EXECUTION VERSION Implementation Agreement between Republic of [PDF]

EXECUTION VERSION _________________________________________________________________

Implementation Agreement between Republic of Kosovo acting through the Ministry of Economic Development and ContourGlobal Terra 6 S.à r.l.

John J. Beardsworth, Jr. 951 E. Byrd St. Richmond, VA 23219 Phone: +1 804 788 8637 [email protected] _________________________________________________________________

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Table of Contents Page Article 1

Definitions; Interpretation ....................................................................................................................................... 2 1.1 Definitions .................................................................................................................................................. 2 1.2 Interpretation............................................................................................................................................. 22

Article 2

Effective Date; Term .............................................................................................................................................. 23 2.1 Effectiveness; Term .................................................................................................................................. 23

Article 3

Implementation of the Kosovo e Re Project ......................................................................................................... 23 3.1 Implementation of the Kosovo e Re Project ............................................................................................. 23 3.2 No Discrimination; No Expropriation ....................................................................................................... 23 3.3 Tender (Plant) for EPC Contractor and LTM Contractor.......................................................................... 24 3.4 Financing .................................................................................................................................................. 24 3.5 Acquisition of Land .................................................................................................................................. 26 3.6 Resettlement ............................................................................................................................................. 27 3.7 Separate Accounting ................................................................................................................................. 27 3.8 No Other Business Undertakings .............................................................................................................. 27 3.9 Appointment of the GOK-Appointed Independent Engineer .................................................................... 28 3.10 Appointment of the Independent E&S Consultant .................................................................................... 28 3.11 Procurement of Goods and Services ......................................................................................................... 29 3.12 Cogeneration; Heat Supply ....................................................................................................................... 29 3.13 Participation in the Administration of Certain Terms of the Lignite Supply Agreement .......................... 30

Article 4

Consents .................................................................................................................................................................. 31 4.1 GenCo Consents ....................................................................................................................................... 31 4.2 Applications by GenCo for Consents ........................................................................................................ 32 4.3 Status of Consent Applications ................................................................................................................. 32 4.4 GOK Support to Obtain Consents ............................................................................................................. 32 4.5 Conditions to Consents ............................................................................................................................. 32

Article 5

Construction, Operation, Maintenance, and Staffing; GOK Rights in Case of Cessation of Operations .................................................................................................. 33 5.1 Construction, Operation, and Maintenance of Facilities; Appointment of Contractors............................. 33 5.2 Cessation of Operation of the KRPP Facility............................................................................................ 35

Article 6

Decommissioning of the KRPP Facility ................................................................................................................ 38 6.1 Decommissioning of the KRPP Facility ................................................................................................... 38

Article 7

Transfer of Funds ................................................................................................................................................... 38 7.1 Transfer of Funds ...................................................................................................................................... 38 7.2 Maintenance of Accounts ......................................................................................................................... 38

Article 8

Environment and Safety ......................................................................................................................................... 38 8.1 Compliance with Kosovo Environmental Standards, Social Standards, and Health & Safety Standards .................................................................................................................................................. 38 8.2 Indemnification for Environmental Standards .......................................................................................... 39 8.3 Indemnification for Compliance with Applicable Standards .................................................................... 39 8.4 Procurement of GenCo ............................................................................................................................. 39 8.5 Compliance with Applicable Standards in Relation to Associated Facilities ............................................ 40

Article 9

Government Guarantee; Sponsor Support Agreement ....................................................................................... 41 9.1 Government Guarantee ............................................................................................................................. 41 9.2 Sponsor Support Agreement ..................................................................................................................... 41 9.3 Indemnification for Guarantee Fees .......................................................................................................... 41

Article 10

Community Development Fund; Community Development Fund Panel; Community Development Procedures ............................................................................................................................................................... 41 10.1 Community Development Fund ................................................................................................................ 41 10.2 Community Development Fund Panel ...................................................................................................... 41 10.3 Community Development Fund Panel Duties; Limitation on Powers ...................................................... 42

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10.4

Community Development Procedures ...................................................................................................... 43

Article 11

Taxes and Import Controls .................................................................................................................................... 44 11.1 Taxes Applicable to GenCo ...................................................................................................................... 44 11.2 Taxes Applicable to Sponsor HoldCo and Investors ................................................................................. 44 11.3 Applicable Fiscal Incentives and Concessions.......................................................................................... 44 11.4 Right to Import; Customs Duties .............................................................................................................. 44 11.5 Re-Export of Items Not Consumed ........................................................................................................... 44

Article 12

Immigration Controls ............................................................................................................................................. 45 12.1 Immigration Controls ................................................................................................................................ 45

Article 13

Employment, Training, and Kosovar Resources.................................................................................................. 45 13.1 Employment of Kosovars ......................................................................................................................... 45 13.2 Employment Standards ............................................................................................................................. 45 13.3 Training .................................................................................................................................................... 45 13.4 Kosovar Resources ................................................................................................................................... 45

Article 14

Reports to GOK; Annual Audit............................................................................................................................. 46 14.1 Reports to GOK ........................................................................................................................................ 46 14.2 Annual Audit ............................................................................................................................................ 46

Article 15

Insurance ................................................................................................................................................................. 47 15.1 Insurance ................................................................................................................................................... 47

Article 16

Advisors’ and Engineer’s Fees Prior and Subsequent to the Financial Closing ................................................ 47 16.1 Advisors’ and Engineer’s Fees Prior to the Financial Closing .................................................................. 47 16.2 Advisors’ and Engineer’s Fees between Financial Closing and Final Draw Date .................................... 48

Article 17

Representations and Warranties ........................................................................................................................... 50 17.1 Representations and Warranties of GenCo ............................................................................................... 50 17.2 Representations and Warranties of GOK .................................................................................................. 51 17.3 Reaffirmation of Representations and Warranties .................................................................................... 51

Article 18

Limitation of Liability and Indemnification with Respect to Illicit Payments................................................... 51 18.1 Limitation of Liability............................................................................................................................... 51 18.2 Indemnification and Information with Respect to Illicit Payments ........................................................... 52

Article 19

Default; Termination .............................................................................................................................................. 52 19.1 GenCo Events of Default .......................................................................................................................... 52 19.2 GOK Events of Default ............................................................................................................................. 54 19.3 Termination Notice ................................................................................................................................... 57 19.4 Termination Due to Political Force Majeure Events or Change in Law.................................................... 57 19.5 Obligations Following Disputed Termination Notice ............................................................................... 57 19.6 Other Remedies......................................................................................................................................... 58

Article 20

Rights and Obligations Upon Termination; Compensation ................................................................................ 58 20.1 GenCo Event of Default............................................................................................................................ 58 20.2 GOK Event of Default .............................................................................................................................. 58 20.3 Termination Following a Political Force Majeure Event, Change in Law, Raw Water Force Majeure Event, or Change in Raw Water Quality..................................................................................... 58 20.4 Termination Following an Other Force Majeure Event ............................................................................ 59 20.5 Termination Following Election in Respect of Environmental Remediation ............................................ 59 20.6 Expiry of the Term .................................................................................................................................... 59 20.7 Audit in Advance of the Expiry of the Term............................................................................................. 59 20.8 Obligations Pending Buy-Out Date .......................................................................................................... 60 20.9 Right to Terminate for Failure to Achieve the Transfer Date; Compensation........................................... 60 20.10 Obligation to Terminate Following Termination of Generation-Related Project Agreements .................. 61

Article 21

Force Majeure ......................................................................................................................................................... 62 21.1 Force Majeure ........................................................................................................................................... 62 21.2 Notification Obligations............................................................................................................................ 63 21.3 Duty to Mitigate ........................................................................................................................................ 64 21.4 Failure or Delays Caused by Force Majeure ............................................................................................. 64

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Article 22

Dispute Resolution .................................................................................................................................................. 64 22.1 Notice of Dispute ...................................................................................................................................... 64 22.2 Dispute Resolution Procedures ................................................................................................................. 65 22.3 Technical Disputes .................................................................................................................................... 65 22.4 Payment Disputes ..................................................................................................................................... 67 22.5 Arbitration................................................................................................................................................. 68 22.6 Related Disputes ....................................................................................................................................... 70 22.7 Obligations Continue ................................................................................................................................ 70 22.8 Commercial Acts ...................................................................................................................................... 70 22.9 Sovereign Immunity; Jurisdiction ............................................................................................................. 70

Article 23

Miscellaneous .......................................................................................................................................................... 71 23.1 Notices ...................................................................................................................................................... 71 23.2 Amendment............................................................................................................................................... 73 23.3 Survival ..................................................................................................................................................... 73 23.4 Third Party Beneficiaries .......................................................................................................................... 73 23.5 No Waiver ................................................................................................................................................. 73 23.6 Relationship of the Parties ........................................................................................................................ 73 23.7 Expenses of the Parties ............................................................................................................................. 73 23.8 Consent ..................................................................................................................................................... 74 23.9 Language .................................................................................................................................................. 74 23.10 Governing Law ......................................................................................................................................... 74 23.11 Status of Project Agreements .................................................................................................................... 74 23.12 Entirety ..................................................................................................................................................... 74 23.13 Assignment ............................................................................................................................................... 74 23.14 Contracting ............................................................................................................................................... 74 23.15 Confidentiality .......................................................................................................................................... 75 23.16 No Liability for Review ............................................................................................................................ 76 23.17 Equitable Relief ........................................................................................................................................ 76 23.18 Auditing by the World Bank Group .......................................................................................................... 76 23.19 Counterparts.............................................................................................................................................. 76 23.20 Further Assurances ................................................................................................................................... 76 23.21 Severability ............................................................................................................................................... 76 23.22 Partial Invalidity ....................................................................................................................................... 76 23.23 Additional Debt......................................................................................................................................... 77 23.24 Affirmation ............................................................................................................................................... 77

Schedule 1

Fiscal Incentives and Concessions

Schedule 2

Form of Government Guarantee

Schedule 3

Buy-Out Compensation Amounts

Schedule 4

Buy-Out Arrangements

Schedule 5

Form of Lease Agreement

Schedule 6

Specified Consents

Schedule 7

Form of Compliance Certificate

Schedule 8

Form of Payment Certificate

Schedule 9

List of Experts

Schedule 10 List of Consultants

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THIS IMPLEMENTATION AGREEMENT (this “Agreement”) is made as of the ___ day of January, 2018 (the “Execution Date”) by and between: (1)

The Republic of Kosovo (“GOK”) acting through the Ministry of Economic Development; and

(2)

ContourGlobal Terra 6 S.à r.l. (“GenCo”), a private limited liability company (société à responsabilité limitée) organized under the laws of the Grand Duchy of Luxembourg, with its registered office at 35-37 Avenue de la Liberté, L-1931 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 195.738.

Each of GOK and GenCo is hereinafter referred to as a “Party” and, collectively, as the “Parties.” RECITALS A.

GOK has recognized the need for additional power plant capacity to meet the long-term securityof-supply concerns present in Kosovo;

B.

GOK intends as a matter of policy to involve the private sector in an infrastructure project that includes the development, design, construction, financing, ownership, operation, and maintenance of the KRPP Facility (as hereinafter defined) and rehabilitation of the Site (as hereinafter defined) by GenCo (the “Kosovo e Re Project”);

C.

GOK is entering into this Agreement to encourage private investment in the electric power sector in Kosovo;

D.

GenCo, intends to form a new entity organized under the Laws of Kosovo (“CG Kosovo”), and following the formation of CG Kosovo, GenCo intends to assign all of its right, title and interest in and to, and delegate its obligations under, this Agreement to CG Kosovo and GOK acknowledges and consents to such assignment;

E.

In connection with the Kosovo e Re Project, GenCo was selected pursuant to a competitive process to develop, design, construct, finance, own, operate, and maintain the lignite-fired electric power generation facility to be located on the Site at Obiliq, Kosovo, all in accordance with the Environmental Standards (as hereinafter defined);

F.

GOK has recognized the need for a long-term power purchase agreement as the only financially affordable solution for Kosovo to attract the private sector investment necessary to satisfy the long-term environmental and security-of-supply concerns present in the country;

G.

Simultaneously with the entry by GOK and GenCo into this Agreement, GenCo is entering into the Power Purchase Agreement with NKEC for the purpose of providing electrical capacity and energy of the KRPP Facility to the public supplier and is simultaneously entering into the Backto-Back Power Purchase Agreement on a pass-through basis to effectuate the intent of providing for the electrical capacity and energy of the KRPP Facility to be available to the public supplier, with the combined effect of enabling the public supplier to benefit from a long-term power purchase agreement; and

H.

Simultaneously with the entry by GOK and GenCo into this Agreement, the other Project Agreements are being executed.

NOW, THEREFORE, for and in consideration of the promises and mutual covenants contained herein, and intending to be legally bound, the Parties hereby agree as follows:

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Article 1 Definitions; Interpretation 1.1

Definitions

Whenever the following capitalized terms appear in this Agreement, the Schedules, or the Annexes, they shall have the meanings stated below: “Actual Equity” – Has the meaning given thereto in the Power Purchase Agreement. “Additional Property” – Has the meaning given thereto in the Lease Agreement. “Affiliate” – As to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person; provided that “Affiliate” shall in no event (other than in connection with the confidentiality obligation and permissible disclosure set forth under Section 23.15(c)(i) include any Person holding a direct or indirect equity interest in the Ultimate Sponsor. For purposes of this definition, “control” (including with correlative meanings, the terms “controlling,” “under common control with,” and “controlled by”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting stock or other equity interests, by contract, or otherwise. For purposes of this definition, each Specified POE shall be an “Affiliate” of GOK. “Agreed Termination Table” – The table of termination payment amounts set forth in the sheet titled “Termination Table” of the Base Case Financial Model (as defined in the Power Purchase Agreement), as such table is updated as follows: (a)

the assumed Financial Closing date shown in Cell H18 of “Assumptions” sheet of the Base Case Financial Model shall be updated to reflect the actual Financial Closing date, the assumed Commercial Operations Date shown in Cell H20 of “Assumptions” sheet of the Base Case Financial Model shall be updated to reflect the actual end of the Construction Period, and the end of the operations period shown in in Cell H22 of “Assumptions” sheet of the Base Case Financial Model shall be updated to reflect the actual end of the last Agreement Year (as defined in the Power Purchase Agreement); and

(b)

the amount of the Actual Equity (less Actual Equity associated with Tariff Exclusions) injections in each semi-annual period shown in Row 204 of “Model” sheet of the Base Case Financial Model shall be updated to reflect the amount of the Actual Equity (less Actual Equity associated with Tariff Exclusions) injections in each semi-annual period from the start of the Construction Period until the Final Draw Date and the number of periods making up such period shall be updated to reflect the actual Actual Equity injection periods, as well as any future adjustments applicable as a result of application of amounts in the Debt Service Reserve Account of any other similar reserve accounts in accordance with Schedule 1 (Tariff) of the Power Purchase Agreement; and

(c)

no other changes shall be made to the Agreed Termination Table.

“Agreement” – Has the meaning given thereto in the introductory paragraph. “Anti-Bribery Laws” – (i) the laws prohibiting bribery and/or the principles described in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (commonly referred to as the OECD Anti-Bribery Convention), signed in Paris on December 17, 1997, which entered into force on February 15, 1999, and (ii) the laws prohibiting bribery in the countries of a Party’s or a Person’s place of incorporation, principal place of business, and/or place of registration as an issuer of securities, and/or in the countries of such Party’s or Person’s ultimate parent company’s place of incorporation, principal place of business, and/or place of registration as an issuer of securities. -2US-DOCS\86271257.15

“Applicable Counterparty Cure Period” - Has the meaning given thereto in the Power Purchase Agreement, the Ash and Gypsum Disposal Agreement, the Lignite Supply Agreement, or the Water Supply Agreement, as the case may be. “Applicable Standards” – Collectively, (a)

the Environmental Standards;

(b)

the Health & Safety Standards;

(c)

the Resettlement Standards;

(d)

the Social Standards; and

(e)

to the extent not described above, any other Laws of Kosovo and any Consents setting standards concerning environmental, social, labor, health and safety or security risks of the type contemplated by the IFC Environmental and Social Sustainability Standards or imposing liability for the breach thereof.

“Archaeological Condition” – Has the meaning given thereto in the Power Purchase Agreement. “Ash and Gypsum Disposal Agreement” – The agreement by that name between KEK Mining and GenCo dated on the Execution Date. “Availability Credits” – Base Availability Credits (as defined in the Power Purchase Agreement). “Availability Payment” – Has the meaning given thereto in the Power Purchase Agreement. “Back-to-Back Power Purchase Agreement” – Has the meaning given thereto in the Power Purchase Agreement. “Business Day” – Any Day other than a Saturday, Sunday, or a Day on which commercial banks in Pristina, Kosovo are legally permitted to be closed for business. “Buy-Out” – A purchase by GOK of the KRPP Facility pursuant to Article 20 and Schedule 4. “Buy-Out Compensation Amounts” – The compensation amounts set forth in Schedule 3. “Buy-Out Date” – Has the meaning given thereto in Schedule 4. “CG Kosovo” – Has the meaning given thereto in the recitals. “Change in Law” – (a)

The adoption, promulgation, repeal, modification, or reinterpretation after the Execution Date by any Public Authority of any Law of Kosovo, including any Change in Tax (as defined in the Power Purchase Agreement);

(b)

the adoption, promulgation, repeal, modification, or reinterpretation after the Execution Date of the Grid Code or the Metering Code to the extent applicable to GenCo, including any change that makes the Market Rules applicable to GenCo other than the voluntary accession thereto by GenCo in writing;

(c)

the imposition by a Public Authority of any material term or condition in connection with the issuance, renewal, extension, replacement, or modification after the Execution Date of any GenCo Consent;

(d)

the imposition by a Public Authority of any additional GenCo Consent; or

(e)

any of the foregoing that occurs with respect to any counterparty to any Project Agreement, Construction/Maintenance Contract, or Financing Document,

that in any such case -3US-DOCS\86271257.15

(i)

(ii)

establishes any requirement that affects the development, design, construction, financing, ownership, operation, or maintenance relating to the Kosovo e Re Project that is different from the requirements or affects the profits, costs or risks associated with the same (A)

in effect as of the Execution Date,

(B)

specified in any applications, or other documents filed in connection with such applications, for any GenCo Consent filed by GenCo, or

(C)

agreed to in any of the Project Agreements or the Construction/Maintenance Contracts; or

has a Material GenCo Effect.

“Change in Raw Water Quality” – Has the meaning given thereto in the Power Purchase Agreement. “Charter Documents” – With respect to any particular entity: (a)

all organizational and governance documents, including all documents adopted or filed in connection with the creation, formation, or organization of such entity;

(b)

all shareholders agreements, voting agreements, voting trust agreements, company agreements, operating agreements, joint venture agreements, registration rights agreements, or similar agreements; and

(c)

any amendment or supplement to any of the foregoing.

“Check Metering System” − Has the meaning given thereto in the Power Purchase Agreement. “Coercive Practices” – Impairing or harming, or threatening to impair or harm, directly or indirectly, any Person or the property of any Person to influence improperly the actions of a Person. “Collusive Practices” – Any arrangement between two (2) or more Persons designed to achieve an improper purpose, including influencing improperly the actions of another Person. “Commercial Operations Date” − Has the meaning given thereto in the Power Purchase Agreement. “Community Development Fund” – Has the meaning given thereto in Section 10.1. “Community Development Fund Panel” – The panel comprised of representatives of GOK and GenCo that selects the development projects that will be funded by the Community Development Fund and controls the Community Development Fund and related activities under the Community Development Procedures. The GOK may invite representatives of local governments and non-governmental organizations to observe activities of the panel. “Community Development Procedures” – The procedures for the operation of the Community Development Fund to be agreed or finalized in accordance with Section 10.4. “Connection Agreement” – The agreement by that name between GenCo and KOSTT dated on the Execution Date (as defined in the Connection Agreement). “Connection Area” – Has the meaning given thereto in Section 3.5.1(b). “Connection Point” – Has the meaning given thereto in the Power Purchase Agreement. “Consent” – All approvals, consents, authorizations, notifications, concessions, acknowledgements, licenses, permits, decisions, or similar items that are required from any Public Authority with jurisdiction over the Kosovo e Re Project under any Law of Kosovo for any or all of GenCo, the Lenders, the Sponsor HoldCo, the Ultimate Sponsor and the GenCo Contractors with respect to the Kosovo e Re Project. “Construction Period” – The period commencing on the date of the Financial Closing and expiring on the Commercial Operations Date. -4US-DOCS\86271257.15

“Construction Start Date” − The date of issuance of the full “notice to proceed” by GenCo to the EPC Contractor and the satisfaction of all other conditions precedent to the obligation of the EPC Contractor to commence the construction of the KRPP Facility. “Construction/Maintenance Contracts” – The EPC Contract, the LTM Agreement, the O&M Contract, the GenCo Connection Works EPC Contract, the Specified Environmental Condition Remediation Contract, and the Administrative Services Agreement (as defined in the Power Purchase Agreement), collectively. “Contractors” – The direct contractors of either Party and any of their direct subcontractors, in each case, that are involved in the performance of this Agreement, a Construction/Maintenance Contract or any activity related to the Kosovo e Re Project. “Corrupt Practices” – The offering, promising, approving, giving, or authorizing the giving of, receiving, or soliciting, directly or indirectly, anything of value to influence improperly the actions of another Person. “Customs” – The agency of GOK responsible for collection of Customs Duties and the release of plant machinery and equipment following import into or before export out of Kosovo. “Customs Duties” – All Taxes (other than value added tax) on or relating to the import into or export from Kosovo of goods and levied by any Public Authority. “Day” – A period of twenty-four (24) hours, commencing at 00:00 of each day, and “Daily” shall be construed accordingly. “Debt Service Reserve Account” – Has the meaning given thereto in the Power Purchase Agreement. “Deemed GenCo Wind-Up Event” – Has the meaning given thereto in the Site Transfer Agreement. “Deemed GOK Wind-Up Event” – Has the meaning given thereto in the Site Transfer Agreement. “Development Costs” – Means costs and expenses (excluding Tariff Exclusions) from and after January 1, 2016 incurred or reimbursed by GenCo, the Sponsor HoldCo, the Ultimate Sponsor or any of their Affiliates in relation to the development or project management of the KRPP Facility (including the GenCo Connection Assets) through the Financial Closing, including the following: (a)

fees and expenses of counsel and other consultants and contractors to GenCo, the Sponsor HoldCo, the Ultimate Sponsor, or any of their Affiliates associated with all project, corporate, and Financing Documents, including the Project Agreements, the Construction/Maintenance Contracts, and the Financing Documents;

(b)

fees and expenses of engineering firms hired by GenCo, the Sponsor HoldCo, the Ultimate Sponsor, or any of their Affiliates in connection with the development of the KRPP Facility and the GenCo Connection Assets;

(c)

costs and expenses associated with the administration of the Tender (Plant) and the procurement of the Construction/Maintenance Contracts;

(d)

costs and expenses incurred for the procurement of any GenCo Consents;

(e)

costs and expenses associated with the development of the Ammonia, Fuel Oil, and Limestone Tender Policy (as defined in the Power Purchase Agreement);

(f)

costs and expenses associated with the development of the Fuel Demand Model;

(g)

costs and expenses associated with the submission of analysis of the potential for cogeneration at the KRPP Facility in accordance with Article 17 of the Law of Energy, 2016;

(h)

costs and expenses associated with the development of the Land Acquisition Report; -5-

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(i)

any costs and expenses to perform studies required by the Grid Code or the Connection Agreement or otherwise in relation to the connection of the KRPP Facility to the KOSTT Grid;

(j)

construction management costs and expenses;

(k)

designing and implementing GenCo’s public relations program and managing relationships with Public Authorities;

(l)

designing, implementing, and assessing any health and safety training;

(m)

procuring and installing any office furniture and interior decorations;

(n)

all other project management costs and expenses, including any costs for administrative services provided by GenCo or any of its Affiliates with respect to the Kosovo e Re Project that are customary for GenCo or its Affiliate to provide with respects to projects similar to the Kosovo e Re Project;

(o)

the costs of issuance of the Financing Security (and the bid bond issued prior to the Execution Date);

(p)

costs incurred to prepare the ESIA (GenCo);

(q)

labor costs (including benefits) for each of the foregoing, but, not including allocated overhead or home office costs;

(r)

financing, commitment, and letter of credit fees in relation to the Construction Security (as defined in the Power Purchase Agreement) payable to the Lenders in accordance with the Financing Documents and any other similar fees and expenses incurred pursuant to the Financing Documents, including any Pre-Financing Fees;

(s)

out of pocket costs and expenses of the Lenders (including their legal, financial and technical advisors);

(t)

all fees payable to KOSTT pursuant to the Connection Agreement;

(u)

funds deposited by the Sponsor HoldCo (or Sponsor HoldCo Party) into the Community Development Fund pursuant to the Sponsor Support Agreement and by GenCo pursuant to Section 10.1;

(v)

the Land Acquisition Costs (as defined in the Power Purchase Agreement);

(w)

any costs, fees and expenses associated with any guarantee issued by a member of the World Bank Group in connection with the Kosovo e Re Project;

(x)

any insurance premiums that are payable in connection with a political risk insurance policy issued by the Multilateral Investment Guarantee Agency (or any other political risk insurance policy approved by NKEC and GOK);

(y)

all fees, costs and expenses associated with registration of the Lease Agreement;

(z)

all costs, fees and expenses associated with giving effect to NKEC’s rights with respect to Emission Reduction Rights (as defined in the Power Purchase Agreement), in accordance with the Power Purchase Agreement;

(aa)

all costs and expenses arising from GenCo’s cooperation with or provision of consultancy services or similar assistance to GOK or KEK Mining associated with GOK’s or KEK Mining’s efforts to take any corrective action in connection with KEK Mining’s compliance with the Applicable Standards in relation to KEK Mining’s ownership, development (including with respect to any resettlement), and operation of the Sibovc South Mine Field and the Mining Assets; and -6-

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(bb)

Early Stage Pre-Approved Development Costs (as defined in the Power Purchase Agreement),

provided, however, that Development Costs shall not include Permitted GOK Advisor Fees or any costs or expenses that are Tariff Exclusions. “Development Costs Cap” – Means nineteen million seven hundred thousand Euros (€19,700,000.00) or such other amount as may be mutually agreed to by the Parties. “Direct Agreement” – An agreement between GOK and the agents or trustees of the Lenders that includes the terms and conditions specified in Section 3.4.3(a). “Dispute” – Any dispute, disagreement, controversy, or difference between the Parties arising under, out of, or in connection with this Agreement, including any dispute, disagreement, controversy, or difference concerning the existence, legality, validity, or enforceability of this Agreement or any provision hereof or the performance or breach of a Party under any provision hereof and also including any dispute, disagreement, controversy or difference between the Parties, any Specified POE, Sponsor HoldCo, or the Ultimate Sponsor concerning non-contractual obligations arising under, out of, or in connection with this Agreement. “E&S Management Plan” – Any environmental and social management plan prepared in accordance with Applicable Standards by or on behalf of GenCo (or incorporated by or on behalf of GenCo from a plan prepared by other parties) pursuant to and in accordance with the ESIA (GenCo). “EBRD Environmental and Social Policy” – The Environmental and Social Policy published by the European Bank for Reconstruction and Development, available as at the Execution Date (subject to future relocation) at http://www.ebrd.com/downloads/research/policies/2008policy.pdf or such later version required to be met by any Lender under the Financing Documents. “Effective Date” – Has the meaning given thereto in Section 2.1. “Encumbrance” – Any mortgage, pledge, security interest, lien, levy, charge, claim, condition, equitable interest, option, right of way, easement, tenancy, encroachment, servitude, restriction, right of first option, right of first refusal, or other encumbrance or restriction of any kind whatsoever, or any conditional sale contract, title retention contract or other contract giving effect to any of the foregoing. “End of Term Purchase Price” – Has the meaning given thereto in Schedule 3. “Environmental/Archaeological Condition” – Has the meaning given thereto in the Power Purchase Agreement. “Environmental Condition” – Has the meaning given thereto in the Power Purchase Agreement. “Environmental Indemnification Period” – Means, (a) in relation to any non-compliance with the Environmental Standards in respect of Specified Environmental/Archaeological Conditions (as defined in the Power Purchase Agreement) or Pass-Through Environmental/Archaeological Conditions listed in Schedule 8 (Known Pass-Through Environmental/Archaeological Conditions and Potential Other PassThrough Environmental/Archaeological Conditions) of the Power Purchase Agreement (to the extent relating to conditions described in such schedule as Known Pass-Through Environmental/Archaeological Conditions), the period from the Transfer Date until three (3) Agreement Years (as defined in the Power Purchase Agreement) from the Transfer Date or (b) in relation to any non-compliance with the Environmental Standards in respect of other Environmental/Archaeological Conditions (including conditions described in Schedule 8 (Known Pass-Through Environmental/Archaeological Conditions and Potential Other Pass-Through Environmental/Archaeological Conditions) to the Power Purchase Agreement as potential Pass-Through Environmental/Archaeological Conditions), three (3) Agreement Years (as defined in the Power Purchase Agreement) from the end of the Agreement Year (as defined in the Power Purchase Agreement) in which such Pass-Through Environmental/Archaeological Condition was discovered and remedial or other cure measures were required to be undertaken pursuant to -7US-DOCS\86271257.15

applicable Environmental Standards and otherwise in accordance with the terms of the Power Purchase Agreement; provided, however, in the event that such non-compliance cannot be reasonably resolved, or is not required to be resolved pursuant to the applicable Environmental Standards and otherwise in accordance with the terms of the Power Purchase Agreement, within three (3) Agreement Years from the Transfer Date or discovery of such non-compliance, as the case may be, then such period shall be extended as reasonably necessary to undertake and complete remedial or other cure measures required to be undertaken pursuant to the applicable Environmental Standards and otherwise in accordance with the terms of the Power Purchase Agreement. “Environmental Standards” – With respect to any Party, collectively, with respect to such Party’s participation in the Kosovo e Re Project and solely to the extent applicable to such Party or the Kosovo e Re Project, (a)

the environmental components of the E&S Management Plan;

(b)

the environmental standards set forth in the World Bank Environmental and Social Safeguard Policies;

(c)

the environmental standards set forth in the World Bank Group EHS Guidelines;

(d)

the environmental standards set forth in the IFC Environmental and Social Sustainability Standards;

(e)

the environmental standards set forth in the MIGA Policy on Social & Environmental Sustainability;

(f)

the environmental standards set forth in the EBRD Environmental and Social Policy; and

(g)

the requirements imposed by any Law of Kosovo related to the environment and the protection and preservation thereof,

except to the extent that the provisions set forth in two or more of the above are such that such Party cannot simultaneously comply with such provisions, in which case the order of the standards listed above shall be the order of precedence, and the relevant provisions of the relevant lower-ranked standard (or standards, if necessary) shall not apply to the extent necessary to enable such Party to comply with the higher-ranked standard. For the avoidance of doubt, nothing herein shall reduce the obligation of a Party to comply with the most stringent of the foregoing standards. “Environmental Termination Purchase Price” – Has the meaning given thereto in Schedule 3. “EPC Contract” – The turnkey, fixed-price agreement entered into or to be entered into between GenCo and the EPC Contractor for the design, engineering, procurement, construction, completion, startup, testing, and commissioning by the EPC Contractor of the KRPP Facility, as it may be amended by the Parties thereto from time to time. “EPC Contractor” – The Contractor or Contractors appointed by GenCo to perform the EPC Works pursuant to the Tender (Plant), and any successor or successors thereto. “EPC Works” - The design, engineering, procurement, construction, installation and completion of the KRPP Facility, and the start-up, testing and Commissioning (as defined in the Power Purchase Agreement) of the KRPP Facility. “ERO” – The Energy Regulatory Office, and any successor or substitute regulatory agency with authority and jurisdiction over the energy sector in Kosovo. “ESIA (GenCo)” – An environmental and social impact assessment that relates to the Kosovo e Re Project performed by, or on behalf, of GenCo in accordance with the Laws of Kosovo, Applicable Standards, and the requirements of the Lenders. -8US-DOCS\86271257.15

“Euro” or “€” – The single currency of participating member states of the European Union. “Execution Date” – Has the meaning given thereto in the introductory paragraph. “Final Draw Date” – Has the meaning given thereto the Power Purchase Agreement. “Financial Closing” − In connection with the Initial Financing, the execution and delivery of the Financing Documents and the satisfaction of all conditions precedent for the initial availability of funds under the Financing Documents (other than the occurrence of the Transfer Date under the Site Transfer Agreement), including any conditions precedent requiring evidence of commitments for such equity as is required by GenCo to satisfy the requirements of the Lenders. “Financing Documents” – Loan agreements, and all related notes, indentures, security agreements, guarantees, agreements, or other instruments providing security to the Lenders (including consents and acknowledgements of assignment and Direct Agreements in respect to documents assigned as security to the Lenders), any World Bank Group guarantee-related or insurance-related agreements, interest rate swap agreements related to the financing of the Kosovo e Re Project, and other documents entered into by GenCo, and any of its Affiliates in relation to the financing of the Kosovo e Re Project or any material part thereof, including any credit support facilities or Working Capital Facilities (and if any of the proceeds of the loan agreements or other related documents constituting the “Financing Documents” are on-lent by an Affiliate of GenCo to GenCo in relation to the Kosovo e Re Project, including any such documents entered into by the borrower and GenCo), as such agreement, instruments, guarantees, and documents may be amended from time to time. For the avoidance of doubt, Financing Documents include the Financing Documents entered into in connection with the Initial Financing and any Refinancing, but do not include any Shareholder Loans. “Financing Security” – Has the meaning given thereto in the Sponsor Support Agreement. “Force Majeure Event” – Has the meaning given thereto in Section 21.1.1. “Forced Outage or Partial Forced Outage” − Has the meaning given thereto in the Power Purchase Agreement. “Foreign Sponsor” − Any Person with an Ownership Interest in GenCo from time to time that is not organized and domiciled in Kosovo. “Fraudulent Practices” – Any act or omission, including a misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a Person to obtain a financial or other benefit or to avoid an obligation. “Fuel Demand Model” − Has the meaning given thereto in the Power Purchase Agreement. “Full Environmental Remediation Report” – Has the meaning given thereto in the Power Purchase Agreement. “GenCo” – Has the meaning given thereto in the introductory paragraph. “GenCo Action or Inaction” − The action or inaction of GenCo or any GenCo Party, which action or inaction constitutes a material breach or default of GenCo’s obligations under this Agreement or any Project Agreement to which it is a party, or constitutes a material violation of the Laws of Kosovo by GenCo or any GenCo Party and which action or inaction has a material adverse effect on GOK’s or any Specified POE’s ability to perform its obligations or exercise its rights under this Agreement or any Project Agreement; provided, however, that no such action or inaction shall be considered a GenCo Action or Inaction if such action or inaction is caused in whole or significant part by a Specified POE Action or Inaction. “GenCo Compliance Representation and Warranty” – Has the meaning given thereto in Section 17.1. “GenCo Connection Assets” – Has the meaning given thereto in the Power Purchase Agreement. -9US-DOCS\86271257.15

“GenCo Connection Works” – Those works and activities described in the Connection Agreement to be undertaken by or on behalf of GenCo for the design, engineering, construction, installation, and commissioning of GenCo Connection Assets, KOSTT New Connection Assets, or Infrastructure Reinforcement Assets. “GenCo Connection Works EPC Contract” – Has the meaning given thereto in the Power Purchase Agreement. “GenCo Connection Works EPC Contractor” – Has the meaning given thereto in the Power Purchase Agreement. “GenCo Consents” – All Consents (including the Generation License) that GenCo or any of GenCo Contractors is required to obtain (other than from NKEC) and thereafter to maintain to fulfill its obligations under this Agreement; provided, however, that in no event shall GenCo Consents include any concessions or exemptions from the Laws of Kosovo unless they are expressly granted pursuant to the terms of this Agreement or by another Public Authority in accordance with the Laws of Kosovo. “GenCo Contractor” – The EPC Contractor, the LTM Contractor, the O&M Contractor, the GenCo Connection Works EPC Contractor, the Specified Environmental Condition Remediation Contractor, the Administrative Services Contractor (as defined in the Power Purchase Agreement) and any of GenCo’s other Contractors involved in the Kosovo e Re Project, excluding any Specified POE. “GenCo Default Purchase Price” – Has the meaning given thereto in Schedule 3. “GenCo Event of Default” – Has the meaning given thereto in Section 19.1. “GenCo Exclusive Ash Landfill” – Has the meaning given thereto in the Ash and Gypsum Disposal Agreement. “GenCo Exclusive Gypsum Landfill” – Has the meaning given thereto in the Ash and Gypsum Disposal Agreement. “GenCo Party” – A stockholder, director, officer, employee, GenCo Contractor, representative, agent, member, manager, or Affiliate of GenCo. “Generation License” – Has the meaning given thereto in the Power Purchase Agreement. “GOK” − Has the meaning given thereto in the introductory paragraph. “GOK Advisor Fee Cap” – For costs incurred: (a)

between the Execution Date and the Financial Closing, eight million Euros (€8,000,000.00); and

(b)

between the Execution Date and the earliest to occur of (i) the date that is twelve (12) Months following the Final Draw Date and (ii) the date that final Base Availability Credit (as defined in the Power Purchase Agreement) for the first ½-Year Period of the first Agreement Year (as such terms are defined in the Power Purchase Agreement) is determined in accordance with the terms of the Power Purchase Agreement, twelve million Euros (€12,000,000.00),

which in each case shall serve as a cap on Permitted GOK Advisor Fees. “GOK-Appointed Independent Engineer” – The firm (or firms) of engineering consultants to be appointed by GOK in accordance with Section 3.9. “GOK Compliance Representation and Warranty” – Has the meaning given thereto in Section 17.2. “GOK Default Purchase Price” – Has the meaning given thereto in Schedule 3. “GOK Event of Default” − Has the meaning given thereto in Section 19.2. - 10 US-DOCS\86271257.15

“GOK’s Lignite Interests” – Refers collectively to the interests of GOK in the Lignite Supply Agreement described in Section 3.13.1. “GOK Party” – An employee, representative, agent, or official of GOK. “Government Guarantee” − The guarantee issued in favor of GenCo in the form of Schedule 2. “Grid Code” – The grid code prepared by KOSTT and approved by ERO in effect as of the Execution Date, available at http://www.kostt.com/website/index.php ?option=com_content&view=article&id=543&Itemid=481&lang=en. “Guaranteed Obligation” – Has the meaning given thereto in Section 1.1(b) of Schedule 2. “Hazardous Materials” – Any pollutant, contaminant, solid waste, hydrocarbon product, toxic or hazardous substance or waste, any flammable, explosive, or radioactive material regulated under, or subject to, any Environmental Standard. “Health & Safety Standards” – Collectively, with respect to GenCo’s participation in the Kosovo e Re Project only and solely to the extent applicable to GenCo or the Kosovo e Re Project, the requirements imposed by: (a)

the health and safety standards set forth in the World Bank Group EHS Guidelines;

