Information contained herein, marked with [***], is being filed pursuant to a
request for confidential treatment.
SINO-FOREIGN COOPERATIVE JOINT VENTURE
JIAOZUO WAN FANG POWER COMPANY LIMITED
CONTRACT
March 27, 1996
250 MW Power Plant
Jiaozuo City, Henan Province
People's Republic of China
T A B L E O F C O N T E N T S
Chapters Pages
Chapter 1. Definitions 1
Chapter 2. Parties to this Contract; Representations and Warranties 4
Chapter 3. Establishment of the Joint Venture 5
Chapter 4. Purpose and Scope of Business 6
Chapter 5. Total Amount of Investment and Capital 6
Chapter 6. Responsibilities of Each Party 8
Chapter 7. Construction of the Power Plant 10
Chapter 8. Operation of the Power Plant 10
Chapter 9. Board of Directors 11
Chapter 10 Management 12
Chapter 11. Personnel and Labor Management 13
Chapter 12. Trade Union 14
Chapter 13. Purchase of Equipment 14
Chapter 14. Taxes and Licenses 14
Chapter 15. Accounting; Distribution of Profits; Priority of Payments 15
Chapter 16. Sale of Electricity 17
Chapter 17. Independent Auditing 17
Chapter 18. Foreign Exchange Management 17
Chapter 18. Foreign Exchange Management 17
Chapter 19. Term 18
Chapter 20. Insurance 18
Chapter 21. Land Use 19
Chapter 22. Applicable Law 19
(i)
Chapter 23. Effects of Changes in Chinese Law 19
Chapter 24. Breach of Contract 19
Chapter 25. Termination 20
Chapter 26. Liquidation 21
Chapter 27. Force Majeure 22
Chapter 28. Settlement of Disputes 23
Chapter 29. Non-Disclosure of Business Information 24
Chapter 30 Miscellaneous 25
(ii)
SINO-FOREIGN COOPERATIVE JOINT VENTURE
JIAOZUO WAN FANG POWER COMPANY LIMITED
CONTRACT
PREAMBLE
This Cooperative Joint Venture Contract is made this 27th day of March,
1996 by and between JIAOZUO ALUMINUM MILL, a Chinese enterprise (the 'Chinese
Party'), and JIAOZUO POWER PARTNERS, L.P., a Cayman Islands exempted limited
partnership (the 'Foreign Party').
WHEREAS, in accordance with the Law of the People's Republic of China on
Sino-foreign Cooperative Enterprises, the implementing rules thereunder and
other relevant Chinese laws and regulations, the Chinese Party and the Foreign
Party, adhering to the principle of equality and mutual benefit and through
friendly consultations, agree to organize a cooperative joint venture
enterprise in Jiaozuo City, Henan Province, the People's Republic of China and
to invest jointly for the purposes described herein, all upon and subject to
the terms and conditions set forth herein;
NOW, THEREFORE, the Parties, intending to be legally bound under Chinese
law, enter into this Contract under the following terms and conditions:
CHAPTER 1
DEFINITIONS
When used in this Contract the following capitalized (or, in the Chinese
version hereof, underlined) terms shall have the meanings set forth below:
'Aluminum Mill Power Supply Contract' means the Power Purchase and Sale
Contract between the Joint Venture and the Chinese Party, as it may be amended
or otherwise modified from time to time.
'Articles of Association' means the Articles of Association of the Joint
Venture signed by the Parties.
'Board' means the Board of Directors of the Joint Venture established
pursuant to Chapter 9.1.
'Business License' means the business license of the Joint Venture to be
issued by the Jiaozuo Municipal Administration for Industry and Commerce.
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'Coal Purchase and Transportation Contract' means the Coal Purchase and
Transportation Contract entered into by the Joint Venture for the supply and
transportation of coal, as it may be amended or otherwise modified from time to
time.
'Contract' means this Cooperative Joint Venture Contract, as it may be
amended or otherwise modified from time to time.
'Deputy General Manager' means the Deputy General Manager of the Joint
Venture appointed pursuant to Chapter 10.2.
'Dispatch Contract' means the Dispatch and Interconnection Contract between
the Joint Venture and the Henan Electric Power Corporation.
'Expatriates' has the meaning set forth in Chapter 11.4.
'Financing Documents' means, collectively, all documents executed and
delivered between the Joint Venture and any Party in connection with the
financings contemplated in Chapter 5.5.
'Foreign Exchange Rate' means the exchange rate of U.S. Dollars for
Renminbi actually used by the Joint Venture as permitted by SAEC.
'Foreign Exchange Risk Fund' means the foreign exchange risk fund required
to be funded by the Joint Venture from the Joint Venture's after-tax profits,
as the approved power price has taken into consideration the exchange rate risk
factor. Such fund shall be used to balance the rates of return to both Parties.
'Foreign Exchange Regulations' means the regulations and rules on foreign
exchange published by the relevant authorities of China as they may be amended,
modified, replaced or superseded.
'General Manager' means the General Manager of the Joint Venture appointed
pursuant to Chapter 10.2.
'Interconnection Construction Contract' means the Engineering, Procurement
and Construction Contract between the Joint Venture and the Henan Electric
Power Corporation, for the construction of the transmission facilities, as it
may be amended or otherwise modified form time to time.
'Interconnection Financing Contract' means the financing contract between
the Joint Venture and the Henan Electric Power Corporation, to provide
financing from the Joint Venture to the Henan Electric Power Corporation for
the construction of the transmission facilities, as it may be amended or
otherwise modified from time to time.
'Joint Venture' means the cooperative joint venture company established by
the Chinese Party and the Foreign Party pursuant to the terms of this Contract.
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'Land Use Rights' means the right to the use of the Site issued by the
relevant Chinese government authority in charge of land management as provided
in Chapter 21 and any other land use rights necessary or desirable for the
construction and operation of the Power Plant for the Term.
'Liquidation Committee' means the Liquidation Committee described in
Chapter 26.2.
'MOFTEC' means the Ministry of Foreign Trade and Economic Cooperation of
China or any successor approval authority.
'Parties' means the Chinese Party and the Foreign Party, collectively.
'Party' shall mean either of the Parties, individually.
'Power Company Power Purchase Contract' means the Power Purchase and Sale
Contract between the Joint Venture and the Henan Electric Power Corporation, as
it may be amended or otherwise modified from time to time.
'Power Plant' means the coal-fired electric generating facility to be
located at the Site consisting of 2 x 125 megawatt generating units with a
combined capacity of approximately 250 megawatts, as well as generation and
fuel handling facilities and all other related equipment and facilities.
