UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF EARLIEST REPORTED EVENT – MAY 26, 2008
ECOLOCAP SOLUTIONS INC.
(Exact name of Registrant as specified in its
charter)
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NEVADA
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000-51213
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20-0909393
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(State or other jurisdiction of
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(Commission
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(IRS Employer
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incorporation)
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File Number)
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Identification Number)
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740, St-Maurice Street
Suite 102
Montreal H3C 1L5
(Address of principal executive offices)
(514) 876-3907
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
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Item 1.01: Entry into Material Definitive Agreements.
On May 26, 2008, Ecolocap Solutions (Canada) Inc. (“ECOS”), the Company's wholly owned subsidiary has executed an Emission Reduction Purchase Agreement (“ERPA”) with Tan Hiep Phuc Electricity Construction Joint-Stock Company for the purchase of the 50,000 units of certified CER anticipated to be generated per year by the Tien Giang 10 MW Fired Rice Husk Power Plant – CDM Project Proponent for the period from June, 2008 to December 31, 2019;
On June 10, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Lao Cai Energy & Resources Investment Joint-Stock Company, Viet Nam for the purchase of the 50,000 units of certified CER anticipated to be generated per year by the Nam Xay Noi Hydro Power – CDM Project Proponent for the period from June 10, 2008 to December 31, 2012. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit that would need to be renegotiated;
On June 10, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Tuan Anh Hydraulic Development and Construction Investment Corporation, Viet Nam (Tuan Anh HDC., Corp.) for the purchase of the 50,000 units of certified CER anticipated to be generated per year by the Ban Nhung Hydro Power – CDM Project Proponent for the period from June 10, 2008 to December 31, 2012. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit that would need to be renegotiated;
On July 14, 2008, ECOS executed an Emission Reduction Purchase Agreement ( RPA with Hunan Valin Xiangtan Iron & Steel Co., Ltd. for the purchase of the certified CER anticipated to be generated per year by the XISC Power Generation Using Steam from Coke Dry Quenching Project for the period from July 23, 2008 toDecember 31, 2012. ECOS has a right of first refusal to renegotiate the ERPA for the extension period between 2013 to 2026. The terms of the ERPA would need to be renegotiated;
On July 14, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Xiangtan Iron & Steel Group Co., Ltd. (“XISC”) for the purchase of the 148.621 units of certified CER anticipated to be generated per year by the XISC Power Generation Using Waste Heat from Sintering System (WHR) for the period from July 14, 2008 to December 31, 2012. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
On July 20, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Hebi Coal Industry (Group) Co., LTD (“HCIC”) for the purchase of the certified CER
2
anticipated to be generated per year by the XCIC Project-Using Waste Heat from Gangue Brickkiln to Generate Power (WHR) for the period from July 20, 2008 to December 31, 2012. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
On July 23, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Hebei Jinlong Cement Group Co., Ltd (“HJLCC”) for the purchase of the certified CER anticipated to be generated per year by the HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power for the period from July 31, 2008 to December 31, 2012. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
On August 5, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Bao Tan Hydro Electric Joint-Stock Company for the purchase of the certified CER anticipated to be generated per year by Dam Bor Hydro Power for the period from 2008 to 2012, evaluated at 24,000 units of CERs per year. The crediting period is expires on December 31
st
, 2026. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
On August 5, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Construction and Infrastruction Development Joint-Stock Company Number Nine for the purchase of the 50,000 units of certified CER anticipated to be generated per year by the Then Sin Hydro Power project for the period from August 2
nd
, 2008 to December 31, 2012. The crediting period is up expires on December 31
st
, 2026. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
On October 17, 2008, ECOS executed an Emission Reduction Purchase Agreement ( RPA with Xinjiang Xiangjianfeng Energy and Technology Development Co., Ltd. for the purchase of the certified CER anticipated to be generated per year by the Xinjiang Xiangjianfeng Urumqi Dabancheng 200MW Windfarm 1
st
Phase-49.5MW project for the period from October 17, 2008 to December 31, 2012. The crediting period expires on December 31
st
, 2026. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
On October 19, 2008, ECOS executed an Emission Reduction Purchase Agreement (“ERPA”) with Hebei Fengda Metallized Pellet Co., Ltd. for the purchase of One Million
3
units of certified CER anticipated to be generated per year by the Hebei Fengda Metallized Pellet project for the period from October 19, 2008 to December 31, 2012. The crediting period is expires on December 31
st
, 2026. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
On October 21, 2008, ECOS executed an Emission Reduction Purchase Agreement ( RPA with Shandong Chengzeyuan Environment Protection Engineering Co., Ltd. for the purchase of the certified CER anticipated to be generated per year by the Treatment of Urban Domestic Refuse and Resource Utilization in Pingyuan Country project for the period from October 21, 2008 to December 31, 2012. The crediting period expires on December 31
st
, 2026. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated ;
On October 23, 2008, ECOS has executed an Emission Reduction Purchase Agreement (“ERPA”) with Leshan Kingssun Group Co., Ltd. for the purchase of the certified CER anticipated to be generated per year by the Huangdan Hydro-station Technical Expansion & Automation Retrofit project for the period from October 23, 2008 to December 31, 2012. The crediting period expires on December 31
st
, 2026. ECOS has an option of extension for two additional periods of seven years, from 2013 to 2026, under the same terms with the exception of the price per unit , which would need to be renegotiated;
The ERPA agreements provide that upon registration of each project, ECOS will endeavor to implement each project in accordance with a detailed description of the project submitted for validation prepared in accordance with the Kyoto Rules (“PDD”) and other documents describing the implementation and economics of the project at it's own risk and expense.
Execution of 4 Technical Service Agreements.
In conjunction with the October 17
th
, 2008 Emission Reduction Purchase Agreement (“ERPA”) executed by and between Ecolocap Solutions (Canada) Inc. (“ECOS”), the Company's wholly owned subsidiary, and Xinjiang Xiangjianfeng Energy and Technology Development Co., Ltd. (“X
INJIANG
”), the parties entered into a Technical Service Agreement by which ECOS will perform for X
INJIANG
the necessary technical services for the validation of its CDM projects. In consideration of these services rendered as well as expenses incurred, ECOS will be paid a professional fee. ECOS will be responsible for the preparation of the technical documents and will make its best effort to assist X
INJIANG
in the approval process of these projects by local authorities as well as by the DOE and the EB. All the expenses incurred above will be borne by ECOS. ECOS will use its best effort to help X
INJIANG
get financial participation of foreign investors in the Projects.
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In conjunction with the October 19
th
, 2008 Emission Reduction Purchase Agreement (“ERPA”) executed by and between Ecolocap Solutions (Canada) Inc. (“ECOS”), the Company's wholly owned subsidiary, and Hebei Fengda Metallized Pellet Co., Ltd. (“FENGDA”) , the parties entered into a Technical Service Agreement by which ECOS will perform for FENGDA the necessary technical services for the validation of its CDM projects. In consideration of these services rendered as well as expenses incurred, ECOS will be paid a professional fee. ECOS will be responsible for the preparation of the technical documents and will make its best effort to assist FENGDA in the approval process of these projects by local authorities as well as by the DOE and the EB. All the expenses incurred above will be borne by ECOS. ECOS will use its best effort to help FENDGA get financial participation of foreign investors in the projects.
In conjunction with the October 21
st
, 2008 Emission Reduction Purchase Agreement (“ERPA”) executed by and between Ecolocap Solutions (Canada) Inc. (“ECOS”) the Company's wholly owned subsidiary and Shandong Chengzeyuan Environment Protection Engineering Co., Ltd. (“SHANDONG, the parties entered into a Technical Service Agreement by which ECOS will perform for SHANDONG the necessary technical services for the validation of its CDM projects. In consideration of these services rendered as well as expenses incurred, ECOS will be paid a professional fee. ECOS will be responsible for the preparation of the technical documents and shall make its best effort to assist SHANDONG in the approval process of these projects by local authorities as well as by the DOE and the EB. All the expenses incurred above will be borne by ECOS. ECOS will use its best effort to help SHANDONG get financial participation of foreign investors in the projects.
In conjunction with the October 23
rd
, 2008 Emission Reduction Purchase Agreement (“ERPA”) executed by and between Ecolocap Solutions (Canada) Inc. (“ECOS”) the Company's wholly owned subsidiary and Leshan Kingssun Group Co., Ltd. (“LESHAN”), the parties entered into a Technical Service Agreement by which ECOS will perform for LESHAN the necessary technical services for the validation of its CDM projects. In consideration of these services rendered as well as expenses incurred, ECOS will be paid a professional fee. ECOS will be responsible for the preparation of the technical documents and shall make its best effort to assist LESHAN in the approval process of these projects by local authorities as well as by the DOE and the EB. All the expenses incurred above will be borne by ECOS. ECOS will use its best effort to help LESHAN get financial participation of foreign investors in the Projects.
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Item 9.01: Financial Statements and Exhibits
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(d)
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Exhibits
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Exhibit No.
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Description of Exhibits
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10.1
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"ERPA" with Hong Kong Construction Investment Joint Stock Company.
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10.2
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"ERPA" with Thuong Hai Joint Stock Company.
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10.3
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"ERPA" with Vietnam Power Development Joint Stock Company.
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10.4
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"ERPA" with Hop Xuan Investment Joint Stock Company, Vietnam.
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10.5
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"ERPA" with ThangLong Education Development and Construction Import
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Export Investment Joint Stock Company.
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10.6
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Revised Consulting Agreement with Sodexen Inc.
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10.7
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Agreement with United Best Technology Limited.
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10.8
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Escrow Agreement with United Best Technology Limited.
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10.9
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"ERPA" with Tan Hiep Phuc Electricity Construction Joint-Stock Company
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Vietnam.
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10.10
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"ERPA" with Tuan Anh Hydraulic Development and Construction Investment
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Corporation, Vietnam.
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10.11
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"ERPA" with Lao Cai Energy & Resources Investment Joint Stock Company,
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Vietnam
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10.12
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"ERPA" with Xiangtan Iron and Steel Group Co., Ltd
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10.13
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"ERPA" with Hunan Valin Xiangton Iron & Steel Co. Ltd.
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10.14
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"ERPA" with Hebi Coal Industry (Group) Co. Ltd.
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10.15
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"ERPA" with Hebei Jinlong Cement Group Co., Ltd.
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10.16
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"ERPA" with Bao Tan Hydro Electric Joint-Stock Company
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10.17
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"ERPA" with Construction and Infrastruction Development Joint-Stock Company
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Number Nine
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10.18
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Greenhouse Gas Offset Management Services Representation Agreement
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10.19
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"ERPA" with Xinjiang Xiangjianfeng Energy and Technology Development Co.
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Ltd.
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10.20
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Technical Service Agreement with Xinjiang Xiangjinfeng Energy and
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Technology Development Co., Ltd.
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10.21
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Technical Service Agreement with Hebei Fengda Metallized Pellet Co., Ltd.
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10.22
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"ERPA" with Hebei Fengda Metallized Pellet Co., Ltd.
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10.23
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"ERPA" with Shandong Chengzeyuan Environment Protection Engineering Co.
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Ltd.
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10.24
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Technical Services Agreement with Shandong Chengzeyuan Environment
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Protection Engineering Co., Ltd.
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10.25
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Technical Services Agreement with Leshan Kingssun Group Co. Ltd.
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10.26
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"ERPA" with Leshan Kingssun Group Co., Ltd.
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7
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: December 23, 2008
ECOLOCAP SOLUTIONS INC.
By:
CLAUDE PELLERIN
Name: Claude Pellerin
Title: Corporate Secretary
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Emission Reduction Purchase Agreement
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Page 1 of 10
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Exhibit 10.1
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
UNITED BEST TECHNOLOGY LIMITED
Address: Suite 1001-4A, Champion Building,
287-291 Des Voeux Road, Central Hong Kong
Tel : 852-2405-6999
Fax: 852-2492-3777
Email: trivutruong2004@yahoo.ca
President -General Director: Dr. Tri Vu Truong
and
(the " Suoi Chim 2 Hydro Power-CDM Project Proponent")., henceforth
“VIETNAM PROJECT PROPONENT”
Sponsor: HONG KONG CONSTRUCTION INVESTMENT JOINT STOCK
COMPANY (HTIC., JSC)
Address: Sector 4, Hat Lot Town, Mai Son District, Son La Province., Vietnam
Mobile phone:+84 912009888.
Telephone: +84 22 212 877
Fax: +84 22 843 516.
General Director: Mr. Dang Ngoc Hoan
Initial
VN Hydro Power CDM Project
Proponent:__________Initial United Best Technology-2:
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Emission Reduction Purchase Agreement
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Page 2 of 10
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Interpretation and Definitions
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In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
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meaning set forth in the definitions below.
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Additional
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Means any Certified Emission Reduction (CER) generated by the Project
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Emission
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that is in excess of [50,000] Certified Emission Reductions (CERs) per
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Reduction:
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annum.
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Agreement:
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Means this Emission Reduction Purchase Agreement.
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Annex B Countries:
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Means the countries listed in Annex B to the Kyoto Protocol having
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committed themselves to reduce or limit their GHG emissions.
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Annex I Countries:
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Means the parties to the UNFCCC listed in Annex I thereto (Annex I
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consists of industrial countries and countries in transition).
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Anticipated
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Means up to [50,000] Certified Emission Reductions (CERs) per annum
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Emission
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during the Crediting Period, anticipated to be generated by the Project
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Reduction:
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and calculated in accordance with the Kyoto Rules.
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Baseline:
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Means the scenario that reasonably represents the anthropogenic
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emissions of GHG that would occur in the Host Country in the absence of
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the Project, determined in accordance with the Kyoto Rules.
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Business Day:
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Means a day on which banks are open for general business in Vietnam.
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Carbon Dioxide
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Means a metric measure used to compare the emissions of various GHG
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Equivalent:
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based upon their global warming potential.
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Certification:
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Means the written confirmation by an Operational Entity of an Emission
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Reduction resulting from a CDM project and having passed the
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Verification procedure according to the Kyoto Rules.
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Certified Emission
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Means a unit of Emission Reduction issued pursuant to Article 12 of the
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Reduction (CER):
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Kyoto Protocol and the requirements of the Kyoto Rules (including
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Certification), equal to one metric ton of Carbon Dioxide Equivalent
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resulting from a CDM project.
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Clean Development
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Means the flexible mechanism established by Article 12 of the Kyoto
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Mechanism (CDM):
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Protocol providing for Annex I Countries to implement projects that reduce
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emissions in non-Annex I Countries in return for CERs and assist the non-
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Annex I Countries in achieving sustainable development and contributing
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to the ultimate objective of the UNFCCC.
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Crediting Period:
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Means, until December 31, 2026.
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Emission
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Means reduction in emission of GHG achieved, calculated in accordance
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Reduction:
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with the Kyoto Rules.
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Executive Board:
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Means the international authority elected by the representatives of the
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parties to the Kyoto Protocol responsible for monitoring the CDM process.
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First Commitment
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Means October 25, 2007 until December 31, 2026.
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Period:
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Force Majeure:
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Means any circumstance or condition beyond the control of either party to
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this Agreement affecting the performance of its obligations under this
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Agreement including in particular wars, insurrection, natural disaster or
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equivalent circumstances.
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Initial
VN Hydro Power CDM Project
Proponent:__________ Initial United Best Technology-2:
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Emission Reduction Purchase Agreement
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Page 3 of 10
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Greenhouse Gases
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Means the six gases listed in Annex A to the Kyoto Protocol.
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(GHG):
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Host Country:
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Vietnam
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Kyoto Protocol:
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Means the protocol to the UNFCCC adopted at the third conference of the
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parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
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Kyoto Rules:
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Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
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Marrakesh Accords, any relevant decisions, guidelines, modalities and
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procedures made pursuant to them and/or any succeeding international
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agreements as amended and/or supplemented from time to time and
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which include those rules specifically required to be met for the issuing
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and transfer of CERs.
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Letter of Approval
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Means a binding approval of the Project by the Host Country together with
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(LOA):
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an approval of the transfer of CERs.
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Monitoring Report:
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Means an annual report to be provided by Owner setting out the total
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number of Emission Reductions generated by the Project during the
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previous year according to the Kyoto Rules, international Monitoring rules
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and the PDD.
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Monitoring:
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Means the collection and record of data allowing the assessment of
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reductions in GHG emissions resulting from the Project conducted in
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accordance with the Kyoto Rules.
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Operational Entity:
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Means an independent entity accredited by the Executive Board being the
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executive body for CDM and inter alias responsible for determining
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whether a project and the resulting Emission Reductions meet the
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requirements of Article 12 of the Kyoto Protocol.
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ProjectDesign
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Means a detailed description of the Project to be submitted for Validation
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Document (PDD):
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prepared in accordance with the Kyoto Rules, the UFG and the Directive
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and attached as Annex III. The Purchaser will be responsible for providing
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PDD development for Registration of the Project.
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Project:
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Means the proposed CDM project described in the PDD and other
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documents describing the implementation and economics of the Project
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attached in Annex IV.
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Registration:
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Means the official registration of a CDM project by the Executive Board
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according to the Kyoto Rules.
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UNFCCC:
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Means the United Nations Framework Convention on Climate Change
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adopted in New York on May 9, 1992.
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Unit Price:
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Means the price payable by Purchaser to Project Proponent per Certified
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Emission Reduction (CER) which is equal to:
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United Best Technology will purchase certified CER generated by this
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project for the year 2007 to 2012 with options of extension for another 7
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years plus 7 years under same terms and conditions. The Project
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Proponent will be paid (85)% of net revenue from sale of certified CER
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generated as received by Viet nam Project Proponent from this project
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after initial one time $(75,000) USD of first revenue payment to United
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Best Technology for the funding the CDM process. The purchase price by
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United Best Technology is fixed as (10)$US/CER minus tax and sale
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commission.
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Initial
VN Hydro Power CDM Project
Proponent:__________Initial United Best Technology-2:
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Emission Reduction Purchase Agreement
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Page 4 of 10
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Validation:
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Means the assessment of the PDD, including the Baseline, by an
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Operating Entity, determining its compliance with the Kyoto Rules.
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Verification:
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Means the periodic independent review and ex post determination of the
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monitored reductions in GHG emissions that the Project has achieved
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during a specified period of time by an Operational Entity in accordance
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with the Kyoto Rules. The project's owner will be Responsible for
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providing periodical monitoring.
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Unless otherwise specified, references to clauses are to clauses of this Agreement, references to
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legal provisions are references to such provisions as in effect from time to time, use of a gender
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includes any gender and use of the plural includes the singular and vice versa where the context
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requires.
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All headings and titles are inserted for convenience only and shall not be deemed part of this
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Agreement or taken into consideration in its interpretation.
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1.
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Preamble
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The Project is located on the territory of the Host Country.
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2.
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Contractual Obligations
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2.1.
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Anticipated Emission Reductions
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2.1.1.
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Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
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accordance with the PDD and other documents describing the implementation and
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economics of the project attached in Annex IV at its own risk and expense. It is hereby
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acknowledged and agreed between the parties hereto that Purchaser does not warrant
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the generation of, and is not obliged to generate, any CERs, whether by the Project or
|
|
|
|
otherwise.
|
|
|
|
2.1.2.
|
|
If the Project generates CERs during the crediting period, Project Proponent shall, to the
|
|
|
|
extent it is legally possible and permissible, exclusively transfer or cause to be
|
|
|
|
transferred to Purchaser all rights (and, to the extent legally possible and permissible,
|
|
|
|
legal title) which Project Proponent may have in the Anticipated Emission Reductions
|
|
|
|
generated during the Crediting Period to Purchaser.
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are
|
|
|
|
transferred to Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.
|
|
Additional Emission Reductions
|
|
|
|
2.2.1.
|
|
If Additional Emission Reductions are generated by the Project during the Crediting
|
|
|
|
Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
|
|
|
|
subject to the terms and conditions of this Agreement and at a price per Additional
|
|
|
|
Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise the
|
|
|
|
purchase option then Project Proponent may deal with the Additional Emission
|
|
|
|
Reductions as it wishes.
|
|
Initial
VN Hydro Power CDM Project
Proponent:__________
Initial United Best Technology-2:
|
Emission Reduction Purchase Agreement
|
Page 5 of 10
|
|
|
|
|
|
2.2.2.
|
|
Additional Emission Reductions offer by the Purchaser shall be made as soon as
|
|
|
|
possible after such Additional Emission Reductions have been generated, but no later
|
|
|
|
than December 31 of the year subsequent to the calendar year in which such Additional
|
|
|
|
Emission Reductions have been generated.
|
|
|
|
2.2.3.
|
|
Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
|
|
|
|
Project Proponent within one month after receipt of such offer, whether and to what
|
|
|
|
extent it accepts the offer. If Purchaser does not respond within this deadline the offer
|
|
|
|
shall be deemed to be rejected by Purchaser.
|
|
|
|
2.2.4.
|
|
To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
|
|
|
|
legally possible and permissible, transfer or cause to be transferred to Purchaser all
|
|
|
|
rights (and, to the extent legally possible and permissible, legal title) which Project
|
|
|
|
Proponent may have in those Additional Emission Reductions in respect of which
|
|
|
|
Purchaser has accepted such offer, within two months after acceptance of such offer by
|
|
|
|
Purchaser.
|
|
|
|
2.2.5.
|
|
To the extent Purchaser rejects such offer of Additional Emission Reductions or such offer
|
|
|
|
is deemed rejected by Purchaser, Project Proponent shall be free to enter into contracts
|
|
|
|
with other parties for the sale of such Additional Emission Reductions or to otherwise
|
|
|
|
deal with such Additional Emission Reductions as Project Proponent wishes.
|
|
|
|
2.2.6.
|
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
|
|
|
|
Additional Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.3.
|
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding
|
|
|
|
an agreement on the purchase of such Certified Emission Reductions based on the
|
|
|
|
principles of this Agreement but amended in order to reflect the international and/or
|
|
|
|
national rules then applicable.
|
|
|
|
|
|
|
|
3.
|
|
Transfer
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible,
|
|
|
|
legal title) which Project Proponent may have in a Certified Emission Reduction shall
|
|
|
|
have occurred upon the transfer of a CER from the register of the Executive Board to a
|
|
|
|
register in favor of Purchaser or such other account or register Purchaser has notified to
|
|
|
|
Project Proponent in writing.
|
|
|
|
|
|
|
|
4.
|
|
Payment
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
|
|
|
|
rights in which are transferred pursuant to clause 3) shall be made on the last Business
|
|
|
|
Day of the month in which a 40 Business Day period, starting at the day on which
|
|
|
|
Purchaser has received satisfactory evidence of the transfer as provided for in Clause 3,
|
|
|
|
has elapsed.
|
Initial
VN Hydro Power CDM Project
Proponent:__________Initial United Best Technology-2:
|
Emission Reduction Purchase Agreement
|
Page 6 of 10
|
|
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified in Annex [I] hereto or such other
|
|
|
|
account as may from time to time be notified to the other party in writing.
|
|
|
|
4.1.3.
|
|
All payments shall be made in US Dollars.
|
|
|
|
4.1.4.
|
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection with
|
|
|
|
the generation of CERs by the Project and their Registration and transfer (including VAT
|
|
|
|
in any jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in
|
|
|
|
Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
4.1.5.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses according to the Kyoto Rules shall be borne by Project
|
|
|
|
Proponent and Purchaser in equal shares .
|
|
|
|
|
|
The share of the proceeds from CERs generated by the Project to be used to assist
|
|
|
|
developing countries that are particularly vulnerable to the adverse effects of climate
|
|
|
|
change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
|
|
|
|
Project Proponent and Purchaser in equal shares.
|
|
|
|
|
|
5.
|
|
Termination and Remedies
|
|
|
|
5.1.
|
|
|
|
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events
|
|
|
|
occurs:
|
|
|
|
5.1.1.
|
|
the other party commits a breach of any of its obligations under this Agreement and, in
|
|
|
|
the case of a breach capable of being remedied, such breach remains for more than 30
|
|
|
|
Business Days after it has been requested in writing by the Non-defaulting Party to
|
|
|
|
remedy the breach; or
|
|
|
|
5.1.2.
|
|
the other party goes into liquidation (whether voluntary or otherwise), is unable to pay its
|
|
|
|
debts as they fall due, is wound up, makes any compromise, composition or other
|
|
|
|
arrangement with its creditors generally, or becomes subject to any administration order.
|
|
|
|
5.2.
|
|
Force Majeure
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the
|
|
|
|
extent and for as long as such obligation is affected by Force Majeure and the impeded
|
|
|
|
party shall be entitled to such extension of time as may be reasonably necessary.
|
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event
|
|
|
|
of Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall
|
|
|
|
likewise advise the other of the date when such event ended and shall also specify the
|
|
|
|
re-determined time by which the performance of its obligations hereunder is to be
|
|
|
|
completed.
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining
|
|
|
|
any further appropriate action if a condition of Force Majeure is to continue after 20
|
|
|
|
Business Days from the date of giving notice thereof.
|
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for
|
Initial
VN Hydro Power CDM Project
Proponent:__________Initial United Best Technology-2:
|
Emission Reduction Purchase Agreement
|
Page 7 of 10
|
|
|
|
|
|
|
|
any delay in performing hereunder if such delay is caused by Force Majeure; provided,
|
|
|
|
however, that the non-impeded party shall be entitled to terminate such part of the
|
|
|
|
Agreement that remains unfulfilled, if the condition of Force Majeure is to continue after 6
|
|
|
|
months from the date of giving notice thereof.
|
|
|
|
|
|
6.
|
|
Change in Circumstances
|
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions) occurs which substantially affects the
|
|
|
|
Project, the parties to this Agreement shall enter into negotiations with a view to adapt
|
|
|
|
the Project and its implementation or any relevant provision of this Agreement, as may
|
|
|
|
be necessary or useful. A change in circumstances shall in no event be considered
|
|
|
|
substantially affecting the Project if at least 50% of the Anticipated Emission Reductions
|
|
|
|
can be generated.
|
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
|
|
|
|
|
7.
|
|
Conditions Precedent
|
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions
|
|
|
|
precedent:
|
|
|
|
|
|
1. Conclusion of a binding agreement with the Host Country.
|
|
|
|
|
|
|
|
8.
|
|
Miscellaneous
|
|
|
|
8.1.
|
|
Assignment and subcontracting
|
|
|
|
Neither party shall, without the written consent of the other party, assign or transfer the
|
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
|
|
|
8.2.
|
|
Confidentiality and Disclosure
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into
|
|
|
|
or performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in
|
|
|
|
those circumstances where disclosure is required in order to comply with any laws or
|
|
|
|
regulations, including without limitations the Kyoto Rules.
|
Initial
VN Hydro Power CDM Project
Proponent:__________Initial United Best Technology-2:
|
Emission Reduction Purchase Agreement
|
Page 8 of 10
|
|
|
|
|
|
8.3.
|
|
Notices
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be
|
|
|
|
made in writing (including by facsimile) to the address or facsimile number, from time to
|
|
|
|
time designated by the party to whom the communication is to be made to the other party
|
|
|
|
for that purpose. The address and facsimile number so designated are set out in Annex
|
|
|
|
[I]
hereto.
A
|
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has
|
|
|
|
been sent.
|
|
|
|
8.4.
|
|
Entire Agreement
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to
|
|
|
|
the subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein.
|
|
|
|
The Annexes and schedules to this Agreement constitute integral parts of this Agreement
|
|
|
|
and shall therefore be deemed part of this Agreement.
|
|
|
|
8.5.
|
|
Amendments
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
8.6.
|
|
Costs and Expenses
|
|
|
|
|
|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
|
preparation, execution and carrying into effect of this Agreement.
|
|
|
|
8.7
|
|
Severability
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
|
|
|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
|
|
|
8.8.
|
|
Governing law
|
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
|
excluding its rules on conflicts of laws.
|
|
|
|
8.9.
|
|
Jurisdiction
|
|
|
|
|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having jurisdiction
|
|
|
|
in commercial matters for England with regard to all disputes arising out of or in
|
|
|
|
connection with this Agreement, its violation, termination or nullity.
|
|
|
|
8.10.
|
|
Counterparts
|
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the English
|
|
|
|
and the Vietnamese version, the English version will prevail .
|
Initial
VN Hydro Power CDM Project
Proponent:__________Initial United Best Technology-2:
|
Emission Reduction Purchase Agreement
|
Page 9 of 10
|
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined
above, this 25
th
day of October 2007, in the presence of:
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
General Director: Dr. Tri Vu Truong
|
|
|
|
Project Proponent:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DANG NGOC HOAN
|
|
|
General Director: Mr. Dang Ngoc Hoan
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
BUI THI LAN HUONG
|
LE QUOC HUNG
|
|
Msc. Bui thi Lan Huong
|
MSc. Le Quoc Hung
|
|
CERtech Environment inc.-Canada
|
Engineer Viet nam
|
Initial
VN Hydro Power CDM Project
Proponent:__________
Initial United Best Technology-2:
|
Emission Reduction Purchase Agreement
|
|
|
Page 10 of 10
|
|
|
|
ANNEX I:
|
|
|
|
|
1. The salient features of Suoi Chim II hydro Power project at Bac Yen district in Son La
|
|
Province, Viet nam.
|
|
|
|
|
|
|
No
|
Parameters
|
Symbols
|
Units
|
Value
|
|
1
|
Catchment area
|
F
|
km2
|
108
|
|
2
|
Long-term average annual rainfall
|
Xo
|
mm
|
2,300
|
|
3
|
Average flow
|
Q0
|
m3/s
|
4.16
|
|
4
|
Total amount of average annual flow
|
W0
|
106m3
|
131.10
|
|
5
|
Specific runoff
|
M0
|
l/s.km2
|
59
|
|
6
|
Normal water level
|
MNDBT
|
m
|
405
|
|
7
|
Dead water level
|
MNC
|
m
|
400
|
|
8
|
Surface area with normal water level
|
F
|
ha
|
50
|
|
9
|
Designed head
|
Htt
|
m
|
200
|
|
10
|
Designed discharge
|
QTK
|
m3/s
|
8.31
|
|
11
|
Installation capacity
|
Nlm
|
MW
|
14
|
|
12
|
Firm capacity P=85%
|
Ndb
|
MW
|
3,4
|
|
13
|
Number of unit
|
z
|
|
02
|
|
14
|
Estimated Annual Electricity Generation
|
Eo
|
106 kWh
|
57.68
|
|
15
|
Estimated Annual Operation Hours
|
hsd
|
h
|
4120
|
|
16
|
Annual estimation of the emission
reduction, tCO
2
eq
|
CERs
|
tCO2 eq
|
33,454
|
|
17
|
Resettlement
|
|
person
|
0
|
|
18
|
Compensation (land, tree, farm, property,
etc…)
|
|
103USD
|
300
|
|
19
|
It is run off river hydropower plant
|
|
|
yes
|
|
20
|
New hydropower project with reservoirs
having power densities (installed capacity
devided by the surface area at full reservoir
level) greater than 4 W/m
2
.
|
|
|
28
|
2. Project time schedule.
- Year of 2007: FS and technical design is planned to be completed by the 4
th
quarter of 2007. Preparing work and opening ceremony of project is planned by the 2
nd
quarter of 2008.
- Year of 2008: Buying the equipments and construct some main items.
- Year of 2009: Operation of unit 1 by the 3
rd
quarter of 2009, completing of project by the 4
th
quarter of 2009.
Initial
VN Hydro Power CDM Project
Proponent:__________Initial United Best Technology-2:
|
Emission Reduction Purchase Agreement
|
Page 1 of 10
|
Exhibit 10.2
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
UNITED BEST TECHNOLOGY LIMITED
Suite 1001-4A,Champion Building
287-291 Des Voeux Road, Central Hong Kong
Tel : 852-2405 6999 Fax: 852-2492 3777
Email: trivutruong2004@yahoo.ca
President-General Director : Dr. Tri Vu Truong
and
(the " DakRong 4 Hydro Power-CDM Project Proponent")., henceforth
“VIETNAM PROJECT PROPONENT”
Sponsor: THUONG HAI JOINT STOCK COMPANY
Address: 162 Tran Hung Dao Street, Dong Ha Town, Quang Tri Province
Mobile phone:+84 903506645
Telephone: +84 53 857 621
Fax: +84 53 855 316
General Director: Mr. Nguyen Quang Chuoc
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
|
Emission Reduction Purchase Agreement
|
Page 2 of 10
|
|
|
|
|
|
Interpretation and Definitions
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
|
|
meaning set forth in the definitions below.
|
|
|
|
Additional
|
Means any Certified Emission Reduction (CER) generated by the Project
|
|
Emission
|
that is in excess of [50,000] Certified Emission Reductions (CERs) per
|
|
Reduction:
|
annum.
|
|
|
|
Agreement:
|
Means this Emission Reduction Purchase Agreement.
|
|
|
|
Annex B Countries:
|
Means the countries listed in Annex B to the Kyoto Protocol having
|
|
|
committed themselves to reduce or limit their GHG emissions.
|
|
|
|
Annex I Countries:
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
|
|
|
consists of industrial countries and countries in transition).
|
|
|
|
Anticipated
|
Means up to [50,000] Certified Emission Reductions (CERs) per annum
|
|
Emission
|
during the Crediting Period, anticipated to be generated by the Project
|
|
Reduction:
|
and calculated in accordance with the Kyoto Rules.
|
|
|
|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic
|
|
|
emissions of GHG that would occur in the Host Country in the absence of
|
|
|
the Project, determined in accordance with the Kyoto Rules.
|
|
|
|
Business Day:
|
Means a day on which banks are open for general business in Vietnam.
|
|
|
|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various GHG
|
|
Equivalent:
|
based upon their global warming potential.
|
|
|
|
Certification:
|
Means the written confirmation by an Operational Entity of an Emission
|
|
|
Reduction resulting from a CDM project and having passed the
|
|
|
Verification procedure according to the Kyoto Rules.
|
|
|
|
Certified Emission
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
|
|
Reduction (CER):
|
Kyoto Protocol and the requirements of the Kyoto Rules (including
|
|
|
Certification), equal to one metric ton of Carbon Dioxide Equivalent
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|
|
resulting from a CDM project.
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|
|
Clean Development
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Means the flexible mechanism established by Article 12 of the Kyoto
|
|
Mechanism (CDM) :
|
Protocol providing for Annex I Countries to implement projects that reduce
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|
|
emissions in non-Annex I Countries in return for CERs and assist the non-
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|
Annex I Countries in achieving sustainable development and contributing
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|
|
to the ultimate objective of the UNFCCC.
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|
|
Crediting Period:
|
Means, until December 31, 2026.
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|
|
Emission
|
Means reduction in emission of GHG achieved, calculated in accordance
|
|
Reduction:
|
with the Kyoto Rules.
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|
|
Executive Board:
|
Means the international authority elected by the representatives of the
|
|
|
parties to the Kyoto Protocol responsible for monitoring the CDM process.
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|
|
First Commitment
|
Means October 25, 2007 until December 31, 2026.
|
|
Period:
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|
Force Majeure:
|
Means any circumstance or condition beyond the control of either party to
|
|
|
this Agreement affecting the performance of its obligations under this
|
|
|
Agreement including in particular wars, insurrection, natural disaster or
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|
|
equivalent circumstances.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
|
Emission Reduction Purchase Agreement
|
Page 3 of 10
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Greenhouse Gases
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Means the six gases listed in Annex A to the Kyoto Protocol.
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|
(GHG):
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|
Host Country:
|
Vietnam
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|
|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference of the
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|
|
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
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Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
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|
|
Marrakesh Accords, any relevant decisions, guidelines, modalities and
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procedures made pursuant to them and/or any succeeding international
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agreements as amended and/or supplemented from time to time and
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which include those rules specifically required to be met for the issuing
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and transfer of CERs.
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Letter of Approval
|
Means a binding approval of the Project by the Host Country together with
|
|
(LOA):
|
an approval of the transfer of CERs.
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Monitoring Report:
|
Means an annual report to be provided by Owner setting out the total
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|
|
number of Emission Reductions generated by the Project during the
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|
|
previous year according to the Kyoto Rules, international Monitoring rules
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and the PDD.
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|
Monitoring:
|
Means the collection and record of data allowing the assessment of
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|
|
reductions in GHG emissions resulting from the Project conducted in
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|
|
accordance with the Kyoto Rules.
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Operational Entity:
|
Means an independent entity accredited by the Executive Board being the
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|
|
executive body for CDM and inter alias responsible for determining
|
|
|
whether a project and the resulting Emission Reductions meet the
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|
|
requirements of Article 12 of the Kyoto Protocol.
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Project Design
|
Means a detailed description of the Project to be submitted for Validation
|
|
Document (PDD):
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive
|
|
|
and attached as Annex III. The Purchaser will be responsible for providing
|
|
|
PDD development for Registration of the Project.
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|
Project:
|
Means the proposed CDM project described in the PDD and other
|
|
|
documents describing the implementation and economics of the Project
|
|
|
attached in Annex IV.
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|
|
Registration:
|
Means the official registration of a CDM project by the Executive Board
|
|
|
according to the Kyoto Rules.
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|
UNFCCC:
|
Means the United Nations Framework Convention on Climate Change
|
|
|
adopted in New York on May 9, 1992.
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Unit Price:
|
Means the price payable by Purchaser to Project Proponent per Certified
|
|
|
Emission Reduction (CER) which is equal to:
|
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|
|
United Best Technology will purchase certified CER generated by this
|
|
|
project for the year 2007 to 2012 with options of extension for another 7
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|
|
years plus 7 years under same terms and conditions. The Project
|
|
|
Proponent will be paid (85)% of net revenue from sale of certified CER
|
|
|
generated as received by Viet nam Project Proponent from this project
|
|
|
after initial one time $(75,000)USD of first revenue payment to United
|
|
|
Best Technology for the funding the CDM process. The purchase price by
|
|
|
United Best Technology is fixed as (10)$US/CER minus tax and sale
|
|
|
commission.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
|
Emission Reduction Purchase Agreement
|
Page 4 of 10
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Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
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|
Verification:
|
Means the periodic independent review and ex post determination of the
|
|
|
monitored reductions in GHG emissions that the Project has achieved
|
|
|
during a specified period of time by an Operational Entity in accordance
|
|
|
with the Kyoto Rules. The project's owner will be Responsible for
|
|
|
providing periodical monitoring.
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to legal provisions
are references to such provisions as in effect from time to time, use of a gender includes any gender and use of the
plural includes the singular and vice versa where the context requires.
All headings and titles are inserted for convenience only and shall not be deemed part of this Agreement or taken
into consideration in its interpretation.
1. Preamble
The Project is located on the territory of the Host Country.
|
2.
|
|
Contractual Obligations
|
|
|
|
2.1.
|
|
Anticipated Emission Reductions
|
|
|
|
2.1.1.
|
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
|
accordance with the PDD and other documents describing the implementation and
|
|
|
|
economics of the project attached in Annex IV at its own risk and expense. It is hereby
|
|
|
|
acknowledged and agreed between the parties hereto that Purchaser does not warrant
|
|
|
|
the generation of, and is not obliged to generate, any CERs, whether by the Project or
|
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|
|
otherwise.
|
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|
2.1.2.
|
|
If the Project generates CERs, Project Proponent shall, to the extent it is legally possible
|
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|
|
and permissible, transfer or cause to be transferred to Purchaser all rights (and, to the
|
|
|
|
extent legally possible and permissible, legal title) which Project Proponent may have in
|
|
|
|
the Anticipated Emission Reductions generated during the Crediting Period to Purchaser.
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are
|
|
|
|
transferred to Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.
|
|
Additional Emission Reductions
|
|
|
|
2.2.1.
|
|
If Additional Emission Reductions are generated by the Project during the Crediting
|
|
|
|
Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
|
|
|
|
subject to the terms and conditions of this Agreement and at a price per Additional
|
|
|
|
Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise the
|
|
|
|
purchase option then Project Proponent may deal with the Additional Emission
|
|
|
|
Reductions as it wishes.
|
|
|
|
2.2.2.
|
|
Additional Emission Reductions offer by the Purchaser shall be made as soon as
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
|
Emission Reduction Purchase Agreement
|
Page 5 of 10
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|
possible after such Additional Emission Reductions have been generated, but no later
|
|
|
|
than December 31 of the year subsequent to the calendar year in which such Additional
|
|
|
|
Emission Reductions have been generated.
|
|
|
|
2.2.3.
|
|
Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
|
|
|
|
Project Proponent within one month after receipt of such offer, whether and to what
|
|
|
|
extent it accepts the offer. If Purchaser does not respond within this deadline the offer
|
|
|
|
shall be deemed to be rejected by Purchaser.
|
|
|
|
2.2.4.
|
|
To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
|
|
|
|
legally possible and permissible, transfer or cause to be transferred to Purchaser all
|
|
|
|
rights (and, to the extent legally possible and permissible, legal title) which Project
|
|
|
|
Proponent may have in those Additional Emission Reductions in respect of which
|
|
|
|
Purchaser has accepted such offer, within two months after acceptance of such offer by
|
|
|
|
Purchaser.
|
|
|
|
2.2.5.
|
|
To the extent Purchaser rejects such offer of Additional Emission Reductions or such offer
|
|
|
|
is deemed rejected by Purchaser, Project Proponent shall be free to enter into contracts
|
|
|
|
with other parties for the sale of such Additional Emission Reductions or to otherwise
|
|
|
|
deal with such Additional Emission Reductions as Project Proponent wishes.
|
|
|
|
2.2.6.
|
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
|
|
|
|
Additional Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.3.
|
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding
|
|
|
|
an agreement on the purchase of such Certified Emission Reductions based on the
|
|
|
|
principles of this Agreement but amended in order to reflect the international and/or
|
|
|
|
national rules then applicable.
|
|
|
|
|
|
|
|
3.
|
|
Transfer
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible,
|
|
|
|
legal title) which Project Proponent may have in a Certified Emission Reduction shall
|
|
|
|
have occurred upon the transfer of a CER from the register of the Executive Board to a
|
|
|
|
register in favor of Purchaser or such other account or register Purchaser has notified to
|
|
|
|
Project Proponent in writing.
|
|
|
|
|
|
|
|
4.
|
|
Payment
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
|
|
|
|
rights in which are transferred pursuant to clause 3) shall be made on the last Business
|
|
|
|
Day of the month in which a 40 Business Day period, starting at the day on which
|
|
|
|
Purchaser has received satisfactory evidence of the transfer as provided for in Clause 3,
|
|
|
|
has elapsed.
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified in Annex [I] hereto or such other
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
|
Emission Reduction Purchase Agreement
|
Page 6 of 10
|
|
|
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|
|
|
account as may from time to time be notified to the other party in writing.
|
|
|
|
4.1.3.
|
|
All payments shall be made in US Dollars.
|
|
|
|
4.1.4.
|
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection with
|
|
|
|
the generation of CERs by the Project and their Registration and transfer (including VAT
|
|
|
|
in any jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in
|
|
|
|
Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
4.1.5.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses according to the Kyoto Rules shall be borne by Project
|
|
|
|
Proponent and Purchaser in equal shares .
|
|
|
|
|
|
The share of the proceeds from CERs generated by the Project to be used to assist
|
|
|
|
developing countries that are particularly vulnerable to the adverse effects of climate
|
|
|
|
change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
|
|
|
|
Project Proponent and Purchaser in equal shares.
|
|
|
|
|
|
5.
|
|
Termination and Remedies
|
|
|
|
5.1.
|
|
|
|
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events
|
|
|
|
occurs:
|
|
|
|
5.1.1.
|
|
the other party commits a breach of any of its obligations under this Agreement and, in the
|
|
|
|
case of a breach capable of being remedied, such breach remains unremedied for more
|
|
|
|
than 30 Business Days after it has been requested in writing by the Non-defaulting Party
|
|
|
|
to remedy the breach; or
|
|
|
|
5.1.2.
|
|
the other party goes into liquidation (whether voluntary or otherwise), is unable to pay its
|
|
|
|
debts as they fall due, is wound up, makes any compromise, composition or other
|
|
|
|
arrangement with its creditors generally, or becomes subject to any administration order.
|
|
|
|
5.2.
|
|
Force Majeure
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the
|
|
|
|
extent and for as long as such obligation is affected by Force Majeure and the impeded
|
|
|
|
party shall be entitled to such extension of time as may be reasonably necessary.
|
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event
|
|
|
|
of Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall
|
|
|
|
likewise advise the other of the date when such event ended and shall also specify the
|
|
|
|
re-determined time by which the performance of its obligations hereunder is to be
|
|
|
|
completed.
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining
|
|
|
|
any further appropriate action if a condition of Force Majeure is to continue after 20
|
|
|
|
Business Days from the date of giving notice thereof.
|
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for
|
|
|
|
any delay in performing hereunder if such delay is caused by Force Majeure; provided,
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
|
Emission Reduction Purchase Agreement
|
Page 7 of 10
|
|
|
|
|
|
|
|
however, that the non-impeded party shall be entitled to terminate such part of the
|
|
|
|
Agreement that remains unfulfilled, if the condition of Force Majeure is to continue after 6
|
|
|
|
months from the date of giving notice thereof.
|
|
|
|
|
|
6.
|
|
Change in Circumstances
|
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions) occurs which substantially affects the
|
|
|
|
Project, the parties to this Agreement shall enter into negotiations with a view to adapt
|
|
|
|
the Project and its implementation or any relevant provision of this Agreement, as may
|
|
|
|
be necessary or useful. A change in circumstances shall in no event be considered
|
|
|
|
substantially affecting the Project if at least 50% of the Anticipated Emission Reductions
|
|
|
|
can be generated.
|
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
|
|
|
|
|
7.
|
|
Conditions Precedent
|
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions
|
|
|
|
precedent:
|
|
|
|
|
|
1. Conclusion of a binding agreement with the Host Country.
|
|
|
|
|
|
|
|
8.
|
|
Miscellaneous
|
|
|
|
8.1.
|
|
Assignment and subcontracting
|
|
|
|
Neither party shall, without the written consent of the other party, assign or transfer the
|
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
|
|
|
8.2.
|
|
Confidentiality and Disclosure
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into
|
|
|
|
or performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in
|
|
|
|
those circumstances where disclosure is required in order to comply with any laws or
|
|
|
|
regulations, including without limitations the Kyoto Rules.
|
|
|
|
8.3.
|
|
Notices
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
|
Emission Reduction Purchase Agreement
|
Page 8 of 10
|
|
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|
made in writing (including by facsimile) to the address or facsimile number, from time to
|
|
|
|
time designated by the party to whom the communication is to be made to the other party
|
|
|
|
for that purpose. The address and facsimile number so designated are set out in Annex
|
|
|
|
[I]
hereto.
A
|
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has
|
|
|
|
been sent.
|
|
|
|
8.4.
|
|
Entire Agreement
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to
|
|
|
|
the subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein.
|
|
|
|
The Annexes and schedules to this Agreement constitute integral parts of this Agreement
|
|
|
|
and shall therefore be deemed part of this Agreement.
|
|
|
|
8..
|
|
Amendments
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
8.6.
|
|
Costs and Expenses
|
|
|
|
|
|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
|
preparation, execution and carrying into effect of this Agreement.
|
|
|
|
8.7.
|
|
Severability
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
|
|
|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
|
|
|
8.8.
|
|
Governing law
|
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
|
excluding its rules on conflicts of laws.
|
|
|
|
8.9.
|
|
Jurisdiction
|
|
|
|
|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having jurisdiction
|
|
|
|
in commercial matters for England with regard to all disputes arising out of or in
|
|
|
|
connection with this Agreement, its violation, termination or nullity.
|
|
|
|
8.10.
|
|
Counterparts
|
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the English
|
|
|
|
and the Vietnamese version, the English version will prevail .
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
Emission Reduction Purchase Agreement
Page 9 of 10
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined
above, this 25 th day of October, 2007, in the presence of:
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-General Director : Dr. Tri Vu Truong
|
|
|
|
|
|
|
|
Project Proponent:
|
|
|
|
|
|
|
|
|
|
NGUYEN QUANG CHUOC
|
|
|
General Director: M
r. Nguyen Quang Chuoc
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
BUI THI LAN HUONG
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LE QUOC HUNG
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Msc. Bui Thi Lan Huong
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Msc. Le Quoc Hung
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CERtech Environment inc-Canada
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Engineer Viet nam
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Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
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Emission Reduction Purchase Agreement
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Page 10 of 10
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ANNEX I:
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1. The salient features of DakRon
g4 Hydro Power Projet at DakRong4 District, Quang Tri
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Province, Vietnam.
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No
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Parameters
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Symbols
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Units
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Value
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1
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Catchment area
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F
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km
2
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717.00
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2
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Long-term average annual rainfall
|
Xo
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mm
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2600
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3
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Average flow
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Q
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m
3
/s
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42
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4
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Total amount of average annual flow
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W
0
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10
6
m3
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5
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Specific runoff
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M
0
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l/s.km
2
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6
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Normal water level
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MNDBT
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m
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140
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7
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Dead water level
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MNC
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m
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135
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8
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Surface area with normal water level
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F
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km
2
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0.7
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9
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Designed head
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Htt
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m
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30
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10
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Designed discharge
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Q
TK
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m3 /s
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70
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11
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Installation capacity
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Nlm
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MW
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17
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12
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Firm capacity P=85%
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Ndb
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MW
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3
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13
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Number of unit
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z
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03
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14
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Estimated Annual Electricity Generation
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Eo
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10
6
kWH
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70.13
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15
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Estimated Annual Operation Hours
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h
sd
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h
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4.125
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16
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Annual estimation of the emission
reduction, tCO
2
eq
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CERs
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tCO
2
eq
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39.971
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17
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Resettlement
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person
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16
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18
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Compensation (land, tree, farm, property,
etc…)
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10
6
USD
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1.2
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19
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It is run off river hydropower plant
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No
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20
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New hydropower project with reservoirs
having power densities (installed capacity
devided by the surface area at full reservoir
level) greater than 4 W/m
2
.
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24.29
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4.
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Project time schedule.
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Year of 2007: Feasibility study is planned to be completed by the 4
th
quarter of 2007.
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Year of 2008: Technical design is planned to be completed by 2
nd
quarter.
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Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-7:
Emission Reduction Purchase Agreement
Page 1 of 11
Exhibit 10.3
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
UNITED BEST TECHNOLOGY LIMITED
Suite 1001-4A, Champion Building
287-291 Des Voeux Road, Central Hong Kong
Tel : 852-2405 6999
Fax: 852-2492 3777
Email: trivutruong2004@yahoo.ca
President-General Director: Dr. Tri Vu Truong
and
(the " Khe Bo, Nghe An province, Vietnam Hydro Power-CDM Project
Proponent")., henceforth “Vietnam Project Proponent”
Sponsor: VIETNAM POWER DEVELOPMENT JOINT STOCK COMPANY
Address: Floor 11 Building Cienco1
623 La Thanh. Str-Hanoi – Vietnam
844 2131576, 0913212864
Vice General Director: Mr. NGUYEN DUY TAM
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
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Emission Reduction Purchase Agreement
Page 2 of 11
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Interpretation and Definitions
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In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
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meaning set forth in the definitions below.
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Additional
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Means any Certified Emission Reduction (CER) generated by the Project
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Emission
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that is in excess of [50,000] Certified Emission Reductions (CERs) per
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Reduction:
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annum.
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Agreement:
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Means this Emission Reduction Purchase Agreement.
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Annex B Countries:
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Means the countries listed in Annex B to the Kyoto Protocol having
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committed themselves to reduce or limit their GHG emissions.
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Annex I Countries:
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Means the parties to the UNFCCC listed in Annex I thereto (Annex I
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consists of industrial countries and countries in transition).
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Anticipated
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Means up to [50,000] Certified Emission Reductions (CERs) per annum
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Emission
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during the Crediting Period, anticipated to be generated by the Project
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Reduction:
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and calculated in accordance with the Kyoto Rules.
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Baseline:
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Means the scenario that reasonably represents the anthropogenic
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emissions of GHG that would occur in the Host Country in the absence of
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the Project, determined in accordance with the Kyoto Rules.
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Business Day:
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Means a day on which banks are open for general business in Vietnam.
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Carbon Dioxide
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Means a metric measure used to compare the emissions of various GHG
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Equivalent:
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based upon their global warming potential.
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Certification:
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Means the written confirmation by an Operational Entity of an Emission
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Reduction resulting from a CDM project and having passed the
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Verification procedure according to the Kyoto Rules.
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Certified Emission
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Means a unit of Emission Reduction issued pursuant to Article 12 of the
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Reduction (CER):
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Kyoto Protocol and the requirements of the Kyoto Rules (including
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Certification), equal to one metric ton of Carbon Dioxide Equivalent
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resulting from a CDM project.
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Clean Development
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Means the flexible mechanism established by Article 12 of the Kyoto
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Mechanism (CDM) :
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Protocol providing for Annex I Countries to implement projects that reduce
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emissions in non-Annex I Countries in return for CERs and assist the non-
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Annex I Countries in achieving sustainable development and contributing
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to the ultimate objective of the UNFCCC.
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Crediting Period:
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Means, until December 31, 2026.
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Emission
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Means reduction in emission of GHG achieved, calculated in accordance
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Reduction:
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with the Kyoto Rules.
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Executive Board:
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Means the international authority elected by the representatives of the
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parties to the Kyoto Protocol responsible for monitoring the CDM process.
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First Commitment
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Means November 8, 2007 until December 31, 2026.
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Period:
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Force Majeure:
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Means any circumstance or condition beyond the control of either party to
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this Agreement affecting the performance of its obligations under this
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Agreement including in particular wars, insurrection, natural disaster or
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equivalent circumstances.
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Initial
VN Hydro Power CDM Project
Proponent: ______ Initial United Best Technology Limited-II:
|
Emission Reduction Purchase Agreement
Page 3 of 11
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Greenhouse Gases
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Means the six gases listed in Annex A to the Kyoto Protocol.
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(GHG):
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Host Country:
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Vietnam
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Kyoto Protocol:
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Means the protocol to the UNFCCC adopted at the third conference of the
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parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
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Kyoto Rules:
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Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
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Marrakesh Accords, any relevant decisions, guidelines, modalities and
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procedures made pursuant to them and/or any succeeding international
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agreements as amended and/or supplemented from time to time and
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which include those rules specifically required to be met for the issuing
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and transfer of CERs.
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Letter of Approval
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Means a binding approval of the Project by the Host Country together with
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(LOA):
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an approval of the transfer of CERs.
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Monitoring Report:
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Means an annual report to be provided by Owner setting out the total
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number of Emission Reductions generated by the Project during the
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previous year according to the Kyoto Rules, international Monitoring rules
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and the PDD.
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Monitoring:
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Means the collection and record of data allowing the assessment of
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reductions in GHG emissions resulting from the Project conducted in
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accordance with the Kyoto Rules.
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Operational Entity:
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Means an independent entity accredited by the Executive Board being the
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executive body for CDM and inter alias responsible for determining
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whether a project and the resulting Emission Reductions meet the
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requirements of Article 12 of the Kyoto Protocol.
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Project Design
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Means a detailed description of the Project to be submitted for Validation
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Document (PDD):
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prepared in accordance with the Kyoto Rules, the UFG and the Directive
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and attached as Annex III. The Purchaser will be responsible for providing
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PDD development for Registration of the Project.
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Project:
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Means the proposed CDM project described in the PDD and other
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documents describing the implementation and economics of the Project
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attached in Annex IV.
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Registration:
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Means the official registration of a CDM project by the Executive Board
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according to the Kyoto Rules.
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UNFCCC:
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Means the United Nations Framework Convention on Climate Change
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adopted in New York on May 9, 1992.
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Unit Price:
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Means the price payable by Purchaser to Project Proponent per Certified
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Emission Reduction (CER) which is equal to:
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United Best Technology Limited will purchase certified CER generated by
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this project for the year 2010 to 2020 with options of extension for another
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7 years plus 7 years under same terms and conditions. The Project
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Proponent will be paid (85)% of net revenue from sale of certified CER
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generated as received by Viet nam Project Proponent from this project
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after initial one time $(75,000) USD of first revenue payment to United
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Best Technology Limited for the funding the CDM process. The purchase
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price by United Best Technology Limited is fixed as (10)$US/CER minus
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tax and sale commission.
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Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
|
Emission Reduction Purchase Agreement
Page 4 of 11
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Validation:
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Means the assessment of the PDD, including the Baseline, by an
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Operational Entity, determining its compliance with the Kyoto Rules.
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Verification:
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Means the periodic independent review and ex post determination of the
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monitored reductions in GHG emissions that the Project has achieved
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during a specified period of time by an Operational Entity in accordance
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with the Kyoto Rules. The project's owner will be Responsible for
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providing periodical monitoring.
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Unless otherwise specified, references to clauses are to clauses of this Agreement, references to
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legal provisions are references to such provisions as in effect from time to time, use of a gender
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includes any gender and use of the plural includes the singular and vice versa where the context
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requires.
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All headings and titles are inserted for convenience only and shall not be deemed part of this
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Agreement or taken into consideration in its interpretation.
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1.
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Preamble
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The Project is located on the territory of the Host Country.
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2.
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Contractual Obligations
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2.1.
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Anticipated Emission Reductions
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2.1.1.
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Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
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accordance with the PDD and other documents describing the implementation and
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economics of the project attached in Annex IV at its own risk and expense. It is hereby
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acknowledged and agreed between the parties hereto that Purchaser does not warrant
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the generation of, and is not obliged to generate, any CERs, whether by the Project or
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otherwise.
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2.1.2.
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If the Project generates CERs, during the crediting period Project Proponent shall, to the
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extent it is legally possible and permissible, transfer or cause to be transferred to
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Purchaser all rights (and, to the extent legally possible and permissible, legal title) which
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Project Proponent may have in the Anticipated Emission Reductions generated during
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the Crediting Period to Purchaser.
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2.1.3.
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Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
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Reduction generated by the Project and in which the Project Proponent's rights are
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transferred to Purchaser in accordance with clause 3 below.
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2.2.
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Additional Emission Reductions
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2.2.1.
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If Additional Emission Reductions are generated by the Project during the Crediting
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Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
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subject to the terms and conditions of this Agreement and at a price per Additional
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Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise the
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purchase option then Project Proponent may deal with the Additional Emission
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Reductions as it wishes.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
|
Emission Reduction Purchase Agreement
Page 5 of 11
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2.2.2.
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Additional Emission Reductions offer by the Purchaser shall be made as soon as
|
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possible after such Additional Emission Reductions have been generated, but no later
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than December 31 of the year subsequent to the calendar year in which such Additional
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Emission Reductions have been generated.
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2.2.3.
|
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Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
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Project Proponent within one month after receipt of such offer, whether and to what
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extent it accepts the offer. If Purchaser does not respond within this deadline the offer
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shall be deemed to be rejected by Purchaser.
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2.2.4.
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To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
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legally possible and permissible, transfer or cause to be transferred to Purchaser all
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rights (and, to the extent legally possible and permissible, legal title) which Project
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Proponent may have in those Additional Emission Reductions in respect of which
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Purchaser has accepted such offer, within two months after acceptance of such offer by
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Purchaser.
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2.2.5.
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To the extent Purchaser rejects such offer of Additional Emission Reductions or such offer
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is deemed rejected by Purchaser, Project Proponent shall be free to enter into contracts
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with other parties for the sale of such Additional Emission Reductions or to otherwise
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deal with such Additional Emission Reductions as Project Proponent wishes.
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2.2.6.
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Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
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Additional Emission Reduction in respect of which Purchaser has accepted such offer.
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2.3.
|
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Emission Reductions generated after the Crediting Period
|
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If the Project generates any Certified Emission Reductions after the Crediting Period,
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Purchaser shall enter into negotiations with Project Proponent with a view to concluding
|
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an agreement on the purchase of such Certified Emission Reductions based on the
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principles of this Agreement but amended in order to reflect the international and/or
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national rules then applicable.
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3.
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Transfer
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Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible,
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legal title) which Project Proponent may have in a Certified Emission Reduction shall
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have occurred upon the transfer of a CER from the register of the Executive Board to a
|
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register in favor of Purchaser or such other account or register Purchaser has notified to
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Project Proponent in writing.
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4.
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Payment
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4.1.
|
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Payment for Certified Emission Reductions
|
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4.1.1.
|
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Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
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rights in which are transferred pursuant to clause 3) shall be made on the last Business
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Day of the month in which a 40 Business Day period, starting at the day on which
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Purchaser has received satisfactory evidence of the transfer as provided for in Clause 3,
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has elapsed.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
|
Emission Reduction Purchase Agreement
Page 6 of 11
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4.1.2.
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All payments shall be made to the accounts specified in Annex [I] hereto or such other
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account as may from time to time be notified to the other party in writing.
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4.1.3.
|
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All payments shall be made in US Dollars.
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4.1.4.
|
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection with
|
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the generation of CERs by the Project and their Registration and transfer (including VAT
|
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in any jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in
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Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
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4.1.5.
|
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The share of the proceeds from CERs generated by the Project to be used to cover
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administrative expenses according to the Kyoto Rules shall be borne by Project
|
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Proponent and Purchaser in equal shares.
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The share of the proceeds from CERs generated by the Project to be used to assist
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developing countries that are particularly vulnerable to the adverse effects of climate
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change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
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Project Proponent and Purchaser in equal shares.
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5.
|
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Termination and Remedies
|
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5.1.
|
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Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
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written notice to the other party with immediate effect if any of the following events
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occurs:
|
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5.1.1.
|
|
the other party commits a breach of any of its obligations under this Agreement and, in
|
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the case of a breach capable of being remedied, such breach remains more than 30
|
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|
Business Days after it has been requested in writing by the Non-defaulting Party to
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remedy the breach; or
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5.1.2.
|
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the other party goes into liquidation (whether voluntary or otherwise), is unable to pay its
|
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|
|
debts as they fall due, is wound up, makes any compromise, composition or other
|
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arrangement with its creditors generally, or becomes subject to any administration order.
