Capacity Factor reduced on a declining-balance basis for each Agreement Year till the end of the Term at [seven tenths of one percent (0.7%)] of the

Initial Capacity Factor; and

(ii) the annual degradation factor stated in the

Specifications, as specified in tabular form in Annex [2] to Schedule 1; provided, however, if the Actual Capacity Factor for any Agreement Year demonstrates Degradation lower than the Annual Degradation Factor specified in

Annex [2] to Schedule 1 for such Agreement Year, then the Annual Degradation Factor for the next succeeding Agreement Year shall be such lower percentage of Degradation.

“Array” — Each solar photo-voltaic panel constituting a part of the Facility and the inverter associated therewith, which Array shall have a rated AC capacity equal to the rated DC capacity of the solar-voltaic panel multiplied by the efficiency of the associated inverter expressed in kW, and the rated AC capacity of the Facility shall equal the sum of the rated AC capacities of the Arrays installed (or to be installed) therein.

“Average Daily Energy” — For any Agreement Year in consideration, the quantity of electricity expressed in kWh per Day the Facility is assumed capable of generation and delivery at the

Interconnection Point, calculated as follows:

ADEY = DCFY * CC * 8760 / 365

Where

ADEY = the Average Daily Energy for the relevant Agreement Year

DCFY = the Degraded Capacity Factor for the relevant Agreement Year stated in Annex

[•] to Schedule 1

CC = the Contract Capacity provided however, for any period prior to the Commercial Operations Date, the elements ‘DCFY’ and

‘CC’ in the above equation shall be replaced with elements ‘ICFY’ and ‘N’, respectively, where:

ICFY = the Initial Capacity Factor

N = subject to balance of system being installed, the rated capacity in MWAC of the number of Arrays that are:

(i) installed and ready for Commissioning Tests by the Scheduled Commercial Operations Date first notified by the Seller to the Purchaser under Section ●; or

(ii) already Commissioned, provided that, solely in relation to 15.6(a)(ii), “N” shall include the number of Arrays not yet installed or Commissioned for reasons of a APFME or CLFME.

“Back-Up Metering System”— All meters and metering devices (including any remote terminal units and an electronic data recording system) installed by the Seller and thereafter owned and maintained by the Seller as back-up to the Metering System.

“Business Day”— Any Day on which banks are legally permitted to be open for business in Kabul and

Kandahar, Afghanistan.

“Capacity Factor” - The ratio (expressed in percentage terms) of (i) the actual generation in kilowatt hours of a power generation facility in a given period of time, and (ii) its potential output in kilowatt hours if it had been able to operate at full nameplate capacityin kWAC continuously over the number of hours in that given period of time..

“Certificate of Commissioning of the Facility” — The certificate to be issued by the Engineer to the

Seller and the Purchaser under Section 8.3(b) stating that, in the professional opinion of the Engineer, the

Facility has been successfully Commissioned.

“Certificate of Readiness for Seller’s Interconnection Facilities to be Energized” — The certificate to be issued by the Engineer to the Seller and the Purchaser under Section 8.2(b) stating that, in the professional opinion of the Engineer, the Seller Interconnection Facilities are ready to be energized.

"Certificate of Readiness for Synchronization" – The certificate to be issued by the Engineer to the

Seller and the Purchaser under Sections 8.1(b) stating that the Facility is ready for and capable of synchronization with the Grid System.

“Change in Law” —

(a) The adoption, promulgation, repeal, modification or re-interpretation after the date of this

Agreement by any Public Sector Entity of any Law of Afghanistan (including a final, binding and non-appealable decision of any Public Sector Entity);

(b) the imposition by a Relevant Authority of any material term or condition in connection with the issuance, renewal, extension, replacement or modification of any Seller Consent after the date of this

Agreement; or

(c) the imposition by a Relevant Authority of any additional Seller Consent, that in the case of each of clause (a), (b), or (c) hereinabove establishes either a material change in cost or in revenue, or any requirement for the design, build, finance, own, Commission, operate and transfer of the Facility that is more restrictive than the most restrictive requirements (i) in effect as of the date of this

Agreement, (ii) specified in any applications, or other documents filed in connection with such applications, for any Seller Consents filed by the Seller on or before the Commercial Operations Date, and (iii) agreed to by the Seller in any of the Project Agreements.

“Change in Tax Assessment” — The meaning ascribed thereto in Section 14.3(b).