'Power Plant Power Purchase Contract' means the Power Plant Power Purchase
Contract between the Joint Venture and the Henan Electric Power Corporation for
the purchase by the Joint Venture of electricity for construction, start-up and
other uses at the Power Plant, as it may be amended from time to time.
'Project Contracts' means, collectively, (i) the Power Company Power
Purchase Contract, (ii) the Aluminum Mill Power Supply Contract, (iii) the
construction contracts, (iv) the Site Use Contract, (v) the Coal Purchase and
Transportation Contract, (vi) the Dispatch Contract, (vii) the Financing
Documents, (viii) the Power Plant Power Purchase Contract, (ix) the
Interconnection Financing Contract and (x) the Interconnection Construction
Contract.
'Renminbi' or 'RMB' means the lawful currency of China.
'SAEC' means the State Administration for Exchange Control of China.
'SAIC' means the State Administration for Industry and Commerce of China.
'Site' means the land located at Jiaozuo City, Henan Province, China upon
which the Power Plant is to be constructed and located, as more fully described
on the Site Map.
'Site Map' means the map on which the boundaries of the Site are marked in
red.
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'Site Use Contract' means the Site Use Contract executed by the Joint
Venture relating to the use by the Joint Venture of the Site, as it may be
amended or otherwise modified from time to time.
'State Planning Commission' means the State Planning Commission of China.
'U.S. Dollars' or 'US$' means the lawful currency of the United States of
America.
CHAPTER 2
PARTIES TO THIS CONTRACT; REPRESENTATIONS AND WARRANTIES
2.1 The Parties to this Contract are:
(a) Jiaozuo Aluminum Mill, a Chinese enterprise organized in
accordance with the laws of China and registered with the
Jiaozuo Municipal Administration of Industry and Commerce
(Business License number is 410800-17347144-14931).
Legal Address: 160 Tanan Road
Jiaozuo City
Henan Province
China
Telefax: (86-391) 393-3739
Legal representative: Name: Jin Bao Qing
Position: General Manager
Nationality: Chinese
(b) Jiaozuo Power Partners, L.P., a Cayman Islands exempted
limited partnership.
Legal Address: P.O. Box 309
George Town, Grand Cayman
Cayman Islands, British West Indies
Telefax: (852) 2530-1673
Legal representative: Name: Paul Hanrahan
Position: President of Jiaozuo (GP)
Corporation, its
General Partner
Nationality: U.S.A.
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2.2 Each Party hereby represents and warrants to the other Party that:
(a) (i) in the case of the Chinese Party, it is a state-owned enterprise
duly organized and validly existing as a legal person under the laws
of China; and (ii) in the case of the Foreign Party, it is a Cayman
Islands exempted limited partnership duly organized and validly
existing under the laws of the Cayman Islands;
(b) it has full legal right and power to execute and deliver this Contract
and all of the contracts and documents referred to in this Contract to
which it is a Party and to perform its obligations hereunder and
thereunder; and
(c) it has taken all appropriate and necessary action to authorize the
execution and delivery by it of this Contract and all of the contracts
and documents referred to in this Contract to which it is a Party and
to authorize the performance by it of the terms and conditions hereof
and thereof.
CHAPTER 3
ESTABLISHMENT OF THE JOINT VENTURE
3.1 The Parties will establish the Joint Venture as a Sino-foreign cooperative
joint venture company in accordance with the Law of the People's Republic
of China on Sino-foreign Cooperative Enterprises, the implementing rules
thereunder, other relevant Chinese laws and regulations and the terms of
this Contract.
3.2 The Joint Venture will be a limited liability company with legal person
status. The liability of each Party to the Joint Venture is limited to its
capital contribution. After the Joint Venture has commenced normal
operation, however, the Foreign Party shall bear unlimited liability for
the Joint Venture's indebtedness.
3.3 The name of the Joint Venture in Chinese is 'Jiaozuo Wan Fang Dianli
Youxian Zeren Gongsi.' The name of the Joint Venture in English is 'Jiaozuo
Wan Fang Power Company Limited.' The legal address of the Joint Venture is
Daiwangzhen, Jiaozuo City, Henan Province, China.
3.4 All activities of the Joint Venture will be governed by and will be under
the protection of the promulgated laws, decrees, rules and regulations of
China.
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CHAPTER 4
PURPOSE AND SCOPE OF BUSINESS
4.1 The purpose of the Joint Venture shall be to strengthen economic
cooperation and technical exchanges, to satisfy the electricity
requirements of the Chinese Party, to improve power supply and promote the
development of the economy in Henan Province by adopting advanced and
appropriate technology and scientific management methods, and to
continuously raise the economic efficiency of the Joint Venture and ensure
satisfactory economic benefits for each Party.
4.2 The business scope of the Joint Venture shall be to build, own, operate and
maintain a 2 x 125 MW coal-fired self-supply power plant near the site of
the Jiaozuo Aluminum Mill of Henan Province to generate and sell
electricity according to the relevant contracts and develop and operate
power related business in utilizing coal ash.
4.3 The business activities of the Joint Venture will be carried out in
accordance with the provisions of this Contract, the Articles of
Association and the decisions of the Board.
CHAPTER 5
TOTAL AMOUNT OF INVESTMENT AND CAPITAL
5.1 The total amount of investment in the Joint Venture will be One Billion Two
Hundred Sixty Million Seven Hundred Ninety Thousand Renminbi (RMB
1,260,790,000).
5.2 The total registered capital of the Joint Venture will be Four Hundred
Forty Seven Million Five Hundred Eighty Thousand Renminbi (RMB
447,580,000).
5.3 (a) The Chinese Party will contribute to the registered capital of the
Joint Venture One Hundred Thirty Four Million Two Hundred Seventy Four
Thousand Renminbi (RMB 134,274,000), which is equal to 30% of the
total registered capital of the Joint Venture. The Chinese Party will
make its contribution to the registered capital of the Joint Venture
in the form of Power Plant equipment and Land Use Rights (which Power
Plant equipment and Land Use Rights contributions and corresponding
values shall be confirmed by the Henan Provincial Administration on
State Assets and agreed to by the Parties).
(b) The Foreign Party will contribute to the registered capital of the
Joint Venture Three Hundred Thirteen Million Three Hundred and Six
Thousand Renminbi (RMB 313,306,000), which is equal to 70% of the
total registered capital of the Joint Venture. The Foreign Party will
make its contribution to the registered capital of the Joint Venture
in cash in
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U.S. Dollars at the prevailing Foreign Exchange Rate at the time of
contribution.