(b)

the health and safety standards set forth in the IFC Environmental and Social Sustainability Standards;

(c)

the health and safety standards set forth in the EBRD Environmental and Social Policy; and

(d)

any Law of Kosovo related to safety and health at work,

except to the extent that the provisions set forth in two or more of the above are such that GenCo cannot simultaneously comply with such provisions, in which case the order of the standards listed above shall be the order of precedence, and the relevant provisions of the relevant lower-ranked standard (or standards, if necessary) shall not apply to the extent necessary to enable GenCo to comply with the higher-ranked standard. For the avoidance of doubt, nothing herein shall reduce the obligation of a Party to comply with the most stringent of the foregoing standards. “HMT” – Her Majesty’s Treasury (of the United Kingdom). “IBA Rules” – The IBA Rules on the Taking of Evidence in International Arbitration (2010), as may be amended or supplemented from time to time. “ICC Rules” − Has the meaning given thereto in Section 22.5(c). “ICSID” – The International Centre for Settlement of Investment Disputes. “ICSID Convention” – Has the meaning given thereto in Section 22.5(a). “ICSID Rules” − Has the meaning given thereto in Section 22.5(a). “IFC Environmental and Social Sustainability Standards” – The IFC Performance Standards on Environmental and Social Sustainability published by the International Finance Corporation, available as at the Execution Date (subject to future relocation) at http://www1.ifc.org/wps/wcm/connect/c8f524004a73daeca09afdf998895a12/IFC_Performance_Standard s.pdf?MOD=AJPERES or such later version required to be met by any Lender under the Financing Documents. “Indemnification Acknowledgement” – Has the meaning given thereto in Section 5.4.1(c) of Schedule 5. “Indemnification Notice” – Has the meaning given thereto in Section 5.4.1(a) of Schedule 5. - 11 US-DOCS\86271257.15

“Indemnity Basket” – Means (i) with respect to GenCo or the GenCo Parties or the Sponsor HoldCo or the Sponsor HoldCo Parties and the Ultimate Sponsor or the Ultimate Sponsor Parties, an amount of Losses equal to €250,000 as a combined amount applicable to all such parties in relation to all Project Agreements; and (ii) with respect to GOK or the GOK Parties and NKEC or the NKEC Parties and KEK Generation or the KEK Generation Parties and KEK Mining or KEK Mining Parties and the Water Supplier or the Water Supplier Parties and any Specified POEs or its related Parties, an amount of Losses equal to €250,000 as a combined amount applicable to all such parties in relation to all Project Agreements. “Independent E&S Consultant” – An environmental and social consultant hired in accordance with Section 3.10 of this Agreement and with duties as set forth in Section 4.3 (Duties of the Independent E&S Consultant) of the Power Purchase Agreement. “Infrastructure Reinforcement Assets” – Has the meaning given thereto in the Connection Agreement. “Initial Financing” − Means the financial indebtedness incurred by GenCo or its affiliates on the date of the Financial Closing in connection with the Kosovo e Re Project. “Initial Property” – Has the meaning given thereto in the Lease Agreement. “KEK Generation” – Kosovo Energy Corporation, J.S.C., a joint stock company organized under the laws of Kosovo, with its principal office at Nënë Tereza nr. 36, Pristina, Kosovo, and business registration number 70325399, operating through its business unit responsible for generation capacity. “KEK Generation Party” – Has the meaning given thereto in the Site Transfer Agreement. “KEK Mining” – Kosovo Energy Corporation, J.S.C., a joint stock company organized under the laws of Kosovo, with its principal office at Nënë Tereza nr. 36, Pristina, Kosovo, and business registration number 70325399, operating through its business unit responsible for mining. “KEK Mining Party” – Has the meaning given thereto in the Lignite Supply Agreement. “KESCO” – Kosovo Electricity Supply Company J.S.C., a joint stock company organized under the laws of Kosovo, with its principal office at Bulevardi Bill Clinton No.3, Pristina, Kosovo, and business registration number 70606119. “Kosovo” − The Republic of Kosovo. “Kosovo e Re Project” – Has the meaning given thereto in the recitals. “KOSTT” – “OPERATOR SISTEMI, TRANSMISIONI DHE TREGU – KOSTT” SH.A., a joint stock company organized under the laws of Kosovo, with its principal office at St. Isa Boletini Nr. 39, 1000 Pristina, Kosovo, and business registration number 70325350, or its successor in interest in the event that KOSTT ceases to perform any of the functions of the TSMO (as such term is defined in the Power Purchase Agreement) under the Grid Code. “KOSTT Grid” − Has the meaning given thereto in the Power Purchase Agreement. “KOSTT New Connection Assets” – Has the meaning given thereto in the Connection Agreement. “KRPP Facility” – The lignite-fired electric generating facility to be located at Obiliq, Kosovo, as more particularly described in the Power Purchase Agreement. “Land Acquisition Report” − Has the meaning given thereto in Section 3.5.1(b)(i). “Lapse of Consent” – Any GenCo Consent: (a)

not being issued, renewed, replaced, or, having lapsed, not being renewed or replaced (within a certain period if required under the Laws of Kosovo or otherwise within a reasonable period of time) following properly and timely made and diligently pursued application by GenCo for that - 12 -

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Consent to be issued, renewed, or replaced, as the case may be, and as a result GenCo’s ability to perform its obligations under the Project Agreements or the Construction/Maintenance Contracts being materially and adversely affected; (b)

being made subject, upon renewal, reissuance or replacement to any terms or conditions that materially and adversely affect the Party’s ability to perform its obligations under the Project Agreements or the Construction/Maintenance Contracts; or

(c)

being withdrawn, canceled, modified, or suspended other than as provided under the nondiscriminatory Laws of Kosovo and as a result GenCo’s ability to perform its obligations under the Project Agreements or the Construction/Maintenance Contracts is materially and adversely affected,

in each of the above instances despite such Party’s compliance with the applicable procedural and substantive requirements as applied in a “non-discriminatory” (as explained in Section 4.2.2) manner. “Laws of Kosovo” – The laws of Kosovo, and all statutes, treaties, codes, ordinances, orders, rules, regulations, executive orders, judicial decisions, notifications, decisions, regulations and secondary legislation, or other similar directives issued by any Public Authority pursuant thereto, in each case, that is applicable to the Parties, the Kosovo e Re Project or in relation to a Project Agreement, a Financing Document, or a Construction/Maintenance Contract and as any of them may be amended, supplemented, replaced, reinterpreted, or otherwise modified by a Public Authority of Kosovo, from time to time. “Lease Agreement” − A Connection Area lease agreement between GOK and GenCo substantially in the form of the lease agreement attached as Schedule 5. “Lender” – Any financial institution, trust, fund, or other entity participating in the financing of the Kosovo e Re Project and any of their agents that is a party to the Financing Documents, or any financial institution, trust, fund, or other entity participating in the financing of the Kosovo e Re Project or any of their agents that subsequently becomes a party to the Financing Documents, together with their respective successors and assigns. “Lignite” – Has the meaning given thereto in the Lignite Supply Agreement. “Lignite Price” – Has the meaning given thereto in the Lignite Supply Agreement. “Lignite Supply Agreement” − The agreement by that name between KEK Mining and GenCo dated on or about the Execution Date. “Local Sponsor” – Any Person with an Ownership Interest in GenCo from time to time who is not a Foreign Sponsor. “Loss” – Any loss, damage, liability, payment or obligation (excluding any indirect or consequential loss, damage, liability, payment, or obligation except in the case any of the same arises out of any gross negligence or willful misconduct of the indemnifying Party) and all costs and expenses (including reasonable legal fees) related thereto. “LTM Agreement” or “LTMA” – The agreement to be entered into by GenCo and the LTM Contractor in accordance with Section 3.9 (Tender for EPC Contractor and LTM Contractor; Tendered PPA Inputs; Future LTM Contractor Replacement) of the Power Purchase Agreement, as such agreement may be amended by the parties thereto from time to time. “LTM Contractor” – The Contractor or Contractors appointed by GenCo pursuant to the Tender (Plant) to perform long-term maintenance services under the LTM Agreement. “Maintenance Outage” − Has the meaning given thereto in the Power Purchase Agreement. “Major Maintenance Reserve Fund” – Has the meaning given thereto in the Power Purchase Agreement. - 13 US-DOCS\86271257.15

“Major Subcontractor” – Any subcontractor or supplier of any GenCo Contractor, the value of whose subcontract or supply contract with respect to the Kosovo e Re Project exceeds either (a)

a total contract value of twenty million Euros (€20,000,000), or

(b)

an average annual contract value of four million Euros (€4,000,000) per Year for five Years or more.

“Market Rules” – The market rules prepared by KOSTT and approved by ERO in effect as of the Execution Date, available at http://www.kostt.com/website/images/stories/PO-MO-001The_market_rules_ transition_1.pdf, or any similar codes, rules, or similar instruments that regulate the functioning of the electricity market of Kosovo, which the Parties agree are not applicable to GenCo or the Kosovo e Re Project under this Agreement or any of the Project Agreements. “Material GenCo Effect” – A material and adverse effect on: (a)

GenCo or its ability to perform its obligations or exercise its rights or realize the full benefits (economic or otherwise) under any Project Agreement, Construction/Maintenance Contract, or Financing Document;

(b)

the development, design, construction, financing, use, operation, maintenance or performance of the KRPP Facility;

(c)

the interests of the Sponsor HoldCo or the Ultimate Sponsor or the return of or on their investment in relation to GenCo’s participation in the Kosovo e Re Project; or

(d)

the ability of any counterparty to any Project Agreement, Construction/Maintenance Contract, or Financing Document to perform its obligations.

“Memorandum of Understanding” – The memorandum of understanding between GOK and the Ultimate Sponsor dated on 18 December 2015. “Metering Code” − Has the meaning given thereto in the Power Purchase Agreement. “Metering System” − Has the meaning given thereto in the Power Purchase Agreement. “MIGA Policy on Social & Environmental Sustainability” – The Policy on Social & Environmental Sustainability published by the Multilateral Investment Guarantee Agency, available as at the Execution Date (subject to future relocation) at http://www.miga.org/documents/environ_social_review_021507.pdf or such later version required to be met by any Lender under the Financing Documents. “Mining Assets” – Has the meaning given thereto in the Lignite Supply Agreement. “Ministry of Economic Development” – The Ministry of Economic Development of GOK or, in the event that the name or responsibility of such ministry is changed, the ministry or ministries of GOK charged with the responsibility for mining and electric energy. “Month” – A calendar month according to the Gregorian calendar. “Net Electrical Output” – Has the meaning given thereto in the Power Purchase Agreement. “NKEC” – Has the meaning given thereto in the Power Purchase Agreement. “NKEC Event of Default” – Has the meaning given thereto in the Power Purchase Agreement. “NKEC Party” – Has the meaning given thereto in the Power Purchase Agreement. “No-Fault Condition Precedent” – Has the meaning given thereto in the Site Transfer Agreement. “O&M Contract” – The operation and maintenance agreement entered or to be entered into between GenCo and the O&M Contractor in accordance with Section 3.14 (O&M Contract) of the Power Purchase Agreement, as such agreement may be amended by the parties thereto from time to time. - 14 US-DOCS\86271257.15

“O&M Contractor” – An Affiliate of GenCo and the Ultimate Sponsor to be formed, or any successor entity. “Obstructive Practices” – Any of: (a)

deliberately destroying, falsifying, altering, or concealing evidence material to any investigation, or making false statements to investigators, in order to impede any investigation into allegations of any Coercive Practice, Collusive Practice, Corrupt Practice, Fraudulent Practice, or Obstructive Practice;

(b)

threatening, harassing, or intimidating any Person to prevent such Person from disclosing its knowledge of matters relevant to any such investigation or from pursuing any such investigation; or

(c)

acts intended to materially impede the exercise of any Person’s (including the World Bank Group’s) legal or contractual rights of access to information under any Project Agreement.

“OFAC” - The Office of Foreign Assets Control of the U.S. Department of Treasury. “Other Force Majeure Event” − Has the meaning given thereto in Section 21.1.2(d). “Other Force Majeure Purchase Price” – Has the meaning given thereto in Schedule 3. “Other Income” – Has the meaning given thereto in Schedule 1 (Methodology for Establishing the Lignite Price; Lignite Quantities) of the Lignite Supply Agreement. “Ownership Interest” − With respect to any corporation, limited liability company, partnership or other business organization, shares, ownership interests, or other similar interests in such business organization with (i) voting or other rights of management and control, or (ii) equity participation therein and securities of such business organization that are convertible into same at the option of the holder. “Party” and “Parties” – Have the meaning given thereto in the introductory paragraph. “Pass-Through Environmental/Archaeological Condition” – Has the meaning given thereto in the Power Purchase Agreement. “Payment Dispute” – A Dispute that relates to any actual or contingent payment obligation (other than those which arise directly from a termination of this Agreement) which may arise between the Parties related to this Agreement that, in any case, is the type of issue or matter that is reasonably susceptible to consideration and resolution by an expert with relevant experience. “Permitted Encumbrances (GenCo)” – Means: (a)

statutory Encumbrances for Taxes or other governmental charges or assessments not yet due or delinquent or the validity of which are being contested in good faith by appropriate proceedings;

(b)

zoning, entitlement, environmental or conservation restrictions and other land use and environmental regulations imposed on the Site that are either in effect at the Financial Closing or do not constitute or are reasonably unlikely to have a material effect on GOK;

(c)

recorded or unrecorded easements, rights-of-way, restrictions, covenants, encroachments, licenses and other matters affecting the Site provided for under the Project Agreements;

(d)

the covenants and restrictions set forth in any Project Agreement;

(e)

any Encumbrances in favor of a Public Authority arising in the ordinary course of business by operation of the Laws of Kosovo with respect to a liability that is not yet due or delinquent or which is being contested in good faith that are either (i) in public records or disclosed to GenCo in writing by GOK prior to the Financial Closing, or (ii) do not constitute or are reasonably unlikely to have a material effect on GOK; and - 15 -

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(f)

those minor imperfections of title and Encumbrances that in the aggregate are not substantial in amount, do not detract from the value of the property subject thereto, or impair the Site or operations that are listed in Schedule 2 of the Site Transfer Agreement nor constitute or are reasonably unlikely to have a material effect on GOK.

“Permitted GOK Advisor Fees” – Means reasonable and prudent fees and certain expenses of the GOKAppointed Independent Engineer or GOK’s technical, legal, financial, or transaction advisors, as the case may be, incurred or reimbursed by GOK in relation to the development, construction, or other matters in relation to the KRPP Facility including the negotiation of any change to the Project Agreements requested by GenCo; provided, that Permitted GOK Advisor Fees shall not include any of the following: (i) any costs and expenses that would otherwise constitute Permitted GOK Advisor Fees if the sum of all such payments under Article 16 of this Agreement have reached the applicable GOK Advisor Fee Cap, (ii) any fees or expenses that are incurred in the representation of GOK or a Specified POE in connection with a dispute that is in arbitration under any of the Project Agreements, (iii) any expenses for gifts or entertainment or (iv) any expenses for traveling, lodging or meal that are not pre-approved in writing by GenCo. “Person” – Any individual, corporation, partnership, joint venture, association, business trust, unincorporated organization, Public Authority, limited liability company, or other entity. “Political Force Majeure Event” – Has the meaning given thereto in Section 21.1.2(a). “Power Purchase Agreement” − The agreement by that name between NKEC and GenCo dated on or about the Execution Date. “PPP Partner Selection Process Suit” – Has the meaning given thereto in Section 8.4.1(a). “Pre-Financing Fees” – Means any fees paid by GenCo or its Affiliates, as agreed to by NKEC, to export credit agencies or similar Lenders prior to the Financial Closing, with respect to the financing of the Kosovo e Re Project. “Preliminary ESIA (GOK)” – Has the meaning given thereto in the Power Purchase Agreement. “Prescribed Consent Fee” – With respect to any Consent, the charge or fee, if any, prescribed by the Laws of Kosovo. “Prescribed Consent Form” – With respect to any Consent, the form, if any (including all information and details), prescribed by the Laws of Kosovo for the application for or renewal of such Consent. “Project Agreements” – This Agreement, the Sponsor Support Agreement, the Government Guarantee, the Power Purchase Agreement, the Connection Agreement, the Lignite Supply Agreement, the Water Supply Agreement, the Ultimate Sponsor Guarantee, the Site Transfer Agreement, the Lease Agreement, the Ash and Gypsum Disposal Agreement, together with any novation agreement in relation to any of the foregoing agreements and any other agreement entered into by GOK or Specified POE with GenCo or the Sponsor HoldCo or the Ultimate Sponsor relating to the Kosovo e Re Project, as such agreements may be amended (subject to Section 23.2) by the parties thereto from time to time. “Proposed Material Amendment” – Has the meaning given thereto in Section 5.1.2(c). “Protected Assets” – GOK’s aircraft and other defense related assets or assets protected by the diplomatic and consular privileges provisions of any Kosovo legislation (if any) or international law. “Prudent Mining Practices” − Those practices, methods, and procedures conforming to safety and legal requirements that are attained by exercising that degree of skill, diligence, prudence, and foresight that would reasonably and ordinarily be expected from a skilled and experienced mining company engaged in the same or a similar type of undertaking or activity under the same or similar circumstances and conditions to those pertaining in Kosovo and satisfying the health, safety, and environmental standards of - 16 US-DOCS\86271257.15

reputable international mining companies. Prudent Mining Practices are not limited to optimum practices, methods, or acts to the exclusion of all others, but rather are a spectrum of possible practices, methods, and acts that could have been expected to accomplish the desired result at reasonable cost consistent with reliability and safety. “Prudent Utility Practices” − Those practices, methods, and procedures conforming to safety and legal requirements that are attained by exercising that degree of skill, diligence, prudence, and foresight that 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 Kosovo 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 are a spectrum of possible practices, methods, and acts that could have been expected to accomplish the desired result at reasonable cost consistent with reliability and safety. “Public Authority” – Any of the following with jurisdiction over GenCo, the Kosovo e Re Project, or any part thereof: (a)

GOK, any subdivision thereof, or any local governmental authority;

(b)

any department, authority, instrumentality, agency, or judicial body of any Public Authority described in Section (a) above;

(c)

courts and tribunals in Kosovo;

(d)

any independent regulatory agency having jurisdiction over GenCo, the Kosovo e Re Project, or any part thereof; or

(e)

any national, city, provincial, municipal, local or regional authorities, departments, bodies, bureaus, instrumentalities, commissions, corporations, branches, directorates, agencies, ministries, courts, tribunals, judicial authorities, legislative bodies, administrative bodies, regulatory bodies, autonomous or quasi-autonomous entities or taxing authorities or any department, municipality or other political subdivision thereof, including but not limited to, any Person (whether autonomous or not) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any of the foregoing entities.

“Publicly Owned Enterprise” − A “publicly owned enterprise,” as defined in the Law on Publicly Owned Enterprises, 2008, as amended by the Law Amending the Law on Publicly Owned Enterprises (no. 05/L009). “Qualified Bank” – A commercial bank whose long-term senior unsecured debt obligations denominated in Euros is rated at or above A by S&P or its equivalent from another internationally recognized major credit rating institution and that (i) in GOK’s sole discretion, would not be adverse to the national security interests of Kosovo, and (ii) is not engaged in any material litigation with GOK or any Public Authority. “Raw Water Force Majeure Event” – Has the meaning given thereto in the Power Purchase Agreement. “Refinancing” – Has the meaning given thereto in the Power Purchase Agreement. “Resettlement Action Plan” – A plan to address the impact of the involuntary resettlement of peoples affected by the Kosovo e Re Project, such plan having been: (a)

developed in accordance with the Laws of Kosovo, the Resettlement Policy Framework, and the Resettlement Standards;

(b)

submitted to and approved by GOK; and

- 17 US-DOCS\86271257.15

(c)

developed to mitigate the negative impacts of displacement, identify development opportunities, develop a resettlement budget and schedule, and establish the entitlements of all categories of affected persons (including host communities where applicable).

“Resettlement Policy Framework” – The resettlement policy framework related to the Kosovo e Re Project adopted by GOK in accordance with World Bank Group Operating Procedure/Bank Procedure 4.12 and the applicable IFC Environmental and Social Sustainability Standards and the applicable MIGA Policy on Social & Environmental Sustainability. “Resettlement Standards” – Collectively, with respect to the Kosovo e Re Project and solely to the extent applicable to the Kosovo e Re Project: (a)

the resettlement standards set forth in the World Bank Environmental and Social Safeguard Policies;

(b)

the resettlement standards set forth in the IFC Environmental and Social Sustainability Standards;

(c)

the resettlement standards set forth in the MIGA Policy on Social & Environmental Sustainability;

(d)

the resettlement standards set forth in the EBRD Environmental and Social Policy; and

(e)

the requirements imposed by any Law of Kosovo related to involuntary resettlement,

except to the extent that the provisions set forth in two or more of the above are such that the Person conducting such resettlement cannot simultaneously comply with such provisions, in which case the order of the standards listed above shall be the order of precedence, and the relevant provisions of the relevant lower-ranked standard (or standards, if necessary) shall not apply to the extent necessary to enable such Person to comply with the higher-ranked standard. For the avoidance of doubt, nothing herein shall reduce the obligation of a Party to comply with the most stringent of the foregoing standards. “Restricted Party” - A person that is: (a)

listed on any Sanctions List;

(b)

with a primary place of business in, incorporated or organized under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or

(c)

otherwise a target of Sanctions (“target of Sanctions” signifying a person with whom a United States person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).

“Sanctions” - The economic sanctions, laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctions Authorities. “Sanctions Authorities” – Any of: (a)

the United States government;

(b)

the United Nations;

(c)

the European Union;

(d)

the United Kingdom;

(e)

France;

(f)

Japan; or

(g)

the respective governmental institutions and agencies of any of the foregoing, including, without limitation, OFAC, the United States Department of State and/or HMT. - 18 -

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“Sanctions List” - The ‘Specially Designated Nationals and Blocked Persons’ list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by HMT, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities “Scheduled Outage” − Has the meaning given thereto in the Power Purchase Agreement. “Shareholder Loans” – Has the meaning given thereto in the Power Purchase Agreement. “Sibovc South Mine Field” – Has the meaning given thereto in the Lignite Supply Agreement. “Site” – Has the meaning given thereto in the Power Purchase Agreement. “Site Transfer Agreement” – The agreement by that name between KEK Generation and GenCo dated on or about the Execution Date. “Social Standards” – Collectively, with respect to GenCo’s participation in the Kosovo e Re Project and solely to the extent applicable to GenCo or the Kosovo e Re Project, (a)

the social components of the E&S Management Plan;

(b)

the social standards set forth in the World Bank Environmental and Social Safeguard Policies;

(c)

the social standards set forth in the IFC Environmental and Social Sustainability Standards;

(d)

the social standards set forth in the MIGA Policy on Social & Environmental Sustainability;

(e)

the social standards set forth in the EBRD Environmental and Social Policy; and

(f)

the requirements imposed by any Law of Kosovo related to the social safeguards and sustainability,

except to the extent that the provisions set forth in two or more of the above are such that GenCo cannot simultaneously comply with such provisions, in which case the order of the standards listed above shall be the order of precedence, and the relevant provisions of the relevant lower-ranked standard (or standards, if necessary) shall not apply to the extent necessary to enable GenCo to comply with the higher-ranked standard. For the avoidance of doubt, nothing herein shall reduce the obligation of a Party to comply with the most stringent of the foregoing standards. “Special GOK Notice of Default” – Has the meaning given thereto in the Power Purchase Agreement, the Ash and Gypsum Disposal Agreement, the Lignite Supply Agreement, or the Water Supply Agreement, as the case may be. “Specified Environmental Condition Remediation” – The actions necessary to evaluate, control, address, remediate, and remove the Specified Environmental/Archaeological Conditions. “Specified Environmental Condition Remediation Contract” – Has the meaning given thereto in the Power Purchase Agreement. “Specified Environmental Condition Remediation Contractor” – Has the meaning given thereto in the Power Purchase Agreement. “Specified POE” and “Specified POEs” − Any or all of KEK Mining, KEK Generation, NKEC, KOSTT, Water Supplier, and any other Publicly Owned Enterprise that is a party to a Project Agreement, as the context requires. Notwithstanding anything herein to the contrary, any Person that is not a Publicly Owned Enterprise who succeeds to the interest of a Specified POE under any Project Agreement will be deemed to be a Specified POE. “Specified POE Action or Inaction” − The action or inaction of any Specified POE, other than a Change in Law, which action or inaction constitutes a material breach or default of the relevant Specified POE’s obligations under any of the Project Agreements to which the relevant Specified POE is a party or - 19 US-DOCS\86271257.15

constitutes a material violation of the Laws of Kosovo and which action or inaction of such Specified POE has a Material GenCo Effect; provided, however, that no such action or inaction shall be considered a Specified POE Action or Inaction if such action or inaction is caused in whole or significant part by a GenCo Action or Inaction. “Specified POE Force Majeure Event” – Has the meaning given thereto in the Power Purchase Agreement. “Sponsor HoldCo” – Has the meaning given thereto in the Sponsor Support Agreement. “Sponsor HoldCo Party” – Has the meaning given thereto in the Sponsor Support Agreement. “Sponsor Support Agreement” – The agreement by that name between GOK, the Sponsor HoldCo, and GenCo dated on or about the Execution Date. “Tariff Exclusions” – Has the meaning given thereto in the Power Purchase Agreement. “Tax” – Any tax, charge, 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, including any corporate tax, value added tax, sales tax, water or environmental or energy tax, import or customs duty, withholding tax, excise tax, tax on foreign exchange transactions or property tax. The term “Tax” shall not include any fee or charge payable to a Public Authority as consideration for goods or services provided by such Public Authority in relation to a commercial activity carried out by such Public Authority. “Tax Treaties” – One or more conventions or treaties entered into between Kosovo and other countries for the avoidance of double taxation. “Technical Dispute” – A Dispute that relates to a technical, engineering, operational, or accounting issue or matter related to this Agreement that, in any case, is the type of issue or matter that is reasonably susceptible to consideration and resolution by an expert in the relevant field or fields. “Tender (Connection)” – Has the meaning given thereto in the Power Purchase Agreement. “Tender (Environmental)”– Has the meaning given thereto in the Power Purchase Agreement. “Tender (Plant)” – Has the meaning given thereto in the Power Purchase Agreement. “Term” – Has the meaning given thereto in Section 2.1. “Termination Notice” − Has the meaning given thereto in Section 19.3. “Termokos” – District Heating Termokos, J.S.C., a joint stock company organized under the laws of Kosovo. “Transfer Date” − Has the meaning given thereto in the Site Transfer Agreement. “Ultimate Sponsor” – Has the meaning given thereto in the Sponsor Support Agreement. “Ultimate Sponsor Guarantee” – The guarantee of that name between Ultimate Sponsor and the Republic of Kosovo dated on or before the Effective Date. “Ultimate Sponsor Party” – Has the meaning given thereto in the Power Purchase Agreement. “Uninsurable Event” – An Other Force Majeure Event risk for which either: (1) insurance for such risk is not generally available in the insurance market from a provider qualified in accordance with the terms of the Power Purchase Agreement and GenCo has provided all documentation in connection with such nonavailability as required under Section 21.1.2 (Exceptions to Insurance Requirements) of the Power Purchase Agreement; (2) GenCo is not required to obtain such insurance in accordance with the provisions of the Power Purchase Agreement; (3) insurance for such risk is available and GenCo would be required to obtain such insurance in accordance with the provisions of the Power Purchase Agreement - 20 US-DOCS\86271257.15

but NKEC and GOK have agreed with GenCo in writing that GenCo will not be required to insure such risk; provided, however, no Other Force Majeure Event will be an Uninsurable Event to the extent that insurance coverage is not available as a result of any of the following: (i) insurance fails to respond due to negligence or breach of the terms of the policy on the part of GenCo; or (ii) failure by GenCo to satisfy its obligations under the Power Purchase Agreement or any other Project Agreement. “Water Supplier” – HPE Ibër-Lepenc, J.S.C., a joint stock company organized under the laws of Kosovo, with its principal office at Bulevardi Bill Clinton No.13, Pristina, Kosovo, and business registration number 70465157, Kosovo. “Water Supplier Party” – Has the meaning given thereto in the Water Supply Agreement. “Water Supply Agreement” – The agreement by that name between GenCo and the Water Supplier dated on or about the Execution Date. “World Bank” – Shall mean the international financial institution that provides loans to developing countries for capital programs and is comprised of the International Bank for Reconstruction and Development and the International Development Association. “World Bank Associated Facility Requirements” – The requirements of the World Bank in relation to the Sibovc South Mine Field, which are as follows: (a)

undertake the recommendations set forth in the World Bank Inspection Panel corrective action plan in connection with the ownership, development (including with respect to any resettlement and legacy resettlement), and operation of the Sibovc South Mine Field and the Mining Assets;

(b)

complete an environmental and social impact assessment for the Sibovc South Mine Field development in accordance with the Laws of Kosovo and IFC Environmental and Social Sustainability Standards;

(c)

establish an environmental and social management system in accordance with the IFC Environmental and Social Sustainability Standards to implement and monitor the environmental and social mitigation action established in the environmental and social impact assessment for the Sibovc South Mine Field development; and

(d)

hire an independent consultant to monitor compliance of the Sibovc South Mine Field development with the Laws of Kosovo, IFC Environmental and Social Sustainability Standards, and environmental and social impact assessment mitigation actions.

“World Bank Environmental and Social Safeguard Policies” – The Environmental and Social Safeguard Policies published by the World Bank, available as at the Execution Date (subject to future relocation) at http://go.worldbank.org/WTA1ODE7T0 or such later version required to be met by any Lender under the Financing Documents. “World Bank Group” – Shall mean the incorporation of the World Bank, the International Finance Corporation, the Multilateral Investment Guarantee Agency, and the International Centre for Settlement of Investment Disputes, which collectively work toward the reduction of poverty. “World Bank Group EHS Guidelines” – The World Bank Group’s Environmental, Health and Safety Guidelines, available at the Execution Date (subject to future relocation) as at http://www.ifc.org/ehsguidelines/ or such later version required to be met by any Lender under the Financing Documents, including the applicable sections of the: (i) Environmental, Health and Safety Guidelines on for Thermal Power Plants (2008), Mining (2007) and Waste Management Facilities (2007), and (ii) Section 2.0 of the Environmental, Health and Safety (EHS) Guidelines: Occupational Health and Safety (April 30, 2007). “Working Capital Amount” – Has the meaning given thereto in the Power Purchase Agreement. - 21 US-DOCS\86271257.15

“Working Capital Facility” – Has the meaning given thereto in the Power Purchase Agreement. “Working Capital Reserve Account” – Has the meaning given thereto in the Power Purchase Agreement. “Year” – Each twelve (12) Month period commencing on January 1 and continuing until the end of such calendar year. 1.2

Interpretation

(a)

In this Agreement, unless a clear contrary intention appears: (i)

the singular number includes the plural number, and vice versa;

(ii)

calculations other than prices required to be made hereunder shall be expressed with four decimal places of precision;

(iii)

reference to any Person includes such Person’s permitted successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually;

(iv)

reference to any gender includes each other gender;

(v)

reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; provided however, that reference to the Applicable Standards (other than the Laws of Kosovo) means the Applicable Standards (other than the Laws of Kosovo) in effect on the Execution Date and, following the execution of the Financing Documents, the versions of the Applicable Standards (other than the Laws of Kosovo) required to be met by any Lender under the Financing Documents;

(vi)

references to any legislation or legislative provision include references to any statutory modification or re-enactment of such legislation or legislative provision and any legislation or legislative provision substituted for that legislation or legislative provision, provided that nothing in this Section 1.2(a)(vi) shall prevent a Party from seeking relief for a Change in Law as provided in any Project Agreement;

(vii)

“hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section, Schedule, or other provision hereof, unless otherwise specifically stated;

(viii)

“including” (and with correlative meaning “include” or “includes”) means including without limiting the generality of any description preceding such term;

(ix)

a letter, document, or other instrument providing that GOK has “no objection” (or “does not object” or other words of similar import) in relation to a particular matter shall be deemed a GOK consent in relation to such matter;

(x)

with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”;

(xi)

references to documents, instruments, or agreements shall be deemed to refer as well to all addenda, exhibits, schedules, or amendments thereto; and

(xii)

references to a Party becoming aware or having knowledge of an event or circumstances shall be deemed to refer to personnel of such Party that have responsibility for matters relating to such event or circumstances, or any current or former director or officer, becoming aware or having knowledge. - 22 -

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(b)

Captions and headings in this Agreement are for reference only and do not constitute a part of the substance of this Agreement and shall not be considered in construing this Agreement.

(c)

References in the body of this Agreement to Articles, Sections, and Schedules (and Annexes thereof) are to Articles and Sections of and Schedules (and Annexes thereof) to this Agreement, unless stated otherwise. References in any Schedule to Articles, Sections, and Annexes are references to Articles, Sections, and Annexes of that Schedule, unless stated otherwise. References in any Schedule (or Annex thereto) to Articles and Sections of the Agreement are references to the body of this Agreement, unless stated otherwise.

(d)

In carrying out its obligations and duties, and in providing estimates under this Agreement, each Party shall have an implied obligation of good faith.

(e)

Except as otherwise indicated in this Agreement, references to time are references to Central European Standard Time or Central European Summer Time, as then applicable at the Site.

(f)

This Agreement was negotiated by the Parties with the benefit of legal representation, and accordingly, any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party as the drafting party shall not apply to any construction or interpretation hereof.

(g)

To the extent there exists a conflict between any provisions of this Agreement and any Schedule or Annex, the provisions of this Agreement shall prevail but the absence of a provision in a Schedule or Annex or in this Agreement (as the case may be) shall not constitute a conflict. Article 2 Effective Date; Term

2.1

Effectiveness; Term

This Agreement shall commence and become effective on the later of (a) the Execution Date, and (b) the date on which the Power Purchase Agreement becomes effective in accordance with Section 2.1 (Effectiveness; Term) of the Power Purchase Agreement (such date of effectiveness being the “Effective Date”). This Agreement shall, unless otherwise terminated early in accordance with the terms of this Agreement, terminate upon the expiration or prior termination of the Power Purchase Agreement (such period, the “Term”). Article 3 Implementation of the Kosovo e Re Project 3.1

Implementation of the Kosovo e Re Project

GenCo shall develop, design, construct, finance, own, operate, and maintain, the KRPP Facility in accordance with the Laws of Kosovo, the Applicable Standards, the GenCo Consents, this Agreement, and the Power Purchase Agreement. 3.2

No Discrimination; No Expropriation

(a)

GOK shall not, and shall ensure that no Public Authority shall, take any action that would materially and adversely affect GenCo or its ability to fulfill its obligations under this Agreement or the Project Agreements or the Financing Documents or the Construction/Maintenance Contracts based upon reasons of foreign ownership or control of GenCo in accordance with the Law on Foreign Investment, 2013 (no. 04/L-220), and GOK shall, and shall ensure that other Public Authorities shall, treat GenCo no less favorably than it treats any other entity doing similar business in Kosovo, in accordance with the provisions of Articles 24 and 119 of the Constitution of the Republic of Kosovo and the Law on Foreign Investment, 2013 (no. 04/L-220). - 23 -

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(b)

Neither GOK nor any Public Authority shall expropriate, nationalize, or, except as hereinafter provided in the Project Agreements, compulsorily acquire (or take or otherwise permit any action or series of actions which either alone or when taken together has substantially the same effect as any of the foregoing) any material portion of the Kosovo e Re Project, the Ownership Interests in GenCo, or any of its assets, rights, or interests, whether in whole or in part; provided, however, that the foregoing shall not prohibit any actions taken by GOK, any Public Authority, or any Specified POE pursuant to their respective rights and obligations arising under this Agreement or the Project Agreements.

3.3

Tender (Plant) for EPC Contractor and LTM Contractor

The provisions of Section 3.9 (Tender for EPC Contractor and LTM Contractor; Tendered PPA Inputs; Future LTM Contractor Replacement) of the Power Purchase Agreement are hereby incorporated herein by reference, mutatis mutandis. 3.4

Financing

3.4.1

GOK Approval Required in Relation to Financing and Refinancing

(a)

The provisions of Section 3.13 (Arrangement of Financing) of the Power Purchase Agreement are hereby incorporated herein by reference, mutatis mutandis.

(b)

GenCo shall deliver to GOK a copy of all Financing Documents executed by GenCo promptly following the closing of any Refinancing, or if executed following the closing of the Refinancing, promptly following their execution, in each case not more than ten (10) Business Days after copies of all such documents have been delivered to the relevant Lenders, but in any case not longer than forty-five (45) Days following the closing of such Refinancing.

(c)

GenCo shall not, without the prior written consent of GOK, enter into any Refinancing or enter into any material amendment to the Financing Documents, if such Refinancing or amendment to the Financing Documents would materially increase the Buy-Out Compensation Amounts or otherwise materially increase GOK’s obligations under this Agreement or materially impair the rights of GOK, including to acquire the KRPP Facility free and clear of all Encumbrances, other than Permitted Encumbrances (GenCo), upon GOK’s payment of the applicable Buy-Out Compensation Amount.

(d)

GenCo may enter into any Refinancing or otherwise enter into any amendments to the Financing Documents that do not have the effects described in Section 3.4.1(c) without the consent of GOK.

(e)

Subject to Section 3.4.1(c), GenCo shall only undertake Refinancings in accordance with Section 16.6 (Refinancing of the KRPP Facility) of the Power Purchase Agreement.

3.4.2

Financing Support

Subject to Section 3.4.1 and its rights under the Project Agreements, GOK agrees to: (a)

reasonably cooperate, and to cause the Specified POEs to reasonably cooperate, with GenCo’s efforts in obtaining and maintaining any financing or refinancing for the Kosovo e Re Project; and

(b)

provide reasonable support for regulatory filings and such reasonable and appropriate further assurances to the Lenders as are reasonably requested by the GenCo to give effect to the foregoing.