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5.2.
|
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Force Majeure
|
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Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
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|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the
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extent and for as long as such obligation is affected by Force Majeure and the impeded
|
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party shall be entitled to such extension of time as may be reasonably necessary.
|
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Either party shall notify the other party of the existence and date of beginning of an event
|
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|
of Force Majeure that is likely to impede its performance under the Agreement within 5
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Business Days after having obtained knowledge of any such event. Either party shall
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likewise advise the other of the date when such event ended and shall also specify the
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re-determined time by which the performance of its obligations hereunder is to be
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completed.
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Project Proponent and Purchaser shall consult with each other with a view of determining
|
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any further appropriate action if a condition of Force Majeure is to continue after 20
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|
Business Days from the date of giving notice thereof.
|
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|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for
|
|
|
|
any delay in performing hereunder if such delay is caused by Force Majeure; provided,
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
|
Emission Reduction Purchase Agreement
Page 7 of 11
|
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however, that the non-impeded party shall be entitled to terminate such part of the
|
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|
Agreement that remains unfulfilled, if the condition of Force Majeure is to continue after 6
|
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|
months from the date of giving notice thereof.
|
|
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6.
|
|
Change in Circumstances
|
|
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|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions) occurs which substantially affects the
|
|
|
|
Project, the parties to this Agreement shall enter into negotiations with a view to adapt
|
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|
|
the Project and its implementation or any relevant provision of this Agreement, as may
|
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|
|
be necessary or useful. A change in circumstances shall in no event be considered
|
|
|
|
substantially affecting the Project if at least 50% of the Anticipated Emission Reductions
|
|
|
|
can be generated.
|
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|
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|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
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|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
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|
7.
|
|
Conditions Precedent
|
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|
|
This Agreement shall enter into force upon satisfaction of the following conditions
|
|
|
|
precedent:
|
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|
|
1. Conclusion of a binding agreement with the Host Country.
|
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8.
|
|
Miscellaneous
|
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|
8.1.
|
|
Assignment and subcontracting
|
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|
Neither party shall, without the written consent of the other party, assign or transfer the
|
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|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
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|
8.2.
|
|
Confidentiality and Disclosure
|
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|
|
The parties shall treat as confidential all information obtained as a result of entering into
|
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|
|
or performing this Agreement which relates to the provisions of this Agreement, the
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|
negotiations relating to this Agreement and the subject matter of this Agreement.
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No party shall disclose any such confidential information to any third party, except in
|
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|
|
those circumstances where disclosure is required in order to comply with any laws or
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|
regulations, including without limitations the Kyoto Rules.
|
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|
8.3.
|
|
Notices
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
|
Emission Reduction Purchase Agreement
Page 8 of 11
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made in writing (including by facsimile) to the address or facsimile number, from time to
|
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|
time designated by the party to whom the communication is to be made to the other party
|
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|
|
for that purpose. The address and facsimile number so designated are set out in Annex
|
|
|
|
[I]
hereto.
A
|
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|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has
|
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|
|
been sent.
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|
8.4.
|
|
Entire Agreement
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to
|
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|
|
the subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
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|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
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|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein.
|
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|
|
The Annexes and schedules to this Agreement constitute integral parts of this Agreement
|
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|
|
and shall therefore be deemed part of this Agreement.
|
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|
8.5.
|
|
Amendments
|
|
|
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|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
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|
8.6.
|
|
Costs and Expenses
|
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|
|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
|
preparation, execution and carrying into effect of this Agreement.
|
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|
|
8.7.
|
|
Severability
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
|
|
|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
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|
|
8.8.
|
|
Governing law
|
|
|
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|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
|
excluding its rules on conflicts of laws.
|
|
|
|
8.9.
|
|
Jurisdiction
|
|
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|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having jurisdiction
|
|
|
|
in commercial matters for England with regard to all disputes arising out of or in
|
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|
|
connection with this Agreement, its violation, termination or nullity.
|
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|
|
8.10.
|
|
Counterparts
|
|
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|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the English
|
|
|
|
and the Vietnamese version, the English version will prevail.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
Emission Reduction Purchase Agreement
Page 9 of 11
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined
above, this 8
th
day of November 2007, in the presence of:
|
Purchaser:
|
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|
|
DR. TRI VU TRUONG
|
|
|
President-General Director : Dr. Tri Vu Truong
|
|
Project Proponent:
|
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|
|
NGUYEN DUY TAM
|
|
|
General Director: Mr. Nguyen Duy Tam
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
BUI THI LAN HUONG
|
NGO KIM CHI
|
|
MSc. Bui Thi Lan Huong
|
Dr. Ngo Kim Chi
|
|
CERtech Environment inc-Canada
|
Viet nam
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
|
Emission Reduction Purchase Agreement Page 10 of 11
|
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|
|
ANNEX I:
|
|
1. The salient features of Khe Bo hydropower project at Nghe An province, Vietnam
|
|
|
|
No
|
Parameters
|
Symbols
|
Units
|
Value
|
|
1
|
[Chinese translation]
|
F
|
km
2
|
14300
|
|
2
|
[Chinese translation]
|
Xo
|
mm
|
1440
|
|
3
|
[Chinese translation]
|
Q
o
|
m
3
/s
|
254.3
|
|
4
|
[Chinese translation]
|
W
o
|
10
6
m
3
|
8011
|
|
5
|
[Chinese translation]
|
M
o
|
l/s.km
2
|
|
|
6
|
[Chinese translation]
|
MNDBT
|
m
|
65
|
|
7
|
[Chinese translation]
|
MNC
|
m
|
63
|
|
8
|
[Chinese translation]
|
F
|
ha
|
956.8
|
|
9
|
[Chinese translation]
|
Htt
|
m
|
22.5
|
|
10
|
[Chinese translation]
|
Q
TK
|
M3
/s
|
498.4
|
|
11
|
[Chinese translation]
|
Nlm
|
MW
|
100
|
|
12
|
[Chinese translation]
|
Ndb
|
MW
|
26.4
|
|
13
|
[Chinese translation]
|
z
|
|
2
|
|
14
|
[Chinese translation]
|
Eo
|
10
6
kWh
|
442.8
|
|
15
|
[Chinese translation]
|
h
sd
|
h
|
|
|
16
|
[Chinese translation]
|
CERs
|
TCO
2
eq
|
160.000
|
|
17
|
[Chinese translation]
|
|
hô
|
600
|
|
18
|
[Chinese translation]
|
|
|
|
|
19
|
[Chinese translation]
|
|
|
Yes
|
|
20
|
[Chinese translation]
|
|
|
|
|
21
|
[Chinese translation]
|
|
|
[Chinese translation]
|
|
22
|
[Chinese translation]
|
|
|
[Chinese translation]
|
|
23
|
[Chinese translation]
|
|
|
[Chinese translation]
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
Emission Reduction Purchase Agreement
Page 11 of 11
2. Project time schedule:
2007 Finishing the investment formalities, 2008-2009: construction starting.
2010: construction finalizing and operation
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-II:
Emission Reduction Purchase Agreement
Page 1 of 11
Exhibit 10.4
EMISSION REDUCTION PURCHASE AGREEMENT
between
(the "Purchaser")
UNITED BEST TECHNOLOGY LIMITED COMPANY
Address: Sui 1001 – 4 A. Champion Building
287 – 291 Des Voeux Road, Central Hong Kong
Tel : 852 – 2405 6999
Fax: 852 – 2492 3777
Email: trivutruong2004@yahoo.ca
President - General Director: Dr. Truong Tri Vu
and
(the " Khanh Khe Hydro Power-CDM Project Proponent")., henceforth “Vietnam Project Proponent”
Sponsor: HOP XUAN Investment Joint Stock Company, Viet nam
Address: Hamlet5, Zone 2, Vinh Hung Ward, Hoang Mai District, Ha Noi.,
Vietnam Telephone/ Fax: +84 4 643 0116
Director: Mr. Tran Hai Ha
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 2 of 11
|
|
|
|
|
|
Interpretation and Definitions
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
|
|
meaning set forth in the definitions below.
|
|
|
|
Additional
|
means any Certified Emission Reduction (CER) generated by the Project
|
|
Emission
|
that is in excess of [50,000] Certified Emission Reductions (CERs) per
|
|
Reduction:
|
annum.
|
|
|
|
Agreement:
|
means this Emission Reduction Purchase Agreement.
|
|
|
|
Annex B Countries:
|
means the countries listed in Annex B to the Kyoto Protocol having
|
|
|
committed themselves to reduce or limit their GHG emissions.
|
|
|
|
Annex I Countries:
|
means the parties to the UNFCCC listed in Annex I thereto (Annex I
|
|
|
consists of industrial countries and countries in transition).
|
|
|
|
Anticipated
|
means up to [50,000] Certified Emission Reductions (CERs) per annum
|
|
Emission
|
during the Crediting Period, anticipated to be generated by the Project
|
|
Reduction:
|
and calculated in accordance with the Kyoto Rules.
|
|
|
|
Baseline:
|
means the scenario that reasonably represents the anthropogenic
|
|
|
emissions of GHG that would occur in the Host Country in the absence of
|
|
|
the Project, determined in accordance with the Kyoto Rules.
|
|
|
|
Business Day:
|
means a day on which banks are open for general business in Vietnam.
|
|
|
|
Carbon Dioxide
|
means a metric measure used to compare the emissions of various GHG
|
|
Equivalent:
|
based upon their global warming potential.
|
|
|
|
Certification:
|
means the written confirmation by an Operational Entity of an Emission
|
|
|
Reduction resulting from a CDM project and having passed the
|
|
|
Verification procedure according to the Kyoto Rules.
|
|
|
|
Certified Emission
|
means a unit of Emission Reduction issued pursuant to Article 12 of the
|
|
Reduction (CER):
|
Kyoto Protocol and the requirements of the Kyoto Rules (including
|
|
|
Certification), equal to one metric ton of Carbon Dioxide Equivalent
|
|
|
resulting from a CDM project.
|
|
|
|
Clean Development
|
Means the flexible mechanism established by Article 12 of the Kyoto
|
|
Mechanism (CDM) :
|
Protocol providing for Annex I Countries to implement projects that reduce
|
|
|
emissions in non-Annex I Countries in return for CERs and assist the non-
|
|
|
Annex I Countries in achieving sustainable development and contributing
|
|
|
to the ultimate objective of the UNFCCC.
|
|
|
|
Crediting Period:
|
means, until December 31, 2026.
|
|
|
|
Emission
|
means reduction in emission of GHG achieved, calculated in accordance
|
|
Reduction:
|
with the Kyoto Rules.
|
|
|
|
Executive Board:
|
means the international authority elected by the representatives of the
|
|
|
parties to the Kyoto Protocol responsible for monitoring the CDM process.
|
|
|
|
First Commitment
|
means January 1, 2007 until December 31, 2026.
|
|
Period:
|
|
|
|
|
Force Majeure:
|
means any circumstance or condition beyond the control of either party to
|
|
|
this Agreement affecting the performance of its obligations under this
|
|
|
Agreement including in particular wars, insurrection, natural disaster or
|
|
|
equivalent circumstances.
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 3 of 11
|
|
|
|
|
|
Greenhouse Gases
|
means the six gases listed in Annex A to the Kyoto Protocol.
|
|
(GHG):
|
|
|
|
|
Host Country:
|
Vietnam
|
|
|
|
Kyoto Protocol:
|
means the protocol to the UNFCCC adopted at the third conference of the
|
|
|
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
|
|
|
|
Kyoto Rules:
|
means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
|
|
|
Marrakesh Accords, any relevant decisions, guidelines, modalities and
|
|
|
procedures made pursuant to them and/or any succeeding international
|
|
|
agreements as amended and/or supplemented from time to time and
|
|
|
which include those rules specifically required to be met for the issuing
|
|
|
and transfer of CERs.
|
|
|
|
Letter of Approval
|
means a binding approval of the Project by the Host Country together with
|
|
(LOA):
|
an approval of the transfer of CERs.
|
|
|
|
Monitoring Report:
|
means an annual report to be provided by Owner setting out the total
|
|
|
number of Emission Reductions generated by the Project during the
|
|
|
previous year according to the Kyoto Rules, international Monitoring rules
|
|
|
and the PDD.
|
|
|
|
Monitoring:
|
means the collection and record of data allowing the assessment of
|
|
|
reductions in GHG emissions resulting from the Project conducted in
|
|
|
accordance with the Kyoto Rules.
|
|
|
|
Operational Entity:
|
means an independent entity accredited by the Executive Board being the
|
|
|
executive body for CDM and inter alias responsible for determining
|
|
|
whether a project and the resulting Emission Reductions meet the
|
|
|
requirements of Article 12 of the Kyoto Protocol.
|
|
|
|
Project Design
|
means a detailed description of the Project to be submitted for Validation
|
|
Document (PDD):
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive
|
|
|
and attached as Annex III. The Purchaser will be responsible for providing
|
|
|
PDD development for Registration of the Project.
|
|
|
|
Project:
|
means the proposed CDM project described in the PDD and other
|
|
|
documents describing the implementation and economics of the Project
|
|
|
attached in Annex IV.
|
|
|
|
Registration:
|
means the official registration of a CDM project by the Executive Board
|
|
|
according to the Kyoto Rules.
|
|
|
|
UNFCCC:
|
means the United Nations Framework Convention on Climate Change
|
|
|
adopted in New York on May 9, 1992.
|
|
|
|
Unit Price:
|
means the price payable by Purchaser to Project Proponent per Certified
|
|
|
Emission Reduction (CER) which is equal to:
|
|
|
|
|
The United Best Technology Limited Company will purchase certified
|
|
|
CER generated by this project for the year 2007 to 2012 with options of
|
|
|
extension for another 7 years plus 7 years under same terms and
|
|
|
conditions. The Project Proponent will be paid (85)% of net revenue from
|
|
|
sale of certified CER generated as received by Viet nam Project
|
|
|
Proponent from this project after initial one time $(75,000) USD of first
|
|
|
revenue payment to The United Best Technology Limited Company for
|
|
|
the funding the CDM process. The purchase price by The United Best
|
|
|
Technology Limited Company is fixed as (10)$US/CER minus tax and
|
|
|
sale commission.
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 4 of 11
|
|
|
|
|
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
|
|
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
|
|
|
Verification:
|
means the periodic independent review and ex post determination of the
|
|
|
|
|
monitored reductions in GHG emissions that the Project has achieved
|
|
|
|
|
during a specified period of time by an Operational Entity in accordance
|
|
|
|
|
with the Kyoto Rules. The project's owner will be Responsible for
|
|
|
|
|
providing periodical monitoring.
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to
|
|
legal provisions are references to such provisions as in effect from time to time, use of a gender
|
|
includes any gender and use of the plural includes the singular and vice versa where the context
|
|
requires.
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement or taken into consideration in its interpretation.
|
|
|
|
|
|
1.
|
Preamble
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
|
|
|
2.
|
|
Contractual Obligations
|
|
|
|
2.1.
|
|
Anticipated Emission Reductions
|
|
|
|
2.1.1.
|
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
|
accordance with the PDD and other documents describing the implementation and
|
|
|
|
economics of the project attached in Annex IV at its own risk and expense. It is hereby
|
|
|
|
acknowledged and agreed between the parties hereto that Purchaser does not warrant
|
|
|
|
the generation of, and is not obliged to generate, any CERs, whether by the Project or
|
|
|
|
otherwise.
|
|
|
|
|
2.1.2.
|
|
If the Project generates CERs, Project Proponent shall, to the extent it is legally possible
|
|
|
|
and permissible, transfer or cause to be transferred to Purchaser all rights (and, to the
|
|
|
|
extent legally possible and permissible, legal title) which Project Proponent may have in
|
|
|
|
the Anticipated Emission Reductions generated during the Crediting Period to Purchaser.
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are
|
|
|
|
transferred to Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.
|
|
Additional Emission Reductions
|
|
|
|
2.2.1.
|
|
If Additional Emission Reductions are generated by the Project during the Crediting
|
|
|
|
Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
|
|
|
|
subject to the terms and conditions of this Agreement and at a price per Additional
|
|
|
|
Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise the
|
|
|
|
purchase option then Project Proponent may deal with the Additional Emission
|
|
|
|
Reductions as it wishes.
|
|
|
|
2.2.2.
|
|
Additional Emission Reductions offer by the Purchaser shall be made as soon as possible
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 5 of 11
|
|
|
|
|
|
|
|
after such Additional Emission Reductions have been generated, but no later than
|
|
|
|
December 31 of the year subsequent to the calendar year in which such Additional
|
|
|
|
Emission Reductions have been generated.
|
|
|
|
2.2.3.
|
|
Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
|
|
|
|
Project Proponent within one month after receipt of such offer, whether and to what
|
|
|
|
extent it accepts the offer. If Purchaser does not respond within this deadline the offer
|
|
|
|
shall be deemed to be rejected by Purchaser.
|
|
|
|
2.2.4.
|
|
To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
|
|
|
|
legally possible and permissible, transfer or cause to be transferred to Purchaser all
|
|
|
|
rights (and, to the extent legally possible and permissible, legal title) which Project
|
|
|
|
Proponent may have in those Additional Emission Reductions in respect of which
|
|
|
|
Purchaser has accepted such offer, within two months after acceptance of such offer by
|
|
|
|
Purchaser.
|
|
|
|
2.2.5.
|
|
To the extent Purchaser rejects such offer of Additional Emission Reductions or such offer
|
|
|
|
is deemed rejected by Purchaser, Project Proponent shall be free to enter into contracts
|
|
|
|
with other parties for the sale of such Additional Emission Reductions or to otherwise
|
|
|
|
deal with such Additional Emission Reductions as Project Proponent wishes.
|
|
|
|
2.2.6.
|
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
|
|
|
|
Additional Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.3.
|
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding
|
|
|
|
an agreement on the purchase of such Certified Emission Reductions based on the
|
|
|
|
principles of this Agreement but amended in order to reflect the international and/or
|
|
|
|
national rules then applicable.
|
|
|
|
|
|
|
|
3.
|
|
Transfer
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible,
|
|
|
|
legal title) which Project Proponent may have in a Certified Emission Reduction shall
|
|
|
|
have occurred upon the transfer of a CER from the register of the Executive Board to a
|
|
|
|
register in favor of Purchaser or such other account or register Purchaser has notified to
|
|
|
|
Project Proponent in writing.
|
|
|
|
|
|
|
|
4.
|
|
Payment
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
|
|
|
|
rights in which are transferred pursuant to clause 3) shall be made on the last Business
|
|
|
|
Day of the month in which a 40 Business Day period, starting at the day on which
|
|
|
|
Purchaser has received satisfactory evidence of the transfer as provided for in Clause 3,
|
|
|
|
has elapsed.
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified in Annex [I] hereto or such other
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 6 of 11
|
|
|
|
|
|
|
|
account as may from time to time be notified to the other party in writing.
|
|
|
|
4.1.3.
|
|
All payments shall be made in US Dollars.
|
|
|
|
4.1.4.
|
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection with
|
|
|
|
the generation of CERs by the Project and their Registration and transfer (including VAT
|
|
|
|
in any jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in
|
|
|
|
Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
4.1.5.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses according to the Kyoto Rules shall be borne by Project
|
|
|
|
Proponent and Purchaser in equal shares.
|
|
|
|
|
|
The share of the proceeds from CERs generated by the Project to be used to assist
|
|
|
|
developing countries that are particularly vulnerable to the adverse effects of climate
|
|
|
|
change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
|
|
|
|
Project Proponent and Purchaser in equal shares.
|
|
|
|
|
|
5.
|
|
Termination and Remedies
|
|
|
|
5.1.
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events
|
|
|
|
occurs:
|
|
|
|
5.1.1.
|
|
the other party commits a breach of any of its obligations under this Agreement and, in
|
|
|
|
the case of a breach capable of being remedied, such breach remains unremedied for
|
|
|
|
more than 30 Business Days after it has been requested in writing by the Non-defaulting
|
|
|
|
Party to remedy the breach; or
|
|
|
|
5.1.2.
|
|
the other party goes into liquidation (whether voluntary or otherwise), is unable to pay its
|
|
|
|
debts as they fall due, is wound up, makes any compromise, composition or other
|
|
|
|
arrangement with its creditors generally, or becomes subject to any administration order.
|
|
|
|
5.2.
|
|
Force Majeure
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the
|
|
|
|
extent and for as long as such obligation is affected by Force Majeure and the impeded
|
|
|
|
party shall be entitled to such extension of time as may be reasonably necessary.
|
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event
|
|
|
|
of Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall
|
|
|
|
likewise advise the other of the date when such event ended and shall also specify the
|
|
|
|
re-determined time by which the performance of its obligations hereunder is to be
|
|
|
|
completed.
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining
|
|
|
|
any further appropriate action if a condition of Force Majeure is to continue after 20
|
|
|
|
Business Days from the date of giving notice thereof.
|
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for
|
|
|
|
any delay in performing hereunder if such delay is caused by Force Majeure; provided,
|
|
|
|
however, that the non-impeded party shall be entitled to terminate such part of the
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 7 of 11
|
|
|
|
|
|
|
|
Agreement that remains unfulfilled, if the condition of Force Majeure is to continue after 6
|
|
|
|
months from the date of giving notice thereof.
|
|
|
|
|
|
6.
|
|
Change in Circumstances
|
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions) occurs which substantially affects the
|
|
|
|
Project, the parties to this Agreement shall enter into negotiations with a view to adapt
|
|
|
|
the Project and its implementation or any relevant provision of this Agreement, as may
|
|
|
|
be necessary or useful. A change in circumstances shall in no event be considered
|
|
|
|
substantially affecting the Project if at least 50% of the Anticipated Emission Reductions
|
|
|
|
can be generated.
|
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
|
|
|
7.
|
|
Conditions Precedent
|
|
|
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
|
|
|
|
|
|
|
|
1. Conclusion of a binding agreement with the Host Country.
|
|
|
|
8.
|
|
Miscellaneous
|
|
|
|
8.1.
|
|
Assignment and subcontracting
|
|
|
|
Neither party shall, without the written consent of the other party, assign or transfer the
|
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
|
|
|
8.2.
|
|
Confidentiality and Disclosure
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into
|
|
|
|
or performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in
|
|
|
|
those circumstances where disclosure is required in order to comply with any laws or
|
|
|
|
regulations, including without limitations the Kyoto Rules.
|
|
|
|
8.3.
|
|
Notices
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be
|
|
|
|
made in writing (including by facsimile) to the address or facsimile number, from time to
|
|
|
|
time designated by the party to whom the communication is to be made to the other party
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 8 of 11
|
|
|
|
|
|
|
|
for that purpose. The address and facsimile number so designated are set out in Annex
|
|
|
|
[I]
hereto.
A
|
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has
|
|
|
|
been sent.
|
|
|
|
8.4.
|
|
Entire Agreement
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to
|
|
|
|
the subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein.
|
|
|
|
The Annexes and schedules to this Agreement constitute integral parts of this Agreement
|
|
|
|
and shall therefore be deemed part of this Agreement.
|
|
|
|
8.5.
|
|
Amendments
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
8.6.
|
|
Costs and Expenses
|
|
|
|
|
|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
|
preparation, execution and carrying into effect of this Agreement.
|
|
|
|
8.7.
|
|
Severability
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
|
|
|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
|
|
|
8.8.
|
|
Governing law
|
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
|
excluding its rules on conflicts of laws.
|
|
|
|
8.9.
|
|
Jurisdiction
|
|
|
|
|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having jurisdiction
|
|
|
|
in commercial matters for England with regard to all disputes arising out of or in
|
|
|
|
connection with this Agreement, its violation, termination or nullity.
|
|
|
|
8.10.
|
|
Counterparts
|
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
|
Proponent and one for Purchaser. If there are any dicrepencies between the English anh
|
|
|
|
the Vietnamese version, the Vietnamese version will prevail .
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 9 of 11
|
PARTIES TO THE AGREEMENT
|
|
|
|
|
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined
|
|
above, this 18 day of 12, 2007, in the presence of:
|
|
|
|
|
|
Purchaser:
|
|
|
|
|
|
|
|
|
DR. TRUONG TRI VU
|
|
|
President-General Director: Dr. Truong Tri Vu
|
|
|
|
Project Proponent:
|
|
|
|
|
|
|
TRAN HAI HA
|
|
|
Director: Mr. Tran Hai Ha
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
BUI THI LAN HUONG
|
LE QUOC HUNG
|
|
Ms. Bui Thi Lan Huong
|
Le Quoc Hung, ME
|
|
CERtech Inc Canada
|
Viet nam
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 10 of 11
ANNEX I:
1. The salient features of Khanh Khe Hydro Power Project at Khanh Khe District in Lang Son Province, Vietnam
|
No
|
Parameters
|
Symbols
|
Units
|
Value
|
|
1
|
Catchment area
|
F
|
km
2
|
1,708
|
|
2
|
Long-term average annual rainfall
|
Xo
|
mm
|
1313.8
|
|
3
|
Average flow
|
Q
o
|
m
3
/s
|
33.22
|
|
4
|
Total amount of average annual flow
|
W
0
|
10
6
m
3
|
|
|
5
|
Specific runoff
|
M
|
l/s.km
2
|
|
|
6
|
Normal water level
|
MNDBT
|
m
|
246.00
|
|
7
|
Dead water level
|
MNC
|
m
|
245.80
|
|
8
|
Surface area with normal water level
|
F
|
Km
2
|
2.9
|
|
9
|
Designed head
|
Htt
|
m
|
32.75
|
|
10
|
Designed discharge
|
Q
TK
|
m3
|
45
|
|
11
|
Installation capacity
|
Nlm
|
MW
|
12
|
|
12
|
Firm capacity P=85%
|
Ndb
|
MW
|
1.06
|
|
13
|
Number of unit
|
z
|
|
03
|
|
14
|
Estimated Annual Electricity Generation
|
Eo
|
10
6
kWh
|
37.94
|
|
15
|
Estimated Annual Operation Hours
|
h
sd
|
h
|
3.162
|
|
16
|
Annual estimation of the emission
reduction, tCO
2
eq
|
CERs
|
tCO
2
eq
|
22.000
|
|
17
|
Resettlement
|
|
person
|
140
|
|
18
|
Compensation (land, tree, farm, property,
etc...)
|
|
10 USD
|
4.2
3
|
|
19
|
It is run off river hydropower plant
|
|
|
No
|
|
20
|
New hydropower project with reservoirs
having power densities (installed capacity
devided by the surface area at full reservoir
level) greater than 4 W/m
2
.
|
|
|
4.14
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 11 of 11
2. Project time schedule.
- Year of 2007: FS and technical design is planned to be completed by the 4
th
quarter of 2007. -
-Preparing work and opening ceremony of project is planned by the 1
st
quarter of 2008
-
Year of 2008 - 2009: Buying the equipments and construct some main items.
-
Year of 2010: Operation of unit 1 by the 1
st
quarter of 2010, completing of project by the 3
rd
quarter of 2010.
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 1 of 11
Exhibit 10.5
EMISSION REDUCTION PURCHASE AGREEMENT
between
(the "Purchaser")
UNITED BEST TECHNOLOGY LIMITED COMPANY
Address: Sui 1001 – 4 A, Champion building
287 – 291 Des Voeux Road, Central Hong Kong
Telephone: 852 – 2405 6999
Fax: 852 – 2492 3777
Email: trivutruong2004@yahoo.ca
President – General Director : Dr. Truong Tri Vu
and
(the " Tram Tau Hydro Power-CDM Project Proponent")., henceforth “Vietnam Project Proponent”
Sponsor: ThangLong Education Development and Construction Import Export
Investment Joint Stock Company.
Address: No. 116, Hoang Quoc Viet Street, Cau Giay District, Ha Noi, Vietnam.
Telephone: +84 4 7 544 341
Fax: +84 4 7 544 304
Chairman of the Board: Mr. Vu Nguyen Sang
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 2 of 11
|
Interpretation and Definitions
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
|
|
meaning set forth in the definitions below.
|
|
|
|
Additional
|
means any Certified Emission Reduction (CER) generated by the Project
|
|
Emission
|
that is in excess of [50,000] Certified Emission Reductions (CERs) per
|
|
Reduction:
|
annum.
|
|
|
|
Agreement:
|
means this Emission Reduction Purchase Agreement.
|
|
|
|
Annex B Countries:
|
means the countries listed in Annex B to the Kyoto Protocol having
|
|
|
committed themselves to reduce or limit their GHG emissions.
|
|
|
|
Annex I Countries:
|
means the parties to the UNFCCC listed in Annex I thereto (Annex I
|
|
|
consists of industrial countries and countries in transition).
|
|
|
|
Anticipated
|
means up to [50,000] Certified Emission Reductions (CERs) per annum
|
|
Emission
|
during the Crediting Period, anticipated to be generated by the Project
|
|
Reduction:
|
and calculated in accordance with the Kyoto Rules.
|
|
|
|
Baseline:
|
means the scenario that reasonably represents the anthropogenic
|
|
|
emissions of GHG that would occur in the Host Country in the absence of
|
|
|
the Project, determined in accordance with the Kyoto Rules.
|
|
|
|
Business Day:
|
means a day on which banks are open for general business in Vietnam.
|
|
|
|
Carbon Dioxide
|
means a metric measure used to compare the emissions of various GHG
|
|
Equivalent:
|
based upon their global warming potential.
|
|
|
|
Certification:
|
means the written confirmation by an Operational Entity of an Emission
|
|
|
Reduction resulting from a CDM project and having passed the
|
|
|
Verification procedure according to the Kyoto Rules.
|
|
|
|
Certified Emission
|
means a unit of Emission Reduction issued pursuant to Article 12 of the
|
|
Reduction (CER):
|
Kyoto Protocol and the requirements of the Kyoto Rules (including
|
|
|
Certification), equal to one metric ton of Carbon Dioxide Equivalent
|
|
|
resulting from a CDM project.
|
|
|
|
Clean Development
|
Means the flexible mechanism established by Article 12 of the Kyoto
|
|
Mechanism (CDM) :
|
Protocol providing for Annex I Countries to implement projects that reduce
|
|
|
emissions in non-Annex I Countries in return for CERs and assist the non-
|
|
|
Annex I Countries in achieving sustainable development and contributing
|
|
|
to the ultimate objective of the UNFCCC.
|
|
|
|
Crediting Period:
|
means, until December 31, 2026.
|
|
|
|
Emission
|
means reduction in emission of GHG achieved, calculated in accordance
|
|
Reduction:
|
with the Kyoto Rules.
|
|
|
|
Executive Board:
|
means the international authority elected by the representatives of the
|
|
|
parties to the Kyoto Protocol responsible for monitoring the CDM process.
|
|
|
|
First Commitment
|
means January 1, 2007 until December 31, 2026.
|
|
Period:
|
|
|
|
|
Force Majeure:
|
means any circumstance or condition beyond the control of either party to
|
|
|
this Agreement affecting the performance of its obligations under this
|
|
|
Agreement including in particular wars, insurrection, natural disaster or
|
|
|
equivalent circumstances.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 3 of 11
|
|
|
|
|
|
Greenhouse Gases
|
means the six gases listed in Annex A to the Kyoto Protocol.
|
|
(GHG):
|
|
|
|
|
Host Country:
|
Vietnam
|
|
|
|
Kyoto Protocol:
|
means the protocol to the UNFCCC adopted at the third conference of the
|
|
|
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
|
|
|
|
Kyoto Rules:
|
means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
|
|
|
Marrakesh Accords, any relevant decisions, guidelines, modalities and
|
|
|
procedures made pursuant to them and/or any succeeding international
|
|
|
agreements as amended and/or supplemented from time to time and
|
|
|
which include those rules specifically required to be met for the issuing
|
|
|
and transfer of CERs.
|
|
|
|
Letter of Approval
|
means a binding approval of the Project by the Host Country together with
|
|
(LOA):
|
an approval of the transfer of CERs.
|
|
|
|
Monitoring Report:
|
means an annual report to be provided by Owner setting out the total
|
|
|
number of Emission Reductions generated by the Project during the
|
|
|
previous year according to the Kyoto Rules, international Monitoring rules
|
|
|
and the PDD.
|
|
|
|
Monitoring:
|
means the collection and record of data allowing the assessment of
|
|
|
reductions in GHG emissions resulting from the Project conducted in
|
|
|
accordance with the Kyoto Rules.
|
|
|
|
Operational Entity:
|
means an independent entity accredited by the Executive Board being the
|
|
|
executive body for CDM and inter alias responsible for determining
|
|
|
whether a project and the resulting Emission Reductions meet the
|
|
|
requirements of Article 12 of the Kyoto Protocol.
|
|
|
|
Project Design
|
means a detailed description of the Project to be submitted for Validation
|
|
Document (PDD):
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive
|
|
|
and attached as Annex III. The Purchaser will be responsible for providing
|
|
|
PDD development for Registration of the Project.
|
|
|
|
Project:
|
means the proposed CDM project described in the PDD and other
|
|
|
documents describing the implementation and economics of the Project
|
|
|
attached in Annex IV.
|
|
|
|
Registration:
|
means the official registration of a CDM project by the Executive Board
|
|
|
according to the Kyoto Rules.
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|
|
UNFCCC:
|
means the United Nations Framework Convention on Climate Change
|
|
|
adopted in New York on May 9, 1992.
|
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|
|
Unit Price:
|
means the price payable by Purchaser to Project Proponent per Certified
|
|
|
Emission Reduction (CER) which is equal to:
|
|
|
|
|
The United Best Technology Limited Company will purchase certified
|
|
|
CER generated by this project for the year 2007 to 2012 with options of
|
|
|
extension for another 7 years plus 7 years under same terms and
|
|
|
conditions. The Project Proponent will be paid (85)% of net revenue from
|
|
|
sale of certified CER generated as received by Viet nam Project
|
|
|
Proponent from this project after initial one time $(75,000)USD of first
|
|
|
revenue payment to The United Best Technology Limited Company for
|
|
|
the funding the CDM process. The purchase price by The United Best
|
|
|
Technology Limited Company is fixed as (10)$US/CER minus tax and
|
|
|
sale commission.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 4 of 11
|
|
|
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|
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
|
|
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
|
|
|
Verification:
|
means the periodic independent review and ex post determination of the
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|
|
|
monitored reductions in GHG emissions that the Project has achieved
|
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|
|
during a specified period of time by an Operational Entity in accordance
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|
|
with the Kyoto Rules. The project's owner will be Responsible for
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|
providing periodical monitoring.
|
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|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to
|
|
legal provisions are references to such provisions as in effect from time to time, use of a gender
|
|
includes any gender and use of the plural includes the singular and vice versa where the context
|
|
requires.
|
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|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement or taken into consideration in its interpretation.
|
|
|
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|
|
1.
|
Preamble
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
|
|
|
2.
|
|
Contractual Obligations
|
|
|
|
2.1.
|
|
Anticipated Emission Reductions
|
|
|
|
2.1.1.
|
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
|
accordance with the PDD and other documents describing the implementation and
|
|
|
|
economics of the project attached in Annex IV at its own risk and expense. It is hereby
|
|
|
|
acknowledged and agreed between the parties hereto that Purchaser does not warrant
|
|
|
|
the generation of, and is not obliged to generate, any CERs, whether by the Project or
|
|
|
|
otherwise.
|
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|
|
|
2.1.2.
|
|
If the Project generates CERs, Project Proponent shall, to the extent it is legally possible
|
|
|
|
and permissible, transfer or cause to be transferred to Purchaser all rights (and, to the
|
|
|
|
extent legally possible and permissible, legal title) which Project Proponent may have in
|
|
|
|
the Anticipated Emission Reductions generated during the Crediting Period to Purchaser.
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are
|
|
|
|
transferred to Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.
|
|
Additional Emission Reductions
|
|
|
|
2.2.1.
|
|
If Additional Emission Reductions are generated by the Project during the Crediting
|
|
|
|
Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
|
|
|
|
subject to the terms and conditions of this Agreement and at a price per Additional
|
|
|
|
Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise the
|
|
|
|
purchase option then Project Proponent may deal with the Additional Emission
|
|
|
|
Reductions as it wishes.
|
|
|
|
2.2.2.
|
|
Additional Emission Reductions offer by the Purchaser shall be made as soon as possible
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 5 of 11
|
|
|
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|
|
|
after such Additional Emission Reductions have been generated, but no later than
|
|
|
|
December 31 of the year subsequent to the calendar year in which such Additional
|
|
|
|
Emission Reductions have been generated.
|
|
|
|
2.2.3.
|
|
Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
|
|
|
|
Project Proponent within one month after receipt of such offer, whether and to what
|
|
|
|
extent it accepts the offer. If Purchaser does not respond within this deadline the offer
|
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|
|
shall be deemed to be rejected by Purchaser.
|
|
|
|
2.2.4.
|
|
To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
|
|
|
|
legally possible and permissible, transfer or cause to be transferred to Purchaser all
|
|
|
|
rights (and, to the extent legally possible and permissible, legal title) which Project
|
|
|
|
Proponent may have in those Additional Emission Reductions in respect of which
|
|
|
|
Purchaser has accepted such offer, within two months after acceptance of such offer by
|
|
|
|
Purchaser.
|
|
|
|
2.2.5.
|
|
To the extent Purchaser rejects such offer of Additional Emission Reductions or such offer
|
|
|
|
is deemed rejected by Purchaser, Project Proponent shall be free to enter into contracts
|
|
|
|
with other parties for the sale of such Additional Emission Reductions or to otherwise
|
|
|
|
deal with such Additional Emission Reductions as Project Proponent wishes.
|
|
|
|
2.2.6.
|
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
|
|
|
|
Additional Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.3.
|
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding
|
|
|
|
an agreement on the purchase of such Certified Emission Reductions based on the
|
|
|
|
principles of this Agreement but amended in order to reflect the international and/or
|
|
|
|
national rules then applicable.
|
|
|
|
|
|
|
|
3.
|
|
Transfer
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible,
|
|
|
|
legal title) which Project Proponent may have in a Certified Emission Reduction shall
|
|
|
|
have occurred upon the transfer of a CER from the register of the Executive Board to a
|
|
|
|
register in favor of Purchaser or such other account or register Purchaser has notified to
|
|
|
|
Project Proponent in writing.
|
|
|
|
|
|
|
|
4.
|
|
Payment
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
|
|
|
|
rights in which are transferred pursuant to clause 3) shall be made on the last Business
|
|
|
|
Day of the month in which a 40 Business Day period, starting at the day on which
|
|
|
|
Purchaser has received satisfactory evidence of the transfer as provided for in Clause 3,
|
|
|
|
has elapsed.
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified in Annex [I] hereto or such other
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 6 of 11
|
|
|
|
|
|
|
|
account as may from time to time be notified to the other party in writing.
|
|
|
|
4.1.3.
|
|
All payments shall be made in US Dollars.
|
|
|
|
4.1.4.
|
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection with
|
|
|
|
the generation of CERs by the Project and their Registration and transfer (including VAT
|
|
|
|
in any jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in
|
|
|
|
Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
4.1.5.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses according to the Kyoto Rules shall be borne by Project
|
|
|
|
Proponent and Purchaser in equal shares .
|
|
|
|
|
|
The share of the proceeds from CERs generated by the Project to be used to assist
|
|
|
|
developing countries that are particularly vulnerable to the adverse effects of climate
|
|
|
|
change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
|
|
|
|
Project Proponent and Purchaser in equal shares.
|
|
|
|
|
|
5.
|
|
Termination and Remedies
|
|
|
|
5.1.
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events
|
|
|
|
occurs:
|
|
|
|
5.1.1.
|
|
the other party commits a breach of any of its obligations under this Agreement and, in
|
|
|
|
the case of a breach capable of being remedied, such breach remains unremedied for
|
|
|
|
more than 30 Business Days after it has been requested in writing by the Non-defaulting
|
|
|
|
Party to remedy the breach; or
|
|
|
|
5.1.2.
|
|
the other party goes into liquidation (whether voluntary or otherwise), is unable to pay its
|
|
|
|
debts as they fall due, is wound up, makes any compromise, composition or other
|
|
|
|
arrangement with its creditors generally, or becomes subject to any administration order.
|
|
|
|
5.2.
|
|
Force Majeure
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the
|
|
|
|
extent and for as long as such obligation is affected by Force Majeure and the impeded
|
|
|
|
party shall be entitled to such extension of time as may be reasonably necessary.
|
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event
|
|
|
|
of Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall
|
|
|
|
likewise advise the other of the date when such event ended and shall also specify the
|
|
|
|
re-determined time by which the performance of its obligations hereunder is to be
|
|
|
|
completed.
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining
|
|
|
|
any further appropriate action if a condition of Force Majeure is to continue after 20
|
|
|
|
Business Days from the date of giving notice thereof.
|
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for
|
|
|
|
any delay in performing hereunder if such delay is caused by Force Majeure; provided,
|
|
|
|
however, that the non-impeded party shall be entitled to terminate such part of the
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 7 of 11
|
|
|
|
|
|
|
|
Agreement that remains unfulfilled, if the condition of Force Majeure is to continue after 6
|
|
|
|
months from the date of giving notice thereof.
|
|
|
|
|
|
6.
|
|
Change in Circumstances
|
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions) occurs which substantially affects the
|
|
|
|
Project, the parties to this Agreement shall enter into negotiations with a view to adapt
|
|
|
|
the Project and its implementation or any relevant provision of this Agreement, as may
|
|
|
|
be necessary or useful. A change in circumstances shall in no event be considered
|
|
|
|
substantially affecting the Project if at least 50% of the Anticipated Emission Reductions
|
|
|
|
can be generated.
|
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
|
|
|
|
|
7.
|
|
Conditions Precedent
|
|
|
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
|
|
|
|
1. Conclusion of a binding agreement with the Host Country.
|
|
|
|
8.
|
|
Miscellaneous
|
|
|
|
8.1.
|
|
Assignment and subcontracting
|
|
|
|
Neither party shall, without the written consent of the other party, assign or transfer the
|
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
|
|
|
8.2.
|
|
Confidentiality and Disclosure
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into
|
|
|
|
or performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in
|
|
|
|
those circumstances where disclosure is required in order to comply with any laws or
|
|
|
|
regulations, including without limitations the Kyoto Rules.
|
|
|
|
8.3.
|
|
Notices
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be
|
|
|
|
made in writing (including by facsimile) to the address or facsimile number, from time to
|
|
|
|
time designated by the party to whom the communication is to be made to the other party
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
|
Emission Reduction Purchase Agreement
Page 8 of 11
|
|
|
|
|
|
|
|
for that purpose. The address and facsimile number so designated are set out in Annex
|
|
|
|
[I]
hereto.
A
|
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has
|
|
|
|
been sent.
|
|
|
|
8.4.
|
|
Entire Agreement
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to
|
|
|
|
the subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein.
|
|
|
|
The Annexes and schedules to this Agreement constitute integral parts of this Agreement
|
|
|
|
and shall therefore be deemed part of this Agreement.
|
|
|
|
8.5.
|
|
Amendments
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
8.6.
|
|
Costs and Expenses
|
|
|
|
|
|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
|
preparation, execution and carrying into effect of this Agreement.
|
|
|
|
8.7.
|
|
Severability
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
|
|
|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
|
|
|
8.8.
|
|
Governing law
|
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
|
excluding its rules on conflicts of laws.
|
|
|
|
8.9.
|
|
Jurisdiction
|
|
|
|
|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having jurisdiction
|
|
|
|
in commercial matters for England with regard to all disputes arising out of or in
|
|
|
|
connection with this Agreement, its violation, termination or nullity.
|
|
|
|
8.10.
|
|
Counterparts
|
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the English
|
|
|
|
and the Vietnamese version, the Vietnamese version will prevail.
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 9 of 11
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above, this 18 day of 01, 2008, in the presence of:
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
DR. TRUONG TRI VU
|
|
|
President-General Director : Dr. Truong Tri Vu
|
|
|
|
Project Proponent:
|
|
|
|
|
|
|
|
|
|
VU NGUYEN SANG
|
|
|
Chairman of
the Board: Mr. Vu Nguyen Sang
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
BUI THI LAN HUONG
|
LE QUOC HUNG
|
|
Ms. Bui Thi Lan Huong
|
Le Quoc Hung, ME
|
|
CERtech Inc Canada
|
Viet nam
|
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 10 of 11
|
ANNEX I:
|
|
|
|
1. The salient features of Tram Tau Hydro Power Project at Tram Tau district in Lang Son
|
|
Province, Vietnam.
|
|
|
|
|
|
|
No
|
Parameters
|
Symbols
|
Units
|
Value
|
|
1
|
Catchment area
|
F
|
km
2
|
198
|
|
2
|
Long-term average annual rainfall
|
Xo
|
mm
|
2436
|
|
3
|
Average flow
|
Q
0
|
m
3
/s
|
10.39
|
|
4
|
Total amount of average annual flow
|
W
0
|
10
6
m
3
|
327.7
|
|
5
|
Specific runoff
|
M
0
|
l/s.km
2
|
|
|
6
|
Normal water level
|
MNDBT
|
m
|
626
|
|
7
|
Dead water level
|
MNC
|
m
|
620
|
|
8
|
Surface area with normal water level
|
F
|
Km
2
|
5
|
|
9
|
Designed head
|
Htt
|
m
|
167.40
|
|
10
|
Designed discharge
|
Q
TK
|
m3
|
16.87
|
|
11
|
Installation capacity
|
Nlm
|
MW
|
24
|
|
12
|
Firm capacity P=85%
|
Ndb
|
MW
|
3.74
|
|
13
|
Number of unit
|
z
|
|
04
|
|
14
|
Estimated Annual Electricity Generation
|
Eo
|
10
6
|
95.45
|
|
15
|
Estimated Annual Operation Hours
|
h
sd
|
h
|
3977
|
|
16
|
Annual estimation of the emission
reduction, tCO
2
eq
|
CERs
|
tCO
2
eq
|
55,360
|
|
17
|
Resettlement
|
|
person
|
50
|
|
18
|
Compensation (land, tree, farm, property, etc...)
|
|
10
6
USD
|
5
|
|
19
|
It is run off river hydropower plant
|
|
|
yes
|
|
20
|
New hydropower project with reservoirs
having power densities (installed capacity
devided by the surface area at full reservoir
level) greater than 4 W/m
2
.
|
|
|
4.8
|
2. Project time schedule.
-
Year of 2008: the feasibility study stage is planned to be completed by the 2
nd
quarter of 2008.
-
Year of 2008: the technical design stage is planned to be completed by the 4
th
quarter of 2008.
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
Emission Reduction Purchase Agreement
Page 11 of 11
- Year of 2009: Preparing work and opening ceremony of project is planned by the 1
st
quarter of 2009.
- Year of 2009 – 2010: Buying the equipments and construct some main items.
- Year of 2010: Operation of unit 1 by the 2
nd
quarter of 2010, completing of project by the 4
th
quarter of 2010.
- Preparing work and opening ceremony of project is planned by the 4
th
quarter of 2008.
- Year of 2009 – 2010: Buying the equipments and construct some main items.
- Year of 2011: Operation of unit 1 by the 1
st
quarter of 2011, completing of project by the 3
rd
quarter of 2011.
Initial
VN Hydro Power CDM Project
Proponent:______Initial United Best Technology Limited-1:
Exhibit 10.6
REVISED CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of February 12, 2008 (the “Agreement”) and effective as of February 1, 2008, by and among Ecolocap Solutions Inc., a Nevada corporation, having its principal business place at 353, St-Nicholas Street, Montreal, Quebec H2Y 2P1 (the “Company”), and Sodexen Inc. a Quebec corporation , having its principal business place at 5472, Royalmount street, Montreal, Quebec, H4B 1H7 (the “Executive Consultant”).
WHEREAS, the Company desires to engage Executive Consultant as a consultant to assist the Company with the development of its business;
WHEREAS, Executive Consultant desires to commence service as consultant to
the Company,
NOW THEREFORE, in consideration of the premises and the mutual agreements made herein, the Company and Sodexen Inc. agree as follows:
1.
Duties
. The Executive Consultant shall provide the services of its representative, Dr. Tri Vu Truong (the “Representative”), who will serve the Company for the “Engagement Period” as defined in Section 2, in its capacity of President and Chief Executive officer (“CEO”). The Executive Consultant agrees that during the term of his engagement hereunder, its Representative shall devote at least 90 % of his professional working time, attention, knowledge and experience and give his best effort, skill and abilities to promote the business and interests of the Company. The precise duties, responsibilities and authority of the Representative will be to act as President and CEO of the Company, but may be expanded, limited or modified, from time to time, at the discretion of the Board of Directors of the Company or a committee of the Board to which the Board has delegated such authority (collectively, the “Board”). In connection with this responsibility, the Representative will submit written progress reports to the Board as requested. The Representative agrees to faithfully and diligently perform such duties as may from time to time be assigned to the Representative by the Board.
2.
Term
. This Agreement shall have an initial term of One (1) year
commencing on February 1
st
2008 and ending on January 31
st
2008 (the "Initial Period"), unless sooner terminated in accordance with the provisions of Section 7 or Section 8. On the expiration of such Initial Period, this Agreement shall automatically renew and continue to remain in effect for successive one year periods, until terminated in accordance with the provisions of Section 7 or Section 8, unless either party provides the other party a 30 days notice of non-renewal. Each effective period of this Agreement is referred to herein as the “Consulting Period.”
3.
Compensation and Benefits
.
(a)
Base Compensation
. The Executive Consultant shall be paid a monthly base fee at the rate of $16,666.67 per month, paid bi-weekly installments, or $ 200,000.00 CAD per year, indexed on the base consumer price index. Any statutory deductions being the sole
responsibility of the Executive Consultant. The Base Compensation shall be payable each month in accordance with the Company’s regular practices, as the same may be modified from time to time.
(b)
Expense Reimbursement
. The Representative shall be entitled to reimbursement of reasonable out-of-pocket expenses incurred in connection with travel and entertainment related to the Company's business and affairs upon receipt of itemized vouchers approved in accordance with Company policy as in effect from time to time.
(c)
Benefits
. The Executive Consultant shall be eligible for participation in Company benefits that may be available to employees, officers, directors and consultants.
(d)
Bonus
. The Executive Consultant shall be eligible to receive an annual bonus which shall be determined at the sole discretion of the Board and paid in accordance with performance milestones as determined by the Board.
(e)
Equity Compensation
. The Executive Consultant shall be eligible to be awarded stock options for the purchase of shares of Company common stock as determined at the sole discretion of the Board, vesting in accordance with performance milestones to be determined by the Board. The Company intended to qualify a new Incentive Stock Plan and has a Non-Qualify Incentive Plan in place since 2006. The shares of Common Stock underlying the said plans are unregistered, until the Company file a prospectus or have them registered under a S-8 with the Stock Exchange Commission.
4.
Trade Secrets
. The Executive Consultant recognizes that it is in the Company's legitimate business interest to restrict his disclosure or use of trade secrets and confidential information relating to the Company or its affiliates for any purpose other than in connection with his performance of his duties to the Company.
5.
Return of Documents and Property
. Upon the expiration or termination of the Executive Consultant's engagement with the Company, or at any time upon the request of the Company, the Executive Consultant (or his heirs or personal representatives) shall deliver to the Company (a) all documents and materials (including, without limitation, computer files) containing Trade Secrets and Confidential Information relating to the Company's business and affairs, and (b) all documents, materials, equipment and other property (including, without limitation, computer files, computer programs, computer operating systems, computers, printers, scanners, pagers, telephones, credit cards and ID cards) belonging to the Company, which in either case are in the possession or under the control of the Executive Consultant (or his heirs or personal representatives).
6.
Discoveries and Works
. All Discoveries and Works made or conceived by the Representative or the Executive Consultant during his engagement by the Company, solely, jointly or with others, that relate to the Company's present or anticipated activities, or are used or useable by the Company shall be owned by the Company. The term “Discoveries and Works” includes, by way of example but without limitation, Contracts, Projects, Trade Secrets and other Confidential Information, patents and patent applications, service marks, and service mark
2
registrations and applications, trade names, copyrights and copyright registrations and applications. The Executive Consultant shall (a) promptly notify, make full disclosure to, and execute and deliver any documents requested by the Company, as the case may be, to evidence or better assure title to Discoveries and Works in the Company, as so requested, (b) renounce any and all claims, including but not limited to claims of ownership and royalty, with respect to all Discoveries and Works and all other property owned or licensed by the Company. Any Discoveries and Works which, within one year after the expiration or termination of the Executive Consultant's engagement with the Company, are made, disclosed, reduced to tangible or written form or description, or are reduced to practice by the Executive Consultant and which pertain to the business carried on or products or services being sold or delivered by the Company at the time of such termination shall, as between the Executive Consultant and, the Company, be presumed to have been made during the Executive Consultant's engagement by the Company.
7.
Termination
.
(a)
Manner of Termination
. The Company and the Executive Consultant may terminate this Agreement at any time with or without cause.
(b)
Effect of Termination
. The Executive Consultant's rights and the Company's obligations hereunder shall cease as of the effective date of the termination, including, without limitation, the right to receive Base Compensation, bonus and all other compensation, expense allowance or benefits provided for in this Agreement, and the Executive Consultant shall not be entitled to any further compensation, expense allowance, benefits, or severance compensation of any kind, and shall have no further right or claim to any compensation, benefits or severance compensation under this Agreement or otherwise against the Company or its subsidiaries and affiliates, from and after the date of such termination. For purposes of clarity, in the event of a termination of this Agreement the Executive Consultant shall not be entitled to any bonus other than any bonus payable through the date of notice of such termination. At the exception of 6 months Base compensation in case of without cause termination by the Company, and the Executive Consultant and the Representative expressively renounce to any other claim.
8.
Severability
. It is expressly understood and agreed that although the Company and the Executive Consultant consider the restrictions contained in this Agreement to be reasonable and necessary for the purpose of preserving the goodwill, proprietary rights and going concern value of the Company, if a final judicial determination is made by a court having jurisdiction that any restriction contained in this Agreement is invalid, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such other extent as such court may judicially determine or indicate to be reasonable. Alternatively, if the court referred to above finds that any restriction contained in this Agreement or any remedy provided herein is unenforceable, and such restriction or remedy cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained therein or the availability of any other remedy. The provisions of this Agreement shall in no respect limit or otherwise affect the Executive Consultant's obligations under other agreements with the Company.
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9.
No Conflicts
. The Executive Consultant and its Representative has represented and hereby represents to the Company and its affiliates that the execution, delivery and performance by the Executive Consultant of this Agreement do not conflict with or result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default under any contract, agreement or understanding, whether oral or written, to which the Executive Consultant or its Representative is a party or of which the Executive Consultant or its Representative is or should be aware and that there are no restrictions, covenants, agreements or limitations on his right or ability to enter into and perform the terms of this Agreement, and agrees to indemnify and save the Company and its affiliates harmless from any liability, cost or expense, including attorney’s fees, based upon or arising out of any such restrictions, covenants, agreements, or limitations that may be found to exist. For purposes of this Agreement, “affiliate” shall include any person or entity directly or indirectly controlled by or controlling the Company.
10.
Non-competition
. Except as authorized by the Board of Directors, during the Engagement Period, the Executive Consultant or its representative will not (except as an officer, director, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) directly, own, manage, operate, join, or have a financial interest in, control or participate in the ownership, management, operation or control of, or be employed as an employee, agent or consultant, or in any other individual or representative capacity for any business which is directly and geographically competitive within a 25 mile radius of any business carried on or planned to be carried on by the Company or any of its subsidiaries or affiliates.
11.
Non-Solicitation
. During the Restricted Period, the Executive Consultant or its Representative, directly or indirectly, whether for his account or for the account of any other individual or entity, shall not solicit or canvas the trade, business or patronage of, or sell to, any individuals or entities that were either customers of the Company during the time the Executive Consultant was engaged by the Company, or prospective customers with respect to whom a sales effort, presentation or proposal was made by the Company or its affiliates, during the one year period prior to the termination or expiration of this Agreement, as the case may be. The Executive Consultant further agrees that during the Restricted Period, he shall not, directly or indirectly, (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was an employee or consultant of the Company at any time during the time the Executive Consultant was engaged by the Company, to terminate his or her relationship with the Company or to become employed by the Executive Consultant or any individual or entity by which the Executive Consultant is engaged or (ii) interfere in any other way with the employment, or other relationship, of any employee or consultant of the Company or its affiliates.
12.
Enforcement
. The Executive Consultant agrees that any breach of the provisions of Sections 4, 5, 6, 10 and 11 hereof would cause substantial and irreparable harm, not readily ascertainable or compensable in terms of money, to the Company for which remedies at law would be inadequate and that, in addition to any other remedy to which the Company may be entitled at law or in equity, the Company shall be entitled to temporary, preliminary and other injunctive relief in the event the Executive Consultant violates or threatens to violate the provisions of Sections 4, 5, 6, 10 or 11 hereof, as well as damages, including, without limitation
4
consequential damages, and an equitable accounting of all earnings, profits and benefits arising from such violation, in each case without the need to post any security or bond. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to the Company for such breach or threatened breach. A waiver by the Company of any breach of any provision hereof shall not operate or be construed as a waiver of a breach of any other provision of this Agreement or of any subsequent breach by the Executive Consultant.
13.
Determinations by the Company
. All determinations and calculations with respect to this Agreement shall be made by the Board or any committee thereof to which the Board has delegated such authority in accordance with applicable law, the certificate of incorporation and by-laws of the Company, in its sole discretion, and shall be final, conclusive and binding on all persons, including the Executive Consultant and the personal representative of his estate.
14.
Successors and Assigns
. This Agreement shall inure to the benefit of and shall be binding upon (i) the Company, its successors and assigns, and any company with which the Company may merge or consolidate or to which the Company may sell substantially all of its assets, and (ii) Executive Consultant and his executors, administrators, heirs and legal representatives. Since the Executive Consultant’s services are personal and unique in nature, the Executive Consultant may not transfer, sell or otherwise assign his rights, obligations or benefits under this Agreement. In the event of an acquisition of the Company, the remaining stock options, not yet exercised, shall be immediately exercisable.
15.
Notices
. Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered, mailed properly addressed in a sealed envelope, postage prepaid by certified or registered mail, delivered by a reputable overnight delivery service or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive Consultant if addressed to the address of record then on file with the Company; and properly addressed to the Company if addressed to Business address of the Company.
16.
Counterparts
. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
17.
Effects of Termination
. Notwithstanding anything to the contrary contained herein, if this Agreement is terminated pursuant to Section 7 or Section 8 or expires by its terms, the provisions of Sections 4, 5, 6, 10, 11, 12, 13, 14, 15, 16, 19, 20 and this Section 18 shall continue in full force and effect.
18.
Miscellaneous
. This Agreement constitutes the entire agreement, and supersedes all prior agreements, of the parties hereto relating to the subject matter hereof, and there are no written or oral terms or representations made by either party other than those contained herein. This Agreement cannot be modified, altered or amended except by a writing signed by all the parties. No waiver by either party of any provision or condition of this
5
Agreement at any time shall be deemed a waiver of such provision or condition at any prior or subsequent time or of any other provision or condition at the same or any prior or subsequent time.
19.
Governing Law; Arbitration
.
(a) This Agreement shall be governed by and construed in accordance with the domestic laws of Quebec Province without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the Quebec Province.
(b) The parties hereto agree to submit to arbitration any and all matters in dispute or in controversy among them concerning the terms and provisions of this Agreement. All such disputes and controversies shall be determined and adjudged by the decision of an arbitrator (hereinafter sometimes called the "Arbitrator") selected by mutual agreement of the parties hereto or if the parties hereto fail to reach agreement on the Arbitrator within ten days after a party has notified the other of its interest to submit a matter to arbitration, the Arbitrator shall be selected by the American Arbitration Association upon application made to it for such purpose by the parties. Arbitration shall take place in Dallas, Texas or such other place as the parties hereto may agree in writing. The Arbitrator shall reach and render a decision in writing with respect to the amount, if any, of payment respecting the disputed matter. The arbitration proceedings shall be held in accordance with the applicable rules of the American Arbitration Association. Any award rendered shall be final and conclusive upon the parties and adjudgment thereon may be entered in the highest court of the forum, state or federal, having jurisdiction. The fees and expenses of the Arbitrator and the respective fees and expenses of the parties hereto in connection with any such arbitration (including, without limitation, reasonable fees and expenses of legal counsel and consultants) shall be paid by the party against whom a decision by the Arbitrator is rendered.
20.
Hold Harmless.
The Company will hold you free from any lawsuits, class actions or judgments against you by a third-party, including any shareholder, creditor or employees of the Company regarding any performance or non-performance of acts within your functions or in the range of your functions as long as these acts were performed in good faith. Furthermore, the Company commits itself to assume all legal and extra judiciary costs (including reasonable costs for a lawyer and expertise), in that event the Company will designate the lawyer of its choosing. This clause shall survive at the end of this present agreement.
21.
Insurance.
As one of the task of the Representative will be to the Board of Director for the putting into place of a Salary insurance and Health plan, and eventually other type of insurance plans for the employees of the Company including the Executive Officers and the Directors. Additionally, the Company commits itself to subscribe to the said liability insurance for Executives and Directors similar to the one offered to other Executives and Directors.
22. Effectiveness
6
The present agreement will be retroactive to February 1
st
2008, effective on the date of the execution of the Final Agreement between the Company and United Best Technology Limited.
[Signature Page Follows]
7
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the day and year first above written.
Consultant:
By
TRI VU TRUONG
Name: Tri Vu Truong
Title: President
Company:
By
ALEXANDER C. GILMOUR
Name: Alexander C. Gilmour
Title: Acting CEO
8
Exhibit 10.7
AGREEMENT
THIS AGREEMENT
(the "Agreement") is made this 12
th
day of February 2008, between EcoloCap Solutions Inc., a Nevada corporation (hereinafter referred to as “EcoloCap”), and United Best Technology Limited, a Hong Kong corporation (hereinafter referred to as "United").
RECITALS
Whereas
, EcoloCap desires to retain the services of United in assisting Ecolocap finding new clients for its services; and,
Whereas
, United possess the know how to assist Ecolocap finding and obtaining new clients for its services.