5.4 The Parties will fund the entire amount of their respective portions of the
registered capital of the Joint Venture 30 days after the issuance of the
Business License to the Joint Venture. Late payment (unless caused by the
fact that the Joint Venture bank account has not been timely opened or
caused by delays in receipt of wire transfer after being sent) will be
subject to an interest charge of 2% per month (or portion thereof) from the
date due until the date paid. In the event either Party fails to make its
capital contribution within two days of the date due, the other Party may
(but shall not be obligated to) make such contribution, in which case the
percentage of the registered capital of the Parties shall be adjusted
accordingly, subject to the approval by the original examining and
approving authority. The Party failing to make such installment will
nevertheless remain liable for accrued interest from the date due until the
date the other Party makes such contribution.
5.5 (a) The Chinese Party will provide a loan in RMB to the Joint Venture in
an amount equivalent to 30% of the difference between the amount of
the total investment set forth in Chapter 5.1 and the amount of the
registered capital of the Joint Venture set forth in Chapter 5.2 upon
terms acceptable to the Joint Venture.
(b) The Foreign Party will provide a loan in U.S. Dollars to the Joint
Venture in an amount equivalent to 70% of the difference between the
amount of the total investment set forth in Chapter 5.1 and the amount
of the registered capital of the Joint Venture set forth in Chapter
5.2 upon terms acceptable to the Joint Venture.
(c) The Joint Venture shall have no liability or obligation to any person
or entity with respect to the shareholder loans provided pursuant to
this Chapter 5.5 other than to the providers of such shareholder
loans.
5.6 The registered capital of the Joint Venture may be increased with the
written consent of the Parties, the consent of the Board and the approval
of MOFTEC.
5.7 After the Parties have made their entire respective capital contributions
to the Joint Venture, the Joint Venture will engage an accountant
registered in China to verify such capital contributions. Upon the issuance
of a verification report by such accountant, the Joint Venture will issue
an investment certificate to each Party.
5.8 (a) Neither Party may assign, sell, encumber or otherwise transfer all or
any part of its interest in the Joint Venture without first obtaining
(i) the consent of the other Party, which consent may be withheld in
the other Party's sole and absolute discretion; (ii) the unanimous
approval by the Board of Directors; (iii) the approval by the original
examining and approving authority; and (iv) the agreement by the
transferee to assume the transferor's obligation hereunder, provided
that with respect to assignments
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by either Party to one or more of its 100% owned companies, the
Parties will cause their directors to vote for such assignment. Any
instrument purporting to transfer any interest in the Joint Venture in
violation of these restrictions shall be null and void and therefore
shall not be effective to confer any right upon the purported
transferee.
(b) In addition, any such proposed assignment, sale or transfer will be
subject to the right of the other Party as hereinafter described to
acquire the interest proposed to be assigned, sold or transferred. In
the event a Party proposes to assign, sell or transfer all or any part
of its interest in the Joint Venture, the transferring Party will give
a written notice (the 'Assignment/Transfer Notice') to the
non-transferring Party setting forth the terms and conditions upon
which the assignment, sale or transfer is proposed to be made. The
non-transferring Party will have the right, which shall be exercised,
if at all, by notice to the transferring Party within 60 days after
the non-transferring Party receives the Assignment/Transfer Notice, to
acquire such interest upon the same terms and conditions upon which
the assignment, sale or transfer is proposed to be made. If the
transferring Party does not receive such notice within such 60-day
period and if the transferring Party complies with the restrictions in
Chapter 5.8(a), the transferring Party will have the right to assign,
sell or otherwise transfer such interest to the proposed transferee on
the terms and conditions set forth in the Assignment/Transfer Notice.
CHAPTER 6
RESPONSIBILITIES OF EACH PARTY
6.1 The Chinese Party will perform, in addition to its other obligations set
forth in this Contract, each of the following duties:
(a) contributing its capital at the times and in the amounts required
pursuant to Chapter 5;
(b) providing financing as described in Chapter 5.5;
(c) obtaining and delivering to the Joint Venture no later than 15 days
after the approval by MOFTEC of this Contract an original or a
notarized photocopy of a document issued by the relevant Chinese
government authority in charge of land management evidencing that all
governmental consents, approvals and similar items have been obtained
in connection with the grant to the Joint Venture of the Land Use
Rights that are necessary or desirable for the construction and
operation of the Power Plant;
(d) assisting the Joint Venture in obtaining no later than 15 days after
the approval by MOFTEC of this Contract an original or a notarized
photocopy of all relevant approvals (including approvals of the Power
Bureau Power Purchase Contract and the Aluminum Mill Power Supply
Contract and the
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specific pricing provisions contained therein for the entire term of
each such contract) that are necessary or desirable for the
construction and operation of the Power Plant;
(e) arranging for the transfer of the relevant construction related
contracts to the degree that the Joint Venture requests that they be
transferred;
(f) assisting the Joint Venture in purchasing or leasing in China at
reasonable rates in Renminbi such equipment, materials, office
supplies, transportation services, communication facilities and other
goods and services as may be necessary or desirable for the
construction and operation of the Power Plant;
(g) assisting the Joint Venture in recruiting qualified Chinese management
personnel, technical personnel, and workers as contemplated in
Chapters 10 and 11 and assisting the Joint Venture in obtaining
passports and all necessary travel documents required for such persons
to travel overseas for training or other purposes related to the
construction and operation of the Power Plant;
(h) assisting foreign personnel of the Joint Venture in applying for entry
visas, travel documents and work licenses and in arranging for
suitable board, lodging, office space, transportation, medical
facilities and security for such personnel;
(i) assisting the Joint Venture in applying for tax reductions and
exemptions and any other investment incentives and benefits available
to the Joint Venture and the Foreign Party in China and in Henan
Province;
(j) assisting the Joint Venture in applying to the Bank of China as well
as to other authorized banks for the opening of foreign currency and
Renminbi accounts for the Joint Venture; and
(k) performing such other responsibilities as shall be entrusted to it by
the Joint Venture.
6.2 The Foreign Party will perform, in addition to its other obligations set
forth in this Contract, each of the following duties:
(a) contributing its capital at the times and in the amounts required
pursuant to Chapter 5;
(b) providing financing as described in Chapter 5.5;
(c) assisting the Joint Venture in obtaining such equipment, materials,
supplies, goods and services not available in China as may be
necessary or desirable for the construction and operation of the Power
Plant;
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(d) assisting the Joint Venture in recruiting necessary foreign personnel;
and
(e) performing such other responsibilities as shall be entrusted to it by
the Joint Venture.
CHAPTER 7
CONSTRUCTION OF THE POWER PLANT
7.1 The Joint Venture will be responsible for the construction of the Power
Plant. The Joint Venture will work with one or more contractors to assist
it in constructing the Power Plant.
7.2 The Chinese Party and the Foreign Party will work together with
construction contractors to transfer any ongoing design, engineering,
equipment procurement and construction work with respect to the Power Plant
from the Chinese Party to the Joint Venture in accordance with the
construction contracts.
