_TECHNICAL ASSISTANCE AGREEMENT_RBLPL

TECHNICAL ASSISTANCE AGREEMENT THIS TECHNICAL ASSISTANCE AGREEMENT (“Agreement”) is made at on this [●], 2020 by and between: SUMMIT MEGHNAGHAT II POWER COMPANY LIMITED a company established under the laws of Bangladesh Companies Act-1994 and having its Office at Summit Centre, 18 Kawran Bazar Commercial Area, Dhaka - 1215, Bangladesh and its Chief Executive Officer, […Name…..] Hereinafter referred to as the “SMIIPCL” which term or expression as hereunder used shall include its successors and assigns) of the part- A, And JERA CO., INC. a company incorporated under the laws of Japan and having its Office at Nihonbashi Takashimaya Mitsui Building 25th Floor, 2-5-1 Nihonbashi, Chuo-ku, Tokyo 103-6125 Japan through its President, Mr. Satoshi Onoda (Hereinafter referred to as the “JERA” which term or expression as hereunder used shall include its successors and assigns) of the part-B. SMIIPCL and JERA are also hereinafter referred to individually as ‘Party’ and jointly as ‘Parties’. WHEREAS JERA is in the business of power production, develop business model for power companies, plan & development of power plant, capacity optimization of power plants, O & M Engineering support, Technical supports power plant operation, investment in power generation companies and other management support service to their Intended Customers and possible customer in relation to their business support. SMIIPCL is a special purpose company established for the purpose of design, engineering, manufacturing, financing, construction, completing, permitting, testing, commissioning, insurance, ownership, operation and maintenance of a duel Fuel (Gas/Fuel Oil) Fired combined cycle power plant at Meghnaghat, Bangladesh (the “Project”). SMIIPCL has approached JERA to provide the technical assistance regarding constriction and setup of this project and JERA has shown its willingness to provide the same. The Parties hereto are desirous of entering into this Agreement that sets out the terms and conditions on which JERA shall provide the assistance to SMIIPCL. NOW, THEREFORE, in consideration of the mutual covenants set forth below, it is agreed as follows: DEFINITIONS “Agreement” shall mean this Assistance Agreement and any written modifications thereto by an instrument of equal force. “Approvals” shall mean BIDA and Bangladesh Bank permissions, consents, validations, confirmations and other authorizations as may be required to be obtained in order to implement the provisions of this Agreement including all permissions/authorizations from Bangladesh Bank. “Affiliate” means a legal entity which Controls, or is Controlled by, or which is Controlled by an entity which Controls, a Party, and “Control” means the ownership, directly or indirectly, of fifty (50%) percent or more of the voting rights in a legal entity. “Day” shall mean a working day and shall exclude weekly holidays (Friday and Saturday) and holidays declared by the Government of Bangladesh and/ or by any other statutory authority. “Effective Date” shall mean the date of execution of this Agreement as provided hereinabove. “Assistance” shall mean the assistance, more specifically provided to in Annexure ‘A’ to this Agreement to be rendered by JERA to SMIIPCL in terms hereof. “Force Majeure” shall mean and include, to the extent that the event is not within the reasonable control of the Party whose performance under this Agreement is affected thereby, any of the following events such as war, terrorism, hostilities, acts of the public enemy or of belligerents, sabotage, blockage, revolution, insurrection, riot or disorder; expropriation, requisition, confiscation or nationalization; act of God/ nature; acts of Government or any local, state authority, fire, frost, earthquake, storm, lightning, or any other event, whether or not of the same class or kind as those above set out and whether or not caused directly or indirectly by the act of the non-affected party. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any national, state, prefectural or local government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. “Person” shall mean and include any legal or natural person, partnership, firm, trust, liaison office, government or local authority, department or other body (whether incorporated or unincorporated). “Confidential Information” means information that: (a) is by its nature confidential; (b) all the information provided by SMIIPCL to JERA related to its business whether financial, technical or personnel related; In and for the purpose of this Agreement, the singular includes the plural and vice-versa, and any reference to one gender includes the other