Contract for Construction

(1)  

GNiFi , a groupement d’intérêt économique having its registered office at 37, avenue Henri Lafleur, BP K3, 98849 Nouméa Cedex, and enrolled at the Register of Commerce and Companies of Nouméa under number 204 C 749002, and represented by Khalid Ammari, duly authorised for the purposes of this Agreement (hereinafter referred to as the “ Owner ”); and

(2)  

GORO NICKEL S.A. , a company incorporated under the laws of France, having its registered office at 38, rue du Colisée, 75008 Paris, France, and enrolled at the Register of Commerce and Companies of Paris under number 313 954 570, acting herein through and on behalf of its branch ( succursale ) whose registered office is at 7 bis, rue Suffren, BP218, 98845, Nouméa Cedex, New Caledonia, and represented by Yves Roussel, duly authorised for the purposes of this Agreement (hereinafter referred to as the “ Project Manager ”),

(A)  

The Owner has been organised for the purpose of constructing, financing and leasing the Assets which constitute a portion of the Plant. The Project shall be developed and operated by the Project Manager. The transactions contemplated by this Agreement and the other Transaction Documents are based on the special tax support available for Dom-Tom investments.

(B)  

In accordance with the Girardin Law, the Request for DGI Final Approval was filed with the DGI. A preliminary approval of the Transaction was granted by the DGI by a letter dated May 4, 2001 and the DGI Final Approval is to be issued. The retrocession rate as calculated in appendix 8 of the Lease at the date of this Agreement is higher than 80%.

(C)  

In order to finance the construction of the Assets, the Owner shall:

(i)  

receive the Tax Advances from the Tax Investors pursuant to the Tax Loan Agreement; and

(ii)  

enter into the Loan Agreement.

(D)  

The involvement of the Owner being only financial, the Project Manager as project manager under this Agreement and as Lessee has selected the site, procured the preliminary technical studies, drawn up certain plans and various descriptions and estimates for the construction of the Assets and has decided on the design and characteristics thereof.

(E)  

The Substantial Completion Date and the delivery of the Assets to the Lessee is expected to occur on or prior to December 31, 2008 (as such date may be extended to a date no later than December 31, 2009 (subject to the satisfaction of the conditions in Clause 11.1(b))). Substantial Completion shall be evidenced by the signature by the Project Manager and the Lessee, on its behalf and on behalf of the Owner, of the Definitive Acceptance Certificate in accordance with the terms of this Agreement.

0   

DEFINITIONS

0.1   

For the purpose of this Agreement, capitalised terms and expressions (whether in singular or in plural form) shall have the respective meanings given to them in this Agreement (including Appendix 1) or if not defined in this Agreement shall have the meaning given to them in the Lease.

0.2   

In this Agreement:

(a)  

headings of Clauses and Appendices are for ease of reference only and are not intended to influence the interpretation of this Agreement; and

(b)  

references to any agreement or any other document shall be construed as a reference to that agreement as it may from time to time be amended, varied, supplemented, restated or novated (but excluding any amendment, variation, supplement, restatement, variation or novation contrary to any Transaction Document).

1   

PURPOSE

1.1   

The Owner and the Project Manager hereby agree that the Project Manager will, on the Owner’s behalf, carry out the Works by way of any contracts including (without limitation) contracting agreements, sub-contracting agreements, purchase agreements and the Services Agreement pursuant to the terms and conditions of this Agreement, as well as to carry out or cause to be carried out any related legal, administrative or financial transactions related to the Works.

Unless otherwise specified in this Agreement, this Agreement is governed by Articles 1831-1 to 1831-5 of the French Civil Code enforced in New Caledonia pursuant to order n°98-728 dated August 20, 1998.

1.2   

The authorisations granted, the contracts executed and the Works undertaken or initiated by or on behalf of the Project Manager prior to the date hereof in connection with the Works (the “ Preliminary Works ”) are hereby ratified and the Preliminary Works shall be subject to the terms of this Agreement as if they had been undertaken after the date of this Agreement.

1.3   

This Agreement is entered into in the common interest of the Parties. However, the Owner undertakes not to interfere, directly or indirectly, with the duties conferred on the Project Manager.

1.4   

The Project Manager represents:

(i)  

that it has selected the site, procured preliminary technical studies, plans, descriptions and estimates for the construction of the Assets and has decided on their design and specifications;

(ii)  

that it has not been provided with any information or study in respect of the Land or the Assets by the Owner and that the specification of the Assets and of the Works was drawn up by the Project Manager or its agents, contractors or subcontractors;

(iii)  

that, considering the expected modifications of the works authorised by the Building Permit, it applied on or about 2 December, 2004 for a new building permit in respect of the Plant; and

(iv)  

that it will obtain a new Operating Permit in respect of the Plant at least 3 months before the Substantial Completion Date.

2   

SPECIFICATION OF THE ASSETS

(a)  

The Works shall be completed and the Assets shall be delivered and commissioned in accordance with this Agreement, the Administrative Authorisations, the Request for DGI Final Approval (which the Project Manager is fully aware of), the DGI Final Approval (which the Project Manager is fully aware of) and good engineering practices (“ les règles de l’art ”).

(b)  

In the case of any contradiction between the terms of this Agreement and the DGI Final Approval, the DGI Final Approval shall prevail.

(c)  

For the avoidance of doubt, any reference in this Agreement to commissioning the Assets is a reference only to those commissioning works (in accordance with the commissioning and testing procedures developed by the Project Manager) required to achieve Substantial Completion.

3   

CHANGES TO THE ASSETS

3.1   

Conditions for changes to the Assets

(a)  

It is hereby agreed that the Project Manager may, at its sole expense and risk, vary the technical characteristics of the Assets or any component or aspect thereof, provided that any such Variation or any other variation:

(i)  

will not increase the Construction Costs (unless, for the avoidance of doubt, the costs of such Variation or variation are permitted under Clause 16.2);

(ii)  

will not extend the time limits set out in Clause 11;

(iii)  

will automatically be deemed to be approved by the Project Manager, as Lessee under the Lease;

(iv)  

will not affect the DGI Final Approval; and

(v)  

with respect to a Variation only, has been previously notified to the Owner for information purposes only in accordance with Clause 3.2(b).

(b)  

Notwithstanding the foregoing, in no event shall any Variation or variation adversely affect the ability of the Lessee to operate the Assets in accordance with the Authorised Activities.