“Change in Tax Notice” — The meaning ascribed thereto in Section 14.3(a).

“Change in Tax” — After the date hereof, the adoption, enactment, promulgation, coming into effect, repeal, amendment, re-interpretation, change in application, change in interpretation or modification by any Public Sector Entity of any Law of Afghanistan relating to any Tax or Taxes.

“CLFME”— A Change in Law if and to the extent that it is also a Force Majeure Event.

“Commercial Operations Date” — The Day immediately following the date on which the Facility is

Commissioned, provided that, in no event shall the Commercial Operations Date occur earlier than sixty

(60) Days prior to the Required Commercial Operations Date without the prior written approval of the

Purchaser.

“Commissioned” — The successful completion of Commissioning of the Facility for operation synchronous with the Grid System in accordance with Article VIII and Schedule 7, and the certification of such successful completion of Commissioning to the Purchaser and the Seller by the Engineer.

“Commissioning Tests” — The tests (including the Reliability Run Test) and successful completion criteria for such tests specified in Schedule 7, to be carried out pursuant to Sections 8.2, 8.3 and Schedule

7.

“Commissioning” — The undertaking of the Commissioning Tests on the Facility.

“Consents”– The Seller Consents and the Purchaser Consents.

“Construction Report”— The reports to be submitted by the Seller pursuant to Section 4.2(a), which shall address the matters identified in, and shall be substantially in the form set forth in Schedule 4.

“Construction Start Date” — The date the ‘notice to proceed’ is issued by the Seller to the EPC

Contractor..

“Contract Capacity”—The rated capacity of the Facility in MWAC which the Seller commits to install and operate at the Site under this Agreement pursuant to Section 2.8(a), as may be revised pursuant to

Section 2.8.

“Cure Period” – The meaning ascribed thereto in Section 16.3(b).

“Customs Duties” — All duties and taxes applicable on or relating to the import into or export from

Afghanistan of plant, machinery and equipment, and levied by any Public Sector Entity under [.].

“DABS” — Da Afghanistan Breshna Sherkat a company incorporated in Afghanistan, or the Purchaser.

“Day” — A period of twenty-four (24) hours, commencing at 12:00 midnight of each day, and “Daily” shall be construed accordingly.

“Degradation” – The progressive degradation in the photovoltaic conversion efficiency of the solar PV modules resulting in progressive reduction of Net Delivered Energy the Facility is capable of producing at constant Ambient Site Conditions during the Term.

“Degraded Capacity Factor” - For any Agreement Year, the Capacity Factor of the Facility corresponding to the Permitted Degraded Capacity for that Agreement Year.

“Delayed Payment Rate” — [.] plus [.] percent ([.]%) per annum, calculated for the actual number of

Days that the relevant amount remains unpaid on the basis of a three hundred and sixty-five (365) Day year.

“Despatch Instructions” – The original, successive or revised instructions for Despatch (including but not limited to revision on the basis of information provided by the Seller).

“Despatch” - The decrease, increase or cessation of the generation and delivery of Net Delivered Energy to the Interconnection Point in accordance with the Technical Limits and the then prevailing Ambient Site

Conditions, in response to Despatch Instructions, and “Despatched” shall be construed accordingly.

“Dispute” — Any dispute or disagreement or difference arising under, out of, in connection with or relating to this Agreement, including any dispute or difference concerning the existence, legality, validity or enforceability of this Agreement or any provisions hereof, or the obligations or performance of a Party in accordance with any provision hereof.

“Dollar” or “$” or “US$”— The lawful currency of the United States of America.

“Due and Payable Date” — The meaning ascribed thereto in Section 9.5(a).

“Effective Date”— The meaning ascribed thereto in Section 2.1(c).

“Election Notice” — The meaning ascribed thereto in Section 16.5(b).

“Emergency” — An event or circumstance affecting the Grid System which:

(i) is described as an emergency and contingency event in the Grid Code; or

(ii) materially and adversely affects (as determined solely by the Purchaser) the availability of the

Grid System, or the ability of the Purchaser to maintain safe, adequate and continuous electrical service to its customers, having regard to the then-current standard of electrical service provided to its customers; or

(iii) presents a physical threat to persons or property or the security, integrity or reliability of the Grid

System; or

(iv) which the Purchaser reasonably expects to have the effects specified in clauses (i), (ii) or (iii) hereinabove.