gender. PROVISION OF ASSISTANCE JERA shall render all Assistance as provided in Annexure ‘A’ under the Agreement, in the manner provided herein below through its own employees, or agents, or third parties and SMIIPCL shall be liable to make all arrangement for the provisions of Assistance and maintain all necessary for compliance of any applicable law, in Bangladesh or elsewhere. SMIIPCL shall be entitled to all the benefits and profits arising from or incidental to the Assistance provided by JERA under this Agreement. RESPONSIBILITIES/RIGHTS OF JERA JERA will be responsible for provision of the Assistance in an efficient and effective manner. JERA shall issue invoices to SMIIPCL as per the Assistance mentioned in Annexure 'A'. JERA shall be entitled during all times to enter into an agreement with any third party for the provisions of the same or similar assistance as the Assistance. Expect as otherwise stated in this Agreement, JERA shall provide all facilities to the expert Personnel and their family, such as, but not limited to: Vehicle, driver, insurance, registration, taxes, fees, services and repairs for Expert Personnel’s family; Any transport and unpacking/packing of household goods (including customs duties, fees, and storage) for moving into, within and out of Bangladesh; Expenses of moving in/out of Bangladesh; Home leave expense; JERA shall render educational expense for expert Personnel’s accompanying children based on JERA’s standards JERA shall report to SMIIPCL of matters related to the expert Personnel’s service, change in working conditions, personnel changes, work evaluation by SMIIPCL, and separation from or dismissal by JERA and any other necessary matters RESPONSIBILITIES/RIGHTS OF SMIIPCL SMIIPCL may provide all information and/or documents, equipment, tools all other necessary as may be required or requested by JERA in order to provide the Assistance. SMIIPCL may provide access to all relevant technical, managerial, installation, operation and handling Jobs /information and material as may be required or requested by JERA for providing the Assistance in accordance with the terms of this Agreement. SMIIPCL provide all accommodation, transportation and all other required facility to travel, stay and movement within the service area. (project and all other place as required to provide services) SMIIPCL shall make timely and regular payment towards the Technical Assistance fee for the Assistance to JERA in accordance with the provisions of this Agreement. The Parties agree that the expert Personnel share by JERA shall work for SMIIPCL during the service Period, provided, that, expert Personnel may attend to matters pertaining to JERA (e.g., administrative matters in relation to Expert Personnel’s employment, as well as reporting to JERA of matters related to the assitance hereunder) from time to time as reasonably necessary. Prior to the commencement of assistance Period, SMIIPCL shall, at its own cost and expense, take necessary measures, obtain and thereafter maintain all required work permits, residency permits and/or visas or similar governmental approvals for the expert Personnel (and the dependents of the Expert Personnel, as the case may be). The commencement of the assistance Period is subject to the relevant Expert Personnel's receipt of all required work permits, residency permits and/or visas or similar governmental approvals. SMIIPCL shall provide each expert Personnel with such information and assistance as he/she may reasonably require to carry out his/her obligations. During the Service Period, SMIIPCL shall be solely responsible for providing any health insurance, disability insurance, life insurance, unemployment insurance, participation in and contributions to any pension or profit-sharing plans, or any other benefit as per the rules and regulations under Bangladeshi law. With regard to the month when the expert Personnel start to work in SMIIPCL, the salary shall be calculated and paid on a pro-rata basis. SMIIPCL will pay the salary of each expert Personnel by telegraphic transfer separately to JERA’s bank account by the end of each quarter. SMIIPCL shall be responsible for reimbursing the expert Personnel for any and all reasonable out-of-pocket business expenses incurred by the expert Personnel in connection with providing the Services under this Agreement, including expenses incurred for business travel and accommodation. SMIIPCL shall report to JERA of matters related to the expert Personnel’s service, change in working conditions, personnel changes, work evaluation by SMIIPCL, and separation from or dismissal by JERA and any other necessary matters. During the term of this Agreement, SMIIPCL