Whereas
, United agrees to be engaged and retained by EcoloCap and upon said terms and conditions.
NOW, THEREFORE
, in consideration of the recitals, promises and conditions in this Agreement, United and EcoloCap agree as follows:
1.
SERVICES OF UNITED
. United shall provide advice to undertake for and consult with EcoloCap concerning certain operational areas and shall review and advise EcoloCap regarding Carbon Credits (“CER”) and Clean Development Mechanism projects as well as EcoloCap’s overall progress, needs and condition in those areas. United agrees to provide on a timely basis the following enumerate services plus any additional services contemplated thereby:
A. Advise EcoloCap relative to finding and negotiating contracts and projects permitting the issuance of CER that could be certified and traded, and to further assist with the negotiation for the execution of said contracts or projects by EcoloCap or one of its affiliates;
B. Devote all its intellectual property, knowledge, technology and its contacts related to the CER and Clean Development Mechanism projects as describe within the Kyoto Protocol, or its successors, to fulfill its obligations under the present agreement, exclusively for the development of EcoloCap’s business, for the duration of the present agreement, in an exclusive and define territory, as describe in schedule 1-B;
C. To close contracts or projects on behalf of EcoloCap for a minimum of Three Million Six Hundred Thousand (3,600,000) CERs that could be certified, traded and delivered. When a contract or projects for a CER is executed and the Project Idea Note is accepted (‘PIN’), the CER will be considered delivered (the “Contracts”).
2.
TERM
. The term of this Agreement shall be for a period of five years commencing January 1, 2008 and is renewable for successive one year terms but could be terminated thereafter twelve month before the end of each terms by mutual agreement of the parties.
10013500-2
3.
COMPENSATION OF UNITED
. United for the exclusivity of its services granted to EcoloCap for, including but not restricted to, the field of Carbon Credits (CER) and Clean Development Mechanism projects as describe within the Kyoto Protocol, as well as fulfill the other obligations as described in paragraph one, United will receive Three Million Five Hundred Thousand (3,500,000) restricted shares of EcoloCap’s Common Stock.
United will be issued Three Million Five Hundred Thousand (3,500,000) restricted shares on the date of the execution of the Agreement, out of said Three Million Five Hundred Thousand (3,500,000) restricted shares, One Million (1,000,000) restricted shares will be put in escrow as of the date of the effectiveness of the present agreement, but delivered as follow:
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A.
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Five Hundred Thousand (500,000) shares when United delivers Contracts representing the issuance of Six Hundred Thousand CERs that could be certified, traded and delivered; and,
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B.
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One Hundred Thousand (100,000) shares for each Contract representing the issuance of an additional Six Hundred Thousand CERs that could be certified, traded and delivered.
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At the end of the term of this Agreement, all shares remaining in escrow shall be cancelled.
4.
RELATIONSHIP OF PARTIES
. This Agreement shall not constitute and employer-employee relationship. It is the intention of each party that United shall be an independent contractor and not an employee of the EcoloCap. United shall not have authority to act as the agent of EcoloCap except when such authority is specifically delegated to United by EcoloCap. Subject to the express provisions herein, the manner and means utilized by United in the performance of United's services hereunder shall be under the sole control of United. All compensation paid to United hereunder shall constitute earnings to United from self-employment income. EcoloCap shall not withhold any amounts therefrom as federal or state income tax withholding from wages or as employee contributions under the Federal Insurance Contributions Act (Social Security) or any similar federal or state law applicable to employers and employees.
5.
NOTICES.
Any notice, request, demand or other communication required or permitted hereunder shall be deemed to be properly given when personally served in writing or when deposited in the United States mail, postage prepaid, addressed to the other party at the address appearing at the end of this Agreement. Either party may change its address by written notice made in accordance with this section.
6.
BENEFIT OF AGREEMENT
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal representatives, administrators, executors, successors, subsidiaries and affiliates.
7.
REPRESENTATIONS AND WARRANTIES OF UNITED
. United hereby represents and warrants to EcoloCap as follows:
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a.
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The undersigned United understands that EcoloCap’s SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND
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10013500-2
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EXCHANGE COMMISSION OR ANY STATE SECURITIES AGENCIES AND NO REGISTRATION STATEMENT HAS BEEN FILED WITH ANY REGULATORY AGENCY.
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b.
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The undersigned United is not an underwriter and would be acquiring EcoloCap’s shares solely for investment for his or her own account and not with a view to, or for, resale in connection with any distribution with in the meaning of the federal securities act, the state securities acts or any other applicable state securities acts;
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c.
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The undersigned United is not a person in the United States of America and at the time the buy order was originated, United was outside the United States of America. The undersigned United is not a citizen of the United States (a U.S. Person) as that term is defined in Reg. S of the Securities Act of 1933 and was not formed by a U. S. person principally for the purpose of investing in securities not registered under the Securities Act of 1933.
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d.
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The undersigned United understands the speculative nature and risks of investments associated with the Company, and confirms that the shares would be suitable and consistent with his or her investment program and that his or her financial position enable him or her to bear the risks of this investment;
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e.
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To the extent that any federal, and/or state securities laws shall require, United hereby agrees that any securities acquired pursuant to this Agreement shall be without preference as to assets;
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f.
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The certificate for Shares will contain a legend that transfer is prohibited except in accordance with the provisions of Regulation S.
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g.
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United has had the opportunity to ask questions of the Company and has received all information from the Company to the extent that the Company possessed such information, necessary to evaluate the merits and risks of any investment in the Company. Further, United acknowledges receipt of: (1) all material books, records and financial statements of the Company; (2) all material contracts and documents relating to the proposed transaction; (3) all information filed with the United States Securities and Exchange Commission; and, (4) an opportunity to question the appropriate executive officers or partners;
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h.
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United has satisfied the suitability standards and securities laws imposed by government of Hong Kong;
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i.
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United has adequate means of providing for his current needs and personal contingencies and has no need to sell the Shares in the foreseeable future (that is at the time of the investment, United can afford to hold the investment for an indefinite period of time);
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j.
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The United has sufficient knowledge and experience in financial matters to evaluate the merits and risks of this investment and further, the United is capable of reading and
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10013500-2
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interpreting financial statements. Further, United is a “sophisticated investor” as that term is defined in applicable court cases and the rules, regulations and decisions of the United States Securities and Exchange Commission.
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k.
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The offer and sale of the Shares referred to herein is being made outside United States within the meaning of and in full compliance with Regulation S.
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l.
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United is not a U. S. person within the meaning of Regulation S and is not acquiring the Shares for the account or benefit of any U. S. person; and,
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m.
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United agrees to resell such Shares only in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act of 1933, as amended, or pursuant to an available exemption from registration.
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8.
CONFIDENTIALITY
. The terms of this Agreement will not be disclosed to anyone unless both parties agree to thereto or unless required to be disclosed pursuant to the laws of the United States of America.
9.
GOVERNING LAW
. This Agreement is made and shall be governed and construed in accordance with the laws of the state of Nevada and it is agreed that jurisdiction and venue of any action pertaining to this Agreement will be in Las Vegas, Nevada.
10.
ASSIGNMENT
. Any attempt by either party to assign any rights, duties or obligations which arise under this Agreement without the prior written consent of the other party shall be void, and shall constitute a breach of the terms of this Agreement.
11.
ENTIRE AGREEMENT; MODIFICATION
. This Agreement constitutes the entire agreement between EcoloCap and United. No promises, guarantees, inducements, or agreements, oral or written, express or implied, have been made other than as contained in this Agreement. This Agreement can only be modified or changed in writing signed by the party or parties to be charged.
12.
LITIGATION EXPENSES
. If any action at law or in equity is brought by either party to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and disbursements in addition to any other relief to which it may be entitled.
In witness whereof, the parties have executed the day and year first above written.
ECOLOCAP SOLUTIONS INC.
BY:
ALEXANDER C. GILMOUR
Alexander C. Gilmour, Chairman
UNITED BEST TECHNOLOGY LIMITED
BY:
DR. TRI VU TRUONG
Dr. Tri Vu Truong, President
10013500-2
SCHEDULE 1-B
Exclusive territory
Asia
Central-Africa
Central and South-America
10013500-2
Exhibit 10.8
ESCROW AGREEMENT
ESCROW AGREEMENT (this "
Escrow Agreement
") made as of the date set forth on the signature page below, by and among, EcoloCap Solutions Inc. ("Ecos"), United Best Technology Limited ("United") and the law firm of Pellerin Attorneys, a Montreal Nominal partnership, as escrow agent (the "
Escrow Agent
").
W I T N E S S E T H:
WHEREAS, on February12, 2008 Ecos and United (the “
Accepting Shareholder
”) have executed a Service Agreement (the “Agreement”) by wish Ecos is issuing Three Million Five Hundred Thousand (3,500,000) restricted shares of Common Stock of Ecos (the “Consideration”) for the services of United, as it appears from said agreement annexed hereby;
WHEREAS it was also agreed in said Agreement that out of the Three Million Five Hundred Thousand (3,500,000) restricted shares, Two Million Five Hundred Thousand were to be delivered to United on the date of execution of said Agreement, the remaining One Millions (1,000,000) restricted Shares were to be deposited in Escrow with the Escrow Agent (the “
Escrow Assets or Securities”)
;
WHEREAS, the Agreement contemplates that the delivery of Escrow Asset will close into escrow of the Escrow Agent until certain post closing covenants are satisfied or waived by Ecos and the Escrow Agent has agreed to receive, hold, pay and deliver such Securities, and take such actions thereof, upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Escrow Agreement hereby agree as follows:
1.
Defined Terms
. Capitalized terms used and not otherwise defined herein shall have the meanings respectively assigned to them in the Agreement.
2.
Escrow
. On or prior to the Closing Date, the following shall occur: Ecos shall deliver or instruct its transfer agent to deliver to the Escrow Agent the Securities. The Escrow Agent shall hold the Securities pursuant to the conditions of the Agreement.
3.
Interest on Assets
. During the period of effectiveness of this Escrow Agreement, none of the Securities shall accrue any interest to the benefit of, or be payable to, Ecos or United.
4.
Release of Securities
. The Escrow Agent shall release the Securities as follow : (i) Five Hundred Thousand shares when the first contracts or projects permitting the
Escrow Agreement
issuance of a total of Six Hundred Thousand CERs are delivered; and (ii) One Hundred Thousand shares for each following contracts or projects permitting the issuance of an additional Six Hundred Thousand CERs, as more fully describe in the Agreement.
5.
Further Assurances; Anti-Money Laundering Compliance
. Ecos and United agree to do such further acts and to execute and deliver such statements, assignments, agreements, instruments and other documents as the Escrow Agent from time to time reasonably may request in connection with the administration, maintenance, enforcement or adjudication of this Escrow Agreement in order (a) to give the Escrow Agent confirmation and assurance of the Escrow Agent's rights, powers, privileges, remedies and interests under this Escrow Agreement and applicable law, (b) to better enable the Escrow Agent to exercise any such right, power, privilege, remedy or interest, or (c) to otherwise effectuate the purpose and the terms and provisions of this Escrow Agreement, each in such form and substance as may be reasonably acceptable to the Escrow Agent. Without limiting the foregoing, United shall promptly deliver to the Escrow Agent any and all information and due diligence materials relating to anti-money laundering due diligence as may be requested by the Escrow Agent, the extent and sufficiency of which shall be determined by the Escrow Agent in its sole discretion.
6.
Conflicting Demands
. If conflicting or adverse claims or demands are made or notices served upon the Escrow Agent with respect to the escrow provided for herein, Ecos and United agree that the Escrow Agent shall refuse to comply with any such claim or demand and withhold and stop all further performance of this escrow so long as such disagreement shall continue. In so doing, the Escrow Agent shall not be or become liable for damages, losses, costs, expenses or interest to any or any other person for its failure to comply with such conflicting or adverse demands. The Escrow Agent shall be entitled to continue to so refrain and refuse to so act until such conflicting claims or demands shall have been finally determined by a court or arbitrator of competent jurisdiction or shall have been settled by agreement of the parties to such controversy, in which case the Escrow Agent shall be notified thereof in a notice signed by such parties. The Escrow Agent may also elect to commence an interpleader or other action for declaratory judgment for the purpose of having the respective rights of the claimants adjudicated, and may deposit with the court all funds held hereunder pursuant to this Escrow Agreement; and if it so commences and deposits, the Escrow Agent shall be relieved and discharged from any further duties and obligations under this Escrow Agreement.
7.
Disputes
. Each of the parties hereto hereby covenants and agrees that the Superior Court sitting in the District of Montreal shall have jurisdiction over any dispute with the Escrow Agent or relating to this Escrow Agreement.
8.
Expenses of the Escrow Agent
. Ecos agrees to pay any and all fees, costs, expenses and disbursements charged, accrued and/or incurred by the Escrow Agent in connection with performance of all duties, conditions and rights under this Agreement, in addition to all waivers, releases, discharges, satisfactions, modifications and amendments of this Escrow Agreement, the administration and holding of the Escrow Assets, the deposit of funds, and the enforcement, protection and adjudication of the Escrow Agent's rights hereunder by the Escrow Agent, including, without limitation, the out-of-pocket disbursements of the Escrow Agent with respect to any fees, costs, expenses or disbursements of its own legal counsel that
2
Escrow Agreement
Escrow Agent may retain in the event of any controversy in connection with this Escrow Agreement. Ecos shall indemnify and hold harmless the Escrow Agent for any and all such fees, costs expenses and disbursements paid or accrued by the Escrow Agent.
9
.
Reliance on Documents and Experts
. The Escrow Agent shall be entitled to rely upon any notice, consent, certificate, affidavit, statement, paper, document, writing or communication (which to the extent permitted hereunder may be by telegram, cable, telex, telecopier, or telephone) reasonably believed by it to be genuine and to have been signed, sent or made by the proper person or persons, and upon opinions and advice of legal counsel (including itself or counsel for any party hereto), independent public accountants and other experts selected by the Escrow Agent and mutually acceptable to each of Ecos and United. The Escrow Agent shall not be responsible to review any certificates other than to confirm that it has been signed.
10.
Status of the Escrow Agent, Etc
. The Escrow Agent is acting under this Escrow Agreement solely in an agency capacity. No term or provision of this Escrow Agreement is intended to create, nor shall any such term or provision be deemed to have created, any joint venture, partnership or attorney-client relationship between or among the Escrow Agent and United. This Escrow Agreement shall not be deemed to prohibit or in any way restrict the Escrow Agent's representation of Ecos, who may be advised by the Escrow Agent on any and all matters pertaining to this Escrow Agreement. To the extent Ecos has been represented by the Escrow Agent, United hereby duly acknowledges and waives any conflict of interest and irrevocably authorizes and directs the Escrow Agent to carry out the terms and provisions of this Escrow Agreement fairly as to all parties, without regard to any such representation and irrespective of the impact upon the. The Escrow Agent's only duties are those expressly set forth in this Escrow Agreement, and each of Ecos and United authorizes the Escrow Agent to perform those duties in accordance with its usual practices in holding funds of its own or those of other escrows. The Escrow Agent may exercise or otherwise enforce any of its rights, powers, privileges, remedies and interests under this Escrow Agreement and applicable law or perform any of its duties under this Escrow Agreement by or through its partners, employees, attorneys, agents or designees.
11.
Exculpation
. The Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, shall not incur any liability whatsoever for the investment or disposition of funds or the taking of any other action in accordance with the terms and provisions of this Escrow Agreement, for any mistake or error in judgment, for compliance with any applicable law or any attachment, order or other directive of any court or other authority (irrespective of any conflicting term or provision of this Escrow Agreement), or for any act or omission of any other person selected with reasonable care and engaged by the Escrow Agent in connection with this Escrow Agreement (other than for such Escrow Agent's or such person's own acts or omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction); and each of Ecos and United hereby waives any and all claims and actions whatsoever against the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances. Furthermore, the Escrow Agent and its designees, and their respective partners, employees,
3
Escrow Agreement
attorneys and agents, shall not incur any liability (other than for a person's own acts or omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) for other acts and omissions arising out of or related directly or indirectly to this Escrow Agreement or the Escrow Assets; and each of Ecos and United hereby expressly waives any and all claims and actions (other than those attributable to a person's own acts or omissions breaching a duty owed to the claimant and amounting to gross negligence or willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction) against the Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, arising out of or related directly or indirectly to any and all of the foregoing acts, omissions and circumstances.
12.
Indemnification
. The Escrow Agent and its designees, and their respective partners, employees, attorneys and agents, shall be indemnified, reimbursed, held harmless and, at the request of the Escrow Agent, defended, by Ecos and United from and against any and all claims, liabilities, losses and expenses (including, without limitation, the reasonable disbursements, expenses and fees of their respective attorneys) that may be imposed upon, incurred by, or asserted against any of them, arising out of or related directly or indirectly to this Escrow Agreement or the Escrow Assets, except such as are occasioned by the indemnified person's own acts and omissions breaching a duty owed to the claimant under this Escrow Agreement and amounting to willful misconduct as finally determined pursuant to applicable law by a governmental authority having jurisdiction.
13.
Notices
. Any notice, request, demand or other communication permitted or required to be given hereunder shall be in writing, shall be sent by one of the following means to the addressee at the address set forth below (or at such other address as shall be designated hereunder by notice to the other parties and persons receiving copies, effective upon actual receipt) and shall be deemed conclusively to have been given: (a) on the first business day following the day timely deposited with Federal Express (or other equivalent national overnight courier) or Post Canada Express Mail, with the cost of delivery prepaid; (b) on the fifth business day following the day duly sent by certified or registered Post Canada mail, postage prepaid and return receipt requested; or (c) when otherwise actually delivered to the addressee.
|
|
If to Ecos:
|
|
ECOLOCAP SOLUTIONS INC.
|
|
|
|
|
353, St-Nicolas Street
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|
|
|
|
Montreal, Quebec H2Y 2P1
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|
Att: Alexander C. Gilmour
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|
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|
If to Escrow Agent:
|
|
Pellerin Attorneys
|
|
|
|
|
375-204 Notre-Dame W.
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|
Montreal (Quebec) H2Y 1T3
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|
Att : Claude Pellerin
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|
|
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|
Telephone No.:
(514) 397-0575
|
|
|
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|
Facsimile No.:
(514) 397-0480
|
4
Escrow Agreement
|
|
If to United:
|
|
UNITED BEST TECHNOLOGY LIMITED
|
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Room 1001-4A, Champion Building,
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287-291 Des Voeux Road, Central, Hong Kong
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Att: Dr. Tri Vu Truong
|
14.
Section and Other Headings
. The section and other headings contained in this Escrow Agreement are for convenience only, shall not be deemed a part of this Escrow Agreement and shall not affect the meaning or interpretation of this Escrow Agreement.
15.
Governing Law
. This Escrow Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Province of Quebec, without regard to principles of conflicts of law. Each of Ecos and United (i) hereby irrevocably submits to the jurisdiction of the Superior Court sitting in the District of Montreal for the purposes of any suit, action or proceeding arising out of or relating to this Agreement or the Agreement and (ii) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. Each of Ecos and United consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing in this Section 15 shall affect or limit any right to serve process in any other manner permitted by law.
16.
Counterparts
. This Escrow Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original but all such counterparts shall together constitute one and the same agreement.
17.
Resignation of Escrow Agent
. The Escrow Agent may, at any time, at its option, elect to resign its duties as Escrow Agent under this Escrow Agreement by providing notice thereof to each of Ecos and United. In such event, the Escrow Agent shall deposit the Escrow Assets with a successor independent escrow agent to be appointed by (a) Ecos and United within thirty (30) days following the receipt of notice of resignation from the Escrow Agent, or (b) the Escrow Agent if Ecos and United shall have not agreed on a successor escrow agent within the aforesaid 30-day period, upon which appointment and delivery of the Escrow Assets the Escrow Agent shall be released of and from all liability under this Escrow Agreement.
18.
Successors and Assigns; Assignment
. Whenever in this Escrow Agreement reference is made to any party, such reference shall be deemed to include the successors, assigns and legal representatives of such party, and, without limiting the generality of the foregoing, all representations, warranties, covenants and other agreements made by or on behalf of each of Ecos and United in this Escrow Agreement shall inure to the benefit of any successor escrow agent hereunder;
provided
,
however
,
that
nothing herein shall be deemed to authorize or permit Ecos or United to assign any of its rights or obligations hereunder to any other person (whether or not an affiliate of Ecos or United) without the written consent of each of the other parties nor to authorize or permit the Escrow Agent to assign any of its duties or obligations hereunder except as provided in Section 17 hereof.
5
Escrow Agreement
19.
No Third Party Rights
. The representations, warranties and other terms and provisions of this Escrow Agreement are for the exclusive benefit of the parties hereto, and no other person, including the creditors of Ecos or United, shall have any right or claim against any party by reason of any of those terms and provisions or be entitled to enforce any of those terms and provisions against any party.
20.
No Waiver by Action, Etc
. Any waiver or consent respecting any representation, warranty, covenant or other term or provision of this Escrow Agreement shall be effective only in the specific instance and for the specific purpose for which given and shall not be deemed, regardless of frequency given, to be a further or continuing waiver or consent. The failure or delay of a party at any time or times to require performance of, or to exercise its rights with respect to, any representation, warranty, covenant or other term or provision of this Escrow Agreement in no manner (except as otherwise expressly provided herein) shall affect its right at a later time to enforce any such term or provision. No notice to or demand on either Ecos or United in any case shall entitle such party to any other or further notice or demand in the same, similar or other circumstances. All rights, powers, privileges, remedies and interests of the parties under this Escrow Agreement are cumulative and not alternatives, and they are in addition to and shall not limit (except as otherwise expressly provided herein) any other right, power, privilege, remedy or interest of the parties under this Escrow Agreement or applicable law.
21.
Modification, Amendment, Etc
. Each and every modification and amendment of this Escrow Agreement shall be in writing and signed by all of the parties hereto, and each and every waiver of, or consent to any departure from, any covenant, representation, warranty or other provision of this Escrow Agreement shall be in writing and signed by the party granting such waiver or consent.
22.
Entire Agreement
. This Escrow Agreement contains the entire agreement of the parties with respect to the matters contained herein and supersedes all prior representations, agreements and understandings, oral or otherwise, among the parties with respect to the matters contained herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
Escrow Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the 13
th
day of February, 2008.
United Best Technology Limited
By:
DR. TRI VU TRUONG
Name: Dr. Tri Vu TRuong
Title: President
Pellerin Attorneys
By:
CLAUDE PELLERIN
Name: Claude Pellerin
Title: Partner
EcoloCap Solutions Inc.
By:
ALEXANDER C. GILMOUR
Name:Alexander C. Gilmour
Title: Chairman
7
Emission Reduction Purchase Agreement
Page 1 of 12
Exhibit 10.9
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
ECOLOCAP SOLUTIONS (CANADA) INC., (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel : 5148763907
Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO : Dr. Tri vu Truong
and
(the " TIÈN GIANG 10MW FIRED RICE HUSK POWER PLANT- CDM Project
Proponent”)., henceforth “VIETNAM PROJECT PROPONENT”
Owner:
TAN HIEP PHUC ELECTRICITY CONSTRUCTION JOINT-STOCK COMPANY, VIET
NAM (THP.CORP)
Address: 52 Tran Trong Cung St, Tan Thuan Dong Ward, District No 7, Ho Chi Minh City
Telephone: + 84.8. 7733306
Fax : +84.8. 7733321
Email: tvlong@thpcorp.com.vn
General Director: Mr. Truong Van Long
Interpretation and Definitions
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the meaning set forth in the definitions below.
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
|
Emission Reduction Purchase Agreement
Page 2 of 12
|
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Additional
|
Means any Certified Emission Reduction (CER) generated by the Project
|
|
Emission
|
that is in excess of [50,000] Certified Emission Reductions (CERs) per
|
|
Reduction:
|
annum.
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|
Agreement:
|
Means this Emission Reduction Purchase Agreement.
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|
Annex B Countries:
|
Means the countries listed in Annex B to the Kyoto Protocol having
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|
committed themselves to reduce or limit their GHG emissions.
|
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|
Annex I Countries:
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
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|
consists of industrial countries and countries in transition).
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|
Anticipated
|
Means up to [50,000] Certified Emission Reductions (CERs) per annum
|
|
Emission
|
during the Crediting Period, anticipated to be generated by the Project
|
|
Reduction:
|
and calculated in accordance with the Kyoto Rules.
|
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|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic
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|
emissions of GHG that would occur in the Host Country in the absence of
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the Project, determined in accordance with the Kyoto Rules.
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Business Day:
|
Means a day on which banks are open for general business in Vietnam.
|
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|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various GHG
|
|
Equivalent:
|
based upon their global warming potential.
|
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|
Certification:
|
Means the written confirmation by an Operational Entity of an Emission
|
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|
Reduction resulting from a CDM project and having passed the
|
|
Verification procedure according to the Kyoto Rules.
|
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|
Certified Emission
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
|
|
Reduction (CER):
|
Kyoto Protocol and the requirements of the Kyoto Rules (including
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|
Certification), equal to one metric ton of Carbon Dioxide Equivalent
|
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|
resulting from a CDM project.
|
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Clean Development
|
Means the flexible mechanism established by Article 12 of the Kyoto
|
|
Mechanism (CDM) :
|
Protocol providing for Annex I Countries to implement projects that reduce
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|
emissions in non-Annex I Countries in return for CERs and assist the non-
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|
Annex I Countries in achieving sustainable development and contributing
|
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|
to the ultimate objective of the UNFCCC.
|
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Crediting Period:
|
Means, until December 31, 2026.
|
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Emission
|
Means reduction in emission of GHG achieved, calculated in accordance
|
|
Reduction:
|
with the Kyoto Rules.
|
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Executive Board:
|
Means the international authority elected by the representatives of the
|
|
|
parties to the Kyoto Protocol responsible for monitoring the CDM process.
|
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First Commitment
|
Means …June 2008 until December 31, 2019.
|
|
Period:
|
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|
Force Majeure:
|
Means any circumstance or condition beyond the control of either party to
|
|
|
this Agreement affecting the performance of its obligations under this
|
|
|
Agreement including in particular wars, insurrection, natural disaster or
|
|
|
equivalent circumstances.
|
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|
Greenhouse Gases
|
Means the six gases listed in Annex A to the Kyoto Protocol.
|
|
(GHG):
|
|
|
|
|
Host Country:
|
Vietnam
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
|
Emission Reduction Purchase Agreement
Page 3 of 12
|
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|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference of the
|
|
|
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
|
|
|
|
Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
|
|
|
Marrakesh Accords, any relevant decisions, guidelines, modalities and
|
|
|
procedures made pursuant to them and/or any succeeding international
|
|
|
agreements as amended and/or supplemented from time to time and
|
|
|
which include those rules specifically required to be met for the issuing
|
|
|
and transfer of CERs.
|
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|
|
Letter of Approval
|
Means a binding approval of the Project by the Host Country together with
|
|
(LOA):
|
an approval of the transfer of CERs.
|
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|
|
Monitoring Report:
|
Means an annual report to be provided by Owner setting out the total
|
|
|
number of Emission Reductions generated by the Project during the
|
|
|
previous year according to the Kyoto Rules, international Monitoring rules
|
|
|
and the PDD.
|
|
|
|
Monitoring:
|
Means the collection and record of data allowing the assessment of
|
|
|
reductions in GHG emissions resulting from the Project conducted in
|
|
|
accordance with the Kyoto Rules.
|
|
|
|
Operational Entity:
|
Means an independent entity accredited by the Executive Board being the
|
|
|
executive body for CDM and inter alias responsible for determining
|
|
|
whether a project and the resulting Emission Reductions meet the
|
|
|
requirements of Article 12 of the Kyoto Protocol.
|
|
|
|
Project Design
|
Means a detailed description of the Project to be submitted for Validation
|
|
Document (PDD):
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive
|
|
|
and attached as Annex III. The Purchaser will be responsible for providing
|
|
PDD development for Registration of the Project.
|
|
|
|
Project:
|
Means the proposed CDM project described in the PDD and other
|
|
|
documents describing the implementation and economics of the Project
|
|
|
attached in Annex IV.
|
|
|
|
Registration:
|
Means the official registration of a CDM project by the Executive Board
|
|
|
according to the Kyoto Rules.
|
|
|
|
UNFCCC:
|
Means the United Nations Framework Convention on Climate Change
|
|
|
adopted in New York on May 9, 1992.
|
|
|
|
Unit Price:
|
Means the price payable by Purchaser to Project Proponent per Certified
|
|
|
Emission Reduction (CER) unit:
|
|
|
|
|
The purchase unit price paid by EcoloCap Solutions Canada Inc. to Viet
|
|
|
Nam Project Proponent for the CER is fixed at (12)$US/CER, less
|
|
|
applicable tax and sale commission, for the year 2008 to 2012 and a new
|
|
|
agreement for purchase unit price will be negotiated for the two periods of
|
|
|
extension.
|
|
|
|
|
The amount paid to the Viet Nam Project Proponent for the total certified
|
|
|
CER generated from this project is fixed at (85)% of the total value of
|
|
|
CER at this above mentioned purchase price ($(12)US), less commission,
|
|
|
applicable tax and the one time reimbursement of an amount of
|
|
|
$(75,000)USD to Ecolocap Solutions inc for funding the CDM process.
|
|
|
|
|
TERM:
|
|
|
|
|
Ecolocap Solutions inc will purchase certified CER generated by this
|
|
|
project for the year 2008 to 2012 with options of extension for two other
|
|
|
periods of 7 years, the period 2012-2026, under same terms and
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
|
Emission Reduction Purchase Agreement
Page 4 of 12
|
|
|
|
|
|
|
conditions.
|
|
|
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
|
|
|
Verification:
|
Means the periodic independent review and ex post determination of the
|
|
|
monitored reductions in GHG emissions that the Project has achieved
|
|
|
during a specified period of time by an Operational Entity in accordance
|
|
|
with the Kyoto Rules. The project's owner will be Responsible for
|
|
|
providing periodical monitoring.
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to
|
|
legal provisions are references to such provisions as in effect from time to time, use of a gender
|
|
includes any gender and use of the plural includes the singular and vice versa where the context
|
|
requires.
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement
or
taken
into
consideration
in
its
interpretation.
|
|
|
|
|
|
1. Preamble
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
|
|
|
2.
|
Contractual Obligations
|
|
|
|
2.1.
|
Anticipated Emission Reductions
|
|
|
|
2.1.1.
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
accordance with the PDD and other documents describing the implementation and
|
|
|
economics of the project attached in Annex IV at its own risk and expense. It is hereby
|
|
|
acknowledged and agreed between the parties hereto that Purchaser does not warrant
|
|
|
the generation of, and is not obliged to generate, any CERs, whether by the Project or
|
|
|
otherwise.
|
|
|
|
2.1.2.
|
If the Project generates CERs, during the crediting period Project Proponent shall, to
|
|
|
the extent it is legally possible and permissible, exclusively transfer or cause to be
|
|
|
transferred to Purchaser all rights (and, to the extent legally possible and permissible,
|
|
|
legal title) which Project Proponent may have in the Anticipated Emission Reductions
|
|
|
generated during the Crediting Period to Purchaser.
|
|
|
|
2.1.3.
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are
|
|
|
transferred to Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.
|
Additional Emission Reductions
|
|
|
|
2.2.1.
|
If Additional Emission Reductions are generated by the Project during the Crediting
|
|
|
Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
|
|
|
subject to the terms and conditions of this Agreement and at a price per Additional
|
|
|
Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise
|
|
|
the purchase option then Project Proponent may deal with the Additional Emission
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
|
Emission Reduction Purchase Agreement
Page 5 of 12
|
|
|
|
|
|
|
Reductions as it wishes.
|
|
|
|
2.2.2.
|
Additional Emission Reductions offer by the Purchaser shall be made as soon as
|
|
|
possible after such Additional Emission Reductions have been generated, but no later
|
|
|
than December 31 of the year subsequent to the calendar year in which such
|
|
|
Additional Emission Reductions have been generated.
|
|
|
|
2.2.3.
|
Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
|
|
|
Project Proponent within one month after receipt of such offer, whether and to what
|
|
|
extent it accepts the offer. If Purchaser does not respond within this deadline the offer
|
|
|
shall be deemed to be rejected by Purchaser.
|
|
|
|
2.2.4.
|
To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
|
|
|
legally possible and permissible, transfer or cause to be transferred to Purchaser all
|
|
|
rights (and, to the extent legally possible and permissible, legal title) which Project
|
|
|
Proponent may have in those Additional Emission Reductions in respect of which
|
|
|
Purchaser has accepted such offer, within two months after acceptance of such offer
|
|
|
by Purchaser.
|
|
|
|
2.2.5.
|
To the extent Purchaser rejects such offer of Additional Emission Reductions or such
|
|
|
offer is deemed rejected by Purchaser, Project Proponent shall be free to enter into
|
|
|
contracts with other parties for the sale of such Additional Emission Reductions or to
|
|
|
otherwise deal with such Additional Emission Reductions as Project Proponent wishes.
|
|
|
|
2.2.6.
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
|
|
|
Additional Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.3.
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to
|
|
|
concluding an agreement on the purchase of such Certified Emission Reductions
|
|
|
based on the principles of this Agreement but amended in order to reflect the
|
|
|
international and/or national rules then applicable.
|
|
|
|
|
|
|
|
3.
|
Transfer
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and
|
|
|
permissible, legal title) which Project Proponent may have in a Certified Emission
|
|
|
Reduction shall have occurred upon the transfer of a CER from the register of the
|
|
|
Executive Board to a register in favor of Purchaser or such other account or register
|
|
|
Purchaser has notified to Project Proponent in writing.
|
|
|
|
|
|
|
|
4.
|
Payment
|
|
|
|
4.1.
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
|
|
|
rights in which are transferred pursuant to clause 3) shall be made on the last Business
|
|
|
Day of the month in which a 40 Business Day period, starting at the day on which
|
|
|
Purchaser has received satisfactory evidence of the transfer as provided for in Clause
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
|
Emission Reduction Purchase Agreement
Page 6 of 12
|
|
|
|
|
|
|
3, has elapsed.
|
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|
|
4.1.2.
|
All payments shall be made to the accounts specified in Annex [I] hereto or such other
|
|
|
account as may from time to time be notified to the other party in writing.
|
|
|
|
4.1.3.
|
All payments shall be made in US Dollars.
|
|
|
|
4.1.4.
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection
|
|
|
with the generation of CERs by the Project and their Registration and transfer
|
|
|
(including VAT in any jurisdiction Purchaser duly notifies Project Proponent to transfer
|
|
|
CERs as in Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
4.1.5.
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
administrative expenses according to the Kyoto Rules shall be borne by Project
|
|
|
Proponent and Purchaser in equal shares .
|
|
|
|
|
The share of the proceeds from CERs generated by the Project to be used to assist
|
|
|
developing countries that are particularly vulnerable to the adverse effects of climate
|
|
|
change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
|
|
|
Project Proponent and Purchaser in equal shares.
|
|
|
|
|
|
5.
|
Termination and Remedies
|
|
|
|
5.1.
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement
|
|
|
by written notice to the other party with immediate effect if any of the following events
|
|
|
occurs:
|
|
|
|
5.1.1.
|
the other party commits a breach of any of its obligations under this Agreement and, in
|
|
|
the case of a breach capable of being remedied, such breach remains for more than 30
|
|
|
Business Days after it has been requested in writing by the Non-defaulting Party to
|
|
|
remedy the breach; or
|
|
|
|
5.1.2.
|
the other party goes into liquidation (whether voluntary or otherwise), is unable to pay
|
|
|
its debts as they fall due, is wound up, makes any compromise, composition or other
|
|
|
arrangement with its creditors generally, or becomes subject to any administration
|
|
|
order.
|
|
|
|
5.2.
|
Force Majeure
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations
|
|
|
under the Agreement for reasons of Force Majeure, such obligation shall be suspended
|
|
|
to the extent and for as long as such obligation is affected by Force Majeure and the
|
|
|
impeded party shall be entitled to such extension of time as may be reasonably
|
|
|
necessary.
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an
|
|
|
event of Force Majeure that is likely to impede its performance under the Agreement
|
|
|
within 5 Business Days after having obtained knowledge of any such event. Either
|
|
|
party shall likewise advise the other of the date when such event ended and shall also
|
|
|
specify the re-determined time by which the performance of its obligations hereunder is
|
|
|
to be completed.
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of
|
|
|
determining any further appropriate action if a condition of Force Majeure is to continue
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
|
Emission Reduction Purchase Agreement
Page 7 of 12
|
|
|
|
|
|
|
after 20 Business Days from the date of giving notice thereof.
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement
|
|
|
for any delay in performing hereunder if such delay is caused by Force Majeure;
|
|
|
provided, however, that the non-impeded party shall be entitled to terminate such part
|
|
|
of the Agreement that remains unfulfilled, if the condition of Force Majeure is to
|
|
|
continue after 6 months from the date of giving notice thereof.
|
|
|
|
|
|
6.
|
Change in Circumstances
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable
|
|
|
standards relating to the Baseline methodology and/or the applicable criteria for
|
|
|
Verification and Certification of the resulting Emission Reductions) occurs which
|
|
|
substantially affects the Project, the parties to this Agreement shall enter into
|
|
|
negotiations with a view to adapt the Project and its implementation or any relevant
|
|
|
provision of this Agreement, as may be necessary or useful. A change in
|
|
|
circumstances shall in no event be considered substantially affecting the Project if at
|
|
|
least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve
|
|
|
the generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
|
|
|
|
|
7.
|
Conditions Precedent
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions
|
|
|
precedent:
|
|
|
|
|
1. Conclusion of a binding agreement with the Host Country.
|
|
|
|
|
|
|
|
8.
|
Miscellaneous
|
|
|
|
8.1.
|
Assignment and subcontracting
|
|
|
Neither party shall, without the written consent of the other party, assign or transfer the
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other
|
|
|
person.
|
|
|
|
8.2.
|
Confidentiality and Disclosure
|
|
|
The parties shall treat as confidential all information obtained as a result of entering
|
|
|
into or performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in
|
|
|
those circumstances where disclosure is required in order to comply with any laws or
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
|
Emission Reduction Purchase Agreement
Page 8 of 12
|
|
|
|
|
|
|
regulations, including without limitations the Kyoto Rules.
|
|
|
|
8.3.
|
Notices
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be
|
|
|
made in writing (including by facsimile) to the address or facsimile number, from time to
|
|
|
time designated by the party to whom the communication is to be made to the other
|
|
|
party for that purpose. The address and facsimile number so designated are set out in
|
|
|
Annex
[I]
hereto.
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by
|
|
|
the recipient, if sent by facsimile, when a transmission report shows that the facsimile
|
|
|
has been sent.
|
|
|
|
8.4.
|
Entire Agreement
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to
|
|
|
the subject matter hereof, and no prior or contemporaneous oral or written agreement
|
|
|
or understanding shall be deemed to constitute a part of this Agreement, unless
|
|
|
expressly referred to herein, or attached hereto, or specifically incorporated by
|
|
|
reference herein. The Annexes and schedules to this Agreement constitute integral
|
|
|
parts of this Agreement and shall therefore be deemed part of this Agreement.
|
|
|
|
|
|
8.5.
|
Amendments
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
8.6.
|
Costs and Expenses
|
|
|
|
|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
preparation, execution and carrying into effect of this Agreement.
|
|
|
|
8.7.
|
Severability
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
|
|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
|
|
|
8.8.
|
Governing law
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
excluding its rules on conflicts of laws.
|
|
|
|
8.9.
|
Jurisdiction
|
|
|
|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having
|
|
|
jurisdiction in commercial matters for England with regard to all disputes arising out of
|
|
|
or in connection with this Agreement, its violation, termination or nullity.
|
|
|
|
8.10.
|
Counterparts
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the English
|
|
|
and the Vietnamese version, the English version will prevail .
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
Emission Reduction Purchase Agreement
Page 9 of 12
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above, this 26
th
day of May, 2008, in the presence of:
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO : Dr. Tri Vu Truong
|
|
|
|
Project Proponent:
|
|
|
|
|
|
|
|
|
|
|
|
TRUONG VAN LONG
|
|
|
General Director: Mr. Truong Van Long
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
|
|
|
|
BUI THI LAN HUONG
|
LE PHUC LAM
|
|
MSc. Bui Thi Lan Huong
|
Le Phuc Lam-Engineer
|
|
Biology Energy-Waste Treatment
|
Vietnam
|
|
(Vietnam) Ltd.
|
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
Emission Reduction Purchase Agreement
Page 10 of 12
ANNEX I:
1. The salient features of 10 MW fired Rice Husk power plant – CDM Project at Hoa Dien Hamlet, Hoa Khanh
commune, Cai Be District in Tien Giang Province, Vietnam
|
No
|
Parameters
|
Units
|
Value
|
|
|
BIOMASS CHARACTERIZATION
|
|
|
|
1
|
Biomass quantity and TYPE
________________
Historical
|
Tons/year
|
|
|
|
Biomass quantity and TYPE: Rice husk
__
Projected
|
Tons/year
|
117440
|
|
|
Other biomass used in % Biomass B
_____________
|
|
|
|
|
Other biomass used in % Biomass C
_____________
|
|
|
|
1a
|
Average biomass density
|
Kg/m3
|
130
|
|
2
|
Net calorific value of bimass
|
MJ/Kg
|
13.00
|
|
|
TRANSPORTATION EMISSIONS
|
|
|
|
4
|
Average round trip to supply biomass
|
Km
|
15
|
|
5
|
Number of barge trips – transportation of biomass
|
Trips/day
|
9-12
|
|
6
|
Average barge load – transportation of biomass
|
Tons
|
30-40
|
|
8
|
Fuel consumption – transportation of biomass
|
L/kg rice husk
|
0.003
|
|
|
ELECTRICITY GENERATION
|
|
|
|
11
|
Total electricity generation
Projected
|
MWh/yr
|
80 000
|
|
13
|
Total electricity generation
Historical
|
MWh/yr
|
0.00
|
|
|
Electricity exported to the grid
|
MWh/yr
|
72 000
|
|
|
On-site used of electricity
|
MWh/yr
|
8 000
|
|
|
Community use of electricity
|
MWh/yr
|
|
|
20
|
Average net energy efficiency of electricity generation
|
|
>95%
|
|
|
VAPOR GENERATION
|
|
No
|
|
14.
|
Heat generated (vapour) from firing biomass Projected
|
MWh/yr
|
|
|
15
|
Historical heat generated (vapour) at the project site
Historical
|
MWh/yr
|
|
|
21/10b
|
Energy efficency of heat generation
|
-
|
|
|
|
START-UP or AUXILIARY FUEL
|
|
|
|
10
|
Quantity of fossil fuel used and type
|
Mass or volume/yr
|
No
|
|
16
|
Net calorific value co-fired
|
MWh / mass
or volume
|
No
|
|
|
OPEN AIR BURNING OF BIOMASS
|
|
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
Emission Reduction Purchase Agreement
Page 11 of 12
|
|
Carbon Fraction of biomass
|
T C/T
biomass
|
|
|
|
CH4 emissions
|
T co2 eq /T biomass
|
|
|
|
Biomass used
|
Tonnes/yr
|
117 440
|
|
|
EMISSION REDUCTION
|
|
|
|
|
Estimation nof the emission reduction per Kwh
(CERs)
|
T co2 e q/k
Wh
|
580.61
|
|
|
Annual estimation of the emission reduction (CERs)
|
Tco2 e q/year
|
41.804
|
2. Project time schedule.
- Year of 2008: 1. Set up and submit for approval of basic design.
2. Compensation for land clearance.
3. Ask for preventing and fighting fire license, environmental protecting commitment license, construction license.
4. Invite bidding of EPC and sign contract for plant construction.
- Year of 2009: Construct the plant, install equipment and run trial operation.
- Year of 2010: Official Operation
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
Emission Reduction Purchase Agreement
Page 12 of 12
ANNEX 2:
Work flow of CDM Activity
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-1
:
Emission Reduction Purchase Agreement
Page 1 of 11
Exhibit 10.10
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP).
740 St Maurice suite 102 Montreal, QC H3C1L5 Canada Tel : 5148763907 Fax: 5148764080 Email: trivutruong@ecolocap.com
President - CEO: Dr. Tri Vu Truong
and
(the " BAN NHUNG Hydro Power – CDM Project Proponent”)., henceforth
“VIETNAM PROJECT PROPONENT”
Owner:
TUAN ANH HYDRAULIC DEVELOPMENT AND CONSTRUCTION INVESTMENT CORPORATION,
VIET NAM (TUAN ANH HDC., CORP)
Address: No. 3A-430 Alley, Bach Dang St, Chuong Duong Ward, Hoan Kiem Dist, Ha noi, Viet nam
Telephone: (084) 4 9842588.
Fax : (084) 4 9842588
Mobile: 0912698988 Email:
General Director: Do Anh Tuan
Interpretation and Definitions
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the meaning set forth in the definitions below.
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 2 of 11
|
Additional
|
Means any Certified Emission Reduction (CER) generated by the Project
|
|
Emission
|
that is in excess of [50,000] Certified Emission Reductions (CERs) per
|
|
Reduction:
|
annum.
|
|
|
|
Agreement:
|
Means this Emission Reduction Purchase Agreement.
|
|
|
|
Annex B Countries:
|
Means the countries listed in Annex B to the Kyoto Protocol having
|
|
|
committed themselves to reduce or limit their GHG emissions.
|
|
|
|
Annex I Countries:
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
|
|
|
consists of industrial countries and countries in transition).
|
|
|
|
Anticipated
|
Means up to [50,000] Certified Emission Reductions (CERs) per annum
|
|
Emission
|
during the Crediting Period, anticipated to be generated by the Project
|
|
Reduction:
|
and calculated in accordance with the Kyoto Rules.
|
|
|
|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic
|
|
|
emissions of GHG that would occur in the Host Country in the absence of
|
|
|
the Project, determined in accordance with the Kyoto Rules.
|
|
|
|
Business Day:
|
Means a day on which banks are open for general business in Vietnam.
|
|
|
|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various GHG
|
|
Equivalent:
|
based upon their global warming potential.
|
|
|
|
Certification:
|
Means the written confirmation by an Operational Entity of an Emission
|
|
|
Reduction resulting from a CDM project and having passed the
|
|
|
Verification procedure according to the Kyoto Rules.
|
|
|
|
Certified Emission
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
|
|
Reduction (CER):
|
Kyoto Protocol and the requirements of the Kyoto Rules (including
|
|
|
Certification), equal to one metric ton of Carbon Dioxide Equivalent
|
|
|
resulting from a CDM project.
|
|
|
|
Clean Development
|
Means the flexible mechanism established by Article 12 of the Kyoto
|
|
Mechanism (CDM) :
|
Protocol providing for Annex I Countries to implement projects that reduce
|
|
|
emissions in non-Annex I Countries in return for CERs and assist the non-
|
|
|
Annex I Countries in achieving sustainable development and contributing
|
|
|
to the ultimate objective of the UNFCCC.
|
|
|
|
Crediting Period:
|
Means, until December 31, 2026.
|
|
|
|
Emission
|
Means reduction in emission of GHG achieved, calculated in accordance
|
|
Reduction:
|
with the Kyoto Rules.
|
|
|
|
Executive Board:
|
Means the international authority elected by the representatives of the
|
|
|
parties to the Kyoto Protocol responsible for monitoring the CDM process.
|
|
|
|
First Commitment
|
Means 10
th
June 2008 until December 31, 2012
.
|
|
Period:
|
|
|
|
|
Force Majeure:
|
Means any circumstance or condition beyond the control of either party to
|
|
|
this Agreement affecting the performance of its obligations under this
|
|
|
Agreement including in particular wars, insurrection, natural disaster or
|
|
|
equivalent circumstances.
|
|
|
|
Greenhouse Gases
|
Means the six gases listed in Annex A to the Kyoto Protocol.
|
|
(GHG):
|
|
|
|
|
Host Country:
|
Vietnam
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 3 of 11
|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference of the
|
|
|
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
|
|
|
|
Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the Marrakesh
|
|
|
Accords, any relevant decisions, guidelines, modalities and procedures
|
|
|
made pursuant to them and/or any succeeding international agreements as
|
|
|
amended and/or supplemented from time to time and which include those
|
|
|
rules specifically required to be met for the issuing and transfer of CERs.
|
|
|
|
Letter of Approval
|
Means a binding approval of the Project by the Host Country together with
|
|
(LOA):
|
an approval of the transfer of CERs.
|
|
|
|
Monitoring Report:
|
Means an annual report to be provided by Owner setting out the total
|
|
|
number of Emission Reductions generated by the Project during the
|
|
|
previous year according to the Kyoto Rules, international Monitoring rules
|
|
|
and the PDD.
|
|
|
|
Monitoring:
|
Means the collection and record of data allowing the assessment of
|
|
|
reductions in GHG emissions resulting from the Project conducted in
|
|
|
accordance with the Kyoto Rules.
|
|
|
|
Operational Entity:
|
Means an independent entity accredited by the Executive Board being the
|
|
|
executive body for CDM and inter alias responsible for determining
|
|
|
whether a project and the resulting Emission Reductions meet the
|
|
|
requirements of Article 12 of the Kyoto Protocol.
|
|
|
|
Project Design
|
Means a detailed description of the Project to be submitted for Validation
|
|
Document (PDD):
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive
|
|
|
and attached as Annex III. The Purchaser will be responsible for providing
|
|
|
PDD development for Registration of the Project.
|
|
|
|
Project:
|
Means the proposed CDM project described in the PDD and other
|
|
|
documents describing the implementation and economics of the Project
|
|
|
attached in Annex IV.
|
|
|
|
Registration:
|
Means the official registration of a CDM project by the Executive Board
|
|
|
according to the Kyoto Rules.
|
|
|
|
UNFCCC:
|
Means the United Nations Framework Convention on Climate Change
|
|
|
adopted in New York on May 9, 1992.
|
|
|
|
Unit Price:
|
Means the price payable by Purchaser to Project Proponent per Certified
|
|
|
Emission Reduction (CER) unit:
|
|
|
|
|
The purchase unit price paid by EcoloCap Solutions Canada Inc. to Viet
|
|
|
Nam Project Proponent for the CER is fixed at (12)$US/CER, less
|
|
|
applicable tax and sale commission, for the year 2008 to 2012 and a new
|
|
|
agreement for purchase unit price will be negotiated for the two periods of
|
|
|
extension.
|
|
|
|
|
The amount paid to the Viet Nam Project Proponent for the total certified
|
|
|
CER generated from this project is fixed at (85)% of the total value of CER
|
|
|
at this above mentioned purchase price ($(12)US), less commission,
|
|
|
applicable tax and the one time reimbursement of an amount of
|
|
|
$(75,000)USD to Ecolocap Solutions inc for funding the CDM process.
|
|
|
|
|
TERM:
|
|
|
|
|
Ecolocap Solutions inc will purchase certified CER generated by this
|
|
|
project for the year 2008 to 2012 with options of extension for two other
|
|
|
periods of 7 years, the period 2013-2026, under same terms and
|
|
|
conditions.
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 4 of 11
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
|
|
|
Verification:
|
Means the periodic independent review and ex post determination of the
|
|
|
monitored reductions in GHG emissions that the Project has achieved
|
|
|
during a specified period of time by an Operational Entity in accordance
|
|
|
with the Kyoto Rules. The project's owner will be Responsible for providing
|
|
|
periodical monitoring.
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to
|
|
legal provisions are references to such provisions as in effect from time to time, use of a gender
|
|
includes any gender and use of the plural includes the singular and vice versa where the context
|
|
requires.
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement
or
taken
into
consideration
in
its
interpretation.
|
|
|
|
|
|
1. Preamble
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
|
|
|
2.
|
Contractual Obligations
|
|
|
|
2.1.
|
Anticipated Emission Reductions
|
|
|
|
2.1.1.
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
accordance with the PDD and other documents describing the implementation and
|
|
|
economics of the project attached in Annex IV at its own risk and expense. It is hereby
|
|
|
acknowledged and agreed between the parties hereto that Purchaser does not warrant
|
|
|
the generation of, and is not obliged to generate, any CERs, whether by the Project or
|
|
|
otherwise.
|
|
|
|
2.1.2.
|
If the Project generates CERs, during the crediting period Project Proponent shall, to
|
|
|
the extent it is legally possible and permissible, exclusively transfer or cause to be
|
|
|
transferred to Purchaser all rights (and, to the extent legally possible and permissible,
|
|
|
legal title) which Project Proponent may have in the Anticipated Emission Reductions
|
|
|
generated during the Crediting Period to Purchaser.
|
|
|
|
2.1.3.
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are
|
|
|
transferred to Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.
|
Additional Emission Reductions
|
|
|
|
2.2.1.
|
If Additional Emission Reductions are generated by the Project during the Crediting
|
|
|
Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
|
|
|
subject to the terms and conditions of this Agreement and at a price per Additional
|
|
|
Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise
|
|
|
the purchase option then Project Proponent may deal with the Additional Emission
|
|
|
Reductions as it wishes.
|
|
|
|
2.2.2.
|
Additional Emission Reductions offer by the Purchaser shall be made as soon as
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 5 of 11
|
|
possible after such Additional Emission Reductions have been generated, but no later
|
|
|
than December 31 of the year subsequent to the calendar year in which such
|
|
|
Additional Emission Reductions have been generated.
|
|
|
|
2.2.3.
|
Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
|
|
|
Project Proponent within one month after receipt of such offer, whether and to what
|
|
|
extent it accepts the offer. If Purchaser does not respond within this deadline the offer
|
|
|
shall be deemed to be rejected by Purchaser.
|
|
|
|
2.2.4.
|
To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
|
|
|
legally possible and permissible, transfer or cause to be transferred to Purchaser all
|
|
|
rights (and, to the extent legally possible and permissible, legal title) which Project
|
|
|
Proponent may have in those Additional Emission Reductions in respect of which
|
|
|
Purchaser has accepted such offer, within two months after acceptance of such offer
|
|
|
by Purchaser.
|
|
|
|
2.2.5.
|
To the extent Purchaser rejects such offer of Additional Emission Reductions or such
|
|
|
offer is deemed rejected by Purchaser, Project Proponent shall be free to enter into
|
|
|
contracts with other parties for the sale of such Additional Emission Reductions or to
|
|
|
otherwise deal with such Additional Emission Reductions as Project Proponent wishes.
|
|
|
|
2.2.6.
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
|
|
|
Additional Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.3.
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to
|
|
|
concluding an agreement on the purchase of such Certified Emission Reductions
|
|
|
based on the principles of this Agreement but amended in order to reflect the
|
|
|
international and/or national rules then applicable.
|
|
|
|
|
|
|
|
3.
|
Transfer
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and
|
|
|
permissible, legal title) which Project Proponent may have in a Certified Emission
|
|
|
Reduction shall have occurred upon the transfer of a CER from the register of the
|
|
|
Executive Board to a register in favor of Purchaser or such other account or register
|
|
|
Purchaser has notified to Project Proponent in writing.
|
|
|
|
|
|
|
|
4.
|
Payment
|
|
|
|
4.1.
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
|
|
|
rights in which are transferred pursuant to clause 3) shall be made on the last Business
|
|
|
Day of the month in which a 40 Business Day period, starting at the day on which
|
|
|
Purchaser has received satisfactory evidence of the transfer as provided for in Clause
|
|
|
3, has elapsed.
|
|
|
|
4.1.2.
|
All payments shall be made to the accounts from time to time be notified to the other
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 6 of 11
|
|
party in writing.
|
|
|
|
4.1.3.
|
All payments shall be made in US Dollars.
|
|
|
|
4.1.4.
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection
|
|
|
with the generation of CERs by the Project and their Registration and transfer
|
|
|
(including VAT in any jurisdiction Purchaser duly notifies Project Proponent to transfer
|
|
|
CERs as in Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
4.1.5.
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
administrative expenses according to the Kyoto Rules shall be borne by Project
|
|
|
Proponent and Purchaser in equal shares.
|
|
|
|
|
The share of the proceeds from CERs generated by the Project to be used to assist
|
|
|
developing countries that are particularly vulnerable to the adverse effects of climate
|
|
|
change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
|
|
|
Project Proponent and Purchaser in equal shares.
|
|
|
|
|
|
5.
|
Termination and Remedies
|
|
|
|
5.1.
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement
|
|
|
by written notice to the other party with immediate effect if any of the following events
|
|
|
occurs:
|
|
|
|
5.1.1.
|
The other party commits a breach of any of its obligations under this Agreement and, in
|
|
|
the case of a breach capable of being remedied, such breach remains for more than 30
|
|
|
Business Days after it has been requested in writing by the Non-defaulting Party to
|
|
|
remedy the breach; or
|
|
|
|
5.1.2.
|
The other party goes into liquidation (whether voluntary or otherwise), is unable to pay
|
|
|
its debts as they fall due, is wound up, makes any compromise, composition or other
|
|
|
arrangement with its creditors generally, or becomes subject to any administration
|
|
|
order.
|
|
|
|
5.2.
|
Force Majeure
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations
|
|
|
under the Agreement for reasons of Force Majeure, such obligation shall be suspended
|
|
|
to the extent and for as long as such obligation is affected by Force Majeure and the
|
|
|
impeded party shall be entitled to such extension of time as may be reasonably
|
|
|
necessary.
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an
|
|
|
event of Force Majeure that is likely to impede its performance under the Agreement
|
|
|
within 5 Business Days after having obtained knowledge of any such event. Either
|
|
|
party shall likewise advise the other of the date when such event ended and shall also
|
|
|
specify the re-determined time by which the performance of its obligations hereunder is
|
|
|
to be completed.
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of
|
|
|
determining any further appropriate action if a condition of Force Majeure is to continue
|
|
|
after 20 Business Days from the date of giving notice thereof.
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 7 of 11
|
|
for any delay in performing hereunder if such delay is caused by Force Majeure;
|
|
|
provided, however, that the non-impeded party shall be entitled to terminate such part
|
|
|
of the Agreement that remains unfulfilled, if the condition of Force Majeure is to
|
|
|
continue after 6 months from the date of giving notice thereof.
|
|
|
|
|
|
6.
|
Change in Circumstances
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable
|
|
|
standards relating to the Baseline methodology and/or the applicable criteria for
|
|
|
Verification and Certification of the resulting Emission Reductions) occurs which
|
|
|
substantially affects the Project, the parties to this Agreement shall enter into
|
|
|
negotiations with a view to adapt the Project and its implementation or any relevant
|
|
|
provision of this Agreement, as may be necessary or useful. A change in
|
|
|
circumstances shall in no event be considered substantially affecting the Project if at
|
|
|
least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve
|
|
|
the generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
|
|
|
|
|
7.
|
Conditions Precedent
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions
|
|
|
precedent:
|
|
|
|
|
1. Conclusion of a binding agreement with the Host Country.
|
|
|
|
|
|
|
|
8.
|
Miscellaneous
|
|
|
|
8.1.
|
Assignment and subcontracting
|
|
|
Neither party shall, without the written consent of the other party, assign or transfer the
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other
|
|
|
person.
|
|
|
|
8.2.
|
Confidentiality and Disclosure
|
|
|
The parties shall treat as confidential all information obtained as a result of entering
|
|
|
into or performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in
|
|
|
those circumstances where disclosure is required in order to comply with any laws or
|
|
|
regulations, including without limitations the Kyoto Rules.
|
|
|
|
8.3.
|
Notices
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 8 of 11
|
|
Any communications to be made under or in connection with this Agreement shall be
|
|
|
made in writing (including by facsimile) to the address or facsimile number, from time to
|
|
|
time designated by the party to whom the communication is to be made to the other
|
|
|
party for that purpose. The address and facsimile number so designated are set out in
|
|
|
Annex
[I]
hereto.
A
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by
|
|
|
the recipient, if sent by facsimile, when a transmission report shows that the facsimile
|
|
|
has been sent.
|
|
|
|
8.4.
|
Entire Agreement
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to
|
|
|
the subject matter hereof, and no prior or contemporaneous oral or written agreement
|
|
|
or understanding shall be deemed to constitute a part of this Agreement, unless
|
|
|
expressly referred to herein, or attached hereto, or specifically incorporated by
|
|
|
reference herein. The Annexes and schedules to this Agreement constitute integral
|
|
|
parts of this Agreement and shall therefore be deemed part of this Agreement.
|
|
|
|
|
|
8.5.
|
Amendments
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
8.6.
|
Costs and Expenses
|
|
|
|
|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
preparation, execution and carrying into effect of this Agreement.
|
|
|
|
8.7.
|
Severability
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
|
|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
|
|
|
8.8.
|
Governing law
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
excluding its rules on conflicts of laws.
|
|
|
|
8.9.
|
Jurisdiction
|
|
|
|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having
|
|
|
jurisdiction in commercial matters for England with regard to all disputes arising out of
|
|
|
or in connection with this Agreement, its violation, termination or nullity.
|
|
|
|
8.10.
|
Counterparts
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the English
|
|
|
and the Vietnamese version, the English version will prevail.