3.2   

Authorisation of Variations

(a)  

In the event of any Variation, the Project Manager shall obtain, on its own behalf and in its name, all required building permits and other administrative authorisations and

shall be liable for all claims filed and for all expenses incurred in connection with obtaining such permits and authorisations.

(b)  

The Project Manager shall inform the Owner of any Variation, no later than 15 Business Days prior to the date planned for the filing of the Administrative Authorisations required for such Variation.

4   

DUTIES OF THE PROJECT MANAGER

4.1   

Generally

(a)  

The Project Manager’s duties relating to the Works are set out in this Clause 4. Such descriptions and lists are indicative and not exhaustive.

(b)  

The Project Manager shall be responsible for ensuring that the Works are completed and the Assets are delivered in working order in accordance with this Agreement and that all administrative and legal requirements, contractual easements, authorisations granted by third parties, Applicable Laws in New Caledonia, and good engineering practices (“ les règles de l’art ”) have been complied with.

4.2   

Definitions of the duties

(a)  

General description of the programme

(i)  

definition of the Works’ programme;

(ii)  

drawing up a provisional Works’ budget; and

(iii)  

distribution of tasks to the Contractors and coordination of the Contractors;

(b)  

Legal and administrative duties

(i)  

all activities in relation to, when necessary, obtaining irrevocably, renewing, maintaining or defending all the regulatory approvals, permits, administrative and other authorisations and zoning agreements that are required under Applicable Law in New Caledonia for the construction and the operation of the Assets and, in particular, execution of documents relating to obtaining any Administrative Authorisation, as well as any related renewals or amendments, verification of their issuance or any required postage (“ affichage ”).

The Owner shall cooperate with the Project Manager with respect to obtaining any administrative authorisations in the event that its intervention or assistance is requested by the Project Manager and is required in order to obtain any administrative authorisation.

The Project Manager shall take all steps necessary, if any, to protect the Owner from incurring liability in respect of this Clause 4.2(b)(i).

(ii)  

coordination of the preparation of all agreements required for the purposes of carrying out the Works and, in particular, the preparation of agreements with third parties;

(iii)  

obtaining and maintaining the Insurance Policies in accordance with the terms of this Agreement; and

(iv)  

dealings with public authorities, ministerial officers and court officials in relation to the Works;

(c)  

Financial management

(i)  

providing the Owner with reasonable information or documentation required for the Owner’s book-keeping relating to the Works; and

(ii)  

providing the Owner with any reasonable information or documents required by the Owner for tax reasons and relating to the Works;

it being understood that compliance with this Clause 4.2(c) will not be onerous for the Project Manager and will not require the Project Manager to produce documentation which it would not, other than for this Clause 4.2(c), be required to produce;

(d)  

Technical management

(i)  

preparation, drafting and signature of contracts with the Contractors it being specified, for the avoidance of doubt, that the Project Manager may cause such contracts to be signed by any third party acting on its behalf and for its account;

(ii)  

analysis of bids and selection of the Contractors;

(iii)  

supervision of the Contractors;

(iv)  

handover (“ réceptions ”) of the works, services or Equipment provided by the Contractors if required under Applicable Law in New Caledonia;

(v)  

managing relationships with the Contractors and supervision of the remedying of defects identified at the time the Works are handed over, delivered or operated;

(vi)  

commissioning of the Assets; and

(vii)  

delivery of the Assets to the Lessee.

5   

PERFORMANCE BY THE PROJECT MANAGER OF ITS DUTIES

5.1   

Project Manager’s duties

(a)  

shall determine and prescribe the manner in which the Works will be performed within the Construction Costs and in compliance with the time limits set out in Clause 11;

(b)  

shall be solely responsible for selecting the Contractors required to carry out the Works and to commission the Assets;

(c)  

in the event of the enforcement of Act of December 31, 1975 relating to sub-contracting as applicable in New Caledonia in the context of this Agreement, shall ensure that the Owner is in no circumstances liable under this Act;

(d)  

shall be responsible for paying the Contractors;

(e)  

shall comply with the safety regulations enforceable in New Caledonia or which arise out of good engineering practices (“ les règles de l’art ”) and shall procure that each Contractor commits to comply with the Project Manager’s safety procedures;

(f)  

shall procure that supplies and equipment are covered by the usual warranties in accordance with good commercial practices;

(g)  

must generally ensure compliance with Applicable Law in New Caledonia so that the Owner shall not, in any way or for any reason, be liable in relation to such Applicable Law in New Caledonia;

(h)  

shall obtain the compliance certificate(s) (“ certificate(s) de conformité ”) referred to in Clause 14;

(i)  

shall enforce, if and when appropriate, the Contractors’ warranties; and

(j)  

shall construct the Assets in compliance with all applicable Environmental Laws.

5.2   

Management of the Works

5.3   

Progress report (“ reddition de compte ”)

(a)  

the general progress of the Works on site including an indication of the expected Substantial Completion Date;

(b)  

a comparison between any Works expected to have been carried out and the Works actually carried out;

(c)  

any significant events in relation to the performance of the Works which have occurred (either positive or negative);

(d)  

a comparison between the overall expenditure expected to have been made and the overall expenditure actually made in relation to the Works; and

(e)  

any information relating to the application for and the issue of any Administrative Authorisation.

5.4   

Except to the extent that such information has already been provided to the Owner pursuant to Clause 5.3, the Project Manager will provide to the Owner a copy of each report required to be provided to the DGI in accordance with the DGI Final Approval.

6   

PERFORMANCE OF THE WORKS – LIABILITY

6.1   

The Project Manager undertakes to comply with any contractual documents relating to the Works, the Assets and the Land and any third party rights under such documents. As between the Project Manager and the Owner, the Project Manager shall be deemed responsible for any harm suffered in relation thereto.

6.2   

The Project Manager is solely liable for the supervision of the Works.

6.3   

If one or more of the Contractors breach their obligations under any such contracts, the Project Manager may terminate, at its own expense, risk and peril, the contracts entered into and may enter into new agreements in order to avoid any delay in the completion of the Works and the Project Manager shall be individually liable for such expenses, risks and perils. It may also call on any relevant bank guarantees.

6.4   

The Project Manager shall remain liable for the performance of the Works by any Contractor. The Project Manager shall be liable for the obligations and guarantees arising out of articles 1792, 1792-1, 1792-2, 1792-3 and 2270 of the French Civil Code if such provisions are applicable to the Assets and shall remain liable as against the Owner for the conception and the performance of the Works.