7.3 Since the Power Plant is under construction, at the time the Parties make
contributions to the registered capital of the Joint Venture, the Chinese
Party shall, pursuant to an agreement to be entered into between the
Parties, transfer to the Joint Venture the equipment, materials, Land Use
Rights, completed and ongoing construction work of the Power Plant,
relevant construction contracts and other assets contributed by the Chinese
Party prior to the establishment of the Joint Venture. Detailed
arrangements for such transfer shall be specified in the relevant agreement
to be entered into between the Parties. Both Parties agree to consider the
time factor regarding assets that have been valued and confirmed by the
Henan Provincial Administration on State Assets.
7.4 During the construction period the Joint Venture may enter into contracts
with one or more consulting companies or engineering companies to provide
consulting services.
CHAPTER 8
OPERATION OF THE POWER PLANT
8.1 The Joint Venture will be responsible for the operation and maintenance of
the Power Plant.
8.2 Upon the agreement of both Parties, the Joint Venture may enter into
contracts with one or more companies to provide consulting services with
respect to the operations of the Power Plant.
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CHAPTER 9
BOARD OF DIRECTORS
9.1 The Joint Venture will establish a Board of Directors which will be the
highest authority of the Joint Venture. The Board will decide all major
issues concerning the Joint Venture.
9.2 The Board will be composed of six directors, of whom two will be appointed
by the Chinese Party and four will be appointed by the Foreign Party. The
Board of Directors shall be established on the day the Business License is
issued to the Joint Venture. Each of the directors will serve for a term of
three years and may serve for consecutive terms upon appointment by the
original Party. The Chairman of the Board will be appointed by the Foreign
Party and the Vice-Chairman of the Board will be appointed by the Chinese
Party. If a seat on the Board is vacated by a director prior to the
completion of such director's term, the Party which originally appointed
such director will, as soon as possible, appoint a successor director to
serve out such vacating director's term. The quorum for a Board meeting is
five directors, and the detailed procedures for holding a Board meeting are
specified in the relevant provisions of the Articles of Association.
9.3 Except for the matters listed from (a) to (i) below, all matters considered
by the Board will be subject to the approval of a majority of the entire
Board; however, prior to taking an action which any Party reasonably thinks
might substantially affect such Party's reasonable interests, the Board
shall fully explore other options and attempt to implement the option that
will have the least adverse impact on the reasonable interests of such
Party; provided, however, that such option will not materially affect the
profitability or safe and reliable operation of the Power Plant. The
unanimous approval of the Board will be required to authorize any of the
following actions:
(a) amendment to the Articles of Association of the Joint Venture;
(b) termination and dissolution of the Joint Venture;
(c) increase or decrease or assignment of the registered capital of the
Joint Venture;
(d) merger, split or change of the organizational form of the Joint
Venture;
(e) mortgaging or granting a security interest on the assets of the Joint
Venture;
(f) approval of the year end financial statements of the Joint Venture;
(g) approval of all contracts between the Joint Venture and a Party or an
affiliate company of a Party;
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(h) profit distribution plan of the Joint Venture; and
(i) appointment of the General Manager of the Joint Venture.
9.4 The Chairman of the Board will be the legal representative of the Joint
Venture. The Chairman will have the power to preside over the meetings of
the Board and exercise the other functions of the Chairman set forth in the
Articles of Association. Whenever the Chairman cannot exercise his or her
functions for any reason, the Vice Chairman shall exercise such functions
as the representative of the Chairman until the Chairman resumes his or her
functions or a successor is appointed. Neither the Chairman of the Board
nor the Vice Chairman of the Board shall have the power to take any action
binding the Board or the Joint Venture without the express authorization of
the Board.
9.5 The functions, powers and working procedures of the Board shall be set
forth in the Articles of Association.
9.6 Directors shall serve without compensation except when a director is also a
member of management or an employee of the Joint Venture. All reasonable
traveling and hotel costs for each director incurred in direct connection
with board meetings or Joint Venture business approved by the Board shall
be borne by the Joint Venture in the currency incurred.
CHAPTER 10
MANAGEMENT
10.1 The Joint Venture will be managed using modern and scientific management
techniques.
10.2 The Joint Venture will have a General Manager and a Deputy General Manager.
The General Manager will be recommended by the Foreign Party and will be
appointed by unanimous decision of the Board. The Deputy General Manager
will be recommended by the Chinese Party and will be appointed by majority
decision of the Board. The term of office of the General Manager and the
Deputy General Manager will be three years from the date of appointment.
10.3 The General Manager will be responsible for implementing the decisions of
the Board and organizing and conducting the daily management of the Joint
Venture, and will have the authority to accomplish the foregoing. The
Deputy General Manager will assist the General Manager.
10.4 The details of the appointment of the other senior employees shall be
specified in the Articles of Association.
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CHAPTER 11
PERSONNEL AND LABOR MANAGEMENT
11.1 The initial labor plan, consisting of the number of employees of the Joint
Venture, including levels and job descriptions, will be prepared by the
General Manager and then submitted to the Board for approval. The labor
plan will be revised at least annually by the General Manager and then
submitted to the Board for approval. The Joint Venture will employ only
such number of employees as is necessary for its operations. Increases or
decreases in the total number of employees of the Joint Venture due to
expansion or increased efficiency, respectively, will require the approval
of the Board.
11.2 Labor and personnel policies of the Joint Venture will be determined by the
General Manager, subject to approval by the Board. These policies will be
consistent with the promulgated laws, rules and regulations of China
available to the public and will be based on the following principles:
(a) The General Manager will implement hiring policies whereby all
employees of the Joint Venture will be selected on the basis of
examination and will have the best possible qualifications. In this
regard, the Joint Venture will be free to hire qualified personnel
from any location in China and, if necessary, from foreign countries.
All employees will first be employed on a probationary basis. In
accordance with the labor policies of the Joint Venture, the General
Manager shall (within the authority granted by the Board and the
Articles of Association) have the authority to select and hire
employees for any position and to dismiss such employees. The General
Manager may delegate such authority as he or she deems appropriate.
(b) The salaries and all welfare benefits and subsidies for Chinese
employees of the Joint Venture will be set forth in the labor plan.
Annual wage levels of all Chinese employees (including, if applicable,
the General Manager) will be set annually by the Board and adjusted as
the Board deems necessary (taking into consideration the economic
conditions of the Joint Venture) in accordance with Chinese labor
regulations concerning wages. Welfare benefits and subsidies to
Chinese workers and staff will be given as provided by law and
reviewed and approved annually by the Board. Further benefits and
subsidies may be determined by the Board, but will not exceed the
standards set by the relevant governmental authority. The General
Manager may, in accordance with the policies established by the Board
and the budget of the Joint Venture then in effect, award bonuses to
employees and managers. All bonuses of whatever type for employees and
managers will be established as an incentive, and will be awarded on
the basis of performance.
