directorate-general for public works and water management (rws

3

Directorate-General for Public Works and Water

Management (RWS)

DBFM AGREEMENT Standard 2.0 Date 30 July 2009 Status

DBFM OVEREENKOMST RIJKSWATERSTAAT | 30 juli 2009

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Contents

1. DEFINITIONS...................................................................................... 6 2. KEY OBLIGATIONS AND TERM............................................................. 6

2.1 KEY OBLIGATIONS OF THE CONTRACTOR ......................................................... 6 2.2 KEY OBLIGATIONS OF THE CONTRACTING AUTHORITY .......................................... 7 2.3 TERM ................................................................................................ 7

3. FINANCING......................................................................................... 7 3.1 PROJECT FINANCING................................................................................ 7 3.2 FINANCIAL CLOSE GUARANTEE .................................................................... 7 3.3 FINANCIAL CLOSE .................................................................................. 8 3.4 PERFORMANCE BOND............................................................................... 9 3.5 REFINANCING ....................................................................................... 9 3.6 FINANCIAL MODEL.................................................................................10

4. RWS INFRASTRUCTURE..................................................................... 10 4.1 ISSUING THE COMMENCEMENT CERTIFICATE ....................................................10 4.2 ACCESS.............................................................................................11 4.3 DESIGN AND CONSTRUCTION .....................................................................12 4.4 AVAILABILITY AND MAINTENANCE ................................................................12 4.5 ISSUING THE AVAILABILITY CERTIFICATE .......................................................13 4.6 ISSUING THE COMPLETION CERTIFICATE ........................................................14

5. THIRD-PARTY INFRASTRUCTURE ...................................................... 14 5.1 ACCESS.............................................................................................14 5.2 DESIGN AND CONSTRUCTION .....................................................................14 5.3 AVAILABILITY AND MAINTENANCE ................................................................15 5.4 COMPLETION AGREEMENTS FOR THIRD-PARTY INFRASTRUCTURE .............................15 5.5 ISSUING OF THE PART COMPLETION CERTIFICATE FOR THE THIRD-PARTY INFRASTRUCTURE

15 6. CABLES AND THIRD-PARTY PIPELINES............................................. 16

6.1 UNDISTURBED LOCATIONS AND TEMPORARY PROTECTIVE MEASURES..........................16 6.2 THIRD-PARTY CABLES AND PIPELINES CATEGORY 1 ...........................................16 6.3 THIRD-PARTY CABLES AND PIPELINES CATEGORY 2 ...........................................16 6.4 THIRD-PARTY CABLES AND PIPELINES CATEGORY 3 ...........................................17

7. HAND BACK....................................................................................... 18 7.1 HAND BACK REQUIREMENTS......................................................................18 7.2 HAND BACK INSPECTIONS ........................................................................18 7.3 HAND BACK BANK GUARANTEE ..................................................................18 7.4 ISSUING THE HAND BACK CERTIFICATE .........................................................19

8. QUALITY ASSURANCE ....................................................................... 20 8.1 MANAGEMENT SYSTEM ............................................................................20 8.2 PERFORMANCE MEASUREMENT SYSTEM..........................................................20 8.3 INSPECTIONS ......................................................................................20


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8.4 CONSEQUENCES OF INSPECTIONS AND EXAMINATION OF DOCUMENTS ........................21 8.5 OBLIGATION TO CORRECT.........................................................................21

9. SUPERVENING EVENTS ..................................................................... 21 9.1 NOTIFICATION OF A SUPERVENING EVENT ......................................................21 9.2 DELAY EVENT ......................................................................................23 9.3 COMPENSATION EVENT............................................................................23 9.4 FORCE MAJEURE EVENT...........................................................................23 9.5 POSTPONED COMPLETION EVENT.................................................................24

10. EARLY TERMINATION..................................................................... 24 10.1 TERMINATION DUE TO AN IMMEDIATE TERMINATION EVENT ................................24 10.2 TERMINATION DUE TO CONTRACTOR DEFAULT ...............................................24 10.3 TERMINATION DUE TO CONTRACTING AUTHORITY DEFAULT.................................25 10.4 DISCRETIONARY TERMINATION BY CONTRACTING AUTHORITY ..............................25 10.5 TERMINATION DUE TO A PROLONGED DELAY EVENT..........................................26 10.6 TERMINATION DUE TO A FORCE MAJEURE EVENT ............................................26 10.7 DIRECT AGREEMENT............................................................................27

11. DEFAULT ........................................................................................ 27 11.1 CONTRACTOR DEFAULT.........................................................................27 11.2 CONTRACTING AUTHORITY DEFAULT ..........................................................28

12. LIABILITY AND INDEMNITY ........................................................... 28 12.1 CONTRACTING AUTHORITY LIABILITY .........................................................28 12.2 CONTRACTING AUTHORITY INDEMNITIES .....................................................29 12.3 CONTRACTOR INDEMNITIES....................................................................30

13. CHANGES........................................................................................ 31 13.1 CONTRACTING AUTHORITY CHANGE...........................................................31 13.2 CONTRACTOR CHANGE .........................................................................31 13.3 PROCEDURES INVOLVING AND RESULTING FROM CHANGES..................................32 13.4 OTHER CHANGES ...............................................................................32

14. INSURANCE.................................................................................... 32 14.1 INSURANCE BENEFITS FOR MATERIAL DAMAGE................................................32 14.2 POLICY CONDITIONS DURING THE AVAILABILITY PERIOD....................................32 14.3 EXTRAORDINARY PREMIUM INCREASE AND UNINSURABLE RISK ............................33 14.4 EXTRAORDINARY PREMIUM DECREASE ........................................................35

15. SHAREHOLDERS ............................................................................. 35 16. SUBCONTRACTORS......................................................................... 36

16.1 IMPORTANT SUBCONTRACTORS ................................................................36 16.2 NEW SUBCONTRACTORS .......................................................................36

17. INTELLECTUAL PROPERTY.............................................................. 37 17.1 LICENCE TO CONTRACTING AUTHORITY.......................................................37 17.2 ESTABLISHING A PLEDGE .......................................................................37 17.3 AGREEMENTS WITH SUBCONTRACTORS .......................................................38 17.4 REVISION AND DESTRUCTION..................................................................38 17.5 REPEATED USE ..................................................................................38


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17.6 USE AFTER EARLY TERMINATION ...............................................................38 17.7 PROVISION OF LICENCE TO CONTRACTOR FOR EXISTING INFRASTRUCTURE ...............38

18. MISCELLANEOUS PROVISIONS....................................................... 39 18.1 REGULATIONS ...................................................................................39 18.2 WORKING CONDITIONS AND OCCUPATIONAL HEALTH AND SAFETY ..........................39 18.3 PERMITS .........................................................................................39 18.4 FEE LEVIED ON THE EXTRACTION OF SAND, GRAVEL AND SOIL ..............................40 18.5 (TRAFFIC) SAFETY ..............................................................................40 18.6 INCIDENT MANAGEMENT, WINTER MAINTENANCE, TRAFFIC ACCIDENTS AND NON-STANDARD

TRANSPORT.................................................................................................40 18.7 [COST OF MAINS SERVICES] ...................................................................40

19. INDEXATION .................................................................................. 40 19.1 PRICE LEVEL.....................................................................................40 19.2 NON-INDEXED AMOUNTS .......................................................................40 19.3 INDEXING THE GROSS AVAILABILITY PAYMENT ..............................................41 19.4 INDEXATION OF OTHER AMOUNTS..............................................................41

20. EXCESS PROFITS............................................................................ 41 20.1 WEIGHTED AVERAGE RETURN ON EQUITY .....................................................41 20.2 SHARING OF EXCESS PROFITS .................................................................41 20.3 MAXIMIZATION..................................................................................41 20.4 WEIGHTED AVERAGE COST OF CAPITAL ......................................................41

21. DISPUTE RESOLUTION ................................................................... 42 21.1 DISPUTES........................................................................................42 21.2 EXPERT DETERMINATION.......................................................................42 21.3 JURISDICTION...................................................................................43 21.4 JURISDICTION IN CASE OF THIRD-PARTY PROCEEDINGS .....................................43

22. COMMUNICATION .......................................................................... 44 22.1 LANGUAGE.......................................................................................44 22.2 COMMUNICATION ...............................................................................44 22.3 NOTIFICATIONS AND APPROVALS ..............................................................44 22.4 REPRESENTATIVES ..............................................................................44 22.5 REPRESENTATIONS..............................................................................45

23. CONFIDENTIALITY ......................................................................... 45 23.1 CONFIDENTIALITY...............................................................................45 23.2 EXCEPTIONS.....................................................................................45

24. FINAL STIPULATIONS .................................................................... 46 24.1 APPLICABLE LAW ................................................................................46 24.2 EXCLUSION ......................................................................................46 24.3 TRANSFER OF RIGHTS ..........................................................................46 24.4 WAIVER..........................................................................................46 24.5 ENTIRE AGREEMENT.............................................................................47 24.6 CONTINUING OBLIGATIONS ....................................................................47 24.7 CONTRADICTION ................................................................................47 24.8 UNFORESEEN CIRCUMSTANCES ................................................................47


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24.9 NO THIRD-PARTY CLAUSES.....................................................................47 SCHEDULES ............................................................................................... 48

SCHEDULE 1 DEFINITIONS.............................................................................48 SCHEDULE 2 PAYMENT MECHANISM ...................................................................66 SCHEDULE 3 COMPENSATION FOR SUPERVENING EVENTS ...........................................82 SCHEDULE 4 COMPENSATION FOR EARLY TERMINATION .............................................88 SCHEDULE 5 CHANGES ...............................................................................95 SCHEDULE 6 DIRECT AGREEMENT................................................................... 101 SCHEDULE 7 MODELS............................................................................... 123 SCHEDULE 8 MANAGEMENT PLAN ................................................................... 131 SCHEDULE 9 PROGRAMME OF REQUIREMENTS .................................................... 132 SCHEDULE 10 FINANCIAL MODEL ADJUSTMENT GUIDELINE ..................................... 139 SCHEDULE 11 AGREEMENT GOVERNING INTELLECTUAL PROPERTY RIGHTS ..................... 152 SCHEDULE 12 INSURANCE .......................................................................... 155 SCHEDULE 13 INFORMATION FURNISHED .......................................................... 156 SCHEDULE 14 THIRD-PARTY CABLES AND PIPELINES ............................................. 157 SCHEDULE 15 RIGHTS OF THIRD PARTIES TO ACCESS THE RWS AND THIRD-PARTY AREAS

DURING THE DEVELOPMENT PERIOD.................................................................... 158


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This Agreement is dated [date of signature].

(1) THE STATE OF THE NETHERLANDS (Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management, with its seat in The Hague (the Contracting Authority), represented by [name of authorized representative];

(2) [NAME OF CONTRACTOR], with its registered office in [location of the registered office of the Contractor] (the Contractor), represented by [name of authorized representative];

have agreed to the following:

1. DEFINITIONS

Capitalized terms in this Agreement have the meaning ascribed to them as set out in Schedule 1 (Definitions).

2. KEY OBLIGATIONS AND TERM

2.1 Key Obligations of the Contractor

(a) The Contractor must:

(i) carry out all Work required to obtain the Commencement Certificate in accordance with this Agreement;

(ii) keep the RWS Infrastructure available during the Development Period in accordance with this Agreement;

(iii) carry out all Work required to obtain the Availability Certificate in accordance with this Agreement;

(iv) keep the RWS Infrastructure available during the Availability Period in accordance with this Agreement;

(v) carry out all Work required to obtain the Completion Certificate in accordance with this Agreement;

(vi) carry out all Work in accordance with the Management System;

(vii) carry out all Work required to obtain the Hand Back Certificate in accordance with this Agreement;

(viii) do everything that is necessary to realise the above, insofar as this Agreement does not specifically stipulate otherwise; and


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(ix) fulfil all its other obligations pursuant to this Agreement.

(b) All costs incurred by the Contractor in order to fulfil the aforementioned obligations will be borne by the Contractor, except to the extent that this Agreement specifically stipulates otherwise.

(c) Regardless of circumstances or events that may arise during the execution of this Agreement, the Contractor has:

(i) no right to any payment from the Contracting Authority;

(ii) no right to a postponement or suspension of the performance of its obligations; and

(iii) no right vis-à-vis the Contracting Authority with regard to a Contracting Authority Default,

except to the extent that such rights are specifically stipulated in this Agreement or result from public law.

2.2 Key Obligations of the Contracting Authority

The Contracting Authority must:

(a) pay the Net Availability Payment to the Contractor for the period from the Commencement Date to the Expiry Date in accordance with Schedule 2 (Payment Mechanism);

(b) after the Completion Certificate has been issued, pay the Lump-Sum Completion Payment to the Contractor in accordance with Schedule 2 (Payment Mechanism); and

(c) fulfil all its other obligations pursuant to this Agreement.

2.3 Term

This Agreement comes into effect on the Contract Date and ends, subject to Article 24.6 (Continuous obligations), on the Expiry Date unless it is terminated earlier in accordance with Article 10 (Early Termination).

3. FINANCING

3.1 Project financing

The Contractor must finance the Work by means of Project financing.

3.2 Financial Close Guarantee

(a) On the Contract Date, the Contractor must provide a Bank Guarantee in the amount of € [ ] as guarantee for the fulfilment of its obligations under this Agreement in accordance with the model provided in Schedule 7 (Models), Part 1 (the Financial Close Guarantee).


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(b) The Financial Close Guarantee must remain in effect for a period of three months after the Contract Date. If the deadline for Financial Close specified in Article 3.3 (a) is extended as a result of a Supervening Event or a Disruption of Financial Markets, the Contractor must ensure that the term of the Financial Close Guarantee is adequately extended so that, as long as the Supervening Event or Disruption of Financial Markets continues, the residual term of the Financial Close Guarantee will always be at least 1 month.

(c) Concurrent to issuing the Confirmation of Financial Close, the Contracting Authority must notify the bank issuing the Financial Close Guarantee that the Financial Close Guarantee shall cease to apply as at the date of the Confirmation of Financial Close, and return the original of the Financial Close Guarantee to said institution.

3.3 Financial Close

(a) Financial Close must occur within the three months following the Contract Date. If Financial Close cannot occur within three months of the Contract Date due to a Supervening Event or a Disruption of Financial Markets, the deadlines for attaining Financial Close will be extended up to 10 Business Days after the day on which the Supervening Event or Disruption of the Financial Markets no longer prevents the attaining of Financial Close. If the deadline for attaining Financial Close is extended by more than [180 Calendar Days] owing to the occurrence of the Supervening Event or the Disruption of Financial Markets, either of the Parties has the right to terminate this Agreement. Upon termination of the Agreement on these grounds, neither Party shall be liable to compensate the other.

(b) The date of Financial Close must be established in consultation with the Contracting Authority.

(c) On the date of Financial Close, the Contracting Authority and the Contractor must enter into a Direct Agreement with the Security Agent.

(d) On the date of Financial Close, the Contractor must hand over to the Contracting Authority a Confirmation of Financial Close signed by the Facility Agent / Intercreditor Agent in accordance with the model provided in Schedule 7 (Models), Part 4 (Confirmation of Financial Close).

(e) On the date of Financial Close, the Contracting Authority and the Contractor must determine the Gross Availability Payment and the Weighted Average Cost of Capital in accordance with the model provided in Part 5 (Confirmation of Gross Availability Payment and Weighted Average Cost of Capital) of Schedule 7 (Models).

(f) Twenty Business Days after the date of Financial Close, the Contractor must hand over to the Contracting Authority the entire Finance Agreements and the Junior Debt Agreements (CD-ROM format accepted), in the form of copies certified by the Contractor. Throughout the period from the Financial Close Date up to and including the Expiry Date, the Contractor in the absence of prior consent from the Contracting


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Authority may only provide security interest on its rights under this Agreement vis-à-vis the Contracting Authority as specified in the Finance Agreements on the date of the Financial Close.

3.4 Performance Bond

(a) On the Financial Close Date, the Contractor must provide a Bank Guarantee in the amount of € [ ] as guarantee for the fulfilment of its obligations under this Agreement in accordance with the model (Performance Bond) provided in Part 2 (Performance Bond) of Schedule 7 (Models).

(b) The term of validity of the Performance Bond must extend to one month after the Scheduled Availability Date. If the Scheduled Availability Date is postponed pursuant to Article 9.2 (Delay Event), the Contractor must ensure that the term of validity of the Performance Bond is extended by an equal period at the very least.

(c) Within 10 Business Days of receipt of a declaration from the Contractor’s chartered accountant confirming that at least the amount outlined in Paragraph (a) of the Performance Bond has been expended on components of objects listed with respect to the Completion Date in Schedule 9, Table 1 (RWS Infrastructure Objects), the Contracting Authority must inform the bank issuing the Performance Bond that the Performance Bond shall cease to apply with effect from the date of the chartered accountant’s declaration and return the original copy of the Performance Bond to said bank, unless it notifies the Contractor that it disputes the accuracy of the declaration.