- 24 US-DOCS\86271257.15

3.4.3

Consent to Collateral Assignment

(a)

GOK agrees to: (i)

(ii)

(b)

execute and deliver to any Lenders identified by GenCo a reasonable and customary Direct Agreement with the Lenders, including (A)

a consent and acknowledgement to the collateral assignment of this Agreement and each of the Project Agreements to which GOK is a party and the Government Guarantee and other security reasonably and customarily granted to Lenders in accordance with the applicable Financing Document,

(B)

an obligation to make payments to accounts as notified by GenCo from time to time (to the extent, if any, such payments are payable by GOK under this Agreement);

(C)

an obligation to provide notice to Lenders of any GenCo Event of Default or other event that may result in the termination or suspension of any of this Agreement or any other Project Agreement to which GOK is a party,

(D)

a right of Lenders to have the Applicable Counterparty Cure Period following the receipt of notice of a GenCo Event of Default or other event that may result in the termination or suspension of any of the Project Agreements to which GOK is a party during which to make any payment or perform any act required of NKEC hereunder to cure the NKEC Event of Default, with the same effect as if such payment or act had been made or performed by NKEC,

(E)

a right of Lenders to appoint a Person to assume the rights and obligations of GenCo under the Project Agreements during the Lender cure period described above and thereafter, and the obligation to enter into replacement Project Agreements with such Person if the Project Agreements are no longer effective due to the bankruptcy or other incapacity of GenCo,

(F)

an obligation that consent of Lenders be obtained in advance of an assignment of a Project Agreement by GOK or Specified POE, except to the extent that no approval of such assignment is required from GenCo under a Project Agreement,

(G)

an obligation to pay Buy-Out payments in respect of amounts due under the Financing Documents directly to the applicable Lender, and

(H)

enter into a replacement agreement with an entity selected as a successor to GenCo’s rights, and

(I)

other reasonable and customary terms required by the Lenders.

execute and deliver any other reasonable and customary security documents that GenCo or the Lenders may request GOK execute in order to facilitate the creation or perfection of the foregoing security interests, provided, however, that GOK shall not be obligated to execute any such document or instrument if or to the extent that the execution of such document or instrument would materially impact GOK’s economic position or risks to be borne by GOK; and provided, further, that GOK shall have received copies of the documents or instruments that it is being requested to execute and all documents and instruments reasonably necessary for a full and complete understanding of the rights and obligations of the parties to the Direct Agreement with the Lenders reasonably in advance of the time that it is expected to negotiate the form of and execute the Direct Agreement.

GOK agrees to modify or clarify the provisions of this Agreement as reasonably requested by the Lenders; provided, however, that GOK shall have no obligation to make modifications or - 25 -

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clarifications that materially impact the economic position of GOK or the risks to be borne by GOK. (c)

GOK shall cause the Specified POEs to execute and deliver to any Lenders identified by GenCo a reasonable and customary direct agreement substantially similar to that described in Section 3.4.3(a), mutatis mutandis, and such reasonable and customary documents substantially similar to that described in Section 3.4.3(a)(ii), mutatis mutandis, and to modify or clarify the provisions of the Project Agreements as reasonably requested by the Lenders, subject in each case to the limitations set forth in Section 3.4.3(a) and Section 3.4.3(b).

3.5

Acquisition of Land

3.5.1

Land for the Connection Area

(a)

The Parties acknowledge that it will be necessary for GenCo to acquire sufficient leasehold or other real property rights over the land that shall be used for the interconnection work. GenCo shall have the right to obtain such property rights in accordance with this Section 3.5.1 and shall waive any rights under the Laws of Kosovo (including under Article 27 of the Law on Energy, 2016 (no. 5/L-081)) to acquire such property rights. Subject to Section 19.2, land acquisition shall be completed in accordance with the Applicable Standards.

(b)

GenCo shall:

(c)

(i)

not later than the Transfer Date, provide to GOK a notice (the “Land Acquisition Report”) of the real property rights that GenCo reasonably expects will be necessary to enable GenCo to undertake GenCo interconnection works (the “Connection Area”) in order to satisfy its obligations under the Project Agreements and the Construction/Maintenance Contracts;

(ii)

include in the Land Acquisition Report the specific parcels and property rights that GenCo reasonably requires and the anticipated date by which GenCo anticipates such property rights will be acquired; and

(iii)

promptly notify GOK in the event of any necessary revision to the Land Acquisition Report.

GOK shall either: (i)

to the extent that GOK possesses all or a portion of the real property rights described in the Land Acquisition Report (taking into account GOK’s requirements for the property rights), GOK shall in accordance with Section 3.5.1(d) lease such real property to GenCo;

(ii)

to the extent that a Specified POE that is a Publicly Owned Enterprise possesses all or a portion of the real property rights described in the Land Acquisition Report (taking into account the Specified POE’s requirements for the property rights), GOK shall cause such Specified POE to transfer such real property rights to GOK and GOK shall lease the real property subject to such rights to GenCo in accordance with Section 3.5.1(d); or

(iii)

in the event that neither GOK nor any Specified POE that is a Publicly Owned Enterprise, individually or collectively, possess the real property rights reasonably specified as necessary in the Land Acquisition Report, then GOK shall acquire (without any liability to GenCo), by agreement with private landowners or by expropriation in accordance with the Law on Expropriation of Immovable Property, 2009 (no. 03/L-139) and the Law on Amending and Supplementing the Law on Expropriation of Immovable Property (no. 03/L-205), such real property rights and shall lease such real property to GenCo in accordance with Section 3.5.1(d), - 26 -

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and, provided that GOK has at least twelve (12) Months’ advance notice of the need for GenCo to obtain such real property rights in a Land Acquisition Report, shall undertake such obligations so as to enable GenCo to take possession of such real property by the date specified in the Land Acquisition Report. (d)

Any lease of real property (and/or other instruments of transfer and conveyance in accordance with the Laws of Kosovo) by GOK to GenCo pursuant to Section 3.5.1(c) shall be made pursuant to the following: (i)

to effectuate the lease of the initial property to be leased by GOK to GenCo, GOK and GenCo shall enter into the Lease Agreement (with such property being the Initial Property (as defined in the Lease Agreement); and

(ii)

to effectuate the lease of any subsequent property to be leased by GOK to GenCo, GOK and GenCo shall execute an addendum to the Lease Agreement to include such additional property (with such property being Additional Property (as defined in the Lease Agreement).

3.6

Resettlement

3.6.1

GenCo Obligations

GenCo shall (a) cooperate with and provide to GOK all reasonable assistance necessary to enable GOK to perform its obligations under Section 3.6.2, and (b) promptly reimburse GOK for any reasonable and documented third party costs and expenses incurred by GOK prior to the Final Draw Date in connection with any Resettlement Action Plan for the Connection Area under Section 3.6.2; provided, however, that GenCo shall be entitled to full reimbursement as a Land Acquisition Cost (as defined in the Power Purchase Agreement) pursuant to Schedule 1 (Tariff) of the Power Purchase Agreement; provided, further, that any such costs and expenses reimbursable to GOK by GenCo pursuant to this Section 3.6.1 shall be capped at one million Euros (€1,000,000); provided, further, that GenCo shall, at its sole discretion, have the right to withhold payment of any such costs or expenses with respect to any third party that is under investigation or has been charged, in each case by a Public Authority, for a violation of the Anti-Bribery Laws, or any compliance requirement under Section 23.24.

3.6.2

GOK Obligations

GOK shall diligently prosecute the implementation of one or more Resettlement Action Plans for the Connection Area. 3.7

Separate Accounting

GenCo shall ensure that all costs of the Kosovo e Re Project and any other activity or business of GenCo other than the Kosovo e Re Project are accounted for separately, except as approved by GOK (solely for purposes of its interests under the Project Agreements) or ERO (pursuant to its regulatory authority). 3.8

No Other Business Undertakings

(a)

Subject to Section 3.8(b), GenCo shall not without the prior written consent of GOK: (i)

form, acquire, or have an interest in any subsidiary, or joint venture;

(ii)

acquire any share or loan capital in, or any security in, or any other investment or interest in, any other Person;

(iii)

enter into any profit-sharing or royalty agreement or other similar arrangement whereby GenCo’s income or profits are, or might be, shared with any other Person (other than (i) the Sponsor HoldCo, the equity holders in the Sponsor HoldCo, the Ultimate Sponsor and the equity holders in the Ultimate Sponsor and (ii) pursuant to the Project Agreements and the Construction/Maintenance Contracts that provide for a sharing of GenCo - 27 -

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revenues or profit) or enter into any management contract or similar arrangement whereby GenCo’s business or operations are managed by any other Person (other than as provided in the Project Agreements); or (iv)

engage in any business or activity, enter into any partnership or joint venture or similar relationship with any other Person;

in each case other than: (A)

as expressly contemplated in and pursuant to the Project Agreements, the Financing Documents and the Construction/Maintenance Contracts; or

(B)

to the extent reasonably related to the undertaking of GenCo’s obligations under the Project Agreements, the Financing Documents and the Construction/Maintenance Contracts or in relation to the Kosovo e Re Project.

(b)

Notwithstanding Section 3.8(a), GenCo shall be permitted to enter into agreements for and engage in the sale of byproducts incidental to the Kosovo e Re Project, including ash and gypsum, provided revenues therefrom are reflected in the Availability Credits as provided in Schedule 1 (Tariff) of the Power Purchase Agreement.

3.9

Appointment of the GOK-Appointed Independent Engineer

GOK shall use commercially reasonable efforts to appoint the GOK-Appointed Independent Engineer from the list of consultants set forth on Schedule 10 hereto no later than sixty (60) Days following the Effective Date. To the extent that GOK is unable for any reason to appoint the GOK-Appointed Independent Engineer from those listed on Schedule 10, then GOK shall appoint the GOK-Appointed Independent Engineer without regard to the list of consultants set forth on Schedule 10 hereto, which GOK-Appointed Independent Engineer shall be reasonably acceptable to GenCo (and, to the extent the Parties cannot agree not later than fifteen (15) Days prior to that date on which the Transfer Date is reasonably anticipated to occur, then the GOK-Appointed Independent Engineer shall be designated by the ICC International Centre for Expertise for ad hoc proceedings in accordance with the ICC Rules for Expertise for ad hoc proceedings), to carry out the duties of the GOK-Appointed Independent Engineer specified in the Power Purchase Agreement and the Water Supply Agreement. The GOK-Appointed Independent Engineer shall act independently in discharging its functions. The Parties agree and acknowledge that the GOK-Appointed Independent Engineer selected hereunder is intended to serve, subject to Lenders’ approval, as the independent engineer retained to support Lender due diligence in respect of the Kosovo e Re Project. 3.10

Appointment of the Independent E&S Consultant

GOK shall use commercially reasonable efforts to appoint the Independent E&S Consultant from the list of consultants set forth on Schedule 10 hereto no later than sixty (60) Days following the Effective Date. To the extent that GOK is unable for any reason to appoint an Independent E&S Consultant from those listed on Schedule 10, the GOK shall appoint the Independent E&S Consultant without regard to the list of consultant set forth on Schedule 10 hereto, which Independent E&S Consultant shall be reasonably acceptable to GenCo (and, to the extent the Parties cannot agree not later than fifteen (15) Days prior to that date on which the Transfer Date is reasonably anticipated to occur, then the Independent E&S Consultant shall be designated by the ICC International Centre for Expertise for ad hoc proceedings in accordance with the ICC Rules for Expertise for ad hoc proceedings), to carry out the duties of the Independent E&S Consultant specified in the Power Purchase Agreement. The Independent E&S Consultant shall act independently in discharging its functions. The Parties agree and acknowledge that the Independent E&S Consultant selected hereunder is intended to serve, subject to Lenders’ approval, as the independent environmental & social consultant retained to support Lender due diligence in respect of the Kosovo e Re Project. - 28 US-DOCS\86271257.15

3.11

Procurement of Goods and Services

(a)

Except to the extent otherwise provided in the Power Purchase Agreement or in any other Project Agreement, GenCo shall, when procuring goods and services that will have an impact on the amount payable by NKEC under the Power Purchase Agreement, use prudent procurement methods and procedures, which shall comply with any procurement requirements explicitly set forth in the Project Agreements.

(b)

GenCo shall cooperate with the ERO in any inquiry by the ERO into the cost of goods and services that will have an impact on the amount payable by NKEC under the Power Purchase Agreement. Such cooperation shall include making all books and records of GenCo that are in its possession or under its control and that are related to the procurement of such goods and services available to the ERO upon at least five (5) Business Days’ prior written notice, during normal business hours and at the KRPP Facility or such other location designated by GenCo where such books and records are located.

(c)

For the purposes of Sections 3.11(a) and 3.11(b), the cost of goods and services will have an impact on the amount payable by NKEC under the Power Purchase Agreement if the cost of such goods and services will form the basis of, or cause an adjustment to, the amounts payable by NKEC in accordance with the terms of the Power Purchase Agreement.

3.12

Cogeneration; Heat Supply

(a)

Subject to Section 3.12(b), upon delivery of notice from GOK to GenCo requiring such, GenCo shall within six (6) Months together with NKEC promptly enter into negotiations for and negotiate in good faith for the supply of heat by GenCo to NKEC (with the intent that NKEC would on-sell to Termokos at its discretion) under an amendment to the Power Purchase Agreement that leaves the Parties in materially the same economic position, and complies with the following: (i)

any such amendment to the Power Purchase Agreement shall provide for revenue and profit neutrality to GenCo, such that GenCo’s net revenues based on supply of heat and reduction of electrical generation capacity to NKEC shall be no less than GenCo’s net revenues and profits provided for under the Power Purchase Agreement, and taking into account all capital costs (if any) or costs associated with increased outages resulting from the generation and sale of thermal energy and related interconnections and all transactional costs incurred by GenCo and the Lenders (including reimbursement of costs in the event such amendment is not ultimately entered into) related to negotiating and entering into such amendment to the Power Purchase Agreement to be reimbursed to GenCo or the Lenders, as applicable; provided, however, that all such costs incurred by GenCo must be incurred in good faith;

(ii)

no such amendment to the Power Purchase Agreement may enter into force and effect until approved by ERO and any other consent or agreements required from any other party to permit the sale of heat by GenCo from the KRPP Facility to NKEC has been obtained; and

(iii)

the execution, delivery and performance of such amendment to the Power Purchase Agreement and the modifications to the Project Agreements required in connection therewith will not have a Material GenCo Effect.

(b)

The Financing Documents may provide that the consent of the Lenders will be required for such amendment to the Power Purchase Agreement pursuant to Section 3.12(a).

(c)

Notwithstanding Section 3.12(a), GenCo shall have no obligation to enter into any such amendment to the Power Purchase Agreement to the extent that it is required to obtain Lender - 29 -

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consent and such consent is withheld, conditioned, or delayed despite GenCo’s commercially reasonable efforts to obtain such consent. 3.13

Participation in the Administration of Certain Terms of the Lignite Supply Agreement

3.13.1 GOK’s Lignite Interests The Parties acknowledge and agree that GOK has a substantial interest in: (a)

the Lignite Price and the payment of any sums of money under the Lignite Supply Agreement;

(b)

any business activity that may result in Other Income under the Lignite Supply Agreement;

(c)

the measurement, sampling, and analysis of Lignite supplied under the Lignite Supply Agreement;

(d)

the limitations on any commitments KEK Mining may have to supply purchasers of Lignite other than GenCo under the Lignite Supply Agreement;

(e)

any amendments of or modifications to the lignite quality parameters under the Lignite Supply Agreement in connection with any changes in law;

(f)

any other term of the Lignite Supply Agreement, the administration of which could have a material effect on: (i)

the payments required to be made by NKEC to GenCo pursuant to this Agreement;

(ii)

the availability of the capacity of the KRPP Facility;

(iii)

the reliable supply by GenCo of Net Electrical Output generated by the KRPP Facility; or

(iv)

the performance by GenCo of any material term of this Agreement.

3.13.2 The Lignite Price GenCo shall not undertake the initial establishment of the Lignite Price nor any adjustment of or change to the Lignite Price nor the continuation of the applicability of the Lignite Price beyond the time period provided for in Article 8 (Price) of the Lignite Supply Agreement nor permit to become (or remain, as the case may be) effective under the Lignite Supply Agreement, unless and until the Parties and KEK Mining shall have agreed in writing as to the initial establishment of, the adjustment of or change to, or the continued applicability of, the Lignite Price in accordance with the terms of the Lignite Supply Agreement.

3.13.3 Amendments to Agreements Between GenCo and KEK Mining GenCo agrees that it shall not, without the prior written consent of GOK, agree to or permit: (a)

any material amendment of the Lignite Supply Agreement or any other agreement between GenCo and KEK Mining that may impact the Lignite Price; or

(b)

any repudiation, annulment, cancellation, or suspension of the Lignite Supply Agreement or any other agreement between GenCo and KEK Mining that may impact the Lignite Price (without limiting the right to terminate in accordance with the terms of the Lignite Supply Agreement).

3.13.4 Enforcement of Agreements Between GenCo and KEK Mining (a)

GenCo shall enforce the terms of the Lignite Supply Agreement and any other agreement between GenCo and KEK Mining that may impact the Lignite Price in a manner consistent with Prudent Utility Practices and Prudent Mining Practices, as applicable.

(b)

In the event that GenCo fails to enforce the terms of the Lignite Supply Agreement or any other agreement between GenCo and KEK Mining that may impact the Lignite Price, then following - 30 -

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written notice of such failure from GOK to GenCo and subject to Section 3.13.7, the resolution of any related dispute between the Parties, GOK shall have the right to step in for purposes of enforcement by GenCo of any provision of the Lignite Supply Agreement or any other agreement between GenCo and KEK Mining that may impact the Lignite Price, as the case may be, that relates in any way to any of GOK’s Lignite Interests.

3.13.5 Generation of Other Income (a)

GOK may, at its option, participate in the negotiations related to any business activity of GenCo that may result in Other Income of more than €750,000.00 annually or €2,000,000.00 in the aggregate.

(b)

GenCo shall not undertake any business activity that may result in Other Income under the Lignite Supply Agreement of more than €750,000.00 annually or €2,000,000.00 in the aggregate without the prior written consent of GOK, such consent not to be unreasonably withheld.

3.13.6 Other KEK Mining Purchases from GenCo (a)

GOK may, at its option, participate in the negotiations related to the purchase of any goods or services by KEK Mining from GenCo that may impact the Lignite Price.

(b)

GenCo shall not enter into any agreement with KEK Mining for the purchase of any goods or services by KEK Mining from GenCo that may impact the Lignite Price without the prior written consent of GOK, such consent not to be unreasonably withheld.

3.13.7 Right to Dispute In the event that GenCo fails to enforce any provision of the Lignite Supply Agreement or any other agreement between GenCo and KEK Mining that may impact the Lignite Price that affects one of more of GOK’s Lignite Interests, then, following a written demand by GOK for the enforcement of such provision in accordance with Section 3.13.4, GOK shall be entitled to: (a)

join any arbitration proceedings initiated by GenCo, as the case may be, under Article 20 (Dispute Resolution) of the Lignite Supply Agreement or under the dispute resolution provisions of any agreement between GenCo and KEK Mining that may impact the Lignite Price; or

(b)

commence proceedings under Article 20 (Dispute Resolution) of the Lignite Supply Agreement or under any other agreement between GenCo and KEK Mining that may impact the Lignite Price in its own name against KEK Mining.

3.13.8 Notices All notices and other communications required or permitted to be given by GenCo pursuant to the Lignite Supply Agreement (including any invoices required or permitted to be delivered thereunder and the results of any testing or analysis of the Lignite supplied) shall be copied to GOK in the same manner and at the same time as such notice is provided to KEK Mining, and the Lignite Supply Agreement will require the same of KEK Mining. Article 4 Consents 4.1

GenCo Consents

From the Effective Date, GenCo shall apply for, diligently pursue, use reasonable commercial efforts to procure, and, following receipt, use reasonable commercial efforts to maintain (and, where applicable, cause GenCo Contractors to use reasonable commercial efforts to procure and maintain) all GenCo Consents. - 31 US-DOCS\86271257.15

4.2

Applications by GenCo for Consents

4.2.1

GenCo to Submit Applications

GenCo shall make or cause to be made, in a timely fashion, all applications (whether initial or renewal applications) for the GenCo Consents in the Prescribed Consent Form and with the Prescribed Consent Fee to the appropriate Public Authority and shall diligently pursue all such applications.

4.2.2

Non-Discrimination

The use of the term “non-discriminatory” or “discriminatory” in this Agreement is not intended to prohibit or limit in any way GOK or any Public Authority from making rational distinctions between parties or from using measures, establishing conditions, or enforcing requirements that are, in each case, intended or designed to advance the purposes of the program being implemented by GOK or Public Authority or of a Consent. It is intended, however, to prohibit the use of Public Authority, over GenCo Consents, inter alia, to deprive GenCo of the benefits of this Agreement or the Power Purchase Agreement by the application of a higher or different standard to GenCo (alone, or together with others in a small class) than to others similarly situated or in comparison to accepted international practice. 4.3

Status of Consent Applications

(a)

GenCo shall deliver to the Ministry of Economic Development, at least quarterly, reports listing the status of any GenCo Consent applications then outstanding, notifications of the granting or denial of any GenCo Consent or GenCo Consent renewal and notifications of any violations of any GenCo Consent.

(b)

Each report shall include copies of all applications and notifications discussed in the report that have not been provided with a previous report. The first section of each report shall also summarize any problems then known by GenCo regarding any material GenCo Consent or GenCo Consent application that may affect GenCo’s performance under this Agreement or the Power Purchase Agreement.

(c)

In the event of any Lapse of Consent, GenCo shall submit to GOK a report pursuant to this Section 4.3 within three (3) Business Days after becoming aware thereof.

4.4

GOK Support to Obtain Consents

(a)

Upon request of GenCo, GOK shall, and shall cause the Specified POEs (to the extent such are Publicly Owned Enterprises) to, support and use all reasonable efforts to expedite consideration of GenCo’s applications for Consents or reissuances thereof filed pursuant to Section 4.1, and the timely issuance thereof or reissuance of a Consent subject to a Lapse of Consent by any Public Authority.

(b)

Any request for support under this Section 4.4 shall be made by GenCo and shall be accompanied by copies of the application for the Consent, any notice that the issuance or reissuance of the Consent was denied or deferred, and a statement of GenCo’s efforts in obtaining the issuance or reissuance of the Consent to date.

4.5

Conditions to Consents

GOK or any Public Authority may attach such reasonable non-discriminatory terms and conditions to the issuance or renewal of any of the GenCo Consents as are in accordance with the Laws of Kosovo and as are applied to facilities such as those operated by GenCo in good faith and in accordance with internationally accepted standards, and the attachment of such terms and conditions shall not in and of itself constitute a breach of this Agreement by GOK, a Force Majeure Event under Article 21 (unless it constitutes a Change in Law or is discriminatory), or a GOK Event of Default under Section 19.2. GenCo shall abide by all such terms and conditions. If GenCo fails to abide by any term or condition of any Consent, then GOK or any Public Authority may exercise any power pursuant to the Laws of Kosovo in - 32 US-DOCS\86271257.15

respect of such failure and such exercise shall not of itself constitute a breach of this Agreement by GOK, a Force Majeure Event under Article 21, or a GOK Event of Default under Section 19.2; provided, however, that, with respect to all such GenCo Consents issued by GOK or any Public Authority, GOK shall not, and GOK shall (provided that GOK has such authority under the Laws of Kosovo) ensure that no such Public Authority shall, terminate prior to its expiration date or revoke any such GenCo Consent earlier than the later of: (a)

thirty (30) Days (provided, however, that if GenCo commences taking appropriate actions to cure such failure within such thirty (30) Day period, and thereafter diligently continues to cure such failure, such period shall extend for an additional ninety (90) Days) after delivery to GenCo of written notice by GOK or such Public Authority of such failure; and

(b)

the period of time, if any, that must expire under the Laws of Kosovo or the relevant GenCo Consent prior to early termination or revocation of any such GenCo Consent. Article 5 Construction, Operation, Maintenance, and Staffing; GOK Rights in Case of Cessation of Operations

5.1

Construction, Operation, and Maintenance of Facilities; Appointment of Contractors

5.1.1

Construction, Operation, and Maintenance of the Facilities

GenCo shall develop, design, construct, finance, own, operate, and maintain the KRPP Facility; provided, however, that GenCo shall contract with: (a)

the EPC Contractor, pursuant to the Tender (Plant), to develop, design, and construct the KRPP Facility, and, if GenCo opts to separately procure the Specified Environmental Condition Remediation Contractor in accordance with Sections 3.9.5(g) and 15.2(a) of the Power Purchase Agreement, the Specified Environmental Condition Remediation Contractor, pursuant to the Tender (Environmental), to conduct the Specified Environmental Condition Remediation;

(b)

the LTM Contractor, pursuant to the Tender (Plant) to provide long term maintenance service to the KRPP Facility;

(c)

the O&M Contractor to provide operation and maintenance service to the KRPP Facility;

(d)

the Administrative Services Contractor to provide Administrative Services; and

(e)

the GenCo Connection Works EPC Contractor to design, engineer, and construct the GenCo Connection Assets, KOSTT New Connection Assets, or Infrastructure Reinforcement Assets (each as defined in the Power Purchase Agreement),

in each case in accordance with Section 23.14.

5.1.2

EPC Contract, EPC Contractor, LTM Agreement, and LTM Contractor

(a)

GenCo shall notify GOK of the name and nationality of: (i)

the engineering, procurement, and construction contractor it intends to appoint as the EPC Contractor, and any Major Subcontractor to such engineering, procurement, and construction contractor, no later than fifteen (15) Business Days prior to execution of the EPC Contract;

(ii)

if GenCo opts to separately procure the Specified Environmental Condition Remediation Contractor in accordance with Sections 3.9.5(g) and 15.2(a) of the Power Purchase Agreement, the environmental remediation contractor it intends to appoint as the Specified Environmental Condition Remediation Contractor, and any Major Subcontractor to such environmental remediation contractor, no later than fifteen (15) - 33 -

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Business Days prior to execution of the Specified Environmental Condition Remediation Contract;

(b)

(iii)

the long-term maintenance contractor it intends to appoint as the LTM Contractor, and any Major Subcontractor to such operation and maintenance contractor, no later than fifteen (15) Business Days prior to execution of the LTM Agreement; and

(iv)

the engineering, procurement, and construction contractor it intends to appoint as the GenCo Connection Works EPC Contractor, and any Major Subcontractor to such engineering, procurement, and construction contractor, no later than fifteen (15) Business Days prior to execution of the GenCo Connection Works EPC Contract.

GOK may notify GenCo: (i)

prior to the proposed execution date of the EPC Contract that it objects to the proposed EPC Contractor or any Major Subcontractor to such;

(ii)

prior to the proposed execution date of the Specified Environmental Condition Remediation Contract that it objects to the proposed Specified Environmental Condition Remediation Contractor or any Major Subcontractor to such;

(iii)

prior to the proposed execution date of the LTM Agreement that it objects to the proposed LTM Contractor or any Major Subcontractor to such; and

(iv)

prior to the proposed execution date of the GenCo Connection Works EPC Contract that it objects to the proposed GenCo Connection Works EPC Contractor or any Major Subcontractor to such,

because, in its sole discretion, the appointment of the proposed EPC Contractor, Specified Environmental Condition Remediation Contractor, LTM Contractor, or GenCo Connection Works EPC Contractor, or any Major Subcontractor to such, as the case may be, would be adverse to the national security interests of Kosovo; provided, however, that by not objecting to the proposed EPC Contractor, Specified Environmental Condition Remediation Contractor, LTM Contractor, or GenCo Connection Works EPC Contractor, or any Major Subcontractor to such, as the case may be, GOK shall not be construed as having relieved GenCo of its obligations under this Agreement or the Power Purchase Agreement. If GOK does not object to proposed EPC Contractor, Specified Environmental Condition Remediation Contractor, LTM Contractor, or GenCo Connection Works EPC Contractor, or any Major Subcontractor to such, as the case may be, within ten (10) Business Days after receipt of the notice provided pursuant to Section 5.1.2(a), then GOK shall be deemed not to object to the identity or nationality of the proposed EPC Contractor, Specified Environmental Condition Remediation Contractor, LTM Contractor, or GenCo Connection Works EPC Contractor, and any Major Subcontractor to such, as the case may be. Notwithstanding the foregoing, in connection with the Tender (Plant) or Tender (Connection) conducted by GenCo, GenCo may satisfy its obligations hereunder if a bidder obtains preapproval as specified under Section 6.3.3(c) of the Power Purchase Agreement, and GenCo shall be entitled to advise such bidder of the reason for its disqualification. (c)

GenCo shall provide GOK with written notice of any proposed amendment or change (a “Proposed Material Amendment”) to the EPC Contract, the Specified Environmental Condition Remediation Contractor, the LTM Agreement, or the GenCo Connection Works EPC Contract that would result in a change in the EPC Contract, Specified Environmental Condition Remediation Contractor, LTM Agreement, or GenCo Connection Works EPC Contract, or any Major Subcontractor to such, as the case may be, or any Major Subcontractor to any of the foregoing to the extent such change is materially related to the matters set forth in this Section 5.1 no later than fifteen (15) Business Days prior to execution of the amended or changed EPC - 34 -

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Contract, Specified Environmental Condition Remediation Contractor, LTM Agreement, or the GenCo Connection Works EPC Contract, as the case may be, setting forth the proposed changes. (d)

GOK may notify GenCo prior to the proposed execution date of the Proposed Material Amendment to the EPC Contract, the Specified Environmental Condition Remediation Contractor, the LTM Agreement, or the GenCo Connection Works EPC Contract, as the case may be, that it objects to the Proposed Material Amendment because, in its sole discretion, the EPC Contractor, Specified Environmental Condition Remediation Contractor, LTM Contractor, or GenCo Connection Works EPC Contractor, or any Major Subcontractor to such, as the case may be, is adverse to the national security interests of Kosovo; provided, however, that, by not objecting to the Proposed Material Amendment within ten (10) Business Days after receipt of the notice described in the first sentence of this Section 5.1.2(d), then GOK shall not be construed as having approved of the Proposed Material Amendment, the EPC Contract, Specified Environmental Condition Remediation Contractor, the LTM Agreement, or the GenCo Connection Works EPC Contract, nor as in any way of having relieved GenCo of its obligations under this Agreement or the Power Purchase Agreement.

(e)

Within thirty (30) Days after execution of each of the EPC Contract, the Specified Environmental Condition Remediation Contractor, the LTM Agreement, the GenCo Connection Works EPC Contract, and any Proposed Material Amendment, GenCo shall deliver to GOK a copy of the EPC Contract, the Specified Environmental Condition Remediation Contractor, the LTM Agreement, or the GenCo Connection Works EPC Contract, as the case may be, and each such Proposed Material Amendment; provided, however, that the confidentiality provisions contained in this Agreement shall apply to the Ministry of Economic Development and its representative with respect to any confidential or proprietary information reviewed in the EPC Contract, the Specified Environmental Condition Remediation Contractor, the LTM Agreement, and the GenCo Connection Works EPC Contract.

(f)

GOK shall comply with the provisions of Section 3.9.3(d) (Interface with EPC/LTM Bidder Consortia), Section 3.9.6 (Selection of Winning EPC/LTM Bidder Consortium) and Section 3.11.5(e) (Selection of Winning Bidder), and Section 6.3.5(e) (Selection of Winning Bidder) of the Power Purchase Agreement as though such provisions were applicable to GOK and were set forth herein.

5.2

Cessation of Operation of the KRPP Facility

5.2.1

Transfer of Operations-Right

(a)

If, after the Commercial Operations Date, without the prior written consent of NKEC, GenCo shall have ceased to declare Declared Available Capacity (as defined in the Power Purchase Agreement) or to have ceased to materially comply with the Day-Ahead Scheduling Instructions, Day-Ahead Revised Scheduling Instructions, or Real-Time Electrical Dispatch Instructions (each as defined in the Power Purchase Agreement) for a period of fifteen (15) or more consecutive Days in violation of GenCo’s obligations under the Power Purchase Agreement and in a way that materially and adversely impacts the reliability of the KOSTT Grid or the supply of electricity to end users in Kosovo, other than because of: (i)

any act of NKEC or GOK that causes all or any part of such GenCo non-compliance,

(ii)

a Scheduled Outage, a Forced Outage or Partial Forced Outage, or a Maintenance Outage,

(iii)

operation of the KOSTT Grid outside normal operating parameters in a way that materially adversely affects GenCo variations in KOSTT Grid Frequency (as defined in the Power Purchase Agreement) outside the Contracted Operating Characteristics (as - 35 -

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defined in the Power Purchase Agreement), variations in KOSTT Grid voltage outside the Contracted Operating Characteristics (as defined in the Power Purchase Agreement), or the power factor at the Connection Point is outside the Contracted Operating Characteristics (as defined in the Power Purchase Agreement), or (iv)

the occurrence of: (i) a Water Supplier Event of Default (as defined in the Water Supply Agreement) under the Water Supply Agreement; (ii) a KEK Mining Event of Default (as defined in the Ash and Gypsum Disposal Agreement) under the Ash and Gypsum Disposal Agreement or a KEK Mining Event of Default (as defined in the Lignite Supply Agreement) under the Lignite Supply Agreement; (iii) a KOSTT default under the Connection Agreement; (iv) a NKEC Event of Default (as defined in the Power Purchase Agreement) under the Power Purchase Agreement; or (v) any other event of default by any other Specified POE under any other Project Agreement, or

(v)

a Force Majeure Event,

then GOK shall, subject to the terms set forth in the Direct Agreement and the restrictions set forth in this Section 5.2, be entitled to enter the KRPP Facility and operate it, or to nominate a third-party operator to enter the KRPP Facility and operate it, until GenCo demonstrates to the reasonable satisfaction of GOK that GenCo can and will resume normal operation of the KRPP Facility; provided, however, that if GenCo does not demonstrate to the reasonable satisfaction of GOK that GenCo can and will resume normal operation of the KRPP Facility within two (2) months of the date that GOK or its third-party operator, as applicable, entered the KRPP Facility and commenced its operations thereof, GOK shall promptly deliver to GenCo a Termination Notice in accordance with Section 19.3 and this Agreement shall terminate in accordance therewith (but without limiting GOK’s rights under this Section 5.2). (b)

Nothing in this Section 5.2.1 shall limit the right of GenCo to continue to have reasonable access to the KRPP Facility during any step-in by GOK or its nominee for purposes of curing any defect in the KRPP Facility.

5.2.2

Transfer of Operations-Obligations

During any period that GOK or its nominee, as the case may be, shall operate the KRPP Facility pursuant to Section 5.2.1: (a)

GOK or its nominee, as the case may be, shall operate the KRPP Facility within the Declared Operating Characteristics (as defined in the Power Purchase Agreement), the Laws of Kosovo, Grid Code, Metering Code, Prudent Utility Practices, and Prudent Electrical Practices (as defined in the Power Purchase Agreement) and otherwise as required pursuant to the Project Agreements, the operational and reporting requirements under the Financing Documents that are applicable to GenCo and GenCo Contractors, and the Construction/Maintenance Contracts;

(b)

GOK shall bear all costs of such exercise of its step-in-rights and operation of the KRPP Facility (including fixed and variable fuel costs and costs relating to any insurance policy that it obtains in connection with its period of operation); and

(c)

GOK shall pay to GenCo an amount calculated by multiplying (i) “%debt” as defined in Schedule 1 (Tariff) of the Power Purchase Agreement, times (ii) the amount of the Availability Payments that GenCo would otherwise be entitled to during such period assuming GenCo had operated the KRPP Facility at full then-applicable availability levels.

5.2.3

Insurance Coverage During Transfer of Operations; Indemnity During Transfer of Operations

(a)

Notwithstanding the foregoing Section 5.2.1 and Section 5.2.2 and any other provision in this Agreement to the contrary, if any insurance coverage that was obtained by GenCo and is set forth in Schedule 5 (Insurance) of the Power Purchase Agreement is not in effect during any time that - 36 -

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GOK is operating the KRPP Facility pursuant to this Section 5.2 or does not cover such operation, then GOK shall not enter or operate the KRPP Facility, and shall immediately cease operation and promptly quit possession of the KRPP Facility, as the case may be, unless and until such time that GOK either: (i)

obtains, and thereafter continuously maintains with an insurer of “sound financial status,” as described in Section 21.1.1(c) (Insurance Requirements) of the Power Purchase Agreement, and provides written evidence to GenCo of the procurement of, the policies of insurance set forth in Schedule 5 (Insurance) of the Power Purchase Agreement with terms and conditions that in all material respects (including deductibles, endorsements, terms for reinsurance, and security in favor of the Lenders) conform to the terms and conditions of the policies of insurance of such type that had been most recently procured by GenCo; or

(ii)

agrees in writing to defend, indemnify and hold GenCo harmless from and against any loss or damage sustained as a result of an event that occurred during the period of GOK’s operation of the KRPP Facility to the extent that such loss or damage would have been covered by the insurance set forth in Schedule 5 (Insurance) of the Power Purchase Agreement that GenCo most recently had in effect prior to GOK’s operation of the KRPP Facility, including but not limited to loss or damage to the KRPP Facility and loss or damage resulting from third party claims.

(b)

In the event that, at any time, GOK obtains insurance pursuant to this Section 5.2, GenCo and the Lenders (so long as they shall have an insurable interest in the KRPP Facility) shall be named as additional insureds and the Lenders (so long as they shall have an insurable interest in the KRPP Facility) shall be named as the first and sole loss payees on any such insurance to the extent of their interest.

(c)

Notwithstanding any other provision of this Agreement, in no event shall GOK or GenCo or any GOK Party or any GenCo Party be indemnified to the extent that any Losses were caused by their own negligence or willful misconduct or their breach of the terms of this Agreement or any Project Agreement, and in no event shall GOK or GenCo or any GOK Party or any GenCo Party be indemnified for any Loss to the extent that such Party has already received insurance proceeds or proceeds from a third party therefor or received payments from GOK or a Specified POE under another Project Agreement therefor.

(d)

The indemnity obligations of any Party hereunder shall be reduced in the amount of, and with respect to, any insurance recoveries or other third-party recoveries by an indemnified Party for Losses indemnified hereunder. Should a Party make payments pursuant to its indemnification obligations hereunder with respect to amounts for which an insurer or other third party may be legally responsible, such Party shall be deemed, to the extent necessary, the indemnified Party’s equitable subrogee with respect to, and/or contractual or legal assignee of, the right to pursue recovery of such amounts from such insurer or third party, to the extent of such rights.

(e)

For the avoidance of doubt, the terms of this Agreement shall not be construed to reduce, impair, negate, modify, or replace the terms of any applicable insurance policy that also provides coverage for indemnified Losses. Notwithstanding the foregoing, the applicability of any insurance policy or an insurer’s failure to perform its obligations with respect to indemnified Loss shall not excuse, delay, or reduce the indemnity obligations of the indemnifying Party in any respect or excuse nonperformance of such Party’s indemnification obligations; however, in determining the respective obligations as between the indemnifying Party and any insurer, subsequent to a Party’s payments pursuant to its indemnity obligation hereunder, and in connection with any dispute between such indemnifying Party and such insurer as to the insurer’s obligation to reimburse the indemnifying Party or otherwise provide coverage for indemnified - 37 -

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Loss, any applicable insurance (with the exception of any applicable deductibles or retentions) shall be deemed primary to the indemnity obligations set forth herein, and the indemnity obligations set forth herein shall be deemed specifically excess to any such applicable insurance, but only to the extent of any amounts actually paid to the insured under such insurance, and with the further understanding that the indemnifying Party will in all events be responsible for indemnified Loss, to the extent of its indemnification obligations herein, within any applicable deductibles or retentions set forth in any such applicable insurance. Article 6 Decommissioning of the KRPP Facility 6.1

Decommissioning of the KRPP Facility

(a)

In any application for a Generation License, GenCo shall notify ERO of the anticipated transfer of the Generation License to GOK or its designee upon termination of the Power Purchase Agreement and shall submit a general plan reasonably approved by GOK for the decommissioning of the KRPP Facility which shall be implemented by the holder of the Generation License at the end of the useful life of the KRPP Facility, to the extent required under the Laws of Kosovo.