6.5   

The Project Manager has a performance obligation (“ obligation de résultat ”) to the Owner:

(a)  

to deliver the Assets on the Substantial Completion Date in accordance with Clause 12 and for a price not exceeding the Construction Costs (subject to Clause 16.2);

(b)  

to bear all risks (“ garde et risques ”) relating to the Works and the Assets until the Substantial Completion Date;

(c)  

to be individually liable to the Owner for any Loss which may be caused during the Works to any individual (“ personne physique ”) or company (“ personne morale ”) as a result of the Works or because of the existence of the Assets, or which is related to the construction process throughout the duration of the Works;

(d)  

to deliver the Assets free from any lien (“ droit concurrent ”) and free from any non-compliance (“ non-conformité ”) or defect it being specified that the Assets may be subject to any Permitted Lien, provided however that the beneficiaries from such Permitted Lien have no right or interest to enforce them on the Substantial Completion Date; and

(e)  

to cause the Assets to comply with the Production Test by no later than the Long-Stop Date.

6.6   

The Project Manager is responsible for all prejudicial consequences which may result from any defects on or in the Land, and from negative, apparent or latent easements, whether existing or discontinued, which may encumber the Assets or the Land, as well as the commissioning and the operation of the Assets.

6.7   

The Project Manager in its own capacity and as Lessee represents and agrees that it shall not, in any case, seek to make the Owner liable for any error, oversight, fault, defect, inadequacy or any such event affecting the conception or the carrying out of the Works or the Assets or the operation of the Equipment.

It is agreed that this Clause 6.7 shall not prevent the Project Manager from filing any claims against the Contractors.

6.8   

If requested by the Owner, following the execution of any agreement with the Contractors, the Project Manager shall provide the Owner with a copy of such agreement together with a copy of any of the Contractor’s insurance certificates within 30 Business Days.

7   

ACCESS TO THE SITE – CUSTODY – RISKS

7.1   

If any event adversely affects the Works or the performance of the Assets during the Construction Period, the Owner shall be authorised, at the Project Manager’s expense, to inspect the site and any document pertaining thereto. Any such inspections shall only be made on a reasonable number of occasions, upon giving reasonable prior notice and up to a reasonable amount of cost to the Project Manager. The Owner may seek, at the cost of the Project Manager, the assistance of a technical advisor with which the Project Manager will cooperate and which the Project Manager will provide with any information that the Owner considers necessary. The Project Manager undertakes to facilitate the exercise of the duties of the technical advisor and to allow it access to the site. The Owner must procure that any Person given access under this Clause 7.1 complies with the Project Manager’s site rules and must procure that such access does not hinder the Works or the Project.

7.2   

Provided that the Owner and the technical advisor comply with the Project Manager’s site rules, access by the Owner and the technical advisor to the site does not confer any liability on the Owner.

7.3   

Under Article 553 of the French Civil Code, the Owner, as holder of a right in rem (“ droit réel ”) over the Land and the Assets pursuant to the Lease Assignment, shall acquire title as owner to all of the work, buildings and Equipment as and when they are completed or delivered. Regardless of such acquisition of such title, the risks relating to, and the custody of, the Assets shall remain the responsibility of the Project Manager until the Substantial Completion Date.

8   

     FORCE MAJEURE

9   

INSURANCE

9.1   

Insurance

(a)  

The Project Manager shall obtain and maintain the following insurance cover from appropriate solvent insurers with ratings by Standard & Poor’s Ratings Group of no less than A-, for the Construction Period (except otherwise specified herein), on a basis consistent with Inco’s policies and best practice, providing such cover (including deductions and exclusions) and in such form and amounts as are customarily obtained for this type of construction project and in accordance with good business practices:

(i)  

“All Risks” Marine Cargo insurance, insuring the material, equipment, machinery, supplies and all other property used for or in connection with the Assets (except Contractors’ Equipment) from the time the insured becomes at risk or assumes interest and during transit and/or in storage, wherever located and until delivered to final destination being the Project laydown site, including risks of loading and unloading — anywhere worldwide, against physical loss or damage as per Institute Cargo Clauses ‘A’ CL 252 (1/1/82), including Institute War Clauses (Cargo) CL 255 (1/1/82), Institute Strike Clauses (Cargo) CL 256 (1/1/82, Institute War Clauses (Air Cargo) CL 258 (1/1/82, Institute Strike Clauses (Air Cargo) CL 260 (1/1/82), Institute Radioactive Contamination Clause CL 356 (1/10/90) and Institute Replacement Clause CL 161 (1/1/34);

(ii)  

“Construction All Risks” (“ CAR ”) insurance covering POED against “all risks” of direct physical loss or damage. This CAR insurance shall be effective and shall insure POED while such POED is being transported to the site, excluding ocean marine cargo, and thereafter until the Substantial Completion Date;

(iii)  

“Third Party Liability Insurance”, on an occurrence basis form, insuring liabilities arising from bodily injury, death and property damage arising out of the ownership, construction, erection, installation and maintenance of the Assets. Cover shall include, but shall not be limited to, blanket contractual legal liability, broad form property damage (excluding damage to the Assets), occurrence property damage, personal injury, sudden and accidental pollution, and with respect to completed operations, cover for a period of twenty four (24) months from the Substantial Completion Date;

(iv)  

any other insurance which may be required by local law, it being understood that a determination of what is required by local law will be based on a cooperative analysis by the Project Manager and the Owner and their respective insurance and legal advisers; and

(v)  

terrorism insurance.

(b)  

Notwithstanding the foregoing, it is understood and agreed that under no circumstance shall the Project Manager be obliged to maintain or be caused to maintain a delay in start-up insurance.

9.2   

The Project Manager shall cause each Insurance Policy to:

(a)  

name the Owner, each Member, each Tax Investor, the Security Agent and the Lessor Administrators as named insured as their interest may appear and as relates solely to the Assets, but neither the Owner nor any Tax Investor or any Member or the Security Agent or the Lessor Administrators shall be liable for the payment of such insurance premiums;

(b)  

designate the Security Agent as the loss payee on behalf of each named insured in Clause 9.2(a) as their collective interests may appear (but only as such interests relate to the Assets) except that it is understood and agreed that the Security Agent, the Owner or any Tax Investor will not be designated as loss payee as regards Insurance Policies covering liabilities to third parties or insuring the interests of third parties; and

(c)  

provide a waiver of all rights of recourse against the Owner, each Tax Investor, each Member, the Security Agent and the Lessor Administrators and their insurers with respect to their interests in the Assets and the Owner, each Tax Investor, each Member, the Security Agent and the Lessor Administrators shall cause their respective insurers to waive any rights of recourse against the Project Manager and each of its insurers.