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 9 of 11
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above, this 10
th
day of June 2008, in the presence of:
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President - CEO : Dr. Tri Vu Truong
|
|
|
|
Project Proponent:
|
|
|
|
|
|
|
|
|
|
|
DO ANH TUAN
|
|
|
General Director: Do Anh Tuan
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
|
|
BUI THI LAN HUONG
|
LE VAN TAN
|
|
MSc. Bui Thi Lan Huong
|
Le Van Tan-Engineer
|
|
Biology Energy-Waste Treatment
|
Viet nam
|
|
(Viet nam) Ltd.
|
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 10 of 11
ANNEX I:
1. The salient features of Ban Nhung Hydro Power Project at Tran Ninh Commune, Van Lang District in Lang son Province, Vietnam.
|
No
|
Parameters
|
Symbols
|
Units
|
Value
|
|
1
|
Catchment area
|
F
|
km
2
|
2450
|
|
2
|
Long-term average annual rainfall
|
Xo
|
mm
|
1350
|
|
3
|
Average flow
|
Q
0
|
m
3
/s
|
45,87
|
|
4
|
Total amount of average annual flow
|
W
0
|
10
6
m3
|
1446,6
|
|
5
|
Specific runoff
|
M
0
|
l/s.km
2
|
18,72
|
|
6
|
Normal water level
|
MNDBT
|
m
|
191,5
|
|
7
|
Dead water level
|
MNC
|
m
|
190,5
|
|
8
|
Surface area with normal water level
|
F
|
Km
2
|
2,04
|
|
9
|
Designed head
|
Htt
|
m
|
17,0
|
|
10
|
Designed discharge
|
Q
TK
|
m3 /s
|
77,0
|
|
11
|
Installation capacity
|
Nlm
|
MW
|
11,0
|
|
12
|
Firm capacity P=85%
|
Ndb
|
MW
|
0,81
|
|
13
|
Number of unit
|
z
|
|
2
|
|
14
|
Estimated Annual Electricity Generation
|
Eo
|
10
6
kWh
|
42,40
|
|
15
|
Estimated Annual Operation Hours
|
h
sd
|
h
|
3855
|
|
16
|
Annual estimation of the emission
reduction, tCO
2
eq
|
CERs
|
tCO
2
eq
|
24592
|
|
17
|
Resettlement
|
|
person
|
20
|
|
18
|
Compensation (land, tree, farm, property,
etc...)
|
|
10
6
USD
|
0,437
|
|
19
|
It is run off river hydropower plant
|
|
|
Yes
|
|
20
|
New hydropower project with reservoirs
having power densities (installed capacity
devided by the surface area at full reservoir
level) greater than 4 W/m
2
.
|
|
|
|
2. Project time schedule.
- Year of 2008: Main work as construction of
left side dam
will be started in Octorber,
- Year of 2009: construction of
right side dam
- Year of 2010: Operation of Unit No 1 and No II.
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 11 of 11
ANNEX 2:
Work flow of CDM Activity
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 1 of 11
Exhibit 10.11
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, QC H3C1L5
Canada
Tel : 5148763907
Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO : Dr. Tri Vu Truong
and
(the " NAM XAY NOI Hydro Power – CDM Project Proponent”)., henceforth
“VIETNAM PROJECT PROPONENT”
Owner:
LAO CAI ENERGY & RESOURCES INVESTERMENT JOIN STOCK COMPANY, VIET NAM
Address: P201; CT1-2; Me Tri Ha, Tu Lien District, Ha noi
Telephone: (084) 4 7820401.
Fax : (084) 4 7820424
Email:
Vanphonglaocai@yahoo.com
; Sondp79@gmail.com
General Director: Tran Quoc Viet
Interpretation and Definitions
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the meaning set forth in the definitions below.
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
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Emission Reduction Purchase Agreement
Page 2 of 11
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Additional
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Means any Certified Emission Reduction (CER) generated by the Project
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Emission
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that is in excess of [50,000] Certified Emission Reductions (CERs) per
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Reduction:
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annum.
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Agreement:
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Means this Emission Reduction Purchase Agreement.
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Annex B Countries:
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Means the countries listed in Annex B to the Kyoto Protocol having
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committed themselves to reduce or limit their GHG emissions.
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Annex I Countries:
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Means the parties to the UNFCCC listed in Annex I thereto (Annex I
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consists of industrial countries and countries in transition).
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Anticipated
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Means up to [50,000] Certified Emission Reductions (CERs) per annum
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Emission
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during the Crediting Period, anticipated to be generated by the Project
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Reduction:
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and calculated in accordance with the Kyoto Rules.
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Baseline:
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Means the scenario that reasonably represents the anthropogenic
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emissions of GHG that would occur in the Host Country in the absence of
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the Project, determined in accordance with the Kyoto Rules.
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Business Day:
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Means a day on which banks are open for general business in Vietnam.
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Carbon Dioxide
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Means a metric measure used to compare the emissions of various GHG
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Equivalent:
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based upon their global warming potential.
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Certification:
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Means the written confirmation by an Operational Entity of an Emission
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Reduction resulting from a CDM project and having passed the
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Verification procedure according to the Kyoto Rules.
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Certified Emission
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Means a unit of Emission Reduction issued pursuant to Article 12 of the
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Reduction (CER):
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Kyoto Protocol and the requirements of the Kyoto Rules (including
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Certification), equal to one metric ton of Carbon Dioxide Equivalent
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resulting from a CDM project.
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Clean Development
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Means the flexible mechanism established by Article 12 of the Kyoto
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Mechanism (CDM) :
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Protocol providing for Annex I Countries to implement projects that reduce
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emissions in non-Annex I Countries in return for CERs and assist the non-
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Annex I Countries in achieving sustainable development and contributing
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to the ultimate objective of the UNFCCC.
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Crediting Period:
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Means, until December 31, 2026.
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Emission
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Means reduction in emission of GHG achieved, calculated in accordance
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Reduction:
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with the Kyoto Rules.
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Executive Board:
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Means the international authority elected by the representatives of the
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parties to the Kyoto Protocol responsible for monitoring the CDM process.
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First Commitment
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Means 10
th
June 2008 until December 31, 2012
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Period:
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Force Majeure:
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Means any circumstance or condition beyond the control of either party to
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this Agreement affecting the performance of its obligations under this
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Agreement including in particular wars, insurrection, natural disaster or
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equivalent circumstances.
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Greenhouse Gases
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Means the six gases listed in Annex A to the Kyoto Protocol.
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(GHG):
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Host Country:
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Vietnam
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Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
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Emission Reduction Purchase Agreement
Page 3 of 11
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Kyoto Protocol:
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Means the protocol to the UNFCCC adopted at the third conference of the
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parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
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Kyoto Rules:
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Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
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Marrakesh Accords, any relevant decisions, guidelines, modalities and
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procedures made pursuant to them and/or any succeeding international
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agreements as amended and/or supplemented from time to time and
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which include those rules specifically required to be met for the issuing
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and transfer of CERs.
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Letter of Approval
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Means a binding approval of the Project by the Host Country together with
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(LOA):
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an approval of the transfer of CERs.
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Monitoring Report:
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Means an annual report to be provided by Owner setting out the total
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number of Emission Reductions generated by the Project during the
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previous year according to the Kyoto Rules, international Monitoring rules
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and the PDD.
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Monitoring:
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Means the collection and record of data allowing the assessment of
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reductions in GHG emissions resulting from the Project conducted in
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accordance with the Kyoto Rules.
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Operational Entity:
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Means an independent entity accredited by the Executive Board being the
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executive body for CDM and inter alias responsible for determining
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whether a project and the resulting Emission Reductions meet the
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requirements of Article 12 of the Kyoto Protocol.
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Project Design
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Means a detailed description of the Project to be submitted for Validation
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Document (PDD):
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prepared in accordance with the Kyoto Rules, the UFG and the Directive
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and attached as Annex III. The Purchaser will be responsible for providing
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PDD development for Registration of the Project.
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Project:
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Means the proposed CDM project described in the PDD and other
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documents describing the implementation and economics of the Project
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attached in Annex IV.
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Registration:
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Means the official registration of a CDM project by the Executive Board
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according to the Kyoto Rules.
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UNFCCC:
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Means the United Nations Framework Convention on Climate Change
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adopted in New York on May 9, 1992.
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Unit Price:
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Means the price payable by Purchaser to Project Proponent per Certified
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Emission Reduction (CER) unit:
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The purchase unit price paid by EcoloCap Solutions Canada Inc. to Viet
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Nam Project Proponent for the CER is fixed at (12)$US/CER, less
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applicable tax and sale commission, for the year 2008 to 2012 and a new
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agreement for purchase unit price will be negotiated for the two periods of
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extension.
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The amount paid to the Viet Nam Project Proponent for the total certified
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CER generated from this project is fixed at (85)% of the total value of
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CER at this above mentioned purchase price ($(12)US), less commission,
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applicable tax and the one time reimbursement of an amount of
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$(75,000)USD to Ecolocap Solutions inc for funding the CDM process.
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TERM:
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Ecolocap Solutions inc will purchase certified CER generated by this
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project for the year 2008 to 2012 with options of extension for two others
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of 7 years, the period 2013-2026, under same terms and conditions.
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Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
|
Emission Reduction Purchase Agreement
Page 4 of 11
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Validation:
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Means the assessment of the PDD, including the Baseline, by an
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Operational Entity, determining its compliance with the Kyoto Rules.
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Verification:
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Means the periodic independent review and ex post determination of the
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monitored reductions in GHG emissions that the Project has achieved
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during a specified period of time by an Operational Entity in accordance
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with the Kyoto Rules. The project's owner will be Responsible for
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providing periodical monitoring.
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Unless otherwise specified, references to clauses are to clauses of this Agreement, references to
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legal provisions are references to such provisions as in effect from time to time, use of a gender
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includes any gender and use of the plural includes the singular and vice versa where the context
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requires.
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All headings and titles are inserted for convenience only and shall not be deemed part of this
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Agreement or taken into consideration in its interpretation.
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1. Preamble
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The Project is located on the territory of the Host Country.
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2.
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Contractual Obligations
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2.1.
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Anticipated Emission Reductions
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2.1.1.
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Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
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accordance with the PDD and other documents describing the implementation and
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economics of the project attached in Annex IV at its own risk and expense. It is hereby
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acknowledged and agreed between the parties hereto that Purchaser does not warrant
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the generation of, and is not obliged to generate, any CERs, whether by the Project or
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otherwise.
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2.1.2.
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If the Project generates CERs, during the crediting period Project Proponent shall, to
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the extent it is legally possible and permissible, exclusively transfer or cause to be
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transferred to Purchaser all rights (and, to the extent legally possible and permissible,
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legal title) which Project Proponent may have in the Anticipated Emission Reductions
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generated during the Crediting Period to Purchaser.
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2.1.3.
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Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
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Reduction generated by the Project and in which the Project Proponent's rights are
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transferred to Purchaser in accordance with clause 3 below.
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2.2.
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Additional Emission Reductions
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2.2.1.
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If Additional Emission Reductions are generated by the Project during the Crediting
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Period, Project Proponent shall offer any Additional Emission Reductions to Purchaser
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subject to the terms and conditions of this Agreement and at a price per Additional
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Emission Reduction equal to the Unit Price. If Purchaser does not wishes to exercise
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the purchase option then Project Proponent may deal with the Additional Emission
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Reductions as it wishes.
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Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
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Emission Reduction Purchase Agreement
Page 5 of 11
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2.2.2.
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Additional Emission Reductions offer by the Purchaser shall be made as soon as
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possible after such Additional Emission Reductions have been generated, but no later
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than December 31 of the year subsequent to the calendar year in which such
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Additional Emission Reductions have been generated.
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2.2.3.
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Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to
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Project Proponent within one month after receipt of such offer, whether and to what
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extent it accepts the offer. If Purchaser does not respond within this deadline the offer
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shall be deemed to be rejected by Purchaser.
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2.2.4.
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To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is
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legally possible and permissible, transfer or cause to be transferred to Purchaser all
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rights (and, to the extent legally possible and permissible, legal title) which Project
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Proponent may have in those Additional Emission Reductions in respect of which
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Purchaser has accepted such offer, within two months after acceptance of such offer
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by Purchaser.
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2.2.5.
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To the extent Purchaser rejects such offer of Additional Emission Reductions or such
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offer is deemed rejected by Purchaser, Project Proponent shall be free to enter into
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contracts with other parties for the sale of such Additional Emission Reductions or to
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otherwise deal with such Additional Emission Reductions as Project Proponent wishes.
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2.2.6.
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Purchaser shall pay to Project Proponent a price equal to the Unit Price for each
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Additional Emission Reduction in respect of which Purchaser has accepted such offer.
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2.3.
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Emission Reductions generated after the Crediting Period
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If the Project generates any Certified Emission Reductions after the Crediting Period,
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Purchaser shall enter into negotiations with Project Proponent with a view to
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concluding an agreement on the purchase of such Certified Emission Reductions
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based on the principles of this Agreement but amended in order to reflect the
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international and/or national rules then applicable.
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3.
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Transfer
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Transfer to Purchaser of all the rights (and, to the extent legally possible and
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permissible, legal title) which Project Proponent may have in a Certified Emission
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Reduction shall have occurred upon the transfer of a CER from the register of the
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Executive Board to a register in favor of Purchaser or such other account or register
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Purchaser has notified to Project Proponent in writing.
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4.
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Payment
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4.1.
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Payment for Certified Emission Reductions
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4.1.1.
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Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the
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rights in which are transferred pursuant to clause 3) shall be made on the last Business
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Day of the month in which a 40 Business Day period, starting at the day on which
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Purchaser has received satisfactory evidence of the transfer as provided for in Clause
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3, has elapsed.
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Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
|
Emission Reduction Purchase Agreement
Page 6 of 11
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4.1.2.
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All payments shall be made to the accounts from time to time and tobe notified to the
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other party in writing.
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4.1.3.
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All payments shall be made in US Dollars.
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4.1.4.
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Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection
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with the generation of CERs by the Project and their Registration and transfer
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(including VAT in any jurisdiction Purchaser duly notifies Project Proponent to transfer
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CERs as in Clause 3, if applicable) shall be borne by Project Proponent and purchaser.
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4.1.5.
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The share of the proceeds from CERs generated by the Project to be used to cover
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administrative expenses according to the Kyoto Rules shall be borne by Project
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Proponent and Purchaser in equal shares .
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The share of the proceeds from CERs generated by the Project to be used to assist
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developing countries that are particularly vulnerable to the adverse effects of climate
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change to meet the costs of adaptation according to the Kyoto Rules shall be borne by
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Project Proponent and Purchaser in equal shares.
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5.
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Termination and Remedies
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5.1.
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Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement
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by written notice to the other party with immediate effect if any of the following events
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occurs:
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5.1.1.
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the other party commits a breach of any of its obligations under this Agreement and, in
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the case of a breach capable of being remedied, such breach remains for more than 30
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Business Days after it has been requested in writing by the Non-defaulting Party to
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remedy the breach; or
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5.1.2.
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the other party goes into liquidation (whether voluntary or otherwise), is unable to pay
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its debts as they fall due, is wound up, makes any compromise, composition or other
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arrangement with its creditors generally, or becomes subject to any administration
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order.
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5.2.
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Force Majeure
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Should either party be impeded wholly or in part from fulfilling any of its obligations
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under the Agreement for reasons of Force Majeure, such obligation shall be suspended
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to the extent and for as long as such obligation is affected by Force Majeure and the
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impeded party shall be entitled to such extension of time as may be reasonably
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necessary.
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Either party shall notify the other party of the existence and date of beginning of an
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event of Force Majeure that is likely to impede its performance under the Agreement
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within 5 Business Days after having obtained knowledge of any such event. Either
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party shall likewise advise the other of the date when such event ended and shall also
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specify the re-determined time by which the performance of its obligations hereunder is
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to be completed.
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Project Proponent and Purchaser shall consult with each other with a view of
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determining any further appropriate action if a condition of Force Majeure is to continue
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after 20 Business Days from the date of giving notice thereof.
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Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
|
Emission Reduction Purchase Agreement
Page 7 of 11
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Neither party shall be liable for damages or have the right to terminate this Agreement
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for any delay in performing hereunder if such delay is caused by Force Majeure;
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provided, however, that the non-impeded party shall be entitled to terminate such part
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of the Agreement that remains unfulfilled, if the condition of Force Majeure is to
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continue after 6 months from the date of giving notice thereof.
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6.
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Change in Circumstances
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If any change in circumstances (i.e. a change of scientific basics or applicable
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standards relating to the Baseline methodology and/or the applicable criteria for
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Verification and Certification of the resulting Emission Reductions) occurs which
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substantially affects the Project, the parties to this Agreement shall enter into
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negotiations with a view to adapt the Project and its implementation or any relevant
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provision of this Agreement, as may be necessary or useful. A change in
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circumstances shall in no event be considered substantially affecting the Project if at
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least 50% of the Anticipated Emission Reductions can be generated.
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The parties to this Agreement shall cooperate and make their best efforts to enable the
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continuation of the Project in accordance with the new circumstances and to achieve
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the generation and transfer of the Anticipated Emission Reductions.
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If any of the documents related to the Project and submitted at any time during the term
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of this Agreement fails to be approved by such authority whose approval is required
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under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
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standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
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discuss whether or not the relevant documents are to be revised and resubmitted.
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7.
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Conditions Precedent
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This Agreement shall enter into force upon satisfaction of the following conditions
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precedent:
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1. Conclusion of a binding agreement with the Host Country.
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8.
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Miscellaneous
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8.1.
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Assignment and subcontracting
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Neither party shall, without the written consent of the other party, assign or transfer the
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Agreement or the benefits or obligations thereof or any part thereof to any other
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person.
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8.2.
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Confidentiality and Disclosure
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The parties shall treat as confidential all information obtained as a result of entering
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into or performing this Agreement which relates to the provisions of this Agreement, the
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negotiations relating to this Agreement and the subject matter of this Agreement.
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No party shall disclose any such confidential information to any third party, except in
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those circumstances where disclosure is required in order to comply with any laws or
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regulations, including without limitations the Kyoto Rules.
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Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
|
Emission Reduction Purchase Agreement
Page 8 of 11
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8.3.
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Notices
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Any communications to be made under or in connection with this Agreement shall be
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made in writing (including by facsimile) to the address or facsimile number, from time to
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time designated by the party to whom the communication is to be made to the other
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party for that purpose. The address and facsimile number so designated are set out in
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Annex
[I]
hereto.
A
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Communication will only be effected, if sent by mail, when delivered to or rejected by
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the recipient, if sent by facsimile, when a transmission report shows that the facsimile
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has been sent.
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8.4.
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Entire Agreement
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This Agreement embodies the whole and only agreement of the parties with respect to
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the subject matter hereof, and no prior or contemporaneous oral or written agreement
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or understanding shall be deemed to constitute a part of this Agreement, unless
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expressly referred to herein, or attached hereto, or specifically incorporated by
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reference herein. The Annexes and schedules to this Agreement constitute integral
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parts of this Agreement and shall therefore be deemed part of this Agreement.
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|
8.5.
|
Amendments
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
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8.6.
|
Costs and Expenses
|
|
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|
Each party shall bear its own costs and expenses in relation to the negotiation,
|
|
|
preparation, execution and carrying into effect of this Agreement.
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8.7.
|
Severability
|
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|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in
|
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|
any respect, the remaining parts or provisions shall not be affected or impaired. Any
|
|
|
deficiency in the Agreement resulting there from shall be amended by way of
|
|
|
interpretation of the Agreement having due regard to the parties intent.
|
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|
8.8.
|
Governing law
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law
|
|
|
excluding its rules on conflicts of laws.
|
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|
8.9.
|
Jurisdiction
|
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|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having
|
|
|
jurisdiction in commercial matters for England with regard to all disputes arising out of
|
|
|
or in connection with this Agreement, its violation, termination or nullity.
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|
8.10.
|
Counterparts
|
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|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the English
|
|
|
and the Vietnamese version, the English version will prevail .
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 9 of 11
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above, this 10
th
day of June, 2008, in the presence of:
|
Purchaser:
|
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|
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|
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|
|
|
|
DR. TRI VU TRUONG
|
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|
President-CEO : Dr. Tri Vu Truong
|
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Project Proponent:
|
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|
TRAN QUOC VIET
|
|
|
General Director: Tran Quoc Viet
|
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Witness No 1
|
Witness No 2
|
|
|
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|
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|
|
BUI THI LAN HUONG
|
LE VAN TAN
|
|
MSc. Bui Thi Lan Huong
|
Le Van Tan-Engineer
|
|
Biology Energy-Waste Treatment
|
Vietnam
|
|
(Vietnam) Ltd.
|
|
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 10 of 11
ANNEX I:
1. The salient features of Nam Xay Noi Hydro Power Project at Nam Xay Ward, Van Ban District in Lao cai Province, Vietnam.
|
No
|
Parameters
|
Symbols
|
Units
|
Terrace
1A
|
Terrace
1B
|
|
1
|
Catchment area
|
F
|
km
2
|
28,0
|
38,0
|
|
2
|
Long-term average annual rainfall
|
Xo
|
mm
|
2300
|
2300
|
|
3
|
Average flow
|
Q
0
|
m
3
/s
|
1,28
|
1,80
|
|
4
|
Total amount of average annual flow
|
W
0
|
10
6
m
3
|
40,36
|
56,76
|
|
5
|
Specific runoff
|
M
0
|
l/s.km
2
|
40
|
40
|
|
6
|
Normal water level
|
MNDBT
|
m
|
1340
|
930
|
|
7
|
Dead water level
|
MNC
|
m
|
1336
|
927
|
|
8
|
Surface area with normal water level
|
F
|
Km
2
|
2.9
|
1.0
|
|
9
|
Designed head
|
Htt
|
m
|
373.48
|
208,84
|
|
10
|
Designed discharge
|
Q
TK
|
m3
/s
|
2,8
|
3,6
|
|
11
|
Installation capacity
|
Nlm
|
MW
|
8,0
|
6,4
|
|
12
|
Firm capacity P=85%
|
Ndb
|
MW
|
0,96
|
0,74
|
|
13
|
Number of unit
|
z
|
|
02
|
02
|
|
14
|
Estimated Annual Electricity Generation
|
Eo
|
10
6
kWh
|
25,63
|
20,6
|
|
15
|
Estimated Annual Operation Hours
|
h
sd
|
h
|
3203
|
3219
|
|
16
|
Annual estimation of the emission
reduction, tCO
2
eq
|
CERs
|
tCO
2
eq
|
14865,4
|
11948
|
|
17
|
Resettlement
|
|
person
|
0
|
0
|
|
18
|
Compensation (land, tree, farm, property,
etc...)
|
|
10
6
USD
|
0.30
|
0.26
|
|
19
|
It is run off river hydropower plant
|
|
|
Day &
night
|
Day &
night
|
|
20
|
New hydropower project with reservoirs
having power densities (installed capacity
devided by the surface area at full reservoir
level) greater than 4 W/m
2
.
|
|
|
|
|
2. Project time schedule.
- Year of 2008: Compensation and clearing of the ground 1B and construction of the access road to the plant will be carried out by the 2
nd
quarter of 2008.
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 11 of 11
- Year of 2009: Preparing work and construction of Nam Xay Noi 1B
- Year of 2010: Operation of 2 units of Nam Xay Noi 1B by the 2
nd
quarter of 2010.
-Compensation and clearing of the ground 1A will be finished by the end of the 2
nd
quarter of 2010.
- Year of 2011: Preparing work and construction of Nam Xay Noi 1A
- Year of 2012: Operation of 2 units of Nam Xay Noi 1A by the 2
nd
quarter of 2012
Initial
VN Hydro Power CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-5:
Emission Reduction Purchase Agreement
Page 1 of 17
Exhibit 10.12
EMISSION REDUCTION PURCHASE AGREEMENT(ERPA)
[Chinese translation](ERPA)
XISC Power Generation Using Waste Heat
from Sintering System (WHR)
[Chinese translation]
Between
(the "Purchaser")[Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
President-CEO: Dr. Tri Vu Truong
(the " Seller"), henceforth “PROJECT PROPONENT” [Chinese translation]
Owner: Xiangtan Iron and Steel Group Co., Ltd (“XISC”) [Chinese translation]
Address: Yuetang, Xiangtan City, Hunan, 411101, P. R. China [Chinese translation]-
Telephone: 8653018, 13707328182
Fax : 0732-8628978
Email: sheny3018@sohu.com
General Director: Liu, Jie [Chinese translation]
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 2 of 17
Interpretation and Definitions [Chinese translation]
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the meaning set forth in the definitions below.
[Chinese translation]:
Agreement
[Chinese translation]
|
Means this Emission Reduction Purchase Agreement (ERPA).
[Chinese translation]
|
Annex B Countries
[Chinese translation]
|
Means the countries listed in Annex B to the Kyoto Protocol having
committed themselves to reduce or limit their GHG emissions.
[Chinese translation]
|
Annex I Countries
[Chinese translation]
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
consists of industrial countries and countries in transition).
[Chinese translation]
|
|
Baseline/
[Chinese translation]
|
Means the scenario that reasonably represents the anthropogenic
emissions of GHG that would occur in the Host Country in the absence of
the Project, determined in accordance with the Kyoto Rules.
[Chinese translation]
|
Business Day
[Chinese translation]
|
Means a day on which banks are open for general business in China.
[Chinese translation]
|
Carbon Dioxide
Equivalent
[Chinese translation]
|
Means a metric measure used to compare the emissions of various GHG
based upon their global warming potential.
[Chinese translation]
|
Certification
[Chinese translation]
|
Means the written confirmation by an Operational Entity of an Emission
Reduction resulting from a CDM project and having passed the
Verification procedure according to the Kyoto Rules.
[Chinese translation]
|
Certified Emission
Reduction (CER)
[Chinese translation]
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
Kyoto Protocol and the requirements of the Kyoto Rules (including
Certification), equal to one metric ton of Carbon Dioxide Equivalent
resulting from a CDM project.
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 3 of 17
Clean Development
Mechanism (CDM)
[Chinese translation]
|
Means the flexible mechanism established by Article 12 of the Kyoto
Protocol providing for Annex I Countries to implement projects that
reduce emissions in non-Annex I Countries in return for CERs and assist
the non-Annex I Countries in achieving sustainable development and
contributing to the ultimate objective of the UNFCCC.
[Chinese translation]
|
Crediting Period
[Chinese translation]
|
If Kyoto Protocol ceases to have effect or is terminated before the
expiration of any crediting period, the purchasing agreement will remain
valid for purchasing obligations prior to this termination date, however
purchasing obligations beyond this termination date will automatically
cease.
[Chinese translation]
|
Emission Reduction
[Chinese translation]
|
Means reduction in emission of GHG achieved, calculated in accordance
with the Kyoto Rules.
[Chinese translation]
|
Executive Board
[Chinese translation]
|
Means the international authority elected by the representatives of the
parties to the Kyoto Protocol responsible for monitoring the CDM
process.
[Chinese translation]
|
First Commitment
Period
[Chinese translation]
|
Means July 14, 2008 until December 31, 2012.
[Chinese translation]
|
Force Majeure
[Chinese translation]
|
Means any circumstance or condition beyond the control of either party to
this Agreement affecting the performance of its obligations under this
Agreement including in particular wars, insurrection, natural disaster or
equivalent circumstances.
[Chinese translation]
|
Greenhouse Gases
(GHG)
[Chinese translation]
|
Means the six gases listed in Annex A to the Kyoto Protocol.
[Chinese translation]
|
Host Country
[Chinese translation]
|
China [Chinese translation]
|
Kyoto Protocol
[Chinese translation]
|
Means the protocol to the UNFCCC adopted at the third conference of the
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 4 of 17
Kyoto Rules
[Chinese translation]
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
Marrakech Accords, any relevant decisions, guidelines, modalities and
procedures made pursuant to them and/or any succeeding international
agreements as amended and/or supplemented from time to time and which
include those rules specifically required to be met for the issuing and
transfer of CERs. /UNFCCC
[Chinese translation]
|
Letter of Approval
(LOA
)
[Chinese
translation]
|
Means a binding approval of the Project by the DNA of the Host Country
together with an approval of the transfer of CERs.
[Chinese translation]
|
Monitoring Report
[Chinese translation]
|
Means an annual report to be provided by Owner setting out the total
number of Emission Reductions generated by the Project during the
previous year according to the Kyoto Rules, international Monitoring
rules and the PDD.
[Chinese translation]
|
Monitoring
[Chinese translation]
|
Means the collection and record of data allowing the assessment of
reductions in GHG emissions resulting from the Project conducted in
accordance with the Kyoto Rules.
[Chinese translation]
|
Designated
Operational
Entity(DOE)
[Chinese translation]
|
Means an independent entity accredited by the Executive Board being the
executive body for CDM and inter alias responsible for determining
whether a project and the resulting Emission Reductions meet the
requirements of Article 12 of the Kyoto Protocol.
[Chinese translation]
|
Project Design
Document (PDD)
[Chinese translation]
|
Means a detailed description of the Project to be submitted for Validation
attached here in Annex []. The Purchaser will be responsible for providing
PDD development for Registration of the Project.
[Chinese translation]
|
Project
[Chinese translation]
|
Means the proposed CDM project described in the PDD and other
documents describing the implementation and economics of the Project
attached in Annex []
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 5 of 17
Registration
[Chinese translation]
|
Means the official registration of a CDM project by the Executive Board
according to the Kyoto Rules.
[Chinese translation]
|
|
UNFCCC
|
Means the United Nations Framework Convention on Climate Change
adopted in New York on May 9, 1992.
[Chinese translation]
|
Unit Price
[Chinese translation]
|
Means the price payable by Purchaser to Project Proponent per Certified
Emission Reduction (CER) unit:
[Chinese translation]:
The purchase unit price paid by EcoloCap Solutions Canada Inc to
Chinese Project Proponent for the CER is fixed at (9.6)Euro for the year
2009 to 2012; both parties will renegotiate the ERPA for the extension
period (2013-2026).
[Chinese translation]
The amount paid to the Chinese Project Proponent for the total certified
CER generated from this project is fixed at (80)% of the total value of
CER at this above mentioned purchase price ((9.6)Euro) “Total revenues”
is defined as the amount of: (9.6)Euro x total CER. Ecolocap Solutions
Canada Inc. will get (20)% of the total revenues.
[Chinese translation]
TERM: [Chinese translation]
Project proponent agrees by this ERPA to sell CERs generated by the
project to the Purchaser for the year 2009 to 2012 and give the Purchaser
the right of first refusal to renegotiate the ERPA for the extension period
2013-2026
[Chinese translation]
|
Validation
[Chinese translation]
|
Means the assessment of the PDD, including the Baseline, by an
Operational Entity, determining its compliance with the Kyoto Rules.
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 6 of 17
Verification
[Chinese translation]
|
Means the periodic independent review and ex post determination of the
monitored reductions in GHG emissions that the Project has achieved
during a specified period of time by an Operational Entity in accordance
with the Kyoto Rules. The project's owner will be Responsible for
providing periodical monitoring.
[Chinese translation]
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to legal
|
|
provisions are references to such provisions as in effect from time to time, use of a gender includes any
|
|
gender and use of the plural includes the singular and vice versa where the context requires.
|
|
[Chinese translation]
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement or taken into consideration in its interpretation.
|
|
[Chinese translation]
|
|
|
|
|
|
1.
|
|
Preamble [Chinese translation]
|
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
|
[Chinese translation]
|
|
|
|
2.
|
|
Contractual Obligations [Chinese translation]
|
|
|
|
2.1.
|
|
Certified Emission Reductions [Chinese translation]
|
|
|
|
2.1.1.
|
|
The Purchaser will purchase the total certified emission reduction, the number of which is
|
|
|
|
monitored and accepted by the DOE.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.2.
|
|
If the Project generates CERs, during the crediting period Project Proponent shall, to the extent
|
|
|
|
it is legally possible and permissible, exclusively transfer or cause to be transferred to
|
|
|
|
Purchaser all rights (and, to the extent legally possible and permissible, legal title) which
|
|
|
|
Project Proponent may have in the Anticipated Emission Reductions generated during the
|
|
|
|
Crediting Period to Purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Certified Emission Reduction
|
|
|
|
generated by the Project and in which the Project Proponent's rights are transferred to
|
|
|
|
Purchaser in accordance with clause 3 below.
|
|
|
|
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 7 of 17
|
2.2.
|
|
Emission Reductions generated after the Crediting Period [Chinese translation]
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding an
|
|
|
|
agreement on the purchase of such Certified Emission Reductions based on the principles of
|
|
|
|
this Agreement but amended in order to reflect the international and/or national rules then
|
|
|
|
applicable.
|
|
|
|
[Chinese translation]
|
|
|
|
3.
|
|
Transfer [Chinese translation]
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible,
|
|
|
|
legal title) which Project Proponent may have in a Certified Emission Reduction shall have
|
|
|
|
occurred upon the transfer of a CER from the register of the Executive Board to a register in
|
|
|
|
favor of Purchaser or such other account or register Purchaser has notified to Project
|
|
|
|
Proponent in writing.
|
|
|
|
[Chinese translation]
|
|
|
|
4.
|
|
Payment
[Chinese translation]
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions [Chinese translation]
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the rights
|
|
|
|
in which are transferred pursuant to clause 3) shall be deposited in the project proponent’s
|
|
|
|
account within 60 Business Days after the CERs are delivered
|
|
|
|
[Chinese translation]
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified from time to time be notified to the
|
|
|
|
other party in writing [Chinese translation]
|
|
|
|
4.1.3.
|
|
All payments shall be made in Euro. [Chinese translation]
|
|
|
|
4.2.
|
|
Costs and Expenses [Chinese translation]
|
|
|
|
4.2.1.
|
|
Subject to clause 4.2.2 below, all taxes, fees, costs or other expenses in connection with the
|
|
|
|
generation of CERs by the Project and their Registration and transfer (including VAT in any
|
|
|
|
jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in Clause 3, if
|
|
|
|
applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
4.2.2.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses and to assist developing countries that are particularly vulnerable to
|
|
|
|
the adverse effects of climate change to meet the costs of adaptation according to the Kyoto
|
|
|
|
Rules shall be borne by the Purchaser.
|
|
|
|
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 8 of 17
|
|
|
Project proponent shall pay all costs and fees in connection with the project-relevant
|
|
|
|
documents preparation for use in the host country, the submission, approval, construction,
|
|
|
|
operation, maintenance and monitoring of the project activities taking place in the host
|
|
|
|
country, including but not limited to the tax, costs and expenses levied by Chinese National
|
|
|
|
Development and Reform Commission and other government authorities.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Purchaser shall pay all the costs and fees in connection with the CDM project development
|
|
|
|
abroad, including but not limited to the obtaining of any approvals from the Canada
|
|
|
|
government as required under the CDM rules, the preparation of PIN (project idea
|
|
|
|
note)/PDD(project design document), the validation, the verification/certification, and the
|
|
|
|
registration with CDM Executive Board.
|
|
|
|
[Chinese translation]
|
|
|
|
4.2.3.
|
|
All costs accrued to each of the Parties in negotiating, preparing, executing and carrying into
|
|
|
|
effect of this Agreement, shall be borne by each of the Parties themselves.
|
|
|
|
[Chinese translation]
|
|
|
|
5.
|
|
Termination and Remedies [Chinese translation]
|
|
|
|
5.1.
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events occurs:
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.1.
|
|
In case the Project is not register as a valid CDM Project activity with the CDM EB within
|
|
|
|
eighteen (18) months upon execution of the ERPA, either party shall have the right to
|
|
|
|
terminate its rights and obligations under the ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.2.
|
|
In any given Contract Period, if the verification of the Project’s CERs is delayed by 90 days
|
|
|
|
or more due to the Project Proponent ’s or Purchaser’s fault and/or misconduct, each of the
|
|
|
|
non-defaulting parties shall have the right to terminate its rights and obligations under the
|
|
|
|
ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.3.
|
|
In case the project is not commissioned within eighteen (18) months following the date of the
|
|
|
|
ERPA, each Purchaser shall have the right to terminate its rights and obligations under the
|
|
|
|
ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.4.
|
|
Upon occurrence of an event of default or any other termination event in respect of the Project
|
|
|
|
Proponent or of Purchaser as provided in the ERPA, each of the non-defaulting parties shall
|
|
|
|
have the right to terminate its rights and obligations under the ERPA.
|
|
|
|
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 9 of 17
|
5.2
|
|
Force Majeure [Chinese translation]
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent
|
|
|
|
and for as long as such obligation is affected by Force Majeure and the impeded party shall be
|
|
|
|
entitled to such extension of time as may be reasonably necessary.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event of
|
|
|
|
Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall likewise
|
|
|
|
advise the other of the date when such event ended and shall also specify the re-determined
|
|
|
|
time by which the performance of its obligations hereunder is to be completed.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining any
|
|
|
|
further appropriate action if a condition of Force Majeure is to continue after 20 Business
|
|
|
|
Days from the date of giving notice thereof.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for any
|
|
|
|
delay in performing hereunder if such delay is caused by Force Majeure; provided, however,
|
|
|
|
that the non-impeded party shall be entitled to terminate such part of the Agreement that
|
|
|
|
remains unfulfilled, if the condition of Force Majeure is to continue after 6 months from the
|
|
|
|
date of giving notice thereof.
|
|
|
|
[Chinese translation]
|
|
|
|
6.
|
|
Change in Circumstances [Chinese translation]
|
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions, or any changes related to
|
|
|
|
policy/regulations of the Chinese government) occurs which substantially affects the Project,
|
|
|
|
the parties to this Agreement shall enter into negotiations with a view to adapt the Project and
|
|
|
|
its implementation or any relevant provision of this Agreement, as may be necessary or
|
|
|
|
useful. A change in circumstances shall in no event be considered substantially affecting the
|
|
|
|
Project if at least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term of
|
|
|
|
this Agreement fails to be approved by such authority whose approval is required under the
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 10 of 17
|
|
|
Kyoto Rules or otherwise appears to be non-compliant with any relevant standards or
|
|
|
|
conditions of the Kyoto Rules, Project Proponent and Purchaser shall discuss whether or not
|
|
|
|
the relevant documents are to be revised and resubmitted.
|
|
|
|
[Chinese translation]
|
|
|
|
7.
|
|
Conditions Precedent [Chinese translation]
|
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
|
[Chinese translation]
|
|
|
|
8.
|
|
Miscellaneous [Chinese translation]
|
|
|
|
8.1.
|
|
Assignment and subcontracting [Chinese translation]
|
|
|
|
Project Proponent shall not, without the written consent of Purchaser, assign or transfer the
|
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any third party
|
|
|
|
(“assignee”) without consent of Project Proponent. However, rights and obligations between
|
|
|
|
Purchaser and Project Proponent remain the same after the transfer.
|
|
|
|
[Chinese translation]
|
|
|
|
8.2.
|
|
Confidentiality and Disclosure [Chinese translation]
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into or
|
|
|
|
performing this Agreement which relates to the provisions of this Agreement, the negotiations
|
|
|
|
relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in those
|
|
|
|
circumstances where disclosure is required in order to comply with any laws or regulations,
|
|
|
|
including without limitations the Kyoto Rules.
|
|
|
|
[Chinese translation]
|
|
|
|
8.3.
|
|
Notices [Chinese translation]
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be made in
|
|
|
|
writing (including by facsimile) to the address or facsimile number, from time to time
|
|
|
|
designated by the party to whom the communication is to be made to the other party for that
|
|
|
|
purpose. The address and facsimile number so designated are set out in Annex [] hereto.
|
|
|
|
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
P
age 11 of 17
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has been
|
|
|
|
sent.
|
|
|
|
[Chinese translation]
|
|
|
|
8.4.
|
|
Entire Agreement [Chinese translation]
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to the
|
|
|
|
subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein. The
|
|
|
|
Annexes and schedules to this Agreement constitute integral parts of this Agreement and shall
|
|
|
|
therefore be deemed part of this Agreement.
|
|
|
|
[Chinese translation]
|
|
|
|
8.5.
|
|
Amendments [Chinese translation]
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
[Chinese translation]
|
|
|
|
8.6.
|
|
Severability [Chinese translation]
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any
|
|
|
|
respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in
|
|
|
|
the Agreement resulting there from shall be amended by way of interpretation of the
|
|
|
|
Agreement having due regard to the parties intent.
|
|
|
|
[Chinese translation]
|
|
|
|
8.7.
|
|
Governing law [Chinese translation]
|
|
|
|
|
|
This Agreement shall be governed by the laws of P.R.C., but in the event that there is no
|
|
|
|
Chinese law governing a particular matter relating to this CONTRACT, reference shall be
|
|
|
|
made to general international commercial practice.
|
|
|
|
[Chinese translation]
|
|
|
|
8.8.
|
|
Jurisdiction [Chinese translation]
|
|
|
|
|
|
If any disputes arise between the parties relating to or in connection with this Agreement, the
|
|
|
|
parties shall attempt at first instance to resolve such disputes through friendly discussion. If the
|
|
|
|
disputes cannot be resolved in this manner to the satisfaction of the parties within forty-five
|
|
|
|
(45) days after the date that any party has notified the other party in writing of such disputes,
|
|
|
|
the parties shall submit the disputes to arbitration by the China International Economic and
|
|
|
|
Trade Arbitration Commission. The arbitration awards shall be final and binding on the party,
|
|
|
|
and the party agrees to be bound thereby and shall act accordingly.
|
|
|
|
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 12 of 17
The costs of arbitration will be borne by the losing party, unless otherwise determined by the arbitration award.
During the process of arbitration, except the section over which the dispute arises between the parties, this CONTRACT
shall be performed continuously.
[Chinese translation]
8.9. Counterparts [Chinese translation]
This Agreement shall be executed in four counterparts with two copies for Project Proponent and two for Purchaser.
If there are any discrepancies between the English and the Chinese version, the Chinese version will prevail.
[Chinese translation]
|
ANNEX I
|
The salient features of XISC Coke Dry Quenching Project at Xiangtan, Hunan Province,
|
|
|
China.
|
|
|
[Chinese translation]
|
|
|
|
ANNEX II
|
Schedule for Project implementation
|
|
|
[Chinese translation]
|
|
|
|
Annex III
|
Work flow of CDM Activity
|
|
|
[Chinese translation]
|
|
|
|
Annex [ ]
|
Address designated
|
|
|
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 13 of 17
PARTIES TO THE AGREEMENT [Chinese translation]
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above, this
14
th
day of July, 2008, in the presence of: [Chinese translation]
|
Purchaser: [Chinese translation]
|
|
|
|
ECOLOCAP SOLUTIONS (CANADA) INC
|
|
(ECOLOCAP)
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO: Dr. Tri Vu Truong
|
|
|
|
|
|
Project Proponent: [Chinese translation]
|
|
|
|
Xiangtan Iron and Steel Group Co., Ltd
|
|
(“XISC”)/ [Chinese translation]
|
|
|
|
|
|
|
LIU, JIE
|
|
|
|
General
Director: Liu, Jie [Chinese
translation]
|
|
|
|
|
|
|
|
|
|
|
|
|
Witness No 1
|
|
Witness No 2
|
|
[Chinese translation]
|
|
[Chinese translation]
|
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 14 of 17
ANNEX I The salient features of XISC Power Generation Using Waste Heat
from Sintering System (WHR) at Xiangtan, Hunan Province, China.
[Chinese translation]
|
No
|
Parameters
|
Units
|
Value
|
|
1
|
[Chinese
translation]
Sinter
1x180m
2
|
[Chinese translation]
|
1
|
|
2
|
[Chinese translation]
|
Nm
3
/h
|
306000
|
|
3
|
[Chinese translation]
|
[Chinese translation]
|
250/380
|
|
4
|
[Chinese translation]
|
[Chinese translation]
|
1
|
|
5
|
[Chinese translation]
|
[Chinese translation]
|
1
|
|
6
|
[Chinese translation]
|
KW
|
4500
|
|
7
|
[Chinese translation]
|
h/[Chinese
translation]
|
8000
|
|
8
|
[Chinese translation]
|
10
6
kwh/[Chinese
translation]
|
35.12
|
|
9
|
[Chinese translation]
|
10
6
kwh/[Chinese
translation]
|
29.5
|
|
10
|
[Chinese translation]
|
[Chinese translation]
|
10325
|
|
11
|
CO
2
[Chinese translation]
|
[Chinese translation]
|
27051.5
|
|
12
|
[Chinese translation]
|
[Chinese translation]
|
10
|
|
13
|
[Chinese translation]
|
[Chinese translation]
|
|
|
14
|
[Chinese translation]
|
[Chinese translation]
|
|
|
15
|
[Chinese translation]
|
[Chinese translation]
|
|
|
16
|
[Chinese translation]
|
[Chinese translation]
|
|
|
17
|
[Chinese translation]
|
|
|
|
18
|
[Chinese translation]
|
|
|
|
19
|
[Chinese translation]
|
[Chinese translation]
|
|
|
20
|
[Chinese translation]
|
[Chinese translation]
|
|
ANNEX II Schedule for Project implementation
[Chinese translation]
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 15 of 17
Annex III Work flow of CDM Activity
[Chinese translation]
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 16 of 17
Annex [ ] Address designated
[Chinese translation]
Purchaser:
[Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
Project Proponent:
[Chinese translation]
Xiangtan Iron and Steel Group Co., Ltd (“XISC”)/
[Chinese translation]
Address: Yuetang, Xiangtan City, Hunan, 411101, P. R. China [Chinese translation]
Telephone: 0732- 8653018, 13707328182
Fax : 0732-8628978
Email: sheny3018@sohu.com
XISC Power Generation Using Waste Heat from Sintering System (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 1 of 16
Exhibit 10.13
EMISSION REDUCTION PURCHASE AGREEMENT(ERPA)
[Chinese translation] (ERPA)
XISC
Power Generation
Using Steam from Coke Dry Quenching Project
[Chinese translation]
Between
(the "Purchaser") [Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
President-CEO: Dr. Tri Vu Truong
(the " Seller"), henceforth “PROJECT PROPONENT” [Chinese translation]
Owner: Hunan Valin Xiangtan Iron & Steel Co., Ltd (“HVXISC”)
[Chinese translation]
Address: Yuetang, Xiangtan City, Hunan, 411101, P. R. China [Chinese translation]
Telephone: 0732- 0732- 8653018, 13707328182
Fax : 0732-8628978
Email: sheny3018@sohu.com
General Director: Liu, Jie [Chinese translation]
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
Emission Reduction Purchase Agreement
Page 2 of 16
|
Interpretation and Definitions [Chinese translation]
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
|
|
meaning set forth in the definitions below.
|
|
[Chinese translation]:
|
|
|
Agreement
[Chinese translation]
|
Means this Emission Reduction Purchase Agreement (ERPA).
[Chinese translation]
|
Annex B Countries
[Chinese translation]
|
Means the countries listed in Annex B to the Kyoto Protocol having
committed themselves to reduce or limit their GHG emissions.
[Chinese translation]
|
Annex I Countries
[Chinese translation]
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
consists of industrial countries and countries in transition).
[Chinese translation]
|
|
Baseline
Chinese translation]
|
Means the scenario that reasonably represents the anthropogenic
emissions of GHG that would occur in the Host Country in the absence of
the Project, determined in accordance with the Kyoto Rules.
[Chinese translation]
|
Business Day
[Chinese translation]
|
Means a day on which banks are open for general business in China.
[Chinese translation]
|
Carbon Dioxide
Equivalent
[Chinese translation]
|
Means a metric measure used to compare the emissions of various GHG
based upon their global warming potential.
[Chinese translation]
|
Certification
[Chinese translation]
|
Means the written confirmation by an Operational Entity of an Emission
Reduction resulting from a CDM project and having passed the
Verification procedure according to the Kyoto Rules.
[Chinese translation]
|
Certified Emission
Reduction (CER)
[Chinese translation]
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
Kyoto Protocol and the requirements of the Kyoto Rules (including
Certification), equal to one metric ton of Carbon Dioxide Equivalent
resulting from a CDM project.
[Chinese translation]
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 3 of 16
Clean Development
Mechanism (CDM)
[Chinese translation]
|
Means the flexible mechanism established by Article 12 of the Kyoto
Protocol providing for Annex I Countries to implement projects that
reduce emissions in non-Annex I Countries in return for CERs and assist
the non-Annex I Countries in achieving sustainable development and
contributing to the ultimate objective of the UNFCCC.
[Chinese translation]
|
Crediting Period
[Chinese translation]
|
If Kyoto Protocol ceases to have effect or is terminated before the
expiration of any crediting period, the purchasing agreement will remain
valid for purchasing obligations prior to this termination date, however
purchasing obligations beyond this termination date will automatically
cease.
[Chinese translation]
|
Emission Reduction
[Chinese translation]
|
Means reduction in emission of GHG achieved, calculated in accordance
with the Kyoto Rules.
[Chinese translation]
|
Executive Board
[Chinese translation]
|
Means the international authority elected by the representatives of the
parties to the Kyoto Protocol responsible for monitoring the CDM
process.
[Chinese translation]
|
First Commitment
Period
[Chinese translation]
|
Means July 23, 2008 until December 31, 2012.
[Chinese translation]
|
Force Majeure
[Chinese translation]
|
Means any circumstance or condition beyond the control of either party to
this Agreement affecting the performance of its obligations under this
Agreement including in particular wars, insurrection, natural disaster or
equivalent circumstances.
[Chinese translation]
|
Greenhouse Gases
(GHG)
[Chinese translation]
|
Means the six gases listed in Annex A to the Kyoto Protocol.
[Chinese translation]
|
Host Country
[Chinese translation]
|
China
[Chinese translation]
|
Kyoto Protocol
[Chinese translation]
|
Means the protocol to the UNFCCC adopted at the third conference of the
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
[Chinese translation]
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 4 of 16
Kyoto Rules
[Chinese translation]
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
Marrakech Accords, any relevant decisions, guidelines, modalities and
procedures made pursuant to them and/or any succeeding international
agreements as amended and/or supplemented from time to time and which
include those rules specifically required to be met for the issuing and
transfer of CERs. /UNFCCC
[Chinese translation]
|
Letter of Approval
(LOA)
[Chinese translation]
|
Means a binding approval of the Project by the DNA of the Host Country
together with an approval of the transfer of CERs.
[Chinese translation]
|
Monitoring Report
[Chinese translation]
|
Means an annual report to be provided by Owner setting out the total
number of Emission Reductions generated by the Project during the
previous year according to the Kyoto Rules, international Monitoring
rules and the PDD.
[Chinese translation]
|
Monitoring
[Chinese translation]
|
Means the collection and record of data allowing the assessment of
reductions in GHG emissions resulting from the Project conducted in
accordance with the Kyoto Rules.
[Chinese translation]
|
Designated
Operational
Entity(DOE)
[Chinese translation]
|
Means an independent entity accredited by the Executive Board being the
executive body for CDM and inter alias responsible for determining
whether a project and the resulting Emission Reductions meet the
requirements of Article 12 of the Kyoto Protocol.
[Chinese translation]
|
Project Design
Document (PDD)
[Chinese translation]
|
Means a detailed description of the Project to be submitted for Validation
attached here in Annex []. The Purchaser will be responsible for providing
PDD development for Registration of the Project.
[Chinese translation]
|
Project
[Chinese translation]
|
Means the proposed CDM project described in the PDD and other
documents describing the implementation and economics of the Project
attached in Annex []
[Chinese translation]
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 5 of 16
Registration
[Chinese translation]
|
Means the official registration of a CDM project by the Executive Board
according to the Kyoto Rules.
[Chinese translation]
|
|
UNFCCC
|
Means the United Nations Framework Convention on Climate Change
adopted in New York on May 9, 1992.
[Chinese translation]
|
Unit Price
[Chinese translation]
|
Means the price payable by Purchaser to Project Proponent per Certified
Emission Reduction (CER) unit:
[Chinese translation]
The purchase unit price paid by EcoloCap Solutions Canada Inc to
Chinese Project Proponent for the CER is fixed at (9.6)Euro for the year
2009 to 2012; both parties will renegotiate the ERPA for the extension
period (2013-2026).
[Chinese translation]
The amount paid to the Chinese Project Proponent for the total certified
CER generated from this project is fixed at (80)% of the total value of
CER at this above mentioned purchase price ((9.6)Euro) “Total revenues”
is defined as the amount of: (9.6)Euro x total CER. Ecolocap Solutions
Canada Inc. will get ()% of the total revenues.
[Chinese translation]
TERM:
[Chinese translation]
Project proponent agrees by this ERPA to sell CERs generated by the
project to the Purchaser for the year 2009 to 2012 and give the Purchaser
the right of first refusal to renegotiate the ERPA for the extension period
2013-2026
[Chinese translation]
|
Validation
[Chinese translation]
|
Means the assessment of the PDD, including the Baseline, by an
Operational Entity, determining its compliance with the Kyoto Rules.
[Chinese translation]
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 6 of 16
Verification
[Chinese translation]
|
Means the periodic independent review and ex post determination of the
monitored reductions in GHG emissions that the Project has achieved
during a specified period of time by an Operational Entity in accordance
with the Kyoto Rules. The project's owner will be Responsible for
providing periodical monitoring.
[Chinese translation]
|
|
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to legal
|
|
provisions are references to such provisions as in effect from time to time, use of a gender includes any
|
|
gender and use of the plural includes the singular and vice versa where the context requires.
|
|
[Chinese translation]
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement or taken into consideration in its interpretation.
|
|
[Chinese translation]
|
|
|
|
|
|
1.
|
|
Preamble
[Chinese translation]
|
|
|
|
|
|
|
|
The Project is located on the territory of the Host Country.
[Chinese translation]
|
|
|
|
2.
|
|
Contractual Obligations
[Chinese translation]
|
|
|
|
2.1.
|
|
Certified Emission Reductions
[Chinese translation]
|
|
|
|
2.1.1.
|
|
The Purchaser will purchase the total certified emission reduction, the number of which is
|
|
|
|
monitored and accepted by the DOE.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.2.
|
|
If the Project generates CERs, during the crediting period Project Proponent shall, to the extent
|
|
|
|
it is legally possible and permissible, exclusively transfer or cause to be transferred to
|
|
|
|
Purchaser all rights (and, to the extent legally possible and permissible, legal title) which
|
|
|
|
Project Proponent may have in the Anticipated Emission Reductions generated during the
|
|
|
|
Crediting Period to Purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Certified Emission Reduction
|
|
|
|
generated by the Project and in which the Project Proponent's rights are transferred to
|
|
|
|
Purchaser in accordance with clause 3 below.
|
|
|
|
[Chinese translation]
|
|
|
|
2.2.
|
|
Emission Reductions generated after the Crediting Period
[Chinese translation]
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 7 of 16
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding an
|
|
|
|
agreement on the purchase of such Certified Emission Reductions based on the principles of
|
|
|
|
this Agreement but amended in order to reflect the international and/or national rules then
|
|
|
|
applicable.
|
|
|
|
[Chinese translation]
|
|
|
|
3.
|
|
Transfer
[Chinese translation]
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible, legal
|
|
|
|
title) which Project Proponent may have in a Certified Emission Reduction shall have
|
|
|
|
occurred upon the transfer of a CER from the register of the Executive Board to a register in
|
|
|
|
favor of Purchaser or such other account or register Purchaser has notified to Project
|
|
|
|
Proponent in writing.
|
|
|
|
[Chinese translation]
|
|
|
|
4.
|
|
Payment [Chinese translation]
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions
[Chinese translation]
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the rights
|
|
|
|
in which are transferred pursuant to clause 3) shall be deposited in the project proponent’s
|
|
|
|
account within 60 Business Days after the CERs are delivered
|
|
|
|
[Chinese translation]
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified from time to time be notified to the
|
|
|
|
other party in writing.
|
|
|
|
[Chinese translation]
|
|
|
|
4.1.3.
|
|
All payments shall be made in Euro.
[Chinese translation]
|
|
|
|
4.2.
|
|
Costs and Expenses
[Chinese translation]
|
|
|
|
4.2.1.
|
|
Subject to clause 4.2.2 below, all taxes, fees, costs or other expenses in connection with the
|
|
|
|
generation of CERs by the Project and their Registration and transfer (including VAT in any
|
|
|
|
jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in Clause 3, if
|
|
|
|
applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
4.2.2.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses and to assist developing countries that are particularly vulnerable to
|
|
|
|
the adverse effects of climate change to meet the costs of adaptation according to the Kyoto
|
|
|
|
Rules shall be borne by the Purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Project proponent shall pay all costs and fees in connection with the project-relevant
|
|
|
|
documents preparation for use in the host country, the submission, approval, construction,
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 8 of 16
|
|
|
operation, maintenance and monitoring of the project activities taking place in the host
|
|
|
|
country, including but not limited to the tax, costs and expenses levied by Chinese National
|
|
|
|
Development and Reform Commission and other government authorities.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Purchaser shall pay all the costs and fees in connection with the CDM project development
|
|
|
|
abroad, including but not limited to the obtaining of any approvals from the Canada
|
|
|
|
government as required under the CDM rules, the preparation of PIN (project idea
|
|
|
|
note)/PDD(project design document), the validation, the verification/certification, and the
|
|
|
|
registration with CDM Executive Board.
|
|
|
|
[Chinese translation]
|
|
|
|
4.2.3.
|
|
All costs accrued to each of the Parties in negotiating, preparing, executing and carrying into
|
|
|
|
effect of this Agreement, shall be borne by each of the Parties themselves.
|
|
|
|
[Chinese translation]
|
|
|
|
5.
|
|
Termination and Remedies
[Chinese translation]
|
|
|
|
5.1.
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events occurs:
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.1.
|
|
In case the Project is not register as a valid CDM Project activity with the CDM EB within
|
|
|
|
eighteen (18) months upon execution of the ERPA, either party shall have the right to
|
|
|
|
terminate its rights and obligations under the ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.2.
|
|
In any given Contract Period, if the verification of the Project’s CERs is delayed by 90 days
|
|
|
|
or more due to the Project Proponent ’s or Purchaser’s fault and/or misconduct, each of the
|
|
|
|
non-defaulting parties shall have the right to terminate its rights and obligations under the
|
|
|
|
ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.3.
|
|
In case the project is not commissioned within eighteen (18) months following the date of the
|
|
|
|
ERPA, each Purchaser shall have the right to terminate its rights and obligations under the
|
|
|
|
ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.4.
|
|
Upon occurrence of an event of default or any other termination event in respect of the Project
|
|
|
|
Proponent or of Purchaser as provided in the ERPA, each of the non-defaulting parties shall
|
|
|
|
have the right to terminate its rights and obligations under the ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.2.
|
|
Force Majeure
[Chinese translation]
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 9 of 16
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent
|
|
|
|
and for as long as such obligation is affected by Force Majeure and the impeded party shall be
|
|
|
|
entitled to such extension of time as may be reasonably necessary.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event of
|
|
|
|
Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall likewise
|
|
|
|
advise the other of the date when such event ended and shall also specify the re-determined
|
|
|
|
time by which the performance of its obligations hereunder is to be completed.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining any
|
|
|
|
further appropriate action if a condition of Force Majeure is to continue after 20 Business
|
|
|
|
Days from the date of giving notice thereof.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for any
|
|
|
|
delay in performing hereunder if such delay is caused by Force Majeure; provided, however,
|
|
|
|
that the non-impeded party shall be entitled to terminate such part of the Agreement that
|
|
|
|
remains unfulfilled, if the condition of Force Majeure is to continue after 6 months from the
|
|
|
|
date of giving notice thereof.
|
|
|
|
[Chinese translation]
|
|
|
|
6.
|
|
Change in Circumstances
[Chinese translation]
|
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions, or any changes related to
|
|
|
|
policy/regulations of the Chinese government) occurs which substantially affects the Project,
|
|
|
|
the parties to this Agreement shall enter into negotiations with a view to adapt the Project and
|
|
|
|
its implementation or any relevant provision of this Agreement, as may be necessary or
|
|
|
|
useful. A change in circumstances shall in no event be considered substantially affecting the
|
|
|
|
Project if at least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term of this
|
|
|
|
Agreement fails to be approved by such authority whose approval is required under the Kyoto
|
|
|
|
Rules or otherwise appears to be non-compliant with any relevant standards or conditions of
|
|
|
|
the Kyoto Rules, Project Proponent and Purchaser shall discuss whether or not the relevant
|
|
|
|
documents are to be revised and resubmitted.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 10 of 16
|
7.
|
|
Conditions Precedent
[Chinese translation]
|
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
[Chinese translation]
|
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
[Chinese translation]
|
|
|
|
8.
|
|
Miscellaneous
[Chinese translation]
|
|
|
|
8.1.
|
|
Assignment and subcontracting
[Chinese translation]
|
|
|
|
|
|
Project Proponent shall not, without the written consent of Purchaser, assign or transfer the Agreement or the benefits or obligations thereof or any part thereof to any other person.
[Chinese translation]
|
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any third party (“assignee”) without consent of Project Proponent. However, rights and obligations between Purchaser and Project Proponent remain the same after the transfer.
|
|
|
|
[Chinese translation]
|
|
|
|
8.2.
|
|
Confidentiality and Disclosure
[Chinese translation]
|
|
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into or performing this Agreement which relates to the provisions of this Agreement, the negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in those circumstances where disclosure is required in order to comply with any laws or regulations, including without limitations the Kyoto Rules.
|
|
|
|
[Chinese translation]
|
|
|
|
8.3.
|
|
Notices
[Chinese translation]
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be made in writing (including by facsimile) to the address or facsimile number, from time to time designated by the party to whom the communication is to be made to the other party for that purpose. The address and facsimile number so designated are set out in Annex [] hereto.
[Chinese translation]
|
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the recipient, if sent by facsimile, when a transmission report shows that the facsimile has been sent.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
|
Emission Reduction Purchase Agreement
Page 11 of 16
|
8.4.
|
|
Entire Agreement
[Chinese translation]
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to the subject matter hereof, and no prior or contemporaneous oral or written agreement or understanding shall be deemed to constitute a part of this Agreement, unless expressly referred to herein, or attached hereto, or specifically incorporated by reference herein. The Annexes and schedules to this Agreement constitute integral parts of this Agreement and shall therefore be deemed part of this Agreement.
|
|
|
|
[Chinese translation]
|
|
|
|
8.5.
|
|
Amendments
[Chinese translation]
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
[Chinese translation]
|
|
|
|
8.6.
|
|
Severability
[Chinese translation]
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in the Agreement resulting there from shall be amended by way of interpretation of the Agreement having due regard to the parties intent.
|
|
|
|
[Chinese translation]
|
|
|
|
8.7.
|
|
Governing law
[Chinese translation]
|
|
|
|
|
|
This Agreement shall be governed by the laws of P.R.C., but in the event that there is no Chinese law governing a particular matter relating to this Agreement, reference shall be made to general international commercial practice.
|
|
|
|
[Chinese translation]
|
|
|
|
8.8.
|
|
Jurisdiction
[Chinese translation]
|
|
|
|
|
|
If any disputes arise between the parties relating to or in connection with this
Agreement
, the parties shall attempt at first instance to resolve such disputes through friendly discussion. If the disputes cannot be resolved in this manner to the satisfaction of the parties within forty-five (45) days after the date that any party has notified the other party in writing of such disputes, the parties shall submit the disputes to arbitration by the China International Economic and Trade Arbitration Commission. The arbitration awards shall be final and binding on the party, and the party agrees to be bound thereby and shall act accordingly.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
The costs of arbitration will be borne by the losing party, unless otherwise determined by the arbitration award. During the process of arbitration, except the section over which the dispute arises between the parties, this CONTRACT shall be performed continuously.
|
|
|
|
[Chinese translation]
|
|
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
Emission Reduction Purchase Agreement
Page 12 of 16
|
8.9.
|
|
Counterparts
[Chinese translation]
|
|
|
|
|
|
This Agreement shall be executed in four counterparts with two copies for Project Proponent
|
|
|
|
and two for Purchaser. If there are any discrepancies between the English and the Chinese
|
|
|
|
version, the Chinese version will prevail.
|
|
|
|
[Chinese translation]
|
ANNEX I The salient features of XISC Coke Dry Quenching Project at Xiangtan, Hunan Province, China.