(b)

Following the end of the useful life of the KRPP Facility (which is estimated to be approximately forty (40) Years from the Commercial Operations Date), GOK or the then current Generation License holder shall decommission the KRPP Facility in accordance with the Applicable Standards and Prudent Utility Practices.

(c)

GenCo shall have no obligation to pay any decommissioning costs in relation to the KRPP Facility or otherwise in relation to the Kosovo e Re Project. Article 7 Transfer of Funds

7.1

Transfer of Funds

GOK shall permit the free transfer of all funds and financial settlements necessary to implement and carry out the Kosovo e Re Project and as contemplated by this Agreement, the other Project Agreements, the Construction/Maintenance Contracts and the Financing Documents (which, for the avoidance of doubt, includes the ability of the Sponsor HoldCo, or the Ultimate Sponsor, to repatriate any capital, dividends, distributions, or other proceeds or payments from GenCo and shall ensure full, timely, and unencumbered repatriation rights with respect to such funds, in each case in accordance with the Law on Foreign Investment, 2013 (no. 04/L-220), as in effect on the Execution Date. 7.2

Maintenance of Accounts

GenCo shall be permitted to maintain accounts required by the Project Agreements, the Financing Documents, the Construction/Maintenance Contracts or otherwise, outside Kosovo. Article 8 Environment and Safety 8.1

Compliance with Kosovo Environmental Standards, Social Standards, and Health & Safety Standards

GenCo shall comply with the environmental, social, and health & safety obligations specified in Article 14 (Environmental Protection, Health, and Safety) of the Power Purchase Agreement and Article 8 (Environmental Protection, Health, and Safety) of the Ash and Gypsum Disposal Agreement.

- 38 US-DOCS\86271257.15

8.2

Indemnification for Environmental Standards

Throughout the Environmental Indemnification Period, GOK shall indemnify and hold harmless GenCo and any GenCo Party from any and all Losses (including, notwithstanding the first parenthetical contained in the definition of “Loss,” any indirect or consequential losses, damages, liabilities, payments, or obligations, including lost Availability Payments (as defined in the Power Purchase Agreement)) incurred or required to be paid, directly or indirectly, by, or sought to be imposed upon, GenCo or any GenCo Party in connection with any fines or penalties imposed by a Public Authority, or any actions by a Public Authority to close the KRPP Facility or otherwise suspend operations of GenCo arising in connection with GenCo’s non-compliance with the Environmental Standards in respect of any Environmental/Archaeological Condition existing at the Site or otherwise in relation to the Kosovo e Re Project on or prior to the Transfer Date, including the Specified Environmental/Archaeological Conditions (as defined in the Power Purchase Agreement) or Pass-Through Environmental/Archaeological Conditions, it being acknowledged and agreed that: (a)

any Environmental/Archaeological Condition discovered at the Site prior to the date eighteen (18) Months after the Commercial Operations Date shall be presumed to relate to conditions existing at or before the Transfer Date, and not to relate to GenCo’s activities thereon, absent evidence that such Environmental/Archaeological Condition was caused by GenCo or any Person under GenCo’s control.

(b)

notwithstanding anything to the contrary in Section 8.2(a), following the Commercial Operations Date, any Environmental Condition at the GenCo Exclusive Ash Landfill, the GenCo Exclusive Gypsum Landfill, or any other landfill maintained by GenCo, if any, that is discovered and relates directly to wastes being disposed of by GenCo thereon shall be presumed to relate to GenCo’s activities thereon, and not to relate to conditions existing at or before the Transfer Date.

(c)

notwithstanding any other provision to the contrary in any of the Project Agreements, (i) under no circumstance shall GenCo or any Person under GenCo’s control be presumed at any time to have caused any Archaeological Conditions at the Site (including the GenCo Exclusive Ash Landfill, the GenCo Exclusive Gypsum Landfill, or any other landfill maintained by GenCo), and (ii) any such Archeological Conditions shall be deemed to be a Pass-Through Environmental/Archaeological Condition regardless of the date on which any such condition is discovered.

8.3

Indemnification for Compliance with Applicable Standards

GOK shall indemnify and hold harmless GenCo and any GenCo Party from any and all Losses (including, notwithstanding the first parenthetical contained in the definition of “Loss,” any indirect or consequential losses, damages, liabilities, payments, or obligations, including lost Availability Payments (as defined in the Power Purchase Agreement)) incurred or required to be paid, directly or indirectly, by, or sought to be imposed upon, GenCo or any GenCo Party in connection with any fines or penalties imposed by a Public Authority, or any actions by a Public Authority to close the KRPP Facility or otherwise suspend operations of GenCo arising in connection with GenCo’s non-compliance with the requirements of any Law of Kosovo resulting from GenCo’s inability to simultaneously comply with such requirements of the Laws of Kosovo and the requirements of any higher-ranked standard specified in the definitions of any of the Applicable Standards. 8.4

Procurement of GenCo

8.4.1

Reimbursement for Development Costs

In the event: - 39 US-DOCS\86271257.15

(a)

there is a successful claim, action, suit or proceeding asserting a defect in, seeking to invalidate or otherwise challenging compliance with the Law on Public-Private Partnership, 2011 (no. 04-L045), the Law on Public Procurement in Republic of Kosovo, 2011 (no. 04-L-42), as amended by the Law Amending and Supplementing the Law on Public Procurement in Republic of Kosovo, 2016 (no. 05/L-092), or other Laws of Kosovo in connection with (i) the selection of Ultimate Sponsor as the “Preferred Bidder” for the Kosovo e Re Project or (ii) the contract award in favor of the Ultimate Sponsor culminating in the execution of the Project Agreements on the Execution Date (the “PPP Partner Selection Process Suit”);

(b)

such PPP Partner Selection Process Suit was successful for reasons not materially resulting from or substantially contributed to by any failure on the part of the Ultimate Sponsor, Sponsor HoldCo, GenCo, or their Affiliates to satisfy or comply with the terms of the RFQ or RFP issued in connection with the Kosovo e Re Project or Section 6 of Exhibit A to the Memorandum of Understanding related to the posting of any bid bond and/or performance security, and

(c)

the result thereof is, in whole or in part, the failure or inability to implement the Kosovo e Re Project with the Ultimate Sponsor, Sponsor HoldCo, GenCo and/or an Affiliate of Ultimate Sponsor,

then GOK shall, subject to Section 8.4.2, pay to GenCo an amount equal to (i) the full amount of the Development Costs paid by GenCo up to the Development Costs Cap, and (ii) one hundred percent (100%) of all Permitted GOK Advisor Fees actually paid by GenCo.

8.4.2

Defense of Claims

(a)

Each Party shall promptly notify any other Party of any PPP Partner Selection Process Suit or threatened PPP Partner Selection Process Suit.

(b)

GenCo shall, and shall cause the Sponsor HoldCo and the Ultimate Sponsor to, cooperate and provide all information reasonably necessary to the defense of any PPP Partner Selection Process Suit.

(c)

The delay or failure by the Sponsor HoldCo, Ultimate Sponsor or GenCo to provide the notice or cooperation required pursuant to this Section 8.4.2 to GOK shall not release GOK from any obligation that it may have to under Section 8.4.1 except to the extent that such failure or delay materially and adversely affected GOK’s ability to defend such action or increased the amount of the reimbursement obligation.

(d)

GOK shall have the right and obligation to assume and control of the defense of any PPP Partner Selection Process Suit with counsel of its selection, and GenCo shall cause the Sponsor HoldCo and the Ultimate Sponsor to honor such assumption of defense.

(e)

Following the assumption of the defense by GOK, Sponsor HoldCo, the Ultimate Sponsor and GenCo shall have the right to employ their own counsel (at their own expense) and such counsel may participate in such action, subject to the approval of GOK, which approval shall not be unreasonably withheld, including if such participation may negatively impact the outcome of the proceedings.

8.5

Compliance with Applicable Standards in Relation to Associated Facilities

(a)

GenCo shall reasonably cooperate with GOK and KEK Mining and upon request of GOK shall provide consultation or similar assistance in connection with GOK’s efforts or KEK Mining’s efforts to take any corrective action in connection with KEK Mining’s compliance with the Applicable Standards in relation to its ownership, development (including with respect to any resettlement), and operation of the Sibovc South Mine Field and the Mining Assets; provided, however: (i) nothing herein shall require that GenCo be responsible for undertaking any such corrective action or making any capital investments to effectuate a corrective action; and (ii) - 40 -

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GenCo shall be entitled to full reimbursement under Schedule 1 (Tariff) of the Power Purchase Agreement. (b)

Upon GenCo’s request from time to time, GOK shall cause KEK Mining to provide GenCo with regular updates regarding all resettlement activities. Article 9 Government Guarantee; Sponsor Support Agreement

9.1

Government Guarantee

On or before the Transfer Date, GOK shall execute and deliver to GenCo the Government Guarantee. 9.2

Sponsor Support Agreement

On or before the Execution Date, the Sponsor HoldCo shall execute and deliver the Sponsor Support Agreement to GOK and, on or befor the Effective Date, the Ultimate Sponsor shall execute and deliver the Ultimate Sponsor Guarantee to GOK. 9.3

Indemnification for Guarantee Fees

GOK shall indemnify and hold harmless GenCo and any GenCo Party from any and all amounts incurred or required to be paid, directly or indirectly, by, or sought to be imposed upon, GenCo or any GenCo Party in connection with any fees pursuant to the Law on Public Debt (2009) or any similar Law of Kosovo that imposes analogous charges applicable to entities granted guarantees by GOK. GOK shall cause the undisputed amounts (with any Payment Disputes subject to resolution as provided in this Agreement) owed to GenCo in connection with such fees or charges to be paid in Euros to a bank account of GenCo nominated by GenCo within ten (10) Business Days following delivery by GenCo to GOK of an invoice for the amounts owed to it, together with reasonable supporting documentation. Article 10 Community Development Fund; Community Development Fund Panel; Community Development Procedures 10.1

Community Development Fund

(a)

A community development fund (the “Community Development Fund”) shall be funded through contributions by the Sponsor HoldCo in accordance with the terms of the Sponsor Support Agreement and by GenCo in accordance with the following:. (i)

on the next five (5) consecutive anniversaries of the Transfer Date, in the amount of one and one-half million Euros (€1,500,000) (totaling seven and one-half million Euros (€7,500,000); and

(ii)

on the sixth (6th) anniversary of the Transfer Date, in the amount of one million Euros (€1,000,000),

provided, however, that the Parties acknowledge and agree that if this Agreement is terminated due to a GOK Event of Default, then, as of such termination date (i) GenCo shall have no further obligations or liabilities to make or cause to be made any deposits into the Community Development Fund and (ii) the balance required to be deposited in the Community Development Fund by GenCo shall be equal to zero Euros (€0). 10.2

Community Development Fund Panel

10.2.1 Establishment of the Community Development Fund Panel Not later than six (6) Months prior to the Financial Closing, the Parties shall establish the Community Development Fund Panel to perform the functions set out in Sections 10.3 and 10.4. - 41 US-DOCS\86271257.15

10.2.2 Governance of the Community Development Fund Panel (a)

The Community Development Fund Panel shall be comprised of four (4) members. Each Party shall two (2) members to represent it on the Community Development Fund Panel, and either Party may remove or replace any of its Community Development Fund Panel members at any time upon notice to the other Party.

(b)

The permanent chairmanship of the Community Development Fund Panel shall belong to GenCo. The chairman shall be one of GenCo’s members and shall have the right to organize and call for meetings and set the meeting agenda (without limiting other members’ rights to add additional items to the agenda).

(c)

The Community Development Fund Panel shall develop procedures for the holding of meetings, the keeping of minutes of meetings and the appointment and operation of sub-panels.

(d)

Decisions of the Community Development Fund Panel shall require the unanimous approval of the members present at a meeting of the Community Development Fund Panel where a quorum of the Community Development Fund Panel members is present. A quorum of the members of the Community Development Fund Panel shall be deemed to be present where two (2) members representing GOK and two (2) members representing GenCo are present at such meeting either in person or by telephone, video conference or other permitted electronic means.

(e)

Meetings of the Community Development Fund Panel shall be conducted in English with simultaneous Albanian translation if requested by any member of the Community Development Fund Panel in attendance at such meeting.

10.3

Community Development Fund Panel Duties; Limitation on Powers

(a)

The Community Development Fund Panel shall be responsible for: (i)

administering the Community Development Fund; and

(ii)

implementing the development of projects selected by the Community Development Fund Panel.

(b)

The Community Development Fund Panel shall have no power or authority to amend or modify the provisions of this Agreement, to determine the rights or obligations of the Parties under any of the Project Agreements, or to take any action inconsistent with the provisions of the Project Agreements or the Laws of Kosovo.

(c)

The Community Development Fund Panel shall be responsible for finalizing the Community Development Procedures in accordance with Section 10.4, which shall include the following matters:

(d)

(i)

Audits — the Community Development Fund Panel shall require an annual audit by the auditors provided for under Section 14.2; and

(ii)

Annual reports — the Community Development Fund Panel shall issue an annual report consistent with the prudent industry practices regarding reporting on public benefits associated with power projects by similarly situated entities.

The Community Development Fund Panel shall be responsible for such other matters as may be necessary or desirable to facilitate operation, communications, transparency, or other matters of mutual concern.

- 42 US-DOCS\86271257.15

10.4

Community Development Procedures

10.4.1 Objectives of the Community Development Procedures (a)

Within one hundred twenty (120) Days after the Effective Date, the Parties shall cause the Community Development Fund Panel to meet and cause their respective designated members to finalize the Community Development Procedures addressing all operational interfaces between GOK and GenCo. The Community Development Procedures shall be written in English, accompanied by a true and correct translation in Albanian.

(b)

The Parties shall cause the Community Development Procedures to comply with Anti-Bribery Laws, and any compliance requirement in Section 23.24.

(c)

Any action taken by any Party in connection with the Community Development Fund, that does not comply with the Community Development Procedures will be null and void and will not be binding on the other Party, and the Parties shall be liable to each other for such action.

10.4.2 Developing and Finalizing the Community Development Procedures The procedure for developing and finalizing the Community Development Procedures shall be as follows: (a)

within sixty (60) Days following the Effective Date, GenCo shall deliver to GOK in writing proposed draft Community Development Procedures;

(b)

GOK shall provide comments in writing on the draft Community Development Procedures within fifteen (15) Days following the date the draft Community Development Procedures are delivered by GenCo to GOK, and each Party shall make a representative available to meet within five (5) Days following the end of such fifteen (15) Day period to review each Party’s comments on the draft Community Development Procedures and on the proposed changes and any objections to the proposed changes of a Party;

(c)

as soon as is practicable after the meeting referred to in Section 10.4.2(b), but in any event within ten (10) Days following the end of such meeting, GenCo shall provide GOK with proposed final draft Community Development Procedures, incorporating to the extent agreed each of the Parties’ proposed changes;

(d)

GOK shall provide final comments on the final draft Community Development Procedures within five (5) Business Days after its receipt by GOK and, within five (5) Business Days after a request from GenCo, GOK shall make its representatives available in Pristina, Kosovo, to meet and review its comments and proposed changes with GenCo; and

(e)

GenCo shall revise the draft Community Development Procedures to incorporate such undisputed additions or modifications requested by GOK and shall provide a final draft to GOK as soon as practicable, and in any event within five (5) Days following receipt of GOK’s comments and proposed changes to the draft Community Development Procedures.

(f)

The Parties shall consult with the World Bank as appropriate for purposes of developing and finalizing the Community Development Procedures.

10.4.3 Changes to Community Development Procedures Following the finalization of the Community Development Procedures pursuant to Section 10.4.2, either Party may propose changes to the Community Development Procedures from time to time as changes in events and circumstances may require. The Parties shall meet and discuss such proposed changes in good faith and incorporate such changes as are agreed by the Parties.

- 43 US-DOCS\86271257.15

Article 11 Taxes and Import Controls 11.1

Taxes Applicable to GenCo

All present and future central, municipal, or other lawful Taxes applicable to GenCo arising from or in connection with its rights and obligations under this Agreement shall be paid by GenCo as and when required under the Laws of Kosovo, and the amount of such Taxes shall be included in the Tariff provided for in Schedule 1 (Tariff) of the Power Purchase Agreement. 11.2

Taxes Applicable to Sponsor HoldCo and Investors

(a)

Subject to Article 19, Sponsor HoldCo and the Ultimate Sponsor, and any Foreign Sponsor as may arise from time to time, will be taxed in Kosovo in accordance with the terms of any applicable Tax Treaties and the Laws of Kosovo, and in the event that no Tax Treaty is applicable, in accordance with the Laws of Kosovo.

(b)

Any Local Sponsor, as may arise from time to time, will be taxed according to the Laws of Kosovo.

11.3

Applicable Fiscal Incentives and Concessions

The fiscal incentives and concessions granted to GenCo are as described in Schedule 1. 11.4

Right to Import; Customs Duties

(a)

GOK encourages GenCo and GenCo Contractors to incorporate as much locally produced material, equipment, and supplies as is commercially reasonable for GenCo’s participation in the Kosovo e Re Project. Nonetheless, GenCo and GenCo Contractors shall be entitled to import without restriction plant machinery and equipment required for the development, design, financing, ownership, operation, and maintenance of the KRPP Facility, subject to compliance with any restrictions imposed by the Laws of Kosovo (including payment of applicable Customs Duties and value added tax, except as excluded under Schedule 1), provided that such imported plant machinery and equipment shall be used in relation to the Kosovo e Re Project.

(b)

Provided that applicable Customs Duties and value added tax are timely paid (except as excluded under Schedule 1), GOK shall use reasonable efforts consistent with the Laws of Kosovo to cause all plant machinery and equipment imported for incorporation into the KRPP Facility, or for use in the Kosovo e Re Project, to be cleared for release from Customs and available for removal by GenCo or its agents as soon as practicable but in no event later than thirty (30) Days following delivery by GenCo of written notice to the Ministry of Economic Development of a delay in the release by Customs of such plant machinery or equipment. GenCo may give such notice at any time after a delay in the release of such plant machinery or equipment of five (5) Days following the delivery to the proper authorities of all documents (including all information and details) required by the Laws of Kosovo for importation of plant machinery and equipment into Kosovo.

(c)

In the event that there is a claim for Customs Duties and value added tax in excess of that required under the Laws of Kosovo, and GenCo chooses to pay such Customs Duties or value added tax under protest, upon notice to GOK by GenCo, such Dispute shall be resolved consistent with the terms of this Agreement and the Laws of Kosovo within ninety (90) Days after GenCo files its refund claim.

11.5

Re-Export of Items Not Consumed

All items not consumed during the construction of the KRPP Facility or incorporated into the KRPP Facility may be exported out of Kosovo by GenCo or GenCo Contractors in accordance with the Laws of Kosovo. - 44 US-DOCS\86271257.15

Article 12 Immigration Controls 12.1

Immigration Controls

Provided GenCo and GenCo Contractors comply with all Laws of Kosovo relating to immigration controls, GOK will expeditiously grant applications of GenCo and GenCo Contractors for work permits, employment passes, visas, and other permits, as necessary for individuals involved in the Kosovo e Re Project. Notwithstanding the foregoing, however, GOK may, in any individual case, decline to grant an application, or expel a Person previously admitted, to protect the national security interests and public health and safety of Kosovo, as reasonably determined by GOK. Article 13 Employment, Training, and Kosovar Resources 13.1

Employment of Kosovars

(a)

The Parties recognize that training citizens of Kosovo in the development, construction, operation, and maintenance of the Kosovo e Re Project and maximizing technology transfer are central to the interests of GOK in the Kosovo e Re Project. GenCo shall therefore use reasonable commercial efforts to employ citizens of Kosovo for the development, design, construction, operation, and maintenance of the Kosovo e Re Project to the extent reasonable, taking into consideration availability, experience and required skills of such citizens of Kosovo.

(b)

GenCo shall submit reports annually to Ministry of Economic Development detailing the progress made toward meeting the objectives set forth in Section 13.1(a).

13.2

Employment Standards

(a)

GenCo shall comply with all Applicable Standards in employing any Person in relation to the Kosovo e Re Project.

(b)

GenCo shall require the GenCo Contractors to comply with all Applicable Standards in employing any Person in relation to the Kosovo e Re Project.

13.3

Training

GenCo shall: (a)

include prudent and reasonable employee training programs as required in the normal conduct of its business, which training programs shall, from time to time, include training in the skills necessary or reasonably appropriate for the construction, operation, and maintenance of the Kosovo e Re Project. The training programs shall from time to time include technical and administrative matters, including contract administration; and

(b)

submit reports annually to the Ministry of Economic Development describing in detail the employee training programs carried out by GenCo, and the cost of such training programs during the relevant period.

13.4

Kosovar Resources

(a)

Subject to the procurement requirements attached to any financing provided (or to be provided) to GenCo in connection with the Kosovo e Re Project (or any material portion thereof) and to the procurement requirements applicable to GenCo pursuant to this Agreement or any other Project Agreement, including in connection with the Tender (Plant) and the Tender (Connection), GenCo shall give preference to: (i)

the purchase of Kosovar goods and materials for use in the Kosovo e Re Project; provided, however, that such goods and materials are: - 45 -

US-DOCS\86271257.15

(ii)

(A)

of an equal or better quality to similar goods and materials available on the international market;

(B)

available on a timely basis in the quantity required; and

(C)

available at equal or lower prices to, and on competitive terms with, similar goods and materials available on the international market; and

the employment of Kosovar service contractors as far as they are financially and technically competent, possess the necessary experience and skills to perform the work required by GenCo, and such contractors are available on a timely basis and on competitive terms (including rates) with Contractors offering similar services on the international market under similar conditions and circumstances.

(b)

GenCo shall notify GOK of any planned foreign tender or acquisition prior to conducting such tender or acquisition. If GOK does not object within fifteen (15) Days after delivery of such notice, then GOK shall have no rights to seek enforcement of Section 13.4(a).

(c)

Subject to the procurement requirements attached to any financing provided (or to be provided) to GenCo in connection with the Kosovo e Re Project (or any material portion thereof) and to the procurement requirements applicable to GenCo pursuant to this Agreement or any other Project Agreement, including in connection with the Tender (Plant) and the Tender (Connection), GenCo shall establish appropriate tender procedures for Kosovar goods, materials, and services, which may reflect different procedures with respect to different goods, materials or services: (i)

taking into account Kosovar local market conditions; and

(ii)

enabling Kosovar Persons to bid to supply such goods and materials and to provide such services, subject to and in accordance with this Section 13.4. Article 14 Reports to GOK; Annual Audit

14.1

Reports to GOK

(a)

GenCo shall provide GOK with a copy of all reports and information required to be submitted by GenCo to NKEC pursuant to Section 4.7 (Submission of Reports and Information) of the Power Purchase Agreement; provided, however, that, without limiting the provisions of Section 23.15, GOK shall treat as confidential all commercially sensitive information contained in such reports. Notwithstanding the foregoing, GenCo shall be entitled to redact confidential or commercially sensitive information from such reports to the extent such reports and information cannot be legally withheld from the public and kept confidential by GOK.

(b)

GenCo shall provide (in electronic format), no later than thirty (30) Days following the Commercial Operations Date, one (1) copy, as received by GenCo pursuant to the EPC Contract, of all the manufacturers’ specifications and manufacturers’ operation manuals.

(c)

GenCo shall, upon the installation of the Metering System and the Check Metering System, use commercially reasonable efforts to obtain and provide to GOK copies of the instruction and operation manuals for the Metering System and the Check Metering System, including for any component part of the Metering System and the Check Metering System. Such obligation to provide copies of instruction and operation manuals to GOK shall not affect any obligations of GenCo to provide information to KOSTT under the Metering Code.

14.2

Annual Audit

Not later than thirty days after they are final and available to GenCo (but in any case no more than 6 months following the end of each fiscal year of GenCo), GenCo shall deliver to GOK annual financial - 46 US-DOCS\86271257.15

statements of GenCo for the fiscal year that just ended that have been audited by an independent auditor licensed to do business in Kosovo; provided that if a different independent auditor is acceptable to the Lenders for audit of the financial statements of GenCo required to be delivered under the Financing Documents, then such entity shall be acceptable for purposes of this Section 14.2. Article 15 Insurance 15.1

Insurance

GenCo shall obtain and maintain insurance in accordance with the Power Purchase Agreement. If and to the extent that GOK can be named as an additional insured on any liability insurance policies required under the Power Purchase Agreement, with respect to liabilities arising in connection with the Kosovo e Re Project, GOK shall be so named by GenCo. Article 16 Advisors’ and Engineer’s Fees Prior and Subsequent to the Financial Closing 16.1

Advisors’ and Engineer’s Fees Prior to the Financial Closing

(a)

GenCo shall at the Financial Closing, upon the request and at the direction of GOK and subject to Section 16.1(b) - (e) below, pay directly to the GOK advisors (or if requested by GOK, reimburse GOK for) the Permitted GOK Advisor Fees that become payable by GOK from and after the date on which GenCo or any Affiliates of GenCo was notified by GOK that it was the preferred bidder for the Kosovo e Re Project through and until the Financial Closing, subject to the following requirements: (i)

the GOK-Appointed Independent Engineer, Independent E&S Consultant, or GOK’s technical, legal, financial, or transaction advisors, as the case may be, shall deliver invoices to GOK for Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Section 16.1;

(ii)

GOK shall approve or disapprove each invoice (without review by GenCo), and forward payment instructions to GenCo which shall include the certifications required by Section 16.1(a)(iii) and Section 16.1(a)(vii);

(iii)

the GOK-Appointed Independent Engineer, Independent E&S Consultant, or GOK’s technical, legal, financial, or transaction advisors, as the case may be, shall deliver to GOK a certification substantially in the form of Schedule 8;

(iv)

GenCo shall pay the Permitted GOK Advisor Fees which are required to be paid by GenCo pursuant to this Section 16.1 in accordance with the payment instructions of GOK at Financial Closing or provide notice to GOK and the applicable provider of the reasons GenCo does not believe such costs (or activities giving rise to the costs) are in accordance with the requirements for payment by GenCo pursuant to this Agreement, which if disputed by GOK shall be a Payment Dispute;

(v)

GenCo shall, at its sole discretion, have the right to withhold payment of Permitted GOK Advisor Fees with respect to any of the GOK-Appointed Independent Engineer, Independent E&S Consultant, or GOK’s technical, legal, financial, or transaction advisors that it reasonably believes, on the basis of objective evidence or specific, credible allegation, to have violated Anti-Bribery Laws or any compliance requirement under Section 23.24 or that are under investigation or have been charged, in each case by a Public Authority, for a violation of the Anti-Bribery Laws, or any compliance requirement under Section 23.24; - 47 -

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(vi)

GOK shall not be required to share the detailed contents of the invoices for Permitted GOK Advisor Fees with GenCo or deliver copies of such invoices to GenCo but shall certify that all such costs are Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Section 16.1; and

(vii)

the GOK-Appointed Independent Engineer, Independent E&S Consultant, and GOK’s technical, legal, financial, and transaction advisors shall each execute, deliver to GenCo, and comply with the terms of a compliance certificate substantially in the form attached hereto as Schedule 7.

(b)

GenCo shall make all payments in respect of Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Section 16.1 in accordance with GOK payment instructions.

(c)

The Permitted GOK Advisor Fees paid pursuant to this Section 16.1 shall be paid out of project debt and project equity proceeds of the Initial Financing in a lump sum payment to GenCo in connection with the Financial Closing (it being acknowledged that GenCo shall be entitled to recover such payment pursuant to Schedule 1 (Tariff) of the Power Purchase Agreement).

(d)

Subject to Sections 3.9 and 3.10, the GOK-Appointed Independent Engineer, Independent E&S Consultant, and GOK’s technical, legal, financial, and transaction advisors will remain the representatives of, and advisors to, GOK and no client-advisor or client-attorney relationship shall result between GenCo and GOK’s technical, legal, financial, and transaction advisors as a result of the payment arrangements set forth in Section 16.1(a).

(e)

Nothing herein shall preclude GOK from retaining the GOK-Appointed Independent Engineer, Independent E&S Consultant, or other advisors for the benefit of any Specified POE, and such mechanism of engaging such personnel shall not reduce GenCo’s obligations under this Section 16.1.

(f)

In the event GenCo disputes that any such costs were not Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Article 16, then GenCo may initiate formal dispute resolution procedures under Article 22 of this Agreement, such matter shall qualify as a Technical Dispute for purposes of dispute resolution under Article 22, and to the extent that such proceeding involves the matter described in Section 16.1(a)(v), then, notwithstanding Section 16.1(a)(vi), the full detailed invoices submitted to GOK and the associated deliverables for amounts paid by GenCo pursuant to this Article 16 over the previous eighteen (18) Months (or any shorter period requested by GenCo) shall be provided to and reviewed on a confidential basis by the expert appointed in relation to the Technical Dispute; provided, however, even in the event of Dispute, the invoices and deliverables of the International Finance Corporation and Hunton & Williams LLP shall not be subject to review for such purposes.

16.2

Advisors’ and Engineer’s Fees between Financial Closing and Final Draw Date

(a)

GenCo shall upon the request and at the direction of GOK and subject to Section 16.2(b) – (e) below, pay directly to GOK advisors (or if requested by GOK, reimburse GOK for) the Permitted GOK Advisor Fees that become payable by GOK after the Financial Closing subject to the following requirements: (i)

the GOK-Appointed Independent Engineer, Independent E&S Consultant, or GOK’s technical, legal, financial, or transaction advisors, as the case may be, shall deliver invoices to GOK for Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Section 16.2;

(ii)

GOK shall approve or disapprove each invoice (without review by GenCo), and forward payment instructions to GenCo which shall include the certifications required by Section 16.2(a)(vii) and Section 16.2(a)(iii); - 48 -

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(iii)

the GOK-Appointed Independent Engineer, Independent E&S Consultant, or GOK’s technical, legal, financial, or transaction advisors, as the case may be, shall deliver to GOK a certification substantially in the form of Schedule 8;

(iv)

GenCo shall pay the Permitted GOK Advisor Fees which are required to be paid by GenCo pursuant to this Section 16.2, in accordance with the payment instructions of GOK within forty-five (45) Days of GenCo’s receipt of each payment instruction or provide notice to GOK and the applicable provider of the reasons GenCo does not believe such costs (or activities giving rise to the costs) are in accordance with the requirements for payment by GenCo pursuant to this Agreement, which if disputed by GOK shall be a Payment Dispute;

(v)

GenCo shall, at its sole discretion, have the right to withhold payment of Permitted GOK Advisor Fees with respect to any of the GOK-Appointed Independent Engineer, Independent E&S Consultant, or GOK’s technical, legal, financial, or transaction advisors that it reasonably believes, on the basis of objective evidence or specific, credible allegation, to have violated Anti-Bribery Laws or any compliance requirement under Section 23.24 or that are under investigation or have been charged, in each case by a Public Authority, for a violation of the Anti-Bribery Laws, or any compliance requirement under Section 23.24;

(vi)

GOK shall not be required to share the detailed contents of the invoices for Permitted GOK Advisor Fees with GenCo or deliver copies of such invoices to GenCo but shall certify that all such costs are Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Section 16.2; and

(vii)

The GOK-Appointed Independent Engineer, Independent E&S Consultant, and GOK’s technical, legal, financial, and transaction advisors shall each execute, deliver to GenCo and comply with the terms of a compliance certificate substantially in the form attached hereto as Schedule 7.

(b)

GenCo shall make all payments in respect of Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Section 16.2 in accordance with GOK payment instructions.

(c)

Any Permitted GOK Advisor Fees incurred subsequent to the Financial Closing by GenCo shall be recovered pursuant to Schedule 1 to the Power Purchase Agreement as a Permitted Ongoing Miscellaneous Operational Charge (as defined in the Power Purchase Agreement).

(d)

Subject to Sections 3.9 and 3.10, the GOK-Appointed Independent Engineer. Independent E&S Consultant, and GOK’s technical, legal, financial, and transaction advisors will remain the representatives of, and advisors to, GOK and no client-advisor or client-attorney relationship shall result between GenCo and GOK’s technical, legal, financial, and transaction advisors as a result of the payment arrangements set forth in Section 16.2.

(e)

Nothing herein shall preclude GOK from retaining the GOK-Appointed Independent Engineer, Independent E&S Consultant, or other advisors for the benefit of any Specified POE, and such mechanism of engaging such personnel shall not reduce GenCo’s obligations under this Section 16.2.

(f)

In the event GenCo disputes that any such costs were not Permitted GOK Advisor Fees required to be paid by GenCo pursuant to this Article 16, then GenCo may initiate formal dispute resolution procedures under Article 22 of this Agreement, such matter shall qualify as a Technical Dispute for purposes of dispute resolution under Article 22, and to the extent that such proceeding involves the matter described in Section 16.2(a)(v), then, notwithstanding Section 16.2(a)(vi), the full detailed invoices submitted to GOK and the associated deliverables for amounts paid by - 49 -

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GenCo pursuant to this Article 16 over the previous eighteen (18) Months (or any shorter period requested by GenCo) shall be provided to and reviewed on a confidential basis by the expert appointed in relation to the Technical Dispute; provided, however, even in the event of Dispute, the invoices and deliverables of the International Finance Corporation and Hunton & Williams LLP shall not be subject to review for such purposes. Article 17 Representations and Warranties 17.1

Representations and Warranties of GenCo

GenCo represents and warrants to GOK that as of the Execution Date: (a)

GenCo is duly organized, validly existing, and in good standing under the laws of Luxembourg; provided, however, that in the reaffirmations provided by GenCo pursuant to Section 17.3, GenCo shall represent and warrant to GOK that GenCo is duly organized, validly existing, and in good standing under the Laws of Kosovo;

(b)

the execution, delivery, and performance of this Agreement by GenCo have been duly authorized by all requisite corporate action, and GenCo has full corporate power and authority to execute, deliver, and perform all of its obligations under this Agreement;

(c)

this Agreement constitutes the legal, valid, and binding obligation of GenCo, enforceable against it in accordance with the terms hereof, subject, as to enforceability of remedies, to limitations imposed by bankruptcy, insolvency, reorganization, moratorium, or other similar applicable laws relating to or affecting the enforcement of creditors’ rights generally and to general principles of equity;

(d)

the execution and delivery of this Agreement does not contravene any provision of, or constitute a default under, any indenture, mortgage, or other material agreement binding on GenCo or any valid order of any court, or any regulatory agency or other body having authority to which GenCo is subject;

(e)

none of the execution, delivery, or performance by GenCo of this Agreement, the compliance with the terms and provisions hereof, and the carrying out of the transactions contemplated hereby, conflicts or will conflict with or result in a breach or violation of its Charter Documents or any of the terms, conditions, or provisions of any Law of Kosovo or any applicable permit, or any order, writ, injunction, judgment, or decree of any Public Authority against GenCo;

(f)

GenCo is not in default under any agreement or instrument of any nature whatsoever to which it is a Party or by which it is bound, in any manner that would have a material adverse effect on its ability to perform its obligations hereunder or under any Project Agreement, any Financing Document, or any Construction/Maintenance Contract to which it is a party, or the validity or enforceability of this Agreement; and

(g)

there is no action, suit, proceeding, or investigation pending or, to GenCo’s knowledge, threatened: (i)

for the dissolution of GenCo; or

(ii)

otherwise against GenCo,

that, if adversely determined, would have a material adverse effect on its ability to perform its obligations hereunder or under any Project Agreement, any Financing Document, or any Construction/Maintenance Contract to which it is a party, or the validity or enforceability of this Agreement; and - 50 US-DOCS\86271257.15

GenCo also represents and warrants to GOK that none of GenCo or any of its officer or directors, nor, to its knowledge, any Person representing such parties has made, offered, or authorized and will not make, offer, or authorize with respect to the matters which are the subject of this Agreement, any payment, gift, promise or other advantage, whether directly or through intermediaries, to or for the use of any Person working directly or indirectly on behalf of any Public Authority, where such payment, gift, promise or advantage would violate any Anti-Bribery Laws and makes the representations and warranties and covenants set forth under Section 23.24 (the “GenCo Compliance Representation and Warranty”). 17.2

Representations and Warranties of GOK

GOK represents and warrants to GenCo that as of the Execution Date: (a)

this Agreement has been duly authorized, executed and delivered by GOK and constitutes the legal, valid, and binding obligation of GOK, enforceable against it in accordance with the terms hereof, subject, as to enforceability of remedies, to limitations imposed by bankruptcy, insolvency, reorganization, moratorium, or other similar applicable laws relating to or affecting the enforcement of creditors’ rights generally and to general principles of equity;

(b)

the execution and delivery of this Agreement does not contravene any provision of, or constitute a default under, any indenture, mortgage, or other material agreement binding on GOK or any valid order of any court, or any regulatory agency or other body having authority to which GOK is subject;

(c)

none of the execution, delivery, or performance by GOK of this Agreement, the compliance with the terms and provisions hereof, and the carrying out of the transactions contemplated hereby, conflicts or will conflict with or result in a breach or violation of any of the terms, conditions, or provisions of any Law of Kosovo or any applicable permit, or any order, writ, injunction, judgment, or decree of any Public Authority against GOK;

(d)

GOK is not in default under any agreement or instrument of any nature whatsoever to which it is a Party or by which it is bound, in any manner that would have a material adverse effect on its ability to perform its obligations hereunder, the validity or enforceability of this Agreement.

GOK also represents and warrants to GenCo that neither GOK nor, to its knowledge, any Person representing GOK has solicited, received, or authorized and will not solicit, receive or authorize the solicitation or receipt of, with respect to the matters which are the subject of this Agreement, any payment, gift, promise or other advantage from any non-Sponsor HoldCo Party, whether directly or through intermediaries, to or for the use of any Person working directly or indirectly on behalf of any Public Authority, where such payment, gift, promise or advantage would violate any Anti-Bribery Laws (the “GOK Compliance Representation and Warranty”). 17.3

Reaffirmation of Representations and Warranties

On each of the Effective Date and the Transfer Date, GenCo shall deliver a certificate to GOK confirming that the representations and warranties in Section 17.1 are true and accurate as at such dates, and GOK shall deliver a certificate to GenCo confirming that the representations and warranties in Section 17.2 are true and accurate as at such dates. Article 18 Limitation of Liability and Indemnification with Respect to Illicit Payments 18.1

Limitation of Liability

(a)

Except as expressly provided to the contrary in this Agreement, 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, punitive, or exemplary damages. Payments owed by a Party to a third party shall be considered direct damages and shall not be excluded by the foregoing provisions of - 51 -

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this Section 18.1, except in relation to contracts (other than the O&M Contract and Administrative Services Agreement (as defined in the Power Purchase Agreement) and any LTM Agreement approved by NKEC under Article 3 (Pre-Construction Obligations) of the Power Purchase Agreement) between GenCo as one party and any Affiliates of Ultimate Sponsor as GenCo’s counterparty (which shall be excluded by the foregoing provisions of this Section 18.1(a). (b)

Neither Party shall have any liability to the other Party except pursuant to, or for breach of, this Agreement or a Project Agreement to which it is a party; provided, however, that this provision is not intended to constitute a waiver of any rights of one Party against the other with regard to matters unrelated to this Agreement or any activity not contemplated by this Agreement and this provision is not intended to limit or deny GenCo the right to (i) claim and recover any and all lost revenues explicitly provided for under Article 20 hereof or under any Project Agreement that permits such recovery, or (ii) indemnification and/or cost recovery in relation to Environmental/Archaeological Conditions as provided under any Project Agreement.