Each of the parties shall provide the others with documentation evidencing the waivers by their respective insurers.

9.3   

Implementation

(a)  

Notwithstanding Clause 9.2(b):

(i)  

if the insurance proceeds resulting from any claim under the Insurance Policies for damage to the Assets (other than damages amounting to a Total Loss) are less than US$50,000,000 such proceeds will be paid directly to the Project Manager;

(ii)  

if the insurance proceeds resulting from any claim under the Insurance Policies for damage to the Assets (other than damages amounting to a Total Loss) are more than US$50,000,000, such proceeds will be paid directly to the Project Manager, provided that the Project Manager provides the Owner as soon as practicable following such damage to the Assets with a plan which sets out the Project Manager’s proposal to reinstate the Assets back to their pre-loss condition, or (subject to the Owner’s written consent (such consent not to be unreasonably withheld)) to an equivalent condition provided that the fitness for purpose of the Assets is maintained;

(iii)  

if a Total Loss occurs and the Project Manager has determined within twelve months of the date of the event giving rise to such Total Loss that the Assets

will be replaced or re-built, then any insurance proceeds resulting from the resultant insurance claim will be paid directly to the Project Manager, provided that the Project Manager provides the Owner as soon as practicable following the Total Loss with a plan which sets out the Project Manager’s proposal to reinstate the Assets back to their pre-loss condition, or (subject to the Owner’s written consent (such consent not to be unreasonably withheld)) to an equivalent condition provided that the fitness for purpose of the Assets is maintained;

(iv)  

if a Total Loss occurs and the Project Manager has determined within twelve months of the date of the event giving rise to such Total Loss that the Assets will not be replaced or re-built, then the Project Manager shall provide the Owner with a letter of credit issued in favour of the Security Agent by a credit institution with ratings by Standard & Poor’s Ratings Group of no less than A- equal in amount to the Tax Loan Reference TV within five Business Days of the date of such determination, it being agreed and understood that any insurance proceeds resulting from the resultant insurance claim will be paid directly to the Project Manager;

(v)  

if a Total Loss occurs and the Project Manager has determined that the Assets will be not be replaced or re-built, and the Project Manager fails to provide the Owner with a letter of credit on the terms required under paragraph (iv) above, then any insurance proceeds resulting from the resultant insurance claim to an amount up to the Tax Loan Reference TV will be paid directly to the Security Agent (acting on behalf of the Owner and the Tax Investors pursuant to the terms of the Intercreditor Agreement) as the interests of the Owner and Tax Investors may appear and only as such proceeds relate to the Assets; and

(vi)  

if a Total Loss occurs and insurance proceeds are paid prior to the date on which the Project Manager has notified the Owner whether it intends to replace or rebuild the Assets or, if earlier, prior to the date falling twelve months after the date of the event giving rise to such Total Loss, then unless the Project Manager has provided to the Owner a letter of credit on the terms required under Clause 9.3(a) (iv) above, the insurance proceeds up to an amount up to the Tax Loan Reference TV will be paid directly to the Security Agent (acting on behalf of the Owner and the Tax Investors pursuant to the terms of the Intercreditor Agreement) as the interests of the Owner and Tax Investors may appear and only as such proceeds relate to the Assets.

(b)  

In the event of failure by the Project Manager to pay the relevant insurance premiums under the Insurance Policies, the Owner shall have the right to pay such premiums on behalf of the Project Manager.

(c)  

On or before the date hereof and thereafter as soon as practicable following any request by the Owner thereafter, the Project Manager agrees to furnish to the Owner a report that includes in respect of each Insurance Policy:

(i)  

the certificates of insurances signed by the insurers or their authorised representatives indicating the amount of the cover and the risks covered, confirming that the provisions set out in Clause 9.3(f) are being complied with and declaring that all insurance premiums have been paid; and

(ii)  

a certificate signed by a responsible officer of the Project Manager stating that such insurance is in accordance with this Clause 9.

(d)  

During the occurrence of a Construction Agreement Termination Event (other than an Owner Construction Agreement Termination Event referred to in Clause 19.1(d) ( Total Loss ) or a Project Manager Construction Agreement Termination Event referred to in Clause 19.2(b) ( Owner breach ) or Clause 19.2(c) ( DGI Final Approval )) which remains unremedied or unwaived), all transactions and other agreements to be entered into between the Project Manager and any insurers relating to the determination of the amount of any damage and any other methods of indemnification for losses under the Insurance Policies which exceed US$ 7,500,000 are subject to the prior agreement of the Owner.

(e)  

To the extent that such provisions are valid and available on commercially reasonable terms, the Insurance Policies shall provide that:

(i)  

the respective interests of each of the Owner, any Member and any Tax Investor shall not be invalidated by any act or omission by the Project Manager; and

(ii)  

the cover afforded by such Insurance Policies shall not be affected by the performance of any work on the Assets or by any modification thereto.

(f)  

Subject to availability on commercially reasonable terms, the Insurance Policies shall contain obligations on the part of the insurer as follows:

(i)  

without prejudice to Applicable Law, to advise the Owner of any delay in the payment of premiums and not to suspend the agreed cover until one (1) month following receipt by the Owner of such notice;

(ii)  

without prejudice to Applicable Law, to provide the Owner with one (1) month’s prior notice of any termination, taking of effect of cancellation or material reduction of cover which occurs at the initiative of such insurer;

(iii)  

not to exercise any rights against the Owner, any Member, any Tax Investor or the Security Agent and/or the Lessor Administrators relating to any omission, incomplete information or misrepresentation of the Project Manager or any Contractor and, consequently, not to raise in defence against the Owner, any Member or any Tax Investor nullity, average or lapse in the event of a breach of its obligations committed by the insured subsequent to the loss; and

(iv)  

not to avail itself of any clause limiting insurance proceeds to the cost of the Assets in case of the Assets being constructed on the land of others.

(g)  

Notwithstanding the preceding provisions of this Clause 9, the Owner may at any time take out of its own initiative and at its own cost any other insurance that it may desire.

(h)  

The Project Manager shall obtain and maintain the Insurance Policies and ensure compliance with Applicable Law through participation by insurers licensed in New Caledonia. Reinsurance of Insurance Policies will be arranged by the Project Manager and may include reinsurance with insurers operating outside of New Caledonia.