“Engineer” — The firm of engineering consultants to be appointed and hired by the Seller with the approval of the Purchaser in accordance with Section 2.6 to monitor the construction of the Facility and

Commissioning and to deliver the related certificates to the Seller and the Purchaser and to carry out all of the Engineer’s responsibilities specified in this Agreement, including certifying to the Purchaser and the

Seller the results of the Commissioning Tests as required herein.

“Environmental Standards” — Collectively, the environmental guidelines and occupational health and safety standards established by the relevant Public Sector Entity.

“Escrow” — the escrow arrangement provided in Article 9.5.

"Escrow Account" - The account that may be established by the Purchaser pursuant to Article 9.5 for the payment of amounts owed to the Seller under this Agreement.

"Escrow Agreement" - The agreement between the Purchaser, the Seller and the Escrow Agent controlling the disposition of funds deposited in the Escrow Account by the Purchaser.

"Escrow Agent" - A bank acceptable to the Seller in Afghanistan with which the Purchaser establishes the Escrow Account.

“Evaluation Period” - The meaning ascribed thereto in Section 16.5(b).

“Expert” — The meaning ascribed thereto in Section 18.2(a).

“Extended Cure Period” – The meaning ascribed thereto in Section 16.5(b), as maybe extended in terms thereof.

“Extended Period” – The meaning ascribed thereto in Section 15.9(d).

“Facility”— The electric power generation facility comprising Arrays of solar photo-voltaic modules located at the Site and the Seller Interconnection Facilities (but excluding the Purchaser Interconnection

Facilities), having a nominal rated capacity of approximately [___] MWAC (Contract Capacity) to be designed, engineered, constructed, Commissioned, owned, operated, maintained and insured by the Seller during the Term, whether completed or at any stage in its construction, including without limitation or regard to level of development, engineering and design documents, all energy-producing equipment and auxiliary equipment, data-communication and recording equipment and systems, the Meteorological

Station, the Facility Monitoring System, the inverter system, all spare parts stored at Site and all other equipment or facilities necessary for delivery of electric power to the Purchaser at the Interconnection

Point, which Facility is described in Schedule 2.

"Facility Monitoring System"

- The system comprising the SCADA System which shall be installed and operated by the Seller in accordance with the minimum technical and functional specifications (including agreed parameters for the data) prescribed in Schedules 2 and 5.

“Central Entity” — Any Public Sector Entity subject to the overall control or direction of the GOA or which is otherwise under or controlled by the GOA.

“Financial Closing” — (a) The execution and delivery of the Financing Documents that (together with equity commitments) evidence sufficient financing for the construction, testing, completion of the Facility and Commissioning and evidence of commitments for such equity as is required by the Seller to satisfy the requirements of the Lenders, and (b) the delivery of the Seller Letter of Credit in accordance with the terms of the Power Purchase Agreement

“Financing Documents” — Loan agreements listed in Schedule [.], and all related notes, indentures, security agreements, guarantees, notices and schedules of disbursements as amended from time to time, but excluding any loan, financing and security agreements and related instruments entered into by the

Seller with any lenders for working capital or similar short-term credit facilities.

“Force Majeure Event” — The meaning ascribed thereto in Section 15.1.

“Forced Outage or Partial Forced Outage” — From and after the Commercial Operations Date, a total or partial interruption of the Facility’s generating capability that is not the result of:

(i) a request by the Purchaser in accordance with this Agreement,

(ii) a Scheduled Outage or a Maintenance Outage,

(iii) a Force Majeure Event,

(iv) a Non Project Event, 1Based on first project-specific negotiations, only SCADA System may be retained if all the requisites for the Complex Monitoring System can be fulfilled by SCADA System.

(v) a condition caused solely by the Purchaser or the Grid System, or

(vi) a condition that is caused solely by the GOA.

“Foreign Currency” — Any legal currency other than Afghanis.

“Generation Licence” — The permission/license No. [_______], dated __ ________201[•], issued by

MEW allowing the generation, supply and sale of electricity by the Seller from the Facility in accordance with the terms and conditions of such license.

“GOA” — The Government of the Islamic Republic of Afghanistan.

“Grid Code” – all standards, codes and practices, which are relevant or ought to be consulted and which establish, inter alia, requirements for interconnection with Grid, as it may be revised from time to time.

“Grid System Frequency” — The frequency of the Grid System measured in hertz.