[Chinese translation]
ANNEX II Schedule for Project implementation
[Chinese translation]
Annex III
Work flow of CDM Activity
[Chinese translation]
Annex [ ]
Address designated
[Chinese translation]
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
Emission Reduction Purchase Agreement
Page 13 of 16
PARTIES TO THE AGREEMENT
[Chinese translation]
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined
above, this 14
th
day of July, 2008, in the presence of:
[Chinese translation]:
|
Purchaser:
[Chinese translation]
:
|
|
|
|
|
ECOLOCAP SOLUTIONS (CANADA) INC
|
|
|
(ECOLOCAP)
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO: Dr. Tri Vu Truong
|
|
|
|
|
|
Project Proponent:
[Chinese translation]
:
|
|
|
|
|
Hunan Valin Xiangtan Iron & Steel Co., Ltd
|
|
|
(“HVXISC”)
[Chinese translation]
|
|
|
|
|
|
LIU, JIE
|
|
|
General Director: Liu, Jie
[Chinese
|
|
|
translation]
|
|
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
[Chinese translation]
|
[Chinese translation]
|
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
Emission Reduction Purchase Agreement
Page 14 of 16
ANNEX I The salient features of HVXISC Power Generation Using Steam from Coke Dry
|
Quenching Project at Xiangtan, Hunan Province, China.
|
|
[Chinese translation]
|
|
|
|
No
|
Parameters
|
Units
|
Value
|
|
1
|
[Chinese translation]
|
t/h
|
126
|
|
2
|
[Chinese translation]
|
[Chinese translation]
|
450
|
|
3
|
[Chinese translation]
|
MPa
|
3.82 - 4.5
|
|
4
|
[Chinese translation]
|
[Chinese translation]
|
3
|
|
5
|
[Chinese translation]
|
[Chinese translation]
|
1
|
|
6
|
[Chinese translation]
|
kW
|
25000
|
|
7
|
[Chinese translation]
|
h
|
7560
|
|
8
|
[Chinese translation]
|
10
6
kwh/
[Chinese translation]
|
186.77
|
|
9
|
[Chinese translation]
|
10
6
kwh/
[Chinese translation]
|
162.15
|
|
10
|
[Chinese translation]
|
[Chinese translation]
|
56752.5
|
|
11
|
[Chinese translation]
|
[Chinese translation]
|
148621
|
|
12
|
[Chinese translation]
|
[Chinese translation]
|
12
|
|
13
|
[Chinese translation]
|
[Chinese translation]
|
116933.7
|
|
14
|
[Chinese translation]
|
[Chinese translation]
|
56750
|
|
15
|
[Chinese translation]
|
[Chinese translation]
|
49110
|
|
16
|
[Chinese translation]
|
[Chinese translation]
|
7170
|
|
17
|
[Chinese translation]
|
|
6.13%
|
|
18
|
[Chinese translation]
|
|
9.74%
|
|
19
|
[Chinese translation]
|
[Chinese translation]
|
8.7
|
|
20
|
[Chinese translation]
|
[Chinese translation]
|
8.0
|
ANNEX II Schedule for Project implementation [Chinese translation]
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
Emission Reduction Purchase Agreement
Page 15 of 16
Annex III Work flow of CDM Activity [Chinese translation]
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
Emission Reduction Purchase Agreement
Page 16 of 16
Annex [ ] Address designated [Chinese translation]
Purchaser:/
[Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
Project Proponent:
[Chinese translation]
:
Hunan Valin Xiangtan Iron & Steel Co., Ltd (“HVXISC”) [Chinese translation]
Address: Yuetang, Xiangtan City, Hunan, 411101, P. R. China [Chinese translation]
Telephone: 0732- 8653018, 13707328182
Fax : 0732-8628978
Email: sheny3018@sohu.com
HVXISC Power Generation Using Steam from Coke Dry Quenching Project [Chinese translation]
Emission Reduction Purchase Agreement
Page 1 of 16
Exhibit 10.14
EMISSION REDUCTION PURCHASE AGREEMENT(ERPA)
[Chinese translation](ERPA)
HCIC Project-Using Waste Heat from Gangue Brickkiln to Generate Power (WHR)
[Chinese translation]
Between
(the "Purchaser") /“[Chinese translation]”
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
President-CEO: Dr. Tri Vu Truong
(the " Seller"), henceforth “PROJECT PROPONENT” [Chinese translation]
Owner:
Hebi Coal Industry (Group) CO., Ltd
.
(“HCIC”)/ [Chinese translation]
Address: No. 22, HeMei Street, Hebi City, Henan Province, China. Zip:458000 [Chinese translation]
0392-2913321, 13903922611
[Chinese translation]
[Chinese translation]/General Director: LI,Yongxin
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 2 of 16
|
Interpretation and Definitions/
[Chinese translation]
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
|
|
meaning set forth in the definitions below.
|
|
[Chinese translation]
|
|
|
Agreement/
[Chinese translation]
|
Means this Emission Reduction Purchase Agreement(ERPA).
[Chinese translation]
|
Annex B Countries/
[Chinese translation]
|
Means the countries listed in Annex B to the Kyoto Protocol having
committed themselves to reduce or limit their GHG emissions.
[Chinese translation]
|
Annex I Countries
[Chinese translation]
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
consists of industrial countries and countries in transition).
[Chinese translation]
|
Baseline/
[Chinese translation]
|
Means the scenario that reasonably represents the anthropogenic
emissions of GHG that would occur in the Host Country in the absence of
the Project, determined in accordance with the Kyoto Rules.
[Chinese translation]
|
Business Day/
[Chinese
translation]
|
Means a day on which banks are open for general business in China./
[Chinese translation]
|
Carbon Dioxide
Equivalent
[Chinese translation]
|
Means a metric measure used to compare the emissions of various GHG
based upon their global warming potential.
[Chinese translation]
|
Certification/
[Chinese translation]
|
Means the written confirmation by an Operational Entity of an Emission
Reduction resulting from a CDM project and having passed the
Verification procedure according to the Kyoto Rules.
/[Chinese translation]
|
Certified Emission
Reduction (CER)
[Chinese translation]
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
Kyoto Protocol and the requirements of the Kyoto Rules (including
Certification), equal to one metric ton of Carbon Dioxide Equivalent
resulting from a CDM project.
[Chinese translation]
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 3 of 16
Clean Development
Mechanism (CDM)
[Chinese translation]
|
Means the flexible mechanism established by Article 12 of the Kyoto
Protocol providing for Annex I Countries to implement projects that
reduce emissions in non-Annex I Countries in return for CERs and assist
the non-Annex I Countries in achieving sustainable development and
contributing to the ultimate objective of the UNFCCC.
[Chinese translation]
|
Crediting Period
[Chinese translation]
|
If Kyoto Protocol ceases to have effect or is terminated before the
expiration of any crediting period, the purchasing agreement will remain
valid for purchasing obligations prior to this termination date, however
purchasing obligations beyond this termination date will automatically
cease.
[Chinese translation]
|
Emission Reduction
/
[Chinese translation]
|
Means reduction in emission of GHG achieved, calculated in accordance
with the Kyoto Rules.
[Chinese translation]
|
Executive Board
[Chinese translation]
|
Means the international authority elected by the representatives of the
parties to the Kyoto Protocol responsible for monitoring the CDM
process.
[Chinese translation]
|
First Commitment
Period/
[Chinese translation]
|
Means July 20, 2008 until December 31, 2012.
[Chinese translation]
|
Force Majeure
[Chinese translation]
|
Means any circumstance or condition beyond the control of either party to
this Agreement affecting the performance of its obligations under this
Agreement including in particular wars, insurrection, natural disaster or
equivalent circumstances.
[Chinese translation]
|
Greenhouse Gases
(GHG)
[Chinese translation]
|
Means the six gases listed in Annex A to the Kyoto Protocol.
[Chinese translation]
|
Host Country/
[Chinese translation]
|
China/[Chinese translation]
|
Kyoto Protocol
[Chinese translation]
|
Means the protocol to the UNFCCC adopted at the third conference of the
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
[Chinese translation]
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 4 of 16
Kyoto Rules
[Chinese translation]
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
Marrakech Accords, any relevant decisions, guidelines, modalities and
procedures made pursuant to them and/or any succeeding international
agreements as amended and/or supplemented from time to time and which
include those rules specifically required to be met for the issuing and
transfer of CERs. /UNFCCC
[Chinese translation]
|
Letter of Approval
(LOA)
[Chinese
translation]
|
Means a binding approval of the Project by the DNA of the Host Country
together with an approval of the transfer of CERs.
[Chinese translation]
|
Monitoring Report
[Chinese translation]
|
Means an annual report to be provided by Owner setting out the total
number of Emission Reductions generated by the Project during the
previous year according to the Kyoto Rules, international Monitoring
rules and the PDD.
[Chinese translation]
|
Monitoring/
[Chinese translation]
|
Means the collection and record of data allowing the assessment of
reductions in GHG emissions resulting from the Project conducted in
accordance with the Kyoto Rules.
[Chinese translation]
|
Designated
Operational
Entity(DOE)
[Chinese translation]
|
Means an independent entity accredited by the Executive Board being the
executive body for CDM and inter alias responsible for determining
whether a project and the resulting Emission Reductions meet the
requirements of Article 12 of the Kyoto Protocol.
[Chinese translation]
|
Project Design
Document (PDD)
[Chinese translation]
|
Means a detailed description of the Project to be submitted for Validation
attached here in Annex []. The Purchaser will be responsible for providing
PDD development for Registration of the Project.
[Chinese translation]
|
Project
/
[Chinese translation]
|
Means the proposed CDM project described in the PDD and other
documents describing the implementation and economics of the Project
attached in Annex []
[Chinese translation]
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 5 of 16
Registration
[Chinese translation]
|
Means the official registration of a CDM project by the Executive Board
according to the Kyoto Rules.
[Chinese translation]
|
|
UNFCCC
|
Means the United Nations Framework Convention on Climate Change
adopted in New York on May 9, 1992.
[Chinese translation]
|
Unit Price
/
[Chinese translation]
|
Means the price payable by Purchaser to Project Proponent per Certified
Emission Reduction (CER) unit:
[Chinese translation]
The purchase unit price paid by EcoloCap Solutions Canada Inc to
Chinese Project Proponent for the CER is fixed at (9.5)Euro for the year
2009 to 2012; both parties will renegotiate the ERPA for the extension
period (2013 - 2026).
/[Chinese translation]
The amount paid to the Chinese Project Proponent for the total certified
CER generated from this project is fixed at (80)% of the total value of
CER at this above mentioned purchase price ((9.5)Euro) “Total revenues”
is defined as the amount of: (9.5)Euro x total CER. Ecolocap Solutions
Canada Inc. will get (20)% of the total revenues.
/[Chinese translation]
TERM:/ [Chinese translation]
Ecolocap Solutions inc will purchase certified CER generated by this
project for the year 2009 to 2012 with options of extension for another
two period of 7 years, the period 2013
^
2026, under same terms and
conditions(except for the price).
[Chinese translation]
|
Validation
/
[Chinese translation]
|
Means the assessment of the PDD, including the Baseline, by an
Operational Entity, determining its compliance with the Kyoto Rules.
[Chinese translation]
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 6 of 16
Verification
[Chinese translation]
|
Means the periodic independent review and ex post determination of the
monitored reductions in GHG emissions that the Project has achieved
during a specified period of time by an Operational Entity in accordance
with the Kyoto Rules. The project's owner will be Responsible for
providing periodical monitoring.
[Chinese translation]
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to legal
|
|
provisions are references to such provisions as in effect from time to time, use of a gender includes any
|
|
gender and use of the plural includes the singular and vice versa where the context requires.
|
|
[Chinese translation]
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement or taken into consideration in its interpretation.
|
|
[Chinese translation]
|
|
|
|
|
|
1.
|
|
Preamble/
[Chinese translation]
|
|
|
|
|
|
The Project is located on the territory of the Host Country.
[Chinese translation]
|
|
|
|
2.
|
|
Contractual Obligations/
[Chinese translation]
|
|
|
|
2.1.
|
|
Certified Emission Reductions/
[Chinese translation]
|
|
|
|
2.1.1.
|
|
The Purchaser will purchase the total certified emission reduction, the number of which is
|
|
|
|
monitored and accepted by the DOE.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.2.
|
|
If the Project generates CERs, during the crediting period Project Proponent shall, to the
|
|
|
|
extent it is legally possible and permissible, exclusively transfer or cause to be transferred to
|
|
|
|
Purchaser all rights (and, to the extent legally possible and permissible, legal title) which
|
|
|
|
Project Proponent may have in the Anticipated Emission Reductions generated during the
|
|
|
|
Crediting Period to Purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Certified Emission Reduction
|
|
|
|
generated by the Project and in which the Project Proponent's rights are transferred to
|
|
|
|
Purchaser in accordance with clause 3 below.
|
|
|
|
[Chinese translation]
|
|
|
|
2.2.
|
|
Emission Reductions generated after the Crediting Period/
[Chinese translation]
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 7 of 16
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding an
|
|
|
|
agreement on the purchase of such Certified Emission Reductions based on the principles of
|
|
|
|
this Agreement but amended in order to reflect the international and/or national rules then
|
|
|
|
applicable.
|
|
|
|
[Chinese translation]
|
|
|
|
3.
|
|
Transfer/
[Chinese translation]
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible, legal
|
|
|
|
title) which Project Proponent may have in a Certified Emission Reduction shall have
|
|
|
|
occurred upon the transfer of a CER from the register of the Executive Board to a register in
|
|
|
|
favor of Purchaser or such other account or register Purchaser has notified to Project
|
|
|
|
Proponent in writing.
|
|
|
|
[Chinese translation]
|
|
|
|
4.
|
|
Payment/
[Chinese translation]
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions/
[Chinese translation]
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the rights
|
|
|
|
in which are transferred pursuant to clause 3) shall be deposited in the project proponent’s
|
|
|
|
account within 60 Business Days after the CERs are delivered
|
|
|
|
[Chinese translation]
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified from time to time be notified to the
|
|
|
|
other party in writing.
|
|
|
|
[Chinese translation]
|
|
|
|
4.1.3.
|
|
All payments shall be made in Euro. [Chinese translation]
|
|
|
|
4.2.
|
|
Costs and Expenses/
[Chinese translation]
|
|
|
|
4.2.1.
|
|
Subject to clause 4.2.2 below, all taxes, fees, costs or other expenses in connection with the
|
|
|
|
generation of CERs by the Project and their Registration and transfer (including VAT in any
|
|
|
|
jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in Clause 3, if
|
|
|
|
applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
4.2.2.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses and to assist developing countries that are particularly vulnerable to
|
|
|
|
the adverse effects of climate change to meet the costs of adaptation according to the Kyoto
|
|
|
|
Rules shall be borne by the Purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Project proponent shall pay all costs and fees in connection with the project-relevant
|
|
|
|
documents preparation for use in the host country, the submission, approval,
construction,
|
|
|
|
operation, maintenance and monitoring of the project activities taking place in the host
|
|
|
|
country, including but not limited to the tax, costs and expenses levied by Chinese National
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 8 of 16
|
|
|
Development and Reform Commission and other government authorities.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Purchaser shall pay all the costs and fees in connection with the CDM project development
|
|
|
|
abroad, including but not limited to the obtaining of any approvals from the Canada
|
|
|
|
government as required under the CDM rules, the preparation of PIN (project idea
|
|
|
|
note)/PDD(project design document), the validation, the verification/certification, and the
|
|
|
|
registration with CDM Executive Board.
|
|
|
|
[Chinese translation]
|
|
|
|
4.2.3.
|
|
All costs accrued to each of the Parties in negotiating, preparing, executing and carrying into
|
|
|
|
effect of this Agreement, shall be borne by each of the Parties themselves.
|
|
|
|
[Chinese translation]
|
|
|
|
5.
|
|
Termination and Remedies/
[Chinese translation]
|
|
|
|
5.1.
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events occurs:
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.1.
|
|
In case the Project is not register as a valid CDM Project activity with the CDM EB within
|
|
|
|
eighteen (18) months upon execution of the ERPA, either party shall have the right to
|
|
|
|
terminate its rights and obligations under the ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.2.
|
|
In any given Contract Period, if the verification of the Project’s CERs is delayed by 90 days
|
|
|
|
or more due to the Project Proponent ’s or Purchaser’s fault and/or misconduct, each of the
|
|
|
|
non-defaulting parties shall have the right to terminate its rights and obligations under the
|
|
|
|
ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.3.
|
|
In case the project is not commissioned within eighteen (18) months following the date of the
|
|
|
|
ERPA, each Purchaser shall have the right to terminate its rights and obligations under the
|
|
|
|
ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
5.1.4.
|
|
Upon occurrence of an event of default or any other termination event in respect of the Project
|
|
|
|
Proponent or of Purchaser as provided in the ERPA, each of the non-defaulting parties shall
|
|
|
|
have the right to terminate its rights and obligations under the ERPA.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
5.2.
|
.
|
Force Majeure/
[Chinese translation]
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent
|
|
|
|
and for as long as such obligation is affected by Force Majeure and the impeded party shall be
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 9 of 16
|
|
|
entitled to such extension of time as may be reasonably necessary.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event of
|
|
|
|
Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall likewise
|
|
|
|
advise the other of the date when such event ended and shall also specify the re-determined
|
|
|
|
time by which the performance of its obligations hereunder is to be completed.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining any
|
|
|
|
further appropriate action if a condition of Force Majeure is to continue after 20 Business
|
|
|
|
Days from the date of giving notice thereof.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for any
|
|
|
|
delay in performing hereunder if such delay is caused by Force Majeure; provided, however,
|
|
|
|
that the non-impeded party shall be entitled to terminate such part of the Agreement that
|
|
|
|
remains unfulfilled, if the condition of Force Majeure is to continue after 6 months from the
|
|
|
|
date of giving notice thereof.
|
|
|
|
[Chinese translation]
|
|
|
|
6.
|
|
Change in Circumstances/
[Chinese translation]
|
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
|
Certification of the resulting Emission Reductions, or any changes related to
|
|
|
|
policy/regulations of the Chinese government) occurs which substantially affects the Project,
|
|
|
|
the parties to this Agreement shall enter into negotiations with a view to adapt the Project and
|
|
|
|
its implementation or any relevant provision of this Agreement, as may be necessary or
|
|
|
|
useful. A change in circumstances shall in no event be considered substantially affecting the
|
|
|
|
Project if at least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term of
|
|
|
|
this Agreement fails to be approved by such authority whose approval is required under the
|
|
|
|
Kyoto Rules or otherwise appears to be non-compliant with any relevant standards or
|
|
|
|
conditions of the Kyoto Rules, Project Proponent and Purchaser shall discuss whether or not
|
|
|
|
the relevant documents are to be revised and resubmitted.
|
|
|
|
[Chinese translation]
|
|
|
|
7.
|
|
Conditions Precedent/
[Chinese translation]
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 10 of 16
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
|
[Chinese translation]
|
|
|
|
8.
|
|
Miscellaneous/
[Chinese translation]
|
|
|
|
8.1.
|
|
Assignment and subcontracting /
[Chinese translation]
|
|
|
|
Project Proponent shall not, without the written consent of Purchaser, assign or transfer the
|
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any third party
|
|
|
|
(“assignee”) without consent of Project Proponent. However, rights and obligations between
|
|
|
|
Purchaser and Project Proponent remain the same after the transfer.
|
|
|
|
[Chinese translation]
|
|
|
|
8.2.
|
|
Confidentiality and Disclosure/
[Chinese translation]
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into or
|
|
|
|
performing this Agreement which relates to the provisions of this Agreement, the negotiations
|
|
|
|
relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in those
|
|
|
|
circumstances where disclosure is required in order to comply with any laws or regulations,
|
|
|
|
including without limitations the Kyoto Rules.
|
|
|
|
[Chinese translation]
|
|
|
|
8.3.
|
|
Notices/
[Chinese translation]
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be made in
|
|
|
|
writing (including by facsimile) to the address or facsimile number, from time to time
|
|
|
|
designated by the party to whom the communication is to be made to the other party for that
|
|
|
|
purpose. The address and facsimile number so designated are set out in Annex [] hereto.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has been
|
|
|
|
sent.
|
|
|
|
[Chinese translation]
|
|
|
|
8.4.
|
|
Entire Agreement/
[Chinese translation]
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to the
|
|
|
|
subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 11 of 16
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein. The
|
|
|
|
Annexes and schedules to this Agreement constitute integral parts of this Agreement and shall
|
|
|
|
therefore be deemed part of this Agreement.
|
|
|
|
[Chinese translation]
|
|
|
|
8.5.
|
|
Amendments/
[Chinese translation]
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
[Chinese translation]
|
|
|
|
8.6.
|
|
Severability/
[Chinese translation]
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any
|
|
|
|
respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in
|
|
|
|
the Agreement resulting there from shall be amended by way of interpretation of the
|
|
|
|
Agreement having due regard to the parties intent.
|
|
|
|
[Chinese translation]
|
|
|
|
8.7.
|
|
Governing law/
[Chinese translation]
|
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law excluding
|
|
|
|
its rules on conflicts of laws.
|
|
|
|
[Chinese translation]
|
|
|
|
8.8.
|
|
Jurisdiction/
[Chinese translation]
|
|
|
|
|
|
Any dispute, claim or controversy arising out of or relating to this agreement will be settled
|
|
|
|
by arbitration at Hong Kong International Arbitration Center (“HKIAC”) in Hong Kong under
|
|
|
|
the UNCITRAL Arbitration Rules. The number of arbitrators will be three and the arbitrators
|
|
|
|
will be appointed in accordance with the UNCITRAL Rules and the HKIAC Procedures for
|
|
|
|
the Administration of international Arbitration (the “HKIAC Procedures”).The arbitration
|
|
|
|
proceeding will be administered by HKIAC in accordance with the HKIAC Procedures. The
|
|
|
|
legal place of the arbitration will be Hong Kong and the language to be used in the arbitral
|
|
|
|
proceedings will be English. All arbitration costs (including legal costs) will be borne by the
|
|
|
|
unsuccessful party unless otherwise determined by the arbitration tribunal.
|
|
|
|
[Chinese translation]
|
|
|
|
8.8.
|
|
Counterparts/
[Chinese translation]
|
|
|
|
|
|
This Agreement shall be executed in four counterparts with two copies for Project Proponent
|
|
|
|
and two for Purchaser. If there are any discrepancies between the English and the Chinese
|
|
|
|
version, the English version will prevail.
|
|
|
|
[Chinese translation]
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 12 of 16
ANNEX I The salient features of XISC Coke Dry Quenching Project at Xiangtan, Hunan Province, China.
[Chinese translation]
ANNEX II Schedule for Project implementation
[Chinese translation]
Annex III Work flow of CDM Activity
[Chinese translation]
Annex [ ] Address designated
[Chinese translation]
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 13 of 16
PARTIES TO THE AGREEMENT/
[Chinese translation]
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined
above, this 20
th
day of July, 2008, in the presence of: [Chinese translation]
|
Purchaser:/
[Chinese translation]
:
|
|
|
|
|
ECOLOCAP SOLUTIONS (CANADA) INC
|
|
|
(ECOLOCAP)
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO: Dr. Tri Vu Truong
|
|
|
|
|
|
Project Proponent:/
[Chinese translation]
:
|
|
|
|
|
Hebi Coal Industry (Group) CO., Ltd
.
|
|
|
(“HCIC”)
|
|
|
/
[Chinese translation]
|
|
|
|
HAO, LINJIE
|
|
|
HAO,Linjie
|
|
|
|
|
|
|
|
|
|
Witness No 1
[Chinese translation]
|
Witness No 2
[Chinese translation]
|
|
[Signature illegible]
|
[Signature illegible]
|
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 14 of 16
|
ANNEX I The salient features of HCIC Project-Using Waste Heat from Gangue Brickkiln to
|
|
generate power (WHR) at Hebi, Henan Province, China.
|
|
[
Chinese translation]
|
|
|
|
No
|
Parameters
|
Units
|
Value
|
|
1
|
[Chinese translation]
|
m
3
/h
|
4X56000
|
|
2
|
[Chinese translation]
|
C
|
750-850
|
|
|
[Chinese translation]
|
t/h
|
4 x14
|
|
3
|
[Chinese translation]
|
MPa
|
|
|
4
|
[Chinese translation]
|
[Chinese translation]
|
4
|
|
5
|
[Chinese translation]
|
[Chinese translation]
|
4
|
|
6
|
[Chinese translation]
|
kW
|
4x2000
|
|
7
|
[Chinese translation]
|
h
|
|
|
8
|
[Chinese translation]
|
10
6
kwh/year
|
|
|
9
|
[Chinese translation]
|
10
6
kwh/year
|
|
|
10
|
[Chinese translation]
|
ton Standard
Coal/year
|
19600
|
|
11
|
CO
2
/[Chinese translation]
|
ton/year
|
51352
|
|
12
|
[Chinese translation]
|
month
|
|
|
13
|
[Chinese translation]
|
[Chinese translation]
|
39200
|
|
14
|
[Chinese translation]
|
[Chinese translation]
|
|
|
15
|
[Chinese translation]
|
[Chinese translation]
|
|
|
16
|
[Chinese translation]
|
[Chinese translation]
|
|
|
17
|
[Chinese translation]
|
|
|
|
18
|
[Chinese translation]
|
|
|
|
19
|
[Chinese translation]
|
year
|
|
|
20
|
[Chinese translation]
|
year
|
|
ANNEX II Schedule for Project implementation
[Chinese translation]
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 15 of 16
Annex III Work flow of CDM Activity
[Chinese translation]
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 16 of 16
Annex [ ] Address designated
[Chinese translation]
Purchaser:/
[Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
Project Proponent:/
[Chinese translation]
:
Hebi Coal Industry (Group) CO., Ltd
.
(“HCIC”) /
[Chinese translation]
Address: No. 22, HeMei Street, Hebi City, Henan Province, China. Zip:458000
[Chinese translation]
[Chinese translation]
0392-2913321, 13903922611
HCIC Power Generation Pro. Using Waste Heat from Gangue Brickkiln (WHR) [Chinese translation]
Emission Reduction Purchase Agreement
Page 1 of 16
Exhibit 10.15
EMISSION REDUCTION PURCHASE AGREEMENT(ERPA)
[Chinese translation]
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Between
(the "Purchaser")
[Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5 Canada
Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
President-CEO: Dr. Tri Vu Truong
(the “Seller”), henceforth “PROJECT PROPONENT” [Chinese translation]
Owner: Hebei Jinlong Cement Group Co., Ltd (“HJLCC”)
[Chinese translation]
Address: Shankou Town, Longyao County, Xingtai City, Hebei, 055350, P. R. China
[Chinese translation] 055350
Telephone: 0319-6761188
13932932688
Fax :
Email: jljt16888@126.com
General Director: Song, Guoping [Chinese translation]
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 2 of 16
|
Interpretation and Definitions
[Chinese translation]
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the
|
|
meaning set forth in the definitions below.
|
|
[Chinese translation]:
|
|
|
Agreement
[Chinese translation]
|
Means this Emission Reduction Purchase Agreement(ERPA).
[Chinese translation]
|
Annex B Countries
[Chinese translation]
|
Means the countries listed in Annex B to the Kyoto Protocol having
committed themselves to reduce or limit their GHG emissions.
[Chinese translation]
|
Annex I Countries
[Chinese translation]
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
consists of industrial countries and countries in transition).
[Chinese translation]
|
Baseline
[Chinese translation]
|
Means the scenario that reasonably represents the anthropogenic
emissions of GHG that would occur in the Host Country in the absence of
the Project, determined in accordance with the Kyoto Rules.
[Chinese translation]
|
Business Day
[Chinese translation]
|
Means a day on which banks are open for general business in China.
[Chinese translation]
|
Carbon
Dioxide
Equivalent
[Chinese translation]
|
Means a metric measure used to compare the emissions of various GHG
based upon their global warming potential.
[Chinese translation]
|
Certification
[Chinese translation]
|
Means the written confirmation by an Operational Entity of an Emission
Reduction resulting from a CDM project and having passed the
Verification procedure according to the Kyoto Rules.
[Chinese translation]
|
Certified
Emission
Reduction (CER)
[Chinese translation]
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
Kyoto Protocol and the requirements of the Kyoto Rules (including
Certification), equal to one metric ton of Carbon Dioxide Equivalent
resulting from a CDM project.
[Chinese translation]
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 3 of 16
Clean Development
Mechanism (CDM)
[Chinese translation]
|
Means the flexible mechanism established by Article 12 of the Kyoto
Protocol providing for Annex I Countries to implement projects that
reduce emissions in non-Annex I Countries in return for CERs and assist
the non-Annex I Countries in achieving sustainable development and
contributing to the ultimate objective of the UNFCCC.
[Chinese translation]
|
Crediting Period
[Chinese translation]
|
If Kyoto Protocol ceases to have effect or is terminated before the
expiration of any crediting period, the purchasing agreement will remain
valid for purchasing obligations prior to this termination date, however
purchasing obligations beyond this termination date will automatically
cease.
[Chinese translation]
|
Emission Reduction
[Chinese translation]
|
Means reduction in emission of GHG achieved, calculated in accordance
with the Kyoto Rules.
[Chinese translation]
|
Executive Board
[Chinese translation]
|
Means the international authority elected by the representatives of the
parties to the Kyoto Protocol responsible for monitoring the CDM
process.
[Chinese translation]
|
First Commitment
Period
[Chinese translation]
|
Means July 31, 2008 until December 31, 2012.
[Chinese translation]
|
Force Majeure
[Chinese translation]
|
Means any circumstance or condition beyond the control of either party to
this Agreement affecting the performance of its obligations under this
Agreement including in particular wars, insurrection, natural disaster or
equivalent circumstances.
[Chinese translation]
|
Greenhouse Gases
(GHG)
[Chinese translation]
|
Means the six gases listed in Annex A to the Kyoto Protocol.
[Chinese translation]
|
Host Country
[Chinese translation]
|
China [Chinese translation]
|
Kyoto Protocol
[Chinese translation]
|
Means the protocol to the UNFCCC adopted at the third conference of the
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997.
[Chinese translation]
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power [
Chinese translation]
Emission Reduction Purchase Agreement
Page 4 of 16
Kyoto Rules
[Chinese translation]
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
Marrakech Accords, any relevant decisions, guidelines, modalities and
procedures made pursuant to them and/or any succeeding international
agreements as amended and/or supplemented from time to time and which
include those rules specifically required to be met for the issuing and
transfer of CERs. /UNFCCC
[Chinese translation]
|
Letter of Approval
(LOA) [Chinese
translation]
|
Means a binding approval of the Project by the DNA of the Host Country
together with an approval of the transfer of CERs.
[Chinese translation]
|
Monitoring Report
[Chinese translation]
|
Means an annual report to be provided by Owner setting out the total
number of Emission Reductions generated by the Project during the
previous year according to the Kyoto Rules, international Monitoring
rules and the PDD.
[Chinese translation]
|
Monitoring
[Chinese translation]
|
Means the collection and record of data allowing the assessment of
reductions in GHG emissions resulting from the Project conducted in
accordance with the Kyoto Rules.
[Chinese translation]
|
Designated
Operational
Entity(DOE)
[Chinese translation]
|
Means an independent entity accredited by the Executive Board being the
executive body for CDM and inter alias responsible for determining
whether a project and the resulting Emission Reductions meet the
requirements of Article 12 of the Kyoto Protocol.
[Chinese translation]
|
Project Design
Document (PDD)
[Chinese translation]
|
Means a detailed description of the Project to be submitted for Validation
attached here in Annex []. The Purchaser will be responsible for providing
PDD development for Registration of the Project.
[Chinese translation]
|
Project
[Chinese translation]
|
Means the proposed CDM project described in the PDD and other
documents describing the implementation and economics of the Project
attached in Annex []
[Chinese translation]
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 5 of 16
Registration
[Chinese translation]
|
Means the official registration of a CDM project by the Executive Board
according to the Kyoto Rules.
[Chinese translation]
|
|
UNFCCC
|
Means the United Nations Framework Convention on Climate Change
adopted in New York on May 9, 1992.
[Chinese translation]
|
Unit Price
[Chinese translation]
|
Means the price payable by Purchaser to Project Proponent per Certified
Emission Reduction (CER) unit:
[Chinese translation]:
EcoloCap Solutions Canada Inc will purchase certified CER generated by
this Agreement of project for the year 2009-2012 with options of
extension for another 2 period of 7 (from year 2013 to year 2026) years
under the same term and conditions (except for the sale price).
[Chinese translation]
The fixed Price of CER as proposed by EcoloCap to HJLCC is (8.5)Euro
for the period of 2009 to 2012. For following periods the price will be
renegotiated.
[Chinese translation]
The project owner (HJLCC) will get (90)% of net Revenues from the sale
of certified CER generated at the price of (8.5)EURO as above
mentioned, minus one time payment of (100,000)Euro to the Buyer, at the
first year, for the development and validation cost of the project. “Net
Revenues” is defined as total revenues minus sale brokerage fee (around
(3)% of total value). EcoloCap Solutions Canada Inc will get (10)% of the
Net Revenues.
[Chinese translation]
TERM: [Chinese translation]
Ecolocap Solutions inc will purchase certified CER generated by this
project for the year 2009 to 2012 with options of extension for another
two period of 7 years, the period 2013-2026, under same terms and
conditions(except for the price).
[Chinese translation]
|
Validation
[Chinese translation]
|
Means the assessment of the PDD, including the Baseline, by an
Operational Entity, determining its compliance with the Kyoto Rules.
[Chinese translation]
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 6 of 16
Verification
[Chinese translation]
|
Means the periodic independent review and ex post determination of the
monitored reductions in GHG emissions that the Project has achieved
during a specified period of time by an Operational Entity in accordance
with the Kyoto Rules. The project's owner will be Responsible for
providing periodical monitoring.
[Chinese translation]
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to legal
|
|
provisions are references to such provisions as in effect from time to time, use of a gender includes any
|
|
gender and use of the plural includes the singular and vice versa where the context requires.
|
|
[Chinese translation]
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement or taken into consideration in its interpretation.
|
|
[Chinese translation]
|
|
|
|
|
|
1.
|
|
Preamble [Chinese translation]
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
[Chinese translation]
|
|
|
|
|
|
2.
|
|
Contractual Obligations [Chinese translation]
|
|
|
|
2.1.
|
|
Certified Emission Reductions [Chinese translation]
|
|
|
|
2.1.1.
|
|
The Purchaser will purchase the total certified emission reduction, the number of which is
|
|
|
|
monitored and accepted by the DOE.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.2.
|
|
If the Project generates CERs, during the crediting period Project Proponent shall, to the extent
|
|
|
|
it is legally possible and permissible, exclusively transfer or cause to be transferred to
|
|
|
|
Purchaser all rights (and, to the extent legally possible and permissible, legal title) which
|
|
|
|
Project Proponent may have in the Anticipated Emission Reductions generated during the
|
|
|
|
Crediting Period to Purchaser.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Certified Emission Reduction
|
|
|
|
generated by the Project and in which the Project Proponent's rights are transferred to
|
|
|
|
Purchaser in accordance with clause 3 below.
|
|
|
|
[Chinese translation]
|
|
|
|
2.2.
|
|
Emission Reductions generated after the Crediting Period [Chinese translation]
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 7 of 16
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding an
|
|
|
agreement on the purchase of such Certified Emission Reductions based on the principles of
|
|
|
this Agreement but amended in order to reflect the international and/or national rules then
|
|
|
applicable.
|
|
|
[Chinese translation]
|
|
|
|
3.
|
Transfer [Chinese translation]
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible,
|
|
|
legal title) which Project Proponent may have in a Certified Emission Reduction shall have
|
|
|
occurred upon the transfer of a CER from the register of the Executive Board to a register in
|
|
|
favor of Purchaser or such other account or register Purchaser has notified to Project
|
|
|
Proponent in writing.
|
|
|
[Chinese translation]
|
|
|
|
4.
|
Payment [Chinese translation]
|
|
|
|
4.1
|
Payment for Certified Emission Reductions [Chinese translation]
|
|
|
|
4.1.1.
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the rights
|
|
|
in which are transferred pursuant to clause 3) shall be deposited in the project proponent’s
|
|
|
account within 60 Business Days after the CERs are delivered
|
|
|
[Chinese translation]
|
|
|
|
4.1.2.
|
All payments shall be made to the accounts specified from time to time be notified to the
|
|
|
other party in writing.
|
|
|
[Chinese translation]
|
|
|
|
|
|
4.1.3.
|
All payments shall be made in Euro. [Chinese translation]
|
|
|
|
4.2.
|
Costs and Expenses [Chinese translation]
|
|
|
|
4.2.1.
|
Subject to clause 4.2.2 below, all taxes, fees, costs or other expenses in connection with the
|
|
|
generation of CERs by the Project and their Registration and transfer (including VAT in any
|
|
|
jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in Clause 3, if
|
|
|
applicable) shall be borne by Project Proponent and purchaser.
|
|
|
[Chinese translation]
|
|
|
|
|
|
4.2.2.
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
administrative expenses and to assist developing countries that are particularly vulnerable to
|
|
|
the adverse effects of climate change to meet the costs of adaptation according to the Kyoto
|
|
|
Rules shall be borne by the Purchaser.
|
|
|
[Chinese translation]
|
|
|
|
|
Buyer shall bear the share of proceeds for administrative expense levied by the Executive
|
|
|
Board.
[Chinese translation]
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 8 of 16
|
|
Buyer shall pay for preparation of PIN (project idea note) / PDD
project design
|
|
|
document
.
|
|
|
[Chinese translation]
|
|
|
|
|
Buyer shall pay for obtaining any approvals from the Canada government as required under
|
|
|
the CDM rules.
|
|
|
[Chinese translation]
|
|
|
|
|
Buyer shall be responsible for the CDM project development abroad, and pay any costs
|
|
|
associated with Project validation, the first verification/certification, and the costs for
|
|
|
registration
with
CDM
Executive
Board.
The
costs
of
the
subsequent
|
|
|
verifications/certifications shall be borne by the seller
|
|
|
[Chinese translation]
|
|
|
|
4.2.3.
|
Project proponent shall pay all costs and fees in connection with the project-relevant
|
|
|
documents preparation for use in the host country, the submission, approval, construction,
|
|
|
operation, maintenance and monitoring of the project activities taking place in the host
|
|
|
country, including but not limited to the tax, costs and expenses levied by Chinese National
|
|
|
Development and Reform Commission and other government authorities.
|
|
|
[Chinese translation]
|
|
|
|
4.2.4.
|
All costs accrued to each of the Parties in negotiating, preparing, executing and carrying into
|
|
|
effect of this Agreement, shall be borne by each of the Parties themselves.
|
|
|
[Chinese translation]
|
|
|
|
4.2.5.
|
Seller will pay all applicable Seller’s jurisdiction taxes levied due to sale of CERs;
|
|
|
[Chinese translation]
|
|
|
|
|
Buyers will pay all applicable Buyer’s jurisdiction taxes and taxes levied due to purchase of
|
|
|
CERs.
|
|
|
[Chinese translation]
|
|
|
|
5.
|
Termination and Remedies [Chinese translation]
|
|
|
|
5.1.
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
written notice to the other party with immediate effect if any of the following events occurs:
|
|
|
[Chinese translation]
|
|
|
|
5.1.1.
|
In case the Project is not register as a valid CDM Project activity with the CDM EB within
|
|
|
eighteen (18) months upon execution of the ERPA, either party shall have the right to
|
|
|
terminate its rights and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.2.
|
In any given Contract Period, if the verification of the Project’s CERs is delayed by 90 days
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 9 of 16
|
|
or more due to the Project Proponent ’s or Purchaser’s fault and/or misconduct, each of the
|
|
|
non-defaulting parties shall have the right to terminate its rights and obligations under the
|
|
|
ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.3.
|
In case the project is not commissioned within eighteen (18) months following the date of the
|
|
|
ERPA, each Purchaser shall have the right to terminate its rights and obligations under the
|
|
|
ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.4.
|
Upon occurrence of an event of default or any other termination event in respect of the Project
|
|
|
Proponent or of Purchaser as provided in the ERPA, each of the non-defaulting parties shall
|
|
|
have the right to terminate its rights and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
|
|
5.2.
|
Force Majeure [Chinese translation]
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent
|
|
|
and for as long as such obligation is affected by Force Majeure and the impeded party shall be
|
|
|
entitled to such extension of time as may be reasonably necessary.
|
|
|
[Chinese translation]
|
|
|
|
|
Either party shall notify the other party of the existence and date of beginning of an event of
|
|
|
Force Majeure that is likely to impede its performance under the Agreement within 5
|
|
|
Business Days after having obtained knowledge of any such event. Either party shall likewise
|
|
|
advise the other of the date when such event ended and shall also specify the re-determined
|
|
|
time by which the performance of its obligations hereunder is to be completed.
|
|
|
[Chinese translation]
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining any
|
|
|
further appropriate action if a condition of Force Majeure is to continue after 20 Business
|
|
|
Days from the date of giving notice thereof.
|
|
|
[Chinese translation]
|
|
|
|
|
Neither party shall be liable for damages or have the right to terminate this Agreement for any
|
|
|
delay in performing hereunder if such delay is caused by Force Majeure; provided, however,
|
|
|
that the non-impeded party shall be entitled to terminate such part of the Agreement that
|
|
|
remains unfulfilled, if the condition of Force Majeure is to continue after 6 months from the
|
|
|
date of giving notice thereof.
|
|
|
[Chinese translation]
|
|
|
|
6.
|
Change in Circumstances [Chinese translation]
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 10 of 16
|
|
Certification of the resulting Emission Reductions, or any changes related to
|
|
|
policy/regulations of the Chinese government) occurs which substantially affects the Project,
|
|
|
the parties to this Agreement shall enter into negotiations with a view to adapt the Project and
|
|
|
its implementation or any relevant provision of this Agreement, as may be necessary or
|
|
|
useful. A change in circumstances shall in no event be considered substantially affecting the
|
|
|
Project if at least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
[Chinese translation]
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
[Chinese translation]
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term of
|
|
|
this Agreement fails to be approved by such authority whose approval is required under the
|
|
|
Kyoto Rules or otherwise appears to be non-compliant with any relevant standards or
|
|
|
conditions of the Kyoto Rules, Project Proponent and Purchaser shall discuss whether or not
|
|
|
the relevant documents are to be revised and resubmitted.
|
|
|
[Chinese translation]
|
|
|
|
7.
|
Conditions Precedent [Chinese translation]
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
|
|
|
[Chinese translation]
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
[Chinese translation]
|
|
|
|
8.
|
Miscellaneous [Chinese translation]
|
|
|
|
8.1.
|
Assignment and subcontracting [Chinese translation]
|
|
|
Project Proponent shall not, without the written consent of Purchaser, assign or transfer the
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
|
|
|
[Chinese translation]
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any third party
|
|
|
(“assignee”) without consent of Project Proponent. However, rights and obligations between
|
|
|
Purchaser and Project Proponent remain the same after the transfer.
|
|
|
[Chinese translation]
|
|
|
|
8.2.
|
Confidentiality and Disclosure [Chinese translation]
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into or
|
|
|
performing this Agreement which relates to the provisions of this Agreement, the negotiations
|
|
|
relating to this Agreement and the subject matter of this Agreement.
|
|
|
[Chinese translation]
|
|
|
|
|
No party shall disclose any such confidential information to any third party, except in those
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 11 of 16
|
|
circumstances where disclosure is required in order to comply with any laws or regulations,
|
|
|
including without limitations the Kyoto Rules.
|
|
|
[Chinese translation]
|
|
|
|
8.3.
|
Notices [Chinese translation]
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be made in
|
|
|
writing (including by facsimile) to the address or facsimile number, from time to time
|
|
|
designated by the party to whom the communication is to be made to the other party for that
|
|
|
purpose. The address and facsimile number so designated are set out in Annex [] hereto.
|
|
|
[Chinese translation]
|
|
|
|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has been
|
|
|
sent.
|
|
|
[Chinese translation]
|
|
|
|
8.4.
|
Entire Agreement [Chinese translation]
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to the
|
|
|
subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein. The
|
|
|
Annexes and schedules to this Agreement constitute integral parts of this Agreement and shall
|
|
|
therefore be deemed part of this Agreement.
|
|
|
[Chinese translation]
|
|
|
|
8.5.
|
Amendments [Chinese translation]
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
[Chinese translation]
|
|
|
|
8.6.
|
Severability [Chinese translation]
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any
|
|
|
respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in
|
|
|
the Agreement resulting there from shall be amended by way of interpretation of the
|
|
|
Agreement having due regard to the parties intent.
|
|
|
[Chinese translation]
|
|
|
|
8.7.
|
Governing law [Chinese translation]
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law excluding its
|
|
|
rules on conflicts of laws.
|
|
|
[Chinese translation]
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 12 of 16
|
8.8.
|
Jurisdiction [Chinese translation]
|
|
|
|
|
Any dispute, claim or controversy arising out of or relating to this agreement will be settled
|
|
|
by arbitration at Hong Kong International Arbitration Center (“HKIAC”) in Hong Kong under
|
|
|
the UNCITRAL Arbitration Rules. The number of arbitrators will be three and the arbitrators
|
|
|
will be appointed in accordance with the UNCITRAL Rules and the HKIAC Procedures for
|
|
|
the Administration of international Arbitration (the “HKIAC Procedures”).The arbitration
|
|
|
proceeding will be administered by HKIAC in accordance with the HKIAC Procedures. The
|
|
|
legal place of the arbitration will be Hong Kong and the language to be used in the arbitral
|
|
|
proceedings will be English. All arbitration costs (including legal costs) will be borne by the
|
|
|
unsuccessful party unless otherwise determined by the arbitration tribunal.
|
|
|
[Chinese translation]
|
|
|
|
8.9.
|
Counterparts [Chinese translation]
|
|
|
|
|
This Agreement shall be executed in four counterparts with two copies for Project Proponent
|
|
|
and two for Purchaser. If there are any discrepancies between the English and the Chinese
|
|
|
version, the English version will prevail.
|
|
|
[Chinese translation]
|
ANNEX I HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
ANNEX II Schedule for Project implementation
[Chinese translation]
Annex III Work flow of CDM Activity
[Chinese translation]
Annex [ ] Address designated
[Chinese translation]
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 13 of 16
PARTIES TO THE AGREEMENT [Chinese translation]
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined
above, this 23
th
day of July, 2008, in the presence of: [Chinese translation]:
|
Purchaser: [Chinese translation]:
|
|
|
|
|
ECOLOCAP SOLUTIONS (CANADA) INC
|
|
|
(ECOLOCAP)
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO: Dr. Tri Vu Truong
|
|
|
|
|
|
Project Proponent: [Chinese translation]:
|
|
|
|
|
Owner: Hebei Jinlong Cement Group Co.,
|
|
|
Ltd (“HJLCC”)
|
|
|
[Chinese translation]
|
|
|
|
SONG, GUOPING
|
|
|
General Director: Song, Guoping
|
|
|
[Chinese
translation]
|
|
|
|
|
|
|
|
|
Witness No 1
[Chinese translation]
|
Witness No 2
[Chinese translation]
|
|
[Signature illegible]
|
[Signature illegible]
|
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 14 of 16
ANNEX I The salient features of HJLCC Project-Using Waste Heat from Cement
Kiln to Generate Powe at Xingtai, Hebei Province, China.
[Chinese translation]
|
No
|
Parameters
|
Units
|
Value
|
|
1
|
[Chinese translation]
|
m
3
/h
|
278000
|
|
2
|
[Chinese translation]
|
[Chinese
translation]
|
330-360
|
|
|
[Chinese translation]
|
t/h
|
20.9
|
|
3
|
[Chinese translation]
|
MPa
|
1.35
|
|
4
|
[Chinese translation]
|
[Chinese translation]
|
2
|
|
5
|
[Chinese translation]
|
[Chinese translation]
|
1
|
|
6
|
[Chinese translation]
|
kW
|
4500
|
|
7
|
[Chinese translation]
|
h/year
|
7684
|
|
8
|
[Chinese translation]
|
10
6
kwh/year
|
31.34
|
|
9
|
[Chinese translation]
|
10
6
kwh/year
|
28.83
|
|
10
|
[Chinese translation]
|
ton Standard
Coal/year
|
10552
|
|
11
|
[Chinese translation]
|
ton/year
|
27646.24
|
|
12
|
[Chinese translation]
|
month
|
12
|
|
13
|
[Chinese translation]
|
10
3
RMB
|
30381.3
|
|
14
|
[Chinese translation]
|
10
3
RMB
|
10761.6
19619.7
|
|
15
|
[Chinese translation]
|
10
3
RMB /year
|
14056.1
|
|
16
|
[Chinese translation]
|
10
3
RMB /year
|
1540
|
|
17
|
[Chinese translation]
|
|
7.94%
|
|
18
|
[Chinese translation]
|
year
|
10.84
|
|
19
|
[Chinese translation]
|
year
|
10
|
ANNEX II Schedule for Project implementation
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 15 of 16
Annex III Work flow of CDM Activity
[Chinese translation]
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 16 of 16
Annex [ ] Address designated
[Chinese translation]
Purchaser:
[Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel: 5148763907
Fax: 5148764080
Email: trivutruong2004@yahoo.ca
Project Proponent:
[Chinese translation]
:
Hebei Jinlong Cement Group Co., Ltd (“HJLCC”)
[Chinese translation]
Address: Shankou Town, Longyao County, Xingtai City, Hebei, 055350, P. R. China
[Chinese translation]
Telephone: 0319-6761188
Fax :
Email: jljt16888@126.com
HJLCC Project-Using Waste Heat from Cement Kiln to Generate Power
[Chinese translation]
Emission Reduction Purchase Agreement
Page 1 of 17
Exhibit 10.16
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP) .
740 St Maurice suite 102
Montreal, Qc H3C1L5
Canada
Tel : 5148763907
Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO : Dr. Tri Vu Truong
and
(the " DAM’ BOR HYDRO POWER - CDM Project Proponent”)., henceforth
“VIETNAM PROJECT PROPONENT”
(“Owner”)
BAO TAN HYDRO ELECTRIC JOINT-STOCK COMPANY
Address: No.3 Bis A, Co Giang st, Ward 9, Da Lat city, Lam Dong province
Telephone: (084) 063-3824041
Fax: (084) 063-3550298
Email: ctcpdienbaotan@yahoo.com
Account number: 64110000417879 Bank for Investment and Development of Vietnam
(VIDV), Lam Dong branch Tax Code: 5800540645
President-CEO: Dinh Van Tung
Both parties have agreed to sign the Reduction Emission Purchase Agreement (Agreement) with the following terms and conditions:
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 2 of 17
|
Interpretation and Definitions
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the meaning
|
|
set forth in the definitions below.
|
|
|
|
Agreement:
|
Means this Emission Reduction Purchase Agreement.
|
|
|
|
Annex B Countries:
|
Means the countries listed in Annex B to the Kyoto Protocol having committed
|
|
|
themselves to reduce or limit their GHG emissions.
|
|
|
|
Annex I Countries:
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I consists of
|
|
|
industrial countries and countries in transition).
|
|
|
|
Anticipated Emission
|
Means up to
24,000 (twenty four thousand)
Certified Emission Reductions
|
|
Reduction:
|
(CERs) per annum during the Crediting Period, anticipated to be generated by the
|
|
|
Project and calculated in accordance with the Kyoto Rules.
|
|
|
|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic emissions of
|
|
|
GHG that would occur in the Host Country in the absence of the Project,
|
|
|
determined in accordance with the Kyoto Rules.
|
|
|
|
Business Day:
|
Means a day on which banks are open for general business in Vietnam.
|
|
|
|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various GHG based
|
|
Equivalent:
|
upon their global warming potential.
|
|
|
|
Certification:
|
Means the written confirmation by an Operational Entity of an Emission
|
|
|
Reduction resulting from a CDM project and having passed the Verification
|
|
|
procedure according to the Kyoto Rules.
|
|
|
|
Certified Emission
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the Kyoto
|
|
Reduction (CER):
|
Protocol and the requirements of the Kyoto Rules (including Certification), equal
|
|
|
to one metric ton of Carbon Dioxide Equivalent resulting from a CDM project.
|
|
|
|
Clean Development
|
Means the flexible mechanism established by Article 12 of the Kyoto Protocol
|
|
Mechanism (CDM):
|
providing for Annex I Countries to implement projects that reduce emissions in
|
|
|
non-Annex I Countries in return for CERs and assist the non-Annex I Countries
|
|
|
in achieving sustainable development and contributing to the ultimate objective
|
|
|
of the UNFCCC.
|
|
|
|
Crediting Period:
|
Means, until December 31, 2026.
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 3 of 17
|
Emission Reduction:
|
Means reduction in emission of GHG achieved, calculated in accordance with the
|
|
|
Kyoto Rules.
|
|
|
|
Executive Board:
|
Means the international authority elected by the representatives of the parties to
|
|
|
the Kyoto Protocol responsible for monitoring the CDM process.
|
|
|
|
First Commitment
|
Means October 30, 2008 until December 31, 2012.
|
|
Period:
|
|
|
|
|
Force Majeure:
|
Means any circumstance or condition beyond the control of either party to this
|
|
|
Agreement affecting the performance of its obligations under this Agreement
|
|
|
including in particular wars, insurrection, natural disaster or equivalent
|
|
|
circumstances.
|
|
|
|
Greenhouse Gases
|
Means the six gases listed in Annex A to the Kyoto Protocol including CO
2
, CH
4
,
|
|
(GHG):
|
N
2
O, HFCs, PFCs and SF
6
|
|
|
|
|
Host Country:
|
Vietnam
|
|
|
|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference of the parties
|
|
|
to the UNFCCC in Kyoto, Japan, on December 11, 1997.
|
|
|
|
Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the Marrakesh
|
|
|
Accords, any relevant decisions, guidelines, modalities and procedures made
|
|
|
pursuant to them and/or any succeeding international agreements as amended
|
|
|
and/or supplemented from time to time and which include those rules specifically
|
|
|
required to be met for the issuing and transfer of CERs.
|
|
|
|
DNA
|
Means the designated National Authority for the CDM in Viet Nam –
|
|
|
Responsible for receiving, assessing and submitting CDM project Idea Note
|
|
|
(PIN) or Project Design Document (PDD) developed by project participants to
|
|
|
the Minister of Ministry of Natural Resources and Environment (MONRE).
|
|
|
|
Letter of Approval
|
Means a binding approval of the Project by the Host Country together with an
|
|
(LOA):
|
approval of the transfer of CERs.
|
|
|
|
Monitoring Report:
|
Means an annual report to be provided by Owner setting out the total number of
|
|
|
Emission Reductions generated by the Project during the previous year according
|
|
|
to the Kyoto Rules, international Monitoring rules and the PDD.
|
|
|
|
Monitoring:
|
Means the collection and record of data allowing the assessment of reductions in
|
|
|
GHG emissions resulting from the Project conducted in accordance with the
|
|
|
Kyoto Rules.
|
|
|
|
Designated
|
Means an independent entity accredited by the Executive Board being the
|
|
Operational Entity
|
executive body for CDM and inter alias responsible for determining whether a
|
|
(DOE):
|
project and the resulting Emission Reductions meet the requirements of Article
|
|
|
12 of the Kyoto Protocol.
|
|
|
|
Project Idea Note
|
Means a brief description providing information on the CDM Project considered
|
|
(PIN)
|
by DNA. In case of permission to list the PIN of the project into the CDM
|
|
|
potential projects in Viet Nam, DNA shall issue Endorsement letter for the
|
|
|
project and allow to formulate PDD.
|
|
|
|
Project Design
|
Means a detailed description of the Project to be submitted for Validation
|
|
Document (PDD):
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive and
|
|
|
attached as Annex [iv]. The Purchaser will be responsible for providing PDD
|
|
|
development for Registration of the Project.
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 4 of 17
|
Project:
|
Means the proposed CDM project described in the PDD and other documents
|
|
|
describing the implementation and economics of the Project attached in Annex
|
|
|
[iii].
|
|
|
|
Registration:
|
Means the official registration of a CDM project by the Executive Board
|
|
|
according to the Kyoto Rules.
|
|
|
|
UNFCCC:
|
Means the United Nations Framework Convention on Climate Change adopted in
|
|
|
New York on May 9, 1992.
|
|
|
|
Unit Price:
|
Means the price payable by Purchaser to Project Proponent per Certified
|
|
|
Emission Reduction (CER) unit:
|
|
|
|
|
The purchase unit price paid by EcoloCap Solutions Canada Inc. to Viet Nam
|
|
|
Project Proponent for the CER is fixed at (12)$US/CE for the year 2008 to 2012
|
|
|
and a new agreement for purchase unit price will be negotiated for the next two
|
|
|
periods of extension.
|
|
|
|
|
The amount paid to the Viet Nam Project Proponent for the total certified CER
|
|
|
generated from this project is fixed at (85)% of the total value of CER calculated
|
|
|
at this above mentioned purchase price ($(12)US).
|
|
|
|
|
For the first payment, a one time amount of (75,000)US) will be paid to Ecolocap
|
|
|
Solutions Inc for the reimbursement to Ecolocap for its advance cash for the costs
|
|
|
relating to CDM process. Other expenses will be paid by Ecolocap.
|
|
|
|
Term:
|
Ecolocap Solutions inc will purchase certified CER generated by this project for
|
|
|
the year 2008 to 2012 with options of extension for two other periods of 7 years,
|
|
|
the period 2013-2026, with the same terms and conditions except for the price
|
|
|
which will be renegotiated.
|
|
|
|
|
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an Operational
|
|
|
Entity, determining its compliance with the Kyoto Rules.
|
|
|
|
Verification:
|
Means the periodic independent review and ex post determination of the
|
|
|
monitored reductions in GHG emissions that the Project has achieved during a
|
|
|
specified period of time by an Operational Entity in accordance with the Kyoto
|
|
|
Rules. The project's owner will be Responsible for providing periodical
|
|
|
monitoring.
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to legal
|
|
provisions are references to such provisions as in effect from time to time, use of a gender includes any
|
|
gender and use of the plural includes the singular and vice versa where the context requires.
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this Agreement or
|
|
taken into consideration in its interpretation.
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 5 of 17
|
1.
|
Pr
eamble
|
|
|
|
|
The DaM’ Bor Hydro Power Project, in Loc Bac ward – Bao Lam district – Lam Dong
|
|
|
Province, belongs to Bao Tan Hydro Electric Joint-Stock Company Owner, which was approved
|
|
|
to establish the feasibility study according to Decision No 8154/UBND dated on November 21,
|
|
|
2007 by the Chairman of Lam Dong province People Committee. Overview of the project is
|
|
|
described in the feasibility Study attached as Annex [iii],
|
|
|
|
|
|
2.
|
Contractual Obligations
|
|
|
|
2.1.
|
Anticipated Emission Reductions
|
|
|
|
2.1.1.
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
accordance with the PDD and other documents describing the implementation and economics of
|
|
|
the project attached in [Annex iv] at its own risk and expense (Annex ii). It is hereby
|
|
|
acknowledged and agreed between the parties hereto that Purchaser does not warrant the
|
|
|
generation of, and is not obliged to generate, any CERs, whether by the Project or otherwise.
|
|
|
|
2.1.2.
|
If the Project generates CERs, during the crediting period Project Proponent shall, to the extent
|
|
|
it is legally possible and permissible, exclusively transfer to Purchaser all rights (and, to the
|
|
|
extent legally possible and permissible, legal title) which Project Proponent may have in the
|
|
|
Anticipated Emission Reductions.
|
|
|
|
2.1.3.
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are transferred to
|
|
|
Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.6.
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each Additional
|
|
|
Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.2.
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period. Purchaser
|
|
|
shall enter into negotiations with Project Proponent with a view to concluding an agreement on
|
|
|
the purchase of such Certified Emission Reductions based on the principles of this Agreement
|
|
|
but amended in order to reflect the international and/or national rules then applicable.
|
|
|
|
2.3.
|
Production Check
|
|
|
|
2.3.1.
|
Obligation of Purchaser:
|
|
|
|
|
To comply with standards and requirements of Vietnam government related to CDM.
|
|
|
|
2.3.2.
|
To satisfy the rules and the requirements of Kyoto Protocol;
|
|
|
|
2.3.3.
|
To meet the requirements of validation, monitoring, verification and CDM procedure issued by
|
|
|
EB.
|
|
|
|
2.3.4.
|
The Project Proponent shall be responsible to provide necessarily appropriate and real
|
|
|
information for the project implementation (Annex I, ii, iii, iv)
|
|
|
|
2.3.5.
|
The Product/Project shall be considered to be successful only when Purchaser receive amount of
|
|
|
money as being mentioned in this agreement.