(i)  

The Project Manager shall declare to the insurer, as the primary named insured, on behalf of all named insured, including the Project Manager and Owner, all accidents or events likely to give rise to a claim under the Insurance Policies, in the manner provided for in the Insurance Policies.

9.4   

Modification

The Project Manager shall not seek to cancel the Insurance Policies or to introduce any amendment materially reducing the cover thereunder without the prior consent of the Owner which consent shall not be unreasonably withheld.

10   

TOTAL AND PARTIAL LOSS

10.1   

Total Loss

(a)  

If, at any time on or before the Substantial Completion Date, an event occurs which could reasonably be expected to constitute a Total Loss, the Project Manager shall notify the Owner as soon as practicable.

(b)  

Within twelve months of the date of the occurrence of an event which gives rise to a Total Loss, the Project Manager shall notify the Owner as to whether or not the Assets will be replaced or rebuilt.

(c)  

Any other event, damage or loss, which is not a Total Loss must be repaired or reconstructed pursuant to Clause 10.2.

10.2   

Partial Loss and Repair

(a)  

If the Assets or any part thereof suffers damage that does not constitute a Total Loss (a “ Partial Loss ”), the Project Manager shall be required to repair, at its own expense, the damage caused to the Assets and to restore the Assets back to their pre-loss condition, or (subject to the Owner’s written consent (such consent not to be unreasonably withheld)) to an equivalent condition provided that the fitness for purpose of the Assets is maintained.

(b)  

The Project Manager shall be responsible for all administrative authorisations and all expenses necessary for such reconstruction.

(c)  

The repair, reconstruction or reinstatement work shall be performed under the Project Manager’s full responsibility.

(d)  

Subject to Clause 9.3(a) above and in accordance with the Insurance Policies, the insurance proceeds shall be paid out to the Project Manager, which shall use such proceeds to pay for the restoration or reconstruction work, which shall be performed under the supervision of the Project Manager. It is agreed that the Project Manager alone shall be responsible for all costs (including all Taxes) in connection with the repair or reconstruction work in excess of the amount of such insurance proceeds.

11   

TIME LIMITS FOR COMPLETION OF THE ASSETS

11.1   

Substantial Completion Date

(a)  

Subject to Clause 11.1(b), the Project Manager shall cause the Substantial Completion Date to take place in accordance with Clause 12.3 and by no later than December 31, 2008.

(b)  

The Project Manager may postpone the Substantial Completion Date until December 31, 2009 at the latest, provided however that:

(i)  

it has informed the Owner of the anticipated delay by November 1, 2008 at the latest; and

(ii)  

the DGI has accepted in writing such postponement on or before December 1, 2008.

11.2   

Final Completion Date

11.3   

Force majeure

(a)  

discussing how the Project Manager plans to resume the Works; and

(b)  

formulating a plan, if possible in the Owner’s reasonable opinion, to be implemented by the Project Manager, to enable the Project Manager to resume the Works and attempt to avoid the termination of this Agreement and withdrawal of the DGI Final Approval.

12   

COMPLETION OF THE ASSETS – DELIVERY – CERTIFICATES

12.1   

The Project Manager in its own capacity and as Lessee and the Owner in its own capacity and as Lessor, agree that the Lessee will operate the Assets under the Lease on and from the Substantial Completion Date. The Project Manager shall however remain under a duty to perform its duties under this Agreement and to procure that Final Completion takes place on or before the Long-Stop Date.

12.2   

Completions

(a)  

Substantial Completion shall occur when the Works are completed in accordance with this Agreement and when:

(i)  

the Assets have been built substantially in accordance with the Project Design Criteria;

(ii)  

each piece or item of equipment constituting part of the Assets has been installed and tested in accordance with commissioning and testing procedures developed by the Project Manager;

(iii)  

each system, subsystem or operating unit constituting part of the Assets has been tested and commissioned in accordance with, and as contemplated by, the procedures developed by the Project Manager using appropriate inert media, or where it is not practical to use inert media, other appropriate media to confirm that the applicable system, subsystem or operating unit has been properly tested in accordance with such commissioning and testing procedures as developed by the Project Manager; and

(iv)  

the first autoclave of the Project is ready to accept initial feed for processing in accordance with the Project Design Criteria.

(b)  

Final Completion shall occur after achievement of the Substantial Completion Date and when the Production Test has been satisfied.

12.3   

Substantial Completion

(a)  

When the Project Manager considers that Substantial Completion has been achieved, the Project Manager, in its own capacity as Lessee, shall notify the Owner and shall represent and warrant that:

(i)  

the Works and the Assets are operational for the purposes contemplated in the Lease and the DGI Final Approval;

(ii)  

all the necessary Administrative Authorisations have been obtained and are valid, definitive and enforceable;

(iii)  

the declaration of completion of works (“ declaration d’achèvement des travaux ”) has been notified to the administrative authorities (a copy of such declaration in accordance with article 33 of order (“ deliberation ”) n°19 dated June 8, 1973, as amended, and a copy of its acknowledgment of receipt by the relevant administrative authority shall be attached thereto);

(iv)  

the Insurance Policies required to be current under this Agreement are current and the insurance policies required under clause 9 of the Lease are enforceable;

(v)  

the Lessee shall bear the risks relating to, and the custody of the Assets in accordance with the Lease;

(vi)  

to the best of the Project Manager’s knowledge, there is no material reservation or default other than those listed in an attachment to the notice;

(vii)  

the Lessee agrees to take possession of the Assets, accepts them, ratifies any of the variation orders filed by the Project Manager and recognizes that the warranties and operating manuals received are sufficient to start the operation of the Assets; and

(viii)  

Substantial Completion has occurred.

(b)  

The date of receipt by the Owner of the notice provided under Clause 12.3(a) shall constitute the “ Substantial Completion Date ”, and such notice shall constitute the “ Definitive Acceptance Certificate ”. Substantial Completion shall be deemed to have been agreed respectively between the Project Manager and the Owner and between the Lessor and the Lessee on the Substantial Completion Date. For the purpose of securing such agreements, the Project Manager shall act on behalf of the Owner and in its own capacity and that of Lessee.

(c)  

On the Substantial Completion Date the Assets shall be deemed to have been delivered to the Lessee under the Lease.