(d) Concurrent to issuing the Availability Certificate, the Contracting Authority must notify the bank issuing the Performance Bond that the Performance Bond ceases to apply as from the date of the Contracting Authority’s notification and return the original copy of the Performance Bond to said bank, unless the Contracting Authority has already notified said bank that the Performance Bond has ceased to apply.

3.5 Refinancing

(a) The Contractor may not enter into a new Finance Agreement with any other party than an existing Lender if any Grounds for Exclusion or Grounds for Refusal apply to the new Lender.

(b) The Contractor must request the Contracting Authority’s consent prior to entering into a new Finance Agreement with any party other than an existing Lender. This authorisation must be given within [20] Business Days after the Contractor has demonstrated that no Grounds for Exclusion apply to the new Lender, unless the Contracting Authority demonstrates that a Ground for Refusal applies to the new Lender (or a (legal) entity of which the new Lender is a subsidiary within the meaning of Article 2:24a of the Dutch Civil Code or belongs to the same group as the Lender as referred to in Article 2:24b of the Dutch Civil Code). If the Contracting Authority grants its authorisation, no Grounds for Exclusion shall be deemed to apply to the new Lender pursuant to Paragraph (a).

(c) The Contractor must inform the Contracting Authority in advance of any Refinancing other than that referred to in Paragraph (b).


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(d) The Contractor must pay [ %] of the Financial Benefit (before taxes) achieved through the Refinancing to the Contracting Authority. This payment must be made on the basis of a payment schedule that is established on the basis of the expected actual realisation of that benefit under unchanged circumstances.

(e) If there is to be Refinancing, the Parties must consult to determine the Financial Benefit and the payment schedule referred to in Paragraph (d). This determination must be based on a comparison between the payments that are expected to be made by the Contractor to its Shareholders before and after the Refinancing based on the Updated Financial Model. Upon determination of the Financial Benefit, any commissions, penalties, breakage costs and other costs and expenses will be left out of consideration insofar as these cannot be regarded as consistent with the market.

(f) If the Contracting Authority and the Contractor cannot reach an agreement within 3 months regarding determination of the Financial Benefit and the payment schedule specified in Paragraph (d), both items will be determined in accordance with Article 21 (Dispute Resolution).

3.6 Financial Model

(a) On the date of the Financial Close, the Contractor must furnish the Financial Model that has been completed in accordance with Schedule 10 (Financial Model Adjustment Guideline).

(b) In determining the compensation to be paid pursuant to Articles 10 (Early Termination), 3.5 (Refinancing) or 20.2 (Sharing of excess profits), account must (also) be taken of the Updated Financial Model. The compensation to be paid pursuant to Article 9.3 (Compensation Event) shall on the Contracting Authority’s request be determined in accordance with the Updated Financial Model.

(c) The Contractor must furnish the Updated Financial Model together with a description of adjustments made since the Original Financial Model, or where applicable, the most recent copy of the Updated Financial Model.

(d) At the request of the Contracting Authority, the Contractor must demonstrate, by means of an affirmative declaration from an independent expert acceptable to the Contracting Authority, that the Updated Financial Model is based on the Original Financial Model and that the adjustments are in accordance with Schedule 10 (Financial Model Adjustment Guideline).

4. RWS INFRASTRUCTURE

4.1 Issuing the Commencement Certificate

(a) If the Contractor believes that the conditions for issuing the Commencement Certificate referred to in the Certificate Plan have been fulfilled, the Contractor may demonstrate such fulfilment by providing the Contracting Authority with the documents named in the Certificate Plan. The Contractor may submit these documents to the Contracting Authority in stages, according to the procedure described for that purpose in the Management Plan.


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(b) Within [20] Business Days of receiving a document as specified in Paragraph (a), the Contracting Authority must inform the Contractor whether the Contractor has demonstrated that the conditions for issuing the Commencement Certificate described in this document have been fulfilled. After such notification, and prior to issuing the Commencement Certificate, the Contracting Authority may verify whether or not this is the case and may verify at all times whether such conditions for issuing the Commencement Certificate described in previously submitted documents continue to be met.

(c) The Contractor is entitled to amend a document and resubmit it to the Contracting Authority in the event that the Contracting Authority determines that the conditions described in said document have not been demonstrably fulfilled.

(d) If the Contractor has demonstrated that all conditions for issuing the Commencement Certificate are fulfilled, the Contracting Authority must issue the Commencement Certificate to the Contractor within [20] Business Days of receiving all documents that demonstrate such fulfilment.

(e) If the Contracting Authority refuses to issue the Commencement Certificate, it must inform the Contractor of this refusal within the same period of [20] Business Days, specifying its reasons.

4.2 Access

(a) In the period commencing on the Commencement Date and ending on the Completion Date, the Contracting Authority must provide access to the Contractor to perform the Work to the RWS Area and the Third-Party Area [with the exception of the sections referred to in Schedule [ ] to which the Contracting Authority is obliged to provide access as from the date specified in this Schedule in respect of the relevant sections]1, whereby:

(i) the Contractor must have regard to the third-party rights of access to the RWS Area and the Third-Party Area as referred to in Schedule 15 (Rights of third parties to access the RWS Area and the Third-Party Area during the Development Period); and

(ii) insofar as the RWS Area and the Third-Party Area form part of the public road or waterway, bus lane or rail infrastructure, access by the Contractor will be subject to authorisation by the relevant authority in charge. Supplementary to the provisions of point (i), the Contractor must take account of the fact that third parties other than those referred to in Schedule 15 (Rights of third parties to access the RWS Area and the Third-Party Area during the Development Period) also have rights of access to the public road and waterway, bus lane or rail infrastructure.

The Contractor’s Servants or Agents will also be afforded access in this regard.

1 Some sites have yet to be acquired and this is generally achieved within 4 weeks of the effective date of the Transport Infrastructure (Planning Procedures) Decree. Access can then be made available to such areas.


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(b) Throughout the period beginning on the day after the Completion Date and ending on the Expiry Date, the Contracting Authority will grant access to the Contractor to the RWS Area in order to perform the Work, whereby:

(i) the Contractor shall have regard to the rights of third parties to access the RWS Area; and

(ii) insofar as the RWS Area forms part of the public road or waterway, bus lane or rail infrastructure, access by the Contractor will be subject to authorisation by the relevant authority in charge.

(c) Prior to the date on which the Transport Infrastructure (Planning Procedures) Decree [Road Improvement Decree] becomes irrevocable, the Contractor will not be entitled to carry out the following Work: [ ]]

4.3 Design and construction

(a) The Contractor must design and build the RWS Infrastructure in a manner that ensures that on the Availability Date, the RWS Infrastructure shall:

(i) at least comprise of the objects listed in respect of the Availability Date in Schedule 9, Table 1 (RWS Infrastructure Objects); and

(ii) meet the Tender requirements.

(b) The Contractor must design and build the RWS Infrastructure in a manner that ensures that on the Completion Date, the RWS Infrastructure shall:

(i) at least comprise of the objects listed in respect of the Completion Date in Schedule 9, Table 1 (RWS Infrastructure Objects); and

(ii) meet the Completion requirements.

4.4 Availability and maintenance

(a) Throughout the period beginning on the Commencement Date and ending on the Availability Date, the Contractor must ensure that the RWS Infrastructure:

(i) comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 1 (Traffic Lane definitions and availability requirements in the Development Period);

(ii) at least comprises of the objects listed in respect of the Commencement Date in Schedule 9, Table 1 (RWS Infrastructure Objects); and

(iii) is maintained in accordance with the Transition requirements.

(b) Throughout the period beginning on the Availability Date and ending on the Completion Date, the Contractor must ensure that the RWS Infrastructure:


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(i) comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 2 (Traffic Lane definitions and availability requirements in the Availability Period);

(ii) at least comprises of the objects listed in respect of the Availability Date in Schedule 9, Table 1 (RWS Infrastructure Objects); and

(iii) is maintained in accordance with the Tender requirements.

(c) Throughout the period beginning on the day after the Completion Date and ending on the Expiry Date, the Contractor must ensure that the RWS Infrastructure:

(i) comprises of the Traffic Lanes referred to in Schedule 2, Table 1, Annex 2 (Traffic Lane definitions and availability requirements in the Availability Period);

(ii) at least comprises of the objects listed in respect of the Completion Date in Schedule 9, Table 1 (RWS Infrastructure Objects); and

(iii) is maintained in accordance with the Completion requirements.

4.5 Issuing the Availability Certificate

(a) If the Contractor believes that the conditions for issuing the Availability Certificate referred to in the Certificate Plan have been fulfilled, the Contractor may demonstrate such fulfilment by providing the Contracting Authority with the documents referred to in the Certificate Plan. The Contractor may submit these documents to the Contracting Authority in stages, according to the procedure described for that purpose in the Management Plan.

(b) The Contracting Authority must inform the Contractor within [20] Business Days of receiving a document as specified in Paragraph (a) whether the Contractor has demonstrated that the conditions for issuing the Availability Certificate described in the document have been fulfilled. The Contracting Authority may verify at all times whether this is the case as well as whether the conditions for issuing the Availability Certificate described in previously submitted documents continue to be met.


(d) If the Contractor has demonstrated that all conditions for issuing the Availability Certificate have been fulfilled the Contracting Authority must issue the Availability Certificate to the Contractor within [20] Business Days of receiving the documents that demonstrate such fulfilment.

(e) If the Contracting Authority refuses to issue the Availability Certificate, it must inform the Contractor of same within the same period of [20] Business Days, specifying its reasons.


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4.6 Issuing the Completion Certificate

(a) If the Contractor believes that the conditions for issuing the Completion Certificate referred to in the Certificate Plan have been fulfilled, the Contractor may demonstrate such fulfilment by providing the Contracting Authority with the documents referred to in the Certificate Plan. The Contractor may submit these documents to the Contracting Authority in stages, according to the procedure described for that purpose in the Management Plan.

(b) Within [20] Business Days of receiving a document as specified in Paragraph (a), the Contracting Authority must inform the Contractor whether the Contractor has demonstrated that the conditions for issuing the Completion Certificate described in the document have been fulfilled. The Contracting Authority may verify at all times whether this is the case, as well as whether the conditions for issuing the Completion Certificate described in previously submitted documents continue to be met.


(d) If the Contractor has demonstrated that all conditions for the issuance of the Completion Certificate have been fulfilled, the Contracting Authority must issue the Completion Certificate to the Contractor within [20] Business Days after having received all documents demonstrating such fulfilment.

(e) If the Contracting Authority refuses to issue the Completion Certificate, it must inform the Contractor of this refusal within the same period of [20] Business Days, specifying its reasons.

5. THIRD-PARTY INFRASTRUCTURE

5.1 Access

Notwithstanding the provisions of Article 4.1 Paragraph (a), where a Part Completion Certificate has been issued in respect of an object forming part of the Third-Party Infrastructure, the Contracting Authority shall no longer be obliged to provide access to that part of the Third-Party Area in which the relevant object is located.

5.2 Design and construction

The Contractor must design and construct the Third-Party Infrastructure in a manner that the Third-Party Infrastructure:

(i) at least comprises of the objects listed with respect to the date of issuing of the Completion Certificate referred to in Schedule 9, Table 1 (Third-Party Infrastructure Objects); and

(ii) meets the Completion requirements.


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5.3 Availability and maintenance

(a) Throughout the period beginning on the Commencement Date and ending on the Completion Date, the Contractor must ensure that the Third-Party Infrastructure:

(i) at least comprises of the objects listed with respect to the Commencement Date in Schedule 9, Table 1 (Third-Party Infrastructure Objects); and

(ii) meets the Transition requirements.

(b) Where a Part Completion Certificate has been issued in respect of an object forming part of the Third-Party Infrastructure, the Contractor will no longer be obliged to comply with the provisions of Article 5.3 Paragraph (a) with regard to the area in which the relevant object is located.

5.4 Completion agreements for Third-Party Infrastructure

(a) The Contractor is obliged, on behalf of the Contracting Authority and subject to the Contracting Authority’s approval, to reach agreement on the handover by the Contracting Authority to the relevant authority of objects forming part of the Third-Party Infrastructure. The arrangements must be set down in a completion agreement to be concluded between the Contracting Authority and the authority in charge of the relevant object.

(b) Such completion agreements at the very least must provide as follows:

(i) As from the date of issuing of the Part Completion Certificate, the Contractor shall on behalf of the Contracting Authority for a period of 6 months thereafter and forthwith at the request of the relevant authority ensure that the object in question meets the Completion requirements, if it transpires that the object fails to meet said requirements on account of a default on the Contractor’s part; and

(ii) the relevant authority’s standard procedures regarding inspections and/or handovers shall be complied with.

5.5 Issuing of the Part Completion Certificate for the Third-Party Infrastructure

(a) If the Contractor believes that an object or objects having a mutually related function and forming part of the Third-Party Infrastructure meet the conditions for issuing of a Part Completion Certificate referred to in the Certificate Plan, the Contractor may hand over the documents referred to in the Certificate Plan and demonstrating such to the Contracting Authority.

(b) The Contracting Authority may verify if the conditions governing issuance of a Part Completion Certificate have been met.

(c) The Contractor is entitled to amend a document and resubmit it to the Contracting Authority if the Contracting Authority determines that the conditions described in said document have not been demonstrably fulfilled.


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(d) Where the conditions governing issuance of a Part Completion Certificate have been met, the Contracting Authority must issue the Part Completion Certificate to the Contractor within [20] Business days of receipt of the documents referred to in Paragraph (a).

(e) If the Contracting Authority refuses to issue the Part Completion Certificate, it must inform the Contractor of this refusal within the same period of [20] Business Days, specifying its reasons.

(f) If it transpires within a period of 6 months as from the date of issuance of a Part Completion Certificate that the object provided for in the Part Completion Certificate fails to meet the relevant Completion requirements owing to a Contractor Default, and the Contracting Authority or the authority to which the relevant object has been transferred in accordance with the provisions of Article 5.4 has raised this matter with the Contractor within this period, the Contractor shall be obliged to ensure that the object meets the relevant requirements as yet.

6. CABLES AND THIRD-PARTY PIPELINES

6.1 Undisturbed locations and temporary protective measures

(a) The Contractor must ensure that all Third-Party Cables and Pipelines remain undisturbed during the performance of the Work, unless otherwise provided in a Project agreement.

(b) Where a Third-Party Cable or Pipeline is damaged by the Contractor during the performance of the Work, the Contractor must report this immediately to the relevant authority in charge of the cable or pipeline and send a copy of this report without delay to the Contracting Authority.

(c) Where a Third-Party Cable or Pipeline requires temporary protection during the performance of the Work, the Contractor must put the requisite measures in place to ensure that the said Third-Party Cable or Pipeline is temporarily protected. Prior to putting these measures in place, the Contractor must obtain permission from the authority in charge of the cable or pipeline. A copy of the document outlining the permission obtained from the authority in charge of the cable or pipeline shall be sent without delay by the Contractor to the Contracting Authority.

6.2 Third-Party Cables and Pipelines Category 1

The location of the Third-Party Cables or Pipelines Category 1 must be retained.


(a) During the performance of the Work, the Contractor must abide by the provisions of the Project Agreement that was concluded by the Contracting Authority in relation to the rerouting, removal or permanent protection of Third-Party Cables and Pipelines Category 2. Where necessary, the Contractor shall make additional arrangements with the authorities in charge of the cables or pipelines.

(b) The Contractor must arrange for the performance of the Work to be agreed where necessary with whomsoever is in charge of actually rerouting, removing or permanently


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protecting the Third-Party Cables and Pipelines Category 2 situated within the RWS and the Third-Party Areas.

(c) The Contracting Authority shall bear the costs of rerouting, removing or permanently protecting the Third-Party Cables and Pipelines Category 2.

(d) Where the Contractor arranges for a Third-Party Cable or Pipeline Category 2 to be removed, rerouted, or afforded permanent protection in a manner that deviates from the Project agreement, the Contractor shall bear the additional costs involved.


(a) Where the rerouting, removal or permanent protection of a Third-Party Cable or Pipeline Category 3 is deemed necessary in connection with the Work, the Contractor on behalf of the Contracting Authority shall send a Change Request to the authority in charge of the cable or pipeline. The Change Request must be approved by the Contracting Authority before it is sent to the authority in charge of the cable or pipeline.

(b) If the Contracting Authority refuses to approve the Change Request, it must inform the Contractor of this refusal within 15 Business Days of receipt of a full draft of the Change Request. The Change Request may only be refused by the Contracting Authority if the draft does not meet the Regulations governing Cables and Pipelines.

(c) After submitting the Change Request to the authority in charge of the cable or pipeline, the Contractor must reach agreement with the said authority in regard to the content of the Project Agreement. The Project agreement must be in line with the Regulations governing Cables and Pipelines. The agreement must be reached on behalf of the Contracting Authority and is subject to the Contracting Authority’s approval.

(d) If the authority in charge of the cable or pipeline is unwilling to allow the Contractor to check the estimated costs for the permanent protection, rerouting or removal of the cable or pipeline, the Contracting Authority at the Contractor’s request will be obliged to reach an agreement with the authority in charge of the cable or pipeline, subject to the Regulations governing Cables and Pipelines, on the price to be paid.