(c) The General Manager will recommend to the Board annual merit salary
increases for specific employees. Such increases will be based upon
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the individual employee's performance and will be in accordance with
Chinese labor regulations concerning wages.
(d) The wages and welfare benefits for the Joint Venture's employees shall
be higher than the average level of the wages and welfare benefits for
the employees in the same industry in Henan Province.
11.3 The Joint Venture may enter into individual employment contracts with any
Chinese staff and workers directly if it deems such contracts appropriate.
If required by law, the Joint Venture will enter into an employment
contract with the trade union on behalf of Chinese staff and workers.
11.4 Foreign high-ranking managers and other staff ('Expatriates') will serve as
executives and in other positions of the Joint Venture and will enter into
an employment contract with the Joint Venture.
CHAPTER 12
TRADE UNION
The employees of the Joint Venture may establish a trade union pursuant to
relevant Chinese laws and regulations. The Joint Venture shall pay two percent
(2%) of the actual wages received by employees of the Joint Venture into the
Joint Venture's trade union fund for such trade union's use in accordance with
the applicable laws of China on the management of trade union funds.
CHAPTER 13
PURCHASES OF EQUIPMENT
Except as otherwise provided in the Project Contracts, the Joint Venture
will endeavor to source equipment, materials, fuel, parts, services and other
required items in China.
CHAPTER 14
TAXES AND LICENSES
14.1 The Joint Venture will pay taxes in accordance with the tax laws of China
and the relevant provisions of the taxation department of Henan Province.
14.2 Management, staff members and workers of the Joint Venture will pay
individual income tax according to the Individual Income Tax Law of China.
The Joint Venture will not be responsible for paying any such taxes.
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CHAPTER 15
ACCOUNTING; DISTRIBUTION OF PROFITS; PRIORITY OF PAYMENTS
15.1 Pursuant to the provisions of relevant laws and regulations, the General
Manager of the Joint Venture will present the Board with balance sheets,
profit and loss statements and other supplementary information requested by
the Board prepared in Chinese and English on a monthly and quarterly basis
and audited financial statements (including balance sheets and profit and
loss statements) on a yearly basis. Such audited financial statements shall
be prepared by accountant(s) registered in China with international
experience. The finance and accounting of the Joint Venture shall be
conducted in accordance with the applicable accounting laws and principles
of China. To the extent required by relevant law, the Joint Venture shall
submit on a monthly and annual basis financial statements to the local tax
authority, the relevant authorities in the electric industry and the
relevant finance department. In the event of any material difference
between the then-applicable Chinese accounting laws and principles and
internationally generally accepted accounting principles ('International
GAAP'), the Chinese accounting laws and principles shall be followed;
however, in order to meet the business and operation needs of the Joint
Venture or if required by any Party, the General Manager shall cause
additional financial statements of the Joint Venture to be prepared in
accordance with International GAAP.
15.2 The Joint Venture will adopt financial accounting systems that will ensure
that the Joint Venture will:
(a) make and keep financial records which, in reasonable detail,
accurately and fairly reflect all transactions and affairs of the
Joint Venture; and
(b) maintain a system of internal accounting controls sufficient to
provide reasonable assurances that:
(i) transactions are authorized, executed and recorded so as to
provide for proper financial statements and maintain
accountability for assets; and
(ii) safeguards (including the performance of periodic physical
inventories) are established to prevent unapproved persons from
having access to the Joint Venture's assets.
15.3 All vouchers, books, statements, reports and other operating, accounting
and financial records of the Joint Venture and descriptions thereof will be
prepared in Chinese and English.
15.4 The fiscal year of the Joint Venture will begin on January 1 and end on
December 31 of each Gregorian calendar year. The first fiscal year of the
Joint Venture will begin on the date of issuance of the Business License
and end on December 31 of that year.
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- ----------
[*** Filed separately with the Commission pursuant to a request for
confidential treatment.]
15.5 The Joint Venture will maintain its books of account in Renminbi. The Joint
Venture may also maintain duplicate books of account in U.S. Dollars if
requested by the Board. The Joint Venture will also prepare separate
records and statements for transactions in other foreign currencies in
which it has such transactions so that the Joint Venture and each Party can
inspect the expenditure and income of foreign exchange.
15.6 The Joint Venture will apply its revenues according to the following
priorities: first, to pay amounts then due under the Project Contracts and
any other contracts to which the Joint Venture may be a Party; second, to
pay other administrative and operation expenses then due; third, to pay
taxes of the Joint Venture then due; fourth, to pay principal, interest and
fees then due in respect of foreign exchange loans and to pay principal,
interest and fees then due in respect of Renminbi loans; fifth, to make
contributions to the Joint Venture's three funds as provided in Chapter
15.10; sixth, to fund the Foreign Exchange Risk Fund based on the Board's
decision pursuant to the provisions hereof; and seventh, to make profit
distribution based on the Board's unanimous decision pursuant to the ratio
of [***]% to the Chinese Party and [***]% to the Foreign Party.
15.7 During the term of the Joint Venture and after examination and approval by
the financial and tax authorities , the Joint Venture may effect an early
recovery of investment to the Foreign Party pursuant to Article 44 of the
implementing rules of the Law on Sino-foreign Cooperative Enterprises.
15.8 The Joint Venture will use Renminbi to effect payment of locally sourced
equipment, materials, fuel, parts and other items and all costs and
expenses denominated in Renminbi. Subject to the Foreign Exchange
Regulations and so as to minimize the risk of incurring foreign exchange
losses, the Joint Venture will convert Renminbi revenues to foreign
exchange to effect payment of costs and expenses denominated in foreign
exchange required to be paid in foreign exchange.
15.9 Unless the Foreign Party otherwise requires, all distributions to the
Foreign Party (including any distribution to be made upon a liquidation of
the Joint Venture) will be remitted in U.S. Dollars out of China to an
account or accounts designated by the Foreign Party. Any distribution to
the Chinese Party (including any distribution to be made upon a liquidation
of the Joint Venture) will be in Renminbi and will be remitted to an
account or accounts designated by the Chinese Party.
15.10In accordance with Chinese laws and regulations and the Articles of
Association, the Joint Venture will make contributions each year to the
Joint Venture's Expansion Fund, Reserve Fund and Bonus and Welfare Fund for
Staff and Workers in an amount to be determined by the Board from the
after-tax profits of the Joint Venture. The aggregate proportion of the
after-tax profits of the Joint Venture contributed in any year by the Joint
Venture to such funds and any other funds will not exceed 15 percent of
such after-tax profits for the
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relevant year. All amounts on deposit in such funds shall be utilized
only as directed by the Board.