12.4   

Final Completion

(a)  

When the Project Manager considers that Final Completion has been achieved, the Project Manager, in its own capacity and as Lessee, shall notify the Owner representing and warranting that:

(i)  

the Works and the Assets are operational for the purposes contemplated in the Lease and the DGI Final Approval;

(ii)  

all the necessary Administrative Authorisations have been obtained and are valid, definitive and enforceable;

(iii)  

the Insurance Policies required to be current under this Agreement are current and the insurance policies required under clause 9 of the Lease are enforceable;

(iv)  

to the Project Manager’s best knowledge, there is no material reservation or default other than those listed in an attachment to the notice;

(v)  

the Lessee ratifies any of the variation orders filed by the Project Manager; and

(vi)  

the Production Test has been satisfied.

(b)  

The date of receipt by the Owner of the notice provided under Clause 12.4(a) shall constitute the “ Final Completion Date ”, and such notice shall constitute the “ Final Completion Certificate ”. Final Completion shall be deemed to have been agreed respectively between the Project Manager and the Owner and between the Lessor and the Lessee on the Final Completion Date. For the purpose of securing such agreement, the Project Manager shall act on behalf of the Owner and in its own capacity and that of Lessee.

12.5   

Defects and defaults

13   

DOCUMENTS TO BE DELIVERED TO THE LESSEE AND TO BE PUT AT THE OWNER’S DISPOSAL

13.1   

On the Substantial Completion Date, delivery by the Project Manager to the Owner of the Definitive Acceptance Certificate shall be deemed to constitute delivery of the signed Definitive Acceptance Certificate by the Lessee to the Lessor under the Lease.

13.2   

On the Substantial Completion Date or as soon as possible thereafter, the Lessee shall be provided with any warranties for the Equipment as well as any operating manuals, the original and any electronic versions of which shall be put at the Owner’s disposal by the Project Manager in the premises of the latter.

13.3   

Within six weeks of the Substantial Completion Date, the Lessee shall have access to the following documents, the original and any electronic versions of which shall be put at the Owner’s disposal by the Project Manager in the premises of the latter:

(a)  

any handover certificates (“ procès-verbaux de reception ”) required under Applicable Law in New Caledonia together with any reservations;

(b)  

the Definitive Acceptance Certificate together with any reservations;

(c)  

the Administrative Authorisations and their application forms;

(d)  

the certificates for each Insurance Policy and evidence of the due payment of the premiums under each Insurance Policy;

(e)  

the progress report specified in Clause 5.3 and evidence that each payment due and payable to each Contractor has been made; and

(f)  

the inspection plans (“ plans de recollement ”) of the Assets.

13.4   

Within 6 weeks as of the Final Completion Date, the Lessee shall have access to the following documents, the original and any electronic versions of which shall be made available to the Owner by the Project Manager at the premises of the latter:

(a)  

any additional handover certificates (“ procès-verbaux de reception ”) required under Applicable Law in New Caledonia and declared after the Substantial Completion Date together with any reservations attached thereto;

(b)  

the Final Completion Certificate together with any reservations;

(c)  

an exhaustive list of the contact details of each Contractor together with the names of their insurers (if insured);

(d)  

the agreements entered into between the Project Manager and the Contractors relating to the Assets together with any guarantees of such Contractors;

(e)  

the progress report specified in Clause 5.3 which shall also contain any necessary information as to the achievement of the Production Test, and evidence that each payment due and payable to each Contractor has been made;

(f)  

each Administrative Authorisation issued subsequent to the Substantial Completion Date up to the Final Completion Date and its application form; and

(g)  

the Insurance Policies and evidence of full payment of the premiums by the Project Manager.

14   

COMPLIANCE CERTIFICATE

14.1   

The Project Manager shall obtain the compliance certificate(s) (“ certificat(s) de conformité ”) provided for in articles 33 and 34 of order (“ déliberation ”) n°19 dated June 8, 1973 as amended, within twelve months as of receipt by the administrative authorities of the declaration(s) of completion of the Works.

14.2   

The Project Manager undertakes to perform at its own cost and risk all works and duties necessary to obtain the compliance certificate(s) as soon as possible.

14.3   

The Project Manager shall provide the Owner with the original version(s) of the compliance certificate(s) within 5 Business Days of its (their) receipt.

14.4   

If any administrative authority refuses to issue compliance certificate(s) or if the compliance certificate(s) is (are) not issued within the time limit provided in Clause 14.1, the obligation of the Project Manager to obtain the compliance certificate(s) shall continue in accordance with Clause 15.2(c). In this event, the Owner and the Project Manager will, together with the Tax Investors, meet with a view to: (a) discussing how the Project Manager plans to obtain the compliance certificate(s) ; and (b) formulating a plan, if possible in the Owner’s reasonable opinion, to be implemented by the Project Manager, to enable the Project Manager to obtain the compliance certificate(s).

15   

TERM

15.1   

Subject to Clause 15.2, this Agreement shall commence on the date hereof and shall end, except as otherwise provided herein, on the Final Completion Date.

15.2   

After the Final Completion Date, the Project Manager shall continue:

(a)  

to remedy all the defects (if any) identified by the Project Manager in its own capacity and as Lessee at the time of the handover by the Contractors, following the Substantial Completion Date or the Final Completion Date;

(b)  

to pay the Contractors;

(c)  

to obtain any compliance certificate(s); and

(d)  

to represent the Owner in any proceedings commenced pursuant to the powers granted to it under Clause 21.

16   

CONSTRUCTION COSTS

16.1   

The Owner agrees to pay the Project Manager in connection with its assignment under this Agreement the Construction Costs.

16.2   

Cost overruns

(a)  

If the cost price of the Works (including, for the avoidance of doubt, the cost of labour or equipment, the costs of any change or increase required by the authorities and any other cost which comprises and/or is covered by the Construction Costs) exceeds the Construction Costs, the Construction Costs may, at the Project Manager’s election, be increased by an amount including any taxes not exceeding 20% of the Construction Costs (the “ Cost Overruns ”), provided, however, that:

(i)  

the Project Manager notifies the Owner of any Cost Overruns at least 30 days before the expected Substantial Completion Date;

(ii)  

any Cost Overruns shall be funded pursuant to Loan Agreement; and

(iii)  

the Cost Overruns shall be fixed as at the Substantial Completion Date and paid on or before the date falling 30 days after the Substantial Completion Date.