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 6 of 17
|
2.4.
|
Schedule for CDM procedure
|
|
|
|
2.4.1.
|
Upon the signature of the ERPA contract, Purchaser shall develop the Project Idea Note
(PIN)
|
|
|
and send it to Project Proponent for submitting to Department of Resources and Environment of
|
|
|
Viet Nam (DONRE) with all necessary legal documents. The DONRE’s endorsement letter shall
|
|
|
be done expectedly within a month.
|
|
|
|
2.4.2.
|
After having the endorsement letter of PIN from DONRE, Purchaser shall submit the Project
|
|
|
Design Document
(PDD)
of the Project with all necessary legal documents to DONRE for
|
|
|
appraisal and approval within 2-3 months. The PDD of the Project which has been written by
|
|
|
consultant shall also be considered and revised by Purchaser during this period of time.
|
|
|
|
2.4.3.
|
The Purchaser’s consultant shall improve and edit the PDD within one month, following the oral
|
|
|
presentation of the PDD of the Project to DONRE, in order to get DNA’s Approval letter [Letter
|
|
|
of Approval
(LOAN)
]
|
|
|
|
2.4.4.
|
Validation report shall completed by Designated Operational Entity
(DOE)
and the Purchaser’s
|
|
|
consultant within the period of 3-4 months after DNA’s approval.
|
|
|
|
2.4.5.
|
After meeting the requirements of validation by DOE, CDM project will be submitted to
|
|
|
Executed Board
(EB)
for final appraisal and approval within the period of 2-3 months.
|
|
|
|
2.4.6.
|
Following the first verification of DOE for the implementation of the CDM project and the
|
|
|
monitoring of GHG reduction, the CER’s certificate will be issued by
EB
.
|
|
|
|
|
|
3.
|
Transfer
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible, legal
|
|
|
title) which Project Proponent may have in a Certified Emission Reduction shall have occurred
|
|
|
upon the transfer of a CER’s certificate from the register of the Executive Board to a register in
|
|
|
favor of Purchaser. This transfer shall be made immediately as soon as the EB officially
|
|
|
approved the Project registration.
|
|
|
|
|
|
4.
|
Payment
|
|
|
|
4.1.
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions shall be made
|
|
|
within 50 Business Days after the CER’s certificate is delivered to Purchaser. Purchaser shall
|
|
|
transfer money into the account of Project Proponent, after the CER certificate is issued by the
|
|
|
EB following each monitoring realized by the DOE.
|
|
|
|
4.1.2.
|
All payments shall be made through the account of Ecolocap which has been registered for the
|
|
|
Project when the PDD is submitted to EB for approval. This account is in the EB’s common
|
|
|
account.
|
|
|
|
4.1.3.
|
All payments shall be made in US Dollars.
|
|
|
|
4.2.
|
Cost and Expenses
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 7 of 17
|
4.2.1.
|
Subject to clause 4.2.2 below, all taxes, fees, costs or other expenses in connection with the
|
|
|
Registration and the transfer of CERs shall be borne by Purchaser including VAT, if any,
|
|
|
according to VAT law applied in Vietnam.
|
|
|
|
4.2.2.
|
The share of the proceeds from CERs generated by the Project which will be used to cover
|
|
|
necessary administrative expenses and/or to assist developing countries that are particularly
|
|
|
vulnerable to the adverse effects of climate change to meet the costs of adaptation (if any)
|
|
|
according to the Kyoto Rules shall be divided respectively in a proportion of 85% and 15%
|
|
|
between Project Proponent and Purchaser.
|
|
|
|
4.2.3.
|
The project Proponent should provide necessary information to the Purchaser for the preparation
|
|
|
of documents required for PIN (project idea note), PDD (project design document), the
|
|
|
validation, the verification/certification, and the registration with CDM Executive Board (Annex
|
|
|
i). All costs accrued to each of the Parties in negotiating, preparing, executing and carrying into
|
|
|
effect of this Agreement, shall be borne by each of the Parties themselves.
|
|
|
|
|
|
5.
|
Termination and Remedies
|
|
|
|
5.1.
|
|
|
|
Either Party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
written notice to the other Party with immediate effect if any of the following events occurs:
|
|
|
|
5.1.1.
|
The other Party commits a breach of any of its obligations under this Agreement and, in the case
|
|
|
of a breach capable of being remedied, such breach remains for more than 30 Business Days
|
|
|
after it has been requested in writing by the Non-defaulting Party to remedy the breach; or
|
|
|
|
5.1.2.
|
The other Party goes into liquidation (whether voluntary or otherwise), is unable to pay
|
|
|
its debts as they fall due, is wound up, makes any compromise, composition or other
|
|
|
arrangement with its creditors generally, or becomes subject to any administration
|
|
|
order.
|
|
|
|
5.2.
|
Force Majeure
|
|
|
|
|
Should either Party be impeded wholly or in part from fulfilling any of its obligations under the
|
|
|
Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent and
|
|
|
for as long as such obligation is affected by Force Majeure and the impeded Party shall be
|
|
|
entitled to such extension of time as may be reasonably necessary.
|
|
|
|
|
Either Party shall notify the other Party of the existence and date of beginning of an event of
|
|
|
Force Majeure that is likely to impede its performance under the Agreement within 20 Business
|
|
|
Days after having obtained knowledge of any such event. Either Party shall likewise advise the
|
|
|
other of the date when such event ended and shall also specify the re-determined time by which
|
|
|
the performance of its obligations hereunder is to be completed.
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining any
|
|
|
further appropriate action if a condition of Force Majeure is to continue after 20 Business Days
|
|
|
from the date of giving notice thereof.
|
|
|
|
|
Neither Party shall be liable for damages or have the right to terminate this Agreement for any
|
|
|
delay in performing hereunder if such delay is caused by Force Majeure; provided, however,
|
|
|
that the non-impeded Party shall be entitled to terminate such part of the Agreement that
|
|
|
remains unfulfilled, if the condition of Force Majeure is to continue after 6 months from the
|
|
|
date of giving notice thereof.
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 8 of 17
|
6.
|
Change in Circumstances
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards relating
|
|
|
to the Baseline methodology and/or the applicable criteria for Verification and Certification of
|
|
|
the resulting Emission Reductions) occurs which substantially affects the Project, the parties to
|
|
|
this Agreement shall enter into negotiations with a view to adapt the Project and its
|
|
|
implementation or any relevant provision of this Agreement, as may be necessary or useful. A
|
|
|
change in circumstances shall in no event be considered substantially affecting the Project if at
|
|
|
least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
|
|
The parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term
|
|
|
of this Agreement fails to be approved by such authority whose approval is required
|
|
|
under the Kyoto Rules or otherwise appears to be non-compliant with any relevant
|
|
|
standards or conditions of the Kyoto Rules, Project Proponent and Purchaser shall
|
|
|
discuss whether or not the relevant documents are to be revised and resubmitted.
|
|
|
|
7.
|
Conditions Precedent
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
|
|
|
8.
|
Miscellaneous
|
|
|
|
8.1.
|
Assignment and subcontracting
|
|
|
|
|
Because the interests of Project Proponent is paid by Purchaser, Project Proponent shall not,
|
|
|
without the written consent of Purchaser, assign or transfer the Agreement or the benefits or
|
|
|
obligations thereof or any part thereof to any other person.
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any third party
|
|
|
(“assignee”) without consent of Project Proponent. However, Purchaser shall inform Project
|
|
|
Proponent for these transfers if any. Rights and obligations between Purchaser and Project
|
|
|
Proponent remain the same after the transfer.
|
|
|
|
|
Within 90 business days before the first commitment period come to an end, both parties shall
|
|
|
renegotiate to continue the agreement. If over 30 days, starting the day on which the first
|
|
|
commitment period ends, both Parties can not come to an agreement. Project Proponent has full
|
|
|
power to assign the Agreement to any other person without legal ties from Purchaser.
|
|
|
|
8.2.
|
Confidentiality and Disclosure
|
|
|
|
|
The parties shall treat as confidential all information obtained as a result of entering into or
|
|
|
performing this Agreement which relates to the provisions of this Agreement, the negotiations
|
|
|
relating to this Agreement and the subject matter of this Agreement.
|
|
|
|
|
No Party shall disclose any such confidential information to any third party, except in those
|
|
|
circumstances where disclosure is required in order to comply with any laws or regulations,
|
|
|
including without limitations the Kyoto Rules.
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 9 of 17
|
8.3
|
Notices
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be made in
|
|
|
writing (including by facsimile) to the address or facsimile number, from time to time
|
|
|
designated by the Party to whom the communication is to be made to the other Party for that
|
|
|
purpose.
|
|
|
|
|
A communication shall only be considered as legal effedt if it is posted and confirmed by both
|
|
|
Parties.
|
|
|
|
8.4
|
Entire Agreement
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to the
|
|
|
subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly referred
|
|
|
to herein, or attached hereto, or specifically incorporated by reference herein. The Annexes and
|
|
|
schedules to this Agreement constitute integral parts of this Agreement and shall therefore be
|
|
|
deemed part of this Agreement.
|
|
|
|
8.5
|
Amendments
|
|
|
|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
|
|
|
8.6
|
Severability
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any
|
|
|
respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in
|
|
|
the Agreement resulting there from shall be amended by way of interpretation of the Agreement
|
|
|
having due regard to the parties intent.
|
|
|
|
8.7
|
Governing law
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law excluding its
|
|
|
rules on conflicts of laws.
|
|
|
|
8.8
|
Jurisdiction
|
|
|
|
|
The Parties irrevocably submit to the exclusive jurisdiction of the courts having jurisdiction in
|
|
|
commercial matters in Singapore with regard to all disputes arising out of or in connection with
|
|
|
this Agreement, its violation, termination or nullity.
|
|
|
|
8.9
|
Counterparts
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project Proponent and
|
|
|
one for Purchaser. If there are any discrepancies between the English and the Vietnamese
|
|
|
version, the English version will prevail .
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 10 of 17
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as
outlined above, this 5th day of August 2008, in the presence of:
Purchaser:
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President CEO : Dr. Tri Vu Truong
|
|
|
|
|
|
|
|
Project Proponent:
|
|
|
|
|
|
|
|
|
|
|
DINH VAN TUNG
|
|
|
General Director: Dinh Van Tung
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
|
|
|
|
|
|
|
|
|
BUI THI LAN HUONG
|
NGUYEN UY HUNG
|
|
MSc. Bui Thi Lan Huong
|
Nguyen Uy Hung
|
|
Biology Energy-Waste Treatment
|
Vietnam
|
|
(Vietnam) Ltd.
|
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 11 of 17
ANNEX i:
1. The salient features of DaM’ Bor Hydro Power Project in Loc Bao Commune, Bao Lam
District, Lam Dong Province, Vietnam.
|
No
|
Parameters
|
Symbols
|
Units
|
Value
|
|
|
TECHNICAL
|
|
|
|
|
1
|
Catchment area
|
F
|
km
2
|
22.11
|
|
2
|
Long-term average annual rainfall
|
Xo
|
mm
|
1353
|
|
3
|
Average flow
|
Q
0
|
m
3
/s
|
0.863
|
|
4
|
Total amount of average annual flow
|
W
0
|
106m3/yr
|
27.22
|
|
5
|
Specific runoff
|
M
0
|
l/s.km
2
|
42.91
|
|
6
|
Normal water level
|
MNDBT
|
m
|
632.00
|
|
7
|
Dead water level
|
MNC
|
m
|
629.6
|
|
8
|
Designated Flood water level
|
MNLTK
|
m
|
634.79
|
|
9
|
Verified flood water level
|
MNLKT
|
m
|
635.30
|
|
10
|
Surface area with normal water level
|
F
|
Km
2
|
0.11
|
|
11
|
Designed head
|
H
u
|
m
|
334.48
|
|
12
|
Msximum Head
|
H
max
|
m
|
340.45
|
|
13
|
Minimum head
|
H
min
|
m
|
332.48
|
|
14
|
Average head
|
H
bq
|
m
|
337.38
|
|
15
|
Designed discharge
|
Q
TK
|
m
3
/s
|
3.60
|
|
16
|
Designed flood discharge p = 1.0%
|
Q1.0%
|
m
3
/s
|
198.00
|
|
17
|
Designed flood discharge p = 0.2%
|
Q
0.2
|
m
3
/s
|
258.00
|
|
18
|
Firm flow with capacity 85%
|
Q
85
|
m
3
/s
|
0.70
|
|
19
|
Maximum flow
|
|
m
3
/s
|
3.60
|
|
20
|
Installation capacity
|
Nlm
|
MW
|
9.60
|
|
21
|
Elevation of machine installation
|
|
M
|
285.00
|
|
22
|
Firm capacity P 85%
|
Ndb
|
MW
|
2.64
|
|
23
|
Number of united
|
Z
|
Unit
|
3
|
|
24
|
Capacity of each unit
|
|
KW
|
3200
|
|
25
|
Firm Electricity generation
|
E
db
|
10
6
kWh
|
|
|
26
|
Estimated Annual Electricity generation
|
Eo
|
10
6
kWh
|
42.75
|
|
27
|
Estimated Annual Operation Hours
|
H
sd
|
H
|
4453.00
|
|
28
|
Annual estimation of the emission reduction, tCO
2
eq
|
CERs
|
tCo
2
eq
|
24,000
|
|
29
|
Is it run off river hydropower plant?
|
|
Yes/No
|
Yes
|
|
30
|
Type of Hyddro power plant?
|
|
Ground/
Underground
|
Ground
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 12 of 17
|
31
|
Type of Turbine?
|
|
|
CJA237-
W
-12532x11
|
|
32
|
New hydropower project with reservoirs having
power densities (installed capacity devided by the
surface area at full reservoir level) greater than 4
W/m
2
|
|
Yes/No
|
Yes
(87.3)
|
|
33
|
Elevation of dam from foundation
|
|
m
|
|
|
34
|
Kind of dam
|
|
|
Gravity
Dam
|
|
35
|
Elevation of dam
|
|
m
|
636.50
|
|
36
|
Maximum elevation of dam
|
|
|
13.60
|
|
37
|
Breadth of dam
|
|
m
|
12.79
|
|
38
|
Spillway discharge
|
|
m
3
/S
|
258.00
|
|
39
|
Reservoir volume
|
|
10
6
m
3
|
0.06
|
|
40
|
Reservoir surface?
|
|
ha
|
1.13
|
|
41
|
Useful reservoir volume
|
|
10
6
m
3
|
0.03
|
|
42
|
Dead reservoir volume
|
|
10
6
m
3
|
0.03
|
|
43
|
Geological and hydrogeological risk assessment has
been performed? (If yes, please provide copies
separately)
|
|
Yes/No
|
No
|
|
44
|
What is the total areas (upstream and downstream of
the dam) which will be flooded at the maximum
water level of the reservoir?
|
|
ha
|
1.57
|
|
45
|
Material mine area
|
|
ha
|
2.00
|
|
46
|
Area of main category construction resettleing
|
|
ha
|
20.00
|
|
|
Spillway
|
|
|
|
|
47
|
Kind of overflow
|
|
|
Free
spillway
|
|
48
|
Dimension
|
|
m
|
20.00
|
|
49
|
Height of overflowed threshold
|
|
m
|
632.00
|
|
50
|
Spillway crest length
|
|
m
|
20.00
|
|
|
Water inlet
|
|
|
|
|
51
|
Type of water inlet?
|
|
|
Unpressed
|
|
52
|
Designed discharge
|
Q
tk
|
m
3
/s
|
3.60
|
|
53
|
Valve door
|
(BxH)
|
m
|
2.10
x1.85
|
|
54
|
Screen cleaner – dimension
|
(BxH)
|
m
|
2.65x2.35
|
|
|
Canal ditch
|
|
|
|
|
55
|
Type of canal ditch?
|
|
|
Steel
concrete
|
|
56
|
Dimension
|
(D)
|
m
|
1.80
x2.20
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 13 of 17
|
57
|
Designed discharge
|
(Q)
|
m3/s
|
3.60
|
|
58
|
Length
|
(L)
|
m
|
3658.23
|
|
|
Pressure pipe
|
|
|
|
|
|
|
59
|
Type of Pressure pipe?
|
|
|
Steel
concrete
|
|
60
|
Dimension
|
(D)
|
m
|
1.8x2.2
|
|
61
|
Designed discharge
|
(Q)
|
m3/s
|
3.60
|
|
62
|
Length
|
(L)
|
m
|
3658.23
|
|
63
|
Is there any risk assessment conducted to evaluate
dam breakage on downstream population?
|
|
Yes/No
|
No
|
|
64
|
Hydropower plant will put on-line the grid? What is
the distance from dam up to local/national grid for
connection?
|
|
km
|
30.00
|
|
65
|
Which portion of all required infrastructures for dam
construction including access roads, grid connection,
etc/have been built?
|
|
Yes/No
|
No
|
|
|
ECOLOGICAL
|
|
|
|
|
66
|
Are there any other areas on or around the location
which are important or sensitive for reasons of their
ecology e.g. wetlands, watercourses or other
waterbodies, the coastal zone, mountains, protected
forests or woodlands, which could be affected by the
project?
|
|
Yes/No
|
No
|
|
67
|
Are there any areas on or around the location which
contain important, high quality or scarce resources
e.g. groundwater, surface waters, forestry,
agriculture, fisheries, minerals, which could be
affected by the project?
|
|
Yes/No
|
No
|
|
68
|
Is the project location susceptible to earthquakes,
subsidence, landslides, erosion, flooding or extreme
or adverse climatic conditions e.g. temperature
inversions, fogs, severe winds, which could cause the
project to present environmental problems?
|
|
Yes/No
|
No
|
|
|
SOCIAL
|
|
|
|
|
69
|
Are there existing land uses on or around the location
e.g. homes, other private property, industry,
commerce, historic or cultural importance, public
open space, community facilities, agriculture,
forestry, tourism, mining or quarrying which could be
affected by the project?
|
|
Yes/No
|
Yes
|
|
70
|
Forecast displaced population
|
|
Persons
|
No
|
|
|
LEGAL
|
|
|
|
|
71
|
Project has been accepted by all concerned
stakeholders (developer, community, population,
Ministry of Resource Environment or other
governmental agencies) ? (If yes, please provide
copies separately)
|
|
Yes/No
|
Not yet
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 14 of 17
|
|
FINANCIAL
|
|
|
|
|
72
|
Other client except local / national grid to buy the
|
|
Yes/No
|
No
|
|
|
electricity?
|
|
|
|
|
73
|
Selling price of electricity?
|
|
USD/kw-h
|
0.0468
|
|
74
|
Total forecasted investment cost (interest not
included)
|
|
106 USD
|
215.10
|
|
75
|
Amount in equity currently available?
|
|
106USD
|
58.66
|
|
76
|
Secured borrow amount?
|
a. VN
currency
|
106USD
%
|
79.04
14.00
|
|
77
|
Borrow secured interest rate(s)?
|
b. Foreign
currency
|
%
|
7.50
|
|
78
|
If financing has not completed, which amount is
missing to complete financing?
|
|
106USD
|
57.84
|
|
79
|
What is forecasted IRR of the project without
supplement money of CDM?
|
|
%
|
12.02
|
|
80
|
What is forecasted IRR of the project with
supplement money of CDM?
|
|
%
|
15.18
|
|
81
|
What is the forecasted Return On Investment (ROI)
of the project?
|
|
%
|
51.84
|
|
82
|
Forecasted financial compensation (land, tree, farm,
property, etc…)
|
|
106USD
|
4.00
|
|
83
|
Compensation costs, grid connection costs are all
included in the total investment cost?
|
|
Yes/No
|
Yes
|
|
84
|
Investment cost (interest not included) for 1 MW?/
|
|
106USD
|
20.37
|
|
85
|
Financing characterization
Equity
Bank
Government subsidy
Government loan
Other
|
|
%
%
%
%
%
|
30.00
70.00
0.00
0.00
0.00
|
2. Project time schedule.
-
Year of 2008: Designing technique, level ground.
-
Year of 2009: Starting construction in beginning of year.
-
Year of 2010: Generate electricity the first team in June, complete in the end of the year
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 15 of 17
ANNEX ii:
WORK FLOW OF CDM ACTIVITY
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 16 of 17
ANNEX iii:
SUMMARY OF FEASIBILITY STUDY (FS) AND
ENVIRONMETAL IMPACT ASSESSMENT (EIA)
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 17 of 17
ANNEX iv:
PROJECT DEVELOPMENT DOCUMENT (PDD)
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-14
:
Emission Reduction Purchase Agreement
Page 1 of 12
Exhibit 10.17
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
between
(the "Purchaser")
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP) .
740 St Maurice suite 102
Montreal, Qc H3C1L5 Canada
Tel : 5148763907
Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO : Dr. Tri Vu Truong
and
(the " THEN SIN Hydro Power - CDM Project Proponent”).,
henceforth “VIETNAM PROJECT PROPONENT”
Owner:
CONSTRUCTION AND INFRASTRUCTION DEVELOPMENT JOINT-STOCK
COMPANY NUMBER NINE
Address: 201 Min Knai Street, Hai Ba Trung District, Hanoi
Telephone: + 0084 4 5665002 - 5665003
Fax : +0084 4 5665002 - 5665003
Email: tvlong@thpcorp.com.vn
Director: Tran Xuan Hoan
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 2 of 12
|
Interpretation and Definitions
|
|
In this Agreement, unless otherwise required by the context, all capitalized terms shall have the meaning
|
|
set forth in the definitions below.
|
|
|
|
Additional Emission
|
Means any Certified Emission Reduction (CER) generated by the Project that is
|
|
Reduction:
|
in excess of [50,000] Certified Emission Reductions (CERs) per annum.
|
|
|
|
Agreement:
|
Means this Emission Reduction Purchase Agreement.
|
|
|
|
Annex B Countries:
|
Means the countries listed in Annex B to the Kyoto Protocol having committed
|
|
|
themselves to reduce or limit their GHG emissions.
|
|
|
|
Annex I Countries:
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I consists of
|
|
|
industrial countries and countries in transition).
|
|
|
|
Anticipated Emission
|
Means up to [50,000] Certified Emission Reductions (CERs) per annum during
|
|
Reduction:
|
the Crediting Period, anticipated to be generated by the Project and calculated in
|
|
|
accordance with the Kyoto Rules.
|
|
|
|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic emissions of
|
|
|
GHG that would occur in the Host Country in the absence of the Project,
|
|
|
determined in accordance with the Kyoto Rules.
|
|
|
|
Business Day:
|
Means a day on which banks are open for general business in Vietnam.
|
|
|
|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various GHG based
|
|
Equivalent:
|
upon their global warming potential.
|
|
|
|
Certification:
|
Means the written confirmation by an Operational Entity of an Emission
|
|
|
Reduction resulting from a CDM project and having passed the Verification
|
|
|
procedure according to the Kyoto Rules.
|
|
|
|
Certified Emission
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the Kyoto
|
|
Reduction (CER):
|
Protocol and the requirements of the Kyoto Rules (including Certification), equal
|
|
|
to one metric ton of Carbon Dioxide Equivalent resulting from a CDM project.
|
|
|
|
Clean Development
|
Means the flexible mechanism established by Article 12 of the Kyoto Protocol
|
|
Mechanism (CDM) :
|
providing for Annex I Countries to implement projects that reduce emissions in
|
|
|
non-Annex I Countries in return for CERs and assist the non-Annex I Countries
|
|
|
in achieving sustainable development and contributing to the ultimate objective
|
|
|
of the UNFCCC.
|
|
|
|
Crediting Period:
|
Means, until December 31, 2026.
|
|
|
|
Emission Reduction:
|
Means reduction in emission of GHG achieved, calculated in accordance with the
|
|
|
Kyoto Rules.
|
|
|
|
Executive Board:
|
Means the international authority elected by the representatives of the parties to
|
|
|
the Kyoto Protocol responsible for monitoring the CDM process.
|
|
|
|
First Commitment
|
Means 2
nd
August 2008 until December 31, 2012.
|
|
Period:
|
|
|
|
|
Force Majeure:
|
Means any circumstance or condition beyond the control of either party to this
|
|
|
Agreement affecting the performance of its obligations under this Agreement
|
|
|
including in particular wars, insurrection, natural disaster or equivalent
|
|
|
circumstances.
|
|
|
|
Greenhouse Gases
|
Means the six gases listed in Annex A to the Kyoto Protocol.
|
|
(GHG):
|
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 3 of 12
|
Host Country:
|
Vietnam
|
|
|
|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference of the parties
|
|
|
to the UNFCCC in Kyoto, Japan, on December 11, 1997.
|
|
|
|
Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the Marrakesh
|
|
|
Accords, any relevant decisions, guidelines, modalities and procedures made
|
|
|
pursuant to them and/or any succeeding international agreements as amended
|
|
|
and/or supplemented from time to time and which include those rules specifically
|
|
|
required to be met for the issuing and transfer of CERs.
|
|
|
|
Letter of Approval
|
Means a binding approval of the Project by the Host Country together with an
|
|
(LOA):
|
approval of the transfer of CERs.
|
|
|
|
Monitoring Report:
|
Means an annual report to be provided by Owner setting out the total number of
|
|
|
Emission Reductions generated by the Project during the previous year according
|
|
|
to the Kyoto Rules, international Monitoring rules and the PDD.
|
|
|
|
Monitoring:
|
Means the collection and record of data allowing the assessment of reductions in
|
|
|
GHG emissions resulting from the Project conducted in accordance with the
|
|
|
Kyoto Rules.
|
|
|
|
Operational Entity:
|
Means an independent entity accredited by the Executive Board being the
|
|
|
executive body for CDM and inter alias responsible for determining whether a
|
|
|
project and the resulting Emission Reductions meet the requirements of Article
|
|
|
12 of the Kyoto Protocol.
|
|
|
|
Project Design
|
Means a detailed description of the Project to be submitted for Validation
|
|
Document (PDD):
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive and
|
|
|
attached as Annex III. The Purchaser will be responsible for providing PDD
|
|
|
development for Registration of the Project.
|
|
|
|
Project:
|
Means the proposed CDM project described in the PDD and other documents
|
|
|
describing the implementation and economics of the Project attached in Annex
|
|
|
IV.
|
|
|
|
Registration:
|
Means the official registration of a CDM project by the Executive Board
|
|
|
according to the Kyoto Rules.
|
|
|
|
UNFCCC:
|
Means the United Nations Framework Convention on Climate Change adopted in
|
|
|
New York on May 9, 1992.
|
|
|
|
Unit Price:
|
Means the price payable by Purchaser to Project Proponent per Certified
|
|
|
Emission Reduction (CER) unit:
|
|
|
|
|
The purchase unit price paid by EcoloCap Solutions Canada Inc. to Viet Nam
|
|
|
Project Proponent for the CER is fixed at (12)$US/CER, less applicable tax and
|
|
|
sale commission, for the year 2008 to 2012 and a new agreement for purchase
|
|
|
unit price will be negociated for the two periods of extention.
|
|
|
|
|
The amount paid to the Viet Nam Project Proponent for the total certified CER
|
|
|
generated from this project is fixed at (85)% of the total value of CER at this
|
|
|
above mentioned purchase price ($12US), less commission, applicable tax and
|
|
|
the one time reimbursement of an amount of $75,000 USD to Ecolocap Solutions
|
|
|
inc for funding the CDM process.
|
|
|
|
|
TERM:
|
|
|
|
|
Ecolocap Solutions inc will purchase certified CER generated by this project for
|
|
|
the year 2008 to 2012 with options of extension for two other periods of 7 years,
|
|
|
the period 2012-2026, under same terms and conditions.
|
|
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 4 of 12
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an Operational
|
|
|
Entity, determining its compliance with the Kyoto Rules.
|
|
|
|
Verification:
|
Means the periodic independent review and ex post determination of the
|
|
|
|
|
monitored reductions in GHG emissions that the Project has achieved during a
|
|
|
|
|
specified period of time by an Operational Entity in accordance with the Kyoto
|
|
|
|
|
Rules. The project's owner will be Responsible for providing periodical
|
|
|
|
|
monitoring.
|
|
|
|
|
|
Unless otherwise specified, references to clauses are to clauses of this Agreement, references to legal
|
|
provisions are references to such provisions as in effect from time to time, use of a gender includes any
|
|
gender and use of the plural includes the singular and vice versa where the context requires.
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this Agreement or
|
|
taken into consideration in its interpretation.
|
|
|
|
|
|
1. Preamble
|
|
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
|
|
|
2.
|
|
Contractual Obligations
|
|
|
|
2.1.
|
|
Anticipated Emission Reductions
|
|
|
|
2.1.1.
|
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
|
accordance with the PDD and other documents describing the implementation and economics of
|
|
|
|
the project attached in Annex IV at its own risk and expense. It is hereby acknowledged and
|
|
|
|
agreed between the parties hereto that Purchaser does not warrant the generation of, and is not
|
|
|
|
obliged to generate, any CERs, whether by the Project or otherwise.
|
|
|
|
2.1.2.
|
|
If the Project generates CERs, during the crediting period Project Proponent shall, to the extent
|
|
|
|
it is legally possible and permissible, exclusively transfer or cause to be transferred to Purchaser
|
|
|
|
all rights (and, to the extent legally possible and permissible, legal title) which Project
|
|
|
|
Proponent may have in the Anticipated Emission Reductions generated during the Crediting
|
|
|
|
Period to Purchaser.
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are transferred to
|
|
|
|
Purchaser in accordance with clause 3 below.
|
|
|
|
2.2.
|
|
Additional Emission Reductions
|
|
|
|
2.2.1.
|
|
If Additional Emission Reductions are generated by the Project during the Crediting Period,
|
|
|
|
Project Proponent shall offer any Additional Emission Reductions to Purchaser subject to the
|
|
|
|
terms and conditions of this Agreement and at a price per Additional Emission Reduction equal
|
|
|
|
to the Unit Price. If Purchaser does not wishes to exercise the purchase option then Project
|
|
|
|
Proponent may deal with the Additional Emission Reductions as it wishes.
|
|
|
|
2.2.2.
|
|
Additional Emission Reductions offer by the Purchaser shall be made as soon as possible after
|
|
|
|
such Additional Emission Reductions have been generated, but no later than December 31 of
|
|
|
|
the year subsequent to the calendar year in which such Additional Emission Reductions have
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 5 of 12
|
|
|
been generated.
|
|
|
|
2.2.3.
|
|
Purchaser shall be entitled to accept such offer as a whole or in part and shall notify to Project
|
|
|
|
Proponent within one month after receipt of such offer, whether and to what extent it accepts the
|
|
|
|
offer. If Purchaser does not respond within this deadline the offer shall be deemed to be rejected
|
|
|
|
by Purchaser.
|
|
|
|
2.2.4.
|
|
To the extent Purchaser accepts the offer, Project Proponent shall, to the extent it is legally
|
|
|
|
possible and permissible, transfer or cause to be transferred to Purchaser all rights (and, to the
|
|
|
|
extent legally possible and permissible, legal title) which Project Proponent may have in those
|
|
|
|
Additional Emission Reductions in respect of which Purchaser has accepted such offer, within
|
|
|
|
two months after acceptance of such offer by Purchaser.
|
|
|
|
2.2.5.
|
|
To the extent Purchaser rejects such offer of Additional Emission Reductions or such offer is
|
|
|
|
deemed rejected by Purchaser, Project Proponent shall be free to enter into contracts with other
|
|
|
|
parties for the sale of such Additional Emission Reductions or to otherwise deal with such
|
|
|
|
Additional Emission Reductions as Project Proponent wishes.
|
|
|
|
2.2.6.
|
|
Purchaser shall pay to Project Proponent a price equal to the Unit Price for each Additional
|
|
|
|
Emission Reduction in respect of which Purchaser has accepted such offer.
|
|
|
|
2.3.
|
|
Emission Reductions generated after the Crediting Period
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period, Purchaser
|
|
|
|
shall enter into negotiations with Project Proponent with a view to concluding an agreement on
|
|
|
|
the purchase of such Certified Emission Reductions based on the principles of this Agreement
|
|
|
|
but amended in order to reflect the international and/or national rules then applicable.
|
|
|
|
|
|
3.
|
|
Transfer
|
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and permissible, legal
|
|
|
|
title) which Project Proponent may have in a Certified Emission Reduction shall have occurred
|
|
|
|
upon the transfer of a CER from the register of the Executive Board to a register in favor of
|
|
|
|
Purchaser or such other account or register Purchaser has notified to Project Proponent in
|
|
|
|
writing.
|
|
|
|
|
|
4.
|
|
Payment
|
|
|
|
4.1.
|
|
Payment for Certified Emission Reductions
|
|
|
|
4.1.1.
|
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions (the rights in
|
|
|
|
which are transferred pursuant to clause 3) shall be made on the last Business Day of the month
|
|
|
|
in which a 40 Business Day period, starting at the day on which Purchaser has received
|
|
|
|
satisfactory evidence of the transfer as provided for in Clause 3, has elapsed.
|
|
|
|
4.1.2.
|
|
All payments shall be made to the accounts specified in Annex [I] hereto or such other account
|
|
|
|
as may from time to time be notified to the other party in writing.
|
|
|
|
4.1.3.
|
|
All payments shall be made in US Dollars.
|
|
|
|
4.1.4.
|
|
Subject to clause 4.1.5 below, all taxes, fees, costs or other expenses in connection with the
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 6 of 12
|
|
|
generation of CERs by the Project and their Registration and transfer (including VAT in any
|
|
|
|
jurisdiction Purchaser duly notifies Project Proponent to transfer CERs as in Clause 3, if
|
|
|
|
applicable) shall be borne by Project Proponent and purchaser.
|
|
|
|
4.1.5.
|
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
|
administrative expenses according to the Kyoto Rules shall be borne by Project Proponent and
|
|
|
|
Purchaser in equal shares .
|
|
|
|
|
|
The share of the proceeds from CERs generated by the Project to be used to assist developing
|
|
|
|
countries that are particularly vulnerable to the adverse effects of climate change to meet the
|
|
|
|
costs of adaptation according to the Kyoto Rules shall be borne by Project Proponent and
|
|
|
|
Purchaser in equal shares.
|
|
|
|
|
|
5.
|
|
Termination and Remedies
|
|
|
|
5.1.
|
|
|
|
|
|
Either party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
|
written notice to the other party with immediate effect if any of the following events occurs:
|
|
|
|
5.1.1.
|
|
the other party commits a breach of any of its obligations under this Agreement and, in the case
|
|
|
|
of a breach capable of being remedied, such breach remains for more than 30 Business Days
|
|
|
|
after it has been requested in writing by the Non-defaulting Party to remedy the breach; or
|
|
|
|
5.1.2.
|
|
the other party goes into liquidation (whether voluntary or otherwise), is unable to pay its debts
|
|
|
|
as they fall due, is wound up, makes any compromise, composition or other arrangement with
|
|
|
|
its creditors generally, or becomes subject to any administration order.
|
|
|
|
5.2.
|
|
Force Majeure
|
|
|
|
|
|
Should either party be impeded wholly or in part from fulfilling any of its obligations under the
|
|
|
|
Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent and
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for as long as such obligation is affected by Force Majeure and the impeded party shall be
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entitled to such extension of time as may be reasonably necessary.
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Either party shall notify the other party of the existence and date of beginning of an event of
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Force Majeure that is likely to impede its performance under the Agreement within 5 Business
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Days after having obtained knowledge of any such event. Either party shall likewise advise the
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other of the date when such event ended and shall also specify the re-determined time by which
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the performance of its obligations hereunder is to be completed.
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Project Proponent and Purchaser shall consult with each other with a view of determining any
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further appropriate action if a condition of Force Majeure is to continue after 20 Business Days
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|
from the date of giving notice thereof.
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Neither party shall be liable for damages or have the right to terminate this Agreement for any
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delay in performing hereunder if such delay is caused by Force Majeure; provided, however,
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that the non-impeded party shall be entitled to terminate such part of the Agreement that
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remains unfulfilled, if the condition of Force Majeure is to continue after 6 months from the
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date of giving notice thereof.
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6.
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Change in Circumstances
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|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards relating
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 7 of 12
|
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to the Baseline methodology and/or the applicable criteria for Verification and Certification of
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the resulting Emission Reductions) occurs which substantially affects the Project, the parties to
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this Agreement shall enter into negotiations with a view to adapt the Project and its
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implementation or any relevant provision of this Agreement, as may be necessary or useful. A
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change in circumstances shall in no event be considered substantially affecting the Project if at
|
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least 50% of the Anticipated Emission Reductions can be generated.
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The parties to this Agreement shall cooperate and make their best efforts to enable the
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continuation of the Project in accordance with the new circumstances and to achieve the
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generation and transfer of the Anticipated Emission Reductions.
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If any of the documents related to the Project and submitted at any time during the term of this
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|
Agreement fails to be approved by such authority whose approval is required under the Kyoto
|
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|
Rules or otherwise appears to be non-compliant with any relevant standards or conditions of the
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Kyoto Rules, Project Proponent and Purchaser shall discuss whether or not the relevant
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documents
are
to
be
revised
and
resubmitted.
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7.
|
|
Conditions Precedent
|
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|
This Agreement shall enter into force upon satisfaction of the following conditions precedent:
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1. Conclusion of a binding agreement with the Host Country.
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8.
|
|
Miscellaneous
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8.1.
|
|
Assignment and subcontracting
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Neither party shall, without the written consent of the other party, assign or transfer the
|
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|
|
Agreement or the benefits or obligations thereof or any part thereof to any other person.
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8.2.
|
|
Confidentiality and Disclosure
|
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|
The parties shall treat as confidential all information obtained as a result of entering into or
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|
|
performing this Agreement which relates to the provisions of this Agreement, the negotiations
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relating to this Agreement and the subject matter of this Agreement.
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|
|
No party shall disclose any such confidential information to any third party, except in those
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|
circumstances where disclosure is required in order to comply with any laws or regulations,
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including without limitations the Kyoto Rules.
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8.3.
|
|
Notices
|
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|
|
Any communications to be made under or in connection with this Agreement shall be made in
|
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|
writing (including by facsimile) to the address or facsimile number, from time to time
|
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|
|
designated by the party to whom the communication is to be made to the other party for that
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purpose. The address and facsimile number so designated are set out in Annex [I] hereto. A
|
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|
|
Communication will only be effected, if sent by mail, when delivered to or rejected by the
|
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|
|
recipient, if sent by facsimile, when a transmission report shows that the facsimile has been sent.
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8.4.
|
|
Entire Agreement
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the parties with respect to the
|
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|
|
subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 8 of 12
|
|
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understanding shall be deemed to constitute a part of this Agreement, unless expressly referred
|
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|
to herein, or attached hereto, or specifically incorporated by reference herein. The Annexes and
|
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|
|
schedules to this Agreement constitute integral parts of this Agreement and shall therefore be
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deemed part of this Agreement.
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8.5
.
|
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Amendments
|
|
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|
|
This Agreement may only be amended with the written consent of the parties hereto.
|
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|
8.6.
|
|
Costs and Expenses
|
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|
|
Each party shall bear its own costs and expenses in relation to the negotiation, preparation,
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|
execution and carrying into effect of this Agreement.
|
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|
8.7.
|
|
Severability
|
|
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|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any
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|
|
respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in
|
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|
|
the Agreement resulting there from shall be amended by way of interpretation of the Agreement
|
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|
having due regard to the parties intent.
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8.8.
|
|
Governing law
|
|
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|
|
This Agreement shall be governed and construed in accordance with English law excluding its
|
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|
|
rules on conflicts of laws.
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8.9.
|
|
Jurisdiction
|
|
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|
|
The parties irrevocably submit to the exclusive jurisdiction of the courts having jurisdiction in
|
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|
|
commercial matters for England with regard to all disputes arising out of or in connection with
|
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|
|
this Agreement, its violation, termination or nullity.
|
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|
8.10.
|
|
Counterparts
|
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project Proponent and
|
|
|
|
one for Purchaser. If there are any dicrepencies between the English anh the Vietnamese
|
|
|
|
version, the English version will prevail .
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 9 of 12
PARTIES TO THE AGREEMENT
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above,
this 5th day of August 2008, in the presence of:
Purchaser:
DR. TRI VU TRUONG
President CEO : Dr. Tri Vu Truong
Project Proponent:
TRAN XUAN HOAN
Director: Tran Xuan Hoan
|
Witness No 1
|
|
Witness No 2
|
|
|
|
|
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|
|
BUI THI LAN HUONG
|
|
LE VAN TAN
|
|
MSc. Bui Thi Lan Huong
|
|
Le Van Tan-Engineer
|
|
Biology Energy-Waste Treatment
|
|
Viet nam
|
|
(Viet nam) Ltd.
|
|
|
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 10 of 12
ANNEX I:
1. The salient features of Then Sin 1 and Then Sin 2 – Nam Xe Hydro Power Project at Then Sin Ward, Tam Duong District in Lai Chau Province and at Nam Xe Ward, Phong Tho District in Lai Chau Province, Vietnam.
|
No
|
Parameters
|
Symbols
|
Units
|
Terrace
1A
|
Terrace
1B
|
|
1
|
Catchment area
|
F
|
km
2
|
105.1
|
139.2
|
|
2
|
Long-term average annual rainfall
|
Xo
|
mm
|
2411.6
|
2411.6
|
|
3
|
Average flow
|
Q
0
|
m
3
/S
|
5.49
|
7.27
|
|
4
|
Total amount of average annual flow
|
W
0
|
10
6
m
3
|
173.13
|
229.27
|
|
5
|
Specific runoff
|
M
0
|
l/s.km
2
|
52.29
|
52.29
|
|
6
|
Normal water level
|
MNDBT
|
m
|
511.5
|
473
|
|
7
|
Dead water level
|
MNC
|
m
|
511.5
|
468
|
|
8
|
Surface area with normal water level
|
F
|
Km
2
|
4.47
|
7.55
|
|
9
|
Designed head
|
Htt
|
m
|
27.5
|
81.82
|
|
10
|
Designed discharge
|
Q
TK
|
m
3
/s
|
6.22
|
7.06
|
|
11
|
Installation capacity
|
Nlm
|
MW
|
1.5
|
4.95
|
|
12
|
Firm capacity P=85%
|
Ndb
|
MW
|
0.3
|
0.8
|
|
13
|
Number of unit
|
z
|
|
2
|
3
|
|
14
|
Estimated Annual Electricity Generation
|
Eo
|
10
6
kWh
|
6.21
|
22.06
|
|
15
|
Estimated Annual Operation Hours
|
h
sd
|
h
|
4141
|
4456
|
|
16
|
Annual estimation of the emission
reduction, tCO
2
eq
|
CERs
|
tCO
2
eq
|
3601.8
|
12795
|
|
17
|
Resettlement
|
|
person
|
0
|
0
|
|
18
|
Compensation (land, tree, farm, property,
etc...)
|
|
10
6
USD
|
0.1
|
0.15
|
|
19
|
It is run off river hydropower plant
|
|
|
Day &
night
|
Day &
night
|
|
20
|
New hydropower project with reservoirs
having power densities (installed capacity
devided by the surface area at full reservoir
level) greater than 4 W/m
2
.
|
|
|
yes
|
Yes
|
2. Project time schedule.
- Year of 2008: Compensation and clearing of the Then Sin2 – Nam Xe Hydro Power and construction
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 11 of 12
of the access road to the plant will be carrier out by the October, 2008
- Year of 2009 and 2010: Preparing work and construction of Then Sin2 – Nam Xe.
- Year of 2010: Operation of 3 units of Then Sin2 – Nam Xe by the 4
th
quarter of 2010.
- Year of 2009: Compensation and clearing of the Then Sin 1 Hydro Power and construction of the access road to the plant will be carrier out by the June, 2009.
- The 4
th
quarter of 2010 and 2011. : Preparing work and construction of Then sin 1.
- Year of 2011: Operation of 2 units of Nam Xe 1 by the 4
th
quarter of 2011.
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Emission Reduction Purchase Agreement
Page 12 of 12
ANNEX 2:
Work flow of CDM Activity
Initial
VN Thermo – Power Generation Rice Husk-CDM Project
Proponent:_____
Initial Ecolocap Solutions (Canada) inc-6
:
Exhibit 10.18
GREENHOUSE GAS OFFSET MANAGEMENT SERVICES REPRESENTATION AGREEMENT
|
1.
|
This Agreement is made this 13
th
day of October, 2008, by and between Ecolocap Solutions Inc. (“Principal”) with offices located at 740 rue St Maurice, Suite 102, Montreal , QC, Canada, H3C
1L5 and CantorCO2e, LLC, and its affiliates (“CantorCO2e” or “Agent”) with its headquarters at
110
East 59
th
Street, NY, NY, 10022.
|
|
|
|
|
As used herein:
|
|
|
|
|
A.
|
|
“Project” means a Project Activity whose VERs or CERs are owned by or are under the control of, Principal that are listed in Annex A.
|
|
|
|
|
B.
|
|
“Project Activity” means a Project that results in emission reductions and is developed in accordance with the CDM. Activities whose VERs or CERs are owned by or are under the control of, Principal that are listed in Annex A.
|
|
|
|
|
C.
|
|
“CDM” or “Clean Development Mechanism” means a Project Activity undertaken in a developing country that has ratified the Kyoto Protocol and which results in emission reductions beyond those which would have happened in the absence of the Project Activity in accordance with the rules and provisions of the Clean Development Mechanism Executive Board to the Kyoto Protocol.
|
|
|
|
|
D.
|
|
“Services” means the tasks outlined in the attached Scope of Services.
|
|
|
|
|
E.
|
|
“Transaction” means the sale, lease, sale of an option to purchase, or other transfer of VERs or CERs.
|
|
|
|
|
F.
|
|
“pre-CDM VERs” or “pre- Clean Development Mechanism Verified Emission Reductions” means one metric ton (tonne) of CO2e greenhouse gas reduction that is (i) generated by a Project Activity prior to registration as a CDM and has been developed in accordance with the rules and provisions of the Clean Development Mechanism Executive Board and which will be validated and verified according to relevant provisions.
|
|
|
|
|
G
.
|
|
“CER” or “Certified Emission Reduction” means one metric ton (tonne) of CO2e greenhouse gas reduction that is “(i) generated by a Project Activity in accordance with the rules and provisions of the Clean Development Mechanism Executive Board and which will be validated and verified according to said provisions.
|
|
|
|
2.
|
|
|
Principal is interested in developing and offering for sale CERs and potentially, pre-CDM VERS from potential Project Activities. Based on information provided by Principal, certain CERs and pre-CDM VERS could potentially be quantified and sold in the marketplace.
|
|
|
|
3.
|
|
|
Principal wishes to appoint CantorCO2e (i) to develop the project documents where required to quantify the potential emission reductions associated with projects developed within selected “Project Activities”,(ii) to coordinate the process of validation, verification and (iii) to act as its
|
|
|
Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 1
|
|
broker in connection with Transactions, and CantorCO2e wishes to accept such appointment.
|
|
|
|
4.
|
In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree to the following terms and conditions:
|
|
|
|
|
A.
|
|
Appointment as Agent
. Principal hereby appoints CantorCO2e as its sole and exclusive Agent to procure a buyer, option buyer, or lessee of CERs and pre-CDM VERS.
|
|
|
|
|
B.
|
|
Tasks.
CantorCO2e will perform the Scope of Services outlined in Annex B and summarized in Table 1 which is also contained therein.
|
|
|
|
|
C.
|
|
Compensation
. Except as provided in Paragraph 4.G., CantorCO2e will receive compensation as outlined in Table 1 of Annex B and Schedule 1 (Brokerage Schedule).
|
|
|
|
|
|
|
Principal understands that some of the costs/fees are payable to CantorCO2e but also understands that in some cases the Principal is required to contract for, and pay for, services to a third party (eg., validation, verification, registration, issuance, etc.). Principal also understands and agrees that Principal is to implement and follow a monitoring plan which will form the basis for annual verification.
|
|
|
|
|
|
|
The referenced success based Commissions, are attached as Schedule 1 and shall be due upon Principal’s receipt of CERs and/or pre-CDM VERS from the appropriate issuing body, or proceeds from a Transaction (whichever occurs first) that results from Cantor CO2e’s completion of the relevant Task; provided, however, if Principal agrees to transfer the CERs and pre-CDM VERS without receipt of proceeds (including, but not limited to, by donation for value) to any entity during the term of this Agreement, Principal agrees that it shall pay CantorCO2e success based Commissions based on the CER and/or pre-CDM VER transfer value, the commission structure for which is outlined on a volume basis in Schedule 1. For the purposes of this paragraph, "transfer value" shall be calculated by multiplying the tonnes per year transferred by the weighted average market price of all pre-CDM VERs and/or primary market transactions during the three months prior to the date of donation. In the case that the CERs being transferred are issued, the “transfer value” shall be calculated by multiplying the tonnes (volume) by the weighted average market price for spot CERs as reported either by the London Energy Brokers Association (LEBA) index or the European Carbon Exchange in the 5 days prior to the transfer by the Principal. For VERs, the transfer value will be calculated as an average of the three most recent transactions in the relevant VER market.
|
|
|
|
|
D.
|
|
Counter party Commission.
In the event of a Transaction, Principal agrees that CantorCO2e reserves the right to collect an additional commission from the buyer, lessor, option buyer and or transferor.
|
|
|
|
|
E.
|
|
CantorCO2e's Authority
. CantorCO2e shall
not
be authorized to bind Principal to any Emission Reduction Purchase and Sale Agreement. CantorCO2e shall obtain bids from potential buyers and present all such bids relating to a proposed Transaction to Principal for its due consideration. However, Principal agrees that all bids presented by CantorCO2e to Principal will be considered seriously.
|
|
|
|
|
F.
|
|
Term of Agreement
. This Agreement shall commence on the date cited in Paragraph 1 above, shall continue for two years, and shall continue thereafter until terminated in
|
|
|
Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 2
|
|
writing, on 30 days prior written notice by one party to the other party. After one year of commencement of this Agreement, the Principal may terminate this Agreement upon thirty days (30 days) written notice if CantorCO2e is not reasonably performing, in a timely manner, the tasks set out in the scope of services attached to this Agreement for reasons that are within its control (i.e., for reasons other than those associated with, or as a result of, for example, information not being provided by the client,
a
result of, for example, information not being provided by the client, issues with the
DOE validation and/or verification process and the Clean Development Mechanism Executive Board (CDM-EB) approval process and the timing thereof).
|
|
|
|
G.
|
Principal’s alternatives for projects if designated as not feasible by CantorCO2e
. CantorCO2e and Principal will work together to evaluate the feasibility of the potential CER and/or VER projects in Principal’s portfolio (present or contemplated). If there are projects that CantorCO2e identifies which it considers to not be feasible for further development under this Agreement and elects not to pursue those projects and/or include those projects under this Agreement (ie., to exclude those projects from the Agreement), Principal has the alternative to pursue other avenues after thirty days with respect to those specific projects.
|
|
|
|
H.
|
Post-Termination Fees.
|
|
|
|
|
a.
|
Within 30 days of the termination of this Agreement for any reason (“Termination Event”), CantorCO2e will provide to Principal a statement (the “
Pending Transactions List
”) setting forth the names of all outstanding prospective counter- parties to a Transaction who have been contacted by CantorCO2e (each, together with its respective affiliates, a “
Potential Customer
”), including copies of any draft term sheets with such parties (the “
Pending Transactions
”). Within 30 days of receipt of the list of Pending Transactions, Principal will notify CantorCO2e in writing of any Pending Transactions set forth on the list of Pending Transactions that it wishes to continue to pursue. CantorCO2e may, at its option, provide Principal with Services to successfully consummate such Pending Transactions. In the event that CantorCO2e declines to continue to provide Services, CantorCO2e shall use commercially reasonable efforts to assist Principal or a third party designated by Principal in assuming the negotiation of such Pending Transactions during the thirty (30) day period following CantorCO2e’s notice to Principal that CantorCO2e does not intend to provide Services. For the avoidance of doubt, CantorCO2e shall be entitled to payment in accordance with Paragraph 4.C. (and outlined in Schedule 1) with respect to any sales of Products pursuant to a Pending Transaction, whether or not CantorCO2e continues to provide Services with respect thereto following termination of this Agreement.
|
|
|
|
|
|
In the event that Principal terminates this Agreement for any reason, Principal shall pay to CantorCO2e all fees for Services rendered to date and for the success based Commission (whether in cash or CERs) earned by CantorCO2e with respect to all Transactions prior to such termination. If following such termination, Principal completes a Transaction with a Potential Customer, Principal shall pay to CantorCO2e its success based compensation as set out in Table 1 of Annex B.
|
Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 3
|
I.
|
Assignment; Change in Control
. Principal may not assign this Agreement without CantorCO2e’s consent, which shall not be unreasonably withheld. If this agreement is assigned without the consent of Agent such event shall be a termination event as provided under Section G(a).
|
|
|
|
J.
|
Representation
. Principal agrees that CantorCO2e may represent other potential buyers, sellers, lessees and/or lessors of CERs and pre-CDM VERS, or perform other activities related to its business, during and after the term of this Agreement. In addition, Principal understands that should CantorCO2e represent a third party, CantorCO2e may be required to disclose material facts concerning Principal's positions to such third party.
|
|
|
|
|
Principal hereby consents that CantorCO2e may disclose such information to a third party as necessary or desirable for CantorCO2e to conduct its business.
|
|
|
|
K.
|
Exclusive Agent
. Principal agrees to pay CantorCO2e compensation as contemplated by Paragraph 4.C hereunder if within one year following the termination of this Agreement, Principal sells, options, leases or sells the CERs and pre-CDM VERS to any person or corporation whom CantorCO2e contacted prior to the expiration of this Agreement with regards to CERs and pre-CDM VERS owned by, or under the control of, Principal.
|
|
|
|
|
Principal agrees to cooperate with CantorCO2e during the term of this Agreement and will direct all persons making inquiries concerning CERs and pre-CDM VERS to CantorCO2e. The obligations contained in Paragraph 4.C. and in this paragraph 4.K. shall survive termination of this Agreement.
|
|
|
|
L.
|
Level of Effort
. In consideration of the above, CantorCO2e agrees to: a) assist Principal to provide the services noted in paragraph 4.B.; b) use reasonable efforts to find ready, willing and able buyers(s) for Principal's VER and CER requirements; and c) assist Principal in determining the quantity of CERs and pre-CDM VERS that can be approved for transfer and sale, provided, however, CantorCO2e makes no representation, warranty, or guarantee that it will be able to sell, sell an option(s) to purchase, lease or otherwise obtain Principal's CERs and pre-CDM VERS and CantorCO2e does not guarantee or warrant performance hereunder.
|
|
|
|
|
Whether by way of an action for breach of contract, warranty, tort (including negligence), indemnity, contribution or otherwise, in no event shall CantorCO2e, its affiliates, officers, directors, or employees be liable for direct damages in excess of the lesser of (a) the total fees actually received by CantorCO2e pursuant to this Agreement or (b) $50,000, whichever is less, or for consequential, special (including, without limitation, loss of use of facility or capital, lost sales or profits, third-party claims, etc.) or incidental damages in any amount.
|
|
|
|
M.
|
Payment Schedule
. Principal agrees that it shall pay a pro rata share of any partial payments received on any transaction conducted through CantorCO2e at the rate listed in Schedule 1 (3.5% - 5%) based on volume of CERs or VERs transacted and payments received. All payments due to CantorCO2e hereunder shall be remitted within thirty (30) days of due date. Principal agrees that it shall pay CantorCO2e for any additional services other than the brokerage services contemplated hereunder within thirty (30) days of date of invoice. Principal agrees to pay one and one-half percent (1 ½%) interest per month for any payments due by Principal to CantorCO2e not paid within thirty (30) days of due date.
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Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 4
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N.
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Accounting
. To ensure that CantorCO2e has a method of accounting for compensation or other payments due under this Agreement, Principal agrees to provide CantorCO2e with unaltered copies of any and all contracts or agreements for Transactions. CantorCO2e has the right to reasonably request an accounting of monies paid pursuant to all Transactions undertaken or completed during the term of this Agreement, and Principal agrees to promptly provide such accounting.
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O.
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Miscellaneous
. (a) Nothing in this Agreement shall be deemed to create a joint venture, franchise, partnership or Principal-CantorCO2e relationship between CantorCO2e and Principal, except as explicitly set forth herein.
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(b)
This Agreement contains the entire understanding of the parties with respect to the
subject matter hereof and no modification or waiver of any provision hereof will be binding upon any party unless in writing and signed by the parties hereto. No waiver or modification shall be deemed to be a subsequent waiver or modification of the same or any other term, covenant or condition in this Agreement.
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(c)
The invalidity or unenforceability of any particular provision of this Agreement shall
not affect the other provisions and this Agreement shall be construed in all respects as if such valid or unenforceable provisions were omitted.
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(d)
This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, permitted assigns, heirs, executors and administrators.
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(e)
This Agreement may not be assigned, in whole or part, by either party hereto without
prior written consent of the other party (any purported assignment hereof in violation of this provision being null and void): however, it may be assigned in whole or part by CantorCO2e to any affiliate or to any successor in interest of CantorCO2e or any affiliate by merger, consolidation, reorganization or otherwise.
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(f)
This Agreement may be executed in various counterparts, by facsimile, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.
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(g)
The headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Section, subsection, recital and party references are to this Agreement unless otherwise specified.
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(h)
The rights and remedies provided for hereunder are cumulative and are not exclusive
of any rights and remedies that may be available to any party under applicable law, in equity, or otherwise.
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(i)
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND/OR THE COURTS OF THE UNITED STATES OF AMERICA IN THE STATE OF NEW YORK, FOR PURPOSES OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO
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Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 5
THIS AGREEMENT, AND EACH IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN IN AN INCONVENIENT FORUM. CantorCO2e and Principal hereby irrevocably consent to the service of process outside the territorial jurisdiction of such courts in any such action or proceeding by mailing copies thereof by certified U.S. mail, return receipt requested and postage prepaid, to its address.
In witness whereof, each of the parties hereto has executed this Agreement on its behalf:
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ECOLOCAP SOLUTIONS INC.:
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CANTORCO2e LLC:
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ROBERT G. CLARKE
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STEVE DRUMMOND
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Robert G. Clarke
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Steve Drummond
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Chairman of the Board of Directors
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co-CEO,
|
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Ecolocap Solutions Inc.
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CantorCO2e
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October 21, 2008
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21/10/08
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Date
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Date
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Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 6
ANNEX A
Initial Potential CDM Project Activity List
Included under separate excel file sent by Ecolocap
Dated August 11, 2008 (to be updated from time to time)
Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 7
ANNEX B
Scope of Services
I. SCOPE OF SERVICES
CantorCO2e will work with Ecolocap and provide services to assist in the creation of Certified Emission Reductions (CERs) and where feasible, pre-CDM VERs and, market the full stream of CERs and pre-CDM VERS to its global client base of buyers in Europe, Japan and North America and facilitate transactions between Ecolocap and selected buyers. In this regard CantorCO2e proposes to:
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coordinate the CDM process for the identified Clean Development Mechanism (CDM) Project Activities for generating Certified Emission Reductions (CERs) including:
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o
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develop the Project Design Documents (PDDs) where required based on the application of an approved baseline methodology; a monitoring and verification plan; and, coordination of stakeholder consultation
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o
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assist to obtain the approval by the Designated National Authority (DNA), where required
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o
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coordinate validation and verification of the CDM projects by a Designated Operational Entity (DOE),
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o
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assisting in the registration by the UNFCCC’s CDM Executive Board where required
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o
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coordinate the annual verification and certification to be carried out by a DOE
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Manage the marketing and sale of the resulting CERs and potentially pre-CDM VERs from the identified projects for the entire crediting period of the projects, through CantorCO2e’s large network of carbon buyers in Europe, Japan and North America to obtain the best market prices and a robust contract. The process to be followed is:
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o
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CantorCO2e and its associates would become project participants, obtain UK government approval and accept your CERs into our escrow account
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o
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safekeeping your CERs in a well ‘ring fenced’ escrow account for facilitating spot sales and providing assurance to buyers
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o
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organize the bidding process or an auction amongst more than 130 buyers accessible to CantorCO2e.
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o
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facilitate the signing of ERPA(s) and deliveries from both ways. We envisage concluding multiple tranches of sales constituting spot sale, forward sale, auctions etc. through different mechanisms – bidding, auctions etc and multiple transaction structures of fixed prices, market link prices, securitization of cash flow and combinations thereof.
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Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 8
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These tasks are described in more detail below:
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Task 1
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Develop overall approach to identify, quantify and take CERs and
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pre-CDM VERs to market
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a.
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CantorCO2e and Ecolocap will have a project kick-off meeting to bring together relevant resources
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from the two companies who will form the core team throughout the project. This meeting will
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include:
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•
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Overview of the projects from Ecolocap
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•
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Discussion of the relevant CDM Methodologies and Voluntary Standards for the projects
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•
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Discussion of the Designated National Authority Approval processes of the project host country
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•
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Discussion on the proposed assessment process including aspects of technical information
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required
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•
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Beginning of the development of a common overall approach and strategy
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•
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Discussion on framework for moving forward, initial discussions on timelines, milestones, etc.
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This will include prioritization of projects, etc
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Task 2
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Coordination of the Process
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a.
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In this regard, CantorCO2e will perform a series of tasks that will ensure that every step of the
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process is carried over as efficiently as possible, coordinating the activities and participants involved
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in the process – beginning from quantification, validation, initial and annual verification and eventual
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issuance CERs (and pre-CDM VERs where there is potential), etc.
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b.
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If required, CantorCO2e will prepare the Project Document(s), with input from Ecolocap as required
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on a consulting fee per PDD as listed in Table 1. CantorCO2e will coordinate validation, verification,
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etc.
As part of the Project Design Document, a monitoring plan will be developed. It must be noted
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|
|
that Ecolocap will be responsible for implementing and carrying out the monitoring plan at the project
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level as this is the basis for annual verification of emission reductions from all project activities.
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c.