“Grid System” – The transmission facilities owned or operated by the DABS.

“Guarantee” — The guarantee by the GOA of the payment obligations of the Purchaser under this

Agreement.

“Initial Capacity Factor” — The annual Capacity Factor for the Facility assumed in the Tariff for the geographical region in which the Facility is located for the initial year of operation of the Facility.

“Initial Cure Period” – The meaning ascribed thereto in Section 16.5(a) and as may be extended under

Section 16.5(b).

“Interconnection Point” — The physical point or points where the Facility and the Grid System are to be connected, as agreed between the Parties and specified in Schedule 3, at which point the Purchaser shall receive the Net Delivered Energy.

“Interconnection Works Schedule” — The schedule for carrying out the Seller Interconnection Works and the Purchaser Interconnection Works as described in Schedule 3, and as may be adjusted in accordance with Article VI.

“International Electrotechnical Commission” or “IEC” — The International Electrotechnical

Commission (Commission Électrotechnique Internationale), a non-profit, non-governmental international standards organization with its headquarters in Geneva, that prepares and publishes international standards for all electrical, electronic and related technologies, collectively known as "electrotechnology".

“Investor” — The holder, from time to time of Ordinary Share Capital, as well as the holder of any securities convertible at the option of the holder into Ordinary Share Capital.

“Lapse of Consent” — Any Seller Consent (a) ceasing to remain in full force and effect and not being renewed or replaced within the time-period prescribed by the applicable Laws of Afghanistan for renewal or replacement of such Seller Consent or, where a time-period is not prescribed by the applicable Laws of

Afghanistan, within sixty (60) Days of such Seller Consent ceasing to be in full force and effect; or (b) ot being issued upon application having been properly and timely made and diligently pursued within the time-period prescribed by the applicable Laws of Afghanistan or, where a time-period is not prescribed by the applicable Laws of Afghanistan, within sixty (60) Days of proper application being made for such

Seller Consent; or (c) being made subject, upon renewal or otherwise, to any terms or conditions that materially and adversely affect the Seller’s or a Contractor’s ability to perform its obligations under any document included within the Project Agreements in each of the above instances, despite such party’s compliance with the applicable procedural and substantive requirements as applied in a “non-discriminatory” manner.

“Laws of Afghanistan” — The laws of Afghanistan, and all orders, rules, regulations, statutory regulatory orders, decrees, judicial decisions, notifications, executive orders, or other similar directives pursuant thereto issued by any Public Sector Entity that in each case have the effect of law and are enforceable under law, including the Environmental Standards, as any of them may be amended, re-promulgated, substituted or replaced from time to time.

“Lender Debt Certification” – The meaning ascribed thereto in Section 8.2(b).

“Lenders” — “The financial institutions party to the Financing Documents, or subsequent financial institutions that become parties to the Financing Documents, together with their respective successors and assigns.

“Letter of Award” — The Letter of Award, dated __ _________ 201[•], issued by MEW to the Seller, as may be amended or extended prior to Financial Closing.

“Lien” — Any mortgage, pledge, lien, security interest, conditional and instalment sale agreement, encumbrance, claim or charge of any kind.

“Loss” — Any loss, damage, cost, liability, payment and obligation (excluding any indirect or consequential loss, damage, liability, payment or obligation), and all expenses (including, without limitation, reasonable legal fees).

“Maintenance Outage” — An interruption or reduction of the generation capability of the Facility scheduled by the Seller in consultation with the Purchaser in accordance with Section 5.6 for the purpose of performing work on specific components, which, considering the Technical Limits and Prudent Utility

Practices, should not, in the reasonable opinion of the Seller, be postponed until the next Scheduled

Outage.

“Meteorological Station ” – One or more stations on the Site that will monitor and measure the Ambient

Site Conditions, the design, components, installation, performance capabilities, and testing of which shall be in accordance with the requirements of Schedule 7 with certification of the foregoing requirements to be delivered to the Purchaser by the Engineer together with the certification of the results of the

Commissioning Tests, with the Purchaser being provided advance notice of, and being allowed to be present at, the installation and testing of the Meteorological Station and all of the components thereof.

“Metering System” — All meters and metering devices (including, if applicable, any remote terminal units and electronic data-recording and telemetry system) to be procured by the Purchaser (subject to

Section 7.1(b)), and thereafter installed and tested by the Seller and transferred to the Purchaser, and thereafter owned and maintained by the Purchaser and used to measure the Net Delivered Energy.