(b)  

If the overruns are anticipated to exceed 20% of the Construction Costs, the Parties shall meet in order to decide if the excess could be funded by the Lender. If the Parties agree that such excess could be funded by the Lender, the Project Manager will be entitled to elect that the Cost Overruns be increased up to the amount so agreed and Clauses 16.2(a)(ii) and (iii) will apply.

17   

TERMS AND CONDITIONS OF PAYMENT

17.1   

Payment of the Construction Costs

(a)  

The Construction Costs shall be paid by the Owner to the Project Manager by electronic transfer of immediately available funds to an account that is specified by the Project Manager no later than 48 hours prior to each scheduled payment date.

(b)  

Any payment by the Owner under this Agreement shall be made by the Owner before 11:00 a.m. (New York time) on the scheduled payment date.

17.2   

Terms and conditions of payment

(a)  

The Construction Costs shall be paid in Euro (as calculated pursuant to the Applicable Exchange Rate by the Owner) in four installments on the scheduled payment dates as follows:

(i)  

on the Closing Date: US$ 137,970,000 (“ Installment 1 ”);

(ii)  

on 18 December 2005: US$ 168,630,000 (“ Installment 2 ”);

(iii)  

on 18 December 2006: US$ 204,400,000 (“ Installment 3 ”); and

(iv)  

between the Substantial Completion Date and the date falling 30 days after the Substantial Completion Date (both dates included), all amounts (if any) required in respect of Cost Overruns elected by the Project Manager in accordance with Clause 16.2 (“ Installment 4 ”).

(b)  

The Construction Costs will be paid by the Owner and by the Lender on behalf of the Owner as follows:

(i)  

Payments by the Owner:

The amounts payable by the Owner in respect of each of the four installments set out in Clause 17.2(a) will be:

-  

in respect of Installment 1: 24.17% x 27% x US$ 511,000,000 denominated in Euro at the Applicable Exchange Rate for 2004;

-  

in respect of Installment 2: 26.75% x 33% x US$ 511,000,000 denominated in Euro at the Applicable Exchange Rate for year 2005, multiplied by the sum of the percentages underwritten by the Tax Investors according to appendix 6 of the Tax Loan Agreement for that year;

-  

in respect of Installment 3: 26.75% x 40% x US$ 511,000,000 denominated in Euro at the Applicable Exchange Rate for year 2006, multiplied by the sum of the percentages underwritten by the Tax Investors according to appendix 6 of the Tax Loan Agreement for that year; and

-  

in respect of Installment 4: 0.

(ii)  

Payment by the Lender on behalf of the Owner:

The difference between (i) each amount mentioned in Clause 17.2(b)(i) as currently expressed in USD (and which shall be exchanged and paid in Euro) and (ii) each corresponding installment expressed in USD in Clause 17.2(a), shall be paid in USD directly by the Lender to the Project Manager, on the Owner’s behalf, on the relevant due date.

The Parties agree that such payments made in USD by the Lender to the Project Manager on the Owner’s behalf shall be deemed to meet the obligations of the Owner to pay the Construction Costs in Euro.

The Project Manager shall confirm in writing to the Owner, using the notification form attached as Appendix 3, that it received full payment of each installment due from the Lender in accordance with this Clause 17.2(b)(ii) within 2 Business Days as of the time limits set forth in Clause 17.2(a).

(c)  

Installment 2 will be paid by the Owner subject to the Project Manager providing the Owner with a copy of the New Building Permit on or before 1 ^st December 2005.

18   

REPRESENTATIONS

18.1   

The Owner hereby makes the following representations to the Project Manager as at the date of this Agreement:

(a)  

Status : the Owner is a groupement d’intérêt économique duly organised and validly existing under the laws of France and the laws applicable in New Caledonia, and it

(b)  

possesses the capacity to sue and be sued in its own name and has the power and authority to carry on its business and to own its assets and has no immunity from jurisdiction;

(c)  

Capacity and authority : the Owner has full legal capacity to execute, deliver and perform its obligations under this Agreement and each of the other Transaction Documents to which it is a party and to carry out the transactions contemplated by such documents and all necessary corporate and other action has been taken to authorise the execution, delivery and performance hereof and thereof by the Owner; and

(d)  

Validity, non-conflict : this Agreement and each other Transaction Document to which the Owner is a party:

(i)  

has been duly executed and validly delivered by the Owner and constitutes a valid, legal and binding obligation of the Owner enforceable against the Owner in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium and similar laws of general application relating to or affecting creditors’ rights; and

(ii)  

does not violate any provisions of any law or regulation or any judgment, order or decree of any governmental authority, agency or court having jurisdiction over it.

18.2   

The Project Manager hereby makes the following representations to the Owner as at the date of this Agreement:

(a)  

Status : the Project Manager is a société anonyme, or a société par actions simplifiée (as the case may be) , duly organised and validly existing under the laws of France, acting through its New Caledonian branch in respect of its operations in New Caledonia (and its New Caledonian branch is duly organised and validly existing under the laws applicable in New Caledonia) and it possesses the capacity to sue and be sued in its own name and has the power and authority to carry on its business and to own its assets and has no immunity from jurisdiction;

(b)  

Powers and authority : the Project Manager has full legal capacity to execute, deliver and perform its obligations under this Agreement and each other Transaction Document to which it is a party and to carry out the transactions contemplated by such documents and all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance hereof and thereof by the Project Manager;

(c)  

Binding obligations : the obligations of the Project Manager under this Agreement and each other Transaction Document to which the Project Manager is a party constitute its valid, legal, binding and enforceable obligations, subject to bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium and similar laws of general applicability relating to or affecting creditors’ rights;

(d)  

Contraventions : the execution, delivery and performance by the Project Manager of this Agreement and each Transaction Document to which it is a party does not:

(i)  

contravene any applicable law or regulation or any judgment, order or decree of any governmental authority, agency or court having jurisdiction over it;

(ii)  

result in any breach of any of the provisions of, or constitute a default under, any agreement or other instrument to which the Project Manager is a party or any licence or other authorisation to which it is subject or by which it is bound; or

(iii)  

contravene or conflict with the provisions of its constitutional documents ( statuts ),

in each case, save where such contravention is being contested in good faith, by an appropriate proceeding;

(e)  

Insolvency: the Project Manager has taken no action nor, to its knowledge, have any steps been taken or legal proceedings been started or threatened against it for winding-up, dissolution, re-organisation, or bankruptcy;

(f)  