(e) The Project agreement must be signed by the Contracting Authority. If the Contracting Authority refuses to sign a Project agreement, it must inform the Contractor of this refusal within 15 Business Days of receipt of a full draft of the Project agreement (including annexes) which has been agreed between the Contractor and the authority in charge of the cable or pipeline. The Contracting Authority may only refuse to sign if the Project agreement does not meet the Regulations governing Cables and Pipelines.

(f) The final amount paid by the Contracting Authority under the Project agreement to the authority in charge of the cable or pipeline in respect of a Third-Party Cable or Pipeline Category 3 becomes payable by the Contractor, and the Contractor shall forward said payment to the Contracting Authority on first request.

(g) No Work involving the rerouting, removal or permanent protection of Third-Party Cables and Pipelines Category 3 may be commenced with by the Contractor unless provision is made for such work in a Project agreement. In performing the said Work, the


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Contractor must abide by the arrangements provided for in the relevant Project agreement.

(h) The Contractor must arrange for the performance of the Work to be agreed where necessary with whomsoever is in charge of actually rerouting, removing or permanently protecting the Third-Party Cables and Pipelines Category 3 situated within the RWS and the Third-Party Areas.

7. HAND BACK

7.1 Hand Back Requirements

The Contractor must ensure that on the Expiry Date the RWS Infrastructure complies with the conditions for issuing the Hand Back Certificate as specified in the Certificate Plan.

7.2 Hand Back Inspections

(a) Under the provisions of Article 7.1 (Hand Back Requirements), the Parties must jointly inspect the RWS Infrastructure.

(b) The first inspection must take place no earlier than [●] months and no later than [●] months before the Expiry Date. The last inspection must take place no earlier than [●] months and no later than [●] months before the Expiry Date.

(c) The inspections shall take place at the Contracting Authority’s request. The Contracting Authority must make its request to the Contractor no later than [●] Business Days before the inspection.

(d) The Contractor shall organise the inspections.

(e) The inspections shall take place according to the provisions of Schedule 8 (Management Plan). Within 15 Business Days after each inspection, the Contractor must provide the Contracting Authority with a summary of the Work that must be performed in addition to the Work included in the Subplans referred to in [ ] of the Management Plan in order for the RWS Infrastructure to comply on the Expiry Date with the requirements laid down in Article 7.1 (Hand Back Requirements). The Contractor must include plans for the completion of this additional Work and a list of the associated costs to this review.

(f) The Contracting Authority may verify if the review of the additional work, its planning and the statement of the costs involved are accurate and complete. If the Contracting Authority determines that these documents are not accurate and complete, the Contractor must revise these documents as soon as possible and resubmit them to the Contracting Authority.

7.3 Hand Back Bank Guarantee

(a) No later than [ ] months prior to the Expiry Date, the Contractor must provide a Bank Guarantee in the amount of € [ ] as a guarantee for the fulfilment of its obligations under this Agreement in accordance with the model provided in Part 3 (Hand Back Bank Guarantee) of Schedule 7 (Models).


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(b) The term of validity of the Hand Back Bank Guarantee must extend to [ ] months after the Expiry Date.

(c) If inspections reveal that the Contractor must take measures to ensure compliance of the RWS Infrastructure with the Hand Back Requirements on the Expiry Date and that the cost of these measures is higher than the maximum amount of the Hand Back Bank Guarantee, the Contractor within [ ] Business Days of sending the review specified in Article 7.2 Paragraph (e) must provide an additional Bank Guarantee in an amount that is equivalent to the difference

7.4 Issuing the Hand Back Certificate

(a) No later than [20] Business Days prior to the Expiry Date the Contractor must deliver the documents listed in the Certificate Plan demonstrating that the RWS Infrastructure will meet the requirements on the Expiry Date for issuing the Hand Back Certificate as stated in the Certificate Plan. The Contractor may submit these documents to the Contracting Authority in stages, according to the procedure described for that purpose in the Management Plan.

(b) Within [20 ] Business Days after receiving a document as specified in Paragraph (a), the Contracting Authority must inform the Contractor whether the Contractor has demonstrated that the conditions for issuing the Hand Back Certificate described in the document have been fulfilled. The Contracting Authority may verify at all times whether or not this is the case, as well as whether the conditions for issuing the Hand Back Certificate described in previously submitted documents continue to be met.


(d) If the Contractor has demonstrated that on the Expiry Date all conditions for the issuance of the Hand Back Certificate have been fulfilled, the Contracting Authority must issue the Hand Back Certificate to the Contractor on the Expiry Date and inform the bank that issued the Hand Back Bank Guarantee that the Hand Back Bank Guarantee shall cease to apply on the Expiry Date and return the original copy of the Hand Back Bank Guarantee to said bank.

(e) If the documents referred to in Paragraph (a) do not demonstrate that the RWS Infrastructure meets the conditions set in Article 7.1 (Hand Back Requirements) on the Expiry Date and the Contracting Authority therefore is unwilling to issue the Hand Back Certificate, the Contracting Authority must notify the Contractor of same within [20] Business Days of receiving all the documents referred to in Paragraph (a), specifying its reasons. The Contracting Authority may not call in any payment under the Hand Back Bank Guarantee for 40 Business Days after sending the aforementioned statement of reasons to the Contractor.


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8. QUALITY ASSURANCE

8.1 Management System

(a) The Contractor must prepare and maintain a Management System that applies to the Work, including Work performed by the Contractor’s Agents.

(b) The Management System must be described in the Management Plan. The Management System and the description thereof in the Management Plan must be organised in accordance and in conformity with the requirements of ISO 15288:2008 or a replacement standard and meet the supplementary requirements provided for in the Management Specifications.

(c) In performing the Work, the Contractor must follow the Management Specifications and the plans provided for in Schedule 8, Part 1 (Basic Management Plan and Subplans governing the Tender).

(d) In preparing the documents referred to in Schedule 8, Part 2 (Detailed Subplans), the Contractor must duly observe the conditions and timeframes set out in Schedule 8, Part 1 (Basic Management Plan and Subplans governing the Tender) and part 2 (Detailed Subplans).

(e) Within 1 year of the Contract Date, the Contractor must be in possession of a Quality System Certificate that conforms to the NEN-ISO 9001:2008 standard (or a replacement standard) pertaining to the Management System.

(f) Once in receipt of the certificate referred to in Paragraph (e), the Contractor must continue to be in possession of said certificate for the remaining term of this Agreement.

(g) The certificate referred to in Paragraph (e) must be issued by a certification body that is recognised by a national accrediting body (in the Netherlands: de Dutch Accreditation Council - RVA).

8.2 Performance Measurement System

(a) The Contractor must design and build the Performance Measurement System in accordance with the requirements set out in the Measurement Specifications.

(b) Throughout the period beginning on [the date of [ ] months after] the Commencement Date and ending on the Expiry Date, the Contractor shall ensure that the Performance Measurement System functions and is maintained in accordance with the requirements set out in the Management Specifications.

8.3 Inspections

(a) The Contracting Authority may at any time inspect or commission an inspection to ensure that the Contractor fulfils its obligations under the Agreement. The Contracting Authority must be given access by the Contractor to the locations and offices where the Work is prepared and performed, for purposes of an inspection.


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(b) At the Contracting Authority’s request, the Contractor must, within the shortest possible time, provide the former with all the information that the Contracting Authority is reasonably deemed to require to perform the inspection.

(c) In performing an inspection, the Contracting Authority will endeavour to impede the performance of Work as little as possible.

(d) The Contracting Authority must make information about the results of the inspection available to the Contractor within a reasonable period.

(e) The Contracting Authority is not required to make use of its right to undertake inspections.

8.4 Consequences of inspections and examination of documents

(a) If the Contracting Authority conducts an inspection, it is not required to establish any Contractor Defaults.

(b) An inspection does not imply any approval of Work performance. The Contractor remains responsible for fulfilling its obligations based on this Agreement.

(c) The fact that the Contracting Authority examines, tests, assesses or approves any document does not in any way mean that the Contracting Authority assumes any liability or responsibility for the content thereof or that the Contractor is discharged of any responsibility based on this Agreement.

8.5 Obligation to correct

(a) The Contractor must remedy any damage to the Infrastructure as soon as possible, but in any case no later than the Correction Deadline, or if no Correction Deadline applies with regard to the damage in question, within a reasonable period of time. In the latter case, the Contractor must provide the Contracting Authority with a correction plan specifying the reasonable period involved and requesting the Contracting Authority to approve the said period provided for in the correction plan. If the Contracting Authority cannot approve the said period provided for in the Correction Deadline, the Correction Deadline will be determined subject to Article 21 (Dispute Resolution).

(b) This obligation does not apply in regard to any damage that is the consequence of a Force Majeure Event.

9. SUPERVENING EVENTS

9.1 Notification of a Supervening Event

(a) If, as a consequence of a Force Majeure Event, the Contracting Authority cannot fulfil its obligations pursuant to this Agreement or can only fulfil them at higher costs, it must inform the Contractor as soon as possible of the following:

(i) the events or circumstances that constitute the Force Majeure Event;


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(ii) the obligations pursuant to this Agreement that inevitably cannot be fulfilled as a result or can only be fulfilled at higher costs; and

(iii) the expected duration of the inability to fulfil said obligations.

(b) If, due to a Supervening Event, the Contractor cannot fulfil its obligations pursuant to this Agreement or can only fulfil them at a Financial Disadvantage, it must inform the Contracting Authority as soon as possible of the following:

(i) the events or circumstances that constitute the Supervening Event;

(ii) the obligations pursuant to this Agreement that inevitably cannot be fulfilled as a result or can only be fulfilled at a Financial Disadvantage;

(iii) the expected duration of the inability to fulfil said obligations; and

(iv) in the event of a Delay Event or a Postponed Completion Event, the expected duration of the Critical Delay or Critical Delay in Completion caused by the Supervening Event, with particulars thereof.

In the event of a Critical Delay or a Critical Delay in Completion, the Contractor must inform the Contracting Authority within 10 Business Days after making the relevant notification whether, and at what additional costs, it will be able to make up for the Critical Delay or Critical Delay in Completion in part or in full.

(c) Within 20 Business Days of sending the notification as stated in Paragraph (b) (i) to (iv), the Contracting Authority must inform the Contractor of the following:

(i) whether it does or does not accept that a Supervening Event has occurred;

(ii) whether it does or does not, to the extent that this is applicable, accept that a Critical Delay or Critical Delay in Completion exists and whether it agrees with the duration thereof as specified by the Contractor; or

(iii) whether or not it requires more information in order to make a judgement.

If the Contracting Authority has not responded within 20 Business Days in one of the ways referred to in this Paragraph, it will be assumed that the Contracting Authority acknowledges the occurrence of a Supervening Event and agrees to the duration of the Critical Delay or Critical Delay in Completion specified by the Contractor.

(d) If the Contracting Authority requires further information as outlined in Paragraph(c) under (iii), the Contractor must provide the Contracting Authority with said information (to the extent that it is in its possession) as soon as possible but at the latest within 20 Business Days. Within 20 Business Days of receiving said information, the Contracting Authority must make a notification to the Contractor as referred to in Paragraph (c).

(e) If the Contracting Authority does not accept that a Supervening Event has occurred or does not agree with the duration of the Critical Delay or Critical Delay in Completion specified by the Contractor and the Contractor does not agree with this notification, the Contractor must notify the Contracting Authority of same within [10] Business Days of


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receiving the notification, in which case either Party will be at liberty to commence proceedings under Article 21 (Dispute Resolution). If the Contractor fails to inform the Contracting Authority within the period specified that it cannot accept the Contracting Authority’s notification, the Contractor shall be deemed to concur with said notification.

(f) The Financial Disadvantage must be agreed where applicable by the Parties in accordance with the provisions of Schedule 3 (Compensation for Supervening Events). In determining the Financial Disadvantage, the Contracting Authority has the right to have an investigation carried out by an independent expert. If the Parties have not been able to reach agreement within 3 months of sending the notification regarding the Financial Disadvantage as specified in Paragraph (b), the Financial Disadvantage must be determined subject to Article 21 (Dispute Resolution).

9.2 Delay Event

(a) If a Delay Event occurs, the Scheduled Availability Date will be extended by the addition of a period equal to the duration of the Critical Delay, insofar as the Contractor is not required to make up for this Critical Delay by applying Paragraph (b). The Contractor must adapt the Project Planning accordingly.

(b) If, in the event of a Delay Event, the Contractor can make up for all or part of the Critical Delay by incurring a Financial Disadvantage, the Contractor must do so at the request of the Contracting Authority.

(c) In the event of a Delay Event, the Contracting Authority must pay the Contractor compensation in accordance with Section 1 (Delay Event) of Schedule 3 (Compensation for Supervening Events). The previous sentence does not apply to a Delay Event referred to under (c) of the definition of a Delay Event.

9.3 Compensation Event

If a Compensation Event occurs, the Contracting Authority must indemnify the Contractor (or in the event of a Contracting Authority Change, the Contractor may have to pay the Contracting Authority) compensation in accordance with Section 2 (Compensation Event) of Schedule 3 (Compensation for Supervening Events).

9.4 Force Majeure Event

(a) If a Force Majeure Event occurs, the obligations that as a result thereof cannot be fulfilled or that can only be fulfilled at a Financial Disadvantage shall be suspended for the duration of such Force Majeure Event. If this Agreement is terminated pursuant to Article 10.6 (Termination upon a Force Majeure Event), these obligations shall be deemed to have expired.

(b) In the case of a Force Majeure Event:

(i) the Contractor must take all measures that are reasonably possible in order to mitigate the negative consequences of the Force Majeure Event, without being obliged to repair damage to the Infrastructure as a consequence of the Force Majeure Event;


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(ii) the Parties must consult about the possibilities of continuing this Agreement, in amended form or otherwise; and

(iii) the Contracting Authority must pay compensation to the Contractor in accordance with Section 3 (Force Majeure Event) of Schedule 3 (Compensation for Supervening Events).

(c) Without prejudice to the payment obligations that may arise subject to Paragraph (b) under (iii), the Parties shall not be liable towards each other for any damage as a consequence of a Force Majeure Event. Any damage that is incurred remains entirely for the account of the Party that has incurred the damage.

(d) In this Agreement, the Parties have set out an exhaustive regulation of the events and circumstances pursuant to which a default cannot be attributed to a Party (within the meaning of Article 6:75 of the Dutch Civil Code). A Party cannot therefore rely on this provision in any situation other than these circumstances.

9.5 Postponed Completion Event

(a) If a Postponed Completion Event occurs, the Scheduled Completion Date will be extended by a period equal to the duration of the Critical Delay in Completion, insofar as the Contractor is not obliged to make up for said delay under Paragraph (b). The Contractor must adapt the Project Planning accordingly.

(b) If, in the event of a Postponed Completion Event, the Contractor can make up for all or part of the Critical Delay in Completion by incurring a Financial Disadvantage, the Contractor is obliged to do so at the request of the Contracting Authority.

(c) In the event of a Postponed Completion Event, the Contracting Authority must pay the Contractor compensation in accordance with Section 4 (Postponed Completion Event) of Schedule 3 (Compensation for Supervening Events). The previous sentence does not apply to a Postponed Completion Event as referred to under Paragraph (c) of the definition of a Delay Event.

10. EARLY TERMINATION

10.1 Termination due to an Immediate Termination Event

(a) The Contracting Authority may terminate this Agreement on a date of its choosing if an Immediate Termination Event should arise.

(b) In the event of termination pursuant to Paragraph (a), the Contracting Authority must pay compensation to the Contractor or as the case may be, the Contractor must pay compensation to the Contracting Authority, in accordance with Section 1 (Termination due to an Immediate Termination Event or Termination due to Contractor Default) of Schedule 4 (Compensation for Early Termination).

10.2 Termination due to Contractor Default

(a) The Contracting Authority may terminate this Agreement on a date that it specifies if a Contractor Default exists and the Contractor does not remedy that situation within a


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reasonable period of time as specified in Article 11.1, Paragraphs (a) and (b), unless the Contractor Default, in view of the situation’s extraordinary nature or minimal significance, does not warrant termination with all of the associated consequences.

(b) [The Contracting Authority may not terminate this Agreement pursuant to Paragraph (a) on account of a Contractor Default that consists of a failure to adhere to the Availability Requirements, except if the implementation of Availability corrections in accordance with Schedule 2 (Payment Mechanism) results in the Net Availability Payment during a consecutive period of at least [3] Quarters being less than:

(i) [ ] % of the Gross Availability Payment for the Quarters beginning prior to the Availability Date; or

(ii) [ ] % of the Gross Availability Payment for the Quarters beginning after the Availability Date.

(c) The Contracting Authority may not terminate this Agreement pursuant to Paragraph (a) on account of any other Contractor Default than the Contractor Default referred to in Paragraph (b), unless the Contracting Authority has allocated penalty points for (the failure to correct) this Contractor Default more than [twice].]