CHAPTER 16
SALE OF ELECTRICITY
16.1 The Joint Venture will supply to the Chinese Party the electricity it
requires to operate its Aluminum Plant located in Jiaozuo City, Henan
Province, China pursuant to an Aluminum Mill Power Supply Contract. The
Chinese Party will pay for the electricity in cash in RMB.
16.2 Any electricity generated by the Joint Venture not sold to the Chinese
Party shall be sold to the Henan Electric Power Corporation pursuant to the
Power Company Power Purchase and Sale Contract.
CHAPTER 17
INDEPENDENT AUDITING
17.1 In the event either Party believes that a mistake has been made in the
preparation of any of the financial reports enumerated in Chapter 15.1,
such Party will have the right to appoint an independent auditor to examine
and verify such report and the costs of the independent auditor shall be
borne by the Party making the request. Any such auditor will be an
accountant with international experience registered in China.
17.2 All necessary documents and accounts of the Joint Venture will, for the
performance of auditing under this Chapter, be provided to the auditor(s)
according to the reasonable requirements of such auditor(s).
17.3 In the event such auditor(s) discover any material mistakes in any such
report, the Joint Venture will cause its accountant(s) to restate such
report to correct such material mistakes in accordance with the
then-applicable accounting laws and principles of China.
CHAPTER 18
FOREIGN EXCHANGE MANAGEMENT
18.1 All foreign exchange matters of the Joint Venture will be handled in
accordance with the Foreign Exchange Regulations and the provisions
contained in this Chapter are specifically subject to the Foreign Exchange
Regulations.
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18.2 The Joint Venture will open and maintain in its own name a Renminbi
account(s) at the Bank of China or another bank located in China which is
approved by the People's Bank of China.
18.3 The Joint Venture will also open a U.S. Dollar account(s) (and such other
foreign currency accounts as the Board may decide) at the Bank of China or
another bank located in China. All foreign exchange income and expenditures
of the Joint Venture will be paid into and out of such account or accounts.
The foreign exchange funds maintained in such account(s) and the income
thereon shall only be used as permitted under Chinese law.
18.4 The foreign staff and staff from Hong Kong and Macau of the Joint Venture
may remit their salaries and other income derived from the Joint Venture
out of China after payment of any required tax.
18.5 During the Term, all foreign exchange necessary for the payment of interest
on and repayment of principal of the Foreign Party's U.S. Dollar loans,
distribution of profits to the Foreign Party and return of its capital
shall be handled in accordance with the relevant state regulations of
foreign exchange control.
CHAPTER 19
TERM
The term of the Joint Venture will commence on the date of the issuance of
the Business License and continue for 23 years thereafter (including three
years of construction) unless terminated prior thereto in accordance with the
provisions of this Contract or as extended by written agreement of the Parties
(the 'Term').
CHAPTER 20
INSURANCE
The Joint Venture will maintain such insurance policies as are required to
be maintained by the Joint Venture as determined by the Board of Directors.
Such policies will be obtained from appropriate companies licensed to do
business in China and will be denominated in Renminbi and/or in foreign
currencies as determined by the Board, and will comply with applicable Chinese
laws and regulations.
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CHAPTER 21
LAND USE
After establishment of the Joint Venture, the Joint Venture will enter into
the Site Use Contract. Upon execution of the Site Use Contract, a land use
certificate will be issued to the Joint Venture allowing it full land use
rights necessary for the construction and operation of the Power Plant for the
Term.
CHAPTER 22
APPLICABLE LAW
The formation, validity, interpretation and implementation of this Contract
shall be governed by and construed under the publicly promulgated laws of
China.
CHAPTER 23
EFFECTS OF CHANGES IN CHINESE LAW
In the event the Joint Venture is unable to realize the operating objective
expected by the Parties or any Party's interest is materially adversely
affected due to a major change in operating environment (including legal
environment, changes, amendments or supplements to any existing, or the passage
of any new, national, provincial, municipal, local or other law, statute,
ordinance, rule or regulation, or interpretation thereof by any court,
administrative agency or other government authority after the approval of this
Contract), upon the receipt of a written request of any Party, the Parties
shall promptly make amendments to this Contract so as to protect the interests
of the Parties under this Contract. In the event that any new laws or
regulations are promulgated by the Chinese government which are more favorable
to the Joint Venture, the Joint Venture shall apply for the enjoyment of such
preferential treatment.
CHAPTER 24
BREACH OF CONTRACT
A Party will be in breach of this Contract if:
(a) it fails fully to perform, or suspends its performance of, any of its
obligations under this Contract and if it does not correct such
failure or suspension after notice thereof from the non-breaching
Party within 30 days or, if such failure or suspension cannot
reasonably be corrected within 30 days, within such longer period (not
to exceed 180 days) as may reasonably be required to correct such
failure or suspension;
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(b) any representation made by it in Chapter 2.2 or 2.3 shall prove to be
untrue in any material respect as of the date on which it was made: or
(c) it fails to fund any installment of its portion of the registered
capital of the Joint Venture within two days of the date such
installment was due pursuant to Chapter 5.4.
The breaching Party shall indemnify the Joint Venture and the non-breaching
Party in respect of any loss incurred (excluding consequential damages or
special damages) as a result of such breach, together with interest thereon
from the date any such loss shall have occurred through the date of
payment, calculated at the rate of 15% per annum.
CHAPTER 25
TERMINATION
25.1 The Joint Venture will terminate on the expiration of the Term.
25.2 Prior to the expiration of the Term, this Contract may be terminated
pursuant to any of the following provisions:
(a) Upon the occurrence and during the continuance of a breach of this
Contract under Chapter 24, the non-breaching Party may terminate this
Contract by giving written notice to the breaching Party;
(b) In the event the Power Company Power Purchase Contract or the Aluminum
Mill Power Supply Contract shall at any time be terminated as a result
of the occurrence of an event of force majeure, the Parties will
consider the viability of continuing the business of the Joint Venture
and the feasibility of obtaining substitute electricity purchaser(s),
and, if such substitute electricity purchaser(s) is not obtained
within six months after such termination of the Power Company Power
Purchase Contract or the Aluminum Mill Power Supply Contract, the
Board may vote to terminate this Contract;
(c) If the Joint Venture is unable to lawfully continue its operation,
either Party may terminate this Contract by giving written notice to
the other Party;
(d) If all or a material portion of the assets or properties of the Joint
Venture or a Party shall have been expropriated or requisitioned, such
Party may terminate this Contract by giving written notice to the
other Party; or
(e) If the Joint Venture fails to make a payment when due on any
shareholder loan provided by a Party, such Party may terminate this
Contract by giving written notice to the other party.