shall be responsible for providing the Expert Personnel with sufficiently safe and secure working environment at SMIIPCL’s expense. Hygiene, medical treatment, and safety controls for the Expert Personnel are subject to SMIIPCL’s standards. However, JERA shall not be prevented from handling hygiene, medical care and safety in accordance with JERA’s employee standards. JERA shall provide welfare program to the Expert Personnel in accordance with JERA’s employee standards. However, welfare program provided by JERA based on JERA's employee standards and those provided by SMIIPCL based on SMIIPCL' s employee standards shall not preclude the handling of each welfare program. SMIIPCL shall obtain or provide any work permits, visas and any other administrative authorisations required to allow the Expert Personnel, and if applicable their dependents, to work and reside in the Service Location for the Service Period, at SMIIPCL’s expense. SMIIPCL shall render all assistance in obtaining customs clearance of personal belongings of each Expert Personnel, and if applicable his or her dependents, at SMIIPCL's expense. SMIIPCL agrees that Expert Personnel has the right to take (1) annual leave (max. 20 days), (2) sick leave (max. 20 days), (3) special leave (max. 14 days, temporary return to Japan) and (4) adjustment leave (in the number of days to adjust the number of holidays to match Japanese public holidays) per year to comply with JERA’s employees regulation/rule. SMIIPCL shall provide holidays to each of the Expert Personnel in accordance with SMIIPCL’s internal policy and regulation. If the number of holidays is less than that of JERA’s standard, the respective Expert Personnel is entitled to take additional days of holiday in the number of such shortage. SMIIPCL agrees to be responsible for business travel expenses and necessary expenses that arise from the Expert Personnel in accordance with SMIIPCL’s internal policy and regulation. SMIIPCL agrees that the Expert Personnel travels to Japan once a year in order to report their work updates to JERA and SMIIPCL agrees to be responsible for such business travel expenses (seat class: business). The Expert Personnel will be provided with the following benefits and services to the same extent that SMIIPCL provides such benefits and services to the SMIIPCL's managerial staff in the Service Locations: facilities and equipment, including all necessary safety, information technology and communication equipment to perform the Services; security, safety and first aid services (including emergency medical evacuation) facilities; and on-the-job training or programs needed to enable each Expert Personnel to competently and effectively use the items and services referred to in this Clause 7(h). SMIIPCL shall provide all facilities and administration as follows to each of the Expert Personnel at SMIIPCL’s expense: Tax application in Bangladesh; Travel expenses between Dhaka and Bangkok/Singapore, and/or hotel expenses not over 250,000- taka/quarterly; Travel expenses between Dhaka and Japan (for taking care of his/her family: seat class: business) twice a year, SMIIPCL shall report to JERA when SMIIPCL provides them; and Payment of any required social insurance and pension fund including payment administration services required by laws of Bangladesh. SMIIPCL shall assume full responsibility for any Loss arising from or in connection with each Expert Personnel's performance of the Services during the Service Period of such Expert Personnel. SMIIPCL shall comply with all applicable Laws in performing the transactions or its activities contemplated under this Agreement. FEES FOR SERVICES AND PAYMENTS Parties are agreed to charge and pay fees as specified at Annexure “B”. The payment for the Assistance shall be made by SMIIPCL against the invoices raised by JERA for the Assistance rendered after SMIIPCL has confirmed the Assistance are completed. SMIIPCL shall make the payment against the invoice within thirty (30) days of the receipt of each invoice, by way of a Telegraphic Transfer (TT) or any other legal way to designated Bank account in invoice. SMIIPCL arrange all necessary permission for sending the assistance fee to JERA. All payments made by SMIIPCL pursuant to this Agreement shall be net of applicable Bangladesh taxes and other taxes, if any levied on that payment shall be reimbursed by SMIIPCL at actual, except the corporate income tax payable by JERA. VAT, if applicable on the Services, shall be paid extra by SMIIPCL. SMIIPCL shall reimburse all reasonable expenses incurred by JERA in the course of rendering the Assistance from time to time subject to SMIIPCL’s prior written consent. Each