(d) In the event of termination pursuant to Paragraph (a), the Contracting Authority must pay compensation to the Contractor or as the case may be, the Contractor must pay compensation to the Contracting Authority, in accordance with Section 1 (Termination due to an Immediate Termination Event or Termination due to Contractor Default) of Schedule 4 (Compensation for Early Termination).

10.3 Termination due to Contracting Authority Default

(a) The Contractor may terminate this Agreement on a date that it specifies if a situation of Contracting Authority Default exists and the Contracting Authority does not remedy that situation within a reasonable period of time as specified in Article 11.2, Paragraphs (a) and (b), unless the Contracting Authority Default, in view of the situation’s extraordinary nature or minimal significance, does not warrant termination with all of the associated consequences.

(b) In the event of termination pursuant to Paragraph (a), the Contracting Authority must pay compensation to the Contractor in accordance with Section 2 (Termination due to Contracting Authority Default or Discretionary Termination by the Contracting Authority) of Schedule 4 (Compensation for Early Termination).

10.4 Discretionary termination by Contracting Authority

(a) The Contracting Authority may terminate this Agreement at any time on a date that it specifies.

(b) If the fulfilment of this Agreement by the Contracting Authority or the contents of the Contracting Authority Schedules are or come to be in conflict with Regulations, and this


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conflict cannot be corrected by a Contracting Authority Change, the Contracting Authority must terminate this Agreement pursuant to Paragraph (a).

(c) In the event of termination pursuant to Paragraph (a), the Contracting Authority must pay compensation to the Contractor in accordance with Section 2 (Termination due to Contracting Authority Default or Discretionary Termination by the Contracting Authority) of Schedule 4 (Compensation for Early Termination).

10.5 Termination due to a prolonged Delay Event

(a) The Contractor may terminate this Agreement with immediate effect, where:

(i) in the case of a Delay Event as referred to in paragraph (d) of the definition thereof, the Critical Delay lasts longer or it is established that the Critical Delay will last longer than [ ] year(s); or

(ii) in the case of a Delay Event (not being a Compensation Event, a Force Majeure Event or a Delay Event as referred to in Paragraphs (c) or (d) of the definition thereof) the Critical Delay lasts longer or it is established that the Critical Delay will last longer than 2 years.

(b) The Contracting Authority may terminate this Agreement with immediate effect, where:

(i) in the case of a Delay Event as referred to in paragraph (d) of the definition thereof, the Critical Delay lasts longer or it is established that the Critical Delay will last longer than [ ] year(s); or

(ii) in the case of a Delay Event (not being a Force Majeure Event or a Delay Event as referred to in Paragraph (d) of the definition thereof), the Critical Delay lasts longer or it is established that the Critical Delay will last longer than 2 years.

(c) In the event of termination pursuant to Paragraphs (a) or (b), the Contracting Authority must pay compensation to the Contractor in accordance with Section 3 (Termination due to a Prolonged Delay Event) of Schedule 4 (Compensation for Early Termination). In the event of termination pursuant to Paragraph (a) (i) or Paragraph (b) (i), the compensation payable by the Contracting Authority to the Contractor as specified in the previous sentence shall not exceed [ ].

10.6 Termination due to a Force Majeure Event

(a) If a Force Majeure Event continues for [180] Business Days and the Parties have not reached an agreement concerning the continuation of this Agreement, or as much earlier as it has been established that the Agreement shall not be continued as a consequence of a Force Majeure Event, either of the Parties has the right to terminate this Agreement with immediate effect.

(b) In the event of termination pursuant to Paragraph (a), the Contracting Authority must pay compensation to the Contractor in accordance with Section 4 (Termination due to a Force Majeure Event) of Schedule 4 (Compensation for Early Termination).


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10.7 Direct Agreement

The rights pursuant to this Article can only be exercised subject to provisions of the Direct Agreement.

11. DEFAULT

11.1 Contractor Default

(a) If a Contractor Default occurs, the Contracting Authority may inform the Contractor of this and may set a reasonable deadline for the Contractor to correct the Contractor Default.

(b) If the Contractor believes that the deadline set by the Contracting Authority is not reasonably sufficient for correction of the Contractor Default, the Contractor may inform the Contracting Authority of this within 10 Business Days. The notification sent to the Contracting Authority must be accompanied by a proposal for corrective measures to be taken and a time schedule for the execution of the work. If the Contracting Authority does not reject the deadline for correction referred to in this proposal within 10 Business Days of receiving it, this deadline shall be considered to have been accepted by the Contracting Authority. If the Contracting Authority rejects the deadline referred to in the proposal and the Contractor does not agree to this rejection, the Contractor must commence proceedings concerning the dispute, pursuant to Article 21 (Dispute Resolution), within 10 Business Days of receiving notice of the rejection.

(c) If a Contractor Default occurs and the Contractor has failed to rectify this within the deadline that applies pursuant to Paragraphs (a) or (b) of this Article, the Contracting Authority shall be entitled to:

(i) file a claim for specific performance pursuant to Article 3:296 of the Dutch Civil Code; or

(ii) rectify the Contractor Default, or arrange to have it rectified;

(iii) take measures under Article 18.5 ((Traffic) Safety) to the extent that these measures need to be taken due to Contractor Default;

(iv) suspend its obligations that are associated with the relevant Contractor Default; or

(v) terminate the Agreement pursuant to Article 10.2.

(d) If, pursuant to Paragraph (c) under (ii), the Contracting Authority rectifies the Contractor Default or arranges to have it rectified or takes measures pursuant to Paragraph (c) under (iii), the Contractor must pay an amount to the Contracting Authority equal to the costs paid by the Contracting Authority to third parties (in case of the involvement of third parties) and the internal costs incurred by the Contracting Authority as per its standard internal direct setting off costs (in case of measures taken unilaterally) plus a surcharge of 10%.


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(e) In the event of a Contractor Default or an Immediate Termination Event, the Contracting Authority shall have no rights other than those expressly provided for in this Agreement. For example the Contracting Authority may not, in that case:

(i) suspend its obligations based on the Agreement other than pursuant to Paragraph (c) under (iv);

(ii) claim damage from the Contractor; or

(iii) demand dissolution of this Agreement.

11.2 Contracting Authority Default

(a) If a Contracting Authority Default occurs, the Contractor may inform the Contracting Authority of this and may set a reasonable deadline for the Contracting Authority to correct the Contracting Authority Default.

(b) If the Contracting Authority believes that the deadline set by the Contractor is not reasonably sufficient for the correction of the Contracting Authority Default, the Contracting Authority may inform the Contractor of this within 10 Business Days of receiving notification from the Contractor. The notification from the Contracting Authority must be accompanied by a proposal for the correction measures to be taken and a time schedule for the implementation of this work. If the Contractor does not reject the deadline for correction referred to in this proposal within 10 Business Days of receiving it, the deadline will be deemed to be accepted by the Contractor. If the Contractor rejects the deadline for correction referred to in the proposal and the Contracting Authority does not agree to this rejection, the Contracting Authority must institute proceedings pursuant to Article 21 (Dispute Resolution) within 10 Business Days of receiving the rejection.

(c) If a Contracting Authority Default occurs and the Contracting Authority has not corrected this default after expiry of the deadline that applies pursuant to Paragraphs (a) or (b) of this Article, the Contractor is entitled to exercise its right of termination specifically afforded to it under this Agreement.

(d) With regard to a Contracting Authority Default, the Contractor has no other rights than those specifically provided for in this Agreement. For example, in such a case, the Contractor shall not be at liberty to:

(i) suspend its obligations pursuant to this Agreement;

(ii) claim damage from the Contracting Authority; or

(iii) demand dissolution of this Agreement.

12. LIABILITY AND INDEMNITY

12.1 Contracting Authority Liability

(a) The Contracting Authority shall not be liable for any damage or damage sustained by the Contractor, unless specific provision is made for same in this Agreement.


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(b) For example, the Contracting Authority shall not be liable in respect of:

(i) damage or damage sustained by the Contractor due to the condition of the Existing Infrastructure, the RWS Infrastructure or the Third-Party Infrastructure or due to conditions pertaining in, at or adjacent to the Existing Infrastructure, RWS Infrastructure or Third-Party Infrastructure;

(ii) the content of the Contractor Schedules or any inconsistency between the Contractor Schedules and the other parts of the Agreement; or

(iii) the content of a document once said document has been examined, assessed or agreed to by the Contracting Authority (tacitly or otherwise).

(c) The Contracting Authority shall indemnify the Contractor in regard to any damage for which the Contracting Authority is liable in law (outside of this Agreement) vis-à-vis the Contractor, including any damage that the Contractor may incur as a consequence of an unlawful act on the part of the Contracting Authority.

12.2 Contracting Authority Indemnities

(a) Insofar as not due to a Contractor Default, the Contracting Authority must indemnify the Contractor in respect of:

(i) third-party claims for compensation in respect of damage incurred due to an unlawful act on the part of the Contracting Authority;

(ii) third-party claims pursuant to an (alleged) infringement of Intellectual or Industrial Property Rights during the performance of Work with respect to any part of the Existing Infrastructure;

(iii) third-party claims deriving from the Contractor’s compliance with the directions and instructions of the Contracting Authority pursuant Article 18.6 Paragraph (b) or Article 18.5 ((Traffic) Safety), to the extent that such directions or instructions do not necessarily result from a Contractor Default; and

(iv) all third-party claims arising in connection with the performance of Work that exceed the maximum amounts specified in Article 12.3 (Contractor Indemnities), Paragraph (c).

(b) The Contracting Authority shall indemnify the Contractor against third-party claims arising in connection with any damage incurred as a consequence of the unavailability or decreased availability of the Infrastructure to public traffic.

(c) The indemnity by the Contracting Authority does not apply to third-party claims that arise pursuant to an agreement that these third parties have concluded with the Contractor, to the extent that the Contractor would not be liable for this if the agreement did not exist.


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12.3 Contractor Indemnities

(a) Insofar as not due to a Contracting Authority Default, the Contractor must indemnify the Contracting Authority in respect of:

(i) third-party claims for compensation in respect of damage incurred by an unlawful act on the part of the Contractor;

(ii) third-party claims pursuant to an (alleged) infringement of intellectual or industrial property rights while performing the Work (except insofar as such infringement is prescribed by a Contracting Authority Schedule or involves an (alleged) infringement as specified in Article 12.2 (Contracting Authority Indemnities), Paragraph (a) under (ii));

(iii) third-party claims relating to a Contractor Default with the exception of claims by third parties arising in connection with damage sustained due to unavailability or reduced availability of the Infrastructure to public traffic;

(iv) all negative consequences of the failure of the Contracting Authority or Contractor to fulfil Regulations applicable to working conditions and occupational health and safety with respect to the performance of Work (except to the extent that non-fulfilment is the consequence of an action or failure to act on the part of the Contracting Authority); and

(v) claims by authorities in charge of cables or pipelines in connection with the performance of the Work.

(b) The indemnity by the Contractor does not apply to third-party claims pursuant to an agreement that these third parties have concluded with the Contracting Authority, to the extent that the Contracting Authority would not be liable in such instances if the agreement did not exist.

(c) The liability of the Contractor vis-à-vis the Contracting Authority pursuant to this Article is limited to the sum of:

(i) € [maximum] per claim (indexed in accordance with the preliminary figures for total expenses in all categories of the Consumer Price Index as published by Statistics Netherlands) during the Development Period;

(ii) € [maximum] per claim (indexed in accordance with the preliminary figures for total expenses in all categories of the Consumer Price Index as published by Statistics Netherlands) during the Availability Period;

(iii) € [maximum] in total (indexed in accordance with the preliminary figures for total expenses in all categories of the Consumer Price Index as published by Statistics Netherlands) during the Development and Availability Periods together.


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13. CHANGES

13.1 Contracting Authority Change

(a) The Contracting Authority may propose to amend Schedule 2 (Payment Mechanism), Schedule 8 (Management Plan) or Schedule 9 (Programme of Requirements), or the definitions for “Scheduled Availability Date” or “Expiry Date” (a Contracting Authority Change).

(b) If:

(i) a relevant Change in Law necessitates an amendment to this Agreement; or

(ii) the wording of the Transport Infrastructure (Planning Procedures) Decree [Road Improvement Decree] once it becomes irrevocable differs from the wording of the Transport Infrastructure (Planning Procedures) Decree [Road Improvement Decree] as at two weeks prior to [date of Definitive Registration] and this necessitates a change in this Agreement; or

(iii) this Agreement (excepting the Contractor Schedules) mandates activity that contravenes Regulations or infringes on the intellectual or industrial property rights of a third party and such contravention or infringement can be corrected by a Change in the Agreement;

the Parties must effect the amendment as a Contracting Authority Change. A Change as referred to in this Paragraph (b) may concern any provision in this Agreement (including Contractor Schedules).

(c) A Contracting Authority Change may not result in:

(i) the Work being substantially changed with regard to the original purpose of the Agreement; or

(ii) the Contractor having to act contrary to Regulations in performing the Work.

(d) A Contracting Authority Change is a Compensation Event.

(e) If the Contractor can demonstrate that a Contracting Authority Change will adversely affect the risk profile of the Work borne by the Contractor or the Lenders, a guarantee must then be provided that the Contracting Authority will bear or compensate any additional risks.

13.2 Contractor Change

(a) The Contractor may propose a change to Schedule 8 (Management Plan) or to the Programme of Requirements (a Contractor Change).

(b) If the Contractor Schedules demand an action that contravenes Regulations (other than as a consequence of a Relevant Change in Law) or infringes on third-party intellectual or industrial property rights and such contravention or infringement can be corrected by


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a Change in the Agreement, the Parties must effect such change as a Contractor Change.

(c) A Contractor Change may not result in:

I. The Work being substantially changed with regard to the original purpose of the Agreement; or

II. the Contracting Authority having to act contrary to Regulations.

(d) Unless the Parties have agreed otherwise, the consequences of a Contractor Change are for the account of the Contractor.

13.3 Procedures involving and resulting from Changes

The procedures to be observed in regard to a proposed Change and the manner in which the (financial) consequences of a Change shall be determined are set out in Schedule 5 (Changes).

13.4 Other Changes

The Parties may only make other Changes to this Agreement by way of a document prepared and signed by Parties for that purpose.

14. INSURANCE

14.1 Insurance benefits for material damage

(a) The provisions of Article 14 Paragraphs (b) and (c) apply to the insurance taken out or arranged by the Contractor with regard to material damage to the Infrastructure.

(b) The Contractor must ensure that payments by the insurer pursuant to any insurance as referred to in Article 14.1 Paragraph (a) shall only take place in accordance with Article 14 of the Direct Agreement.

(c) No later than the commencement date of insurance as specified in Paragraph (a), the Contractor must demonstrate that the provisions of Paragraph (b) have been met, by handing over the entire policy conditions of the insurance to the Contracting Authority.

14.2 Policy conditions during the Availability Period

(a) No earlier than [ ] but no later than 25 Business Days before the Scheduled Availability Date, the Contractor must provide the Contracting Authority with the entire policy conditions of the insurance policies purchased and referred to in Schedule 12 (Insurance), including a specification of the level of the premiums.

(b) If any risk for which the Contractor should seek coverage pursuant to Schedule 12 (Insurance) has become Uninsurable on the date that the Contractor has furnished the policy conditions in accordance with Paragraph (a), the provisions of Article14.3 Paragraphs (b) and (d) shall apply by analogy.


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(c) If an Extraordinary Premium Increase takes place at the time that the Contractor has furnished the policy conditions in accordance with Paragraph (a), the provisions of Article 14.3 Paragraphs (a) and (c) shall apply by analogy. If an Extraordinary Premium Decrease has taken place at that time, the provisions of Article 14.4 shall apply by analogy.

(d) The indicative conditions referred to in Schedule 12 (Insurance) shall, within 20 Business Days of the Contractor having furnished the policy conditions in accordance with Paragraph (a), be replaced by said policy conditions. This change to the Agreement shall be implemented as a change as defined in Article 13.4.

14.3 Extraordinary Premium Increase and Uninsurable Risk

(a) The Contractor must notify the Contracting Authority within 5 Business Days of an Extraordinary Premium Increase that occurs during the Availability Period. In the event of such Extraordinary Premium Increase, the Contracting Authority must choose between the following two options:

(i) The Contracting Authority shall regard the Extraordinary Premium Increase as a Compensation Event, for which the Contractor, notwithstanding the provisions of Schedule 3 (Compensation for Supervening Events), Part 2 (Compensation Event), will be paid 85% of the Financial Disadvantage of the Extraordinary Premium Increase. In such instances, the Contractor shall continue to bear the risks against which it has purchased insurance coverage with respect to which there has been an Extraordinary Premium Increase. For the avoidance of doubt, the Parties hereby establish that the Financial Disadvantage of the Extraordinary Premium Increase applies only to the part of the total premium increase that exceeds 30%; or

(ii) the Contracting Authority classes one or more risks which give rise to an Extraordinary Premium Increase as an Uninsurable risk, whereupon the provisions of Paragraph (b) shall apply (unless the occurrence of the risk renders the Contractor liable to the Contracting Authority) so that an Extraordinary Premium Increase no longer arises.