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[*** Filed separately with the Commission pursuant to a request for
confidential treatment.]
CHAPTER 26
LIQUIDATION
26.1 The Joint Venture shall be liquidated and dissolved upon the termination of
this Contract pursuant to Chapter 25, provided that an application for
approval shall be submitted to the relevant examining and approving
authority in order to terminate this Contract and dissolve the Joint
Venture prior to the end of the Term as provided in Chapter 25.2. In the
event that the Joint Venture is dissolved pursuant to Chapter 25.1 and if
at the time of such dissolution the Foreign Party has recovered its entire
contribution to the registered capital of the Joint Venture, the fixed
assets, including working capital, comprising the Power Plant will belong
to the Chinese Party for free and all other assets of the Joint Venture
will be distributed to the Chinese Party and the Foreign Party according to
a unanimous decision of the Board based on the ratio of [***]% to the
Chinese Party and [***]% to the Foreign Party.
26.2 If by application of the provisions contained in Chapter 26.1 the assets of
the Joint Venture are to be liquidated, a Liquidation Committee (composed
of Board members or other qualified persons, including, without limitation,
certified accountants or attorneys) will be established, composed of two
members appointed by the Chinese Party and four members appointed by the
Foreign Party. The Liquidation Committee will have the power to represent
the Joint Venture in all legal matters concerning the liquidation. In
accordance with applicable Chinese laws and regulations, the Liquidation
Committee will value and liquidate the Joint Venture's assets based on the
Joint Venture's going concern value, taking into account the actual
circumstances of the Joint Venture, the market value of companies in
similar industries and internationally accepted principles of valuation.
26.3 The Liquidation Committee will conduct a thorough examination of the Joint
Venture's assets and liabilities. On the basis of such examination, the
Liquidation Committee will develop a liquidation plan, under the
supervision of the department-in-charge, for the liquidation of the Joint
Venture. The liquidation plan will be subject to approval by the Board. All
actions of the Liquidation Committee will be subject to approval of all
members of the Liquidation Committee. No member of the Liquidation
Committee shall have the power to take any action binding the Liquidation
Committee or the Joint Venture without the express authorization of the
majority members of the Liquidation Committee.
26.4 Upon completion of all liquidation procedures, the Liquidation Committee
shall submit its final report, after approval by the Board, to the approval
and examination authority, and shall nullify the registration of the Joint
Venture. The Parties will have the right to obtain copies of the Joint
Venture's accounting books and other documents, but the originals thereof
shall be left in the care of the Chinese Party.
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[*** Filed separately with the Commission pursuant to a request for
confidential treatment.]
26.5 Upon liquidation resulting from an early termination of this Contract, the
Joint Venture's assets will be applied according to the following
principles and order:
(a) to payments of all liquidation expenses;
(b) to payments of salary, insurance and benefits of the employees of the
Joint Venture;
(c) to payments then due under any contracts or in respect of any
indebtedness of the Joint Venture;
(d) to payments of interest and fees then due with respect to foreign
currency loans;
(e) to payments of interest and fees then due with respect to Renminbi
loans;
(f) to payments of taxes of the Joint Venture then due;
(g) to payments of principal of foreign loans;
(h) to payments of principal of Renminbi loans;
(i) to repayments of registered capital to the Parties in accordance with
the decision of the Board; and
(j) to distributions to the Chinese Party and the Foreign Party according
to the ratio of [***]% to the Chinese Party and [***]% to the Foreign
Party based on a unanimous decision of the Board.
CHAPTER 27
FORCE MAJEURE
In the event that earthquake, typhoon, flooding, fire or war directly
affects the performance of this Contract or makes it impossible to perform this
Contract in accordance with the terms hereof, the Party affected by such force
majeure shall immediately notify the other Party of such event and shall
provide details of such event and effective documentary evidence in a timely
manner. On the basis of the degree to which the performance of this Contract is
affected, the Parties shall discuss whether to terminate this Contract,
partially excuse the obligation to perform this Contract or delay performance
of this Contract.
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CHAPTER 28
SETTLEMENT OF DISPUTES
28.1 Any dispute arising out of or in connection with this Contract will be
attempted to be settled through friendly consultation between the Parties.
Such consultation will begin immediately after either Party has delivered
to the other Party a written request for such consultation. If the Parties
do not reach an amicable solution within 30 days from the notice of such
dispute, either Party may, with notice to the other Party, submit the
dispute for binding arbitration in Stockholm, Sweden under the auspices of
and in accordance with the Arbitration Rules of the Arbitration Institute
of the Stockholm Chamber of Commerce (except to the extent this Chapter 28
specifies different procedures in which event such procedures will govern
the arbitration to the extent so specified). The Parties agree that any
dispute arising out of or in connection with this Contract will be
submitted exclusively to and be finally settled by arbitration irrespective
of the magnitude of such dispute or whether such dispute would otherwise be
considered justiciable or ripe for resolution by a court or arbitral
tribunal. Any settlement and award rendered through such an arbitration
proceeding will be final and binding upon the Parties if the decision is in
writing and contains a reasoned analysis explaining the arbitrators'
reasons for rendering the award. This Contract and the rights and
obligations of the Parties will remain in full force and effect pending the
award in such arbitration proceeding.
28.2 The arbitration will be conducted in English and Chinese.
28.3 There will be three arbitrators. Each Party will select one arbitrator
within 30 days after giving or receiving the demand for arbitration. Such
arbitrators will be freely selected, and the Parties will not be limited in
their selection to any prescribed list. Within 30 days after the selection
of the latter of the two arbitrators selected by the Parties, the two
arbitrators shall select the third arbitrator; if the two arbitrators do
not select the third within such 30 day period, the arbitrating body will
select the third arbitrator. If a Party does not appoint an arbitrator who
has consented to participate within 30 days after the selection of the
first arbitrator, the relevant appointment will be made by the arbitrating
body. The costs of the arbitration will be borne by the Parties as
determined by the arbitration tribunal taking into account the relative
merits of the positions of the Parties.
28.4 The Parties agree that the arbitral award may be enforced against the
Parties or their assets wherever they may be found and that a judgment upon
the arbitral award may be entered in any court having jurisdiction thereof.
Accordingly, the Parties irrevocably agree that any action to enforce such
judgment may be instituted wherever appropriate and each Party hereby
irrevocably waives, to the fullest extent permitted by law, any objection
which it may have now or hereafter to the laying of the venue or the
jurisdiction or the convenience of the forum of any such action and
irrevocably submits generally and unconditionally to the jurisdiction of
any such court in any such action.