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CantorCO2e will recommend appropriate third party entity(ies) to conduct the validation verification
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and will coordinate and assist where needed in the activities involved in the process. Although
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CantorCO2e will coordinate these tasks, there are third party costs which will be contracted between
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Ecolocap and the validator and verifier directly.
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d.
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If required, CantorCO2e will participate in the site visit(s) for validation and/or verification. If this is
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|
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required, Ecolocap and CantorCO2e will agree on travel and accommodations costs beforehand as
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|
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travel and accommodations are not included in the estimate.
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e.
|
Once a project has been validated, it must be submitted for registration to CDM-EB. CantorCO2e
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|
|
assist with this task where necessary (e.g., preparation of modalities of communication, etc.)
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f.
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Request for Issuance – once verified a submission needs to be made for issuance. CantorCO2e will
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|
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assist in this task where necessary.
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Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 9
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g.
|
Ecolocap will be required to monitor the emission reductions from the project(s) based on the
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|
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monitoring plan that will form part of the Project Documents. The monitoring plan and the
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monitoring process will form the basis for annual verification and monitoring must be done
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|
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consistently in line with the monitoring plan.
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Task 3
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Market, sell, and monetize CERs (and potentially pre-CDM VERS)
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|
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a.
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Manage the market approach in a methodical way which would maximize value of CERs and/or pre-
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|
|
CDM VERS from Ecolocap’s projects
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b.
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Assist in the execution of applicable instruments to convey CERs and/or pre-CDM VERS from
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Ecolocap to purchasers.
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c.
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Utilize a worldwide network of clients ranging from financials to government institutions to
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|
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corporations.
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d.
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Assist Ecolocap and its counterparties so introduced to reach agreement on terms
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e.
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Provide Escrow services through Cantor Fitzgerald Europe.
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f.
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As we have for other customers we propose to manage Ecolocap’s book of CERs to ensure accurate
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accounting of CERs sold and available
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IV.
|
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TIMELINES, AND TERMS
|
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Table 1 correlates the task, responsibilities and timelines for the services to be provided by CantorCO2e.
|
|
Please note that the timeline provided in Table 1 is only an estimate and does not consider any delays that
|
|
may arise as a result of information unavailability on the client’s side or the amount of time that the
|
|
relevant authorities take to process and approve documentation. It also does not take into account
|
|
evolving regulatory schemes at the state, regional and/or federal level and the timing associated therewith.
|
Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 10
|
Correspon
|
|
Responsible
|
Estimated
|
|
|
|
ding text
|
Task
|
Par
ty
|
Timeline
|
Notes
|
Fees
|
|
above
|
|
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1a
|
Development of
|
CantorCO2e
|
This task can
|
Part of success
|
Included in
|
|
|
overall approach
|
and Ecolocap
|
begin as soon as
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fee (percentage
|
success based
|
|
|
to identify,
|
|
contracts are
|
of CERs/VERs
|
commission –
|
|
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quantify and take
|
|
executed.
|
or value of
|
3.5%-5%
|
|
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CERs to market.
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|
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transaction)
|
|
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|
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payable within
|
|
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30 days of
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CER/VER
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issuance
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2a
|
Coordination of
|
CantorCO2e
|
From beginning
|
CantorCO2e
|
Included in
|
|
|
the Process
|
with input and
|
of contract to
|
will remain the
|
success fee
|
|
|
|
assistance from
|
marketing and
|
exclusive
|
listed in 1a,
|
|
|
|
Ecolocap
|
sale of CERs.
|
broker of the
|
above.
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|
where required.
|
|
CERs/VERs
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|
|
|
|
|
|
associated with
|
In addition, if
|
|
|
|
|
|
the projects
|
CantorCO2e
|
|
|
|
|
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identified
|
staff required
|
|
|
|
|
|
through the
|
for validation
|
|
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|
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work with
|
and/or
|
|
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|
|
Ecolocap
|
verification site
|
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visits, travel
|
|
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|
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|
|
and accommo-
|
|
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|
|
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dations costs to
|
|
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|
|
be agreed to in
|
|
|
|
|
|
|
advance and
|
|
|
|
|
|
|
paid for by
|
|
|
|
|
|
|
Ecolocap.
|
|
2b
|
PDD preparation
|
CantorCO2e
|
Typically 5
|
This is
|
$20,000 CAD
|
|
|
– where required.
|
with
|
business days for
|
contingent
|
for first PDD
|
|
|
|
Ecolocap’s
|
each draft PIN
|
upon
|
using an AM,
|
|
|
|
input where
|
and 30 business
|
information
|
$10,000 per
|
|
|
|
required (Note
|
days for each
|
availability on
|
similar PDD
|
|
|
|
that a
|
draft PD
|
the client’s
|
after that.
|
|
|
|
monitoring
|
|
side.
|
(same type of
|
|
|
|
plan will be
|
|
|
Project
|
|
|
|
included in the
|
|
|
Activity, same
|
|
|
|
PDD)
|
|
|
country, etc,
|
|
|
|
|
|
|
application of
|
|
|
|
|
|
|
same AM, etc.)
|
|
|
|
2c
|
Validation/Verifi
|
DOE –
|
Depends on
|
Verification is
|
Third party
|
|
|
cation
|
Selected jointly
|
schedules –
|
typically
|
costs to
|
|
|
|
with
|
Typically 60
|
conducted once
|
Ecolocap –
|
|
|
|
coordination by
|
days each –
|
a year to verify
|
payable to
|
|
|
|
Legal-#19156-FINAL-Ecolocap Solutions Inc.
October 13, 2008
|
|
Page 11
|
|
Correspon
|
|
Responsible
|
Estimated
|
|
|
|
ding text
|
Task
|
Party
|
Timeline
|
Notes
|
Fees
|
|
above
|
|
|
|
|
|
|
|
|
CantorCO2e.
|
although it
|
and certify ex-
|
DOE – range to
|
|
|
|
CantorCO2e
|
should be noted
|
post the actual
|
be discussed.
|
|
|
|
will coordinate
|
that some of the
|
emission
|
CantorCO2e
|
|
|
|
the process and
|
DOEs have a
|
reductions
|
can obtain
|
|
|
|
the Client must
|
significant back-
|
achieved by the
|
quotes but it
|
|
|
|
participate in
|
log.
|
project.
|
will need to be
|
|
|
|
the entire
|
|
|
associated with
|
|
|
|
Verification
|
|
For larger
|
specific
|
|
|
|
Process,
|
|
projects this is
|
projects.
|
|
|
|
including the
|
|
sometimes
|
|
|
|
|
designated
|
|
done semi-
|
|
|
|
|
third party
|
|
annually.
|
|
|
|
|
entity’s site
|
|
|
|
|
|
|
visit.
|
|
|
|
|
2d
|
Registration
|
CDM-EB –
|
Typically 8
|
Depends on
|
$0.10 per tonne
|
|
|
|
PDD submitted
|
weeks from
|
stakeholder
|
for first 15,000
|
|
|
|
by DOE
|
submission of
|
comments, etc.
|
tonnes; $0.20
|
|
|
|
|
validated PDD
|
|
per tonne for
|
|
|
|
|
|
|
tonnes
|
|
|
|
|
|
|
>15,000. This
|
|
|
|
|
|
|
is an Ecolocap
|
|
|
|
|
|
|
cost.
|
|
2e
|
Issuance
|
CDM-EB
|
Typically within
|
|
Annually the
|
|
|
|
|
8 weeks of
|
|
same as
|
|
|
|
|
request for
|
|
registration
|
|
|
|
|
issuance
|
|
fees listed just
|
|
|
|
|
|
|
above.
|
|
|
|
|
|
|
|
|
In addition,
|
|
|
|
|
|
|
CDM-EB
|
|
|
|
|
|
|
keeps 2% of
|
|
|
|
|
|
|
CERs for Share
|
|
|
|
|
|
|
of Proceeds
|
|
|
|
|
|
|
(SOP). This is
|
|
|
|
|
|
|
an Ecolocap
|
|
|
|
|
|
|
cost.
|
|
2f
|
Monitoring Plan
|
Ecolocap will
|
|
This will form
|
In-house cost
|
|
|
Implementation
|
be required to
|
|
the basis for
|
to Ecolocap.
|
|
|
|
monitor the
|
|
verification and
|
|
|
|
|
emission
|
|
is extremely
|
|
|
|
|
reductions in
|
|
important.
|
|
|
|
|
preparation for
|
|
|
|
|
|
|
annual
|
|
|
|
|
|
|
verification.
|
|
|
|
|
3(a-f)
|
Marketing and
|
CantorCO2e
|
The projects can
|
|
Included in
|
|
|
|
Legal-#19156-FINAL-Ecolocap Solutions Inc.
October 13, 2008
|
|
Page 12
|
|
Correspon
|
|
Responsible
|
Estimated
|
|
|
|
ding text
|
Task
|
Party
|
Timeline
|
Notes
|
Fees
|
|
above
|
|
|
|
|
|
|
|
sale of CERs
|
|
be marketed from
|
|
success based
|
|
|
|
|
day 1, depending
|
|
commission –
|
|
|
|
|
on the strategic
|
|
as listed in 1a,
|
|
|
|
|
approach
|
|
above.
|
|
|
|
|
developed by
|
|
|
|
|
|
|
CantorCO2e and
|
|
|
|
|
|
|
Ecolocap.
|
|
|
CantorCO2e will be Ecolocap’s sole and exclusive broker with respect to negotiations dealing with
the creation and sale of CERs and/or pre-CDM VERs from the projects.
Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 13
SCHEDULE 1
Brokerage Schedule
|
Column I
|
Column II
|
|
CER/VER Volume (tonnes)
|
Percent (%) Awarded
|
|
0 – 1,000,000
|
5
|
|
1,000,000 – 2,000,000
|
4.5
|
|
2,000,000 – 3,000,000
|
4.0
|
|
3,000,000
+
|
3.5
|
Legal-#19156-FINAL-Ecolocap Solutions Inc. October 13, 2008
Page 14
Emission Reduction Purchase Agreement
Page 1 of 18
Exhibit 10.19
EMISSION REDUCTION PURCHASE AGREEMENT (ERPA)
[Chinese translation]
Xinjiang Xiangjianfeng Urumqi Dabancheng 200MW Windfarm 1
st
Phase-49.5MW Project
[Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 2 of 18
between
(The "Purchaser") [Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP) [Chinese translation]
740 St. Maurice suite 102
Montreal, QC H3C 1L5
Canada
Tel: 5148763907 Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO: Dr. Tri Vu Truong
and
(the " Seller"), henceforth “PROJECT PROPONENT”
[Chinese translation]
Xinjiang Xiangjianfeng Energy and Technology Development Co., Ltd.
[Chinese translation]
(“Owner”)
Address: Xinjie Building B-24, 79 Heilongjiang Rd, Urumqi, Xinjiang
[Chinese translation]
Telephone: 0991-5506260
Mobile: 13929982313
Email: KJHWM@TOM.COM
Board Chairman
: [Chinese translation]/ HUANG,Weimin
Both parties have agreed to sign the Reduction Emission Purchase Agreement (Agreement) with the following terms and conditions: [Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 3 of 18
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Interpretation and Definitions [Chinese translation]
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In this Agreement, unless otherwise required by the context, all terms shall have the meaning set forth
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in the definitions below.
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[Chinese translation]
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Agreement:
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Means this Emission Reduction Purchase Agreement. [Chinese
translation]
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[Chinese
translation]
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Annex B
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Means the countries listed in Annex B to the Kyoto Protocol having
committed themselves to reduce
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Countries:
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or limit their GHG emissions.
[Chinese translation]
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[Chinese
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translation]
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Annex I
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Means the parties to the UNFCCC listed in Annex I thereto (Annex I
consists of industrial countries
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Countries:
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and countries in transition). [Chinese
translation]
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[Chinese
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translation]
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Anticipated
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Means up to ( ) Certified Emission Reductions (CERs) per annum
during the Crediting Period, anticipated
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Emission
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be generating by the Project
and calculating in accordance with the Kyoto Rules.
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Reduction:
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[Chinese
translation]
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[Chinese
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translation]
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Baseline:
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Means the scenario that reasonably represents the anthropogenic
emissions of GHG that would occur
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[Chinese
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in the Host Country in the absence
of the Project, determined in accordance with the Kyoto Rules.
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translation]
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[Chinese translation]
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Business Day:
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Means a day on which banks are open for general business in China.
[Chinese translation]
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[Chinese
translation]
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Carbon
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Means a metric measure used to compare the emissions of various
GHG based upon their global
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Dioxide
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warming potential. [Chinese translation]
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Equivalent:
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[Chinese
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translation]
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Certification:
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Means the written confirmation by an Operational Entity of an
Emission Reduction resulting from a
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[Chinese
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CDM project and having passed
the Verification procedure according to the Kyoto Rules.
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translation]
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[Chinese
translation]
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Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 4 of 18
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Certified
Emission
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Means a unit of Emission Reduction issued pursuant to Article 12 of
the Kyoto Protocol and the
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Reduction (CER):
|
requirements of the Kyoto Rules (including
Certification), equal to one
metric ton of Carbon
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[Chinese translation]
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Dioxide Equivalent
resulting from a CDM project. [Chinese translation]
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Clean
Development
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Means the flexible mechanism established by Article 12 of the Kyoto
Protocol providing for Annex I
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Mechanism
(CDM):
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Countries to implement projects that
reduce emissions in non-Annex I
Countries in return for
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[Chinese
translation]
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CERs and
assist the non-Annex I Countries in achieving sustainable development
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and contributing to the ultimate objective of the UNFCCC. [Chinese
translation]
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Crediting Period:
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Means, until December 31, 2026. [Chinese translation]
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[Chinese
translation]
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Emission
Reduction:
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Means reduction in emission of GHG achieved, calculated in
accordance with the Kyoto Rules.
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[Chinese
translation]
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[Chinese translation]
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Executive
Board:
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Means the international authority elected by the representatives of the
parties to the Kyoto Protocol
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[Chinese
translation]
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responsible for monitoring the CDM
process. [Chinese translation]
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First
Commitment
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Means, from 17 , October, 2008 until 31 December, 2012.
[Chinese translation]
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Period:
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[Chinese
translation]
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Force Majeure:
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Means any circumstance or condition beyond the control of either
party to this Agreement affecting
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[Chinese
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the performance of its obligations
under this Agreement including in particular wars, insurrection,
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translation]
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natural disaster or equivalent circumstances. [Chinese translation]
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Greenhouse
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Means the six gases listed in Annex A to the Kyoto Protocol.
[Chinese translation]
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Gases (GHG):
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[Chinese
translation]
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Host Country:
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China [Chinese translation]
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[Chinese
translation]
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Kyoto Protocol:
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Means the protocol to the UNFCCC adopted at the third conference
of the parties to the
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[Chinese
translation]
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UNFCCC in Kyoto, Japan, on December 11,
1997
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Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 5 of 18
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Kyoto Rules:
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Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
Marrakech Accords, any relevant
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[Chinese
translation]
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decisions, guidelines, modalities
and procedures made pursuant to
them and/or any succeeding
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international agreements as amended and/or supplemented from time
to time and which include
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those rules specifically required to be met
for the issuing and transfer of CERs./UNFCCC
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[Chinese translation]
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Letter of
Approval
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Means a binding approval of the Project by the Host Country together
with an approval of the
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(LOA):
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transfer of CERs. [Chinese translation]
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[Chinese
translation]
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Monitoring
Report:
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Means an annual report to be provided by Owner setting out the total
number of Emission Reductions
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[Chinese
translation]
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generated by the Project during the
previous year according to the Kyoto Rules, international
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Monitoring rules and the PDD.
[Chinese translation]
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Monitoring:
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Means the collection and record of data allowing the assessment of
reductions in GHG emissions resulting
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[Chinese
translation]
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from the Project conducted in
accordance with the Kyoto Rules. [Chinese translation]
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Designated
Operational
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Means an independent entity accredited by the Executive Board being
the executive body for CDM and
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Entity:
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inter alias responsible for
determining whether a project and the resulting Emission Reductions
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[Chinese
translation]
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meet the requirements of Article 12 of the Kyoto Protocol. [Chinese
translation]
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Project Design Document
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Means a detailed description of the Project to be submitted for
Validation prepared in accordance with the
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(PDD):
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Kyoto Rules, the UFG
and the Directive and attached as Annex [iv].
The Purchaser will be
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[Chinese
translation]
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responsible for providing PDD development for Registration of the
Project. [Chinese translation]
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Project:
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Means the proposed CDM project described in the PDD and other
documents describing the
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[Chinese
translation]
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implementation and economics of the
Project attached in Annex [iii]. [Chinese translation]
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Registration:
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Means the official registration of a CDM project by the Executive
Board according to the Kyoto Rules
.
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[Chinese
translation]
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[Chinese translation]
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UNFCCC:
|
Means the United Nations Framework Convention on Climate
Change adopted in New York
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on May 9, 1992. [Chinese translation]
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Unit Price:
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Means the price payable by Purchaser to Project Proponent per
Certified Emission Reduction (CER) unit:
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[Chinese translati
on]
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[Chinese translation]
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The purchase unit price paid by EcoloCap Solutions Canada Inc to
Chinese Project Proponent for the
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CER is fixed at 9.5 Euro/CER for
the year 2008 to 2012 and a new agreement for purchase unit price
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Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 6 of 18
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will be negotiated for the next two periods of extension. /EcoloCap
Solutions Canada Inc 2008-
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[Chinese translation]
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For the first payment, a one time amount of 60,000 Euro will be paid
to Ecolocap Solutions Inc
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for the reimbursement to Ecolocap for its
advance cash for the costs relating to
CDM process.
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Other expenses
will be paid by EcoloCap. [Chinese translation]
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Term:
|
Ecolocap Solutions Inc will purchase certified CERs generated by
this project for the year 2008 to
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[Chinese
translation]
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2012 with options of extension for
two other periods of 7 years, the
period 2013-2026,
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with the same
terms and conditions except for the price which will be renegotiated.
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[Chinese translation]
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Validation:
|
Means the assessment of the PDD, including the Baseline, by an
Operational Entity, determining its
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[Chinese
translation]
|
compliance with the Kyoto Rules.
[Chinese translation]
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Verification:
|
Means the periodic independent review and ex post determination of
the monitored reductions in GHG
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[Chinese
translation]
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emissions that the Project has
achieved during a specified period of time by an Operational
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Entity in
accordance with the Kyoto Rules. The project's owner will be
Responsible for providing
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periodical monitoring. [Chinese
translation]
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Unless otherwise specified, references to clauses are clauses of this Agreement, references to legal provisions are references to such provisions as in effect
from time to time, use of a gender includes any gender and use of the plural includes the singular and vice versa where the context requires.
[Chinese translation]
All headings and titles are inserted for convenience only and shall not be deemed part of this Agreement or taken into consideration in its interpretation.
[Chinese translation]
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1.
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Preamble [Chinese translation]
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The Project is located on the territory of the Host Country.
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[Chinese translation]
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2.
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Contractual Obligations [Chinese translation]
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2.1.
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Anticipated Emission Reductions [Chinese translation]
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2.1.1.
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Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
accordance with the PDD
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and other documents describing the implementation and economics
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Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 7 of 18
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of the project attached in (Annex iv) at its own risk and expense (Annex ii). It is hereby acknowledged
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and agreed between the Parties hereto that Purchaser does not warrant the
generation of, and is not
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obliged to generate, any CERs, whether by the Project or otherwise.
[Chinese translation]
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2.1.2.
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If the Project generates CERs during the crediting period, Project Proponent shall, to the
extent it is legally
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possible and permissible, exclusively transfer to Purchaser all rights (and,
to the extent legally possible
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and permissible, legal title) which Project Proponent may have
in the Anticipated Emission Reductions.
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[Chinese translation]
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2.1.3.
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Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
Reduction generated by the
|
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Project and in which the Project Proponent's rights are transferred
to Purchaser in accordance with clause 3 below.
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[Chinese translation]
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2.2.
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Emission Reductions generated after the Crediting Period [Chinese translation]
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If the Project generates any Certified Emission Reductions after the Crediting Period,
Purchaser shall enter into
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negotiations with Project Proponent with a view to concluding an
agreement on the purchase of such Certified
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Emission Reductions based on the principles of
this Agreement but amended in order to reflect the international
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and/or national rules then
applicable.
[Chinese translation]
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3.
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Transfer [Chinese translation]
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Transfer to Purchaser of all the rights (and, to the extent legally possible
and permissible,
legal title) which Project
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Proponent may have in a Certified Emission Reduction shall have
occurred upon the transfer of CER’s certificate
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from the register of the Executive Board to a
register in favor of Purchaser. This transfer shall be made immediately
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as soon as the EB officially approve the Project registration.
[Chinese translation]
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4.
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Payment [Chinese translation]
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4.1.
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Payment for Certified Emission Reductions [Chinese translation]
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4.1.1.
|
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Payment by Purchaser to Project Proponent for the Certified Emission Reductions shall be
made within 50 Business
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Days after the CER’s certificate are delivered to Purchaser.
Purchaser shall transfer money into the account of
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Project Proponent, after the CER
Certificate is issued by the EB following each monitoring realized by the DOE.
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[Chinese translation]
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4.1.2.
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All payments shall be made through the account of Ecolocap which has been registered for the
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 8 of 18
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Project when the PDD is submitted to EB for approval. This account is in the EB’s common
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account
[Chinese translation]
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4.1.3.
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All payments shall be made in US Dollars.
[Chinese translation]
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4.2.
|
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Costs and Expenses [Chinese translation]
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4.2.1.
|
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Subject to clause 4.2.2 below, all fees, costs or other expenses in connection with the
Registration and the
|
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|
transfer of CERs shall be borne by Purchaser including VAT, if any,
according to VAT law applied in
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China.
[Chinese translation]
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4.2.2.
|
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The share of the proceeds from CERs generated by the Project to be used to cover administrative expenses
|
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and to assist developing countries that are particularly vulnerable to the adverse effects of climate change
|
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to meet the costs of adaptation according to the Kyoto
Rules shall be borne by the Project Proponent.
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[Chinese translation]
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4.2.3.
|
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The Project Proponent should provide necessary information to the Purchaser for the
preparation of
|
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documents required for PIN (project idea note), PDD (project design
document), the validation, the
|
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verification/certification, and the registration with CDM
Executive Board (Annex i). All costs accrued
|
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to each of the Parties in negotiating, preparing executing and carrying into effect of this Agreement,
|
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shall be borne by each of the Parties
themselves.
[Chinese translation]
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5.
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Termination and Remedies [Chinese translation]
|
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5.1.
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Either Party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
written notice
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to the other Party with immediate effect if any of the following events occurs:
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[Chinese translation]
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5.1.1.
|
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In case the Project is not register as a valid CDM Project activity with the CDM EB within eighteen (18)
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months upon execution of the ERPA, (which will be signed not later than three (3) months after the
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signature of this term sheet), either party shall have the right to terminate
its rights and obligations under
|
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|
the ERPA.
[Chinese translation]
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5.1.2.
|
|
In any given Contract Period, if the verification of the Project’s CERs is delayed by 90 days
or more due
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to the Project Proponent ’s or Purchaser’s fault and/or misconduct, each of the
non-defaulting parties shall
|
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have the right to terminate its rights and obligations under the
ERPA.
|
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[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 9 of 18
|
5.1.3.
|
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In case the project is not commissioned within eighteen (18) months following the date of the
ERPA,
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each Purchaser shall have the right to terminate its rights and obligations under the
ERPA.
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[Chinese translation]
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5.1.4.
|
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Upon occurrence of an event of default or any other termination event in respect of the
Project
|
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Proponent or of Purchaser as provided in the ERPA, each of the non-defaulting
parties shall have
|
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the right to terminate its rights and obligations under the ERPA.
[Chinese translation]
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5.2.
|
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Force Majeure [Chinese translation]
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Should either Party be impeded wholly or in part from fulfilling any of its obligations under
the
|
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|
Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent
and for
|
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as long as such obligation is affected by Force Majeure and the impeded Party shall be entitled to
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such extension of time as may be reasonably necessary.
[Chinese translation]
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Either Party shall notify the other Party of the existence and date of beginning of an event of
|
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Force Majeure that is likely to impede its performance under the Agreement within 20
business
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days after having obtained knowledge of any such event. Either Party shall likewise
advise the other
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of the date when such event ended and shall also specify the re-determined time by which the
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performance of its obligations hereunder is to be completed.
[Chinese translation]
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Project Proponent and Purchaser shall consult with each other with a view of determining any
|
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further appropriate action if a condition of Force Majeure is to continue after 20 business
days
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from the date of giving notice thereof.
[Chinese translation]
|
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Neither Party shall be liable for damages or have the right to terminate this Agreement for
any delay
|
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in performing hereunder if such delay is caused by Force Majeure; provided,
however, that the
|
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non-impeded Party shall be entitled to terminate such part of the Agreement
that remains unfulfilled,
|
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|
if the condition of Force Majeure is to continue after 6 months from
the date of giving notice thereof.
|
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|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 10 of 18
|
6.
|
|
Change in Circumstances [Chinese translation]
|
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|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
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|
Certification of the resulting Emission Reductions) occurs which substantially affects the
|
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|
Project, the Parties to this Agreement shall enter into negotiations with a view to adapt the
|
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|
|
Project and its implementation or any relevant provision of this Agreement, as may be
|
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necessary or useful. A change in circumstances shall in no event be considered substantially
|
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|
|
affecting the Project if at least 50% of the Anticipated Emission Reductions can be generated.
|
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|
[Chinese translation]
|
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|
The Parties to this Agreement shall cooperate and make their best efforts to enable the
|
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|
continuation of the Project in accordance with the new circumstances and to achieve the
|
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|
generation and transfer of the Anticipated Emission Reductions.
[Chinese translation]
|
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|
If any of the documents related to the Project and submitted at any time during the term of
|
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|
|
this Agreement fails to be approved by such authority whose approval is required under the
|
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|
|
Kyoto Rules or otherwise appears to be non-compliant with any relevant standards or
|
|
|
|
conditions of the Kyoto Rules, Project Proponent and Purchaser shall discuss whether or not
|
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|
|
the relevant documents are to be revised and resubmitted.
|
|
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|
[Chinese translation]
|
|
|
|
7.
|
|
Conditions Precedent [Chinese translation]
|
|
|
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|
|
This Agreement shall enter into force upon satisfaction of the following condition precedent:
|
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|
[Chinese translation]
|
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 11 of 18
|
8.
|
|
Miscellaneous [Chinese translation]
|
|
|
|
8.1.
|
|
Assignment and Subcontracting [Chinese translation]
|
|
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|
|
Because the interests of Project Proponent is paid by Purchaser, Project Proponent shall not,
|
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|
|
without the written consent of Purchaser, assign or transfer the Agreement or the benefits or
|
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|
|
obligations thereof or any part thereof to any other person.
|
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|
[Chinese translation]
|
|
|
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|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any third party
|
|
|
|
(“assignee”) without consent of Project Proponent. However, Purchaser shall inform Project
|
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|
|
Proponent for these transfers if any. Rights and obligations between Purchaser and Project
|
|
|
|
Proponent remain the same after the transfer.
|
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|
[Chinese translation]
|
|
|
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|
|
Within 90 business days before the first commitment period come to an end, both Parties
|
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|
|
shall renegotiate to continue the agreement. If over 30 days, starting the day on which the
|
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|
|
first commitment period ends, both Parties can not come to an agreement, Project Proponent
|
|
|
|
has full power to assign the Agreement to any other person without legal ties from Purchaser.
|
|
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|
[Chinese translation]
|
|
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|
8.2.
|
|
Confidentiality and Disclosure [Chinese translation]
|
|
|
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|
The Parties shall treat as confidential all information obtained as a result of entering into or
|
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|
|
performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
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|
[Chinese translation]
|
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|
No Party shall disclose any such confidential information to any third party, except in those
|
|
|
|
circumstances where disclosure is required in order to comply with any laws or regulations,
|
|
|
|
including without limitations of the Kyoto Rules.
|
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 12 of 18
|
8.3.
|
|
Notices [Chinese translation]
|
|
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be made
|
|
|
|
in writing (including by facsimile) to the address or facsimile number, from time to time
|
|
|
|
designated by the Party to whom the communication is to be made to the other Party for that
|
|
|
|
purpose.
[Chinese translation]
|
|
|
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|
A communication shall only be considered as legal effect if it is posted and confirmed by
|
|
|
|
both Parties.
|
|
|
|
8.4.
|
|
Entire Agreement [Chinese translation]
|
|
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the Parties with respect to the
|
|
|
|
subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein. The
|
|
|
|
Annexes and schedules to this Agreement constitute integral parts of this Agreement and
|
|
|
|
shall therefore be deemed part of this Agreement.
|
|
|
|
[Chinese translation]
|
|
|
|
8.5.
|
|
Amendments [Chinese translation]
|
|
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the Parties hereto.
|
|
|
|
[Chinese translation]
|
|
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|
8.6.
|
|
Severability [Chinese translation]
|
|
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any
|
|
|
|
respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in
|
|
|
|
the Agreement resulting there from shall be amended by way of interpretation of the
|
|
|
|
Agreement having due regard to the Parties intent.
|
|
|
|
[Chinese translation]
|
|
|
|
8.7.
|
|
Governing law [Chinese translation]
|
|
|
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|
|
This Agreement shall be governed and construed in accordance with Chinese law excluding
|
|
|
|
its rules on conflicts of laws.
|
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 13 of 18
|
8.8.
|
|
Jurisdiction [Chinese translation]
|
|
|
|
|
|
|
|
Any dispute, claim or controversy arising out of or relating to this agreement will be settled
|
|
|
|
by arbitration at Hong Kong International Arbitration Center (“HKIAC”) in Hong Kong
|
|
|
|
under the UNCITRAL Arbitration Rules. The number of arbitrators will be three and the
|
|
|
|
arbitrators will be appointed in accordance with the UNCITRAL Rules and the HKIAC
|
|
|
|
Procedures for the Administration of international Arbitration (the “HKIAC
|
|
|
|
Procedures”).The arbitration proceeding will be administered by HKIAC in accordance with
|
|
|
|
the HKIAC Procedures. The legal place of the arbitration will be Hong Kong and the
|
|
|
|
language to be used in the arbitral proceedings will be English. All arbitration costs
|
|
|
|
(including legal costs) will be borne by the unsuccessful party unless otherwise determined
|
|
|
|
by the arbitration tribunal.
|
|
|
|
[Chinese translation]
|
|
|
|
8.9.
|
|
Counterparts [Chinese translation]
|
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project Proponent
|
|
|
|
and one for Purchaser. If there are any discrepancies between the English and the Chinese
|
|
|
|
version, the English version will prevail.
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 14 of 18
PARTIES TO THE AGREEMENT [Chinese translation]:
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above,
this …17th….. (Day) of …Oct.…, 2008, in the presence of: [Chinese translation]:
Purchaser:
DR. TRI VU TRUONG
President-CEO: Dr. Tri Vu Truong
Project
Proponent:
HUANG, WEIMIN
General Director: HUANG, Weimin
Witness No 1 Witness No 2
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 15 of 18
ANNEX i:
1
.
The salient features of Xinjiang Xiangjianfeng Urumqi Dabancheng 200MW
Windfarm 1
st
Phrase 49.5 MW Project
2. Project time schedule:
-
The year 2008:
-
The year 2009:
-
The year 2009 – 2010:
;
-
The year 2011:
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 16 of 18
ANNEX ii:
WORK FLOW OF CDM ACTIVITY
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 17 of 18
ANNEX iii:
SUMMARY OF FEASIBILITY STUDY (FS) AND
ENVIRONMETAL IMPACT ASSESSMENT (EIA)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 18 of 18
ANNEX iv:
PROJECT DEVELOPMENT DOCUMENT (PDD)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Exhibit 10.20
Technical Services Agreement
[Chinese translation]
Between: EcoloCap Solutions Canada Inc. (EcoloCap)
740 St Maurice suite 102
Montreal QC H3C 1L5
Tel: 0015148763907 Fax: 0015148764080
And
Xinjiang Xiangjianfeng Energy and Technology Development Co., Ltd.
(XJF)
[Chinese translation]
Xinjie Building B-24, 79 Heilongjiang Rd, Urumqi, Xinjiang
[Chinese translation]
Telephone: 0991-5506260
Mobile: 13929982313
Re: Technical services for CDM project: Xinjiang Xiangjianfeng Urumqi
Dabancheng 200MW Windfarm 1
st
Phase-49.5MW Project
[Chinese translation]
Whereby EcoloCap Solutions (Canada) Inc. will perform for XJF necessary technical services for the validation of its CDM projects.
[Chinese translation]
In consideration of these services rendered as well as expenses incurred, EcoloCap shall be paid by XJF professional fees for this project
and EcoloCap shall be paid a fee for its services which is calculated as follows:
[Chinese translation]
Amount paid = 20% x Net Revenues from CER [Chinese translation]
Net Revenues = Total validated quantity of CER multiplied by 9.5 Euro – 60,000 Euro (First year) [Chinese translation]
Net Revenues = Total validated quantity of CER multiplied by 9.5 Euro (following years) [Chinese translation]
EcoloCap shall be responsible for the preparation of these technical documents (PIN, PDD, etc.) and shall make best efforts to assist
XJF in the approval processes of these projects by local authorities as well as by the DOE and the EB. All the expenses incurred above
will be borne by EcoloCap.
[Chinese translation]
EcoloCap shall make best effort to help XJF to get financial participation of foreign investors in the Project.
[Chinese translation]
We agree to the above and acknowledge receiving a copy of this agreement. This agreement will have the same
duration as the related ERPA.
[Chinese translation]
|
Dated this 17
th
day of October 2008.
|
|
[Chinese translation]
|
|
|
|
EcoloCap Solutions (Canada) Inc.
|
|
|
|
|
|
|
|
Per:
DR. TRI VU TRUONG
|
|
Dr. Tri Vu Truong
|
|
President & CEO
|
|
|
|
|
|
Xinjiang Xiangjianfeng Energy and Technology Development Co., Ltd. (XJF)
|
|
[Chinese translation]
|
|
|
|
|
|
|
|
Per:
HUANG, JUANFENG
|
|
Mr. HUANG, Juanfeng
|
|
Board Chairman
|
Exhibit 10.21
Technical Services Agreement
[Chinese translation]
Between: EcoloCap Solutions Canada Inc. (EcoloCap)
740 St Maurice suite 102
Montreal QC H3C 1L5
Tel: 0015148763907 Fax: 0015148764080
And
Hebei Fengda Metalized Pellet Co., Ltd. (Fengda)
[Chinese translation]
East of Pingshe Rd. Jingjing Mining Area, Shijiazhuang City, Hebei
Province, China
[Chinese translation]
Telephone: 0311-82066098
Mobile: 831132217
Email: zhanghongbo3@163.com
Re: Technical services for CDM project: 1 Million/Yr Metalized Pellet Production Project
[Chinese translation]
Whereby EcoloCap Solutions (Canada) Inc. will perform for Fengda necessary technical services for the validation of its CDM projects.
[Chinese translation]
In consideration of these services rendered as well as expenses incurred, EcoloCap shall be paid by Fengda professional fees for this project and
EcoloCap shall be paid a fee for its services which is calculated as follows:
[Chinese translation]
Amount paid = 15% x Net Revenues from CER [Chinese translation]
Net Revenues = Total validated quantity of CER multiplied by 9.5 Euro – 100,000 Euro (First year) [Chinese translation])
Net Revenues = Total validated quantity of CER multiplied by 9.5 Euro (following years) [Chinese translation]
EcoloCap shall be responsible for the preparation of these technical documents (PIN, PDD, etc.) and shall make best efforts to assist
Fengda in the approval processes of these projects by local authorities as well as by the DOE and the EB. All the expenses incurred above
will be borne by EcoloCap.
[Chinese translation]
EcoloCap shall make best effort to help Fengda to get financial participation of foreign investors in the Project.
[Chinese translation]
We agree to the above and acknowledge receiving a copy of this agreement.
[Chinese translation]
|
Dated this 19
th
day of October 2008.
|
|
[Chinese translation]
|
|
|
|
EcoloCap Solutions (Canada) Inc.
|
|
|
|
|
|
|
|
Per:
DR. TRI VU TRUONG
|
|
Dr. Tri Vu Truong
|
|
President & CEO
|
|
|
|
|
|
Hebei Fengda Metalized Pellet Co., Ltd. (Fengda)
|
|
[Chinese translation]
|
|
|
|
Per:
LI, LISHENG
|
|
Mr. LI, Lisheng
|
|
Board Chairman
|
Emission Reduction Purchase Agreement
Page
1 of 18
Exhibit 10.22
EMISSION REDUCTION PURCHASE AGREEMENT
(ERPA)
[Chinese translation]
Hebei Fengda 1 Million Tons/yr Metallized Pellet Project
[Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 2 of 18
between
(The "Purchaser") [Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
[Chinese translation]
740 St. Maurice suite 102
Montreal, QC H3C 1L5
Canada
Tel: 5148763907 Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO: Dr. Tri Vu Truong
and
(the " Seller"), henceforth “PROJECT PROPONENT”
[Chinese translation]
Hebei Fengda Metallized Pellet Co., Ltd.
[Chinese translation]
(“Owner”)
Address: East of Pingshe Rd. Jingjing Mining Area, Shijiazhuang City, Hebei Province,
CHINA [Chinese translation]050100
Telephone: 0311-82066098
Mobile: 13831132217 Email: zhanghongbo3@163.com
Board Chairman
: /
[Chinese translation]
Both parties have agreed to sign the Reduction Emission Purchase Agreement (Agreement)
with the following terms and conditions: [Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 3 of 18
|
Interpretation and Definitions /[Chinese translation]
|
|
|
|
In this Agreement, unless otherwise required by the context, all terms shall have the meaning set forth
|
|
in the definitions below.
|
|
[Chinese translation]:
|
|
|
|
Agreement:
|
Means this Emission Reduction Purchase Agreement. [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Annex B
|
Means the countries listed in Annex B to the Kyoto Protocol having
|
|
Countries:
|
committed themselves to reduce or limit their GHG emissions. [Chinese
|
|
[Chinese
|
translation]
|
|
translation]
|
|
|
|
|
Annex I
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
|
|
Countries:
|
consists of industrial countries and countries in transition). [Chinese
|
|
[Chinese
|
translation]
|
|
translation]
|
|
|
|
|
Anticipated
|
Means up to ( ) Certified Emission Reductions (CERs) per annum during
|
|
Emission
|
the Crediting Period, anticipated be generating by the Project and
|
|
Reduction:
|
calculating in accordance with the Kyoto Rules. [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic emissions
|
|
[Chinese
|
of GHG that would occur in the Host Country in the absence of the Project,
|
|
translation]
|
determined in accordance with the Kyoto Rules. [Chinese translation]
|
|
|
|
Business Day:
|
Means a day on which banks are open for general business in China.
|
|
[Chinese
|
[Chinese translation]
|
|
translation]
|
|
|
|
|
|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various GHG
|
|
Equivalent:
|
based upon their global warming potential. [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
|
Certification:
|
Means the written confirmation by an Operational Entity of an Emission
|
|
[Chinese
|
Reduction resulting from a CDM project and having passed the Verification
|
|
translation]
|
procedure according to the Kyoto Rules. [Chinese translation]
|
|
|
|
Certified
|
Means a unit of Emission Reduction issued pursuant to Article 12 of the
|
|
Emission
|
Kyoto Protocol and the requirements of the Kyoto Rules (including
|
|
Reduction
|
Certification), equal to one metric ton of Carbon Dioxide Equivalent
|
|
[Chinese
|
resulting from a CDM project. [Chinese translation]
|
|
translation]
|
|
|
|
|
|
|
Initial: Project Proponent:___
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
|
Emission Reduction Purchase Agreement
Page 4 of 18
|
|
|
|
Clean Development
|
Means the flexible mechanism established by Article 12 of the Kyoto Protocol providing for
|
|
Mechanism
|
Annex I Countries to implement projects that reduce
|
|
(CDM):
|
emissions in non-Annex I Countries in return for CERs and assist the non-
|
|
[Chinese
|
Annex I Countries in achieving sustainable development and contributing to
|
|
translation]
|
the ultimate objective of the UNFCCC. [Chinese translation]
|
|
|
|
|
|
|
Crediting
|
Means, until December 31, 2026. [Chinese translation]
|
|
Period: [Chinese
|
|
|
translation]
|
|
|
|
|
Emission
|
Means reduction in emission of GHG achieved, calculated in accordance
|
|
Reduction:
|
with the Kyoto Rules. [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Executive
|
Means the international authority elected by the representatives of the
|
|
Board: [Chinese
|
parties to the Kyoto Protocol responsible for monitoring the CDM process.
|
|
translation]
|
[Chinese translation]
|
|
|
|
First
|
Means, from 19 October, 2008 until 31 December, 2012.
|
|
Commitment
|
|
|
Period: [Chinese
|
2008 [Chinese translation]
|
|
translation]
|
|
|
|
|
Force Majeure:
|
Means any circumstance or condition beyond the control of either party to
|
|
[Chinese
|
this Agreement affecting the performance of its obligations under this
|
|
translation]
|
Agreement including in particular wars, insurrection, natural disaster or
|
|
|
equivalent circumstances. [Chinese translation]
|
|
|
|
Greenhouse
|
Means the six gases listed in Annex A to the Kyoto Protocol. [Chinese
|
|
Gases (GHG):
|
translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Host Country:
|
China [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference of the
|
|
[Chinese
|
parties to the UNFCCC in Kyoto, Japan, on December 11, 1997. [Chinese
|
|
translation]
|
translation]
|
|
|
|
Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the Marrakech
|
|
[Chinese
|
Accords, any relevant decisions, guidelines, modalities and procedures
|
|
translation]
|
made pursuant to them and/or any succeeding international agreements as
|
|
|
amended and/or supplemented from time to time and which include those
|
|
|
rules specifically required to be met for the issuing and transfer of CERs.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 5 of 18
|
Letterof
|
Means a binding approval of the Project by the Host Country together with
|
|
Approval
|
an approval of the transfer of CERs. [Chinese translation]
|
|
(LOA): [Chinese
|
|
|
translation]
|
|
|
|
|
Monitoring
|
Means an annual report to be provided by Owner setting out the total
|
|
Report: [Chinese
|
number of Emission Reductions generated by the Project during the
|
|
translation]
|
previous year according to the Kyoto Rules, international Monitoring rules
|
|
|
and the PDD. [Chinese translation]
|
|
|
|
Monitoring:
|
Means the collection and record of data allowing the assessment of
|
|
[Chinese
|
reductions in GHG emissions resulting from the Project conducted in
|
|
translation]
|
accordance with the Kyoto Rules. [Chinese translation]
|
|
|
|
Designated
|
Means an independent entity accredited by the Executive Board being the
|
|
Operational
|
executive body for CDM and inter alias responsible for determining
|
|
Entity: [Chinese
|
whether a project and the resulting Emission Reductions meet the
|
|
translation]
|
requirements of Article 12 of the Kyoto Protocol. [Chinese translation]
|
|
|
|
Project Design
|
Means a detailed description of the Project to be submitted for Validation
|
|
Document
|
prepared in accordance with the Kyoto Rules, the UFG and the Directive
|
|
(PDD):
|
and attached as Annex [iv]. The Purchaser will be responsible for providing
|
|
[Chinese
|
PDD development for Registration of the Project. [Chinese translation]
|
|
translation]
|
|
|
Project:
|
Means the proposed CDM project described in the PDD and other
|
|
[Chinese
|
documents describing the implementation and economics of the Project
|
|
translation]
|
attached in Annex [iii]. [Chinese translation]
|
|
|
|
Registration:
|
Means the official registration of a CDM project by the Executive Board
|
|
[Chinese
|
according to the Kyoto Rules. [Chinese translation]
|
|
translation]
|
|
|
|
|
UNFCCC:
|
Means the United Nations Framework Convention on Climate Change
|
|
|
adopted in New York on May 9, 1992. [Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 6 of 18
|
Unit Price:
|
Means the price payable by Purchaser to Project Proponent per
|
|
[Chinese
|
Certified Emission Reduction (CER) unit: [Chinese translation]
|
|
translation]
|
The purchase unit price paid by EcoloCap Solutions Canada Inc to
|
|
|
Chinese Project Proponent for the CER is fixed at 9.5 Euro/CER for
|
|
|
the year 2008 to 2012 and a new agreement for purchase unit price
|
|
|
will be negotiated for the next two periods of extension. /EcoloCap
|
|
|
Solutions Canada Inc 2008 -[Chinese translation]
|
|
|
|
|
For the first payment, a one time amount of 100,000 Euro will be
|
|
|
paid to Ecolocap Solutions Inc for the reimbursement to Ecolocap for
|
|
|
its advance cash for the costs relating to CDM process. Other
|
|
|
expenses will be paid by EcoloCap. [Chinese translation]
|
|
|
|
|
Term:
|
Ecolocap Solutions Inc will purchase certified CERs generated by
|
|
[Chinese
|
this project for the year 2008 to 2012 with options of extension for
|
|
translation]
|
two other periods of 7 years, the period 2013-2026, with the same
|
|
|
terms and conditions except for the price which will be renegotiated.
|
|
|
/Ecolocap Solutions Inc. [Chinese translation]
|
|
|
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
[Chinese
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
|
translation]
|
[Chinese translation]
|
|
|
|
Verification:
|
Means the periodic independent review and ex post determination of
|
|
[Chinese
|
the monitored reductions in GHG emissions that the Project has
|
|
translation]
|
achieved during a specified period of time by an Operational Entity in
|
|
|
accordance with the Kyoto Rules. The project's owner will be
|
|
|
Responsible for providing periodical monitoring. [Chinese
|
|
|
translation]
|
|
|
|
|
|
|
|
Unless otherwise specified, references to clauses are clauses of this Agreement, references to legal
|
|
provisions are references to such provisions as in effect from time to time, use of a gender includes any
|
|
gender and use of the plural includes the singular and vice versa where the context requires.
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:____
|
Emission Reduction Purchase Agreement
Page 7 of 18
|
|
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of this
|
|
Agreement or taken into consideration in its interpretation. [Chinese translation]
|
|
|
|
1.
|
Preamble [Chinese translation]
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
[Chinese translation]
|
|
|
|
2.
|
Contractual Obligations
[Chinese translation]
|
|
|
|
|
2.1.
|
Anticipated Emission Reductions
[Chinese translation]
|
|
|
|
2.1.1.
|
Upon Registration of the Project, Purchaser shall endeavor to implement the Project in
|
|
|
accordance with the PDD and other documents describing the implementation and economics
|
|
|
of the project attached in (Annex iv) at its own risk and expense (Annex ii). It is hereby
|
|
|
acknowledged and agreed between the Parties hereto that Purchaser does not warrant the
|
|
|
generation of, and is not obliged to generate, any CERs, whether by the Project or otherwise.
|
|
|
[Chinese translation]
|
|
|
|
2.1.2.
|
If the Project generates CERs during the crediting period, Project Proponent shall, to the
|
|
|
extent it is legally possible and permissible, exclusively transfer to Purchaser all rights (and,
|
|
|
to the extent legally possible and permissible, legal title) which Project Proponent may have
|
|
|
in the Anticipated Emission Reductions.
|
|
|
[Chinese translation]
|
|
|
|
2.1.3.
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated Emission
|
|
|
Reduction generated by the Project and in which the Project Proponent's rights are transferred
|
|
|
to Purchaser in accordance with clause 3 below.
|
|
|
[Chinese translation]
|
|
|
|
2.2.
|
Emission Reductions generated after the Crediting Period [Chinese translation]
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting Period,
|
|
|
Purchaser shall enter into negotiations with Project Proponent with a view to concluding an
|
|
|
agreement on the purchase of such Certified Emission Reductions based on the principles of
|
|
|
this Agreement but amended in order to reflect the international and/or national rules then
|
|
|
applicable.
|
|
|
[Chinese translation]
|
|
|
|
|
2.3.
|
Schedule for CDM procedure [Chinese translation]
|
|
|
|
|
2.4.1.
|
Upon the signature of the ERPA contract, Purchaser shall develop the Project Idea Note
(PIN)
|
|
|
and send it to Project Proponent for submitting to National Development and Reform
|
|
|
Commission (NDRC) with all necessary legal documents. The NDRC’s endorsement letter
|
|
|
shall be done expectedly within a month.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 8 of 18
|
2.4.2.
|
After having the endorsement letter of PIN from NDRC, Purchaser shall submit the Project
|
|
|
Design Document
(PDD)
of the Project with all necessary legal documents to NDRC for
|
|
|
appraisal and approval within 2 months. The PDD of the Project which has been written by
|
|
|
consultant shall also be considered and revised by Purchaser during this period of time.
|
|
|
[Chinese translation]
|
|
|
|
|
2.4.3.
|
The Purchaser’s consultant shall improve and edit the PDD within one month, following the
|
|
|
oral presentation of the PDD of the Project to NDRC, in order to get DNA’s Approval letter
|
|
|
[Letter of Approval
(LOA)].
|
|
|
[Chinese translation]
|
|
|
|
|
2.4.4.
|
Validation report shall be completed by Designated Operational Entity
(DOE)
and the
|
|
|
Purchaser’s consultant within the period of 5 months after DNA’s approval.
|
|
|
[Chinese translation]
|
|
|
|
|
After meeting the requirements of validation by DOE, CDM project will be submitted to
|
|
|
Execute Board
(EB)
for final appraisal and approval.
|
|
|
[Chinese translation]
|
|
|
|
|
|
2.4.5.
|
Following the first verification of DOE for the implementation of the CDM project and the
|
|
|
monitoring of GHG reduction, the CER's certificate will be issued by
EB
.
|
|
|
[Chinese translation]
|
|
|
|
3.
|
Transfer [Chinese translation]
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible
|
|
|
legal title) which Project Proponent may have in a Certified Emission Reduction shall have
|
|
|
occurred upon the transfer of CER’s certificate from the register of the Executive Board to a
|
|
|
register in favor of Purchaser. This transfer shall be made immediately as soon as the EB
|
|
|
officially approve the Project registration.
|
|
|
[Chinese translation]
|
|
|
|
4.
|
Payment [Chinese translation]
|
|
|
|
4.1.
|
Payment for Certified Emission Reductions [Chinese translation]
|
|
|
|
4.1.1.
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions shall be
|
|
|
made within 50 Business Days after the CER’s certificate are delivered to Purchaser.
|
|
|
Purchaser shall transfer money into the account of Project Proponent, after the CER
|
|
|
certificate is issued by the EB following each monitoring realized by the DOE.
|
|
|
[Chinese translation]
|
|
|
|
|
4.1.2.
|
All payments shall be made through the account of Ecolocap which has been registered for
|
|
|
the Project when the PDD is submitted to EB for approval. This account is in the EB’s
|
|
|
common account [Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 9 of 18
|
|
|
|
4.1.3.
|
All payments shall be made in US Dollars.
|
|
|
[Chinese translation]
|
|
|
|
|
4.2.
|
Costs and Expenses [Chinese translation]
|
|
|
|
4.2.1.
|
Subject to clause 4.2.2 below, all fees, costs or other expenses in connection with the
|
|
|
Registration and the transfer of CERs shall be borne by Purchaser including VAT, if any,
|
|
|
according to VAT law applied in China.
|
|
|
[Chinese translation]
|
|
|
|
4.2.2.
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
administrative expenses and to assist developing countries that are particularly vulnerable to
|
|
|
the adverse effects of climate change to meet the costs of adaptation according to the Kyoto
|
|
|
Rules shall be borne by the Project Proponent.
|
|
|
[Chinese translation]
|
|
|
|
4.2.3.
|
The Project Proponent should provide necessary information to the Purchaser for the
|
|
|
preparation of documents required for PIN (project idea note), PDD (project design
|
|
|
document), the validation, the verification/certification, and the registration with CDM
|
|
|
Executive Board (Annex i). All costs accrued to each of the Parties in negotiating, preparing,
|
|
|
executing and carrying into effect of this Agreement, shall be borne by each of the Parties
|
|
|
themselves.
|
|
|
[Chinese translation]
|
|
|
|
5.
|
Termination and Remedies [Chinese translation]
|
|
|
|
|
5.1.
|
Either Party (the "Non-defaulting Party") shall be entitled to terminate this Agreement by
|
|
|
written notice to the other Party with immediate effect if any of the following events occurs:
|
|
|
[Chinese translation]
|
|
|
|
5.1.1.
|
n case the Project is not register as a valid CDM Project activity with the CDM EB within
|
|
|
eighteen (18) months upon execution of the ERPA, (which will be signed not later than three
|
|
|
(3) months after the signature of this term sheet), either party shall have the right to terminate
|
|
|
its rights and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.2.
|
In any given Contract Period, if the verification of the Project’s CERs is delayed by 90 days
|
|
|
or more due to the Project Proponent ’s or Purchaser’s fault and/or misconduct, each of the
|
|
|
non-defaulting parties shall have the right to terminate its rights and obligations under the
|
|
|
ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.3.
|
In case the project is not commissioned within eighteen (18) months following the date of the
|
|
|
ERPA, each Purchaser shall have the right to terminate its rights and obligations under the
|
|
|
ERPA.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 10 of 18
|
5.1.4
|
Upon occurrence of an event of default or any other termination event in respect of the
|
|
|
Project Proponent or of Purchaser as provided in the ERPA, each of the non-defaulting
|
|
|
parties shall have the right to terminate its rights and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.2
|
Force Majeure [Chinese translation]
|
|
|
|
|
|
Should either Party be impeded wholly or in part from fulfilling any of its obligations under
|
|
|
the Agreement for reasons of Force Majeure, such obligation shall be suspended to the extent
|
|
|
and for as long as such obligation is affected by Force Majeure and the impeded Party shall
|
|
|
be entitled to such extension of time as may be reasonably necessary.
|
|
|
[Chinese translation]
|
|
|
|
|
Either Party shall notify the other Party of the existence and date of beginning of an event of
|
|
|
Force Majeure that is likely to impede its performance under the Agreement within 20
|
|
|
business days after having obtained knowledge of any such event. Either Party shall likewise
|
|
|
advise the other of the date when such event ended and shall also specify the re-determined
|
|
|
time by which the performance of its obligations hereunder is to be completed.
|
|
|
[Chinese translation]
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of determining any
|
|
|
further appropriate action if a condition of Force Majeure is to continue after 20 business
|
|
|
days from the date of giving notice thereof.
|
|
|
[Chinese translation]
|
|
|
|
|
Neither Party shall be liable for damages or have the right to terminate this Agreement for
|
|
|
any delay in performing hereunder if such delay is caused by Force Majeure; provided,
|
|
|
however, that the non-impeded Party shall be entitled to terminate such part of the Agreement
|
|
|
that remains unfulfilled, if the condition of Force Majeure is to continue after 6 months from
|
|
|
the date of giving notice thereof.
|
|
|
[Chinese translation]
|
|
|
|
6
|
Change in Circumstances [Chinese translation]
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable standards
|
|
|
relating to the Baseline methodology and/or the applicable criteria for Verification and
|
|
|
Certification of the resulting Emission Reductions) occurs which substantially affects the
|
|
|
Project, the Parties to this Agreement shall enter into negotiations with a view to adapt the
|
|
|
Project and its implementation or any relevant provision of this Agreement, as may be
|
|
|
necessary or useful. A change in circumstances shall in no event be considered substantially
|
|
|
affecting the Project if at least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
[Chinese translation]
|
|
|
|
|
|
The Parties to this Agreement shall cooperate and make their best efforts to enable the
|
|
|
continuation of the Project in accordance with the new circumstances and to achieve the
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 11 of 18
|
|
generation and transfer of the Anticipated Emission Reductions.
|
|
|
[Chinese translation]
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the term of
|
|
|
this Agreement fails to be approved by such authority whose approval is required under the
|
|
|
Kyoto Rules or otherwise appears to be non-compliant with any relevant standards or
|
|
|
conditions of the Kyoto Rules, Project Proponent and Purchaser shall discuss whether or not
|
|
|
the relevant documents are to be revised and resubmitted.
|
|
|
[Chinese translation]
|
|
|
|
|
7.
|
Conditions Precedent [Chinese translation]
|
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following condition precedent:
|
|
|
[Chinese translation]
|
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
[Chinese translation]
|
|
|
|
8.
|
Miscellaneous [Chinese translation]
|
|
|
|
8.1.
|
Assignment and Subcontracting [Chinese translation]
|
|
|
|
|
|
Because the interests of Project Proponent is paid by Purchaser, Project Proponent shall not,
|
|
|
without the written consent of Purchaser, assign or transfer the Agreement or the benefits or
|
|
|
obligations thereof or any part thereof to any other person.
|
|
|
[Chinese translation]
|
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any third party
|
|
|
(“assignee”) without consent of Project Proponent. However, Purchaser shall inform Project
|
|
|
Proponent for these transfers if any. Rights and obligations between Purchaser and Project
|
|
|
Proponent remain the same after the transfer.
|
|
|
[Chinese translation]
|
|
|
|
|
|
Within 90 business days before the first commitment period come to an end, both Parties
|
|
|
shall renegotiate to continue the agreement. If over 30 days, starting the day on which the
|
|
|
first commitment period ends, both Parties can not come to an agreement, Project Proponent
|
|
|
has full power to assign the Agreement to any other person without legal ties from Purchaser.
|
|
|
[Chinese translation]
|
|
|
|
|
8.2.
|
Confidentiality and Disclosure [Chinese translation]
|
|
|
|
|
|
The Parties shall treat as confidential all information obtained as a result of entering into or
|
|
|
performing this Agreement which relates to the provisions of this Agreement, the
|
|
|
negotiations relating to this Agreement and the subject matter of this Agreement.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 12 of 18
|
|
No Party shall disclose any such confidential information to any third party, except in those
|
|
|
circumstances where disclosure is required in order to comply with any laws or regulations,
|
|
|
including without limitations of the Kyoto Rules.
|
|
|
[Chinese translation]
|
|
|
|
|
8.3.
|
Notices [Chinese translation]
|
|
|
|
|
|
Any communications to be made under or in connection with this Agreement shall be made
|
|
|
in writing (including by facsimile) to the address or facsimile number, from time to time
|
|
|
designated by the Party to whom the communication is to be made to the other Party for that
|
|
|
purpose.
|
|
|
[Chinese translation]
|
|
|
|
|
|
A communication shall only be considered as legal effect if it is posted and confirmed by
|
|
|
both Parties.
|
|
|
|
8.4.
|
Entire Agreement [Chinese translation]
|
|
|
|
|
|
This Agreement embodies the whole and only agreement of the Parties with respect to the
|
|
|
subject matter hereof, and no prior or contemporaneous oral or written agreement or
|
|
|
understanding shall be deemed to constitute a part of this Agreement, unless expressly
|
|
|
referred to herein, or attached hereto, or specifically incorporated by reference herein. The
|
|
|
Annexes and schedules to this Agreement constitute integral parts of this Agreement and
|
|
|
shall therefore be deemed part of this Agreement.
|
|
|
[Chinese translation]
|
|
|
|
|
8.5.
|
Amendments [Chinese translation]
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the Parties hereto.
|
|
|
[Chinese translation]
|
|
|
|
|
8.6.
|
Severability [Chinese translation]
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or unenforceable in any
|
|
|
respect, the remaining parts or provisions shall not be affected or impaired. Any deficiency in
|
|
|
the Agreement resulting there from shall be amended by way of interpretation of the
|
|
|
Agreement having due regard to the Parties intent.
|
|
|
[Chinese translation]
|
|
|
|
8.7.
|
Governing law [Chinese translation]
|
|
|
|
|
|
This Agreement shall be governed and construed in accordance with English law excluding
|
|
|
its rules on conflicts of laws.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 13 of 18
|
8.8.
|
Jurisdiction [Chinese translation]
|
|
|
|
|
|
Any dispute, claim or controversy arising out of or relating to this agreement will be settled
|
|
|
by arbitration at Hong Kong International Arbitration Center (“HKIAC”) in Hong Kong
|
|
|
under the UNCITRAL Arbitration Rules. The number of arbitrators will be three and the
|
|
|
arbitrators will be appointed in accordance with the UNCITRAL Rules and the HKIAC
|
|
|
Procedures for the Administration of international Arbitration (the “HKIAC
|
|
|
Procedures”).The arbitration proceeding will be administered by HKIAC in accordance with
|
|
|
the HKIAC Procedures. The legal place of the arbitration will be Hong Kong and the
|
|
|
language to be used in the arbitral proceedings will be English. All arbitration costs
|
|
|
(including legal costs) will be borne by the unsuccessful party unless otherwise determined
|
|
|
by the arbitration tribunal.
|
|
|
[Chinese translation]
|
|
|
|
|
8.9.
|
Counterparts [Chinese translation]
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project Proponent
|
|
|
and one for Purchaser. If there are any discrepancies between the English and the Chinese
|
|
|
version, the English version will prevail.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 14 of 18
PARTIES TO THE AGREEMENT [Chinese translation]
WHEREOF the parties have agreed to the terms and conditions of this agreement as
outlined above, this …19th….. (Day) of …Oct.…, 2008, in the presence of:
[Chinese translation]
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO: Dr. Tri Vu Truong
|
|
|
EcoloCap Solutions (Canada) Inc. (EcoloCap)
|
|
|
[Chinese translation]
|
|
|
|
Project
|
|
|
Proponent:
|
|
|
|
|
|
|
|
|
|
|
|
LI, LISHENG
|
|
|
Chairman of the Board: LI,Lisheng
|
|
|
[Chinese translation]
|
|
|
Hebei Fengda Metallized Pellet Co.,Ltd
|
|
|
[Chinese translation]
|
|
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 15 of 18
ANNEX i:
1
.