(b) Where a risk for which the Contractor has taken out insurance according to an insurance policy referred to in Schedule 12 (Insurance) becomes an Uninsurable risk during the Availability Period, the Contractor must inform the Contracting Authority thereof within 5 Business Days. In this event, the Parties must consult to determine how the Uninsurable risk should be managed. If the Parties fail to reach agreement within 10 Business Days of notification by the Contractor regarding the manner in which the Uninsurable risk should be managed, the Contracting Authority shall proceed as follows:

(i) If the Uninsurable risk is a third-party liability, it shall choose between the following two options:

(A) The Contracting Authority shall allow this Agreement to continue, whereupon Paragraph (b) (ii) of this Article shall apply by analogy to the said risk; or


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(B) The Contracting Authority shall terminate the Agreement and compensate the Contractor in accordance with Article 10.6 (Termination upon a Force Majeure Event);

(ii) If the Uninsurability involves another risk, it shall allow this Agreement to continue and, if this risk arises, it shall choose between the two following options:

(A) The Contracting Authority shall in accordance with the Direct Agreement credit the insurance account on behalf of the Contractor with an amount equal to the insurance payment that would have been paid if the risk had not become Uninsurable; or

(B) The Contracting Authority shall terminate this Agreement and pay the Contractor the amount referred to in Article 10.6 (Termination upon a Force Majeure Event) plus the total amounts paid by the Contractor pursuant to Paragraph (c) and, in the event of a third-party liability risk, pay the relevant third party a sum that is equal to the insurance payment that would have been paid if the risk had not become Uninsurable.

If the Contracting Authority terminates this Agreement pursuant to Article 14.3 Paragraph (b) under (i) (B) or under (ii) (B), it will not be entitled to continue the Work itself or arrange for the Work to be continued in the same manner.

(c) Commencing on the date that Paragraph (b) subparagraph (i) under (A) or Paragraph (b) subparagraph (ii) applies, the Contractor shall pay the Contracting Authority compensation equal to the premium that the Contractor paid for the coverage of the Uninsurable risk immediately prior to the Uninsurability of that risk.

(d) Commencing at the time of the notification as specified in Paragraph (a), the Contractor must demonstrate once a year that an Extraordinary Premium Increase necessarily still exists. If an Extraordinary Premium Increase no longer exists, the Contractor must inform the Contracting Authority of this within 5 Business Days. As of the date on which the Extraordinary Premium Increase has terminated, the Parties shall terminate any arrangement that has been established according to Paragraph (a) under (i). If the arrangement has been established in accordance with Paragraph (a) under (ii), the Contractor must, along with its notification, specify the shortest possible period within which the insurance for the risk can actually be effected. After the conclusion of this period, the risk will no longer be regarded as Uninsurable and the arrangement established in accordance with Paragraph (a) under (ii) will be considered to have terminated. Termination of an arrangement established under Paragraph (a) does not have retroactive effect.

(e) Commencing at the time of notification as specified in Paragraph (b), the Contractor must make enquiries once every Quarter to determine whether the relevant risk can once again be insured on commercially acceptable terms. If this is the case, the Contractor must inform the Contracting Authority of this fact within 5 Business Days. At that time, the Contractor must specify the shortest possible period within which the insurance for the risk can actually be effected. After the conclusion of this period, the


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risk will no longer be considered to be Uninsurable and the arrangement that was established in accordance with Paragraph (b) under (ii) will be considered to have terminated. If the risk can be insured again on commercially acceptable terms but an Extraordinary Premium Increase occurs with respect to that risk, then Paragraph (a) shall apply.

(f) The provision of this Article 14.3 apply by analogy to insurance agreements not referred to in Schedule 12 (Insurance) but which have been arranged by the Contractor under Article 13.4 to replace the insurance agreements referred to in Schedule 12 (Insurance).

14.4 Extraordinary Premium Decrease

(a) The Contractor must inform the Contracting Authority of any Extraordinary Premium Decrease that occurs during the Availability Period in regard to an insurance agreement referred to in Schedule 12 (Insurance). The Contractor is liable to the Contracting Authority for compensation as from the date of the Extraordinary Premium Decrease. This compensation is equal to 85% of the difference between the premium that the Contractor paid immediately prior to the Extraordinary Premium Decrease and the premium that the Contractor paid after the Extraordinary Premium Decrease occurred.

(b) If the Contractor demonstrates that an Extraordinary Premium Decrease no longer exists, the Contractor is no longer obliged to pay the Contracting Authority the compensation outlined in Paragraph(a).

(c) The provisions of this Article 14.4 apply by analogy to insurance agreements not referred to in Schedule 12 (Insurance) but which have been concluded by the Contractor under Article 13.4 to replace the insurance agreements referred to in Schedule 12 (Insurance).

15. SHAREHOLDERS

(a) The transfer or issuing of a share in the capital of the Contractor leading to a change of control over Contractor’s company may take place only with the consent of the Contracting Authority or in accordance with the Direct Agreement.

(b) In deviation from Paragraph (a), the Contracting Authority’s consent is not required in case of the transfer of a share to a legal entity that is part of the same group as the transferring shareholder, within the meaning of Article 2:24b of the Dutch Civil Code.

(c) Where this leads to the transfer of Control of the entity in question, the Contracting Authority’s consent shall also be required in regard to the transfer of a share in the capital of a (legal) entity which:

(i) has direct or indirect control over the company of the Contractor; or

(ii) is a sole custodian or manager, a sole managing partner or a sole administrator of a fund that has (direct or indirect) Control over the Contractor’s company.

(d) In deviation from Paragraph (c), the Contracting Authority’s consent is not required in case of the transfer of a share:


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(i) to a legal entity that is part of the same group as the transferring legal entity, as referred to in Article 2:24b of the Dutch Civil Code; or

(ii) through trading on any stock exchange established in the European Union or the United States of America.

(e) The Contracting Authority must provide the consent referred to in Paragraphs (a) and (c) within 20 Business Days of the Contractor submitting a completed BIBOB questionnaire (or an equivalent document based on a replacement regulation) which does not point to any Grounds for Exclusion in regard to the purchaser, unless the Contracting Authority demonstrates within this period that Grounds for Refusal apply with respect to the purchaser (or a (legal) entity of which the purchaser is either a subsidiary within the meaning of Article 2:24a of the Dutch Civil Code or a member of the same group as the purchaser within the meaning of Article 2:24b of the Dutch Civil Code).

(f) If the Contracting Authority provides the consent referred to in Paragraphs (a) or (c), no Grounds for Exclusion will be deemed to exist with regard to the buyer.

16. SUBCONTRACTORS

16.1 Important Subcontractors

(a) The Contractor must ensure that an Important Subcontractor listed in the following table remains actively involved in the execution of the Work during the period referred to herein, unless compelling circumstances prevent it from doing so.

(b) Important Subcontractors:

Important Subcontractor Period

[ ] [ ]

[ ] [ ]

16.2 New Subcontractors

The Contractor and all of its Subcontractors which have been approved in advance by the Contracting Authority in accordance with this paragraph may only enter into an agreement with a new Subcontractor to perform a part of the Work subject to the Contracting Authority’s approval. This approval must be granted within 20 Business Days after the Contractor has complied with the following:

(i) The Contractor must complete and furnish a new Agreement duly signed by the Subcontractor and the Contractor as provided for in Article 17.3 (Agreements with Subcontractors); and

(ii) if the value of the contract is above the threshold value referred to in Article 7 Paragraph (a) (tender threshold for services to the central government) of the


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general procurement directive (Directive 2004/18/EC): the Contractor must complete and furnish a BIBOB questionnaire (or an equivalent document based on a replacement regulation) which does not point to any Grounds for Exclusion with regard to the Subcontractor,

unless the Contracting Authority demonstrates within this period that there are Grounds for Refusal in regard to the new Subcontractor. If the Contracting Authority grants its consent, no Grounds for Exclusion will be deemed to apply to the new Subcontractor.

17. INTELLECTUAL PROPERTY

17.1 Licence to Contracting Authority

(a) The Contractor hereby grants the Contracting Authority an unconditional, irrevocable, transferable, royalty-free licence that is not limited in time and that includes the right to grant sublicences, for the Use of all its Intellectual Property Rights (including the rights for which Subcontractors have granted the Contractor one or more licences under the agreements referred to in Article 17.3 (Agreements with Subcontractors)), which have arisen or shall arise in connection with the Work and documents, including any work embodied therein or stemming therefrom or otherwise arising pursuant to this Agreement, all of the above subject to Article 17.5 (Repeated use).

(b) To the extent that execution of this Agreement makes it necessary to obtain licences for Intellectual Property Rights belonging to third parties (such as for the reuse of old designs or for the use of standard software), the Contractor shall endeavour to acquire the necessary licences on behalf of and in the name of the Contracting Authority. Insofar as it is not possible to acquire these licences in the name of the Contracting Authority, the Contractor shall consult with the Contracting Authority. In any event, the authorisation of the relevant third parties at least must be such that the Contracting Authority is not bound to the Contractor for the future operation and maintenance of the Work, being in a position to unilaterally proceed with the operation and maintenance, whether by outsourcing this to a third party or otherwise.

17.2 Establishing a pledge

(a) As a guarantee for the fulfilment of its obligations pursuant to this Article 17 (Intellectual Property), the Contractor shall on behalf of the Contracting Authority establish a first pledge on the Intellectual Property Rights in regard to the design of the Infrastructure and to the Performance Measurement System pertaining to the Contractor on the Contract Date.

(b) As a guarantee for the fulfilment of its obligations pursuant to this Article 17 (Intellectual Property), the Contractor must also establish a first pledge on behalf of the Contracting Authority in regard to the Intellectual Property Rights concerning the design of the Infrastructure and the Performance Measurement System created after the Contract Date and pertaining to the Contractor. This first pledge must be established when so desired by the Contracting Authority, and in any case:

(i) once every 6 months throughout the Development Period; and


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(ii) during the Availability Period in the event of a revision of the design of the Infrastructure or of the Performance Measurement System.

17.3 Agreements with Subcontractors

The Contractor shall conclude a written agreement with the Important Subcontractors and with all other Subcontractors involved in executing the Work, in accordance with the model provided in Schedule 12 (Agreement governing Intellectual Property Rights).

17.4 Revision and destruction

The Contractor may not:

(i) in regard to the documents, the work embodied therein and/or any design or work stemming therefrom, rely on Article 25 Paragraph 1 subparagraphs (a), (b) and (c) of the Netherlands Copyright Act 1912, subject to the provisions of Article 25 Paragraph 3 of the Netherlands Copyright Act 1912;

(ii) resist any other entire or partial revision or destruction of the documents, work embodied therein and/or any design or work stemming therefrom.

17.5 Repeated use

(a) Subject to Article 17.6 (Use after Early Termination), the Contracting Authority may only on one occasion use and cause to be used the design that is embodied in the documents or that stems therefrom, in whole or in part (“reproduction” in the sense of Article 13 of the Netherlands Copyright Act 1912). Any further reproduction of the design or parts thereof by the Contracting Authority requires authorisation from the Contractor. The Contractor is required to grant this consent but is entitled to attach reasonable conditions thereto, including the payment of reasonable compensation.

(b) Repeated use includes the right of the Contracting Authority to engage third parties for this form of use. The Contractor hereby relinquishes any right to deny the form of use referred to in this provision, and in particular relinquishes the right to rely in this context on any Intellectual Property Rights whatsoever in order to hinder or limit such use.

17.6 Use after early termination

The Contracting Authority may use the design whether embodied in the documents or stemming therefrom without recourse to the Contractor or its Subcontractors if this Agreement is terminated prematurely pursuant to Article 10.1 (Termination due to an Immediate Termination Event), Article 10.2 (Termination due to Contractor Default), or Article 10.5 (Termination due to a Prolonged Delay Event) or Article 10.6 (Termination due to a Force Majeure Event).

17.7 Provision of Licence to Contractor for Existing Infrastructure

The Contracting Authority hereby grants the Contractor an unconditional, irrevocable, transferable and royalty-free licence for the term of this Agreement, including the right to grant


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sublicenses allowing third parties to use the intellectual property rights in regard to the Existing Infrastructure and the Work embodied therein.

18. MISCELLANEOUS PROVISIONS

18.1 Regulations

The Contractor must ensure that the Work is performed according to Regulations.

18.2 Working conditions and occupational health and safety

(a) The Contractor must take the appropriate measures to guarantee the safety of Agents and other persons authorised by the Contractor or the Contracting Authority to use the RWS Area and Third-Party Area (with the exception of the public road or waterway, bus lane or rail infrastructure).

(b) The Contractor must ensure compliance with the Contracting Authority’s existing statutory obligations concerning working conditions and occupational health and safety with regard to the Work.

18.3 Permits

(a) The Contractor must acquire all Permits necessary for the Work with the exception of Permits pertaining to the Flora and Fauna Act and the Nature Conservation Act, which will be obtained by the Contracting Authority in its own name.

(b) The Contractor shall ensure that all of the Permits it must obtain under Paragraph (a) are secured in its name [with the exception of Permits pertaining to the Forestry Act, which must be issued in the name of the Contracting Authority].

(c) For purposes of the Contractor’s Work, the Contracting Authority shall endeavour to have Permits that are issued in its name in relation to the Existing Infrastructure converted into the Contractor’s name, insofar as may be necessary. The Contractor must provide its full cooperation in this regard.

(d) The Contractor must ensure that all of the Permits issued in its name with regard to the Third-Party Infrastructure object referred to in Article 5.5 Paragraph (a) shall be issued in the name of the authority in charge of the relevant object on the date specified in Article 5.5 Paragraph (a).

(e) The Contractor hereby grants irrevocable power of attorney to the Contracting Authority to have Permits issued in the Contractor’s name placed in the name of a substitute contractor in the event of any restructuring as referred to in Article 8 of the Direct Agreement or in the name of the Step-in Entity if a replacement DBFM agreement comes into effect, as outlined in the Direct Agreement.

(f) The Contractor hereby grants the Contracting Authority irrevocable power of attorney to transfer any Permits originally issued in the name of the Contractor to the Contracting Authority on the Expiry Date or on the date of earlier termination of this Agreement.


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18.4 Fee levied on the extraction of sand, gravel and soil

The Contractor is exempted from paying the requisite fee levied in relation to any sand, gravel and soil extracted by the Contractor on state property, should the Contractor decide to use same for purposes of executing the Work.

18.5 (Traffic) safety

Where it is deemed necessary by the authority in charge of the Infrastructure that immediate measures need to be taken:

(a) in the event of a circumstance or event arising which endangers the safety of the Infrastructure; or

(b) in the interest of traffic safety at the Infrastructure,

the Contractor shall be obliged to take these measures without delay. The authority in charge of the Infrastructure may opt to take these measures or arrange for this to be done without recourse to the Contractor.

18.6 Incident Management, winter maintenance, traffic accidents and non-standard transport

(a) The Incident Management and the winter maintenance at the Infrastructure shall be executed by or on behalf of the authority in charge of the Infrastructure.

(b) In the event of traffic accidents occurring or non-standard transport being required at the Infrastructure, the Contractor shall take the appropriate traffic measures as instructed by the authority in charge of the Infrastructure (within the time reasonably specified by same) .

18.7 [Cost of mains services]

[Throughout de period beginning on the Commencement Date and ending on the Availability Date, the Contracting Authority shall bear the energy costs associated with powering the equipment in relation to traffic, bridges and tunnels.]

19. INDEXATION

19.1 Price level

All euro amounts in this Agreement are based on the [fill in: date] price level.

19.2 Non-indexed amounts

The following amounts are not indexed:

(a) the Lump-Sum Payment;

(b) the Financial Close Guarantee; and


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(c) the Performance Bond.

19.3 Indexing the Gross Availability Payment

The Gross Availability Payment (GAP) is indexed annually on 1 January according to the indexation formula included in Section 1.2 (Indexing the Gross Availability Payment) of Schedule 2 (Payment Mechanism).

19.4 Indexation of other amounts

In all cases other than those provided for in Articles 19.2 and 19.3, all euro amounts in this Agreement are indexed annually on 1 January according to the preliminary figures for total expenditures in all categories of the Consumer Price Index, whereby the price index as of 1 January is regarded as corresponding to the aforesaid Consumer Price Index for January of the previous year.

20. EXCESS PROFITS

20.1 Weighted average return on equity

Within 3 months after (i) the Hand Back Certificate has been issued and (ii) it has been determined (whether or not in accordance with Article 21 (Dispute Resolution)) which liabilities exist on the part of the Contractor toward the Contracting Authority in connection with the Work, except for the payment obligations arising under Article 20.1, the Contractor must furnish the Contracting Authority with an Updated Financial Model which must specify the weighted average return after tax on the share capital invested by the Shareholders and the Shareholders' loans (GR%).