“MEW” — The Ministry of Energy and Water of Government of Afghanistan, or its successor entity.

“Minimum Indemnification Amount” — The amount, equal to one-hundred thousand Dollars

($100,000), that a Party's claims for indemnification pursuant to Article XI must exceed in the aggregate before that Party will be entitled to indemnification.

“Month” — A calendar month according to the Gregorian calendar beginning at 12:00 midnight on the last Day of the preceding month, and ending at 12:00 midnight on the last Day of that month.

“Monthly Energy” — For any Month, the sum of Net Delivered Energy and the Non-Project Missed

Volume.

“Net Delivered Energy” — The net electric energy expressed in kWh generated by the Facility and delivered at the Interconnection Point, as measured by the Metering System or the Back-Up Metering

System (as the case may be).

“Non-Project Event”— Each of the following events or circumstances:

(i) constraints on or the unavailability of the Grid System,

(ii) variations in Grid System Frequency outside the Technical Limits,

(iii) Grid System voltage outside the Technical Limits,

(iv) an Emergency, or

(v) a Despatch Instruction, in each case:

(i) being the proximate and direct cause of cessation or reduction of the generation of Net

Delivered Energy, and

(ii) not caused by:

(A) a Forced Outage, a Partial Forced Outage, a Scheduled Outage, a Maintenance

Outage or the operating conditions (including the Ambient Site Conditions) at the

Facility; or

(B) a fault or failure of any equipment or safety device comprised in the Facility.

“Non-Project Missed Volume" or "NPMV” — The volume of electric energy expressed in kWh, not delivered by the Facility at the Interconnection Point due solely to a Non-Project Event, measured and recorded in the manner provided in Schedule 10, provided, that the generation and delivery of the electric energy shall be resumed as soon as technically possible as per Despatch Instructions upon cessation of the relevant Non-Project Event (except where prevented by another Non-Project Event).

"NPMV Protocol" – The protocol set out in Schedule 10.

“Notice of Intent to Terminate” — A notice delivered by the Seller or the Purchaser, as the case may be, of its intent to terminate this Agreement pursuant to Section 16.3.

“O&M Agreement” — The agreement to be entered into between the Seller and the O&M Contractor for the operation and maintenance of the Facility, as may be amended from time to time.

“O&M Contractor” — Any operation and maintenance contractor, and any successor thereto, appointed by the Seller and not objected to by DABS.

“Operating Committee” — The committee established by the Parties pursuant to Section 2.4 for the purposes described in Section 2.5 and Section 5.10.

“Operating Procedures” — The procedures for the operational interfaces between the Facility and the

Grid System to be determined by the Operating Committee in accordance with Section 2.5.

“Ordinary Share Capital” — Any shares of the Seller with voting or other rights of management and control, and any securities of the Seller that are convertible into such shares at the option of the holder.

“Other Force Majeure Event” or “OFME” — Any Force Majeure Event, as defined in Section 15.1, that is not a APFME or a CLFME.

“Party” — Each of the Purchaser and the Seller, and the “Parties” means both of them.

“Pass-Through Items” — Certain costs or charges identified as Pass-Through Items in Schedule 1.

“Performance Guarantee” - – The meaning ascribed thereto in Schedule 2.

“Performance Ratio” – The meaning ascribed thereto in Schedule 2.

“Permitted Degraded Capacity” – For any Agreement Year, the Contract Capacity as reduced by the

Annual Degradation Factor in succession for the preceding Agreement Years.

“Person” — Any person, including without limitation any firm, company, corporation, society, government, state or agency of a state (including any Public Sector Entity), or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing.

“PPA Direct Agreement”— An agreement between the Lenders, the Seller and the Purchaser pertaining to rights and liabilities of the Lenders relating to this Agreement.

“Pre-COD Energy Payment” – The meaning ascribed thereto in Section 8.7.

“Pre-COD Energy Price” – The energy price as prescribed in Schedule 1

“Project” - Each of the following activities:

(a) the ownership and possession of the Facility;

(b) the design, building, financing, owning, Commissioning, operation, transfer of the Facility;

(c) the procurement, importation, exportation (for remedying defects, repair, maintenance or refurbishing) and contracting for goods, equipment and services for the Facility;

(d) the insuring, operation, maintenance and repair of the Facility, including any Restoration;

(e) the generation and sale of Net Delivered Energy;

(f) the recruitment, employment and training of staff for the Facility;

(g) dealing with in accordance with the applicable government policy relating thereto, as amended from time to time; and

(h) all other activities reasonably incidental or related to any of the above.