(c)

Notwithstanding any other provision of this Agreement, in no event shall GOK or any GOK Party or GenCo or any GenCo Party or any of GenCo’s officers or directors be indemnified for any Losses in relation to any breach or default of the GOK Compliance Representation and Warranty or the GenCo Compliance Representation and Warranty in any amount greater than as follows: (i)

if the acts causing the breach or default of the GOK Compliance Representation and Warranty or the GenCo Compliance Representation and Warranty occurred prior to the Transfer Date and the acts caused the Transfer Date to not occur, the Parties’ liability therefore shall not exceed the Development Costs Cap;

(ii)

otherwise, the Parties’ liability therefor shall not exceed the GOK Default Purchase Price.

18.2

Indemnification and Information with Respect to Illicit Payments

(a)

Except as specifically provided elsewhere in this Agreement, GOK shall indemnify and defend GenCo and any GenCo Party from, at all times, any and all Losses incurred or required to be paid, directly or indirectly, by GenCo or any GenCo Party in relation to any breach or default of the GOK Compliance Representation and Warranty.

(b)

Except as specifically provided elsewhere in this Agreement, GenCo shall indemnify and defend GOK and any GOK Party from, at all times after the date hereof, any and all Losses incurred or required to be paid, directly or indirectly, by GOK or any GOK Party in relation to any breach or default of the GenCo Compliance Representation and Warranty. Article 19 Default; Termination

19.1

GenCo Events of Default

Each of the following shall constitute an event of default by GenCo (each such event being a “GenCo Event of Default”): (a)

the failure by GenCo to make any payment of any sum due to GOK hereunder within fifteen (15) Days after GenCo’s receipt of written notice from GOK that such payment is overdue, which notice shall specify the payment failure in reasonable detail; provided, however, that no payment that is due as a result of the resolution of a Payment Dispute, a Technical Dispute, or any other Dispute shall be considered due for the purposes of this Section 19.1(a) until fifteen (15) Business Days following the resolution of such dispute;

(b)

the appointment of a custodian, receiver, trustee or liquidator of GenCo, or of all or substantially all of the assets of GenCo, in any proceeding brought by GenCo, as applicable, or the - 52 -

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appointment of any such custodian, receiver, trustee, or liquidator in any proceeding brought against GenCo that is not discharged within ninety (90) Days after such appointment, or if GenCo consents to or acquiesces in such appointment; (c)

any representation or warranty made by GenCo under this Agreement or any representation or warranty made by GenCo or the Sponsor HoldCo under the Sponsor Support Agreement proves to have been incorrect in any material respect as of the date made or reaffirmed, and such misrepresentation has or would reasonably be expected to have a material adverse effect on GOK or the Kosovo e Re Project and such defect is not capable of being cured or is not cured within forty-five (45) Days after GenCo’s receipt of written notice from GOK, which notice shall specify the misrepresentation in reasonable detail; provided, however, that if GenCo commences taking appropriate actions to cure such defect within such forty-five (45) Day period, and thereafter diligently continues to pursue such cure, the cure period shall extend for an additional ninety (90) Days so long as such defect is capable of being cured within such extended cure period;

(d)

the failure by GenCo in any respect in the observance or performance of any other material obligation of GenCo contained herein that GenCo has not cured within thirty (30) Days after GenCo’s receipt of written notice from GOK specifying the failure in reasonable detail and demanding that the same be remedied; provided, however, that if GenCo commences taking appropriate actions to cure such failure within such thirty (30) Day period, and thereafter diligently continues to cure such failure, the cure period shall extend for an additional ninety (90) Days;

(e)

after Construction Start Date but prior to the achievement of the Commercial Operations Date, the failure of GenCo to prosecute GenCo’s participation in the Kosovo e Re Project in a reasonably diligent manner consistent with Prudent Utility Practices for a period of thirty (30) consecutive Days without prior notice to, and the prior written consent of, GOK; provided, however, that if GenCo commences taking appropriate actions to cure such failure within such thirty (30) Day period, and thereafter diligently continues to cure such failure, the cure period shall extend for an additional ninety (90) Days;

(f)

the occurrence of any breach by GenCo of its obligations under Section 23.13;

(g)

the occurrence of a Sponsor HoldCo Event of Default (as defined in the Sponsor Support Agreement) under the Sponsor Support Agreement, including with respect to any restriction on transfer of ownership interests as described in Article 4 of the Sponsor Support Agreement;

(h)

the failure of the Ultimate Sponsor to honor its obligations under the Ultimate Sponsor Guarantee in accordance with the terms thereof; and

(i)

the occurrence of a GenCo Event of Default (as defined or described in each relevant Project Agreement) under any of the other Project Agreements to which GenCo is a party, including the occurrence of a GenCo Event of Default that may lead to the termination by KOSTT of the Connection Agreement pursuant to Section 9 thereof and the occurrence of a GenCo Event of Default that may lead to the termination by GOK of the Lease Agreement pursuant to Section 4.1 of Schedule 5 (except to the extent such has been transferred to KOSTT);

provided, however, that no such event shall be a GenCo Event of Default and GenCo shall be excused from performance under this Agreement if it is caused in whole or material part by: (i)

a breach by GOK of or a default by GOK under this Agreement (including any GOK Event of Default);

(ii)

a Specified POE Action or Inaction; or - 53 -

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(iii)

a Force Majeure Event (except in the case of a payment default pursuant to Section 19.1(a)); and

provided, further, that to the extent that any obligation of GenCo under this Agreement is also an obligation of GenCo under any other Project Agreement, then any cure, settlement, or waiver of, a breach of such obligation under the applicable Project Agreement shall constitute a cure, settlement, or waiver under this Agreement if GOK received reasonable advance notice of such proposed cure, settlement or waiver of such obligation under the applicable Project Agreement and failed to reasonably object to such cure, settlement, or waiver within a reasonable period of time. GenCo may cure a GenCo Event of Default by causing a GenCo Contractor to cure such GenCo Event of Default. 19.2

GOK Events of Default

Each of the following shall constitute an event of default by GOK (each such event being a “GOK Event of Default”): (a)

the dissolution pursuant to the Laws of Kosovo of any Specified POE, except for an amalgamation, reorganization, reconstruction, as the case may be, where GOK without interruption guarantees the performance of the succeeding entity or entities on the same terms and conditions as the Government Guarantee and all of the relevant Specified POEs’ obligations under the Power Purchase Agreement, the Site Transfer Agreement, the Lignite Supply Agreement, the Water Supply Agreement, the Ash and Gypsum Disposal Agreement, or the Connection Agreement, as the case may be, are assigned pursuant to the Laws of Kosovo or contractually assumed, through novation or otherwise, by one (1) or more entities, each with the lead capacity and appropriate commercial function to perform its obligations thereunder;

(b)

any representation or warranty made by GOK under this Agreement or any representation or warranty made by GOK under the Sponsor Support Agreement proves to have been incorrect in any material respect as of the date made or reaffirmed, and such misrepresentation has or would reasonably be expected to have a material adverse effect on GenCo or the Kosovo e Re Project, and such defect is not capable of being cured or is not cured within forty-five (45) Days from notice from GenCo, which notice shall specify the misrepresentation in reasonable detail; provided, however, that if GOK commences taking appropriate actions to cure such defect within such forty-five (45) Day period, and thereafter diligently continues to pursue such cure, the cure period shall extend for an additional ninety (90) Days, so long as such defect is capable of being cured within such extended cure period;

(c)

the failure by GOK in any respect in the observance or performance of any other material obligation of GOK contained herein that GOK has not cured within thirty (30) Days after written notice from GenCo specifying the failure in reasonable detail and demanding that the same be remedied; provided, however, that if GOK commences taking appropriate actions to cure such failure within such thirty (30) Day period, and thereafter diligently continues to cure such failure, the cure period shall extend for an additional ninety (90) Days;

(d)

the failure by GOK to make any payment of any sum due to GenCo hereunder within fifteen (15) Days after receipt of written notice from GenCo that such payment is overdue, which notice shall specify the payment failure in reasonable detail; provided, however, that no payment that is due as result of the resolution of a Payment Dispute, a Technical Dispute, or any other Dispute shall be considered due for the purposes of this Section 19.2(d) until fifteen (15) Business Days following the resolution of such dispute;

(e)

the expropriation, compulsory acquisition, or nationalization by GOK or any Public Authority of (i)

any Ownership Interest in GenCo or Sponsor HoldCo, or - 54 -

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(ii) (f)

any material asset or right of GenCo or Sponsor HoldCo in relation to the Kosovo e Re Project (except as contemplated by the Project Agreements);

the occurrence of any Change in Law that: (i)

makes unlawful, unenforceable, invalid, or void any material undertaking of GOK, KESCO, or any Specified POE under this Agreement, the Government Guarantee, the Power Purchase Agreement, the Lignite Supply Agreement, the Water Supply Agreement, the Ash and Gypsum Disposal Agreement, the Connection Agreement or any other Project Agreement to which GOK, KESCO, or any Specified POE is a party, as the case may be; or

(ii)

makes it unlawful for GenCo to make or receive or the Lenders or the Sponsor HoldCo or the Ultimate Sponsor to receive any payment (including interest), or for GenCo or Sponsor HoldCo to perform any material obligation or to enjoy or enforce any material right under this Agreement or any other Project Agreement or any Financing Document or any Construction/Maintenance Contract or for the Sponsor HoldCo or the Ultimate Sponsor to perform any material obligation or to enjoy or enforce any material right under any Project Agreement to which it is a party; or

(iii)

has a Material GenCo Effect and GenCo is not held in a neutral financial position following the occurrence of the Material GenCo Effect;

(iv)

places any material restrictions or limitations (beyond those restrictions or limitations that are in existence on the date of execution of this Agreement) on the ability of the Sponsor HoldCo or the Ultimate Sponsor or the Lenders to repatriate any capital, dividends, distributions, or other proceeds or payments from GenCo (provided that such distributions do not arise in connection with a breach of this Agreement),

which in the case of (i), (ii), or (iii) above, has a continuing effect for more than sixty (60) Days without a reasonable arrangement being provided to exempt or reimburse the affected Person from the effect (including cost) of such Change in Law or to remedy the effects (including costs) of the Change in Law on such affected party; (g)

the exercise by GOK or a Public Authority of (i)

any rights under the Law on Energy, 2016 (no. 05/L-081) or the Laws of Kosovo to impose special obligations on GenCo in response to an emergency if such special obligations have a Material GenCo Effect, or

(ii)

except as otherwise provided in the Project Agreements, any rights under the Law on Electricity, 2016 (no. 05/L-085) or the Laws of Kosovo to impose on GenCo the obligation to make generating capacity or energy available to a supplier if such obligation has a Material GenCo Effect;

(h)

the failure by GOK to acquire the real property rights specified as necessary in a Land Acquisition Report in accordance with Section 3.5.1(c);

(i)

a failure by KEK Mining or GOK to comply with Applicable Standards in connection with the ownership, development (including with respect to any resettlement), and operation of the Sibovc South Mine Field and the Mining Assets that (i)

causes the Lenders to (i) refuse to make a disbursement of committed debt, (ii) accelerate debt repayment obligations of GenCo, or (iii) refuse to allow GenCo to issue dividends or make distributions to equity, each in accordance with the terms of the Financing Documents, or - 55 -

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(ii)

(j)

(k)

(l)

(m)

results in any material financial liability for GenCo under the Project Agreements or a penalty or fine imposed by GOK or a Public Authority (each to the extent not reimbursed by GOK or a Specified POE), or has a material adverse impact on GenCo’s ability to produce, deliver and sell the electrical capacity and energy of the KRPP Facility as provided for under the Power Purchase Agreement;

a failure by KEK Mining or GOK to satisfy the World Bank Associated Facility Requirements that (i)

causes the Lenders to (i) refuse to make a disbursement of committed debt, (ii) accelerate debt repayment obligations of GenCo, or (iii) refuse to allow GenCo to issue dividends or make distributions to equity, each in accordance with the terms of the Financing Documents, or

(ii)

results in any material financial liability for GenCo under the Project Agreements or a penalty or fine imposed by GOK or a Public Authority (each to the extent not reimbursed by GOK or a Specified POE), or has a material adverse impact on GenCo’s ability to produce, deliver and sell the electrical capacity and energy of the KRPP Facility as provided for under the Power Purchase Agreement;

a failure by GOK to comply with Applicable Standards in connection with any resettlement relating to the Connection Area as set forth in Section 3.6.2 or to develop and implement a Resettlement Action Plan, and such failure (i)

causes the Lenders to (i) refuse to make a disbursement of committed debt, (ii) accelerate debt repayment obligations of GenCo, or (iii) refuse to allow GenCo to issue dividends or make distributions to equity, each in accordance with the terms of the Financing Documents, or

(ii)

results in any material financial liability for GenCo under the Project Agreements or a penalty or fine imposed by GOK or a Public Authority (each to the extent not reimbursed by GOK or a Specified POE), or has a material adverse impact on GenCo’s ability to produce, deliver and sell the electrical capacity and energy of the KRPP Facility as provided for under the Power Purchase Agreement;

the occurrence (after taking into account any applicable cure period) of: (i)

a Water Supplier Event of Default (as defined in the Water Supply Agreement) under the Water Supply Agreement;

(ii)

a KEK Mining Event of Default (as defined in the Ash and Gypsum Disposal Agreement) under the Ash and Gypsum Disposal Agreement;

(iii)

a KEK Mining Event of Default (as defined in the Lignite Supply Agreement) under the Lignite Supply Agreement;

(iv)

a KOSTT default under the Connection Agreement; or

(v)

a NKEC Event of Default (as defined in the Power Purchase Agreement) under the Power Purchase Agreement, Lease Agreement, Government Guarantee, Sponsor Support Agreement and the Ash and Gypsum Disposal Agreement; or

(vi)

a default by any other Specified POE that is a party to any other Project Agreement under any other Project Agreement; and

the occurrence of any breach assignment by GOK of its obligations under Section 23.13;

- 56 US-DOCS\86271257.15

provided, however, that no such event shall be a GOK Event of Default and GOK shall be excused from performance under this Agreement if it is caused in whole or material part by: (i)

a breach by GenCo of or a default by GenCo under this Agreement (including any GenCo Event of Default) or a GenCo Action or Inaction; or

(ii)

a Force Majeure Event (except in the case of a payment default pursuant to Section 19.2(d)); and

provided, further, that to the extent that any obligation of GOK under this Agreement is also an obligation of GOK under any other Project Agreement, then any cure, settlement or waiver of, a breach of such obligation under the applicable Project Agreement shall constitute a cure, settlement, or waiver under this Agreement if GenCo received reasonable advance notice of such proposed cure, settlement, or waiver of such obligation under the applicable Project Agreement and failed to reasonably object to such cure, settlement, or waiver within a reasonable period of time. GOK may cure a GOK Event of Default by causing a Contractor of GOK to cure such GOK Event of Default. Notwithstanding Section 3.5.1(a) or any other provision or this Agreement or any other Project Agreement, except as provided in Section 19.2(i) through Section 19.2(k) of this Agreement (and all related provisions (in all Project Agreements) providing for GenCo’s rights and/or remedies in respect of such GOK Events of Default or in respect of protections for the benefit of GenCo relating to any Specified POE Action or Inaction), GOK’s failure to comply with, or otherwise take any action in relation to, the Applicable Standards or the Laws of Kosovo shall not be a GOK Event of Default and there shall be no remedies whatsoever of GenCo in connection therewith. 19.3

Termination Notice

(a)

Subject to Section 19.3(b), if any GenCo Event of Default or GOK Event of Default, as the case may be, occurs and is continuing, the non-defaulting Party may terminate this Agreement by delivering a notice (a “Termination Notice”) to the defaulting Party, which notice shall specify in reasonable detail the GenCo Event of Default or GOK Event of Default, as the case may be, giving rise to the Termination Notice.

(b)

This Agreement shall terminate on the date specified in the Termination Notice, which date shall not be earlier than the date that is ten (10) Business Days following the date on which the Termination Notice is delivered to the other Party or later than thirty (30) Days following the date of such delivery.

19.4

Termination Due to Political Force Majeure Events or Change in Law

If there occurs a Political Force Majeure Event or a Change in Law, in each case that has continued (excluding the effects thereof) uninterrupted and has a material adverse impact on GenCo for a period of six (6) Months or more after notice to GOK of such Political Force Majeure Event or Change in Law, then either Party may terminate this Agreement; provided, however, that if GOK commences taking appropriate actions to cure such effect within such six (6) Month period, and thereafter diligently continues to pursue such cure, the cure period shall extend for an additional six (6) Months so long as such effect is capable of being cured within such extended cure period. To terminate this Agreement, a Party shall deliver a notice thereof, which notice shall be effective thirty (30) Days following the delivery of such notice to the other Party. Upon such termination, the provisions of Article 20 shall apply. 19.5

Obligations Following Disputed Termination Notice

The Parties shall continue to perform their respective obligations under this Agreement pending the final resolution of any Dispute relating to or arising from a Termination Notice pursuant to Section 19.3 or a termination notice pursuant to Section 19.4. - 57 US-DOCS\86271257.15

19.6

Other Remedies

(a)

Except as provided in Section 19.6(b) and subject to Section 18.1, the exercise of the right of a Party to terminate this Agreement, as provided herein, does not preclude such Party from exercising other rights or remedies that are provided in this Agreement or are available at law or in equity; provided, however, that no Party shall have a right to terminate or treat its obligations under this Agreement as repudiated except in accordance with the provisions of this Agreement. Subject to the provisions of Article 18 and Section 19.6(b) in connection with a termination and except as may otherwise be set forth in this Agreement, remedies are cumulative, and the exercise of, or failure to exercise, any one or more of such rights or remedies by a Party shall not limit or preclude the exercise of, or constitute a waiver of, other rights or remedies by such Party.

(b)

Notwithstanding Section 19.6(a), the remedies and compensation amounts provided in Article 20 are the exclusive remedies available to each Party with respect to any termination of this Agreement as a consequence of the events described in Article 20.

(c)

RESERVED. Article 20 Rights and Obligations Upon Termination; Compensation

20.1

GenCo Event of Default

In the event GOK terminates this Agreement pursuant to Section 19.3 as a result of a GenCo Event of Default occurring after the Transfer Date, GOK (or its designee) shall be required to acquire all of GenCo’s rights, title and interests in and to the KRPP Facility. The KRPP Facility shall be transferred to GOK (or its designee) in accordance with the transfer provisions set out in Schedule 4 and GOK shall pay GenCo the GenCo Default Purchase Price; provided, however, to the extent the GenCo Default Purchase Price is negative, GenCo shall pay such amount to GOK. 20.2

GOK Event of Default

In the event GenCo terminates this Agreement pursuant to Section 19.3 following a GOK Event of Default occurring after the Transfer Date, GOK (or its designee) shall be required to acquire all of GenCo’s rights, title and interests in and to the KRPP Facility. The KRPP Facility shall be transferred to GOK (or its designee) in accordance with the transfer provisions set out in Schedule 4 and GOK shall pay GenCo the GOK Default Purchase Price; provided, however, to the extent the GOK Default Purchase Price is negative, GenCo shall pay such amount to GOK. 20.3

Termination Following a Political Force Majeure Event, Change in Law, Raw Water Force Majeure Event, or Change in Raw Water Quality

In the event that: (a)

either Party terminates this Agreement pursuant to Section 19.4 as a result of a Political Force Majeure Event or a Change in Law, in each case occurring after the Transfer Date; or

(b)

any of: (i)

the Power Purchase Agreement is terminated after the Transfer Date by NKEC or GenCo following a Political Force Majeure Event, a Change in Law, a Raw Water Force Majeure Event, or a Change in Raw Water Quality, in each case pursuant to Article 24 (Force Majeure) of the Power Purchase Agreement; or

(ii)

any other Project Agreement is terminated in accordance with its terms after the Transfer Date following a Political Force Majeure Event or a Change in Law,

GOK (or its designee) shall be required to acquire all of GenCo’s rights, title and interests in and to the KRPP Facility. The KRPP Facility shall be transferred to GOK (or its designee) in accordance with the - 58 US-DOCS\86271257.15

transfer provisions set out in Schedule 4 and GOK shall pay GenCo the GOK Default Purchase Price; provided, however, to the extent the GOK Default Purchase Price is negative, GenCo shall pay such amount to GOK. 20.4

Termination Following an Other Force Majeure Event

In the event that either: (a)

the Power Purchase Agreement is terminated after the Transfer Date by NKEC or GenCo following an Other Force Majeure Event pursuant to Section 24.11 (Right to Terminate Following an Other Force Majeure Event) of the Power Purchase Agreement; or

(b)

a party declares, after the Transfer Date, an Other Force Majeure Buy-Out Event (as defined in the Lignite Supply Agreement, Ash and Gypsum Disposal Agreement, or Water Supply Agreement, as the case may be) in accordance with the Lignite Supply Agreement, Ash and Gypsum Disposal Agreement, or Water Supply Agreement, as the case may be,

(c)

RESERVED

then GOK shall be required to acquire all of GenCo’s rights, title, and interests in and to the KRPP Facility. The KRPP Facility shall be transferred to GOK (or its designee) in accordance with the transfer provisions set out in Schedule 4 and GOK shall pay GenCo the Other Force Majeure Purchase Price; provided, however, to the extent the Other Force Majeure Purchase Price is negative, GenCo shall pay such amount to GOK. 20.5

Termination Following Election in Respect of Environmental Remediation

After the Transfer Date, if, following the delivery of a Full Environmental Remediation Report (as defined in the Power Purchase Agreement): (a)

NKEC elects to terminate the Power Purchase Agreement pursuant to Section 15.3.5 (Determination Following Full Environmental Remediation Report), Section 15.3.6 (Implementation of Environmental Remediation), or Section 15.3.7 (Termination Due to Ongoing Pass-Through Environmental/Archaeological Condition or Increased Cost) of the Power Purchase Agreement; or

(b)

GenCo elects to terminate the Power Purchase Agreement pursuant to Section 15.3.7 (Termination Due to Ongoing Pass-Through Environmental/Archaeological Condition or Increased Cost) of the Power Purchase Agreement;

then GOK shall be required to acquire all of GenCo’s rights, title, and interests in and to the KRPP Facility. The KRPP Facility shall be transferred to GOK (or its designee) in accordance with the transfer provisions set out in Schedule 4 and GOK shall pay GenCo the Environmental Termination Purchase Price; provided, however, to the extent the Environmental Termination Purchase Price is negative, GenCo shall pay such amount to GOK. 20.6

Expiry of the Term

Upon the expiry of the Term (other than pursuant to any early termination), GOK shall be required to acquire all of GenCo’s rights, title, and interests in and to the KRPP Facility. The KRPP Facility shall be transferred to GOK (or its designee) in accordance with the transfer provisions set out in Schedule 4 and GOK shall pay GenCo the End of Term Purchase Price; provided, however, to the extent the End of Term Purchase Price is negative, GenCo shall pay such amount to GOK. 20.7

Audit in Advance of the Expiry of the Term

At any time within the period that is eighteen (18) or fewer Months prior to the anticipated expiry of the Term (other than pursuant to any early termination), GOK may require GenCo to undertake (i) a preliminary environmental audit of the KRPP Facility in accordance with Section 6.1(b) of Schedule 4, - 59 US-DOCS\86271257.15

(ii) a preliminary maintenance audit in accordance with Section 5.1(b) of Schedule 4, (iii) an accounting of the funding contributions made to the Community Development Fund, and (iv) an accounting of the money in Debt Service Reserve Account, Working Capital Reserve Account, Major Maintenance Reserve Fund and other reserves that was funded by payments by NKEC under the Power Purchase Agreement. To the extent that such preliminary determination indicates that as of the start of the last Agreement Year (as defined in the Power Purchase Agreement) the End of Term Purchase Price is, based on such preliminary determination, anticipated to be negative, then GenCo shall at its own cost provide to GOK no later than the start of the last Agreement Year (as defined in the Power Purchase Agreement) a letter of credit (i) from a Qualified Bank, (ii) on terms and conditions reasonably acceptable to GenCo, and (iii) in an aggregate Euro amount available for draw thereunder by sight demand equal to the amount of the thennegative End of Term Purchase Price. 20.8

Obligations Pending Buy-Out Date

Pending the transfer of the KRPP Facility in accordance with this Article 20, GenCo shall continue, except in circumstances when so continuing would create unreasonable dangers of injury or death to GenCo employees or GenCo Contractors, to occupy the KRPP Facility pending the Buy-Out Date and shall continue to operate the KRPP Facility in accordance with Prudent Utility Practices and GenCo’s prior course of ordinary operations and shall be paid each of the Availability Payment and the Energy Payment (as such term is defined in the Power Purchase Agreement) in accordance with the Power Purchase Agreement as though there had been no termination of the Power Purchase Agreement until such time as GenCo is no longer obligated to occupy the KRPP Facility. 20.9

Right to Terminate for Failure to Achieve the Transfer Date; Compensation

20.9.1 Right to Terminate (a)

Notwithstanding any other term of this Agreement, if GenCo terminates the Site Transfer Agreement pursuant to Section 5.4 (Termination for Failure to Satisfy Conditions Precedent) thereof, then GenCo or GOK shall have the right to terminate this Agreement by notice to the other Party.

(b)

Notwithstanding any other term of this Agreement, if KEK Generation terminates the Site Transfer Agreement pursuant to Section 5.4 (Termination for Failure to Satisfy Conditions Precedent) thereof, then GOK or GenCo shall have the right to terminate this Agreement by notice to the other Party.

20.9.2 Payments in Relation to Early Termination for Failure to Achieve the Transfer Date (a)

Development Costs – Deemed GOK Wind-Up Event In the event that GenCo terminates the Site Transfer Agreement pursuant to Section 5.4.1(a) (Termination by GenCo) thereof upon the occurrence of a Deemed GOK Wind-Up Event, then GOK shall pay to GenCo the amount of all Development Costs incurred, but in any case not more than the amount of the Development Costs Cap.

(b)

Development Costs – Deemed GenCo Wind-Up Event In the event that KEK Generation terminates the Site Transfer Agreement pursuant to Section 5.4.2(a) (Termination by KEK Generation) thereof upon the occurrence of a Deemed GenCo Wind-Up Event, then GOK shall not be liable to pay to GenCo any Development Costs incurred and GOK may draw upon the Financing Security as defined in and in accordance with the Sponsor Support Agreement.

(c)

Development Costs – No-Fault Condition Precedent In the event that either: - 60 -

US-DOCS\86271257.15

(i)

GenCo terminates the Site Transfer Agreement pursuant to Section 5.4.1(a) (Termination by GenCo) thereof due to the failure of the Transfer Date to occur by the Required Transfer Date (as defined in the Site Transfer Agreement) and such failure is due solely to any No-Fault Condition Precedent having not been satisfied; or

(ii)

KEK Generation terminates the Site Transfer Agreement pursuant to Section 5.4.2(a) (Termination by KEK Generation) thereof due to the failure of the Transfer Date to occur by the Required Transfer Date (as defined in the Site Transfer Agreement) and such failure is due solely to any No-Fault Condition Precedent having not been satisfied,

then GOK shall pay to GenCo the amount of all Development Costs incurred, but in any case not more than an amount equal to one third (1/3rd) of the Development Costs Cap. (d)

Development Costs – Both Deemed GOK Wind-Up Event and Deemed GenCo Wind-Up Event In the event that either GenCo or KEK Generation terminates the Site Transfer Agreement pursuant to Section 5.4.3 (Termination for Occurrence of both Deemed GOK Wind-Up Event and Deemed GenCo Wind-Up Event) due to the occurrence of both (a) any one or more Deemed GOK Wind-Up Events and (b) any one or more Deemed GenCo Wind-Up Events, then GOK shall not be required to pay to GenCo any Development Costs incurred.

(e)

In the event that GOK pays to GenCo a liquidated termination payment pursuant to this Section 20.9.2, GenCo shall surrender, assign, or transfer to GOK or its designee all its right, title, and interest in and to all books, records, and other documents relating exclusively to the Kosovo e Re Project that are in GenCo’s or any of its Affiliates’ possession or under GenCo’s or any of its Affiliates’ control and any intellectual property or interests in intellectual property that are owned or leased by GenCo or in which GenCo otherwise holds a legal or beneficial interest relating to the Kosovo e Re Project but only to the extent such intellectual property can be so transferred in accordance with applicable law and without violation of other agreements related thereto.

(f)

GOK shall cause the undisputed amounts (with any Payment Disputes subject to resolution as provided in this Agreement) owed to GenCo in connection with any pre-Transfer Date termination to be paid in Euros to a bank account of GenCo nominated by GenCo within ten (10) Business Days following delivery by GenCo to GOK of an invoice for the amounts owed to it, together with reasonable supporting documentation. If any Tax is imposed on or withheld from payments to be made by GOK to GenCo hereunder in connection with a pre-Transfer Date termination, then such payments to GenCo shall be increased by an amount such that GenCo will receive the same amount which it would had no such Tax been imposed or withheld.

20.10

Obligation to Terminate Following Termination of Generation-Related Project Agreements

(a)

In the event that GenCo terminates one or more of the Power Purchase Agreement, the Connection Agreement, the Lignite Supply Agreement, the Water Supply Agreement, or the Ash and Gypsum Disposal Agreement pursuant to the terms thereof either before or after the Transfer Date, then GenCo shall exercise its rights to terminate this Agreement pursuant to the terms of Article 19. Upon such termination, the applicable provisions of this Article 20 shall apply.

(b)

In the event that NKEC terminates the Power Purchase Agreement, KOSTT terminates the Connection Agreement, KEK Mining terminates the Lignite Supply Agreement or the Ash and Gypsum Disposal Agreement, or the Water Supplier terminates the Water Supply Agreement pursuant to the terms thereof either before or after the Transfer Date, then GOK shall exercise its rights to terminate this Agreement pursuant to the terms of Article 19. Upon such termination, the applicable provisions of this Article 20 shall apply. - 61 -

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Article 21 Force Majeure 21.1

Force Majeure

21.1.1 Definition of Force Majeure A “Force Majeure Event” shall mean any event or circumstance or combination of events or circumstances (including the effects thereof) that is beyond the reasonable control of a Party and that, on or after the Execution Date, prevents or delays the performance by such Party (for the purposes of this Article 21, an “affected Party”) of its obligations under or pursuant to this Agreement; provided, however, that such prevention or delays could not have been prevented, overcome, or remedied in whole or in part by the affected Party through the exercise of diligence and reasonable care.

21.1.2 Events Expressly Qualifying as Force Majeure Events Without limitation to Section 21.1.1, “Force Majeure Events” shall expressly include each of the following events and circumstances (including the effects thereof), but only to the extent that each satisfies the requirements set forth in Section 21.1.1: (a)

with respect to GenCo or a GenCo Party under this Agreement or any of the Project Agreements or any Construction/Maintenance Contract, the following events or circumstances that occur inside or directly involve Kosovo (each a “Political Force Majeure Event”): (i)

any act of war (whether declared or undeclared), invasion, armed conflict, or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, civil commotion, or act or campaign of terrorism or political sabotage;

(ii)

any Lapse of Consent;

(iii)

except if GenCo exercises rights it has in respect of Section 19.2(e), any action by any Public Authority that causes a permanent or temporary dispossession resulting from confiscation, commandeering or requisitioning of all or a material part of the Site, GenCo’s assets or the Kosovo e Re Project;

(iv)

radioactive contamination or ionizing radiation;

(v)

any Pass-Through Environmental/Archaeological Condition;

(vi)

GOK or any Specified POE is, or becomes a Restricted Party;

(vii)

any Political Force Majeure Event under another Project Agreement;

(viii)

RESERVED; or

(ix)

any strike, work-to-rule, go-slow, or analogous labor action that is politically motivated;

(b)

with respect to GenCo or a GenCo Party under this Agreement or any of the Project Agreements or any Construction/Maintenance Contract, any Change in Law;

(c)

with respect to GenCo or a GenCo Party under this Agreement or any of the Project Agreements or any Construction/ Maintenance Contract, a Raw Water Force Majeure Event, or a Change in Raw Water Quality;

(d)

other events beyond the reasonable control of the affected Party or, in the case of GenCo, an affected GenCo Party or in the case of GOK, an affected GOK Party (each an “Other Force Majeure Event”), including, but not limited to: (i)

lightning, fire, earthquake, tsunami, flood, drought, storm, cyclone, typhoon, or tornado; - 62 -

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(ii)

any strike, work-to-rule, go-slow, or analogous labor action that is not politically motivated;

(iii)

fire, explosion, or chemical contamination Environmental/Archaeological Condition;

(iv)

any Specified POE Force Majeure Event; or

(v)

epidemic or plague.

not

related

to

a

Pass-Through

21.1.3 Events Expressly Not Qualifying as Force Majeure Events Force Majeure Events shall expressly not include the following conditions, except and to the extent that such events or circumstances occur directly as a consequence of a Force Majeure Event: (a)

except as provided in Section 21.1.2(d)(iv), delay in the performance of the obligations of any Contractor or supplier that results in the failure of the affected Party to meet its obligations under this Agreement;

(b)

breakdowns in equipment;

(c)

lack of funds due to any commercial, economic or financial reason including a Party’s inability to make a profit or achieve a satisfactory rate of return;

(d)

the results or consequences of any breach by a Party of the Laws of Kosovo, the terms of any Consent, or of any of the Project Agreements;

(e)

normal wear and tear in materials and equipment; or

(f)

with respect to GOK only, a Political Force Majeure Event, a Change in Law, a Raw Water Force Majeure Event, or a Change in Raw Water Quality.

21.2

Notification Obligations

(a)

If, by reason of a Force Majeure Event, a Party is wholly or partially unable to carry out its obligations under this Agreement, the affected Party shall:

(b)

(i)

give the other Party notice of the Force Majeure Event as soon as practicable, but in any event not later than the later of five (5) Business Days after the affected Party becomes aware of the occurrence of the Force Majeure Event or if the Force Majeure Event prevents a Party from providing notice to the other Party twenty-four (24) hours after the resumption of any means of providing notice between GenCo and GOK; and

(ii)

give the other Party a second notice, describing the Force Majeure Event in reasonable detail and, to the extent that can reasonably be determined at the time of such notice, providing a preliminary evaluation of the obligations affected, a preliminary estimate of the period of time that the affected Party shall be unable to perform such obligations and other relevant matters as soon as practicable, but in any event, not later than seven (7) Days after the initial notice of the occurrence of the Force Majeure Event is given by the affected Party.

When appropriate, or when reasonably requested so to do by the other Party, the affected Party shall provide further notices to the other Party, more fully describing the Force Majeure Event and its cause(s) and providing or updating information relating to the efforts of the affected Party to avoid and/or to mitigate the effect(s) thereof and estimates, to the extent practicable, of the time that the affected Party reasonably expects it shall be unable to carry out any of its affected obligations due to the Force Majeure Event.

- 63 US-DOCS\86271257.15

(c)

The affected Party shall provide notice to the other Party of: (i)

with respect to an ongoing Force Majeure Event, the cessation of the Force Majeure Event; and

(ii)

its ability to recommence performance of its obligations under this Agreement,

(iii)

as soon as possible and in any event not later than seven (7) Days after the occurrence of each of clause 21.2(c)(i) and 21.2(c)(ii) above.

(d)

Failure by the affected Party to give written notice of a Force Majeure Event to the other Party within the five (5) Business Day period or twenty-four (24) hour period required under Section 21.2(a) shall not prevent the affected Party from giving such notice at a later time; provided, however, that in such case, the affected Party shall not be excused pursuant to Section 21.4 for any failure or delay in complying with its obligations under or pursuant to this Agreement until such notice has been given. If such notice is given within the five (5) Business Day period or twenty-four (24) hour period required by Section 21.2(a), the affected Party shall be excused for such failure or delay pursuant to Section 21.4 from the time of commencement of the relevant Force Majeure Event.

21.3

Duty to Mitigate

The affected Party shall use all reasonable efforts (and shall ensure that its Contractors use all reasonable efforts) to mitigate the effects of a Force Majeure Event, including, but not limited to, the payment of reasonable sums of money by or on behalf of the affected Party (or such Contractor), which sums are reasonable in light of the likely efficacy of the mitigation measures. 21.4

Failure or Delays Caused by Force Majeure

(a)

Following a Force Majeure Event: (i)

the affected Party shall not be liable for any failure or delay in performing its obligations (other than an obligation to make a payment or provide security) under or pursuant to this Agreement during the existence of a Force Majeure Event but only to the extent that the affected Party has complied with its obligations under Section 21.3; and

(ii)

any performance deadline that the affected Party is obligated to meet under this Agreement shall be extended day-for-day by the number of days during which the affected Party was prevented from performing as a result of the Force Majeure Event, but only to the extent that the affected Party has complied with its obligations under Section 21.3;

provided, however, that no relief, including extension of performance deadlines, shall be granted to the affected Party pursuant to this Section 21.4 to the extent that such failure or delay would nevertheless have been experienced by the affected Party had the Force Majeure Event not occurred. (b)

Notwithstanding the foregoing, GOK shall not be entitled to claim for itself, and shall not be relieved of its obligations under this Agreement by the occurrence of a Political Force Majeure Event, a Change in Law, a Raw Water Force Majeure Event, or a Change in Raw Water. Article 22 Dispute Resolution

22.1

Notice of Dispute

In the event that there arises between the Parties any Dispute, controversy, or claim arising out of or relating to this Agreement or the breach, termination, or validity thereof, the Party wishing to declare a Dispute shall deliver to the other Party a written notice identifying the disputed issue in reasonable detail. - 64 US-DOCS\86271257.15

22.2

Dispute Resolution Procedures

22.2.1 Informal Dispute Resolution by Parties Upon receipt by a Party of a notice from the other Party of a Dispute in accordance with Section 22.1 identifying the Dispute in reasonable detail, the Parties shall for a period of twenty (20) Days from the date of delivery of such notice attempt in good faith to settle such Dispute by discussions among representatives of each Party. In the event that the Parties are unable to reach agreement within such twenty (20) Day period, or such longer period as they may agree, then the Dispute shall be resolved in accordance with the formal Dispute resolution procedures described in Section 22.2.2.