20.2 Sharing of excess profits

If the return (GR%) referred to in Article 20.1 is greater than [ ]% (X%), the Contractor must pay the Contracting Authority an amount that will reduce the ultimate average return to X% plus [50%] of the difference between GR% and X%, subject to Paragraph (c). In calculating this amount, the Financial Benefit of Refinancing that the Contractor does not have to pay to the Contracting Authority under Article 3.4 Paragraph (d) shall be disregarded.

20.3 Maximization

The amount to be paid pursuant to Article 20.2 shall not be greater than the net present value (as at the Expiry Date) paid by the Contracting Authority to the Contractor, pursuant to Article 9 (Supervening Events) during the term of this Agreement.

20.4 Weighted Average Cost of Capital

If application of this Agreement requires determination of the net present value of amounts, this calculation must take place based on the Weighted Average Cost of Capital.


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21. DISPUTE RESOLUTION

21.1 Disputes

(a) In the event of a dispute arising between the Parties in connection with or arising from this Agreement, the Parties shall agree to discuss the issues.

(b) If the dispute cannot be resolved by consultation within [ ], the dispute will be submitted in the following instances and at the request of either Party to a Committee of Experts in accordance with the provisions of Article 21.2 (Expert Determination):

(i) in a dispute about amounts having regard to conformity with market standards;

(ii) [ ];

(iii) in instances where it is expressly provided for in this Agreement that certain disputes will be resolved by means of a binding opinion;

(iv) if the Parties (as a result of the consultation referred to in Paragraph (a)) jointly decide to resolve the dispute by means of a binding opinion.

(c) In all instances other than those referred to in Paragraph (b), the dispute will be settled at the request of either Party in the manner outlined in Article 21.3 (Jurisdiction).

(d) Notwithstanding the provisions of the forgoing paragraphs, the Parties may in cases of urgency always refer the dispute to the court in interlocutory proceedings in The Hague.

21.2 Expert Determination

(a) The Committee of Experts consists of one member, unless the Parties have determined when formulating the agreement pursuant to which the dispute is submitted for a binding opinion that the Committee of Experts will comprise three members.

(b) If the Committee of Experts consists of one member, this expert will be jointly appointed by the Parties. If the Parties fail to reach an agreement on the appointment of the expert within 20 Business Days subsequent to the deadline referred to in Article 21.1 (b), the expert shall at the request of either Party be appointed by the President of the District Court in The Hague.

(c) If the Committee of Experts comprises three members, each Party will appoint one member to this Committee. The members of the Committee of Experts so appointed will jointly name a third member of the Committee, who shall function as the chairperson of said Committee of Experts.

(d) Articles 1025 through 1035 of the Dutch Code of Civil Procedure apply by analogy to the binding opinion, appointment and functioning of the Committee of Experts.

(e) The terms under which members are appointed to the Committee of Experts will be set by the Parties in consultation with the intended members of said Committee of Experts.


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(f) The costs of the Committee of Experts together with the costs of legal assistance will be paid by the unsuccessful Party, unless the Committee of Experts determines otherwise.

(g) Unless the Parties agree otherwise, the procedure shall be as follows:

(i) Either Party shall send a request for a binding opinion to the member(s) of the Committee of Experts within four weeks of the appointment of this Committee, and send a copy thereof to the other Party. The request consists of at least a description of the dispute, the position of the Party making a submission and the relevant appendices;

(ii) The other Party must respond to the request within four weeks;

(iii) Depending on the requirements of the Committee of Experts, the Parties will be given the opportunity to further explain their position to the Committee in writing and/or subsequently in person and may support their positions with supplementary documentation. The Committee of Experts however shall proceed expeditiously in arriving at its Expert Determination; and

(iv) The Committee of Experts will issue the Parties with a draft of its determination within four weeks of the last permitted act of procedure by the Parties. The Parties may respond in writing within two weeks of the issuing of this draft. The Committee of Experts will then formulate and issue its final determination to the Parties within a period of two weeks.

(h) The Contractor may implead a Subcontractor as a third party.

(i) The final determination of the Committee of Experts is considered to be a binding opinion (a decision made by a third party as defined in Article 7:900 Paragraph 2 of the Dutch Civil Code).

21.3 Jurisdiction

Except in the instances referred to in Article 21.1 Paragraph (b), any dispute arising in connection with this Agreement or any ensuing agreements will be settled by the court in The Hague.

21.4 Jurisdiction in case of third-party proceedings

(a) If the Contracting Authority impleads the Contractor in proceedings instituted by a third party against the Contracting Authority before the civil court, the Contractor shall not be at liberty to invoke a binding opinion that has been agreed between the Parties.

(b) If the Contractor impleads the Contracting Authority in proceedings instituted by a third party against the Contractor before the civil court, the Contracting Authority shall not be at liberty to invoke a binding opinion that has been agreed between the Parties.


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22. COMMUNICATION

22.1 Language

All communications between the Parties must occur in Dutch [except communications relating to [ ], which may also take place in English].

22.2 Communication

The Contractor is obliged to conduct communications with the Contracting Authority and third parties in accordance with the Management Specifications.

22.3 Notifications and approvals

(a) All documents that must be handed over to the Contracting Authority or which the Contracting Authority has a right to inspect pursuant to this Agreement must be written in Dutch. Notwithstanding this, the Finance Agreements, the Junior Debt Agreements, the Original Financial Model and the Updated Financial Model may be drawn up in English.

(b) All notifications, announcements, requests, and other communications in connection with this Agreement must be submitted in writing to the Contracting Authority at [correspondence address] and to the Contractor at [correspondence address]. It is the responsibility of the sender to demonstrate that the other Party has received the communication.

(c) All approvals and consent by a Party that are required pursuant to this Agreement must be received in advance and in writing.

22.4 Representatives

(a) Either of the Parties must appoint one or more persons as its representative(s) in issues involving the performance of the Agreement by notifying the other Party of the appointment.

(b) In signing this Agreement, the Contracting Authority appoints [name of authorized representative] as its representative in the meaning of Paragraph (a).

(c) In signing this Agreement, the Contractor appoints [name of authorized representative] as its representative in the meaning of Paragraph (a).

(d) A Party may replace the representative(s) appointed by it or appoint one or more additional representative(s) by notifying the other Party of the replacement / appointment.

(e) A Party may specify in any such notification that the authority to represent it only applies to two representatives appointed by it and who act jointly.

(f) A Party may specify in the notification that in making proposals to amend this Agreement or agreeing to any other such changes, it may only be represented by representatives appointed specifically for such eventualities.


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22.5 Representations

(a) The Contracting Authority declares upon signature of this Agreement that the Contracting Authority is entitled to enter into this Agreement and its obligations based on this Agreement are binding and legal.

(b) The Contractor declares by signing this Agreement that the Contractor is entitled to enter into this Agreement and its obligations based on this Agreement are binding and legal.

(c) On the Financial Close Date, the Contractor must declare that the Contractor has concluded the Finance Agreements and Junior Debt Agreements in accordance with drafts submitted to the Contracting Authority on the Contract Date or as revised vis-à-vis these drafts in a manner approved by the Contracting Authority.

(d) On the Financial Close Date, the Contractor must declare that it has provided no securities on the Contractor's rights under this Agreement vis-à-vis the Contracting Authority other than those stipulated in the Finance Agreements.

(e) On the Financial Close Date, the Contractor must declare that agreements have been concluded pursuant to Article 17.3 (Agreements with Subcontractors) with all of the Subcontractors (thus far identified) that have been or will be appointed by the Contractor during the performance of the Work. The Contractor must furthermore declare that these agreements have been validly signed by the respective parties and submitted to the Contracting Authority.

23. CONFIDENTIALITY

23.1 Confidentiality

(a) The Contracting Authority and Contractor agree not to divulge Confidential Information to anyone and will ensure that such information is treated in a confidential manner, except in the instances provided for in Article 23.2.

(b) The Contractor shall ensure that all Subcontractors and Agents comply with the provisions in Paragraph (a).

23.2 Exceptions

(a) A Party may disclose Confidential Information:

(i) to its Agents insofar as is necessary in exercising and/or performing the rights and obligations based on this Agreement;

(ii) to suppliers of equity or debt capital, or else to parties involved in the Contractor’s (syndicated) financing;

(iii) to the extent required by Regulations (other than the Dutch Government Information (Public Access) Act);

(iv) to the extent required by judicial decision.


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(b) The Contracting Authority may also disclose Confidential Information:

(i) to the extent required by the Dutch Government Information (Public Access) Act.

(ii) to the extent required for (the commissioning of) maintenance, renovation or improvement of the RWS Infrastructure after termination of this Agreement; or

(iii) to the extent required for the performance of agreements concluded between the Contracting Authority and third parties.

(c) In cases specified in Paragraph (a) under (iii) and Paragraph (b) under (i), the Parties must consult with each other before the Confidential Information is disclosed.

(d) In the case outlined in Paragraph (b) under (i), the Contracting Authority must at the Contractor's request and insofar as is possible, invoke the grounds for exception and the limitations provided for in Articles 10 and 11 of the Dutch Government Information (Public Access) Act.

24. FINAL STIPULATIONS

24.1 Applicable law

This Agreement is governed by the law of the Netherlands.

24.2 Exclusion

The provisions in Articles 7:400 and 7:413 of the Dutch Civil Code as well as Articles 7:750 through 7:769 of the Dutch Civil Code do not apply.

24.3 Transfer of rights

(a) Transfer by a Party of its rights based on this Agreement is only possible with consent of the other Party except in cases involving a transfer of rights based on a Finance Agreement, Direct Agreement or a security agreement based on a Finance Agreement or the Direct Agreement.

(b) The Contracting Authority can transfer its legal relationship with the Contractor based on this Agreement to a third party provided that the Contracting Authority guarantees the third party’s fulfilment of the obligations stemming from this Agreement. The Contractor grants its consent to such transfer in advance.

24.4 Waiver

(a) The Contractor may not invoke any rights of retention or retention of ownership and must ensure that its Subcontractors cannot invoke any such rights.

(b) As far as possible, the Parties waive their rights to invoke the nullity or voidability of this Agreement.


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24.5 Entire agreement

This Agreement contains all the arrangements made by the Parties up to and including the Contract Date concerning the object of this Agreement and replaces all previous agreements between the Parties on this subject.

24.6 Continuing obligations

Provisions from this Agreement that, due to their nature, are intended to extend beyond the termination of this Agreement shall remain in effect after the termination of this Agreement.

24.7 Contradiction

In the event of any contradiction between a Contractor Schedule and another part of this Agreement, the other part will prevail.

24.8 Unforeseen circumstances

With regard to the occurrence of unforeseen circumstances, the Parties agree that they have knowingly and willingly entered into this long-term Agreement and that the mechanisms included in this Agreement are already intended to overcome the consequences of any unforeseen circumstances that may arise.

24.9 No third-party clauses

Unless otherwise expressly provided for, no provision in this Agreement is intended as a third-party clause within the meaning of Article 6:253 of the Dutch Civil Code.

THE STATE OF THE NETHERLANDS [NAME OF CONTRACTOR] [Signature] [Signature] [Name of authorized representative] [Name of authorized representative]


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SCHEDULES

SCHEDULE 1 DEFINITIONS

Shareholder A holder of shares in the capital of the Contractor.

Commencement Certificate A written notice from the Contracting Authority to the Contractor confirming that the conditions for issuing the Commencement Certificate stated in the Certificate Plan have been met.

Commencement Date The date [occurring [ ] Business Days after the date] on which the Contracting Authority issues the Commencement Certificate. If a point in time on the Commencement Date is significant for a provision in this Agreement, then this point in time shall be set at 00.00 a.m. (midnight) (at the end of the Commencement Date), unless explicitly stipulated otherwise.

Closing A continuous closing or narrowing of a Traffic Lane (or of a part thereof lengthwise) which is not an Authorised Narrowing.

Bank Guarantee A bank guarantee that is issued by a credit institution having a rating of at least [ ] by Standard & Poor’s or [ ] by Moody’s and is recorded in the register referred to in Article 1:107 of the Netherlands Financial Supervision Act.

Basic Management Plan The plan provided for in Section 1 of Schedule 8, Part 1 (Basic Management Plan and Subplans governing the Tender).

Important Subcontractor A Subcontractor as referred to in Article 16.1 (Important Subcontractors) under Paragraph (b).

Availability Certificate A written notice from the Contracting Authority to the Contractor confirming that the conditions for issuing the Availability Certificate referred to in the Certificate Plan have been met.

Availability Correction See Section 2 (Availability Correction) of Schedule 2 (Payment Mechanism).

Availability Date The date on which the Contracting Authority issues the Availability Certificate. If a point in time on the


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Availability Date is significant for a provision in this Agreement, then this point in time shall be set at 00.00 a.m. (midnight) (at the end of the Availability Date), unless explicitly stipulated otherwise.

Availability Requirements (a) In the Development Period: the requirements outlined in Schedule 2, Annex 1, Table 2 (Availability Requirements during the Development Period); and

(b) in the Availability Period: the requirements outlined in Schedule 2, Annex 2, Table 2 (Availability Requirements during the Availability Period).

Availability Deduction See Section 2.2 (Availability Deduction) of Schedule 2 (Payment Mechanism).

Availability Value See Section 2.5 (Availability Value) of Schedule 2 (Payment Mechanism).

Existing Infrastructure The overall infrastructural objects located at the RWS Area and Third-Party Area as at the Contract Date and the grounds forming part of the said RWS Area and Third-Party Area as at the Contract Date. The Existing Infrastructure is also deemed to include the objects referred to in Schedule 9, Part 1, Section 2 (Existing Infrastructure).

Payment Period A quarter.

Confirmation of Financial Close See Article 3.2 (Financial Close) Paragraph (b) and Schedule 7 (Models), Part 4 (Confirmation of Financial Close).

Contracting Authority Schedules The schedules that form part of this Agreement, with the exception of the Contractor Schedules.

Contractor Schedules (a) Schedule 8 (Management Plan); and

(b) the Contractor’s Programme of Requirements.

Supervening Event A Force Majeure Event, a Delay Event, a Postponed Completion Event or a Compensation Event.

Penalty Points See Section 3.4 (Penalty Points) of Schedule 2 (Payment Mechanism).

Gross Availability Payment See Section 1.1 (Gross Availability Payment) of Schedule 2 (Payment Mechanism).

Extraordinary Premium Decrease A decrease of more than 30% of the total premiums


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that are due in respect of the insurance cover referred to in Schedule 12 (Insurance) in relation to the total indicative premiums for the said insurance as referred to in Schedule 13 (indexed according to the Consumer Price Index as published by Statistics Netherlands) which decrease is due to general circumstances in the international insurance market and not due to an act or omission on the Contractor’s part.

Extraordinary Premium Increase An increase of more than 30% of the total premiums that are due in respect of the insurance cover referred to in Schedule 12 (Insurance) in relation to the total indicative premiums for the said insurance as referred to in Schedule 13 (indexed according to the Consumer Price Index as published by Statistics Netherlands) which increase is due to general circumstances in the international insurance market and not due to an act or omission on the Contractor’s part.

Certificate Plan Schedule 9, Part 4 (Certificate Plan).

Committee of Experts See Article 21.2 (Expert Determination).

Contract Date The date on which this Agreement is signed. If a point in time on the Contract Date is significant for a provision in this Agreement, then this point in time shall be set at 00:00 a.m. (midnight) (at the end of the Contract Date), unless explicitly stipulated otherwise.

Part Completion Certificate A written notice from the Contracting Authority to the Contractor confirming that the conditions for issuing the Part Completion Certificate referred to in the Certificate Plan have been met.

Direct Agreement The agreement signed on the date of Financial Close between the Contracting Authority, the Security Agent, and the Contractor, which is attached as Schedule 6 (Direct Agreement).

Lump-Sum Payment The payment due from the Contracting Authority pursuant to Section 4.1 (Lump-Sum Payment) of Schedule 2 (Payment Mechanism).

Expiry Date The day falling on

(a) [ ] year after the Availability Date [, or

(b) if the Availability Date falls on a date


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before the Scheduled Availability Date , [ ] year(s) after the Availability Date:

(i) plus the number of Calendar Days occurring between the Availability Date and the Scheduled Availability Date; and

(ii) less the number of Calendar Days by which the Scheduled Availability Date has been postponed due to a circumstance as referred to in subsection (c) of the definition for Delay Event insofar as this number of Calendar Days is less than or equal to the number of Calendar Days referred to in (b) (i);

whereby the maximum number of Calendar Days added as a result to the period of [ year] will amount to 180 Calendar Days.

If a point in time on the Expiry Date is significant for a provision in this Agreement, then this point in time shall be set at 00:00 a.m. (midnight) (at the end of the Expiry Date), unless explicitly stipulated otherwise.

Availability Period The period commencing on the day after the Availability Date and ending on the Expiry Date.

Financial Close The date on which the suspensive conditions included in the Finance Agreements are fulfilled or waived.

Financial Close Guarantee See Article 3.2 (Financial Close Guarantee).

Financial Model The Original Financial Model or the most recent Updated Financial Model.