No default: so far as it is aware the Project Manager is not in default under any obligation under any agreement to which it is a party or which is binding on it in a manner or to an extent which could reasonably be expected to have a material adverse effect on the Project Manager’s operations or on the Owner’s or Tax Investors’ rights and obligations except where such default or alleged default is being contested in good faith;

(g)  

Litigation : there are no actions, suits or proceedings pending or, to the Project Manager’s knowledge, threatened against or affecting the Project Manager which would reasonably be expected to have a material adverse effect on the ability of the Project Manager to perform its obligations under the Transaction Documents to which it is a party;

(h)  

Authorisations : all governmental authorisations, licences, consents, filings and registrations required:

(i)  

for the conduct of business trade and ordinary activities of the Project Manager, in particular the Operating Permit;

(ii)  

for the performance and discharge of the obligations of the Project Manager under the Transaction Documents to which it is a party; and

(iii)  

in connection with the execution, delivery, validity and enforceability of the Transaction Documents to which it is a party,

have been, or, as the case may be, obtained or made, except to the extent that they are not immediately necessary or failure to receive, benefit from or make the same would not have a material adverse effect on the operations of the Project Manager;

(i)  

Taxes : except as disclosed in writing to the Owner prior to the date of this Agreement: (a) there are no material disputes pending or, to the Project Manager’s knowledge, threatened with governmental authorities in respect of the Project Manager’s non-payment of Taxes; (b) the Project Manager has filed or caused to be filed all Tax returns required; and (c) the Project Manager has paid all Taxes due and

payable on the returns contemplated by this Clause 18.2(i) except in each case (a) to (c) where (A) the obligation to file or pay is being contested in good faith and by appropriate proceedings, or (B) the failure to file or pay would not have a material adverse effect on the Project Manager’s operations or its ability to perform its obligations under the Transaction Documents;

(j)  

Environment: The Project Manager conducts its operations and assets in New Caledonia and will construct and commission the Assets in compliance with all applicable Environmental Laws except where appropriate remedial action acceptable to appropriate regulatory bodies is being taken; and

(k)  

Accounts : the audited financial statements of the Project Manager as of and for the period ended December 31, 2003 fairly present in all material respects the financial condition of the Project Manager as of the date of such financial statements in accordance with French generally accepted accounting principles, and as of the date of this Agreement, except as disclosed in writing to the Owner (including, without limitation, pursuant to the Disclosure Letter) or as publicly disclosed prior to the date of this Agreement, since the date of such financial statements there has been no material adverse change in the financial condition of the Project Manager.

19   

TERMINATION EVENTS

19.1   

Owner Construction Agreement Termination Events

(a)  

Non-payment: the Project Manager does not pay on the due date any amount payable by it under this Agreement unless the non-payment is remedied within 10 Business Days of written notice by the Owner;

(b)  

Misrepresentation: a representation or warranty made or repeated by the Project Manager in a Transaction Document is incorrect in any material respect when made or repeated and would adversely affect the rights of the Owner under this Agreement;

(c)  

Girardin Law’s benefits: any event which results in the withdrawal or deprivation of the DGI Final Approval;

(d)  

Total Loss: a Total Loss occurs or on before the Substantial Completion Date;

(e)  

Abandonment: an Abandonment occurs;

(f)  

Unlawfulness: it becomes unlawful for the Project Manager to perform or comply with any of its obligations under this Agreement or any other Transaction Document;

(g)  

Insolvency proceedings or winding-up: the Project Manager:

(i)  

is in a state of suspension of payment ( cessation des paiements ), has stopped making payments, has given up, by way of payment, a large part of its assets to its creditors or has entered into a voluntary agreement ( accord amiable ) with some of its creditors which relates to the refinancing of a large part of its indebtedness;

(ii)  

becomes subject to a voluntary arrangement procedure ( procédure de règlement amiable ) or a judicial recovery proceeding ( procédure de redressement judiciaire ) (and the administrator ( administrateur judiciaire ) nominated in relation with this proceeding refuses (or is deemed to have refused) the continuation of any one of the Transaction Documents to which the Project Manager is a party); or

(iii)  

becomes subject to a voluntary or mandatory winding-up;

(h)  

Insurance: either:

(i)  

the Project Manager fails to obtain and maintain, or cause to be obtained and maintained, the Insurance Policies in accordance with Clause 9; or

(ii)  

any insurer cancels either of the Insurance Policies described in Clauses 9.1(a)(i), 9.1(a)(ii) and 9.1(a)(iii),

provided that such failure shall not constitute an Owner Construction Agreement Termination Event if it continues for a period of not more than fifteen (15) Business Days (such period being extended to twenty (20) Business Days to the extent that the Project Manager is in good faith seeking to replace or reinstate any Insurance Policy);

(i)  

Environmental proceedings:

(i)  

a judicial proceeding is taken against the Owner and/or the Project Manager in relation to the Assets with respect to environmental damages in an amount exceeding EUR 50,000,000 which is not contested in good faith by either the Owner and/or the Project Manager as relevant (it being understood that the Project Manager may intervene if not named in the proceeding to ensure that the proceeding is being contested), or, if it is contested in good faith, where such contestation is still pending after :

(A)  

in the case of a proceeding against the Project Manager, five years from its initiation; or

(B)  

in the case of a proceeding against the Owner, two years from its initiation,

except where an expert of international standing appointed jointly by the Parties has delivered an opinion that such judicial proceeding has no realistic prospect of success;

(ii)  

a judicial proceeding is taken against the Project Manager in relation to any of its other material assets being part of the Plant with respect to environmental damages in an amount exceeding EUR 150,000,000 and which:

(A)  

is not contested in good faith by the Project Manager (unless such contestation is still pending after five years from its initiation); and

(B)  

would affect the capacity of the Project Manager to perform its obligations under this Agreement;

(j)  

Expropriation and requisition: any of the following occurs:

(i)  

expropriation by any governmental authority or any local public body acting under governmental authority of all or a substantial part of the Assets; or

(ii)  

requisition or occupation of all or a substantial part of the Assets during the Construction Period by any duly-empowered authority or agency for a period exceeding two years;

(k)  

Transaction Documents unenforceable or terminated: this Agreement or any other Transaction Document is declared in a final judgment to be unenforceable against any party to the Transaction Documents other than the Owner;

(l)  

Cross-default: any of the following occurs:

(i)  

a Lease Termination Event;

(ii)  

an acceleration of the Loan Agreement or the Tax Loan Agreement;

(iii)  

any continuing event of default under any Transaction Document other than the First Demand Gua