ORDER OF THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN

of April 26, 2012 No. 532

About approval of Rules of the choice and conditions of implementation of activities of the temporary state performing according to the basic agreement in case of project financing with participation

According to Item 3 of article 6-9 of the Law of the Republic of Kazakhstan of February 20, 2006 "About project financing and securitization" the Government of the Republic of Kazakhstan DECIDES:

1. Approve the enclosed Rules of the choice and condition of implementation of activities of the temporary state performing according to the basic agreement in case of project financing with participation.

2. This resolution becomes effective after ten calendar days from the date of the first official publication.

Approved by the order of the Government of the Republic of Kazakhstan of April 26, 2012 No. 532

Rules of the choice and condition of implementation of activities of the temporary state performing according to the basic agreement in case of project financing with participation

1. General provisions

1. These rules of the choice and condition of implementation of activities of the temporary state performing according to the basic agreement in case of project financing with participation (further - Rules) are developed according to Item 3 of article 6-9 of the Law of the Republic of Kazakhstan of February 20, 2006 "About project financing and securitization" (daleezakon) and determine procedure for selection temporary performing according to the basic agreement, and also conditions of implementation of its activities.

2. In Rules the following basic concepts are used:

1) the basic agreement - the written agreement according to which one party shall create and transfer to other party property or render services and (or) make goods and (or) perform works in the course of use of the created property;

2) temporary performing - the legal entity or consolidation of creditors based on cooperation agreement (consortium, particular partnership) which are temporarily exercising control of implementation of the basic agreement according to the agreement on temporary execution of the basic agreement;

3) the agreement on temporary execution of the basic agreement - the agreement signed between the customer and temporary performing which determines conditions of temporary management of realization by the basic agreement when replacing the contractor by the basic agreement;

4) the creditor - physical, being the bondholder, or the legal entity performing crediting in case of project financing;

5) the customer - physical person or legal entity, the state on behalf of the Government or local executive body, and also state bodies authorized by them on the instructions of which the basic agreement is implemented;

6) the contractor - the legal entity who according to the basic agreement creates and gives property, and also renders services and (or) makes goods and (or) performs works in the course of use of the created property.

2. Procedure for the choice temporary performing according to the basic agreement

3. Temporary performing according to the basic agreement can be attracted by the customer for the period of carrying out tender at the choice of the new contractor according to the basic agreement.

4. Attraction temporary performing to management of realization of the basic agreement is performed by the customer in coordination with creditors in the terms determined by Item 10 of these rules.

5. The customer according to the procedure, stipulated in Item 1 article 6-9 of the Law, sends to creditors the notification on refusal of execution of the basic agreement in which if necessary the candidacy proposed by the customer temporary performing is specified. Creditors within thirty calendar days from the moment of receipt of the notification approve the candidacy temporary performing, offered by the customer, or present own candidacy for its approval.

6. For the purpose of management of implementation of the basic agreement as temporary performing based on cooperation agreement (consortium, particular partnership) all creditors who showed willingness to participate in management of the basic agreement can take part.

7. The candidate temporary performing according to the basic agreement is considered approved if the decision on approval of candidate was made by creditors, the amount of obligations of the contractor before whom constitutes at least two thirds of the total amount of accounts payable before creditors.

8. The following requirements are imposed to the candidate of temporary performing:

1) to have legal capacity (for legal entities), capacity to act (for physical persons);

2) to be solvent, not to have tax debt the term exceeding three months;

3) not to be subject to insolvency proceeding or liquidation.

9. Potential temporary performing in confirmation of conformity to requirements, stipulated in Item 8 these rules, submits the relevant documents at the request of the customer.

3. Conditions of implementation of activities of temporary performing

10. Between temporary performing and the customer within fifteen calendar days from the date of coordination or representation by creditors of the candidate of temporary performing the agreement on temporary execution of the basic agreement is signed.

11. In the agreement on temporary execution of the basic agreement are determined amount of the rights and obligations temporary performing, including conditions of its responsibility to the customer and creditors, procedure for cost recovery and other conditions.

12. If other is not established by the agreement on temporary execution of the basic agreement, temporary performing in full pass the rights and obligations of the contractor existing at the time of the conclusion of the agreement on temporary execution of the basic agreement.

13. Remuneration is paid to temporary performing if it is provided by the agreement on temporary execution of the basic agreement.

14. In case, stipulated in Item 6 these rules if other is not established by cooperation agreement the creditor in case of decision making on management of realization of the basic agreement the poll pro rata to its share in the total amount of requirements to the debtor has.

In case of decision making on behalf of bondholders their representative determined according to the legislation on the security market acts. The poll in case of decision making by the representative of bondholders is determined by consolidation of the amount of requirements of bondholders on behalf of which he acts.

15. In case of the choice of the new contractor according to the basic agreement, conditions of the basic agreement consider the changes connected with actually fulfilled temporary performing duties, and the offers provided by the new contractor, containing more advantageous conditions in comparison with the previous conditions of the basic agreement.

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