Financial Disadvantage (a) An increase in the Contractor’s expenses or a

decrease in its income, insofar as in line with market conditions and demonstrable by the Contractor.

(b) A Financial Disadvantage shall not include an Availability Deduction or a Performance Deduction; and

(c) a negative Financial Disadvantage is set at zero except where a Contracting Authority Change has occurred.

Lender Every natural person or legal entity with which a Finance Agreement is concluded.

Finance Agreement (a) Every agreement, bond, or other arrangement

in terms whereof credit (including guarantee facilities and letters of credit) is made available to the Contractor for the purpose of financing


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the Work;

(b) other agreements, bonds, or arrangements from which (potential) amounts due (including rating agency fees and agency fees) in relation to the financing of the Work is evident;

(c) instruments for covering interest rate risk, exchange rate risk, inflation risk and other derivatives (or related options) entered into or taken out in relation to the (financing of the) Work;

(d) arrangements related to (a), (b) or (c), including inter-creditor agreements, securities, and monoline wraps; and

(e) letters of credit furnished in relation to the Work,

in all cases, to the extent that they are not a Junior Debt.

Updated Financial Model The Original Financial Model that is updated by the Contractor in accordance with Schedule 10 (Financial Model Adjustment Guideline).

Third-Party Area The Area marked as such in the drawings included in Schedule 9, Part 1, Section 1.2 (Third-Party Area).

RWS Area The Area marked as such in the drawings included in Schedule 9, Part 1, Section 1.1 (RWS Area).

Partial Non-Availability Percentage

See Section 3.1 (Partial Non-Availability Percentage) of Schedule 3 (Compensation for Supervening Events).

Use (a) Usage forming part of the management and

maintenance of works (including part or full changes and/or destruction);

(b) usage of illustrations of the work; and

(c) all disclosure and reproduction acts, regardless of the use or the manner of representation and regardless of whether this use or manner of representation is already known at the time that this Agreement comes into effect.

Scheduled Availability Date [ ], or the date as possibly adjusted pursuant to Article 9.2 (Delay Event)

Scheduled Completion Date (a) Up to the Availability Date: The date occurring

[ ] Calendar Days after the Scheduled Availability Date; and

(b) from the Availability Date: The date occurring [ ] Calendar Days after the Availability Date or


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such later date as determined according to Article 9.5 (Postponed Completion Event).

Dispute Resolution See Article 21 (Dispute Resolution).

Force Majeure Event The circumstance that the Contractor is inevitably unable to comply with its obligations under this Agreement, or is only able to comply with them while incurring a Financial Disadvantage, or the Contracting Authority is inevitably unable to comply with its obligations under this Agreement, or is only able to comply with them by incurring greater costs, insofar as this results from one or more of the following events or circumstances:

(a) war, civil war, or terrorist actions in the Netherlands;

(b) nuclear explosions or detonations of explosive substances, insofar as they are not caused by the Contractor;

(c) ionising radiation or radioactive, chemical, or biological contamination at or close to the RWS or Third-Party Area insofar as this arises after the Contract Date and insofar as it is not caused by the Contractor;

(d) a crashing aircraft or a pressure wave as a result of a supersonic aircraft;

(e) a hurricane;

(f) an earthquake having a force greater than [ ] on the Richter scale; or

(g) a flood not caused by local precipitation [or leakage in the Infrastructure], insofar as it is not caused by the Contractor.

Postponed Completion Event A circumstance or an event as referred to in subparagraphs (a), (b) and (c) and [ ] of the definition of Delay Event which arises after the Availability Date, insofar as it gives rise to a Critical Delay in Completion and insofar as it is not due to a Contractor Default, with the exception of the circumstance referred to in subparagraph(c) of the definition of Delay Event.

Delay Event One or more of the following events or circumstances insofar as these give rise to a Critical Delay and insofar as they are not due to a Contractor Default, with the exception of the circumstance referred to under (c).

(a) a Compensation Event;

(b) a Force Majeure Event;

(c) the use by Lenders of their rights based on the


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Direct Agreement.

(d) the Transport Infrastructure (Planning Procedures) Decree [Road Improvement Decree] has not become irrevocable on [ ]; or

(e) [ ]2.

Compensation Event A circumstance in which the Contractor is inevitably unable to comply with its obligations under the Agreement or is only able to comply with them at a Financial Disadvantage, insofar as this results from one or more of the following events or circumstances and to the extent that it is not the result of a Contractor Default or a Force Majeure Event:

(a) a Contracting Authority Default

(b) a Contracting Authority Change;

(c) a Relevant Change in Law;

(d) the Contractor’s compliance with directions or the adoption of traffic measures pursuant to Article 18.6 (Incident management, winter maintenance, traffic accidents and non-standard transport);

(e) the adoption of measures as provided for in Article 18.5 ((Traffic) safety);

(f) access provided to third parties by the Contracting Authority to the RWS Area or Third-Party Area during the Development Period or the exercise by third parties of access rights in regard to the RWS Area or Third-Party Area during the Development Period other than in accordance with Article 4.2 (Access);

(g) damage to the Infrastructure owing to an Incident or Incident Management in respect of which the consequences arise after the Commencement Date and which is not due to an act or omission on the part of the Contractor;

(h) at the Contracting Authority’s request (as referred to in subparagraph (b) of Article 9.2 (Delay Event) or Article 9.5 (Postponed Completion Event)), making up for either a Critical Delay or a Critical Delay in Completion or a part thereof; or

(i) [ ]3.

Weighted Average Cost of The Weighted Average Cost of Capital (both equity

2 The risks which must be listed as a Delay Event due to the risk distribution process within the Tender stage are filled in here. 3 The risks which must be listed as a Compensation Event due to the risk distribution process within the Tender stage are filled in here.


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Capital and loan capital) that must be determined by the Parties at Financial Close on the basis of the Financial Model and adjusted in accordance with Schedule 10 (Financial Model Adjustment Guideline).

Immediate Termination Event One of the following events or circumstances, insofar as such does not result from a Contracting Authority Default or a Force Majeure Event:

(a) a Bank Guarantee is not provided in accordance with Articles 3.1 (Financial Close Guarantee), 3.3 (Performance Bond) or 6.3 (Hand Back Bank Guarantee);

(b) the Commencement Certificate is not obtained within [ ] months after the Contract Date;

(c) Financial Close is not achieved (or it is clear that Financial Close is incapable of being achieved) within the period specified in Article 3.2 (Financial Close);

(d) the Availability Certificate is not obtained (or it becomes evident that the Availability Certificate will not be obtained) within [ ] months after the Scheduled Commencement Date;

(e) the Completion Certificate is not obtained (or it becomes evident that the Completion Certificate will not be obtained) within [ ] months after the Scheduled Completion Date;

(f) a share is transferred contrary to Article 15 (New Shareholders);

(g) The Contractor acts contrary to Article 3.4 (Refinancing);

(h) The Contractor suspends the execution of practically all Work for a period of [15] successive Business Days (unless this is envisaged in planning previously delivered by the Contractor to the Contracting Authority);

(i) a payment obligation of the Contractor pursuant to a Finance Agreement is accelerated in accordance with the grounds for early repayment in the Finance Agreement (other than on the grounds of Refinancing); or

(j) the Contractor:

(i) makes an application for a (provisional) suspension of payments or is awarded a (provisional) suspension of payments;

(ii) files a petition for voluntary liquidation or is placed into liquidation;

(iii) is dissolved.

Refinancing The alteration of the payment obligations (vis-à-vis


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amount or scheduling) by the Contractor pursuant to an existing Finance Agreement or the conclusion of a new Finance Agreement, with the exception of:

(a) arrangement of supplementary financing made necessary by a Compensation Event;

(b) refinancing as envisaged in the Original Financial Model;

(c) refinancing that is deemed necessary to prevent the impending liquidation of the Contractor; and

(d) refinancing that takes place in the context of a restructuring as envisaged in the Direct Agreement.

Refinancing is also regarded as a change in the Contractor’s payment obligations to Lenders compared to the Contractor’s payment obligations as envisaged on [Final Tender Date], insofar as these changes do not stem from an adjustment in the base rates.

Correction Deadline The maximum duration specified in [ ] of the Programme of Requirements regarding a Closing that takes place with respect to an Activity outlined therein, whether extended or shortened as provided for in Section 3.5 (Correction Deadlines) of Schedule 2 (Payment Mechanism).

Agents Every natural person or legal entity employed by or otherwise affiliated with the Contractor or Contracting Authority who/which performs Work or renders services for the benefit of or on behalf of the Contractor or Contracting Authority.

Incident A traffic accident or breakdown affecting one or more motor vehicles or trailers or the occurrence of cargo fallen of at the Infrastructure.

Incident Management Incident management as outlined in the “RWS Policy Rules governing incident management” (Government Gazette 1999, 89) or a regulation in lieu thereof.

Indexation Formula See Section 1.2 (Indexing of Gross Availability Payment) of Schedule 2 (Payment Mechanism).

Index Figure See Section 1.2 (Indexing of Gross Availability Payment) of Schedule 2 (Payment Mechanism).

Infrastructure The RWS Infrastructure and the Third-Party Infrastructure insofar as no Part Completion Certificate has been issued in respect of the Third-


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Party Infrastructure.

Third-Party Infrastructure All infrastructural objects located in the Third-Party Area, with the exception of the objects referred to in Schedule 9, Part 1, Section 4.1 (Objects excluded from the Third-Party Infrastructure) and the grounds forming part of said Third-Party Area.

RWS Infrastructure All infrastructural objects located in the RWS Area, with the exception of the objects referred to in Schedule 9, Part 1, Section 3.1 (Objects excluded from the RWS Infrastructure) and the grounds forming part of said RWS Area.

Intellectual property rights All current and future rights pertaining to intellectual property, in their most wide-ranging form (including but not limited to: copyrights, patents, trademark rights, design rights, domain names, database rights and know-how) that have arisen or shall arise in connection with the Design documents, including the work embodied therein or stemming therefrom or otherwise arising pursuant to this Agreement.

Junior Debt A loan provided to the Contractor by a Shareholder (or by a legal entity affiliated to the Shareholder as part of a group) which has been subordinated to the loans made available to the Contractor under the various Finance Agreements.

Junior Debt Agreement Any agreement governing a Junior Debt provided to the Contractor.

Third-Party Cables and Pipelines All cables and pipelines within the RWS Area and the Third-Party Area being the responsibility of a party other than the Contracting Authority.

Third-Party Cables and Pipelines Category 1

The Third-Party Cables and Pipelines listed in Schedule 14, Part 1 (Cables and Pipelines Category 1).


The Third-Party Cables and Pipelines for which the Contracting Authority has concluded a Project Agreement prior to the Contract Date, as provided for in Schedule 14, Part 2 (Cables and Pipelines Category 2).


The Third-Party Cables and Pipelines not forming part of the Cables and Pipelines Category 1 or 2.

Calendar Days All days in a year.


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Small Change A Change resulting in a Financial Disadvantage smaller than [ ].

Full hour An hour beginning and ending on the hour.

Discount percentage See Section 3.2 (Discount percentage) of Schedule 2 (Payment Mechanism).

Critical Delay A delay in the Work that makes it impossible to prevent the Scheduled Availability Date from being exceeded by more than the following number of Calendar Days without Financial Disadvantage:

(a) 14 Calendar Days if the circumstance or event that caused the delay occurs in the period up to two years before the Scheduled Availability Date;

(b) 7 Calendar Days if the circumstance or event that caused the delay occurs in the period starting from two years before the Scheduled Availability Date up to and including the Scheduled Availability Date;

or (in derogation of (a) and (b)):

(c) 0 Calendar Days if the delay is the consequence of a Contracting Authority Change or a Relevant Change in Law;

determined according to the procedure outlined in [ ] of the Management Specifications.

Critical Delay in Completion A delay in the Work that makes it impossible to prevent the Scheduled Completion Date from being exceeded by more than the following number or Calendar Days without Financial Disadvantage:

(a) 7 Calendar Days;

or (in derogation of (a)):

(b) 0 Calendar Days if the delay is the consequence of a Contracting Authority Change or a Relevant Change in Law;

determined according to the procedure outlined in [ ] of the Management Specifications.

Quarter A period of 15 minutes beginning for each Full Hour at :00, :15, :30 and :45.

Management Plan Any plans (whatever they are called) which together describe the Contractor’s Management System.


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Management Specifications The requirements specified in Schedule 9, Part 3 (Management Specifications).

Management System The Contractor’s business environment consisting of the required processes, which can be supported by a structure of methods, procedures, techniques, auxiliary resources, and trained personnel.

Multiplier See Section 2.4 (Multiplier (mQuarter) of Schedule 2 (Payment Mechanism).

Net Availability Payment See Section 1.4 (Determining the Net Availability Payment) of Schedule 2 (Payment Mechanism).

Subcontractor A natural person or legal entity directly or indirectly contracted by the Contractor for the purposes of the Work.

Uninsurable

A risk for which cover cannot be secured on the international insurance market from reputable insurers with a credit rating not below [ ], except where the risk has become uninsurable due to an act or omission on the Contractor’s part and save where the occurrence of the risk has led to a liability on the part of the Contractor towards the Contracting Authority.

Original Financial Model The financial model that is certified by the Parties as such on the Contract Date.

Tender requirements The requirements that apply pursuant to Schedule 9, Part 2 (Output Specifications) throughout the period from the Availability Date to the Completion Date.

Hand Back Certificate A written notice from the Contracting Authority to the Contractor confirming that the conditions for issuing the Hand Back Certificate stated in the Certificate Plan have been met.

Hand Back Requirements The requirements governing issuance of the Hand Back Certificate pursuant to Schedule 9, Part 2 (Output Specifications).

Hand Back Bank Guarantee See Article 7.3 (Hand Back Bank Guarantee).

Agreement This agreement (including the schedules attached thereto).

Party The Contracting Authority or the Contractor.


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Periodic Statement See Section 5.1 (Periodic Statement) of Schedule 2 (Payment Mechanism).

Performance Measurement System (PMS)

The system referred to in [ ] of the Management Specifications.

Performance Deduction See Section 3 (Performance Deduction) of Schedule 2 (Payment Mechanism).

Programme of Requirements The Contracting Authority’s Programme of Requirements and the Contractor’s Programme of Requirements.

Contracting Authority’s Programme of Requirements

Part 1 to Part 4 of Schedule 9 (Programme of Requirements).

Contractor’s Programme of Requirements

Part 5 of Schedule 9 (Programme of Requirements) together with the further details provided in the Contracting Authority’s Programme of Requirements as listed by the Contractor in the Performance Measurement System in accordance with the Management Specifications.

Project financing The manner of financing a project company, whereby the providers of loan capital have no available means of recovery other than the assets of the project company involved in the relevant project; therefore they have no means of recovering the assets of shareholders, Subcontractors or third parties.

Project Agreement An agreement concluded between the Contracting Authority and an authority in charge of cable or pipeline in relation to the rerouting or removal or the permanent protection of a Third-Party Cable or Pipeline Category 2 or 3.

Project Planning The planning marked [ ], duly updated and furnished to the Contracting Authority in accordance with the provisions of Schedule 8 (Management Plan).

Development Period The period commencing on the Commencement Date and ending on the Availability Date.

Regulations Every applicable regulation that is stipulated in:

(a) a statutory provision (which includes legislation in the formal sense, subordinate legislation, and provisions of international law or EC law) or in another generally binding regulation or in a Permit or a ruling of any governmental authority, on a national, supranational or inter-


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governmental level (which also includes an administrative authority or supervisory or policy-making authority) that is binding on the Contractor; or

(b) a Relevant Policy Rule.

Regulations governing Cables and Pipelines

(a) The agreement concluded between the Minister for Transport, Public Works and Water Management and the umbrella organisations for the cable and pipeline authorities (the ‘Agreement governing the rerouting of cables and pipelines outside the Management Area, concluded between Minster for Transport, Public Works and Water Management and EnergieNed, VELIN and VEWIN’ dated 10 February 1999 (published in the Government Gazette 1999, no. 97);

(b) the compensation for damage resulting from the rerouting of cables and pipelines in and adjacent to RWS Engineering Structures and Railway Structures 1999, NKL 1999 dated 12 May 1999 (published in the Government Gazette 1999, no. 97);

(c) [include the regulations governing the relevant project];

or whatever replacement or supplementary regulations may apply, as announced by the Contracting Authority to the Contractor in advance of entering into a Project Agreement with an authority in charge of a Cable or Pipeline.

Relevant Policy Rules (a) the Regulations governing Cables and Pipelines;

(b) the RWS Policy Rules for Incident Management (Government Gazette 1999, 89); and

(c) [ ]4.

Relevant Change in Law A change, introduction or repeal of Regulations that takes effect after the [Final Tender Date] and that the Contractor could not reasonably foresee on that date (which should be understood to mean that there has not yet been any written public announcement or statement by or on behalf of the relevant authority, body or institution that brought about the change, introduction or repeal of the Regulations in regard to the date of implementation of the change, its introduction or repeal) and:

(a) specifically relates to the Contractor or to contractors in agreements similar to this one;

4 Other regulations that will apply to the Contractor and which are not listed under the definition for “Regulations” under (a).