The salient features of 1 Million /yr Metallized Pellet Production
2. Project time schedule:
-
The year 2008:
- The year 2009:
- The year 2009 - 2010:
;
- The year 2011:
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 16 of 18
ANNEX ii:
WORK FLOW OF CDM ACTIVITY
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 17 of 18
ANNEX iii:
SUMMARY OF FEASIBILITY STUDY (FS) AND
ENVIRONMETAL IMPACT ASSESSMENT (EIA)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 18 of 18
ANNEX iv:
PROJECT DEVELOPMENT DOCUMENT (PDD)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 1 of 22
Exhibit 10.23
EMISSION REDUCTION PURCHASE AGREEMENT (ERPA)
[Chinese translation]
Treatment of Urban Domestic Refuse and Resource Utilization in Pingyuan Country
[Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 2 of 22
between
(The "Purchaser") [Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
[Chinese translation]
740 St. Maurice suite 102
Montreal, QC H3C 1L5
Canada
Tel: 5148763907 Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO: Dr. Tri Vu Truong
and
(the " Seller"), henceforth “PROJECT PROPONENT”
[Chinese translation]
Shandong Chengzeyuan Environment Protection Engineering Co., Ltd.
[Chinese translation] (“Owner”)
Address: Xisi Road 265, Dongying City, Shandong Province, CHINA
[Chinese translation]
Telephon[Chinese translation] 15345451111
Fax [Chinese translation]: 0546-8206866
Email: chengzeyuan_xiao@163.com
President [Chinese translation]
[Chinese translation] / Li Shengguo
Both parties have agreed to sign the Reduction Emission Purchase Agreement (Agreement) with the following terms and conditions:
[Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 3 of 22
|
Interpretation and Definitions [Chinese translation]
|
|
|
|
In this Agreement, unless otherwise required by the context, all terms shall have the
|
|
meaning set forth in the definitions below.
|
|
[Chinese translation]
|
|
|
|
Agreement:
|
Means this Emission Reduction Purchase Agreement. [Chinese
|
|
[Chinese
|
translation]
|
|
translation]
|
|
|
|
|
Annex B
|
Means the countries listed in Annex B to the Kyoto Protocol having
|
|
Countries:
|
committed themselves to reduce or limit their GHG emissions.
|
|
[Chinese
|
[Chinese translation]
|
|
translation]
|
|
|
|
|
Annex I
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
|
|
Countries:
|
consists of industrial countries and countries in transition). [Chinese
|
|
[Chinese
|
translation]
|
|
translation]
|
|
|
|
|
Anticipated
|
Means up to ( ) Certified Emission Reductions (CERs) per annum
|
|
Emission
|
during the Crediting Period, anticipated be generating by the Project
|
|
Reduction:
|
and calculating in accordance with the Kyoto Rules. [Chinese
|
|
[Chinese
|
translation]
|
|
translation]
|
|
|
|
|
|
|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic
|
|
[Chinese
|
emissions of GHG that would occur in the Host Country in the
|
|
translation]
|
absence of the Project, determined in accordance with the Kyoto
|
|
|
Rules. [Chinese translation]
|
|
|
|
Business Day:
|
Means a day on which banks are open for general business in China.
|
|
[Chinese
|
[Chinese translation]
|
|
translation]
|
|
|
|
|
|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various
|
|
Equivalent:
|
GHG based upon their global warming potential. [Chinese
|
|
[Chinese
|
translation]
|
|
translation]
|
|
|
|
|
Certification:
|
Means the written confirmation by an Operational Entity of an
|
|
[Chinese
|
Emission Reduction resulting from a CDM project and having passed
|
|
translation]
|
the Verification procedure according to the Kyoto Rules. [Chinese
|
|
|
translation]
|
|
|
|
Certified
|
Means a unit of Emission Reduction issued pursuant to Article 12 of
|
|
Emission
|
the Kyoto Protocol and the requirements of the Kyoto Rules
|
|
Reduction
|
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 4 of 22
|
(CER):
|
(including Certification), equal to one metric ton of Carbon Dioxide
|
|
[Chinese
|
Equivalent resulting from a CDM project. [Chinese translation]
|
|
translation]
|
|
|
|
|
Clean
|
Means the flexible mechanism established by Article 12 of the Kyoto
|
|
Development
|
Protocol providing for Annex I Countries to implement projects that
|
|
Mechanism
|
reduce emissions in non-Annex I Countries in return for CERs and
|
|
(CDM):
|
assist the non-Annex I Countries in achieving sustainable
|
|
[Chinese
|
development and contributing to the ultimate objective of the
|
|
translation]
|
UNFCCC. [Chinese translation]
|
|
|
|
Crediting
|
Means, until December 31, 2026. [Chinese translation]
|
|
Period:
|
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
|
Emission
|
Means reduction in emission of GHG achieved, calculated in
|
|
Reduction:
|
accordance with the Kyoto Rules. [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Executive
|
Means the international authority elected by the representatives of the
|
|
Board:
|
parties to the Kyoto Protocol responsible for monitoring the CDM
|
|
[Chinese
|
process. [Chinese translation]
|
|
translation]
|
|
|
|
|
|
First
|
|
|
Commitment
|
Means, from 21 , October, 2008 until 31 December, 2012.
|
|
Period:
|
[Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
|
Force Majeure:
|
Means any circumstance or condition beyond the control of either
|
|
[Chinese
|
party to this Agreement affecting the performance of its obligations
|
|
translation]
|
under this Agreement including in particular wars, insurrection,
|
|
|
natural disaster or equivalent circumstances. [Chinese translation]
|
|
|
|
Greenhouse
|
Means the six gases listed in Annex A to the Kyoto Protocol.
|
|
Gases (GHG):
|
[Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Host Country:
|
China [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference
|
|
[Chinese
|
of the parties to the UNFCCC in Kyoto, Japan, on December 11,
|
|
translation]
|
1997
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 5 of 22
|
Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
|
|
[Chinese
|
Marrakech Accords, any relevant decisions, guidelines, modalities
|
|
translation]
|
and procedures made pursuant to them and/or any succeeding
|
|
|
international agreements as amended and/or supplemented from time
|
|
|
to time and which include those rules specifically required to be met
|
|
|
for the issuing and transfer of CERs. /UNFCCC [Chinese translation]
|
|
|
|
Letter of
|
Means a binding approval of the Project by the Host Country together
|
|
Approval
|
with an approval of the transfer of CERs. [Chinese translation]
|
|
(LOA):
|
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
|
Monitoring
|
Means an annual report to be provided by Owner setting out the total
|
|
Report:
|
number of Emission Reductions generated by the Project during the
|
|
[Chinese
|
previous year according to the Kyoto Rules, international Monitoring
|
|
translation]
|
rules and the PDD. [Chinese translation]
|
|
|
|
Monitoring:
|
Means the collection and record of data allowing the assessment of
|
|
[Chinese
|
reductions in GHG emissions resulting from the Project conducted in
|
|
translation]
|
accordance with the Kyoto Rules. [Chinese translation]
|
|
|
|
Designated
|
Means an independent entity accredited by the Executive Board being
|
|
Operational
|
the executive body for CDM and inter alias responsible for
|
|
Entity:
|
determining whether a project and the resulting Emission Reductions
|
|
[Chinese
|
meet the requirements of Article 12 of the Kyoto Protocol. [Chinese
|
|
translation]
|
translation]
|
|
|
|
Project Design
|
Means a detailed description of the Project to be submitted for
|
|
Document
|
Validation prepared in accordance with the Kyoto Rules, the UFG
|
|
(PDD)
|
and the Directive and attached as Annex [iv]. The Purchaser will be
|
|
[Chinese
|
responsible for providing PDD development for Registration of the
|
|
translation]
|
Project. [Chinese translation]
|
|
|
|
Project:
|
Means the proposed CDM project described in the PDD and other
|
|
[Chinese
|
documents describing the implementation and economics of the
|
|
translation]
|
Project attached in Annex [iii]. [Chinese translation]
|
|
|
|
Registration:
|
Means the official registration of a CDM project by the Executive
|
|
[Chinese
|
Board according to the Kyoto Rules. [Chinese translation]
|
|
translation]
|
|
|
|
|
UNFCCC:
|
Means the United Nations Framework Convention on Climate
|
|
|
Change adopted in New York on May 9, 1992. [Chinese translation]
|
|
|
|
Unit Price:
|
Means the price payable by Purchaser to Project Proponent per
|
|
[Chinese
|
Certified Emission Reduction (CER) unit: [Chinese translation]
|
|
translation]
|
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 6 of 22
|
|
|
|
|
|
|
The purchase unit price paid by EcoloCap Solutions Canada Inc to
|
|
|
Chinese Project Proponent for the CER is fixed at 9.0 Euro/CER for
|
|
|
the year 2008 to 2012 and a new agreement for purchase unit price
|
|
|
will be negotiated for the next two periods of extension. [Chinese
|
|
|
translation]
|
|
|
|
|
For the first payment, a one time amount of 50,000 Euro will be paid
|
|
|
to Ecolocap Solutions Inc for the reimbursement to Ecolocap for its
|
|
|
advance cash for the costs relating to CDM process. Other expenses
|
|
|
will be paid by EcoloCap. [Chinese translation]
|
|
|
|
Term:
|
Ecolocap Solutions Inc will purchase certified CERs generated by
|
|
[Chinese
|
this project for the year 2008 to 2012 with options of extension for
|
|
translation]
|
two other periods of 7 years, the period 2013-2026, with the same
|
|
|
terms and conditions except for the price which will be renegotiated.
|
|
|
[Chinese translation]
|
|
|
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
[Chinese
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
|
translation]
|
[Chinese translation]
|
|
|
|
Verification:
|
Means the periodic independent review and ex post determination of
|
|
[Chinese
|
the monitored reductions in GHG emissions that the Project has
|
|
translation]
|
achieved during a specified period of time by an Operational Entity in
|
|
|
accordance with the Kyoto Rules. The project's owner will be
|
|
|
Responsible for providing periodical monitoring. [Chinese
|
|
|
translation]
|
|
|
|
|
|
Unless otherwise
specified, references to clauses are clauses of this Agreement,
|
|
references to legal provisions are references to such provisions as in effect from time to
|
|
time, use of a gender includes any gender and use of the plural includes the singular and
|
|
vice versa where the context requires.
|
|
[Chinese translation]
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of
|
|
this Agreement or taken into consideration in its interpretation.
|
|
[Chinese translation]
|
|
|
|
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 7 of 22
|
1.
|
|
Preamble
|
|
|
|
|
|
|
|
The Proje
ct is located on t
he territory of the Host Country.
|
|
|
|
|
|
2.
|
|
Contractual Obligations [Chinese translation]
|
|
|
|
|
|
2.1.
|
|
Anticipated Emission Reductions [Chinese translation]
|
|
|
|
|
|
2.1.1.
|
|
Upon Registration of the Project, Purchaser shall endeavor to implement the
|
|
|
|
Project in accordance with the PDD and other documents describing the
|
|
|
|
implementation and economics of the project attached in (Annex iv) at its own
|
|
|
|
risk and expense (Annex ii). It is hereby acknowledged and agreed between the
|
|
|
|
Parties hereto that Purchaser does not warrant the generation of, and is not
|
|
|
|
obliged to generate, any CERs, whether by the Project or otherwise.
|
|
|
|
[Chinese translation]
|
|
|
|
|
|
2.1.2.
|
|
If the Project generates CERs during the crediting period, Project Proponent
|
|
|
|
shall, to the extent it is legally possible and permissible, exclusively transfer to
|
|
|
|
Purchaser all rights (and, to the extent legally possible and permissible, legal
|
|
|
|
title) which Project Proponent may have in the Anticipated Emission
|
|
|
|
Reductions.
|
|
|
|
[Chinese translation]
|
|
|
|
2.1.3.
|
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated
|
|
|
|
Emission Reduction generated by the Project and in which the Project
|
|
|
|
Proponent's rights are transferred to Purchaser in accordance with clause 3
|
|
|
|
below.
|
|
|
|
[Chinese translation]
|
|
|
|
2.2.
|
|
Emission Reductions generated after the Crediting Period [Chinese
translation]
|
|
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting
|
|
|
|
Period, Purchaser shall enter into negotiations with Project Proponent with a
|
|
|
|
view to concluding an agreement on the purchase of such Certified Emission
|
|
|
|
Reductions based on the principles of this Agreement but amended in order to
|
|
|
|
reflect the international and/or national rules then applicable.
|
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 8 of 22
|
3.
|
Transfer [Chinese translation]
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible
|
|
|
and permissible, legal title) which Project Proponent may have in a Certified
|
|
|
Emission Reduction shall have occurred upon the transfer of CER’s certificate
|
|
|
from the register of the Executive Board to a register in favor of Purchaser. This
|
|
|
transfer shall be made immediately as soon as the EB officially approve the
|
|
|
Project registration.
|
|
|
[Chinese translation]
|
|
|
|
4.
|
Payment [Chinese translation]
|
|
|
|
4.1.
|
Payment for Certified Emission Reductions [Chinese translation]
|
|
|
|
4.1.1.
|
Payment by Purchaser to Project Proponent for the Certified Emission
|
|
|
Reductions shall be made within 50 Business Days after the CER’s certificate
|
|
|
are delivered to Purchaser. Purchaser shall transfer money into the account of
|
|
|
Project Proponent, after the CER certificate is issued by the EB following each
|
|
|
monitoring realized by the DOE.
|
|
|
[Chinese translation]
|
|
|
|
|
4.1.2.
|
All payments shall be made through the account of Ecolocap which has been
|
|
|
registered for the Project when the PDD is submitted to EB for approval. This
|
|
|
account is in the EB’s common account
|
|
|
[Chinese translation]
|
|
|
|
|
4.1.3.
|
All payments shall be made in US Dollars.
|
|
|
[Chinese translation]
|
|
|
|
4.2.
|
Costs and Expenses [Chinese translation]
|
|
|
|
4.2.1.
|
Subject to clause 4.2.2 below, all fees, costs or other expenses in connection
|
|
|
with the Registration and the transfer of CERs shall be borne by Purchaser
|
|
|
including VAT, if any, according to VAT law applied in China.
|
|
|
[Chinese translation]
|
|
|
|
4.2.2.
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
administrative expenses and to assist developing countries that are particularly
|
|
|
vulnerable to the adverse effects of climate change to meet the costs of
|
|
|
adaptation according to the Kyoto Rules shall be borne by the Project
|
|
|
Proponent.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 9 of 22
|
4.2.3.
|
The Project Proponent should provide necessary information to the Purchaser for
|
|
|
the preparation of documents required for PIN (project idea note), PDD (project
|
|
|
design document), the validation, the verification/certification, and the
|
|
|
registration with CDM Executive Board (Annex i). All costs accrued to each of
|
|
|
the Parties in negotiating, preparing, executing and carrying into effect of this
|
|
|
Agreement, shall be borne by each of the Parties themselves.
|
|
|
[Chinese translation]
|
|
|
|
5.
|
Termination and Remedies [Chinese translation]
|
|
|
|
5.1.
|
Either Party (the "Non-defaulting Party") shall be entitled to terminate this
|
|
|
Agreement by written notice to the other Party with immediate effect if any of
|
|
|
the following events occurs:
|
|
|
[Chinese translation]
|
|
|
|
5.1.1.
|
In case the Project is not register as a valid CDM Project activity with the CDM
|
|
|
EB within eighteen (18) months upon execution of the ERPA, (which will be
|
|
|
signed not later than three (3) months after the signature of this term sheet),
|
|
|
either party shall have the right to terminate its rights and obligations under the
|
|
|
ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.2.
|
In any given Contract Period, if the verification of the Project’s CERs is delayed
|
|
|
by 90 days or more due to the Project Proponent ’s or Purchaser’s fault and/or
|
|
|
misconduct, each of the non-defaulting parties shall have the right to terminate
|
|
|
its rights and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.3.
|
In case the project is not commissioned within eighteen (18) months following
|
|
|
the date of the ERPA, each Purchaser shall have the right to terminate its rights
|
|
|
and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.4.
|
Upon occurrence of an event of default or any other termination event in respect
|
|
|
of the Project Proponent or of Purchaser as provided in the ERPA, each of the
|
|
|
non-defaulting parties shall have the right to terminate its rights and obligations
|
|
|
under the ERPA.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 10 of 22
|
5.2.
|
Force Majeure [Chinese translation]
|
|
|
|
|
|
Should either Party be impeded wholly or in part from fulfilling any of its
|
|
|
obligations under the Agreement for reasons of Force Majeure, such obligation
|
|
|
shall be suspended to the extent and for as long as such obligation is affected by
|
|
|
Force Majeure and the impeded Party shall be entitled to such extension of time
|
|
|
as may be reasonably necessary.
|
|
|
[Chinese translation]
|
|
|
|
|
Either Party shall notify the other Party of the existence and date of beginning
|
|
|
of an event of Force Majeure that is likely to impede its performance under the
|
|
|
Agreement within 20 business days after having obtained knowledge of any
|
|
|
such event. Either Party shall likewise advise the other of the date when such
|
|
|
event ended and shall also specify the re-determined time by which the
|
|
|
performance of its obligations hereunder is to be completed.
|
|
|
[Chinese translation]
|
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of
|
|
|
determining any further appropriate action if a condition of Force Majeure is to
|
|
|
continue after 20 business days from the date of giving notice thereof.
|
|
|
[Chinese translation]
|
|
|
|
|
|
Neither Party shall be liable for damages or have the right to terminate this
|
|
|
Agreement for any delay in performing hereunder if such delay is caused by
|
|
|
Force Majeure; provided, however, that the non-impeded Party shall be entitled
|
|
|
to terminate such part of the Agreement that remains unfulfilled, if the condition
|
|
|
of Force Majeure is to continue after 6 months from the date of giving notice
|
|
|
thereof.
|
|
|
[Chinese translation]
|
|
|
|
6.
|
Change in Circumstances [Chinese translation]
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable
|
|
|
standards relating to the Baseline methodology and/or the applicable criteria for
|
|
|
Verification and Certification of the resulting Emission Reductions) occurs
|
|
|
which substantially affects the Project, the Parties to this Agreement shall enter
|
|
|
into negotiations with a view to adapt the Project and its implementation or any
|
|
|
relevant provision of this Agreement, as may be necessary or useful. A change
|
|
|
in circumstances shall in no event be considered substantially affecting the
|
|
|
Project if at least 50% of the Anticipated Emission Reductions can be
|
|
|
generated.
|
|
|
[Chinese translation]
|
|
|
|
|
The Parties to this Agreement shall cooperate and make their best efforts to
|
|
|
enable the continuation of the Project in accordance with the new circumstances
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 11 of 22
|
|
and to achieve the generation and transfer of the Anticipated Emission
|
|
|
Reductions.
|
|
|
[Chinese translation]
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during
|
|
|
the term of this Agreement fails to be approved by such authority whose
|
|
|
approval is required under the Kyoto Rules or otherwise appears to be non-
|
|
|
compliant with any relevant standards or conditions of the Kyoto Rules, Project
|
|
|
Proponent and Purchaser shall discuss whether or not the relevant documents
|
|
|
are to be revised and resubmitted.
|
|
|
[Chinese translation]
|
|
|
|
|
|
7.
|
Conditions Precedent [Chinese translation]
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following
|
|
|
condition precedent: [Chinese translation]
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
[Chinese translation]
|
|
|
|
|
|
8.
|
Miscellaneous [Chinese translation]
|
|
|
|
|
|
8.1.
|
Assignment and Subcontracting [Chinese translation]
|
|
|
|
|
|
|
Because the interests of Project Proponent is paid by Purchaser, Project
|
|
|
Proponent shall not, without the written consent of Purchaser, assign or transfer
|
|
|
the Agreement or the benefits or obligations thereof or any part thereof to any
|
|
|
other person.
|
|
|
[Chinese translation]
|
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any
|
|
|
third party (“assignee”) without consent of Project Proponent. However,
|
|
|
Purchaser shall inform Project Proponent for these transfers if any. Rights and
|
|
|
obligations between Purchaser and Project Proponent remain the same after the
|
|
|
transfer.
|
|
|
[Chinese translation]
|
|
|
|
|
Within 90 business days before the first commitment period come to an end,
|
|
|
both Parties shall renegotiate to continue the agreement. If over 30 days, starting
|
Initial: Project Proponent:_____
nitial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 12 of 22
|
|
the day on which the first commitment period ends, both Parties can not come
|
|
|
to an agreement, Project Proponent has full power to assign the Agreement to
|
|
|
any other person without legal ties from Purchaser. [Chinese translation]
|
|
|
|
8.2.
|
Confidentiality and Disclosure [Chinese translation]
|
|
|
|
|
The Parties shall treat as confidential all information obtained as a result of
|
|
|
entering into or performing this Agreement which relates to the provisions of
|
|
|
this Agreement, the negotiations relating to this Agreement and the subject
|
|
|
matter of this Agreement.
|
|
|
[Chinese translation]
|
|
|
|
|
No Party shall disclose any such confidential information to any third party,
|
|
|
except in those circumstances where disclosure is required in order to comply
|
|
|
with any laws or regulations, including without limitations of the Kyoto Rules.
|
|
|
[Chinese translation]
|
|
|
|
|
|
8.3.
|
Notices [Chinese translation]
|
|
|
|
|
Any communications to be made under or in connection with this Agreement
|
|
|
shall be made in writing (including by facsimile) to the address or facsimile
|
|
|
number, from time to time designated by the Party to whom the communication
|
|
|
is to be made to the other Party for that purpose.
|
|
|
|
|
[Chinese translation]
|
|
|
|
|
A communication shall only be considered as legal effect if it is posted and
|
|
|
confirmed by both Parties.
|
|
|
|
|
|
8.4.
|
Entire Agreement [Chinese translation]
|
|
|
|
|
This Agreement embodies the whole and only agreement of the Parties with
|
|
|
respect to the subject matter hereof, and no prior or contemporaneous oral or
|
|
|
written agreement or understanding shall be deemed to constitute a part of this
|
|
|
Agreement, unless expressly referred to herein, or attached hereto, or
|
|
|
specifically incorporated by reference herein. The Annexes and schedules to
|
|
|
this Agreement constitute integral parts of this Agreement and shall therefore be
|
|
|
deemed part of this Agreement.
|
|
|
[Chinese translation]
|
|
|
|
8.5.
|
Amendments [Chinese translation]
|
|
|
This Agreement may only be amended with the written consent of the Parties
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 13 of 22
|
|
hereto.
|
|
|
[Chinese translation]
|
|
|
|
8.6.
|
Severability [Chinese translation]
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or
|
|
|
unenforceable in any respect, the remaining parts or provisions shall not be
|
|
|
affected or impaired. Any deficiency in the Agreement resulting there from
|
|
|
shall be amended by way of interpretation of the Agreement having due regard
|
|
|
to the Parties intent.
|
|
|
[Chinese translation]
|
|
|
|
8.7
|
Governing law [Chinese translation]
|
|
|
This Agreement shall be governed and construed in accordance with Chinese
|
|
|
law excluding its rules on conflicts of laws.
|
|
|
[Chinese translation]
|
|
|
|
8.8.
|
Jurisdiction [Chinese translation]
|
|
|
|
|
|
Any dispute, claim or controversy arising out of or relating to this agreement
|
|
|
will be settled by arbitration at Hong Kong International Arbitration Center
|
|
|
(“HKIAC”) in Hong Kong under the UNCITRAL Arbitration Rules. The
|
|
|
number of arbitrators will be three and the arbitrators will be appointed in
|
|
|
accordance with the UNCITRAL Rules and the HKIAC Procedures for the
|
|
|
Administration of international Arbitration (the “HKIAC Procedures”).The
|
|
|
arbitration proceeding will be administered by HKIAC in accordance with the
|
|
|
HKIAC Procedures. The legal place of the arbitration will be Hong Kong and
|
|
|
the language to be used in the arbitral proceedings will be English. All
|
|
|
arbitration costs (including legal costs) will be borne by the unsuccessful party
|
|
|
unless otherwise determined by the arbitration tribunal.
|
|
|
[Chinese translation]
|
|
|
|
8.9.
|
Counterparts [Chinese translation]
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the
|
|
|
English and the Chinese version, the English version will prevail.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 14 of 22
PARTIES TO THE AGREEMENT [Chinese translation]
WHEREOF the parties have agreed to the terms and conditions of this agreement as
outlined above, this .... 21st (Day) of ... Oct..., 2008, in the presence of:
[Chinese translation]
:
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO: Dr. Tri Vu Tru
ong
|
|
Project
|
|
|
Proponent:
|
|
|
|
|
|
|
|
|
|
|
|
LI, SHENGGUO
|
|
|
General Director: Li, Shengguo
|
|
|
|
Witness No 1
|
Witness No 2
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 15 of 22
ANNEX i:
1
.
The salient features of Treatment of Urban Domestic Refuse and Resource Utilization in Pingyuan County Project
2. Project time schedule:
-
The year 2008:
- The year 2009:
- The year 2009 – 2010:
;
- The year 2011:
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 16 of 22
ANNEX ii:
WORK FLOW OF CDM ACTIVITY
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 17 of 22
ANNEX iii:
SUMMARY OF FEASIBILITY STUDY (FS) AND
ENVIRONMETAL IMPACT ASSESSMENT (EIA)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 18 of 22
ANNEX iv:
PROJECT DEVELOPMENT DOCUMENT (PDD)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 19 of 22
ANNEX I
[Chinese translation]
The salient features of Treatment of Urban Domestic Refuse and Resource
Utilization in Pingyuan Country, Dezhou City, Shangdong Province
[Chinese translation]
|
|
|
|
|
|
|
|
|
|
No/Stt
|
[Chinese translation]
|
[C
hinese translation]
|
[C
hinese translation]
|
|
[Chinese translation]
|
|
|
|
1
|
Solid waste characterization/ [Chinese
translation]
|
|
|
|
|
Paper & Textile[Chinese translation]
|
%
|
3.8
|
|
|
Garden and park waste
[Chinese
translation]
|
%
|
|
|
|
Food waste [Chinese translation]
|
%
|
61
|
|
|
Wood and Straw waste Chinese translation]
|
%
|
|
|
|
Inert [Chinese translation]
|
%
|
35.2
|
|
2
|
Solid waste quantity (Historical) Year
2006
[Chinese translation]
|
Tons/year
|
200750
|
|
3
|
Solid waste quantity (Historical) Year
2007
[Chinese translation]
|
Tons/year
|
211700
|
|
4
|
Solid waste quantity (projected) Year
____________________
[Chinese translation]
|
Tons/year
|
222650
|
|
5
|
Average solid waste density [Chinese
translation]
|
Kg/m3
|
360
|
|
|
[Chinese translation]
|
|
|
|
7
|
Treatment capacity [Chinese
translation]
|
Tons/year
|
220000
|
|
8
|
Treatment type [Chinese translation]
|
Aerobic
[Chinese translation]
|
Aerobic
|
|
9
|
CO2 emissions during treatment
[Chinese translation]
|
TCO
2
/ton
solid waste
|
0.0328
|
|
|
[Chinese translation]
|
|
|
|
10
|
Average round trip to supply solid
waste [Chinese translation]
|
Km
|
45
|
|
11
|
Number of trips - transportation of
solid waste [Chinese translation]
|
Trips/day
|
61
|
|
12
|
Average load - transportation of solid
waste [Chinese translation]
|
tons/truck [Chinese
translation]
|
10
|
|
13
|
Fuel consumption - transportation of
solid waste [Chinese translation]
|
L/kg solid
waste
|
0.0019
|
Initial: Project Proponent:____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 20 of 22
|
|
|
|
[Chinese translation]
|
|
27
|
ACM methodology employed to
calculate emission reduction [Chinese
translation]
|
ACM#
|
AM0025
|
|
28
|
Estimation of the emission reduction
CERs
[Chinese translation]
|
|
|
|
|
2009
|
T
CO2e/year
|
0
|
|
|
2010
|
T
CO2e/year
|
6308
|
|
|
2011
|
T CO2e/year
|
19665
|
|
|
2012
|
T CO2e/year
|
32253
|
|
|
Average (2010-2026)
|
T
CO2e/year
|
87814
|
|
ECOLOGICAL
[Chinese translation]
|
|
29
|
Are there any other areas on or around
the location which are important or
sensitive for reasons of their ecology
e.g. wetlands, watercourses or other
water bodies, the coastal zone,
mountains, protected forests or
woodlands, which could be affected by
the project? [Chinese translation]
|
Yes/no
|
No
|
|
30
|
Are there any areas on or around the
location which contain important, high
quality or scarce resources e.g.
groundwater, surface waters, forestry,
agriculture, fisheries, minerals, which
could be affected by the project?
[Chinese translation]
|
Yes/no
|
No
|
|
31
|
Is the project location susceptible to
earthquakes, subsidence, landslides,
erosion, flooding or extreme or adverse
climatic conditions e.g. temperature
inversions, fogs, severe winds, which
could cause the project to present
environmental problems? [Chinese
translation]
|
Yes/no
|
No
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 21 of 22
|
|
|
|
|
|
|
|
SOCIAL
[Chinese translation]
|
|
32
|
Are there existing land uses on or
around the location e.g. homes, other
private property, industry, commerce,
historic or cultural importance, public
open space, community facilities,
agriculture, forestry, tourism, or
quarrying which could be affected by
the project? [Chinese translation]
|
Yes/no
|
No
|
|
LEGAL
[Chinese translation]
|
|
33
|
Permit has been granted by all
concerned stakeholders (developer,
community, population, Ministry of
Resource Environment or other
governmental agencies)? (If yes, please
provide copies separately) [Chinese
translation]
|
Yes/no
List of
permits
and
approvals
[Chinese
translation]
|
No
|
|
|
FINANCIAL
[Chinese translation]
|
|
|
34
|
Sales [Chinese translation]
Fertilizer [Chinese translation]
Plastic pellets [Chinese translation]
Bricks [Chinese translation]
|
Tonnes/ye
ar
Tonnes/year
Tonnes/year
|
54000
600
900
|
|
35
|
Revenues (including VAT)
[Chinese translation]
Fertilizer [Chinese
translation]
Plastic pellets [Chinese
translation]
Bricks [Chinese translation]
|
10
6
USD/tonne
10
6
USD/tonne
10
6
USD/tonne
|
9.15
0.175
0.3947
|
|
36
|
Total forecasted investment
cost (interest not included)
[Chinese translation]
|
10
6
USD
|
19.38
|
|
38
|
Amount in equity currently
available? [Chinese
translation]
|
10
6
USD
|
9.88
|
|
39
|
Secured borrow amount?
[Chinese translation]
|
10
6
USD
|
9.94
|
|
40
|
Borrow secured interest
rate(s) [Chinese translation]
|
%
|
7.83
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 22 of 22
|
|
|
|
|
|
41
|
If financing has not
completed, which amount is
missing to complete
financing? [Chinese
translation]
|
10
6
USD
|
|
|
42
|
Financing characterization
[Chinese translation]
Equity [Chinese translation],
Bank [Chinese translation],
Government subsidy [Chinese
translation],
Government loan [Chinese
translation],
Other [Chinese translation]
|
%
%
%
%
%
|
49.85
50.15
|
|
43
|
What is forecasted IRR of the
project without supplement
money of CDM? [Chinese
translation]
|
%
|
7.49%
|
|
44
|
What is forecasted IRR of the
project with supplement
money of CDM? [Chinese
translation]
|
%
|
10.65%
|
|
45
|
What is the forecasted Return
On Investment (ROI) of the
project? [Chinese translation]
|
%
|
7.03%
|
|
46
|
Have you started
infrastructure work? [Chinese
translation] If yes, When did
you start?
[Chinese
translation] If yes, what are
the works already completed?
[Chinese translation]
|
Yes/no
Date [Chinese translation]
List [Chinese translation]
|
NO
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Exhibit 10.24
Technical Services Agreement
[Chinese translation]
Between: EcoloCap Solutions Canada Inc. (EcoloCap)
740 St Maurice suite 102
Montreal QC H3C 1L5
Tel: 0015148763907 Fax: 0015148764080
And
Shandong Chengzeyuan Environment Protection Engineering Co., Ltd.
[Chinese translation]
Address: Xisi Road 265, Dongying City, Shandong Province, CHINA
[Chinese translation]
Telephone: 15345451111
Fax: 0546-8206866
Email:
chengzeyuan_xiao@163.com
President: [Chinese translation]/Li Shengguo
Re: Technical services for CDM project: Treatment of Urban Domestic Refuse and
Resource Utilization in Pingyuan County [Chinese translation]
Whereby EcoloCap Solutions (Canada) Inc. will perform for
Chengzeyuan
necessary technical services for the validation of its CDM projects.
EcoloCap [Chinese translation]
In consideration of these services rendered as well as expenses incurred, EcoloCap shall be paid by
Chengzeyuan
professional fees for this project and EcoloCap shall be paid a fee for its services which is calculated as follows: [Chinese translation]
Amount paid = 10% x Net Revenues from CER [Chinese translation]
Net Revenues = Total validated quantity of CER multiplied by 9 Euro – 50,000 Euro
(First year)
[Chinese translation]
Net Revenues = Total validated quantity of CER multiplied by 9 Euro (following years)
[Chinese translation]
EcoloCap shall be responsible for the preparation of these technical documents (PIN, PDD, etc.) and shall make best efforts to assist
Chengzeyuan
in the approval processes of these projects by local authorities as well as by the DOE and the EB. All the expenses incurred above will be borne by EcoloCap.
[Chinese translation]
EcoloCap shall make best effort to help
Chengzeyuan
to get financial participation of foreign investors in the Project.
[Chinese translation]
We agree to the above and acknowledge receiving a copy of this agreement. [Chinese translation]
Dated this 21st day of October 2008.
[Chinese translation]
EcoloCap Solutions (Canada) Inc.
Per:
DR. TRI VU TRUONG
Dr. Tri Vu Truong
President & CEO
Shandong Chengzeyuan Environment Protection Engineering Co., Ltd.
[Chinese translation]
Per:
LI, SHENGGUO
Mr. LI, Shengguo
Board Chairman
Exhibit 10.25
Technical Services Agreement
[Chinese translation]
Between: EcoloCap Solutions Canada Inc. (EcoloCap)
740 St Maurice suite 102
Montreal QC H3C 1L5
Tel: 0015148763907 Fax: 0015148764080
And
LESHAN KINGSSUN GROUP CO., LTD. (“KINGSSUN”)
[Chinese translation]
Address:
[Chinese translation]
Telephone: 13881323888
Fax: 0833-4677818 Email [Chinese translation]
General manager [Chinese translation] / Wang chun hua
Re: Technical services for CDM project: Huangdan Hydro-station
Technical Expansion & Automation Retrofit [Chinese translation]
Whereby EcoloCap Solutions (Canada) Inc. will perform for
LESHAN KINGSSUN GROUP CO., LTD. (“KINGSSUN”)
necessary technical services for the validation of its CDM projects.
[Chinese translation]
In consideration of these services rendered as well as expenses incurred, EcoloCap shall be paid by
KINGSSUN
professional fees
for this project and EcoloCap shall be paid a fee for its services which is calculated as follows:
[Chinese translation]
Amount paid = 12% x Net Revenues from CER [Chinese translation]
Net Revenues = Total validated quantity of CER multiplied by 9 Euro – 50,000 Euro (First year) [Chinese translation]
Net Revenues = Total validated quantity of CER multiplied by 9.5 Euro (following years) [Chinese translation]
EcoloCap shall be responsible for the preparation of these technical documents (PIN, PDD, etc.) and shall make best efforts to assist
KINGSSUN
in the approval processes these projects by local authorities as well as by the DOE and the EB. All the expenses incurred
above will be borne by EcoloCap.
[Chinese translation]
EcoloCap shall make best effort to help
KINGSSUN
to get financial participation of foreign investors in the Project.
[Chinese translation]
KINGSSUN shall pay EcoloCap the total amount of the above mentioned fee within working days after receiving the payment from EcoloCap
of the sale of the CERs generated by this project.
[Chinese translation]
We agree to the above and acknowledge receiving a copy of this agreement. [Chinese translation]
Dated this 23rd day of October 2008
[Chinese translation]
EcoloCap Solutions (Canada) Inc.
Per:
DR. TRI VU TRUONG
Dr. Tri Vu Truong
President & CEO
LESHAN KINGSSUN GROUP CO., LTD. (“KINGSSUN”)
[Chinese translation]
Per:
WANG CHUN HUA
Mr. Wang chun hua
General Manager
Emission Reduction Purchase Agreement
Page 1 of 18
Exhibit 10.26
EMISSION REDUCTION PURCHASE AGREEMENT (ERPA)
[Chinese translation]
Huangdan Hydro-station Technical Expansion & Automation Retrofit
[Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 2 of 18
between
(The "Purchaser") [Chinese translation]
ECOLOCAP SOLUTIONS (CANADA) INC (ECOLOCAP)
[Chinese translation]
740 St. Maurice suite 102
Montreal, QC H3C 1L5
Canada
Tel: 5148763907 Fax: 5148764080
Email: trivutruong@ecolocap.com
President-CEO: Dr. Tri Vu Truong
and
(the " Seller"), henceforth “PROJECT PROPONENT”
[Chinese translation]
LESHAN KINGSSUN GROUP CO., LTD. (“Owner”)
[Chinese translation]
Address:
[Chinese translation]
Telephone
[Chinese translation]
: 13881317050
Fax ([Chinese translation])
Email
[Chinese translation]
:
President
[Chinese translation]) / GAO JIE
Both parties have agreed to sign the Reduction Emission Purchase Agreement (Agreement) with the following terms and conditions:
[Chinese translation]
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 3 of 18
|
Interpretation and Definitions /[Chinese translation]
|
|
|
|
In this Agreement, unless otherwise required by the context, all terms shall have the
|
|
meaning set forth in the definitions below.
|
|
[Chinese translation]
|
|
|
|
Agreement:
|
Means this Emission Reduction Purchase Agreement. [Chinese
|
|
[Chinese
translation]
|
translation]
|
|
|
|
Annex B
|
Means the countries listed in Annex B to the Kyoto Protocol having
|
|
Countries:
|
committed themselves to reduce or limit their GHG emissions.
|
|
[Chinese
translation]
|
[Chinese translation]
|
|
|
|
Annex I
|
Means the parties to the UNFCCC listed in Annex I thereto (Annex I
|
|
Countries:
|
consists of industrial countries and countries in transition). [Chinese
|
|
[Chinese
translation]
|
translation]
|
|
|
|
Anticipated
|
Means up to ( ) Certified Emission Reductions (CERs) per annum
|
|
Emission
|
during the Crediting Period, anticipated be generating by the Project
|
|
Reduction:
|
and calculating in accordance with the Kyoto Rules. [Chinese
|
|
[Chinese
translation]
|
translation]
|
|
|
|
Baseline:
|
Means the scenario that reasonably represents the anthropogenic
|
|
[Chinese
translation]
|
emissions of GHG that would occur in the Host Country in the
|
|
|
absence of the Project, determined in accordance with the Kyoto
|
|
|
Rules. [Chinese translation]
|
|
|
|
Business Day:
|
Means a day on which banks are open for general business in China.
|
|
[Chinese
translation]
|
[Chinese translation]
|
|
|
|
Carbon Dioxide
|
Means a metric measure used to compare the emissions of various
|
|
Equivalent:
|
GHG based upon their global warming potential. [Chinese
|
|
[Chinese
translation]
|
translation]
|
|
|
|
Certification:
|
Means the written confirmation by an Operational Entity of an
|
|
[Chinese
translation]
|
Emission Reduction resulting from a CDM project and having passed
|
|
|
the Verification procedure according to the Kyoto Rules. [Chinese
|
|
|
translation]
|
|
|
|
Certified
|
Means a unit of Emission Reduction issued pursuant to Article 12 of
|
|
Emission
|
the Kyoto Protocol and the requirements of the Kyoto Rules
(including
|
|
Reduction
(CER):
|
Certification), equal to one metric ton of Carbon Dioxide Equivalent resulting
|
|
Chinese
translation]
|
from a CDM project. [
Chinese
translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 4 of 18
|
|
|
|
|
|
Clean
|
Means the flexible mechanism established by Article 12 of the Kyoto
Protocol providing for
|
|
Development
|
Annex I Countries to implement projects that
reduce emissions in non-Annex I Countries
|
|
Mechanism
|
in return for CERs and
assist the non-Annex I Countries in achieving sustainable
|
|
(CDM):
|
development and contributing to the ultimate objective of the
UNFCCC.
[Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Crediting
|
Means, until December 31, 2026.
|
|
Period:
|
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Emission
|
Means reduction in emission of GHG achieved, calculated in
accordance with the Kyoto
|
|
Reduction:
|
Rules. [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Executive
|
Means the international authority elected by the representatives of the
parties to the Kyoto
|
|
Board: [Chinese
|
Protocol responsible for monitoring the CDM
process. [Chinese translation]
|
|
translation]
|
|
|
|
|
First
|
Means, from 23 , October, 2008 until 31 December, 2012.
|
|
Commitment
|
[Chinese translation]
|
|
Period:
|
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Force Majeure:
|
Means any circumstance or condition beyond the control of either
party to this Agreement
|
|
[Chinese
|
affecting the performance of its obligations
under this Agreement including in particular
|
|
translation]
|
particular wars, insurrection,
natural disaster or equivalent circumstances.
|
|
|
[Chinese translation]
|
|
|
|
Greenhouse
|
Means the six gases listed in Annex A to the Kyoto Protocol.
|
|
Gases (GHG):
|
[Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Host Country:
|
China [Chinese translation]
|
|
[Chinese
|
|
|
translation]
|
|
|
|
|
Kyoto Protocol:
|
Means the protocol to the UNFCCC adopted at the third conference
of the parties to the
|
|
[Chinese
|
UNFCCC in Kyoto, Japan, on December 11,
1997
|
|
translation]
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 5 of 18
|
Kyoto Rules:
|
Means the UNFCCC, Kyoto Protocol, the Bonn agreement, the
|
|
[Chinese
translation]
|
Marrakech Accords, any relevant decisions, guidelines, modalities
|
|
|
and procedures made pursuant to them and/or any succeeding
|
|
|
international agreements as amended and/or supplemented from time
|
|
|
to time and which include those rules specifically required to be met
|
|
|
for the issuing and transfer of CERs. /UNFCCC [Chinese translation]
|
|
|
|
Letter of
|
Means a binding approval of the Project by the Host Country together
|
|
Approval
|
with an approval of the transfer of CERs. [Chinese translation]
|
|
(LOA):
|
|
|
[Chinese
translation]
|
|
|
|
|
Monitoring
|
Means an annual report to be provided by Owner setting out the total
|
|
Report:
|
number of Emission Reductions generated by the Project during the
|
|
[Chinese
translation]
|
previous year according to the Kyoto Rules, international Monitoring
|
|
|
rules and the PDD. [Chinese translation]
|
|
|
|
Monitoring:
|
Means the collection and record of data allowing the assessment of
|
|
[Chinese
translation]
|
reductions in GHG emissions resulting from the Project conducted in
|
|
|
accordance with the Kyoto Rules. [Chinese translation]
|
|
|
|
Designated
|
Means an independent entity accredited by the Executive Board being
|
|
Operational
|
the executive body for CDM and inter alias responsible for
|
|
Entity: [Chinese
|
determining whether a project and the resulting Emission Reductions
|
|
translation]
|
meet the requirements of Article 12 of the Kyoto Protocol. [Chinese
translation]
|
|
|
|
Project Design
|
Means a detailed description of the Project to be submitted for
|
|
Document
|
Validation prepared in accordance with the Kyoto Rules, the UFG
|
|
(PDD) [Chinese
|
and the Directive and attached as Annex [iv]. The Purchaser will be
|
|
translation]
|
responsible for providing PDD development for Registration of the
|
|
|
Project. [Chinese translation]
|
|
|
|
Project:
|
Means the proposed CDM project described in the PDD and other
|
|
[Chinese
translation]
|
documents describing the implementation and economics of the
|
|
|
Project attached in Annex [iii]. [Chinese translation]
|
|
|
|
Registration:
|
Means the official registration of a CDM project by the Executive
|
|
[Chinese
translation]
|
Board according to the Kyoto Rules. [Chinese translation]
|
|
|
|
UNFCCC:
|
Means the United Nations Framework Convention on Climate
|
|
|
Change adopted in New York on May 9, 1992. [Chinese translation]
|
|
|
|
Unit Price:
|
Means the price payable by Purchaser to Project Proponent per
|
|
[Chinese
translation]
|
Certified Emission Reduction (CER) unit: [Chinese translation]:
|
|
|
|
|
|
The purchase unit price paid by EcoloCap Solutions Canada Inc to
|
|
|
Chinese Project Proponent for the CER is fixed at 9 Euro/CER for the
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 6 of 18
|
|
|
|
|
|
|
year 2008 to 2012 and a new agreement for purchase unit price will
|
|
|
be negotiated for the next two periods of extension. [Chinese
|
|
|
translation]
|
|
|
|
|
For the first payment, a one time amount of 50, 000 Euro will be paid
|
|
|
to Ecolocap Solutions Inc for the reimbursement to Ecolocap for its
|
|
|
advance cash for the costs relating to CDM process. Other expenses
|
|
|
will be paid by EcoloCap. [Chinese translation]
|
|
|
|
Term:
|
Ecolocap Solutions Inc will purchase certified CERs generated by
|
|
[Chinese
translation]
|
this project for the year 2008 to 2012 with options of extension for
|
|
|
two other periods of 7 years, the period 2013-2026, with the same
|
|
|
terms and conditions except for the price which will be renegotiated.
|
|
|
[Chinese translation]
|
|
|
|
Validation:
|
Means the assessment of the PDD, including the Baseline, by an
|
|
[Chinese
translation]
|
Operational Entity, determining its compliance with the Kyoto Rules.
|
|
|
[Chinese translation]
|
|
|
|
Verification:
|
Means the periodic independent review and ex post determination of
|
|
[Chinese
translation]
|
the monitored reductions in GHG emissions that the Project has
|
|
|
achieved during a specified period of time by an Operational Entity in
|
|
|
accordance with the Kyoto Rules. The project's owner will be
|
|
|
Responsible for providing periodical monitoring. [Chinese
|
|
|
translation]
|
|
|
|
|
|
Unless otherwise specified, references to clauses are clauses of this Agreement,
|
|
references to legal provisions are references to such provisions as in effect from time to
|
|
time, use of a gender includes any gender and use of the plural includes the singular and
|
|
vice versa where the context requires.
|
|
[Chinese translation]
|
|
|
|
All headings and titles are inserted for convenience only and shall not be deemed part of
|
|
this Agreement or taken into consideration in its interpretation. [Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 7 of 18
|
1.
|
P
reamble
[Chinese translation]
|
|
|
|
|
|
The Project is located on the territory of the Host Country.
|
|
|
[Chinese translation]
|
|
|
|
|
2
|
Contractual Obligations [Chinese translation]
|
|
|
|
|
|
2.1
|
Anticipated Emission Reductions [Chinese translation]
|
|
|
|
2.1.1
|
Upon Registration of the Project, Purchaser shall endeavor to implement the
|
|
|
Project in accordance with the PDD and other documents describing the
|
|
|
implementation and economics of the project attached in (Annex iv) at its own
|
|
|
risk and expense (Annex ii). It is hereby acknowledged and agreed between the
|
|
|
Parties hereto that Purchaser does not warrant the generation of, and is not obliged
|
|
|
to generate, any CERs, whether by the Project or otherwise.
|
|
|
[Chinese translation]
|
|
|
|
2.1.2
|
If the Project generates CERs during the crediting period, Project Proponent shall,
|
|
|
to the extent it is legally possible and permissible, exclusively transfer to
|
|
|
Purchaser all rights (and, to the extent legally possible and permissible, legal title)
|
|
|
which Project Proponent may have in the Anticipated Emission Reductions.
|
|
|
[Chinese translation]
|
|
|
|
2.1.3
|
Purchaser shall pay to Project Proponent the Unit Price for each Anticipated
|
|
|
Emission Reduction generated by the Project and in which the Project Proponent's
|
|
|
rights are transferred to Purchaser in accordance with clause 3 below.
|
|
|
[Chinese translation]
|
|
|
|
2.2
|
Emission Reductions generated after the Crediting Period [Chinese
translation]
|
|
|
|
|
|
If the Project generates any Certified Emission Reductions after the Crediting
|
|
|
Period, Purchaser shall enter into negotiations with Project Proponent with a view
|
|
|
to concluding an agreement on the purchase of such Certified Emission
|
|
|
Reductions based on the principles of this Agreement but amended in order to
|
|
|
reflect the international and/or national rules then applicable.
|
|
|
[Chinese translation]
|
|
|
|
3
|
Transfer [Chinese translation]
|
|
|
|
|
Transfer to Purchaser of all the rights (and, to the extent legally possible and
|
|
|
permissible, legal title) which Project Proponent may have in a Certified Emission
|
|
|
Reduction shall have occurred upon the transfer of CER’s certificate from the
|
|
|
register of the Executive Board to a register in favor of Purchaser. This transfer
|
|
|
shall be made immediately as soon as the EB officially approve the Project
|
|
|
registration.
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 8 of 18
|
4.
|
Payment [Chinese translation]
|
|
|
|
4.1.
|
Payment for Certified Emission Reductions [Chinese translation]
|
|
|
|
4.1.1.
|
Payment by Purchaser to Project Proponent for the Certified Emission Reductions
|
|
|
shall be made within 50 Business Days after the CER’s certificate are delivered to
|
|
|
Purchaser. Purchaser shall transfer money into the account of Project Proponent,
|
|
|
after the CER certificate is issued by the EB following each monitoring realized
|
|
|
by the DOE.
[Chinese translation]
|
|
|
|
|
4.1.2.
|
All payments shall be made through the account of Ecolocap which has been
|
|
|
registered for the Project when the PDD is submitted to EB for approval. This
|
|
|
account is in the EB’s common account
[Chinese translation]
|
|
|
|
4.1.3.
|
All payments shall be made in US Dollars
[Chinese translation]
|
|
|
|
4.2.
|
Costs and Expenses [Chinese translation]
|
|
|
|
4.2.1.
|
Subject to clause 4.2.2 below, all fees, costs or other expenses in connection with
|
|
|
the Registration and the transfer of CERs shall be borne by Purchaser including
|
|
|
VAT, if any, according to VAT law applied in China.
|
|
|
[Chinese translation]
|
|
|
|
|
4.2.2.
|
The share of the proceeds from CERs generated by the Project to be used to cover
|
|
|
administrative expenses and to assist developing countries that are particularly
|
|
|
vulnerable to the adverse effects of climate change to meet the costs of adaptation
|
|
|
according to the Kyoto Rules shall be borne by the Project Proponent.
|
|
|
[Chinese translation]
|
|
|
|
4.2.3.
|
The Project Proponent should provide necessary information to the Purchaser for
|
|
|
the preparation of documents required for PIN (project idea note), PDD (project
|
|
|
design document), the validation, the verification/certification, and the
|
|
|
registration with CDM Executive Board (Annex i). All costs accrued to each of
|
|
|
the Parties in negotiating, preparing, executing and carrying into effect of this
|
|
|
Agreement, shall be borne by each of the Parties themselves.
|
|
|
[Chinese translation]
|
|
|
|
5.
|
Termination and Remedies [Chinese translation]
|
|
|
|
5.1.
|
Either Party (the "Non-defaulting Party") shall be entitled to terminate this
|
|
|
Agreement by written notice to the other Party with immediate effect if any of
|
|
|
the following events occurs:
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 9 of 18
|
5.1.1.
|
In case the Project is not register as a valid CDM Project activity with the CDM
|
|
|
EB within eighteen (18) months upon execution of the ERPA, (which will be
|
|
|
signed not later than three (3) months after the signature of this term sheet), either
|
|
|
party shall have the right to terminate its rights and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.2.
|
In any given Contract Period, if the verification of the Project’s CERs is delayed
|
|
|
by 90 days or more due to the Project Proponent ’s or Purchaser’s fault and/or
|
|
|
misconduct, each of the non-defaulting parties shall have the right to terminate its
|
|
|
rights and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.3.
|
In case the project is not commissioned within eighteen (18) months following
|
|
|
the date of the ERPA, each Purchaser shall have the right to terminate its rights
|
|
|
and obligations under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.1.4.
|
Upon occurrence of an event of default or any other termination event in respect
|
|
|
of the Project Proponent or of Purchaser as provided in the ERPA, each of the
|
|
|
non-defaulting parties shall have the right to terminate its rights and obligations
|
|
|
under the ERPA.
|
|
|
[Chinese translation]
|
|
|
|
5.2.
|
Force Majeure [Chinese translation]
|
|
|
|
|
|
Should either Party be impeded wholly or in part from fulfilling any of its
|
|
|
obligations under the Agreement for reasons of Force Majeure, such obligation
|
|
|
shall be suspended to the extent and for as long as such obligation is affected by
|
|
|
Force Majeure and the impeded Party shall be entitled to such extension of time
|
|
|
as may be reasonably necessary.
|
|
|
[Chinese translation]
|
|
|
|
|
|
Either Party shall notify the other Party of the existence and date of beginning of
|
|
|
an event of Force Majeure that is likely to impede its performance under the
|
|
|
Agreement within 20 business days after having obtained knowledge of any such
|
|
|
event. Either Party shall likewise advise the other of the date when such event
|
|
|
ended and shall also specify the re-determined time by which the performance of
|
|
|
its obligations hereunder is to be completed.
|
|
|
[Chinese translation]
|
|
|
|
|
Project Proponent and Purchaser shall consult with each other with a view of
|
|
|
determining any further appropriate action if a condition of Force Majeure is to
|
|
|
continue after 20 business days from the date of giving notice thereof.
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
|
Emission Reduction Purchase Agreement
Page 10 of 18
|
|
|
|
|
|
|
Neither Party shall be liable for damages or have the right to terminate this
|
|
|
Agreement for any delay in performing hereunder if such delay is caused by
|
|
|
Force Majeure; provided, however, that the non-impeded Party shall be entitled to
|
|
|
terminate such part of the Agreement that remains unfulfilled, if the condition of
|
|
|
Force Majeure is to continue after 6 months from the date of giving notice
|
|
|
thereof.
[Chinese translation]
|
|
|
|
6
|
Change in Circumstances [Chinese translation]
|
|
|
|
|
If any change in circumstances (i.e. a change of scientific basics or applicable
|
|
|
standards relating to the Baseline methodology and/or the applicable criteria for
|
|
|
Verification and Certification of the resulting Emission Reductions) occurs which
|
|
|
substantially affects the Project, the Parties to this Agreement shall enter into
|
|
|
negotiations with a view to adapt the Project and its implementation or any
|
|
|
relevant provision of this Agreement, as may be necessary or useful. A change in
|
|
|
circumstances shall in no event be considered substantially affecting the Project if
|
|
|
at least 50% of the Anticipated Emission Reductions can be generated.
|
|
|
[Chinese translation]
|
|
|
|
|
The Parties to this Agreement shall cooperate and make their best efforts to
|
|
|
enable the continuation of the Project in accordance with the new circumstances
|
|
|
and to achieve the generation and transfer of the Anticipated Emission
|
|
|
Reductions.
[Chinese translation]
|
|
|
|
|
|
If any of the documents related to the Project and submitted at any time during the
|
|
|
term of this Agreement fails to be approved by such authority whose approval is
|
|
|
required under the Kyoto Rules or otherwise appears to be non-compliant with
|
|
|
any relevant standards or conditions of the Kyoto Rules, Project Proponent and
|
|
|
Purchaser shall discuss whether or not the relevant documents are to be revised
|
|
|
and resubmitted.
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 11 of 18
|
7.
|
Conditions Precedent [Chinese translation]
|
|
|
|
|
This Agreement shall enter into force upon satisfaction of the following condition
|
|
|
precedent: [Chinese translation]
|
|
|
|
|
Conclusion of a binding agreement with the Host Country.
|
|
|
[Chinese translation]
|
|
|
|
|
|
8.
|
Miscellaneous [Chinese translation]
|
|
|
|
|
|
8.1.
|
Assignment and Subcontracting [Chinese translation]
|
|
|
Because the interests of Project Proponent is paid by Purchaser, Project Proponent
|
|
|
shall not, without the written consent of Purchaser, assign or transfer the
|
|
|
Agreement or the benefits or obligations thereof or any part thereof to any other
|
|
|
person.
|
|
|
[Chinese translation]
|
|
|
|
|
Purchaser may transfer any of its rights or obligations under the ERPA to any
|
|
|
third party (“assignee”) without consent of Project Proponent. However,
|
|
|
Purchaser shall inform Project Proponent for these transfers if any. Rights and
|
|
|
obligations between Purchaser and Project Proponent remain the same after the
|
|
|
transfer.
|
|
|
[Chinese translation]
|
|
|
|
|
Within 90 business days before the first commitment period come to an end, both
|
|
|
Parties shall renegotiate to continue the agreement. If over 30 days, starting the
|
|
|
day on which the first commitment period ends, both Parties can not come to an
|
|
|
agreement, Project Proponent has full power to assign the Agreement to any other
|
|
|
person without legal ties from Purchaser.
|
|
|
[Chinese translation]
|
|
|
|
8.2.
|
Confidentiality and Disclosure [Chinese translation]
|
|
|
|
|
The Parties shall treat as confidential all information obtained as a result of
|
|
|
entering into or performing this Agreement which relates to the provisions of this
|
|
|
Agreement, the negotiations relating to this Agreement and the subject matter of
|
|
|
this Agreement.
|
|
|
[Chinese translation]
|
|
|
|
|
No Party shall disclose any such confidential information to any third party,
|
|
|
except in those circumstances where disclosure is required in order to comply
|
|
|
with any laws or regulations, including without limitations of the Kyoto Rules. [Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 12 of 18
|
8.3.
|
Notices [Chinese translation]
|
|
|
|
|
Any communications to be made under or in connection with this Agreement
|
|
|
shall be made in writing (including by facsimile) to the address or facsimile
|
|
|
number, from time to time designated by the Party to whom the communication is
|
|
|
to be made to the other Party for that purpose.
[Chinese translation
]
|
|
|
|
|
A communication shall only be considered as legal effect if it is posted and
|
|
|
confirmed by both Parties.
|
|
|
|
8.4.
|
Entire Agreement [Chinese translation]
|
|
|
|
|
This Agreement embodies the whole and only agreement of the Parties with
|
|
|
respect to the subject matter hereof, and no prior or contemporaneous oral or
|
|
|
written agreement or understanding shall be deemed to constitute a part of this
|
|
|
Agreement, unless expressly referred to herein, or attached hereto, or specifically
|
|
|
incorporated by reference herein. The Annexes and schedules to this Agreement
|
|
|
constitute integral parts of this Agreement and shall therefore be deemed part of
|
|
|
this Agreement.
[Chinese translation]
|
|
|
|
8.5.
|
Amendments [Chinese translation]
|
|
|
|
|
|
This Agreement may only be amended with the written consent of the Parties
|
|
|
hereto.
[Chinese translation]
|
|
|
|
8.6.
|
Severability [Chinese translation]
|
|
|
|
|
|
If any part or provision of the Agreement is or becomes illegal, void or
|
|
|
unenforceable in any respect, the remaining parts or provisions shall not be
|
|
|
affected or impaired. Any deficiency in the Agreement resulting there from shall
|
|
|
be amended by way of interpretation of the Agreement having due regard to the
|
|
|
Parties intent.
[Chinese translation]
|
|
|
|
8.7.
|
Governing law [Chinese translation]
|
|
|
|
|
|
This Agreement shall be governed and construed in accordance with Chinese law
|
|
|
excluding its rules on conflicts of laws. [Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 13 of 18
|
8.8.
|
Jurisdiction [Chinese translation]
|
|
|
Any dispute, claim or controversy arising out of or relating to this agreement will
|
|
|
be settled by arbitration at Hong Kong International Arbitration Center
|
|
|
(“HKIAC”) in Hong Kong under the UNCITRAL Arbitration Rules. The number
|
|
|
of arbitrators will be three and the arbitrators will be appointed in accordance with
|
|
|
the UNCITRAL Rules and the HKIAC Procedures for the Administration of
|
|
|
international Arbitration (the “HKIAC Procedures”).The arbitration proceeding
|
|
|
will be administered by HKIAC in accordance with the HKIAC Procedures. The
|
|
|
legal place of the arbitration will be Hong Kong and the language to be used in
|
|
|
the arbitral proceedings will be English. All arbitration costs (including legal
|
|
|
costs) will be borne by the unsuccessful party unless otherwise determined by the
|
|
|
arbitration tribunal.
[Chinese translation]
|
|
|
|
|
|
|
|
8.9.
|
Counterparts [Chinese translation]
|
|
|
|
|
This Agreement shall be executed in two counterparts with one copy for Project
|
|
|
Proponent and one for Purchaser. If there are any discrepancies between the
|
|
|
English and the Chinese version, the English version will prevail.
|
|
|
[Chinese translation]
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 14 of 18
PARTIES TO THE AGREEMENT [Chinese translation]
WHEREOF the parties have agreed to the terms and conditions of this agreement as outlined above,
this 23 (Day) of Oct, 2008, in the presence of: [Chinese translation]
|
Purchaser:
|
|
|
|
|
|
|
|
|
|
|
|
DR. TRI VU TRUONG
|
|
|
President-CEO: Dr. Tri Vu Truong
|
|
Project
|
|
|
Proponent:
|
|
|
|
|
|
[Signature illegible]
|
|
|
General Director:
|
|
|
|
|
|
|
|
Witness No 1
|
Witness No 2
|
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 15 of 18
ANNEX i:
1
.
The salient features of Huangdan Hydro-station Technical Expansion & Automation Retrofit Project
2. Project time schedule:
-
The year 2008:
- The year 2009:
- The year 2009 – 2010:
;
- The year 2011:
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 16 of 18
ANNEX ii:
WORK FLOW OF CDM ACTIVITY
Initial: Project Proponent:____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 17 of 18
ANNEX iii:
SUMMARY OF FEASIBILITY STUDY (FS) AND
ENVIRONMETAL IMPACT ASSESSMENT (EIA)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____
Emission Reduction Purchase Agreement
Page 18 of 18
ANNEX iv:
PROJECT DEVELOPMENT DOCUMENT (PDD)
Initial: Project Proponent:_____
Initial: Ecolocap Solution (Canada) Inc
.
:_____