“Project Agreements”– The meaning ascribed thereto in the Implementation Agreement.

“Provincial Authorities” — The Government authorities of the Province of Kandahar.

“Prudent Electrical Practices” — The use of equipment, practices or methods, as required to comply with applicable industry codes, standards, and regulations in Afghanistan (i) to protect the Grid System, employees, agents, and customers from malfunctions occurring at the Facility; and (ii) to protect the

Facility and the Seller’s employees and agents at the Facility from malfunctions occurring on the Grid

System. Prudent Electrical Practices are not limited to optimum practices, methods or acts to the exclusion of all others, but rather, where not expressly catered for in the Grid Code, are a spectrum of possible practices, methods and acts which could have been expected to accomplish the desired result at reasonable cost consistent with reliability and safety applicable with reference to solar-powered projects.

“Prudent Utility Practices” — Those practices, methods and procedures conforming to safety and legal requirements which are attained by exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced generator of electricity engaged in the same or a similar type of undertaking or activity under the same or similar circumstances and conditions to those pertaining in Afghanistan, and satisfying the health, safety and environmental standards of reputable international electric generation companies. Prudent Utility

Practices are not limited to optimum practices, methods or acts to the exclusion of all others, but rather, where not expressly catered for in the Grid Code, are a spectrum of possible practices, methods and acts which could have been expected to accomplish the desired result at reasonable cost consistent with reliability and safety applicable with reference to solar-powered projects.

“Public Sector Entity” — (a) The GOA, the Provincial Authorities, any sub-division of either, or any local governmental authority with jurisdiction over the Seller, the Project, or any part thereof; (b) any department, authority, instrumentality or agency of the GOA, or any such Provincial Authority; (c) courts and tribunals in Afghanistan; or (d) any commission or independent regulatory authority, agency or body having jurisdiction over the Seller, the Project or any part thereof.

“Purchaser Consents” — All approvals, consents, authorizations, notifications, concessions, acknowledgements, licences, permits, decisions or similar items issued by a Relevant Authority, and which the Purchaser or any of its contractors is required to obtain from any Relevant Authority and thereafter to maintain to fulfil its obligations under this Agreement.

“Purchaser Event of Default” — The meaning ascribed thereto in Section 16.2.

“Purchaser Interconnection Facilities” — The facilities and equipment to be designed, constructed or installed by or on behalf of the Purchaser on the Purchaser’s side of the Interconnection Point, as described in Schedule 3.

“Purchaser Interconnection Works” — Those works and activities described in Schedule 3 to be undertaken by or on behalf of the Purchaser for the design, engineering, construction, installation and commissioning of the Purchaser Interconnection Facilities in accordance with this Agreement.

“Purchaser”- DABS a [public] limited company incorporated under the laws of Afghanistan, with its principal office located at [.], Afghanistan, and its successors and permitted assigns.

“Reference Tariff Table” — The table in Annex 1 of Schedule 1 that provides the Reference Tariff and the amounts thereof for each Agreement Year during the Term.

“Reference Tariff” – The reference per kWh rate for Net Delivered Energy expressed in US$ pursuant to the Tariff including the terms and conditions applicable thereto, as approved specifically for and allowed to the Seller by DABS (as further described in Schedule 1 to this Agreement).

“Relevant Authority” — The department, authority, instrumentality, agency or other relevant entity from which a Seller Consent is to be obtained and any authority, body or other Person having jurisdiction under the Laws of Afghanistan with respect to the Project, the Purchaser and this Agreement, as the case may be.

“Reliability Run Test” — The part of the Commissioning Tests carried out on the Facility in accordance with Section 8.3 and Schedule 7 that demonstrates the reliable operation of the Facility, which shall be the continuous operation of the entire Facility from sun-up to sun-down on consecutive Days (subject to there being minimally acceptable Ambient Site Conditions for testing purposes) for an aggregate period of

[forty-eight (48)] hours during which period the Facility shall deliver to the Interconnection Point Net

Delivered Energy equivalent to not less than the Contract Capacity for the full test period, adjusted to account for the Ambient Site Conditions prevailing during the Reliability Run Test period as measured by the Meteorological Station.