submission of expenses for reimbursement (i) shall be supported by an itemized description of expenses claimed and attached receipts when such receipts are reasonably available and (ii) will be deemed to contain JERA’s certification that all expenses submitted are based upon actual costs incurred. APPROVALS The Agreement is conditional upon the Parties obtaining all requisite Government Approvals, if any required by each of them. Each of the Parties shall at their expense apply for and obtain the necessary approvals within a reasonable time. In the event of either of the Parties failing to obtain the necessary approvals as above mentioned, the Agreement shall be deemed to be cancelled or modified as may be appropriate in the circumstances. CONFIDENTIALITY Each Party agrees that it shall maintain the confidentiality of the Confidential Information including all data relating to financial, technical, Installation, Repairing, production and handling with respect to the other Party and its operations and shall not be entitled to any ownership or any other right of the other Party’s confidential and proprietary information. Each Party further agrees that it shall not disclose or communicate any of the information to any competitor or third party or use or refer to any of this information for any purpose whatsoever other than as required in terms of this Agreement. REPRESENTATIONS AND WARRANTIES Each Party represents and warrants to the other Party that: Each Party is duly incorporated and validly existing entity in accordance with the laws of the country where it is incorporated. The Parties are authorized to enter into and perform this Agreement, and this Agreement when executed, will be duly authorized, executed and delivered and will constitute its valid and binding obligations, enforceable in accordance with the terms herein except insofar as the enforceability may be limited by general principles of equity. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein do not and will not (a) contravene its articles, by-laws, or other constitutional documents; (b) contravene any material provision of any material indenture, agreement or instrument to which it is a party or by which it or any of its properties is bound; (c) conflict with, result in a breach of, constitute (with notice or the lapse of time or both) a default under, or permit the termination or acceleration of any obligation under any such indenture, agreement, or instrument; (d) contravene any applicable law, rule, regulation, ruling, order, judgment or decree. There are no actions, suits, claims, proceedings or investigations pending or to its knowledge, threatened against it in any court or before or by any governmental authority, agency, or instrumentality or any arbitration in which there is a reasonable possibility of an adverse decision that could, whether individually or in the aggregate, materially and adversely affect its ability to perform its obligations under this Agreement. VALIDITY AND TERMINATION The term of this Agreement (the “Term”) shall commence on the date first written above and end on completion of the Secondment Period for the last remaining Seconded Personnel. Notwithstanding Clause 10(a): this Agreement may be terminated by either Party if: the other Party breaches this Agreement and such breach is incapable of cure, or if such breach is capable of cure, the other Party does not cure such breach within [fourteen (14)] calendar days of a notice by the non-breaching Party stating such breach; or proceedings in insolvency or bankruptcy or winding up or any other similar proceedings are instituted by or against the other Party or a receiver for the other Party is appointed. Any rights or obligations of the Parties hereunder that may have accrued prior to the expiration or termination of this Agreement shall survive any such termination or expiration of this Agreement. FORCE MAJEURE The performance of either Party shall not be deemed to have been affected, if the same is suspended on account of a Force Majeure event. On the occurrence of a Force Majeure event, any Party claiming a cause or an event of Force Majeure shall promptly as soon as possible after the cause or event and in any case within fifteen (15) Days, notify the other Party in writing and provide full particulars of the cause or event of Force Majeure and the date of first occurrence thereof, and also keep the other Party informed of any further developments. The Party affected by the Force Majeure shall use all reasonable efforts to remove the cause or event of Force Majeure or mitigate its effects and both Parties shall resume performance hereunder immediately when such cause or event is removed. If such cause or event of Force Majeure or its effects shall continue for a period of thirty (30) days in circumstances where the rendering of Services is materially and adversely affected either operationally or financially and the Parties are unable by agreement to avoid such cause event or effects, this Agreement shall terminate on expiry of such thirty (30) days. However, it is hereby agreed by the Parties that payment of the fee or other expenses as due and payable by SMIIPCL to JERA in terms of this Agreement shall not be affected by any Force Majeure event. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of Bangladesh. ARBITRATION If any dispute or difference of any kind whatsoever shall arise between the Parties in connection with or arising out of this Agreement (and whether before or after the termination or breach of this Agreement) Parties shall promptly and in good faith negotiate with a view to its amicable resolution and settlement. In the event no amicable resolution or settlement is reached within a period of sixty (60) days from the date on which the dispute or difference arose, such dispute or difference shall be finally settled by arbitration in Tokyo, in accordance with the Commercial Arbitration Rules of The Japan Commercial Arbitration Association. The existence of any dispute or difference or the initiation or continuance of the arbitration proceedings shall not postpone or delay the performance by the Parties of their respective obligations pursuant to this Agreement. LIABILITY OF THE PARTIES In no event shall any Party be liable to the other for consequential, special, incidental or punitive loss, damage or expense (including without limitation, lost profits, opportunity costs, etc.) arising out of or in pursuance to this Agreement except in the event of an intentional act or the gross negligence of any Party. However, in the case of either Party commits an intentional act or the gross negligence, the other Party shall be able to claim damages within a scope not to exceed the upper limit of 3 times of the consideration. MISCELLANEOUS The Parties shall not have and will not represent themselves as having any authority to act as the agent of the other or to create any contractual obligation to any third party on behalf of the other. Each Party hereby agrees that it shall not be entitled to assign any rights and obligations under this Agreement to any third party without the prior approval of the other Party. This Agreement evidences the entire Agreement between the Parties and it overrides any earlier agreement or other document recording the understanding, or commitments of between the Parties prior to the execution hereof. If any provision of the Agreement shall be declared invalid or unenforceable the remainder of the Agreement shall continue in full force and effect. This Agreement cannot be changed, modified or amended except by a supplementary agreement signed by both Parties. IN WITNESS WHEREOF SMIIPCL and JERA hereto have executed this Agreement on the day and year first hereinabove written. SUMMIT MEGHNAGHAT II POWER COMPANY LIMITED JERA CO., INC. Name:……………….. Name: Title: CEO of SMIIPCL Title: [●] of JERA ANNEXURE ‘A’ Assistance to be provided by JERA No. Contents 1 Technical Assistance 　 The scope of work of Technical Assistance will be the following activities: To check and review O&M contract and LTSA including re-signing, extension and change contract To check and review annual budget and monthly cash flow (income and expenditure) for O&M, construction, and implementation of unplanned repair including remodeling, replacement and improvement To check and review O&M organization and system change To check and advise existing plant operation method and review O&M manuals and procedures To check and review the education and training plan regarding O&M and construction To check and review the basic and root design of construction projects including budget, plant specification and schedule To attend the executive meeting of SCL, SBPCL, SMPCL, SMIIPCL, and other company for the Projects To analyze and evaluate troubles and unplanned outages To check and review progress on construction plans and O&M plans To support for technical issues regarding CCGT ANNEXURE ‘B’ Assistance Fee agreed by SMIIPCL & JERA Sl. Service Name Unit Price 1 Technical Assistance for project (Construction) USD/Year 396,000 Remarks □ SMIIPCL shall pay salary, bonus (if any) to experts send by JERA out of this Technical Assistance Fee. Note-1: Financial Year of SMIIPCL will be considered as Assistance Period for JERA. Note-2: JERA will be allowed to rise invoice after the completion of assistance period.