22.2.2 Formal Dispute Resolution Procedures—Appropriate Forum (a)

In the event that the Parties are unable to resolve a Dispute by informal discussions in accordance with Section 22.2.1 and such Dispute is a Technical Dispute or a Payment Dispute, then the Dispute shall be resolved by referral to an expert in accordance with Section 22.3 (in the case of a Technical Dispute) or in accordance with Section 22.4 (in the case of a Payment Dispute), as the case may be, in each case subject to Section 22.2.2(f).

(b)

In the event that a Dispute may be considered both a Payment Dispute and a Technical Dispute, the Dispute shall be referred to Section 22.4 and the expert appointed thereunder shall determine, in accordance with Section 22.4(c), whether such Dispute may be resolved, in whole or in part, as a Payment Dispute. If the expert determines the Dispute may be so resolved, all or such portion of the Dispute capable of resolution as a Payment Dispute shall be resolved pursuant to Section 22.4 and the remaining portion (if any) shall be referred to and resolved pursuant to Section 22.3.

(c)

If the Parties cannot reasonably agree within five (5) Business Days as to whether a Dispute is a Technical Dispute, the determination of whether the Dispute is a Technical Dispute shall be resolved pursuant to Section 22.3.

(d)

If any Party does not accept the recommendation of the expert with respect to a Technical Dispute or a Payment Dispute, it may refer the Dispute for resolution in accordance with the procedures described in Section 22.5; provided, however, that if such Party has not referred the Dispute for resolution in accordance with the procedures described in Section 22.5 within ninety (90) Days following the delivery of the recommendation by the expert, such recommendation shall become a binding determination on the Parties to the fullest extent permitted under law. If the expert has not submitted its recommendation to the Parties within the time period provided in Section 22.3(f) (in the case of a Technical Dispute) or Section 22.4(f) (in the case of a Payment Dispute) then either Party may refer the Dispute for resolution in accordance with the procedures described in Section 22.5.

(e)

In the event that the Parties are unable to resolve a Dispute by informal discussions in accordance with Section 22.2.1 and such Dispute is not a Technical Dispute or a Payment Dispute, then the Dispute shall be resolved in accordance with Section 22.5.

(f)

The Parties may, through mutual agreement, elect to resolve any Dispute (including a Technical Dispute and a Payment Dispute) in accordance with Section 22.5.

22.3

Technical Disputes

Any Technical Dispute subject to this Section 22.3 shall be resolved in accordance with the following provisions: (a)

The expert shall have demonstrated expertise in the area to which such Technical Dispute relates and shall not be an agent, employee, or contractor or a former agent, employee, or contractor of either Party involved in, and shall otherwise have no interest in, the Technical Dispute. - 65 -

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(b)

The Party initiating submission of the Technical Dispute to the expert shall provide the other Party with a notice to such effect and nominating the person it proposes to be the expert from the list of experts set forth on Schedule 9 hereto. If the Parties are unable to appoint an expert from the list on Schedule 9 or cannot agree on an expert from the list on Schedule 9, or if the Technical Dispute involves issues that require an expert not listed on Schedule 9, the Party initiating submission of the Technical Dispute to the expert shall provide the other Party with a notice nominating the person it proposes to be the expert. The other Party shall, within five (5) Business Days after receiving such notice, notify the initiating Party whether such person is acceptable. If the Party receiving such notice fails to respond during such period or notifies the initiating Party that the person is not acceptable, then if the expert proposed by the other Party is listed on Schedule 9, such person shall become the expert for purpose of resolving the Technical Dispute. Otherwise, the Parties shall, as soon as practicable, meet and discuss in good faith for a period of five (5) Business Days to agree upon a person to be the expert. If the Parties fail to meet within a reasonable amount of time or are unable to agree on an expert at the end of such five (5) Business Day period, the Party initiating the submission of the Technical Dispute shall request the ICC Centre for Expertise to appoint the expert for ad hoc proceedings in accordance with the Rules for the Appointment of Experts and Neutrals of the International Chamber of Commerce, with the request that the ICC Centre for Expertise shall appoint within five (5) Business Days or as soon as practicable thereafter, and such Person so appointed shall be the expert for the purpose of resolving the Technical Dispute.

(c)

Within five (5) Business Days after receiving the written materials described in Section 22.3(d), or as soon as practicable thereafter, the expert shall determine whether the Dispute is capable of being resolved as a Technical Dispute through expert determination as set out in this Section 22.3. If the expert determines that the Dispute is not capable of such resolution, the Dispute shall be resolved pursuant to Section 22.5.

(d)

The Party initiating submission of the Technical Dispute by the expert shall submit within ten (10) Business Days after the appointment of the expert to both the expert and the other Party written materials setting forth:

(e)

(i)

its description of the Technical Dispute in reasonable detail; and

(ii)

a detailed written proposed resolution of the Technical Dispute.

Within ten (10) Business Days after the date that a Party has submitted the materials described in the preceding sentence, the other Party shall submit to the expert and to the initiating Party: (i)

its description of the Technical Dispute in reasonable detail; and

(ii)

a detailed written proposed resolution of the Technical Dispute.

(f)

Each Party shall designate one Person knowledgeable about the issues in dispute who shall be available to the expert to answer questions and provide any additional information requested by the expert. Except for such Person, a Party shall not be required to, but may, provide oral statements or presentations to the expert or make any particular individuals available to the expert.

(g)

The expert shall have a period of ten (10) Business Days after receipt of the non-initiating Party’s counter-proposal to select either the initiating Party’s or the non-initiating Party’s proposed resolution as the final and binding resolution of such Technical Dispute subject to the Parties’ rights under Section 22.2.2(d) and Section 22.3(h).

(h)

Except as provided in Section 22.3(i) with respect to the payment of costs, the proceedings under this Section 22.3 shall be without prejudice to either Party and any evidence given or statements made in the course of this process may not be used against a Party in any other proceedings, - 66 -

US-DOCS\86271257.15

including an arbitration proceeding under Section 22.5. The process under this Section 22.3 shall not be regarded as arbitration but as dispute resolution, and the laws relating to commercial arbitration shall not apply. (i)

The costs of engaging an expert shall be borne equally by the Parties, and each Party shall bear its own costs in preparing materials for, and making presentations to, the expert.

22.4

Payment Disputes

Any Payment Dispute subject to this Section 22.4 shall be resolved in accordance with the following provisions: (a)

The expert shall have demonstrated expertise in the area to which such Payment Dispute relates and shall not be an agent, employee, or contractor or a former agent, employee, or contractor of either Party involved in, and shall otherwise have no interest in, the Payment Dispute.

(b)

The Party initiating submission of the Payment Dispute to the expert shall provide the other Party with a notice to such effect and nominating the person it proposes to be the expert from the list of experts set forth on Schedule 9 hereto. If the Parties are unable to appoint an expert from the list on Schedule 9 or cannot agree on an expert from the list on Schedule 9, or if the Payment Dispute involves issues that require an expert not listed on Schedule 9, the Party initiating submission of the Payment Dispute to the expert shall provide the other Party with a notice nominating the person it proposes to be the expert. The other Party shall, within five (5) Business Days after receiving such notice, notify the initiating Party whether such person is acceptable. If the Party receiving such notice fails to respond during such period or notifies the initiating Party that the person is not acceptable, then if the expert proposed by the other Party is listed on Schedule 9, such person shall become the expert for purpose of resolving the Payment Dispute. Otherwise, the Parties shall, as soon as practicable, meet and discuss in good faith for a period of five (5) Business Days to agree upon a person to be the expert. If the Parties fail to meet within a reasonable amount of time or are unable to agree on an expert at the end of such five (5) Business Day period, the Party initiating the submission of the Payment Dispute shall request the ICC Centre for Expertise to appoint the expert for ad hoc proceedings in accordance with the Rules for the Appointment of Experts and Neutrals of the International Chamber of Commerce, with the request that the ICC Centre for Expertise shall appoint within five (5) Business Days or as soon as practicable thereafter, and such Person so appointed shall be the expert for the purpose of resolving the Payment Dispute.

(c)

Within five (5) Business Days after receiving the written materials described in Section 22.4(d), or as soon as practicable thereafter, the expert shall determine whether such Dispute is capable of being resolved as a Payment Dispute as set out in this Section 22.4. If the expert determines that the Dispute is not capable of such resolution, the Dispute shall be resolved pursuant to Section 22.5; provided, however, that if the Dispute was referred to this Section 22.4 pursuant to Section 22.2.2(b), the Dispute shall be resolved pursuant to Section 22.3.

(d)

The Party initiating submission of the Payment Dispute by the expert shall submit within ten (10) Business Days after the appointment of the expert to both the expert and the other Party written materials setting forth:

(e)

(i)

its description of the Payment Dispute in reasonable detail; and

(ii)

a detailed written proposed resolution of the Payment Dispute.

Within ten (10) Business Days after the date that a Party has submitted the materials described in the preceding sentence, the other Party shall submit to the expert and to the initiating Party: (i)

its description of the Payment Dispute in reasonable detail; and - 67 -

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(ii)

a detailed written proposed resolution of the Payment Dispute.

(f)

Each Party shall designate one Person knowledgeable about the issues in dispute who shall be available to the expert to answer questions and provide any additional information requested by the expert. Except for such Person, a Party shall not be required to, but may, provide oral statements or presentations to the expert or make any particular individuals available to the expert.

(g)

The expert shall have a period of ten (10) Business Days after receipt of the non-initiating Party’s counter-proposal to select either the initiating Party’s or the non-initiating Party’s proposed resolution as the final and binding resolution of such Payment Dispute subject to the Parties’ rights under Section 22.2.2(d) and Section 22.4(h).

(h)

Except as provided in Section 22.4(i) with respect to the payment of costs, the proceedings under this Section 22.4 shall be without prejudice to either Party and any evidence given or statements made in the course of this process may not be used against a Party in any other proceedings, including an arbitration proceeding under Section 22.5. The process under this Section 22.4 shall not be regarded as arbitration but as dispute resolution, and the laws relating to commercial arbitration shall not apply.

(i)

The costs of engaging an expert shall be borne equally by the Parties, and each Party shall bear its own costs in preparing materials for, and making presentations to, the expert.

22.5

Arbitration

(a)

Any Dispute subject to this Section 22.5 shall, subject to Section 22.5(c), be finally settled in accordance with the Rules of Procedure for Arbitration Proceedings (the “ICSID Rules”) of ICSID established by the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the “ICSID Convention”), and each of the Parties hereby consents to the jurisdiction of ICSID and to arbitration thereunder. Each Party to this Agreement stipulates that the transaction to which this Agreement relates is an “investment” within the meaning of the ICSID Convention. The Parties hereby agree that, although each of GOK and GenCo is a national and resident of Kosovo, while either GOK or GenCo, as the case may be, is controlled by nationals of another Contracting State (as such term is used in the ICSID Convention) GOK or GenCo, as the case may be, shall be treated as a national of another Contracting State (as such term is used in the ICSID Convention) for the purposes of the ICSID Convention.

(b)

To the extent that any Party to this Agreement is a Specified POE (and to the extent such Specified POE is a Publicly Owned Enterprise), it is hereby stipulated that such Party is an agency of GOK, and that such Party shall be designated to ICSID by GOK in accordance with Article 25(1) of the ICSID Convention. In accordance with Article 25(3) of the ICSID Convention, GOK has given its approval to such Party’s consent in this Agreement to arbitration under the ICSID Convention.

(c)

If the jurisdictional requirements of Article 25 of the ICSID Convention are not met, or if for any other reason the Dispute cannot be settled in accordance with the ICSID Rules, such Dispute shall be finally settled by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (the “ICC Rules”).

(d)

The language to be used in the arbitral proceedings shall be English.

(e)

Unless otherwise agreed by the Parties, the number of arbitrators shall be three (3), with such arbitrators to be nominated by each Party selecting one (1) arbitrator within: (i)

thirty (30) Days after an initiation by a Party of arbitration proceedings pursuant to this Section 22.5, for an arbitration under the ICSID Convention; or - 68 -

US-DOCS\86271257.15

(ii)

the period for selecting the arbitrator specified in the ICC Rules,

and the two (2) arbitrators thus nominated shall, within thirty (30) Days after the selection of the second arbitrator, select the third (3rd) arbitrator; provided, however, that to the extent that more than two Parties participate in the arbitration, the International Chamber of Commerce shall be designated as the appointing authority for purposes of selecting the arbitrators in accordance with the Rules of ICC as Appointing Authority. (f)

No arbitrator appointed pursuant to this Section 22.5 shall be a national of the jurisdiction of a Party nor shall any such arbitrator be a shareholder, director, employee, agent, or contractor or former shareholder, director, employee, agent or contractor of a Party.

(g)

The seat (legal place) of arbitration is in London, England.

(h)

The Parties agree that the marshalling of evidence, pre-hearing disclosure, and examination of witnesses and experts authorized by Rules 34 through 36 of the ICSID Rules (or Article 20 of the ICC Rules should the ICC be the administering authority), shall be construed by the tribunal to allow any Party to request the production of documents and other information that is reasonably calculated to lead to the discovery of evidence that is relevant to any claim or defense relating to the Dispute, including by the following means: (i)

written interrogatories;

(ii)

requests for production of documents, including production of electronically stored information in a convenient electronic format in accordance with the IBA Rules; and

(iii)

a reasonably sufficient number of oral depositions appropriate for the subject matter of the Dispute, including the deposition of a representative designated by an entity as its agent to testify as to specific matters on its behalf;

and to allow the non-requesting Party to object to such request, in which case the tribunal shall issue a ruling on such request. (i)

Each Party shall use reasonable endeavors to ensure that its advisors, agents, and contractors are available for any depositions and other discovery mechanisms that are ordered by the tribunal as provided for in Section 22.5(h).

(j)

Each Party shall be responsible for its own legal fees and related costs in connection with any arbitration.

(k)

The decision of the arbitrators shall be final and binding upon the Parties, and shall not be subject to appeal.

(l)

Any Party may petition any court having jurisdiction to enter judgment upon the arbitration award. At the request of any of the Parties, the arbitrators shall seek to have such arbitration award filed with the highest jurisdictional court in Kosovo and any other court so requested by a Party.

(m)

The arbitral award shall be made and payable in Euros and the award shall be grossed up for Tax unless the amount paid would have been subject to Tax if paid in the normal course.

(n)

The Parties waive their rights to claim or recover, and the arbitrators shall not award, any punitive, multiple, or other exemplary damages, whether statutory or common law (except to the extent such damages (i) have been awarded to a third party and are subject to allocation among the Parties, or (ii) are expressly contemplated to be paid under the terms and conditions of this Agreement).

- 69 US-DOCS\86271257.15

22.6

Related Disputes

(a)

The arbitral tribunal may consolidate an arbitration arising out of or relating to this Agreement with any arbitration arising out of or relating to one or more of the Project Agreements if the subject matter of the Disputes arises out of or relates to essentially the same facts or transactions. Such consolidated arbitration shall be determined by the arbitral tribunal appointed for the arbitration proceeding that was commenced first in time.

(b)

Except as otherwise provided in Section 22.1, 22.3 and 22.4, the rights of the Parties to proceed with Dispute resolution under Section 22.1, 22.3 and 22.4 shall be independent of their rights or the rights of related entities to proceed with Dispute resolution under any of the other Project Agreements. Notwithstanding the foregoing or anything to the contrary in this Agreement, a final determination of a Dispute under and in accordance with any of the Project Agreements shall be a final and binding resolution of the same issue as it relates, mutatis mutandis, to the obligations of GOK or GenCo hereunder.

22.7

Obligations Continue

The pendency of a Dispute shall not in and of itself relieve either Party of its duty to perform under this Agreement, and each Party shall continue to perform its obligations, and shall have the right to exercise its rights, under this Agreement pending resolution of such Dispute, without limiting Section 19.5. 22.8

Commercial Acts

GOK unconditionally and irrevocably agrees that the execution, delivery, and performance by it of this Agreement constitute its private and commercial acts. 22.9

Sovereign Immunity; Jurisdiction

(a)

GOK hereby irrevocably and unconditionally: (i)

agrees that should any proceedings be brought against GOK or its assets, other than the Protected Assets, in any jurisdiction in connection with this Agreement or any of the transactions contemplated by this Agreement, no claim of immunity from such proceedings will be claimed by or on behalf of GOK on behalf of itself or any of its assets (other than the Protected Assets);

(ii)

waives any right of immunity which it or any of its assets (other than the Protected Assets) now has or may in the future have in any jurisdiction in connection with any such proceedings;

(iii)

agrees that the execution, delivery and performance by it of this Agreement and any other Project Agreement to which it is a party constitutes its private and commercial acts and waives any objection that it may now or hereafter have to the venue of any action or proceeding brought as consented to in this Section 22.9(a), and specifically waives any objection that any such action or proceeding has been brought in an inconvenient forum and agrees not to plead or claim the same;

(iv)

consents generally to the jurisdiction, with respect to itself and any and all of its assets and property that it now has or may thereafter acquire (other than the Protected Assets), of any court of competent jurisdiction for any action filed by GenCo to enforce any award or decision of any arbitrator who was duly appointed under this Agreement to resolve any Dispute between the Parties.agrees that service of process in any such action or proceeding may be effected in any manner permitted by the law applicable to the aforementioned court.

- 70 US-DOCS\86271257.15

(b)

GenCo hereby irrevocably and unconditionally: (i)

consents generally to the jurisdiction, with respect to itself and any of its assets and property that it now owns or may hereafter acquire, of any court of competent jurisdiction for any action filed by GOK to enforce any award or decision of any arbitrator who was duly appointed under this Agreement to resolve any Dispute between the Parties;

(ii)

waives any right of immunity that it or any of its assets now has or may in the future have in any jurisdiction in connection with any such proceedings;

(iii)

waives any objection that it may now or hereafter have to the venue of any action or proceeding brought as consented to in this Section 22.9(b), and specifically waives any objection that any such action or proceeding has been brought in an inconvenient forum and agrees not to plead or claim the same;

(iv)

agrees that service of process in any such action or proceeding may be effected in any manner permitted by the law applicable to the aforementioned court; and

(v)

waives any and all rights it may have to enforce any judgment or claim against the Protected Assets in the courts of any jurisdiction. Article 23 Miscellaneous

23.1

Notices

(a)

All notices and other communications required or permitted to be given by a Party (including any invoices required or permitted to be delivered hereunder) shall be in writing and either delivered personally or by courier or sent by fax or by e-mail to the address or number of the other Party specified below: (i)

If to GenCo: ContourGlobal Terra 6 S.à r.l. 35-37 Avenue de la Liberté L-1931 Luxembourg, Grand Duchy of Luxembourg Attention: The board of managers Tel: + (352) 28 86 78 00 Fax: + (352) 24 52 73 26 Email: [email protected] [email protected]

(ii)

If to GOK: Government of Kosovo Rr. Nene Tereza Nr. 36 Pristina, Kosovo Attention: Minister of Economic Development Tel: [ ] Fax: [ ] Email: [ ]

and, in the event the notice or other communication is a Special GOK Notice of Default issued pursuant to the Power Purchase Agreement, the Ash and Gypsum Disposal Agreement, the Water Supply Agreement, or any other Project Agreement with a copy to: Ministry of Finance Rr. Nene Tereza Pn. Ndertesa e Qeverise - 71 US-DOCS\86271257.15

Pristina, Kosovo Attention: Minister of Finance Tel: [ ] Fax: [ ] Email: [ ] with a copy (which shall not constitute notice) to: Hunton & Williams LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219-4047 Attention: John J. Beardsworth, Jr. Tel: +1-804-788-8637 Fax: +1-804-788-8218 E-mail: [email protected] provided, that a Party may change the address to which notices are to be sent to it by giving not less than thirty (30) Days’ prior written notice to the other Party in accordance with this Section 23.1(a). (b)

No notice or other communication shall be effective until received or deemed received. Notices or other communications shall be deemed to have been received by the receiving Party: (i)

when delivered if personally delivered;

(ii)

three (3) Business Days after sending, if sent by international courier;

(iii)

upon sending if sent by fax, subject to confirmation of an uninterrupted transmission report and provided that a hard copy is dispatched not later than the following Business Day to the recipient by international courier or personal delivery; or

(iv)

upon sending if sent by e-mail, provided that a hard copy is dispatched not later than the following Business Day to the recipient by international courier or personal delivery; provided, however, the Parties may from time to time mutually agree in writing that no hard copy delivery requirements are required with respect to certain day-to-day or similarly routine operational communications.

(c)

A Party delivering a notice or other communication in accordance with Section 23.1(a) shall use commercially reasonable efforts to provide to the receiving Party a reasonably accurate translation in Albanian within five (5) Business Days of sending such notice or other communication; provided, however, that a Party shall not be required to provide a translation of any technical drawings or similar technical or engineering documents. In the event of any inconsistency between the English original and the Albanian translation of any notice or other communication, the English version shall prevail over the Albanian version. For the avoidance of doubt, failure to deliver a translation of a notice or other communication in accordance with this Section 23.1(c) shall not affect the effectiveness of such notice or other communication as established pursuant to Section 23.1(b).

(d)

In the event that a notice delivered by GenCo to GOK pursuant to this Agreement requires GOK to either provide a response (including any approval or non-objection) within a certain time period or be deemed to have approved or not objected to the taking of any action by GenCo, GenCo shall include in such notice a description of the response period and consequences of the failure of GOK to respond (including any deemed approval or non-objection). - 72 -

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23.2

Amendment

An amendment or modification of this Agreement shall be effective or binding on a Party only if made in writing and signed by a duly authorized representative of each of the Parties; provided, however, that no such amendment shall affect GOK’s obligations under this Agreement or any other Project Agreement unless GOK is a party to the agreement amending this Agreement (or the amended and restated version of this Agreement) or GOK otherwise consented to the amendment of this Agreement; provided, further, that no such amendment affecting the provisions of Article 22 shall affect the Sponsor HoldCo’s or Ultimate Sponsor’s obligations under the Sponsor Support Agreement or the Ultimate Sponsor Guarantee unless the Sponsor HoldCo or Ultimate Sponsor as the case may be is a party to the agreement amending this Agreement (or the amended and restated version of this Agreement) or the Sponsor HoldCo and Ultimate Sponsor otherwise consented to the amendment of this Agreement. 23.3

Survival

(a)

On the expiry of this Agreement or the earlier termination of this Agreement, all covenants, obligations, representations and warranties contained in this Agreement shall terminate and be of no force or effect and the Parties shall have no further obligations or liabilities under this Agreement; provided, however, the following shall expressly survive: (i) those obligations and liabilities that arose prior to and remain undischarged at the date of expiry or termination, and (ii) those obligations and liabilities that expressly survive such expiry or termination pursuant to Section 23.3(b).

(b)

Notwithstanding anything contained in this Agreement to the contrary, the provisions of Article 1 (Definitions; Interpretation), Section 5.2 (Cessation of Operation of the KRPP Facility), Section 8.2 (Indemnification for Environmental Standards), Section 18.1 (Limitation of Liability), Article 20 (Rights and Obligations Upon Termination; Compensation), Article 22 (Dispute Resolution), and Article 23 (Miscellaneous) shall expressly survive any termination or expiry of this Agreement.

23.4

Third Party Beneficiaries

Except for the rights expressly granted herein, this Agreement is intended solely for the benefit of the Parties and nothing in this Agreement shall be construed to create any rights in, duty to, standard of care to, or any liability to, any Person not a Party. 23.5

No Waiver

No default by either Party in the performance of or compliance with any provision of this Agreement shall be waived or discharged except with the express written consent of the other Party. No waiver by either Party of any default by the other Party in the performance of or compliance with any of the provisions of this Agreement shall operate or be construed as a waiver of any other or further default whether of a like or different character. 23.6

Relationship of the Parties

(a)

This Agreement does not and shall not be interpreted or construed to create an association, joint venture, or partnership between the Parties or to impose any partnership obligations or similar liability upon either Party.

(b)

Neither Party shall have any right, power, or authority to enter into any agreement or undertaking for, to act on behalf of, or be an agent or representative of, or to otherwise bind, the other Party, and neither Party shall hold itself out to any third party as having such right, power, or authority.

23.7

Expenses of the Parties

Except as otherwise agreed in Article 16 of this Agreement or as may be otherwise agreed in any other Project Agreement, as between the Parties to this Agreement, all expenses incurred by or on behalf of - 73 US-DOCS\86271257.15

each Party, including all fees and expenses of agents, representatives, counsel, and accountants employed by the Parties in connection with the preparation of this Agreement and the consummation of the transactions contemplated by this Agreement, shall be borne solely by the Party who shall have incurred such expenses, and the other Party shall have no liability in respect thereof. 23.8

Consent

Unless otherwise provided herein, whenever a consent or approval is required by a Party from the other Party, such consent or approval shall be in writing and shall not be unreasonably withheld, conditioned, or delayed. 23.9

Language

This Agreement has been drafted in English and the English version shall prevail over any translations. All notices, certificates, and other documents and communications (including copies) given or made under or in connection with this Agreement shall be in English. 23.10

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 23.11

Status of Project Agreements

This Agreement, together with the other Project Agreements, constitutes the “Agreement” for purposes of the Law on Public-Private Partnership, 2011. 23.12

Entirety

This Agreement shall be the full and final expression of the agreement between the Parties on the matters contained herein. Except for the other Project Agreements and any agreement or other communication required thereunder, all written or oral representations, understandings, offers, or other communications of every kind between the Parties in relation to the Kosovo e Re Project prior to this Agreement, including the Memorandum of Understanding, are hereby abrogated and withdrawn. 23.13

Assignment

(a)

Within sixty (60) Days of the execution of this Agreement, GenCo may assign all of its rights title and interest in and to, and delegate its obligations under, this Agreement to CG Kosovo. Furthermore, GenCo may assign as collateral its interest hereunder to a Lender or any other Person in connection with the exercise of collateral rights of the Lender. Except as expressly permitted by this Section 23.13(a), this Agreement shall not be assigned by GenCo to any other party without the prior written consent of GOK.

(b)

This Agreement shall not be assigned by GOK without the prior written consent of GenCo.

(c)

This Agreement shall bind and inure to the benefit of the Parties and any successor or assignee acquiring an interest hereunder consistent with Section 23.13(a) and Section 23.13(b).

(d)

Any assignment in contravention of this Section 23.13 shall be null and void.

23.14

Contracting

(a)

Each Party may delegate its responsibilities under this Agreement to one or more Contractors; provided, however, that no such delegation shall relieve the relevant Party of its obligations or responsibilities under this Agreement. GenCo shall contractually require all GenCo Contractors to have all the required skills and capacity necessary to perform or cause to be performed any tasks that they undertake in a timely and professional manner, utilizing sound engineering principles, project management procedures, supervisory procedures, and generally acceptable industry practices. - 74 -

US-DOCS\86271257.15

(b)

To the extent that a Party delegates its responsibilities under this Agreement to one or more Contractors, such Party shall ensure that each such Contractor is required, pursuant to its contract with such party, to perform its obligations in accordance with the Applicable Standards. Such Party shall provide the other Party with copies of all such contracts, which contracts may be redacted as necessary for purposes of confidentiality.

23.15

Confidentiality

(a)

Subject to Section 23.15(d), this Agreement and all information disclosed hereunder or in connection with this Agreement shall be treated as confidential and, subject to Section 23.15(c) such information shall not be disclosed in whole or in part by either Party without the prior consent of the other Party.

(b)

This obligation does not apply to information that (when used or disclosed) has been made public other than through a breach of this Agreement or has been, or could have been, lawfully acquired by the Party.

(c)

Notwithstanding the provisions of Section 23.15(a), neither Party shall be required to obtain the prior consent of the other in respect of disclosure of information: (i)

to directors and employees and Affiliates of such Party, provided that such Party shall use reasonable endeavors to ensure that such Affiliates keep the disclosed information confidential on the same terms as are provided in this Section 23.15;

(ii)

to Persons professionally engaged by or on behalf of such Party (including its advisors, consultants, and insurers), provided that such Persons shall be required by such Party to undertake to keep such information confidential and that such Party shall use reasonable endeavors to secure compliance with such undertaking;

(iii)

to any government department or any governmental or regulatory agency having jurisdiction over such Party but only to the extent that such Party is required by law to make such disclosure;

(iv)

to: (A)

any lending or other financial institution, including the World Bank Group, in connection with the financing or refinancing of such Party’s operations, and in each case, their advisors, consultants, and insurers in connection with any financing or refinancing;

(B)

any rating agencies, and their advisors, consultants, and insurers;

(C)

any actual and potential equity investors, and in each case, their advisors, consultants, and insurers; or

(D)

any bona fide intended assignee or transferee (and in each case, their advisors, consultants, and insurers) of the whole or any part of the rights and interests of the disclosing Party under this Agreement,

but (in each case) only to the extent required in connection with obtaining such financing, refinancing, rating, equity investment or in respect of such proposed assignment and subject to such Person or intended assignee or transferee first agreeing with such Party to be bound by confidentiality provisions substantially the same as those contained in this Section 23.15; or (v) (d)

to any expert or arbitrator appointed pursuant to and under the terms of this Agreement.

Notwithstanding the provisions of Section 23.15(a), the Parties acknowledge that (i) GOK may release this Agreement and any of the other Project Agreements to the public at any time after the - 75 -

US-DOCS\86271257.15

Transfer Date (but only to the extent that such release is mandated by the applicable Laws of Kosovo or the public policy of GOK and provided any commercially sensitive information is redacted to the extent legally permissible), and (ii) the Parties and their Affiliates may share each Project Agreement in accordance with the provisions of each such Project Agreement. Upon the release by GOK of this Agreement or any part thereof to the public, the restrictions set forth in this Section 23.15 shall no longer apply to GenCo in respect of any such information released to the public. 23.16

No Liability for Review

No review and approval by a Party of any agreement, document, instrument, drawing, specifications, or design proposed by a Party nor any inspection carried out by a Party pursuant to this Agreement shall relieve a Party from any liability that it would otherwise have had for its negligence in the preparation of such agreement, document, instrument, drawing, specification, or design or the carrying out of such works or failure to comply with the applicable Laws of Kosovo with respect thereto, or to satisfy a Party’s obligations under this Agreement nor shall a Party be liable to a Party or any other Person by reason of its review or approval of an agreement, document, instrument, drawing, specification, or design or such inspection. 23.17

Equitable Relief

The Parties agree that to the fullest extent permitted under any applicable law, a Party shall be entitled to injunctive or other equitable relief under this Agreement. 23.18

Auditing by the World Bank Group

Each Party shall permit the World Bank reasonable access to inspect its (and its Affiliates’) accounts and records directly relating to the procurement, submission or proposals, and contract performance pertaining to any Project Agreement to which it (or any of its Affiliates) is a party and to have them audited by auditors appointed by the World Bank, provided that in the event of an inspection or audit under this provision, the World Bank has prior to such audit agreed to hold any audited or inspected accounts and records in confidence in accordance with its established procedures, policies, and rules. 23.19

Counterparts

This Agreement may be executed in two (2) or more original copies and each such copy may be executed by each of the Parties in separate counterparts, each of which copies when executed and delivered by the Parties shall be an original, but all of which shall together constitute one and the same instrument. 23.20

Further Assurances

The Parties shall each execute any and all reasonable documents necessary to effectuate the purposes of this Agreement. 23.21

Severability

If any term or provision of this Agreement is determined by a court or other authority of competent jurisdiction to be invalid, void, illegal, unenforceable, or against public policy, (i) the remaining provisions of this Agreement shall remain in full force and effect and will not be affected by such determination in any way and (ii) the Parties shall promptly meet and negotiate a substitute for such affected provision or part, which shall, to the greatest extent legally permissible, effect the original intent of the Parties. 23.22

Partial Invalidity

The illegality, invalidity or unenforceability of any provision of this Agreement in whole or in part under the law of any jurisdiction shall neither affect: - 76 US-DOCS\86271257.15

(a)

its legality, validity, or enforceability under the law of any other jurisdiction; nor

(b)

the legality of any other provision or part thereof.

23.23

Additional Debt

Except as provided with respect to GenCo’s election to incur costs due to a Force Majeure Event and without limiting any obligations of GenCo under the Project Agreements, GenCo has no obligation to incur debt or contribute equity for any costs other than (i) costs incurred due to its own unexcused nonperformance under the Project Agreements and (ii) costs approved by GOK for inclusion in the tariff set forth in Schedule 1 (Tariff) of the Power Purchase Agreement. 23.24

Affirmation

(a)

Neither the Sponsor HoldCo, the Ultimate Sponsor, any Affiliate of either, nor GenCo has, directly or through an agent, engaged in any Corrupt Practices, Fraudulent Practices, Collusive Practices, Coercive Practices, or Obstructive Practices in competing for this Agreement, during the procurement or execution of any Project Agreement, or otherwise in connection with the Kosovo e Re Project.

(b)

GenCo covenants on its own behalf that it will not, and covenants that it shall cause its Affiliates to not, directly or through an agent, engage in any Corrupt Practices, Fraudulent Practices, Collusive Practices, Coercive Practices, or Obstructive Practices in the performance of any Project Agreement or otherwise in connection with the Kosovo e Re Project.

(c)

Each of the Sponsor HoldCo, the Ultimate Sponsor, GenCo, and each of their Affiliates has fully disclosed to GOK in writing all commissions, brokerage and other fees, and other compensation (other than compensation paid to employees of the Sponsor HoldCo, the Ultimate Sponsor, the Affiliates of each, and GenCo for services provided) paid or payable to any Foreign Official in relation to the Kosovo e Re Project, except Permitted GOK Advisor Fees. “Foreign Official” means any officer or employee of the Government of the Republic of Kosovo or any department, agency, or instrumentality thereof, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality.

(d)

GenCo accepts full responsibility and strict liability for its or any Affiliate making any false declaration, not making full disclosure, misrepresenting facts, or taking any action likely to defeat the purpose of the representations and warranties contained herein and the declarations required hereby in relation to the Kosovo e Re Project. GenCo agrees that any contract, consent, approval, right, interest, privilege or other obligation or benefit obtained or procured as aforesaid shall, subject to Article 20 of the Implementation Agreement, without prejudice to any other right and remedies available to GOK, be voidable and without legal effect at the option of GOK.

- 77 US-DOCS\86271257.15

Schedule 1 Fiscal Incentives and Concessions 1.

No VAT or reverse charge VAT shall be applied to the construction- and development-related activities related to the Kosovo e Re Project.

2.

No import duties, be it customs duties, VAT on import, or others, will be levied on non-exempt imported materials and commodities related to all construction- and development-related activities of the Kosovo e Re Project.

US-DOCS\86271257.15

Schedule 1 - 1

Schedule 2 Form of Government Guarantee

GOVERNMENT GUARANTEE

IN RELATION TO THE KOSOVO E RE PROJECT

THIS GOVERNMENT GUARANTEE (this “Guarantee”) is made as of ___________, 20__ by: (1)

The Republic of Kosovo acting through the Ministry of Finance (“GOK”), in favor of

(2)

[________] (“GenCo”), a limited liability company organized under the laws of Kosovo, with its principal office at Garibaldi Hy., Nr. 3, 10000 Pristina, Kosovo, Kosovo.

Each of GOK and GenCo is hereinafter referred to individually as a “Party” and, collectively, as the “Parties.” RECITALS A.

GOK intends as a matter of policy to involve the private sector in a lignite to electricity infrastructure project that includes the development, design, construction, financing, ownership, operation and maintenance of the KRPP Facility and rehabilitation of the Site (as hereinafter defined) by GenCo (the “Kosovo e Re Project”);

B.

GOK and GenCo are entering into an Implementation Agreement dated on or about the date hereof (the “Implementation Agreement”);

C.

NKEC and GenCo are entering into a Power Purchase Agreement dated on or about the date hereof (the “Power Purchase Agreement”);

D.

Water Supplier and GenCo are entering into a Water Supply Agreement dated on or about the date hereof (the “Water Supply Agreement”);

E.

KEK Mining and GenCo are entering into an Ash and Gypsum Disposal Agreement dated on or about the date hereof (the “Ash and Gypsum Disposal Agreement”);

F.

KEK Mining and GenCo are entering into a Lignite Supply Agreement dated on or about the date hereof (the “Lignite Supply Agreement”);

G.

KEK Generation and GenCo are entering into a Site Transfer Agreement dated on or about the date hereof (the “Site Transfer Agreement”);

H.

KOSTT and GenCo are entering into a Connection Agreement dated on or about the date hereof (the “Connection Agreement”); and

I.

It is a term of Section 9.1 of the Implementation Agreement that GOK will execute and deliver this Guarantee.

NOW, THEREFORE, for and in consideration of the promises and mutual covenants contained herein, and intending to be legally bound, the Parties hereby agree as follows: Article1 Guarantee 1.1

Guarantee

In acknowledgment of the Kosovo e Re Project being of strategic importance to the Republic of Kosovo, GOK hereby irrevocably and unconditionally guarantees to GenCo for the term hereof as provided in Section 1.2:

US-DOCS\86271257.15

Schedule 2 - 1

(a)

the due and punctual performance of all the terms, conditions, and covenants of: (i)

Water Supplier under the Water Supply Agreement;

(ii)

KEK Mining under the Ash and Gypsum Disposal Agreement and the Lignite Supply Agreement;

(iii)

KEK Generation under the Site Transfer Agreement;

(iv)

KOSTT under the Connection Agreement;

(v)

NKEC under the Power Purchase Agreement; and

(vi)

Any other Specified POE under any other Project Agreement to which any such Specified POE is a party,

and in each case undertakes to procure performance of the respective obligations thereunder; and (b)

the full and prompt payment of: (i)

any amounts that NKEC fails to pay when due under the Power Purchase Agreement;

(ii)

any amounts that Water Supplier fails to pay when due under the Water Supply Agreement, including damages payable under Section 3.7 (Failure to Supply) of the Water Supply Agreement;

(iii)

any amounts that KEK Mining fails to pay when due under the Ash and Gypsum Disposal Agreement or the Lignite Supply Agreement;

(iv)

any amounts that KEK Generation fails to pay when due under the Site Transfer Agreement;

(v)

any amounts that KOSTT fails to pay when due under the Connection Agreement; and

(vi)

any amounts that any other Specified POE fails to pay when due under any Project Agreement to which such Specified POE is a party,

(collectively, the “Guaranteed Obligations”); provided, however, that amounts in Dispute under the Power Purchase Agreement, the Water Supply Agreement, the Ash and Gypsum Disposal Agreement, the Lignite Supply Agreement, the Site Transfer Agreement, the Connection Agreement or any other Project Agreement shall be deemed not to be due and owing for purposes of this Guarantee until after the resolution of any Dispute arising in connection with such amounts payable in accordance with the Dispute resolution procedures provided for in the Power Purchase Agreement, the Water Supply Agreement, the Ash and Gypsum Disposal Agreement, the Lignite Supply Agreement, the Site Transfer Agreement, the Connection Agreement or the other applicable Project Agreement, as the case may be, including the period for payment after resolution of a Dispute provided for in Section 17.3.2 (Resolution Procedures) of the Power Purchase Agreement, and Section 11.3.2 (Resolution Procedures) of the Water Supply Agreement. 1.2

Effectiveness; Term of Guarantee

(a)

The effectiveness of this Guarantee shall be subject, as a GenCo Transfer Condition Precedent (as defined in the Site Transfer Agreement), to the Assembly of the Republic of Kosovo having approved such “State Guarantee” as and to the extent required under the Laws of Kosovo, including the Law on Public Debt, 2009, and this Guarantee shall be of no force or effect until the satisfaction of such condition.