“Required Commercial Operations Date” or “RCOD” — The date that is [.] months following the date on which Financial Closing occurs, as such date may be extended pursuant to Section 6.5, Section

8.1(b), Section 8.8, or by reason of a Force Majeure Event, any breach or default by the Purchaser of or under this Agreement or by any Public Sector Entity of or under the Site Lease, or any Non-Project Event.

“Restoration Cost Estimate” —The meaning ascribed thereto in Section 15.6(a).

“Restoration Period” —The period of restoration established in the Restoration Schedule and as defined in Section 15.6(a).

“Restoration Schedule” —The meaning ascribed thereto in Section 15.6(a).

“Restoration” — The meaning ascribed thereto in Section 15.6.

“Rules” — The meaning ascribed thereto in Section 18.3(a).

“SCADA System” — A supervisory control and data acquisition system.

“Scheduled Commercial Operations Date” — The date reasonably estimated by the Seller as the

Commercial Operations Date based on the then-existing construction schedule, as notified to the

Purchaser, as such date may be modified by the Seller from time to time in the Construction Reports or in other written notices from the Seller to the Purchaser.

“Scheduled Outage” — A planned interruption of the Facility’s generating capability or any material part thereof that has been scheduled by the Seller in consultation with the System Operator in accordance with Section 5.5 for inspection, testing, preventive maintenance, corrective maintenance, repairs, replacement or improvement of the Facility or any material part thereof.

“Seller” — [Name of Company], a [public/private limited] company incorporated under the laws of

Afghanistan, with its registered office at _____________, ___________, Afghanistan, and its permitted successors and permitted assigns and any permitted Transferee and includes its contractors and sub-contractors integrally involved in the Project.

“Seller Consents” — All approvals, consents, authorizations, notifications, concessions, acknowledgements, licenses (including the Generation License), permits, decisions or similar items issued by a Relevant Authority or a Public Sector Entity and which the Seller are required to obtain from any

Relevant Authority or Public Sector Entity and, thereafter, to maintain for fulfilling its obligations under this Agreement; provided, however, that in no event shall the Seller Consents include any concessions or exemptions from the Laws of Afghanistan unless they are expressly granted.

“Seller Event of Default” — The meaning ascribed thereto in Section 16.1.

“Seller Interconnection Facilities” — The facilities and equipment designed or to be designed, constructed and installed by or on behalf of the Seller on the Seller’s side of the Interconnection Point, as described in Schedule 3, including any telemetering equipment, transmission lines, and associated equipment, transformers and associated equipment, relay and switching equipment, telecommunications devices, data interface for the SCADA System and the Facility Monitoring System, protective devices and safety equipment.

“Seller Interconnection Works” — Those works and activities described in Schedule 3 to be undertaken by or on behalf of the Seller for the design, build, finance, own, Commission, operate and transfer of the

Seller Interconnection Facilities in accordance with this Agreement.

“Seller Letter of Credit” — An unconditional, irrevocable, direct-pay, divisible, and transferable on demand bank guarantee in favour of the Purchaser in the form of bank guarantee set out in Schedule 9, issued or to be issued by a bank or other financial institution reasonably acceptable to the Purchaser, which provides for draws by the Purchaser in immediately available funds on a Monthly basis upon presentation at a bank in Kabul, Afghanistan, which shall be delivered by the Seller to the Purchaser in the amount of US Dollars One Million Eight Hundred Thousand Dollars, only (US$ 1,800,000/).

“Shortfall Energy Account” – The meaning ascribed thereto in Section 9.3(c).

“Shortfall Energy” – For any Agreement Year, the shortfall, if any, in the electricity generated by the

Facility and calculated in accordance with the Schedule [.].

“Site” — The meaning ascribed thereto in the Site Lease.

“Site Lease” — The Site Lease deed, entered or to be entered into by and between the [.] as the lessor and the Seller as the lessee for lease of the Site, as may be amended by the parties thereto from time to time.

“Specifications” — The specified Performance Ratio and the Performance Guarantee of the Facility and the simulation report and other technical and functional specifications of the PV modules, inverters, protection devices and balance of system comprising the Facility, as set forth in Schedule 2 and in the respective manufacturers’ product data sheets that are attachments to Schedule 2.

“Succession Notice” — The meaning ascribed thereto in Section 19.9(c).