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28.5 Each of the Parties is subject to civil and commercial law with respect to
its obligations under this Contract, and the execution and performance of
this Contract by it constitutes private and commercial acts rather than
governmental and public acts. Each of the Parties irrevocably agrees that
this Contract is a commercial rather than a public or governmental activity
and that neither Party is entitled to claim immunity from legal proceedings
with respect to itself or any of its assets on the grounds of sovereignty
or otherwise under any law or in any jurisdiction where an action may be
brought for the enforcement of any of the obligations arising under or
relating to this Contract. To the extent that either of the Parties or any
of their assets has or hereafter may acquire any right to immunity from
set-off, legal proceedings, attachment prior to judgment, other attachment
or execution of judgment on the grounds of sovereignty or otherwise, such
Party hereby irrevocably waives such rights to immunity in respect of its
obligations arising under or relating to this Contract.
CHAPTER 29
NON-DISCLOSURE OF BUSINESS INFORMATION
29.1 During the term of this Contract, the Parties may, upon reasonable request,
furnish each other and the Joint Venture with proprietary business
documents and information needed for the implementation of this Contract.
29.2 The Parties agree that all proprietary business documents and information
which are disclosed by either Party to the Joint Venture or to the other
Party, either directly or indirectly, in writing, orally or by drawings or
inspection will be used only for the Joint Venture's legitimate commercial
purposes as specified in this Contract.
29.3 Each Party agrees that it will furnish, and cause the Joint Venture to
furnish, such documents and information the same degree of proprietary
treatment as the Party gives to its own similar proprietary documents or
information.
29.4 Each Party agrees not to disclose, and cause the Joint Venture not to
disclose, any such proprietary documents or information to any third Party
or to any of its employees, except to its advisors, attorneys, engineering
consultants and lenders under confidentiality arrangements substantially
similar to those set forth in this Chapter and to those employees who are
required to have such proprietary documents and information to carry out
the commercial purposes of the Joint Venture.
29.5 Notwithstanding the foregoing, the following will not be subject to the
undertakings set forth in this Chapter:
(a) documents already in the possession of, or information already known
to, the Joint Venture or the Party receiving the documents or
information before its initial disclosure by the other Party through
no breach of any confidentiality obligation to or for the benefit of
the disclosing Party;
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(b) documents or information in the public domain at the time of
disclosure, or which after such disclosure enters into the public
domain through no fault of Joint Venture or the Party to whom the
information was disclosed; and
(c) documents or information lawfully furnished or disclosed by a third
Party to the Joint Venture or the Party receiving the information or
documents.
CHAPTER 30
MISCELLANEOUS
30.1 This Contract has been written in Chinese and English and each such version
will be of equal force and effect. All documents, notices, waivers and all
other communications written or otherwise between the Parties in connection
with this Contract will be in the Chinese and English languages. All
numbers in contracts of the Joint Venture, books of account and records
will be Arabic.
30.2 Any modifications to this Contract will be subject to written agreement
signed by the authorized representatives of both Parties and will become
effective upon the approval of the original approval and examination
authority of this Contract.
30.3 Subject to the provisions of Chapter 23, in the event any provision of this
Contract is determined to be invalid or unenforceable under applicable
Chinese laws, all other provisions of this Contract will continue in full
force and effect. The Parties will, in such event, replace the invalid
provision with a valid provision which as closely as possible corresponds
to the spirit and purpose of such invalid provision and this Contract.
30.4 After termination of this Contract, the relevant provisions of this
Contract which form the basis for a valid claim by either Party arising
from or in connection with this Contract will remain in effect as related
to the settlement of such claim until such claim is settled. The dispute
resolution provisions of Chapter 28 and the confidentiality provisions of
Chapter 29 will also remain in effect after termination of this Contract.
30.5 A failure or delay by either Party to require the enforcement of any of the
provisions of this Contract will not be construed as a waiver by such Party
of any of its rights nor will it affect in any way the validity of this
Contract or any of its provisions at any time thereafter.
30.6 Neither of the Parties will act on behalf of the other Party, which can
only become bound by the signature of its own authorized representative. In
all circumstances, the Joint Venture will act only in its own name and will
not be considered to be the agent of either of the Parties. Similarly,
unless expressly provided otherwise in a signed writing, neither of the
Parties is the agent of the
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Joint Venture and, therefore, neither of the Parties is entitled to assume
any obligation on behalf of the Joint Venture nor to bind the Joint Venture
in any way whatsoever.
30.7 This Contract constitutes the entire agreement and understanding of the
Parties with respect to the subject matter hereof and supersedes all
documents and correspondence entered into prior to this Contract with
respect to the subject matter hereof.
30.8 Any notice or other communication to be given hereunder shall be in writing
and shall be sufficiently given if, in the case of the Chinese Party,
addressed as set forth in Chapter 2.1 and in the case of the Foreign Party,
addressed to: AES China Generating Co. Ltd., 7/F, Allied Capital Resources
Building, 32-38 Ice House Street, Central, Hong Kong, Telefax:
852-2530-1673, Attention: President, and sent by registered mail or an
internationally recognized overnight courier service, hand-delivered or
transmitted and clearly received by facsimile transmission. Any such notice
shall be effective only upon actual receipt thereof. All notices given by
facsimile shall be confirmed in writing, sent as aforesaid, but the failure
to so confirm shall not vitiate the original notice. Either Party may
change its address for purposes of receiving notices hereunder by notice to
the other Party given in accordance with this Chapter 29.8.
30.9 The titles and headings herein are used for convenience of reference only
and shall not be deemed part of this Contract for purposes of
interpretation. Unless otherwise stated, all references made in this
Contract to 'Chapters,' shall refer to Chapters of this Contract.
30.10In the event that there is any conflict or contradiction between
provisions of this Contract and provisions of the Articles of Association,
provisions of this Contract shall prevail.
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30.11This Contract is executed on March 27, 1996 in Jiaozuo, People's Republic
of China, in four sets of English and Chinese originals by the duly
authorized representatives of the Parties. This Contract shall become
effective on the date the certificate of approval relating to this Contract
is issued by MOFTEC.
JIAOZUO ALUMINUM MILL
By: /s/ [SIGNATURE ILLEGIBLE]
- ----------------------------
Name: Jin Bao Qing
Title: General Manager
Nationality: Chinese
JIAOZUO POWER PARTNERS, L.P.
by Jiaozuo (GP) Corporation,
its General Partner
By: /S/ Edward C. Hall III
- -------------------------
Name: Edward C. Hall III
Title: Vice President
Nationality: U.S.A.
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Sino-Foreign Cooperative Joint Venture Contract - Jiaozuo Aluminum Mill and Jiaozuo Power Partners LP
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