(b)

This Guarantee shall remain in full force and effect from and after the date of its effectiveness in accordance with Section 1.2(a) until the expiration or termination of the Implementation Agreement, and for so long thereafter as any amount owed to GenCo by the applicable Specified

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Schedule 2 - 2

POE in connection with any Project Agreement to which any Specified POE is a party is or may be outstanding. 1.3

Waiver of Defenses

Neither the obligations of GOK herein contained nor the rights, powers, and remedies conferred upon GenCo with respect to each Specified POE that is a party to any Project Agreement, as the case may be, by law or otherwise shall be discharged, impaired, or otherwise ceded by the happening from time to time of any event, matter, act, or omission, including the following: (a)

the extension of time for payment of any amounts due or of time for performance of any of the covenants, terms, or agreements of any Project Agreement to which any Specified POE is a party;

(b)

any amendment to the Power Purchase Agreement, the Water Supply Agreement, the Ash and Gypsum Disposal Agreement, the Lignite Supply Agreement, the Site Transfer Agreement, or the Connection Agreement; provided, however, that unless the prior written consent of GOK to such amendment is obtained, this Guarantee shall not apply to: (i)

any amendment to the Power Purchase Agreement that materially increases NKEC’s obligations or that materially reduces GenCo’s obligations under the Power Purchase Agreement;

(ii)

any amendment to the Water Supply Agreement that materially increases Water Supplier’s obligations or that materially reduces GenCo’s obligations under the Water Supply Agreement;

(iii)

any amendment to the Ash and Gypsum Disposal Agreement or the Lignite Supply Agreement that materially increases KEK Mining’s obligations or that materially reduces GenCo’s obligations under the Ash and Gypsum Disposal Agreement or the Lignite Supply Agreement;

(iv)

any amendment to the Site Transfer Agreement that materially increases KEK Generation’s obligations or that materially reduces GenCo’s obligations under the Site Transfer Agreement; or

(v)

any amendment to the Connection Agreement that materially increases KOSTT’s obligations or that materially reduces GenCo’s obligations under the Connection Agreement;

provided, further, that for any such amendment, the prior approval of the GOK entity that is a signatory to the applicable agreement shall not be required if such entity is a Publicly Owned Enterprise. (c)

the failure, omission, or delay by GenCo or any Specified POE that is a party to a Project Agreement, as the case may be, to enforce, ascertain, or exercise any right, power, or remedy under or pursuant to the terms of such Project Agreement, including this Guarantee and the Implementation Agreement;

(d)

the bankruptcy, insolvency, or other failure or financial disability of any Specified POE that is a party to a Project Agreement;

(e)

any failure of GOK or any Specified POE to comply with the requirements of any law, regulation, or order;

(f)

any assignment of any Project Agreement to which any Specified POE is a party in accordance with its terms;

(g)

the addition, or partial or entire release, of any guarantor or other party primarily or secondarily responsible for the performance of any of the covenants, terms, or agreements set forth in any

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Schedule 2 - 3

Project Agreement to which any Specified POE is a party, or by any extension, waiver, amendment, or any other action whatsoever that may release or create a defense for a guarantor (other than performance in accordance with the terms of the applicable Project Agreement); (h)

any invalidity or unenforceability of any Project Agreement to which any Specified POE is a party, or any of their respective provisions, terms, or conditions on the basis of a lack of authority of a Specified POE to enter into such agreement or the lack of authority of a signatory to bind a Specified POE; or

(i)

any reorganization or privatization of any Specified POE that is party to any Project Agreement with the effect that such Specified POE is no longer controlled by GOK.

1.4

Continuing Guarantee

No demand made by GenCo hereunder shall prejudice or restrict the rights of GenCo to make further or other demands under the terms of this Guarantee. 1.5

Additional Security

(a)

This Guarantee shall be in addition to, and not in substitution for or derogation of, any other security that GenCo may at any time hold in respect of the obligations of any Specified POE under any Project Agreement to which it is a party.

(b)

GenCo may enforce this Guarantee notwithstanding that it may hold any guarantee, lien, or security of or for any Specified POE’s obligations under any Project Agreement to which it is a party, or have available to it any other remedy at law or equity.

1.6

Preliminary Demand

(a)

Notwithstanding that this Guarantee is the unconditional obligation of GOK, GenCo shall not demand payment or performance, as the case may be, hereunder for any Guaranteed Obligation unless and until: (i)

GenCo shall have given notice to GOK of non-payment or non-performance of the Guaranteed Obligation as required by the terms of the relevant Project Agreement and Section 1.8; and

(ii)

any period set forth in the relevant Project Agreement during which the applicable Specified POE or GOK may cure such non-payment or non-performance has expired without such Specified POE or GOK having paid or procured performance of such Guaranteed Obligation.

(b)

Subject to Section 1.6(a), GOK shall make payment or procure performance within thirty (30) Days following a demand for payment or performance, as the case may be, in accordance with Section 1.8 and as otherwise provided hereunder.

(c)

Except as provided in Section 1.6(a), GenCo shall not be obliged before taking steps to enforce this Guarantee, to exercise any other remedies that may be available to it under or in respect of the relevant Project Agreement, or to initiate any proceedings or obtain judgment against the applicable Specified POE thereon.

1.7

Certification

Any demand for payment made pursuant to this Guarantee shall be accompanied by a certificate signed by a duly authorized officer of GenCo stating that: (a)

“[______] (“GenCo”) hereby certifies to the Republic of Kosovo (“GOK”) that (A) GenCo is making this demand on GOK for payment by GOK in an amount equal to € [●] in accordance with Section 1.1 of the Guarantee dated [●] [●] 20__, by GOK in favor of GenCo; (B) (1) the

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Implementation Agreement has not been terminated (other than in relation to the event or circumstances for which this demand is being made) in accordance with the terms thereof or the matter for which this demand is made has survived the termination, and (2) the amount specified hereinabove is due and payable by [applicable Specified POE] under the [applicable Project Agreement]; (C) demand in writing for payment from GOK was delivered to GOK on or after the date payment or performance was due and notice of such non-payment or non-performance was delivered to GOK not less than seven (7) Days prior to the date hereof; and (D) such amount, on the date hereof, remains unpaid or such performance, on the date hereof, has not been completed.” 1.8

Notice and Payment

(a)

If GenCo shall not have received all or any portion of a Guaranteed Obligation on or prior to the due date therefor, it shall give notice to GOK (with a copy to the Ministry of Finance), within fifteen (15) Business Days thereafter. Such notice shall state that the due date for payment or performance of such Guaranteed Obligation has passed, that GenCo has exercised its rights pursuant to the relevant Project Agreement, the amount of the Guaranteed Obligation that remains unpaid or unperformed, and that the amount unpaid or obligation not performed has not been disputed in accordance with the applicable Project Agreement or any dispute has been resolved in favor of GenCo.

(b)

Except as provided in this Section 1.8, GenCo shall not be obliged before taking steps to enforce this Guarantee to exercise any other remedies that may be available to it under or in respect of the applicable Project Agreement, or to obtain judgment against the applicable Specified POE, as the case may be, thereon.

(c)

Conditional upon GOK receiving notice as provided in Section 1.8(a), payment by GOK of any Guaranteed Obligation payable by GOK under this Guarantee or performance of any Guaranteed Obligation to be performed by GOK under this Guarantee, shall, in either case, be due within thirty (30) Days after the notice provided pursuant to Section 1.8(a).

1.9

Set-Off

No lawful act of commission or omission of any kind or at any time upon GenCo’s part shall in any way affect or impair GenCo’s rights to enforce any right, power, or benefit under this Guarantee, and no setoff, claim, counterclaim, reduction, or diminution of any obligation or any defense that GOK has or may have against GenCo shall be available to GOK against GenCo in any determination by it to perform hereunder or suit or action brought by GenCo to enforce any right, power, or benefit under this Guarantee; provided, however, that notwithstanding the foregoing, GOK shall have the benefit of all rights of set-off, claim, counterclaim, reduction, or diminution of any undisputed liquidated obligation of GenCo to GOK under the Implementation Agreement or to any Specified POE under any Project Agreement. 1.10

Subordination

Any right that GOK may have at any time to be indemnified by any Specified POE that is a party to a Project Agreement in respect of sums paid out by GOK in performance of this Guarantee shall be subordinated to the rights of GenCo to recover from a Specified POE that is a party to a Project Agreement, in full all sums that may at any time become due from any Specified POE under the Project Agreement to which it is a party. 1.11

Arbitration; Jurisdiction

1.11.1 Arbitration The Parties irrevocably agree that any Dispute or difference arising under, out of, in connection with, or relating to, this Guarantee, including any Dispute or difference concerning the existence, validity, or US-DOCS\86271257.15

Schedule 2 - 5

enforceability of this Guarantee or any provisions hereof (including the existence, validity or enforceability of the agreements contained in this Section 1.11.1) or as to whether this Guarantee or any provisions hereof (including agreements contained in this Section 1.11.1) are invalid, illegal, or unenforceable shall be resolved in accordance with the provisions of Article 22 (Dispute Resolution) of the Implementation Agreement, which provisions are incorporated herein by reference, mutatis mutandis. Each Party hereby consents to the jurisdiction of any courts of competent jurisdiction for any action filed by the other Party under this Guarantee to enforce any award or decision of any tribunal duly appointed to resolve any Dispute hereunder between the Parties.

1.11.2 Commercial Acts GOK unconditionally and irrevocably agrees that the execution, delivery, and performance by it of this Guarantee constitute its private and commercial acts.

1.11.3 Sovereign Immunity; Jurisdiction (a)

GOK irrevocably and unconditionally: (i)

agrees that should any proceedings be brought against GOK or its assets, other than the Protected Assets, in any jurisdiction in connection with this Guarantee or any of the transactions contemplated by this Guarantee, no claim of immunity from such proceedings will be claimed by or on behalf of GOK, on behalf of itself or any of its assets (other than the Protected Assets);

(ii)

waives any right of immunity that it or any of its assets (other than the Protected Assets) now has or may in the future have in any jurisdiction in connection with any such proceedings;

(iii)

agrees that the execution, delivery and performance by it of this Agreement and any other Project Agreement to which it is a party constitutes its private and commercial acts and waives any objection that it may now or hereafter have to the venue of any action or proceeding brought as consented to this Section 1.11.3(a), and specifically waives any objection that any such action or proceeding has been brought in an inconvenient forum and agrees not to plead or claim the same;

(iv)

consents generally in respect of the enforcement of any judgment against it in any such proceedings in any jurisdiction to the giving of any relief or the issue of any process in connection with such proceedings (the making, enforcement or execution against or in respect of any of its assets whatsoever (other than the Protected Assets)) regardless of its use or intended use;

(v)

consents generally to the jurisdiction of any court of competent jurisdiction in Kosovo, the United States, or any other jurisdiction in which assets (other than Protected Assets) of any Specified POE are located for any action filed by GenCo to enforce any award or decision of any tribunal that was duly appointed to resolve any Dispute between the Parties (including the making, enforcement or execution against or in respect of any of its assets whatsoever regardless of its use or intended use), and specifically waives any objection that any such action or proceeding was brought in an inconvenient forum and agrees not to plead or claim the same; and

(vi)

agrees that service of process in any such action or proceeding may be effected in any manner permitted by the law applicable to the aforementioned court.

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(b)

GenCo waives any and all rights it may have to enforce any judgment or claim against the Protected Assets in the courts of any jurisdiction.

1.11.4 Fees and Expenses (a)

Subject to Section 1.11.4(b), if a Dispute is determined by a tribunal duly appointed to resolve any Dispute hereunder between the Parties the prevailing Party (as determined by such tribunal) shall be entitled to receive, and the non-prevailing Party shall pay, in addition to all other remedies to which the prevailing Party may be entitled, the costs and expenses (including legal fees) reasonably incurred by the prevailing Party in conducting the Dispute (as determined by such tribunal).

(b)

Notwithstanding Section 1.11.4(a), GenCo shall be entitled to receive, and GOK shall pay, the costs and expenses (including legal fees) reasonably incurred by GenCo to enforce any award or decision of any tribunal duly appointed to resolve any Dispute hereunder between the Parties. Article2 No Waiver; Remedies Cumulative

2.1

No Waiver

No failure or delay by GenCo to exercise any right or remedy under this Guarantee shall constitute a waiver of such right or remedy. No single or partial exercise of any right or remedy shall preclude any other or further exercise thereof, or the exercise of any other right or remedy. No waiver by GenCo shall be effective unless it is in writing. 2.2

Remedies Cumulative

The rights and remedies of GenCo provided by this Guarantee are cumulative and not exclusive of any rights or remedies provided by law or in any applicable Project Agreement. Article3 Assignment 3.1

Assignment

(a)

GenCo may assign as collateral its interest hereunder to a Lender, to any financial institution or institutions participating in the financing of the Kosovo e Re Project, or to any political risk insurer that requires assignment of this Guarantee as a condition to its issuance of its policy, or any Person in connection with the exercise of collateral rights of the Lender. This Guarantee shall not be assigned by GenCo to any other party without the prior written consent of GOK.

(b)

This Guarantee shall not be assigned by GOK without the prior written consent of GenCo.

(c)

This Guarantee shall bind and inure to the benefit of the Parties and any successor or assignee acquiring an interest hereunder consistent with Section 3.1(a) and Section 3.1(b).

(d)

Any assignment in contravention of this Section 3.1 shall be null and void. Article4 Miscellaneous

4.1

Notices

(a)

All notices and other communications required or permitted to be given by a Party shall be in writing and either delivered personally or by courier or sent by fax or by e-mail to the address or number of the other Party specified below: (i)

If to the Ministry of Finance: Ministry of Finance

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Rr. Nene Tereza Pn. Ndertesa e Qeverise Pristina, Kosovo Attention: Minister of Finance Tel: [ ] Fax: [ ] Email: [ ] with a copy (which shall not constitute notice) to: Government of Kosovo Rr. Nene Tereza Nr. 36 Pristina, Kosovo Attention: Minister of Economic Development Tel: [ ] Fax: [ ] Email: [ ] with a copy (which shall not constitute notice) to: Hunton & Williams LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219-4047 Attention: John J. Beardsworth, Jr. Tel: +1-804-788-8637 Fax: +1-804-788-8218 E-mail: [email protected] (ii)

If to GenCo:

ContourGlobal Terra 6 S.à r.l. 35-37 Avenue de la Liberté L-1931 Luxembourg, Grand Duchy of Luxembourg Attention: The board of managers Telephone: + (352) 28 86 78 00 Fax: + (352) 24 52 73 26 E-mail: [email protected] [email protected]

provided, that a Party may change the address to which notices are to be sent to it by giving not less than thirty (30) Days’ prior written notice to the other Party in accordance with this Section 4.1(a). (b)

No notice or other communication shall be effective until received or deemed received. Notices or other communications shall be deemed to have been received by the receiving Party: (i)

when delivered if personally delivered;

(ii)

three (3) Business Days after sending, if sent by international courier;

(iii)

upon sending if sent by fax, subject to confirmation of an uninterrupted transmission report and provided that a hard copy is dispatched not later than the following Business Day to the recipient by international courier or personal delivery; or

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(iv)

upon sending if sent by e-mail, provided that a hard copy is dispatched not later than the following Business Day to the recipient by international courier or personal delivery; provided, however, the Parties may from time to time mutually agree in writing that no hard copy requirements are required in respect to certain day-to-day or similarly routine operational communications.

(c)

A Party delivering a notice or other communication in accordance with Section 4.1(a) shall use commercially reasonable efforts to provide to the receiving Party a reasonably accurate translation in Albanian within five (5) Business Days of sending such notice or other communication in English; provided, however, that a Party shall not be required to provide translation of any technical drawings or similar technical or engineering documents. In the event of inconsistency between the English original and the Albanian translation of any notice or other communication, the English version shall prevail over the Albanian version. For the avoidance of doubt, failure to deliver a translation of a notice or other communication in accordance with this Section 4.1(c) shall not affect the effectiveness of such notice or other communication as established pursuant to Section 4.1(b).

4.2

Governing Law

This Guarantee shall be governed by and construed in accordance with the Laws of Kosovo. 4.3

Severability

If any term or provision of this Guarantee is determined by a court or other authority of competent jurisdiction to be invalid, void, illegal, unenforceable, or against public policy, (i) the remaining provisions of this Guarantee shall remain in full force and effect and will not be affected by such determination in any way and (ii) the Parties shall promptly meet and negotiate a substitute for such affected provision or part, which shall, to the greatest extent legally permissible, effect the original intent of the Parties. 4.4

Capitalized Terms

Capitalized terms used but not defined in this Guarantee shall have the meanings given to them in the Implementation Agreement, which shall include the interpretations set forth in Section 1.2 of the Implementation Agreement.

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IN WITNESS WHEREOF, this Guarantee has been executed and delivered on behalf of GOK in Pristina, Kosovo as of the date first above written. The Republic of Kosovo acting through the Ministry of Finance By: Name:__________________________________ Title: [______] By: Name:__________________________________ Title:

By: Name:__________________________________ Title:

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Schedule 2 - 10

Schedule 3 Buy-Out Compensation Amounts

Article 1 Definitions 1.1

Definitions

The following terms shall have the following meanings when used in this Schedule 3 and in the Agreement. “Calculation Date” – The Day as of which the applicable termination price is calculated, such Day being the Day that occurs ninety (90) Days after the date of the applicable termination. Article 2 Calculation of Transfer Prices 2.1

Calculation of Transfer Prices

The purchase price for the transfer of the KRPP Facility to GOK shall in each case, except with respect to the End of Term Purchase Price, include (i) all UnpaidDebt and (ii) all BreakFees as part of the calculation as described below. The “GenCo Default Purchase Price” shall be calculated as follows:

 AmountsOuts tan ding + GOKAF  UnpaidDebt +BreakFees +   − Insurance − Overhaul − Cleanup − CDF − RsrvAccts  The “GOK Default Purchase Price” shall be calculated as follows:

GOKDfltEqtyAmt + AmountsOuts tan ding + GOKAF − ExcludedUnpaidDebt  UnpaidDebt +BreakFees +   − Insurance − Overhaul − Cleanup − CDF − RsrvAccts  The “Other Force Majeure Purchase Price” shall be calculated as follows:

 FMEqtyAmt + AmountsOuts tan ding + GOKAF − ExcludedUnpaidDebt  UnpaidDebt +BreakFees +   − Insurance − Overhaul − Cleanup − CDF − RsrvAccts  The “Environmental Termination Purchase Price” shall be calculated as follows: (a)

from and after the Commercial Operations Date, the amount that is evenly divided between the amount that would be paid for the Other Force Majeure Purchase Price and the GOK Default Purchase Price; or

(b)

if prior to the Commercial Operations Date, the amount calculated as follows:

Pr eCODEquity + GOKAF − ExcludedUnpaidDebt  UnpaidDebt +BreakFees +   − Insurance − Overhaul − Cleanup − CDF − RsrvAccts 

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The “End of Term Purchase Price” shall be calculated as follows:

€100 + AmountsOuts tan ding + GOKAF − Overhaul − Cleanup − CDF − RsrvAccts In each case where: UnpaidDebt

means the full amount of all unpaid principal and interest outstanding under the Financing Documents submitted to GOK pursuant to Section 3.4.1 of the Agreement (as amended or replaced with new Financing Documents pursuant to any Refinancing undertaken in accordance with Section 3.4.1(c) of the Agreement, including with respect to the Working Capital Facility);

BreakFees

means the full amount of any prepayment charges, wind-up costs, hedge break costs, or similar charges or fees payable to the Lenders in accordance with the Financing Documents submitted to GOK pursuant to Section 3.4.1 of the Agreement (as amended or replaced with new Financing Documents pursuant to any Refinancing undertaken in accordance with Section 3.4.1(c) of the Agreement, including with respect to the Working Capital Facility);

ExcludedUnpaidDebt

means any UnpaidDebt or BreakFees that is associated with amounts that are Tariff Exclusions as set forth in Schedule 1 (Tariff) of the Power Purchase Agreement or that was not paid by GenCo when due pursuant to the Financing Documents for reasons other than an NKEC Event of Default as defined under the Power Purchase Agreement;

GOKDfltEqtyAmt

means the amount set forth in the Agreed Termination Table in Column F of “Termination Table” sheet (GoK Default Termination Payment) of the Base Case Financial Model and in the Row applicable to the date this Agreement is terminated in accordance with Section 19.2 of this Agreement;

FMEqtyAmt

means the amount set forth in the Agreed Termination Table in Column E of “Termination Table” sheet (Force Majeure Termination Payment) of the Base Case Financial Model and in the Row applicable to the date this Agreement is terminated in accordance with Section 24.11 (Right to Terminate Following an Other Force Majeure Event) of the Power Purchase Agreement or any other Project Agreement is terminated in accordance with its terms after the Transfer Date following an Other Force Majeure Event;

Insurance

means any insurance proceeds due or paid to GenCo (or that would have been due or paid to the extent that GenCo had maintained insurance as required under the Power Purchase Agreement) following the occurrence of a Force Majeure Event that have not been expended by GenCo on the repair and restoration of the KRPP Facility or used to pay unpaid principal or other costs as required under the Financing Documents;

Overhaul

means any reduction to the purchase price following a maintenance audit in accordance with Section 5.1(b) of Schedule 4, except to the extent that any item identified in the maintenance audit has been or will be remediated by GenCo prior to the Buy-Out Date or is the subject of

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insurance proceeds payable as set forth above, (ii) in respect of any item identified in the environmental audit in accordance with Section 6.1(b) of Schedule 4, and (iii) in respect of any item requiring remediation due to the occurrence of a Specified POE Action or Inaction, Political Force Majeure Event, Change in Law, Raw Water Force Majeure Event or Change in Raw Water Quality; Cleanup

means any reduction to the purchase price following an environmental audit in accordance with Section 6.1(b) of Schedule 4, except to the extent that any item identified in the environmental audit has been or will be remediated by GenCo prior to the Buy-Out Date or is the subject of insurance proceeds payable (or that would have been payable if GenCo had performed its obligations with respect to insurance under the Project Agreements) as set forth above; provided, however, for the avoidance of doubt, there shall be no such reduction for (i) any Specified Environmental/Archaeological Conditions (as defined in the Power Purchase Agreement) or Pass-Through Environmental/Archaeological Conditions; and (ii) any item requiring remediation due to the occurrence of a Specified POE Action or Inaction, Pass-Through Environmental/Archaeolgical Condition, Political Force Majeure Event, Change in Law, Raw Water Force Majeure Event or Change in Raw Water Quality;

CDF

means the remaining amount that the Sponsor HoldCo has not contributed towards the fulfillment of the Community Development Fund obligation as set forth in Article 6 of the Sponsor Support Agreement and the remaining amount that GenCo has not contributed as set forth in Section 10.1 of the Implementation Agreement; provided, however the amount of the CDF shall be zero if the Implementation Agreement has been terminated due to a GOK Event of Default (as defined in the Implementation Agreement) prior to the sixth (6th) anniversary of the Transfer Date.

RsrvAccts

means any money in Debt Service Reserve Account, Working Capital Amount, Major Maintenance Reserve Fund and any other reserve that was funded by payments made by NKEC under the Power Purchase Agreement that is not applied to reduce amounts owed in accordance with the Financing Documents.

GOKAF

means all Permitted GOK Advisor Fees that have been paid by or on behalf of GenCo and have not been reimbursed as part of the tariff payments pursuant to Schedule 1 (Tariff) of the Power Purchase Agreement (excluding any amounts included in any other variable defined in this Section 2.1).

AmountsOutstanding

means the net amounts (without any double-counting of deductions) due and payable to GenCo or any other party under the Project Agreements that have not yet been paid to the party to which it is due as of the BuyOut Date.

PreCODEquity

means the amount of Tariff Equity (as defined in the Power Purchase Agreement), but with a return thereon calculated using the annual Equity Rate of Return (as defined in the Power Purchase Agreement) from the start of the Construction Period until the date of termination in

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accordance with a Pass-Through Environmental/Archaeological Condition pursuant to Article 15 (Environmental Remediation) of the Power Purchase Agreement. 2.2

Impact of Breach

Any compensation amount calculated under this Schedule 3 shall be calculated to exclude the effects of a breach of a Project Agreement by GOK, KESCO, or any Specified POE in the event of payment of the GOK Default Purchase Price and the effects of a breach of a Project Agreement by GenCo in the event of payment of the GenCo Default Purchase Price.

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Schedule 3 - 4

Schedule 4 Buy-Out Arrangements

Article 1 Introduction 1.1

Introduction

This Schedule 4 outlines the procedures to be applicable when the KRPP Facility is transferred to GOK pursuant to Article 20 of the Agreement. Article 2 Definitions 2.1

Definitions

Capitalized terms used but not defined in this Schedule 4 shall have the meanings given to them in the body of the Agreement. Wherever the following terms appear in this Schedule 4, they shall have the meanings stated below. “Accountants” – Has the meaning given thereto in the Power Purchase Agreement. “Assigned Contracts” – Has the meaning set forth in Section 3.1(b). “Buy-Out Closing” – Has the meaning given thereto in Section 8.1. “Buy-Out Date” – The Day that occurs sixty (60) Days after the date of termination, or if such Day is not a Business Day, on the next succeeding Business Day, or such earlier or later date as may be agreed between GenCo and GOK. “Buy-Out Price” – The amount payable by GOK in respect of the Buy-Out as certified by the Accountants in accordance with Article 7 and being: (a)

the GenCo Default Purchase Price, if the KRPP Facility is being transferred pursuant to Section 20.1 of the Agreement;

(b)

the GOK Default Purchase Price, if the KRPP Facility is being transferred pursuant to Sections 20.2 or Section 20.3 of the Agreement;

(c)

the Other Force Majeure Purchase Price, if the KRPP Facility is being transferred pursuant to Section 20.4 of the Agreement; or

(d)

the Environmental Termination Purchase Price, if the KRPP Facility is being transferred pursuant to Section 20.5 of the Agreement.

“Outstanding Insurance Claims” – Claims outstanding and unpaid as of the Buy-Out Date, and claims that GenCo is entitled to make but has not as of the Buy-Out Date made, under any insurance policies relating to the KRPP Facility, in each case insofar as such claims relate to physical Loss or damage occurring prior to the Buy-Out Date save where the Loss or damage has been remedied prior to the Buy-Out Date at the cost of GenCo.

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Article 3 Scope of Buy-Out 3.1

Scope of the Sale

(a)

On the Buy-Out Date, GenCo shall assign to GOK or its designee all its rights, title and interest to the following and GOK or its designee shall thereafter have the rights to the KRPP Facility and the following:

(b)

(i)

the KRPP Facility;

(ii)

all books, records, and other documents relating exclusively to the KRPP Facility;

(iii)

the Site; and

(iv)

any equipment, machinery, materials, real property, interests in real property, intellectual property, interests in intellectual property, or other property of any kind that are owned or leased by GenCo or in which GenCo otherwise holds a legal or beneficial interest and are used by GenCo to generate electric energy, undertake the interconnection works, or to perform its obligations under the Project Agreements.

In addition, in the event that there occurs a Buy-Out under this Schedule 4, then on the Buy-Out Date GenCo shall surrender, assign, novate or transfer (consistent with Section 4.2) to GOK or its designee all its right, title, and interest in and to the following contracts (the “Assigned Contracts”): (i)

the Construction/Maintenance Contracts other than the O&M Contract and the Administrative Services Agreement;

(ii)

the Project Agreements other than the Power Purchase Agreement, Implementation Agreement, Sponsor Support Agreement, Government Guarantee, and the Ultimate Sponsor Guarantee (to the extent any such agreement is still in force and effect);

(iii)

any contract and Consents for the provision of Fuel Oil, Ammonia, or Limestone (each as defined in the Power Purchase Agreement) to GenCo procured in accordance with the terms of the Power Purchase Agreement,

(iv)

all other contracts relating to GenCo’s operation and maintenance of the Kosovo e Re Project and reasonably required for the future operation and maintenance of the KRPP Facility, and procured in accordance with the terms of the Power Purchase Agreement; provided, however, in the event the Buy-Out arises as a result of any default by GenCo, the Ultimate Sponsor, or the Sponsor HoldCo under any Project Agreement, GOK shall have the right to refuse assignment of any such agreement,

in each case, from and after the Buy-Out Date, pursuant to reasonable and customary novation agreements among the Parties and the respective parties to the Project Agreements. (c)

GenCo shall not be required to surrender or transfer the following: (i)

the O&M Contract;

(ii)

the Administrative Services Agreement;

(iii)

cash in hand and in any account or depository maintained by it or on its behalf (or by the Lenders or on their behalf);

(iv)

the trade and book debts and receivables accruing to GenCo prior to, but unpaid at, the Buy-Out Date; and

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(v)

the benefit of claims under warranties, guarantees, conditions, indemnities, and insurance policies howsoever arising out of any events occurring or circumstances arising prior to the Buy-Out Date, other than any Outstanding Insurance Claims and any outstanding claims under warranties, guarantees, conditions, and indemnities to the extent that such claims relate to physical Loss or damage to or defects in the KRPP Facility occurring prior to but remaining unpaid as of the Buy-Out Date. Article 4 Terms and Conditions of Buy-Out

4.1

Warranties

No warranties (express or implied) as to the condition of the property and assets referred to in Section 3.1 shall be given at the Buy-Out Date; provided, however, that, without prejudice to the generality of Section 3.1, GenCo agrees to assign to GOK at Buy-Out Closing the benefit of any warranties given by third parties in respect of any property or assets to be transferred that are valid as of the Day after the Buy-Out Date to the extent that the provider of such warranty either agrees to such assignment or is legally obligated to accept such assignment, and to the extent that such warranties are not excluded under the provisions of Section 3.1(c)(v). 4.2

Apportionment of Liabilities

(a)

Except as otherwise provided in the Agreement, GenCo will be responsible for: (i)

all liabilities and obligations in relation to the KRPP Facility; and

(ii)

the performance of all obligations under agreements with third parties in relation to the KRPP Facility

that have accrued prior to the Buy-Out Date. (b)

Except as otherwise provided in the Agreement, GOK shall be responsible for: (i)

all liabilities and obligations in relation to the operation of the KRPP Facility; and

(ii)

all liabilities and obligations in relation to all agreements with third parties that have been transferred pursuant to this Schedule 4,

that have accrued from and after the Buy-Out Date. Following the Buy-Out Date, each of GenCo and GOK shall indemnify and keep the other fully and effectually indemnified against all liabilities, demands, claims, actions, proceedings, damages, costs, and expenses arising as a result of all such liabilities and obligations that are its respective responsibility under Section 4.2(a) and Section 4.2(b), but in no event shall GOK or GenCo or any GOK Party or any GenCo Party be indemnified to the extent that any Losses were caused by their own negligence or willful misconduct or their breach of the terms of this Agreement or any Project Agreement, and in no event shall GOK or GenCo or any GOK Party or any GenCo Party be indemnified for any Loss to the extent that such Party has already received insurance proceeds or proceeds from a third party therefor or received or been entitled to payments from GOK or a Specified POE under another Project Agreement therefor. The indemnity obligations of any Party hereunder shall be reduced in the amount of, and with respect to, any insurance recoveries or other third-party recoveries by an indemnified Party for Losses indemnified hereunder. Should a Party make payments pursuant to its indemnification obligations hereunder with respect to amounts for which an insurer or other third party may be legally responsible, such Party shall be deemed, to the extent necessary, the indemnified Party’s equitable subrogee with respect to, and/or contractual or legal assignee of, the right to pursue recovery of such amounts from such insurer or third party, to the extent of such rights.

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For the avoidance of doubt, the terms of this Agreement shall not be construed to reduce, impair, negate, modify, or replace the terms of any applicable insurance policy that also provides coverage for indemnified Losses. Notwithstanding the foregoing, the applicability of any insurance policy or an insurer’s failure to perform its obligations with respect to indemnified Loss shall not excuse, delay, or reduce the indemnity obligations of the indemnifying Party in any respect or excuse nonperformance of such Party’s indemnification obligations; however, in determining the respective obligations as between the indemnifying Party and any insurer, subsequent to a Party’s payments pursuant to its indemnity obligation hereunder, and in connection with any dispute between such indemnifying Party and such insurer as to the insurer’s obligation to reimburse the indemnifying Party or otherwise provide coverage for indemnified Loss, any applicable insurance (with the exception of any applicable deductibles or retentions) shall be deemed primary to the indemnity obligations set forth herein, and the indemnity obligations set forth herein shall be deemed specifically excess to any such applicable insurance, but only to the extent of any amounts actually paid to the insured under such insurance, and with the further understanding that the indemnifying Party will in all events be responsible for indemnified Loss, to the extent of its indemnification obligations herein, within any applicable deductibles or retentions set forth in any such applicable insurance. (c)

4.3

Except as provided in the Project Agreements, GenCo shall have no responsibility for, and shall not be apportioned any liabilities relating to, any Environmental/Archaeological Conditions existing at the Site or otherwise in relation to the Kosovo e Re Project on or prior to the Transfer Date, including the Specified Environmental/Archaeological Conditions or Pass-Through Environmental/Archaeological Conditions (as each are defined in the Power Purchase Agreement), it being acknowledged and agreed that: (i)

any Environmental/Archaeological Condition discovered at the Site prior to the date eighteen (18) Months after the Commercial Operations Date shall be presumed to relate to conditions existing at or before the Transfer Date, and not to relate to GenCo’s activities thereon, absent evidence that such Environmental/Archaeological Condition was caused by GenCo or any Person under GenCo’s control;

(ii)

notwithstanding anything to the contrary in Section 4.2(c)(i), following the Commercial Operations Date, any Environmental Condition at the GenCo Exclusive Ash Landfill, the GenCo Exclusive Gypsum Landfill, or any other landfill maintained by GenCo, if any, that is discovered and relates directly to the wastes being disposed of by GenCo thereon, shall be presumed to relate to GenCo’s activities thereon, and not to relate to conditions existing at or before the Transfer Date; and

(iii)

notwithstanding any other provision to the contrary in any of the Project Agreements, (A) under no circumstance shall GenCo or any Person under GenCo’s control be presumed at any time to have caused any Archaeological Conditions at the Site (including the GenCo Exclusive Ash Landfill, the GenCo Exclusive Gypsum Landfill, or any other landfill maintained by GenCo), and (B) any such Archaeological Conditions shall be deemed to be a Pass-Through Environmental/Archeological Condition regardless of the date on which any such condition is discovered.

Encumbrances

Any transfer to GOK (or its designee) of the KRPP Facility shall be free and clear of all Encumbrances (other than Permitted Encumbrances (GenCo)), including Encumbrances imposed in connection with the Lender’s security claims with respect to the KRPP Facility.

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4.4

Closing Modalities

GenCo and GOK agree to effectuate the transfer or surrender of GenCo’s right, title, and interest in and to the KRPP Facility and the payment of the Buy-Out Price so as to minimize the transaction costs (including the costs of the Parties and third-party transaction costs) of such transfer or surrender. Article 5 Maintenance Audit 5.1

Maintenance Audit

(a)

Within thirty (30) Days after termination of the Agreement, GenCo shall provide to GOK a report by a reputable and qualified engineer or engineering consulting firm reasonably acceptable to both Parties (and, to the extent the Parties cannot agree, then an expert appointed by the ICC International Centre for Expertise for ad hoc proceedings in accordance with the ICC Rules for Expertise for ad hoc proceedings) either: (i)

certifying that, as of the date of the report, the KRPP Facility is in the condition and state of repair and maintenance required by the Project Agreements (including an adequate spare parts inventory), together with such inspection reports, tests and other data reasonably adequate to substantiate the conclusions reached in such report; or

(ii)

if such is not the case, providing a list of any discrepancies and/or deficiencies in such condition (including any major damage or destruction by casualty) and a remediation plan and a cost estimate of the work required to remedy such discrepancies and deficiencies as soon as reasonably practicable.

(b)

If such report includes a remediation plan, the costs thereof (as set forth in the consulting firm’s report, as may be updated) for any remediation that is required to be performed by GenCo under the Project Agreements but will not be performed by GenCo prior to the Buy-Out Date, shall be deducted from any payments due to GenCo hereunder as calculated in Schedule 3.

(c)

The reasonable costs and expenses of the maintenance audit shall be borne as follows: (i)

if the KRPP Facility is being transferred pursuant to Section 20.1 of the Agreement, by GenCo;

(ii)

if the KRPP Facility is being transferred pursuant to Section 20.2 or Section 20.3 of the Agreement, by GOK; and

(iii)

if the KRPP Facility is being transferred pursuant to Section 20.4 or Section 20.5 of the Agreement or otherwise, equally between the Parties. Article 6 Environmental Audit

6.1

Environmental Audit

(a)

Without limiting GOK’s right to require an audit under Section 20.7 of this Agreement, within thirty (30) Days after termination of the Agreement GenCo shall provide to GOK an inspection report by a reputable environmental consulting firm reasonably satisfactory to both Parties (and, to the extent the Parties cannot agree, then an expert appointed by the ICC International Centre for Expertise for ad hoc proceedings in accordance with the ICC Rules for Expertise for ad hoc proceedings) either: (i)

certifying to GOK that, as of the date of the report, its investigation has revealed no Environmental/Archaeological Conditions present on, in, or under the KRPP Facility, or

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(ii)

if such firm cannot so certify due to the presence of Environmental/Archaeological Conditions, providing a list identifying the Environmental/Archaeological Conditions present and the extent of the contamination in reasonable detail and the estimated costs to effectively remediate such contamination and providing a remedial response plan and covering such other environmental matters as GOK shall reasonably request in writing;

provided, however, the environmental inspection report shall not include any Specified Environmental/Archaeological Conditions (as defined in the Power Purchase Agreement). (b)

If the consulting firm’s report includes a remedial response plan, the costs thereof (as set forth in the consulting firm’s report, as may be updated) for any remediation that is required to be performed by GenCo under the Project Agreements but will not be performed by GenCo prior to the Buy-Out Date, shall be deducted from any payments due to GenCo hereunder as calculated in Schedule 3; provided, however, for the avoidance of doubt, there shall be no such deduction for (i) any Specified Environmental/Archaeological Conditions (as defined in the Power Purchase Agreement) or Pass-Through Environmental/Archaeological Conditions, or (ii) any item requiring remediation due to the occurrence of a a Specified POE Action or Inaction, Political Force Majeure Event, Change in Law, Raw Water Force Majeure Event or Change in Raw Water Quality. It is understood and agreed that this Section 6.1(b) shall not diminish in any manner whatsoever GenCo’s right to indemnification under any of the Project Agreements in relation to environmental costs and liabilities.

