5.1 The Conditions Precedent that are the responsibility of the Company are as follows:

(a) provision of written confirmation, with supporting documents, from a bank, financing institution, Affiliate, or duly authorized representative of the Company, evidencing that the Company has access to sufficient financing, and indicating the source of that financing, to implement the Project in accordance with the terms of this Agreement and the Approved Business Plan;

(b) completion of the Feasibility Study in accordance with Section 11;

(c) completion of the Business Plan in accordance with Section 12;

(d) completion [and review by an [independent expert]/[independent expert panel]/[and approval by the ministry in charge of environment]/[competent government ministry or agency] of the Environmental and Social Impact assessment (ESIA) and Environmental and Social Management Plan (ESMP) in accordance with Section 13;

(e) completion [and review by an [independent expert]/[independent expert panel] of the Human Rights Due Diligence Report in accordance with Section 14;⁷

(f) completion [and review by an [independent expert]/[independent expert panel]/ [and approval by [the ministry in charge of the environment]/[competent government ministry]/[agency] of the Climate Change Risk and Vulnerability Assessment in accordance with Section 15.

(g) provision of written confirmation, obtained from the competent institution of the Government of the Host State, that all Applicable Permits are in place in accordance with Section 10, and provision of copies of same;

(h) provision of a complete and accurate statement of the Company’s corporate organization,⁸ including:

(i) the full name and nationality of all executive and non-executive directors and senior officers of the Company;

(ii) the full name and nationality of each person who is a beneficial owner of [10%]/[insert other percentage based on the relevant threshold in domestic law] or more of the Company’s shares or voting rights; and

(iii) the full name and Home State of each Affiliate of the Company and a description of the relationship between the Company and that Affiliate.

(i) Provision of written confirmation, supported by evidence, that the Company has obtained Free, Prior, and Informed Consent of all members of the Local Community, Legitimate Tenure Rights Holders, and Indigenous Peoples with respect to the Project.

5.2 The Conditions Precedent that are the responsibility of the Authority are as follows:

(a) review of the Feasibility Study and Business Plan submitted by the Company, and where the Feasibility Study and Business Plan comply with the requirements of the Applicable Law and Sections 11 and 12, provision of written approval of same;

(b) review of the ESIA and ESMP submitted by the Company, and where the ESIA and ESMP comply with the requirements of the Applicable Law and Section 13, provision of written approval of same;

(c) completion of any process of ratification or other means of approval by the national legislature, cabinet, or other institution with legal authority to approve agreements of the nature of this Agreement, where all relevant requirements for such a process have been met.

5.3 The Conditions Precedent that are the responsibility of the Grantor are as follows:

(a) completion of the Project Map in accordance with Section 20;

(b) [insert other as appropriate for the Project.]

5.4 The documents produced in accordance with this Section shall be annexed to this Agreement and shall form part of this Agreement and be binding on all Parties.

5.5 Any changes to the documents referred to in with this Section shall be subject to the approval of Grantor [and the Authority].

For more information: See generally UNIDROIT & IFAD 2021, Section 3.88 (Suspensive and Resolutive Conditions), Section 2.20 (Investment Chain); Aizawa & Mann, 2021, p. 35 (Sequencing of Assessments, Approvals, and Licences and Permits).

• ⁷

  See generally Aizawa & Mann, 2021, Section 4.6 (Project Must Respect Human Rights), UNIDROIT & IFAD, 2021, Section 3.59 (Investor Responsibility to Respect Human Rights).

• ⁸

  See generally Cotula, 2016, Section 3.2 (Corporate Structure); UNIDROIT & IFAD, 2021, Section 2.8 (Corporate Organization Disclosure).