“Supplemental Tariff” — Additional compensation payable by the Purchaser to the Seller as provided in Section 9.2, Section 15.8 and Schedule 1.

“System Operator” — The DABS, acting in its capacity as the owner and operator of the Grid System in accordance with the provisions of the Grid Code, or any substitute or successor entity with the legal competence to assume the responsibilities with respect to the issuance of Despatch Instructions hereunder and which entity has generally the responsibility for despatch of the electric generation facilities delivering electric energy into the Grid System, and its successors and assigns.

“Tariff ”— The Tariff appended herewith as Schedule 1.

“Tax Costs” — An amount equal to the amount of any new or additional Tax or an increase in an existing Tax payable by the Seller in relation to the Project, as a result of a Change in Tax.

“Tax Savings” — An amount equal to the amount of any decrease or reduction in or elimination of a Tax payable by the Seller in relation to the Project as a result of a Change in Tax.

“Tax” or “Taxes” — Any tax, charge, cess, impost, tariff, duty, basis for assessing taxes (including the rates of or periods for depreciation of assets for tax assessment purposes), fiscal concession or allowance imposed by or payable to a Public Sector Entity, including any value added taxwater or environmental or energy tax, import or Customs Duty, withholding tax, excise tax, tax on Foreign Currency or foreign exchange transactions or property tax. The term “Tax” shall not include any fee or charge payable to a

Public Sector Entity as consideration for goods or services provided by such Public Sector Entity in relation to a commercial activity carried out by such Public Sector Entity.

“Technical Limits” — The limits and constraints in Schedule 5 (including the manufacturer’s product data sheets annexed to Schedule 5) relating to the operation and Despatch of the Facility.

“Term” — The meaning ascribed thereto in Section 2.2.

“Termination Date” — The meaning ascribed thereto in Section 16.4(a).

“Termination Notice” — The meaning ascribed thereto in Section 16.4(a).

“Threshold Amount” —The meaning ascribed thereto in Section 15.6(j).

“Transferee” — The meaning ascribed thereto in Section 19.9(j).

“Week” — Each period of seven (7) consecutive Days beginning at 12:00 midnight falling between a

Saturday and a Sunday.

“Year” — Each twelve (12) Month period commencing on 12:00 midnight on the 31st of December and ending on 12:00 midnight the following 31 st of December during the Term.

RULES OF INTERPRETATION

In this Agreement:

1.2.1 headings are for convenience only and shall be ignored in construing this Agreement;

1.2.2 other than where the context determines otherwise, the singular includes the plural and vice versa;

1.2.3 references to Sections, Articles, Recitals and Schedules are, unless otherwise specified, references to Sections and Articles of, and Schedules and Recitals to, this Agreement;

1.2.4 unless otherwise expressly provided herein, whenever a consent or approval is required by one

Party from the other Party, or where a Party has a right to raise an objection, such consent or approval shall not be unreasonably withheld or delayed, and such objection shall be raised on reasonable grounds. Whenever under this Agreement a Party is required to exercise discretion by:

(a) giving a decision, opinion or consent; (b) expressing a satisfaction or approval; or (c) otherwise taking actions which may affect the rights or obligations of the other Party, the Party exercising such discretion shall exercise such discretion fairly and reasonably;

1.2.5 the words “include”, “including, and “in particular” shall not be construed as, nor shall they have the effect of limiting the generality of the preceding words to which they are related;

1.2.6 references to a Party are references to a party to this Agreement, including that Party’s assigns or transferees permitted in accordance with the terms of this Agreement and its successors in title;

1.2.7 in carrying out its obligations and duties under this Agreement, each Party shall have an implied obligation of good faith. Notwithstanding anything contained herein otherwise, the Parties acknowledge that any and all usage of the words “liquidated damages” in this Agreement shall be construed as representing the Parties good faith reasonable estimate of the actual damages and/or losses for that particular event or occurrence;

1.2.8 reference to any Laws of Afghanistan shall include reference to such Laws of Afghanistan, as amended, re-promulgated, substituted or replaced from time to time;

1.2.9 the Schedules (and if any schedules or tables thereto) to this Agreement form part of this

Agreement, and capitalized terms and abbreviations used in the Schedules (and if any schedules or tables thereto) which are not defined therein shall have the meanings given to them in Sections

1.1 and 1.3of this Agreement, respectively; and

1.2.10 except as otherwise indicated in this Agreement, references to time are references to time and…