(c)

The reasonable costs and expenses of the environmental audit shall be borne as follows: (i)

if the KRPP Facility is being transferred pursuant to Section 20.1 of the Agreement, by GenCo;

(ii)

if the KRPP Facility is being transferred pursuant to Section 20.2 or Section 20.3 of the Agreement, by GOK; and

(iii)

if the KRPP Facility is being transferred pursuant to Section 20.4 or Section 20.5 of the Agreement or otherwise, equally between the Parties. Article 7 Calculation and Verification of Buy-Out Price; Set-Off

7.1

Calculation and Verification of Buy-Out Price

(a)

GenCo shall submit a statement to the Accountants within fifteen (15) Days following the termination setting out a provisional determination of the Buy-Out Price due in respect of the Buy-Out.

(b)

The Accountants shall be responsible for reviewing GenCo’s provisional determination of the Buy-Out Price and shall, within fifteen (15) Days after receiving such determination or such longer period of time as the Accountants reasonably require, issue a certificate to GenCo (with a copy to GOK) confirming either:

(c)

(i)

that the Buy-Out Price set out therein has been properly determined; or

(ii)

if, in their opinion, it has not been properly determined, the Accountants’ own determination of the Buy-Out Price.

The Accountants shall act as experts and not as arbitrators. The reasonable costs and expenses of the Accountants shall be borne as follows: (i)

if the KRPP Facility is being transferred pursuant to Section 20.1 of the Agreement, by GenCo;

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(ii)

if the KRPP Facility is being transferred pursuant to Sections 20.2 or Section 20.3 of the Agreement, by GOK; and

(iii)

if the KRPP Facility is being transferred pursuant to Section 20.4 or Section 20.5 of the Agreement, equally between the Parties.

(d)

The Accountants shall be entitled to have access to GenCo’s premises and to GenCo’s books, records, and other documents for the purposes of carrying out their review, and each of the Parties shall promptly on request supply to the Accountants all such documents and information as the Accountants may require for the purposes of their functions pursuant to this Article 7.

7.2

Set-Off of Other Amounts Owed

(a)

If GenCo, Sponsor HoldCo, or the Ultimate Sponsor fails to pay any amount that it is obligated to pay to GOK or any Specified POE under a Project Agreement, such amount shall be deducted from the relevant Buy-Out Price, including any amounts due under Section 3.3.7 (Close-Out Reconciliation Process) of Schedule 1 (Tariff) of the Power Purchase Agreement or Section 3.5 (Close-Out Reconciliation Process) of Schedule 1 (Methodology for Establishing the Lignite Price; Lignite Quantities) of the Lignite Supply Agreement.

(b)

If GOK or any Specified POE fails to pay any amount that it is obligated to pay to GenCo, Sponsor HoldCo or Ultimate Sponsor under a Project Agreement, such amount shall be added to the relevant Buy-Out Price, including any amounts due under Section 3.3.7 (Close-Out Reconciliation Process) of Schedule 1 (Tariff) of the Power Purchase Agreement or Section 3.5 (Close-Out Reconciliation Process) of Schedule 1 (Methodology for Establishing the Lignite Price; Lignite Quantities) of the Lignite Supply Agreement. Article 8 Buy-Out Closing

8.1

Closing

Closing of the sale and transfer of the KRPP Facility (the “Buy-Out Closing”) shall take place on the Buy-Out Date at such place in Kosovo and at such time as GOK may reasonably notify GenCo, such notice to be given not later than 10:00 a.m. on the fifth (5th) Business Day prior to the Buy-Out Date. 8.2

Deliveries

On Buy-Out Closing, GenCo shall deliver or make available to GOK or its designee: (a)

such conveyances, transfers, notarial deeds, assignments, novations, and other documents (duly sealed or signed as a deed by GenCo and, if so reasonably required by GenCo, GOK) together with the related documents of title, as GOK may reasonably require to give effect to the requirements of Section 3.1 and vest in GOK the full benefit of the property and assets therein referred to, and shall permit GOK to enter into and take possession of the KRPP Facility; and

(b)

possession of the KRPP Facility.

8.3

Payment of Buy-Out Price

(a)

Subject to compliance by GenCo with the provisions of Section 8.2, GOK shall cause the BuyOut Price to be paid in Euros to any bank account nominated by GenCo (in Kosovo or offshore) at least three (3) Business Days prior to the proposed date for the Buy-Out Closing; provided, however, GOK may on behalf of GenCo deliver any portion of the Buy-Out Price up to an amount equal to any UnpaidDebt and/or BreakFees as calculated under Schedule 3 directly to any Lender or other party owed such amount.

(b)

If any Tax is imposed on or withheld from payments to be made by GOK to GenCo hereunder in connection with a transfer to GOK of the KRPP Facility, then such payments to GenCo shall be

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increased by an amount such that GenCo will receive the same amount which it would in exchange for the KRPP Facility had no such Tax been imposed or withheld.

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Schedule 5 Form of Lease Agreement

CONNECTION AREA LEASE AGREEMENT

IN RELATION TO THE KOSOVO E RE PROJECT

THIS CONNECTION AREA LEASE AGREEMENT (this “Agreement”) is made as of ___________, 20__ (the “Execution Date”) by and between: (1)

The Republic of Kosovo acting through the Ministry of Economic Development (“GOK”); and

(2)

[______] (“GenCo”), a limited liability company organized under the laws of Kosovo, with its principal office at Garibaldi Hy., Nr. 3, 10000 Pristina, Kosovo.

Each of GOK and GenCo is hereinafter referred to as a “Party” and, collectively, as the “Parties.” RECITALS A.

GOK intends as a matter of policy to involve the private sector in a lignite to electricity infrastructure project that includes the development, design, construction, financing, ownership, operation and maintenance of the KRPP Facility and rehabilitation of the Site (as hereinafter defined) by GenCo (the “Kosovo e Re Project”);

B.

GOK is anticipated to become the owner of the real property and rights in real property described in Annex 1 or otherwise to be identified upon GOK’s acquisition pursuant to Section 3.5 of the Implementation Agreement (the “Initial Property”);

C.

GOK may, from time to time, pursuant to Section 3.5 of the Implementation Agreement, acquire additional real property or rights in real property (the “Additional Property”) required by GenCo for purposes of undertaking the GenCo Connection Works; and

D.

GOK to desires to lease all of the Initial Property and the Additional Property to GenCo, and GenCo desires to lease all of the Initial Property and the Additional Property from GOK, subject to the covenants and powers implied under the Laws of Kosovo and the covenants and conditions stipulated below;

NOW, THEREFORE, for and in consideration of the promises and mutual covenants contained herein, and intending to be legally bound, the Parties hereby agree as follows: Article 1 Lease; Rent 1.1

Lease; Rent

In consideration of the payment of rent of one Euro (€1) annually by GenCo to GOK (the “Rent”), GOK hereby agrees to lease to GenCo and deliver possession of the Initial Property to be acquired pursuant to the terms of the Implementation Agreement and the Additional Property to be so acquired from the date of such acquisition and continuing for the Term. 1.2

Term of Lease

This Agreement shall remain in full force and effect from and after the Execution Date until six (6) Months following the permanent decommissioning of the connection assets thereon (such period, the “Term”).

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1.3

Acknowledgment of First Year’s Rent; Timing of Rent Payments

(a)

On or before the execution of this Agreement, Rent for the first Year has been paid by GenCo to GOK, receipt of which is hereby acknowledged by GOK by execution of this Agreement.

(b)

Rent for the subsequent Years shall be payable on every anniversary of this Agreement and may be paid in advance. Article 2 Covenants of GenCo

2.1

Covenants of GenCo

GenCo hereby covenants with GOK as follows: (a)

to pay the annual Rent hereby reserved;

(b)

to pay all taxes, assessments, impositions, and outgoings whether imposed, charged, taxed, and assessed now or hereafter that are payable in respect of the Initial Property and the Additional Property or on the improvements erected thereon, as the case may be;

(c)

to use the Initial Property and the Additional Property for the purposes of undertaking the GenCo Connection Works, as well as other usages ancillary thereto and otherwise related to the Kosovo e Re Project, including:

(d)

(i)

demolishing any existing buildings and other utilities;

(ii)

vacating the Initial Property and the Additional Property from crop and other vegetation, cattle, and other animals;

(iii)

storage of building equipment and storage of gas, explosives, and other Hazardous Materials, as permitted by the Laws of Kosovo;

(iv)

construction of buildings, roads, pylons, storage areas, and other permanent or temporary facilities;

(v)

transportation of construction equipment, workers, and materials;

(vi)

excavation, backfill, compaction, blasting, use of hydraulic breakers, sheetpiling, trenching, drainage works, leveling, concrete works, stringing, impounding, testing, erection works, use of welding equipment, cranes, pneumatic and hydraulic tools;

(vii)

the energization of the equipment, cranes, pneumatic and hydraulic tools,

(viii)

the energization of the electrical facilities;

(ix)

to permit the effects of Sections (i) through (viii);

(x)

the right to use or dispose of any water, rock, gravel, minerals, timber, clay, murram, sand, or stone, or any other natural resources, in each case as permitted by the Laws of Kosovo; and

(xi)

any other use that is permitted by the terms of the Generation License or the Laws of Kosovo;

except as described by Section 2.1(b), to maintain and keep the Initial Property and the Additional Property and all improvements and developments thereon, as well as any buildings and other utilities (if any) remaining after the construction under Section 2.1(b) in good and habitable condition, and to hand over the Initial Property and the Additional Property at the end of the Term in tenantable condition, reasonable wear and tear excepted but without the need to remove any building or permanent structures or facilities located thereon;

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(e)

to comply with the Laws of Kosovo with respect to its use of the Initial Property and Additional Property; and

(f)

to allow holders of adjoining land to connect to utilities on the Initial Property and the Additional Property for the development and enjoyment of such land, to the extent that such connection, use or enjoyment by adjoining land will not or it is reasonably likely to not affect the use or realization of rights and benefits or the costs or liabilities of GenCo with respect to the Initial Property or the Additional Property (including the increase of risk or cost or liability to GenCo or any assignee of the rights under this Agreement relating to such owners’ access) described in Section 2.1(b). Article 3 Covenants of GOK

3.1

Covenant of GOK

GOK hereby covenants with GenCo that GenCo shall, for so long as it pays the Rent hereby reserved and performs and observes the covenants and stipulations herein contained, hold, peaceably and quietly, and enjoy the Initial Property and the Additional Property during the Term without any interruption, disturbance, or molestation by GOK or any Person rightfully claiming under GOK. Article 4 Right of Re-entry 4.1

Right of Re-entry

(a)

Subject to Section 4.1(b), in the event that either: (i)

the Rent or other payment hereunder or any part thereof shall be in arrears for a period of ninety (90) Days after the due date therefore; or

(ii)

any breach, non-performance, or non-observance by GenCo of any of the covenants contained in this Agreement and on its part to be performed and observed shall have occurred,

then GOK may at any time re-enter into and upon the Initial Property and the Additional Property or any part thereof and the Term hereby created shall terminate. (b)

The right to terminate this lease and re-enter may only be exercised by GOK if GOK: (i)

has first served a formal notice on GenCo notifying GenCo of any of the breaches specified in Section 4.1(a)(i) and 4.1(a)(ii), and requiring GenCo to remedy such breach, and GenCo has failed to remedy such breach within ninety (90) Days after the date of service of such notice, which period shall be extended for up to an additional thirty (30) Days until such default is cured so long as GenCo commences actions to cure such default and thereafter continuously and diligently pursues the cure of such default; and

(ii)

concurrently terminates the Implementation Agreement. Article 5 Indemnification

5.1

Indemnification

5.1.1

GOK’s Indemnification

Except as specifically provided below or elsewhere in this Agreement or the Project Agreements, GOK shall indemnify and defend GenCo and any GenCo Party from, at all times after the Effective Date, any and all Losses incurred or required to be paid, directly or indirectly, by, or sought to be imposed upon, GenCo or any GenCo Party: US-DOCS\86271257.15

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(a)

for personal injury or death to persons or damage to property arising out of any negligence or willful misconduct by GOK or any GOK Party in connection with this Agreement;

(b)

in relation to any claim or action by a third party resulting from, arising out of, or related to GOK’s violation of any Law of Kosovo;

(c)

in relation to any claim or action by a third party resulting from, arising out of, or related to GOK’s breach or default of any of its covenants or representations and warranties under this Agreement;

(d)

for any Tax obligations payable by GOK under Article 1 and Article 5;

(e)

for any liabilities arising out of or in connection with any contracts to which GOK is a party (other than any contracts to which GenCo is also a party) that relate to the ownership or maintenance of the Initial Property or the Additional Property prior to the Transfer Date (or, if GenCo acquires possession of any such site following the Transfer Date, the date GenCo acquires possession of such site);

(f)

resulting from, related to, or arising out of, any Environmental/Archaeological Condition in relation to the Initial Property or the Additional Property existing at or before the Transfer Date, except to the extent that such liabilities: (i)

result from, relate to, or arise out of any action of GenCo or any Affiliate or Person under GenCo’s control, including in relation to the commencement (including before the Transfer Date, if any) of GenCo’s activities at the Initial Property or the Additional Property; or

(ii)

are indemnified by GOK pursuant to Section 8.2 (Indemnification for Environmental Standards) of the Implementation Agreement or relate to costs or Losses that are payable or actually paid to GenCo in accordance with Article 15 (Environmental Remediation) of the Power Purchase Agreement; and

(g)

resulting from, related to, or arising out of, any Environmental/Archaeological Condition existing on the Initial Property or the Additional Property after the Transfer Date, including any such conditions resulting from the action or inaction of GOK or any Specified POE, except to the extent that such liabilities result from or relate to any action of GenCo or any Person under GenCo’s control or of a third party to the extent that GenCo, acting in accordance with Prudent Utility Practices, could have prevented the Environmental/Archaeological Condition caused by such third party.

5.1.2

GenCo’s Indemnification

Except as specifically provided below or elsewhere in this Agreement or the Project Agreements, GenCo shall indemnify and defend GOK from, at all times after the Effective Date, any and all Losses incurred or required to be paid, directly or indirectly, by, or sought to be imposed upon, GOK or any GOK Party: (a)

for personal injury or death to persons or damage to property arising out of any negligence or willful misconduct by GenCo or any GenCo Party in connection with this Agreement;

(b)

in relation to any claim or action by a third party resulting from, arising out of, or related to GenCo’s violation of any Law of Kosovo;

(c)

in relation to any claim or action by a third party resulting from, arising out of, or related to GenCo’s breach or default of any of its covenants or representations and warranties under this Agreement;

(d)

for any Tax obligations payable by GenCo under Article 5;

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(e)

resulting from, related to, or arising out of, any Environmental/Archaeological Condition in relation to the Initial Property or the Additional Property coming into existence after the Transfer Date (or, if GenCo acquires possession of any such site following the Transfer Date, the date GenCo acquires possession of such site), to the extent such Environmental/Archaeological Condition is caused by GenCo or any Person under GenCo’s control or a third party to the extent that GenCo, acting in accordance with Prudent Utility Practices, could have prevented the Environmental/Archaeological Condition caused by such third party, and except to the extent that such liabilities result from any Environmental/Archaeological Condition that existed at or before the Transfer Date or result from or relate to any action or inaction of any Specified POE or GOK.

5.1.3

Joint Liability

In the event injury or damage results from the joint or concurrent negligence or willful misconduct of the Parties, each Party shall be liable under this Article 5 in proportion to its relative degree of fault.

5.1.4

Presumptions as to Environmental/Archaeological Conditions

(a)

The Parties acknowledge and agree that any Environmental/Archaeological Condition discovered at the Site prior to the date eighteen (18) Months after the Commercial Operations Date shall be presumed to relate to conditions existing at or before the Transfer Date, and not to relate to GenCo’s activities thereon, absent evidence that such Environmental/Archaeological Condition was caused by GenCo or any Person under GenCo’s control.

(b)

Notwithstanding anything to the contrary in Section 5.1.4(a), the Parties acknowledge and agree that, following the Commercial Operations Date, any Environmental Condition at the GenCo Exclusive Ash Landfill, the GenCo Exclusive Gypsum Landfill, or any other landfill maintained by GenCo, if any, that is discovered and relates directly to the wastes being disposed of by GenCo thereon shall be presumed to relate to GenCo’s activities thereon, and not to relate to conditions existing at or before the Transfer Date.

(c)

Notwithstanding any other provision to the contrary in any of the Project Agreements, (i) under no circumstance shall GenCo or any Person under GenCo’s control be presumed at any time to have caused any Archeological Conditions at the Site, and (ii) any such Archeological Conditions shall be deemed to be a Pass-Through Environmental/Archeological Condition regardless of the date on which any such condition is discovered.

5.2

Limitation on Indemnification

Notwithstanding any other provision of this Agreement, in no event shall GOK or GenCo or any GOK Party or any GenCo Party be indemnified to the extent that any Losses were caused by their own negligence or willful misconduct or their breach of the terms of this Agreement or any Project Agreement, and in no event shall GOK or GenCo or any GOK Party or any GenCo Party be indemnified for any Loss to the extent that such Party has already received insurance proceeds or proceeds from a third party therefor or received or been entitled to payments from GOK or a Specified POE under another Project Agreement therefor. The indemnity obligations of any Party hereunder shall be reduced in the amount of, and with respect to, any insurance recoveries or other third-party recoveries by an indemnified Party for Losses indemnified hereunder. Should a Party make payments pursuant to its indemnification obligations hereunder with respect to amounts for which an insurer or other third party may be legally responsible, such Party shall be deemed, to the extent necessary, the indemnified Party’s equitable subrogee with respect to, and/or contractual or legal assignee of, the right to pursue recovery of such amounts from such insurer or third party, to the extent of such rights.

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For the avoidance of doubt, the terms of this Agreement shall not be construed to reduce, impair, negate, modify, or replace the terms of any applicable insurance policy that also provides coverage for indemnified Losses. Notwithstanding the foregoing, the applicability of any insurance policy or an insurer’s failure to perform its obligations with respect to indemnified Loss shall not excuse, delay, or reduce the indemnity obligations of the indemnifying Party in any respect or excuse nonperformance of such Party’s indemnification obligations; however, in determining the respective obligations as between the indemnifying Party and any insurer, subsequent to a Party’s payments pursuant to its indemnity obligation hereunder, and in connection with any dispute between such indemnifying Party and such insurer as to the insurer’s obligation to reimburse the indemnifying Party or otherwise provide coverage for indemnified Loss, any applicable insurance (with the exception of any applicable deductibles or retentions) shall be deemed primary to the indemnity obligations set forth herein, and the indemnity obligations set forth herein shall be deemed specifically excess to any such applicable insurance, but only to the extent of any amounts actually paid to the insured under such insurance, and with the further understanding that the indemnifying Party will in all events be responsible for indemnified Loss, to the extent of its indemnification obligations herein, within any applicable deductibles or retentions set forth in any such applicable insurance. 5.3

Assertion of Claims to Exceed Minimum Indemnification Amount

Each Party shall be solely liable, and shall not be entitled to assert any claim for indemnification against the other Party under this Article 5, for any Loss that would otherwise be the subject of indemnification under this Agreement, until, as applicable, (i) all Losses of the GenCo Parties or any Losses of the Sponsor HoldCo or the Sponsor HoldCo Parties and the Ultimate Sponsor or the Ultimate Sponsor Parties, in the aggregate, under all of the Project Agreements exceed the Indemnity Basket applicable thereto or (ii) all Losses of GOK or the GOK Parties and NKEC or the NKEC Parties and KEK Generation or the KEK Generation Parties and KEK Mining or KEK Mining Parties and the Water Supplier or the Water Supplier Parties and any Specified POEs or its related parties, in the aggregate, under all of the Project Agreements exceed the Indemnity Basket applicable thereto. 5.4

Defense of Claims

5.4.1

Notice of Claims

(a)

A Party shall promptly notify the other Party, in writing, of any Loss or proceeding in respect of which such notifying Party is or may be entitled to indemnification pursuant to this Article 5 (an “Indemnification Notice”).

(b)

The delay or failure of such indemnified Party to provide an Indemnification Notice required pursuant to this Section 5.4 to the other Party shall not release the indemnifying Party from any indemnification obligation that it may have to such indemnified Party except to the extent that such failure or delay materially and adversely affected the indemnifying Party’s ability to defend such action or increased the amount of the Loss.

(c)

The Party to whom the Indemnification Notice is sent shall acknowledge that Indemnification Notice, in writing, within seven (7) Business Days after receipt of the Indemnification Notice (the “Indemnification Acknowledgement”).

5.4.2

Defense of Claims

(a)

Following receipt of an Indemnification Notice, and provided the Indemnification Acknowledgement confirms its obligation to indemnify an indemnified Party to the extent required pursuant to this Article 5, the indemnifying Party shall be entitled, at its option, to assume and control the defense of such claim, action, suit, or proceeding at its expense with counsel of its selection, subject to the prior approval of the indemnified Party, with such approval not to be unreasonably withheld, conditioned, delayed or denied. Should the indemnifying Party

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elect to assume and control the defense of such claim, action, suit, or proceeding, it shall notify the indemnified Party of that election in the Indemnification Acknowledgement. (b)

Unless and until the indemnifying Party acknowledges its obligation to indemnify the indemnified Party to the extent required pursuant to this Article 5 in the Indemnification Acknowledgement, and assumes control of the defense of a claim, suit, action, or proceeding, the indemnified Party shall have the right, but not the obligation, to contest, defend, and litigate, with counsel of its own selection, any claim, action, suit, or proceeding by any third party alleged or asserted against such Party in respect of, resulting from, related to, or arising out of any matter for which it is entitled to be indemnified hereunder, and the documented, reasonable, and prudent costs and expenses thereof shall be subject to the indemnification obligations of, and promptly reimbursed by, the indemnifying Party hereunder.

(c)

Neither the indemnifying Party nor the indemnified Party shall be entitled to settle any such claim, action, suit, or proceeding without the prior consent of the other (such consent not to be unreasonably withheld, conditioned, delayed, or denied); provided, however, that after agreeing in writing to indemnify the indemnified Party, if the indemnifying Party obtains both a full and complete resolution of matters involving the indemnified Party (including, without limitation, a full release of the indemnified Party from all further liability or responsibility with respect to any asserted claims) and any necessary court approvals of a settlement, the indemnifying Party may settle any claim without the consent of the indemnified Party.

(d)

Should the indemnifying Party elect to assume and control the defense of a claim, action, suit, or proceeding, the indemnified Party shall provide the indemnifying Party with such information as the indemnifying Party may reasonably require relating to the claim, action, suit, or proceeding and shall (to the extent relevant) keep the indemnifying Party fully informed of any material development in the conduct of the claim, action, suit, or proceeding.

5.4.3

Expense of Defense Counsel

(a)

Following receipt of the Indemnification Acknowledgement and the assumption of the defense by the indemnifying Party, the indemnified Party shall have the right to employ its own counsel and such counsel may participate in such action, but the fees and expenses of such counsel shall be at the sole expense of such indemnified Party, when and as incurred, unless:

(b)

(i)

the employment of counsel by such indemnified Party has been authorized in writing by the indemnifying Party and the indemnifying Party has agreed to pay for the fees and expenses of such counsel;

(ii)

the indemnified Party shall have reasonably concluded and specifically notified the indemnifying Party that there may be a conflict of interest between the indemnifying Party and the indemnified Party in the conduct of the defense of such action;

(iii)

the indemnifying Party shall not in fact have employed independent counsel reasonably satisfactory to the indemnified Party to assume the defense of such action and shall have been so notified by the indemnified Party; or

(iv)

the indemnified Party shall have reasonably concluded and specifically notified the indemnifying Party that there may be specific defenses available to it that are different from or additional to those available to the indemnifying Party or that such claim, action, suit, or proceeding involves or could have a material adverse effect upon the indemnified Party beyond the scope of this Agreement.

If Section 5.4.3(a)(i), 5.4.3(a)(ii), 5.4.3(a)(iii), or 5.4.3(a)(iv) shall be applicable, then the indemnified Party shall have the right to direct the defense of such claim, action, suit or proceeding on its own behalf and the reasonable, documented fees and disbursements of

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independent counsel retained by the indemnified Party shall constitute indemnified and reimbursable legal or other expenses hereunder. Article 6 Costs 6.1

Costs

GenCo shall bear all costs, charges, taxes, and expenses for the registration of this Agreement. Article 7 Arbitration; Jurisdiction 7.1

Arbitration

The Parties irrevocably agree that any Dispute or difference arising under, out of, in connection with, or relating to, this Agreement, including any Dispute or difference concerning the existence, validity, or enforceability of this Agreement or any provisions hereof (including the existence, validity or enforceability of the agreements contained in this Section 7.1) or as to whether this Agreement or any provisions hereof (including agreements contained in this Section 7.1) are invalid, illegal, or unenforceable shall be resolved in accordance with the provisions of Article 22 of the Implementation Agreement, which provisions are incorporated herein by reference, mutatis mutandis. 7.2

Commercial Acts

GOK unconditionally and irrevocably agrees that the execution, delivery, and performance by it of this Agreement constitute its private and commercial acts. 7.3

Sovereign Immunity; Jurisdiction

(a)

GOK irrevocably and unconditionally: (i)

agrees that should any proceedings be brought against GOK or its assets, other than the Protected Assets, in any jurisdiction in connection with this Agreement or any of the transactions contemplated by this Agreement, no claim of immunity from such proceedings will be claimed by or on behalf of GOK, on behalf of itself or any of its assets (other than the Protected Assets);

(ii)

waives any right of immunity which it or any of its assets (other than the Protected Assets) now has or may in the future have in any jurisdiction in connection with any such proceedings;

(iii)

agrees that the execution, delivery and performance by it of this Agreement and any other Project Agreement to which it is a party constitutes its private and commercial acts and waives any objection that it may now or hereafter have to the venue of any action or proceeding brought as consented to in this Section 7.3(a), and specifically waives any objection that any such action or proceeding has been brought in an inconvenient forum and agrees not to plead or claim the same;

(iv)

consents generally in respect of the enforcement of any judgment against it in any such proceedings in any jurisdiction to the giving of any relief or the issue of any process in connection with such proceedings (the making, enforcement or execution against or in respect of any of its assets whatsoever (other than the Protected Assets)) regardless of its use or intended use; and

(v)

agrees that service of process in any such action or proceeding may be effected in any manner permitted by the law applicable to the aforementioned court.

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(b)

GenCo irrevocably and unconditionally: (i)

consents generally to the jurisdiction, with respect to itself and any of its assets and property that it now owns or may hereafter acquire, of any court of competent jurisdiction in Kosovo for any action filed by GOK to enforce any award or decision of any arbitrator that was duly appointed under this Agreement to resolve any Dispute between the Parties (including the making, enforcement or execution against or in respect of any of its assets whatsoever regardless of its use or intended use);

(ii)

waives any right of immunity that it or any of its assets now has or may in the future have in any jurisdiction in connection with any such proceedings;

(iii)

waives any objection it may now or hereafter have to the venue of any action or proceeding brought as consented to in this Section 7.3(b), and specifically waives any objection that any such action or proceeding was brought in an inconvenient forum and agrees not to plead or claim the same;

(iv)

agrees that service of process in any such action or proceeding may be effected in any manner permitted by the law applicable to the aforementioned court; and

(v)

waives any and all rights it may have to enforce any judgment or claim against the Protected Assets in the courts of any jurisdiction. Article 8 No Waiver; Remedies Cumulative

8.1

No Waiver

No failure or delay by GenCo to exercise any right or remedy under this Agreement shall constitute a waiver of such right or remedy. No single or partial exercise of any right or remedy shall preclude any other or further exercise thereof, or the exercise of any other right or remedy. No waiver by GenCo shall be effective unless it is in writing. 8.2

Remedies Cumulative

The rights and remedies of GenCo provided by this Agreement are cumulative and not exclusive of any rights or remedies provided by law. Article 9 Assignment 9.1

Assignment

(a)

GenCo may assign as collateral its interest hereunder to a Lender or any financial institution or institutions participating in the financing of the Kosovo e Re Project or to any of their transferees or designees in connection with the exercise or implementation of their collateral rights. GenCo shall assign this Agreement to KOSTT in accordance with the terms of the Connection Agreement and shall have no obligations hereunder from and after the date of such assignment except for obligations that arise prior to such date of assignment. This Agreement shall not be assigned by GenCo to any other party without the prior written consent of GOK.

(b)

Notwithstanding Section 9.1(a), in the event that GOK acquires all of GenCo’s rights, title, and interests in and to the KRPP Facility either (i) at the expiration of the term of the Implementation Agreement pursuant to Section 20.6 (Expiry of the Term) of the Implementation Agreement or (ii) pursuant to Article 20 (Rights and Obligations Upon Termination; Compensation) of the Implementation Agreement following the termination of the Implementation Agreement, GenCo shall, without the need for any consent by GOK or any Person, assign and novate all of its right, title, and interest in and to this Agreement to GOK (or GOK’s designee, as selected in accordance

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Schedule 5 - 9

with the terms of the Implementation Agreement), and the assigning party will be released from any and all liabilities or obligations under this Agreement arising after the date of such assignment and novation. If GenCo so requests, GOK shall execute, together with GenCo, all reasonable and customary agreements and documents necessary to implement the assignment and novation of this Agreement from and after the date of such termination. Should GOK not reasonably comply with this Section 9.1(b), GenCo shall have the right to terminate this Agreement by delivering a notice to GOK. The transfer or assignment of assets by GenCo pursuant to this Section 9.1(b) shall not relieve GOK of its obligations under any Project Agreement or Financing Document existing as of the date of such transfer or assignment. (c)

This Agreement shall not be assigned by GOK without the prior written consent of GenCo.

(d)

This Agreement shall bind and inure to the benefit of the Parties and any successor or assignee acquiring an interest hereunder consistent with Section 9.1(a) and Section 9.1(b).

(e)

Any assignment in contravention of this Section 9.1 shall be null and void. Article 10 Miscellaneous

10.1

Notices

(a)

All notices and other communications required or permitted to be given by a Party shall be in writing and either delivered personally or by courier or sent by fax or by e-mail to the address or number of the other Party specified below: (i)

(ii)

If to GOK:

If to GenCo:

Government of Kosovo Rr. Nene Tereza Nr. 36 Pristina, Kosovo Attention: Minister of Economic Development Tel: [ ] Fax: [ ] Email: [ ] ContourGlobal Terra 6 S.à r.l 35-37 Avenue de la Liberté L-1931 Luxembourg, Grand Duchy of Luxembourg Attention: The board of managers Telephone: + (352) 28 86 78 00 Fax: + (352) 28 86 78 00 E-mail: [email protected] [email protected]

provided, that a Party may change the address to which notices are to be sent to it by giving not less than thirty (30) Days’ prior written notice to the other Party in accordance with this Section 10.1(a). (b)

No notice or other communication shall be effective until received or deemed received. Notices or other communications shall be deemed to have been received by the receiving Party: (i)

when delivered if personally delivered;

(ii)

three (3) Business Days after sending, if sent by international courier;

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(iii)

upon sending if sent by fax, subject to confirmation of an uninterrupted transmission report and provided that a hard copy is dispatched not later than the following Business Day to the recipient by international courier or personal delivery; or

(iv)

upon sending if sent by e-mail, provided that a hard copy is dispatched not later than the following Business Day to the recipient by international courier or personal delivery; provided, however, the Parties may from time to time mutually agree in writing that no hard copy delivery requirements are required with respect to certain day-to-day or similarly routine operational communications.

(c)

A Party delivering a notice or other communication in accordance with Section 10.1(a) shall use commercially reasonable efforts to provide to the receiving Party a reasonably accurate translation in Albanian within five (5) Business Days of sending such notice or other communication in English; provided, however, that a Party shall not be required to provide a translation of any technical drawings or similar technical or engineering documents. In the event of inconsistency between the English original and the Albanian translation of any notice or other communication, the English version shall prevail over the Albanian version. For the avoidance of doubt, failure to deliver a translation of a notice or other communication in accordance with this Section 10.1(c) shall not affect the effectiveness of such notice or other communication as established pursuant to Section 10.1(b).

(d)

In the event that a notice delivered by GenCo to GOK pursuant to this Agreement requires GOK to either provide a response (including any approval or non-objection) within a certain time period or be deemed to have approved or not objected to the taking of any action by GenCo, GenCo shall include in such notice a description of the response period and consequences of the failure of GOK to respond (including any deemed approval or non-objection).

10.2

Governing Law

This Agreement shall be governed by and construed in accordance with the Laws of Kosovo. 10.3

Severability

If any term or provision of this Agreement is determined by a court or other authority of competent jurisdiction to be invalid, void, illegal, unenforceable, or against public policy, (i) the remaining provisions of this Agreement shall remain in full force and effect and will not be affected by such determination in any way and (ii) the Parties shall promptly meet and negotiate a substitute for such affected provision or part, which shall, to the greatest extent legally permissible, effect the original intent of the Parties. 10.4

Capitalized Terms

Capitalized terms used but not defined in this Agreement shall have the meanings given to them in the Implementation Agreement.

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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement in Pristina, Kosovo as of the date first above written. The Republic of Kosovo acting through the Ministry of Economic Development By: Name:__________________________________ Title: [______] By: Name:__________________________________ Title:

By: Name:__________________________________ Title:

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Annex 1 All land identified by the study performed under the Connection Agreement, as described in Section 4 thereof.

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Schedule 6 Specified Consents

Consent License for generation of electricity Construction permit (all phases for Category III Constructions) Environmental authorization

ERO

MESP MESP

Environmental permit Integrated environmental permit Usage permit

MESP MESP MESP

Water permit

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Issuing authority

MESP

Schedule 6 - 1

Schedule 7 Form of Compliance Certificate This Compliance Certificate, dated as of ___________, 20__ (the “Certification Date”), is being delivered on behalf of _______________ , a [place of formation] [type of legal entity] (the “Advisor”) to ContourGlobal, LP, a Cayman Islands exempted limited partnership (the “Company”) in connection with the Advisor’s engagement by the Republic of Kosovo (“GOK”) with respect to the Kosovo e Re Project (the “Project”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Implementation Agreement dated ___________ and entered into between GOK, acting through the Ministry of Economic Development and ______ (the “Agreement”) (a copy of which has been provided to the Advisor): The undersigned, being an authorized representative of the Advisor, hereby certifies on behalf of the Advisor and as of the Certification Date that: 1. Advisor is familiar with and understands the requirements and prohibitions of the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the U.K. Bribery Act 2010, and the Anti-Bribery Laws. 2. Advisor has been, and will continue to be, in full compliance with the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the U.K. Bribery Act 2010, and the Anti-Bribery Laws. 3. Advisor will ensure that any principals, employees, affiliates, agents or representatives assisting or engaged by the Advisor with respect to the Project are and will continue to be, in full compliance with the Anti-Bribery Laws with respect to any activities undertaken and services provided in connection with the Project. 4. Advisor has not and will not, and will ensure that any principals, employees, affiliates, agents or representatives assisting or engaged by the Advisor with respect to the Project have not and will not, directly or indirectly, give, offer, or promise to give, or authorize the payment of, money or anything of value to: a.

any Foreign Official for the purposes of (i) influencing any act or decision of such Foreign Official in his official capacity, inducing such Foreign Official to do or omit to do any act in violation of the lawful duty of such official, or securing any improper advantage; or (ii) inducing such Foreign Official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, with the intent to assist either Advisor or the Company in obtaining or retaining business for or with, or directing business to, either Advisor or the Company, as applicable; and

b. any third party for the purposes (i) set out in paragraph (a) above; or (ii) of securing any improper advantage for the Project. “Foreign Official” means any officer or employee of the Government of the Republic of Kosovo or any department, agency, or instrumentality thereof, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality. IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate on behalf of the Advisor as of the date first set forth above. [ADVISOR] By: Name: Title:

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Schedule 7 - 1

Schedule 8 Form of Payment Certificate This Payment Certificate, dated as of ___________, 20__ (the “Certification Date”), is being delivered on behalf of [Advisor], a [place of formation] [type of legal entity] (the “Advisor”) to ContourGlobal, LP, a Cayman Islands exempted limited partnership (the “Company”) in connection with the Advisor’s engagement by the Republic of Kosovo (“GOK”) with respect to the Kosovo e Re Project (the “Project”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Implementation Agreement dated ___________ and entered into between GOK, acting through the Ministry of Economic Development and ContourGlobal Kosovo LLC (the “Agreement”) (a copy of which has been provided to the Advisor): The Advisor represents the GOK pursuant to arrangements directly between GOK and Advisor. There is no relationship between Advisor and the Company, but the Company has agreed with GOK to pay certain advisor fees and this Payment Certificate is submitted in furtherance thereof. The undersigned, being an authorized representative of the Advisor, hereby certifies on behalf of the Advisor and as of the Certification Date that: 1. to its knowledge, upon due inquiry, no portion of the sum invoiced herein has been provided to or will be provided, directly or indirectly, to: (a)

(b)

any Foreign Official in violation of the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the U.K. Bribery Act 2010, or the Anti-Bribery Laws, or any compliance requirement under Section 23.24 (Affirmation) of the Agreement or for the purposes of (i)

influencing any act or decision of such Foreign Official in his official capacity or inducing a Foreign Official to do or omit to do any act in violation of the lawful duty of such official; or

(ii)

inducing such Foreign Official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, with the intent to assist either Advisor or the Company in obtaining or retaining business for or with, or directing business to, either Advisor or the Company, as applicable; or

any third party in violation of the U.S. Foreign Corrupt Practices Act of 1977 (as amended), the U.K. Bribery Act 2010, or the Anti-Bribery Laws, or any compliance requirement under Section 23.24 (Affirmation) of the Agreement, or for the purposes set out in paragraph (a) above in connection with the Project.

2. to its knowledge, no portion of the sum invoiced herein has been incurred in the representation of GOK or a Specified POE in connection with a dispute under any of the Project Agreements. “Foreign Official” means any officer or employee of the Government of the Republic of Kosovo or any department, agency, or instrumentality thereof, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality. IN WITNESS WHEREOF, the undersigned has executed this Payment Certificate on behalf of the Advisor as of the date first set forth above. [ADVISOR] By: Name: Title:

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Schedule 8 - 1

Schedule 9 List of Experts 1. Technical Dispute Experts:

As may be agreed by the Parties from time to time. 2. Payment Dispute Experts:

As may be agreed by the Parties from time to time.

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Schedule 9 - 1

Schedule 10 List of Consultants 1. GOK-Appointed Independent Engineer: 2.

As may be agreed by the Parties from time to time.Independent E&S Consultant: As may be agreed by the Parties from time to time.

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Schedule 10 - 1