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or

(b) specifically relates to the RWS Infrastructure or the Third-Party Infrastructure; or

(c) necessitates the Contractor to invest more capital (costs which normally are written off in more than 1 year).

Traffic Lane A traffic lane or Emergency Lane which:

(a) has been listed with respect to the Development Period in Schedule 2, Annex 1, Table 1 (Traffic Lane definitions relative to Development Period); and

(b) has been listed with respect to the Availability Period in Schedule 2, Annex 2, Table 1 (Traffic Lane definitions relative to Availability Period).

Lane Closure See Section 2.3 (Lane Closure) of Schedule 2 (Payment Mechanism).

Security Agent The legal entity that holds the security rights for the benefit of the Lenders and that enters into the Direct Agreement.

Contracting Authority Default A default by the Contracting Authority in complying with one or more of its obligations under this Agreement (which includes a circumstance of which it is certain that compliance without default will be impossible) insofar as such default:

(a) is not the result of a Contractor Default; or

(b) is not the result of a Force Majeure Event.

Contractor Default A default by the Contractor in complying with one or more of its obligations pursuant to this Agreement (which includes a circumstance in which it is certain that compliance without default will be impossible) insofar as such default:

(a) is not the result of a Contracting Authority Default;

(b) is not the result of a Delay Event, a Compensation Event or a Force Majeure Event; or

(c) is not an Immediate Termination Event.

Authorised Narrowing A width restriction occurring during the Development Period not exceeding the minimum width of a Traffic Lane, as approved by the Contracting Authority.


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Transport Infrastructure (Planning Procedures) Decree

The Transport Infrastructure (Planning Procedures) Decree [ ].

Routing Section A routing area which:

(a) has been listed with respect to the Development Period in Schedule 2, Annex 1, Table 1 (Traffic Lane definitions relative to Development Period); and

(b) has been listed with respect to the Availability Period in Schedule 2, Annex 2, Table 1 (Traffic Lane definitions relative to Availability Period).

Transition requirements The requirements that apply pursuant to Schedule 9, Part 2 (Output Specifications) throughout the period from the Commencement Date to the Availability Date.

Grounds for Exclusion A ground for exclusion as provided for in Article 45 of Directive 2004/18/EC (or a regulation replacing such), which regulation outlines how the Contractor can demonstrate that such grounds do not apply to the legal entity in question or the circumstance that the natural person or legal entity in question:

(a) is unlikely to have adequate financial resources to meet its obligations (only insofar as the natural person or legal entity is a new Shareholder that still has to pay equity capital or provide loans); or

(b) is unlikely to have adequate financial resources to fulfil its obligations under the Finance Agreements (insofar as the natural person or legal entity is a new Lender).

Performance Bond See Article 3.4 (Performance Bond).

Permit Each decision, traffic decision, official decision, licence, exemption, notification, order or other permission under public law that is required with respect to the Work, with the exception of the Transport Infrastructure (Planning Procedures) Decree [the Road Improvement Decree].

Disruption of the Financial Markets

The occurrence of an extraordinary event in the financial markets of the European Union that has a negative effect on the Contractor’s access to national


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or international capital or interbank markets (including EURIBOR).

Project Data The particulars recorded in the documents referred to in Schedule 13 (Project Data).

Confidential Information The content of this Agreement and all information relating thereto which owing to the nature thereof must remain confidential, such as documents, computer files, specifications, formulae, evaluations, methods, processes, technical descriptions, reports and other data, files, drawings, models, and calculations, as well as the documentation or information provided during the course of the procedures pursuant to Article 21 (Dispute Resolution).

Change Request

A request submitted by the Contracting Authority to an authority in charge of a cable or pipeline pertaining to the rerouting, removal or permanent protection of a Third-Party Cable or Pipeline Category 3 which is deemed necessary in connection with performance of the Work.

Completion Certificate A written notice from the Contracting Authority to the Contractor confirming that all conditions for issuing the Completion Certificate referred to in the Certificate Plan have been met.

Completion Date The date on which the Contracting Authority issues the Completion Certificate. If a particular point in time on the Completion Date is required for purposes of any provision in this Agreement, this time shall be set at 00.00 a.m. (midnight) (at the end of the Completion Date), unless explicitly stipulated otherwise.

Completion requirements The requirements that apply pursuant to Schedule 9, Part 2 (Output Specifications) throughout the period from the Completion Date to the Expiry Date.

[Road Improvement Decree] [The Road Improvement Decree [ ].]

Grounds for Refusal A ground for exclusion as envisaged in Article 45 of Directive 2004/18/EC (or a regulation replacing such) for which the regulation does not include a description of the manner in which the Contractor can demonstrate that such grounds do not apply to the legal entity in question, or the circumstance that the natural person or legal entity in question:


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(a) has its registered office or principal place of business in a country against which the Contracting Authority, or a treaty organisation to which the Contracting Authority belongs, has imposed economic or political sanctions;

(b) has senior management that is involved in illegal or terrorist activities;

(c) has as a principal activity the acquisition of claims against enterprises that are in financial difficulty; or

(d) has a fundamental dispute with the Contracting Authority, which could have a negative impact upon the fulfilment of this Agreement by the Contractor.

Business Day Every day except a Saturday, Sunday or public holiday or a day considered equivalent thereto pursuant to the Dutch General Extension of Time Limits Act.

Work The work that the Contractor must carry out and the services that it must perform pursuant to this Agreement.

Change A Contracting Authority Change or a Contractor Change.

Contracting Authority Change See Article 13.1 (Contracting Authority Change).

Contractor Change See Article 13.2 (Contractor Change).

Control Control within the meaning of the SER (Social and Economic Council) ruling on the 2000 Merger Code (even if these rules do not apply).


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SCHEDULE 2 PAYMENT MECHANISM

1. AVAILABILITY PAYMENT

1.1 Gross Availability payment (GAP)

(c) The Gross Availability Payment (GAP) is € [ ]. The amount of the Gross Availability Payment (GAP) is adjusted on the Financial Close Date in accordance with the procedure outlined in Schedule 10, Part 2 (Special Stipulations governing Financial Close).

(d) The Gross Availability Payment (GAP) is calculated as follows:

(i) In regard to the Payment period which includes the Commencement Date, the GAP is calculated proportionally in respect of the number of Calendar Days occurring in this Payment Period as from the Commencement Date, relative to the number of Calendar Days occurring in said Payment Period; and

(ii) In regard to the Payment period which includes the Expiry Date, the GAP is calculated proportionally in respect of the number of Calendar Days occurring in the Payment Period up to the Expiry Date, relative to the number of Calendar Days occurring in said Payment Period.

(c) The Gross Availability Payment (GAP) may be adjusted in accordance with Schedule 3 (Compensation for Supervening Events), Section 2.3.

1.2 Indexing the Gross Availability Payment

(a) Effective from Financial Close, the GAP amount will be indexed annually on 1 January in accordance with the Indexation Formula.

(b) The Indexation Formula provides a percentage that is referred to as the Index Figure. The Indexation Formula is as follows:

[ ]

Index figuret = 100% + Σ (an * in)

n=1

in which:

[ ]

0 ≤ an ≤ [ ] and Σ (an) ≤ [ ]5 and in = (in,t-2 / in,t-1) - 100%

n=1

Index figuret = index figure for year t.

an = weighting factor related to the price index figure n.

in = price development on the basis of price index figure n over the period of the year in question t in comparison with the year in

5 Only a part of the GAP is indexed.


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question t-1.6

in,t-2 = price index figure n for the period of the year in question t-2, as published by CROW, Statistics Netherlands or Eurostat for the date on which the Index figure is determined.

Weighting factors for price index figures

No. Price index figure Weighting factor

1 [ ] [ ]

2 [ ] [ ]

(…)

(c) In the event of the first indexation, the parameter in,t-1 in the indexation formula is replaced by the price index figures for the period of the year [ ]7.

(d) If a price index figure is published more frequently than once per year and no price index figure is published for the year, the price index figure to be used by the Contractor shall be determined on the basis of:

(i) advice obtained from the publishing institution regarding the method to be used in determining the price index figures for the year; or if it is not possible to obtain such advice:

(ii) the mathematical average of the price index figures as published for the year in question (being more frequent than once per year).

(e) If a price index figure has not yet been determined on the date on which the Index figure is determined, the current publication or the most recent known price index figure will be used instead. Once the price index figure has been set Once the price index figure has been set, the index figure must be adjusted retroactively and the overpaid or underpaid Net Availability Payment set off accordingly.

(f) If the base year is changed or the manner of determination, composition or publication of price index figures changes, this may give rise to consultation between the Contractor and Contracting Authority in order to find a way of ensuring that the original principles are approximated as far as possible.

1.3 Payment of Net Availability Payment

The Net Availability Payment (NAP) is payable throughout the period starting on the Commencement Date and ending on the Expiry Date or on an earlier date if the Agreement is terminated early.

6 The tenderers shall state price index figures (with acknowledgement (CROW, Statistics Netherlands or Eurostat)) and associated weighting factors during the tender phase, in order that the indexation formula following the Definitive Registration may be established. 7 The price level referred to in Article 19.1


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1.4 Determining the Net Availability Payment (NAP)

a) From the Commencement Date to the Payment Period in which the Availability Date occurs, the following applies:

the Net Availability Payment (NAP) is equal to [ ] per cent8 of the Gross Availability Payment (GAP) minus the Availability Correction (AC) and minus the Performance Deduction (PD).

NAP = [ ]% GAP – AC – PD

in which:

(i) the Gross Availability Payment (GAP) is calculated in accordance with the provisions of Section 1.1 of this Schedule;

(ii) the Availability Correction (AC) is calculated in accordance with the provisions of Section 2 of this Schedule; and

(iii) the Performance Deduction (PD) is calculated in accordance with the provisions of Section 3 of this Schedule.

b) In the Payment Period in which the Availability Date occurs, the following applies:

The Net Availability Payment (NAP) is equal to [ ] per cent of the Gross Availability Payment (GAP) proportional to the number of Calendar Days occurring in the Payment Period in question prior to the Availability Date, plus one hundred per cent of the Gross Availability Payment (GAP) proportional to the number of Calendar Days for the relevant Payment Period as from the Availability Date, minus the Availability Correction (AC) and minus the Performance Deduction (PD).

NAP = a [ ]% GAP + b GAP – AC – PD

in which:



(iii) the Performance Deduction (PD) is calculated in accordance with the provisions of Section 3 of this Schedule;

(iv) ‘a’ is calculated in respect of the Calendar Days occurring in the relevant Payment Period prior to the Availability Date, divided by the number of Calendar Days occurring in the relevant Payment Period; and

(v) ‘b’ is calculated in respect of the Calendar Days occurring in the relevant Payment Period as from the Availability Date, divided by the number of Calendar Days occurring in the relevant Payment Period.

c) As from the Payment Period following the Payment Period in which the Availability Date occurs up to the actual Expiry date, the following applies:

8 The GAP ratio paid in the Development Period includes a payment for the costs of maintaining the Transition Infrastructure.


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the Net Availability Payment (NAP) is equal to the Gross Availability Payment (GAP) minus the Availability Correction (AC) and minus the Performance Deduction (PD).

NAP = GAP – AC - PD

in which:



(iii) the Performance Deduction (PD) is calculated in accordance with the provisions of Section 3 of this Schedule.

d) If the calculation results in the Net Availability Payment equalling zero, it is then set at zero:

NAP ≥ 0


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2. AVAILABILITY CORRECTION

2.1 Availability Correction (AC)

The Availability Correction (AC) is equal to the sum of the Availability Deductions per Quarter (Σ ADs).

AC = Σ ADs

2.2 Availability Deduction (AD)

a) The Availability Deduction per Quarter (AD) is the amount that is assigned to a Quarter in which there arises one or more Lane Closures. This sum is arrived at as follows:

AD = mQuarter AVQuarter

in which:

(i) the Multiplier mQuarter for the Quarter in question is calculated in accordance with the provisions of Section 2.4 of this Schedule; and

(ii) the Availability value (AVQuarter) for the Quarter in question is calculated in accordance with the provisions of Section 2.5 of this Schedule.

2.3 Lane Closure

(a) A Lane Closure occurs where:

(i) the Availability Requirements are not met; or

(ii) a Closing has been arranged on the Contractor’s request in connection with the performance of the Work.

(b) Notwithstanding (a), no Lane Closure occurs where:

(i) the Availability Requirements have not been met owing to a Compensation Event as provided for in subsection (e) of the definition thereof and the Contractor within twice the Correction Deadline period (the second Correction Deadline pursuant to Section 3.5 under (e)) has arranged once again for the Availability Requirements to be met. The provisions of Section 3.5 under (d) apply by analogy;

(ii) the situation referred to in Section 2.3 under (a), subsection (i) or (ii), has arisen owing to a Supervening Event that is not a Compensation Event as provided for under Section (e) of the definition thereof;

(iii) the Availability Requirements have not been met and the Contractor has applied for a Closing that meets the requirements of the procedure referred to in [ ] of the Management Specifications, but the road


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administrator has not approved the request for a Closing. In this case, as soon as the road administrator has refused the Closing request, the Contractor must re-apply for a Closing to take effect on the next available date for a Closing to be approved by the road administrator. This exception applies as from the date on which the road administrator notifies the Contractor that the Closing has not been approved to the next available date for the Closing to be approved by the road administrator; or

(iv) an Availability Requirement has not been met in the first [ ] Business Days after the Commencement Date and the Contractor has arranged for this Availability Requirement to be met as yet within twice the Correction Deadline (the second Correction Deadline pursuant to Section 3.5 under (e)).

c) Lane Closures created on the same Traffic Lane, within one Routing Section and on the same day during the same Quarter are regarded as one single Lane Closure.

d) The date on which the Lane Closure begins is determined as follows:

(i) a Lane Closure as referred to in Section 2.3 under (a) subsection (i) commences at the earliest of the following times:

(A) the date on which it is automatically entered and recorded in the Performance Measurement System, or manually entered and recorded if necessary, that the Availability Requirements have not been met;

(B) the date on which it is stated in the Contractor’s Correction Report as referred to in [ ] of the Management Specifications that the Availability Requirements have not been met;

(C) the date on which the Contractor reports to the Contracting Authority in accordance with [ ] of the Management Specifications; or

(D) the date on which the Contracting Authority notifies the Contractor that the Availability Requirements have not been met;

(ii) notwithstanding the provisions of Section 2.3 Paragraph (d) subsection (i), a Lane Closure as referred to in Section 2.3 under (a) subsection (ii) begins at the time that the requisite traffic signalling is activated in accordance with the procedure set out in [ ] of the Management Specifications; and

(iii) in the situation referred to in Section 2.3 Paragraph (b) subsections (ii) and (iv), the Lane Closure commences at the time that the second Correction Deadline has expired.

(e) The date on which the Lane Closure ends is determined as follows:

A Lane Closure ends on the last of the following times:

(i) the date on which it is automatically or manually entered and recorded in the Performance Measurement System that the Availability Requirements have been met once more;


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(ii) the date on which it is stated in the Contractor’s Correction Report as referred to in [ ] of the Management Specifications that the Availability Requirements have been met once more;

(iii) the date on which the Contractor reports to the Contracting Authority in accordance with the procedure outlined in [ ] of the Management Specifications.

2.4 Multiplier (mQuarter)

(a) The Multiplier (mQuarter) for the relevant Quarter is as follows:

(i) for Quarters from the Commencement Date to the Availability Date:

[ ]; and

(ii) for Quarters from the Availability Date to the Expiry Date:

[ ].

(b) The Multiplier (mQuarter) has a minimum value of 0 (zero) and a maximum value of 1 (one).

2.5 Availability Value (AVQuarter)

The Availability Value (AVQuarter) is set in accordance with the following table:

Each Quarter from 11:00 p.m. to 05:00 a.m. [ ]

Each Quarter from 05:00 a.m. to 11:00 p.m. [ ]


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3. PERFORMANCE DEDUCTION

3.1 Performance Deduction (PD)

The Performance Deduction (PD) for the Payment Period in question is equal to the Gross Availability Payment (GAP) amount multiplied by the balance of the Discount Percentage (DP%) minus the Bonus Percentage (BP%).

PD = GAP (DP% – BP%)

in which:

(i) the Gross Availability Payment (GAP) for the calculation is equal to the amount specified in Section 1.1 of this Schedule, notwithstanding the provisions of Section 1.1 (b) of this Schedule; and

(ii) the balance of the Discount Percentage minus the Bonus Percentage (DP% - BP%) is set at 0 (zero), if the balance of the Discount Percentage minus the Bonus Percentage (DP% - BP%) is below 0 (zero).

3.2 Discount Percentage (DP%)

The Discount Percentage (DP%) is equal to the number of Penalty Points specified by the Contracting Authority for the corresponding Payment Period, multiplied by 0.1%.

3.3 Bonus Percentage (BP%)

The Bonus Percentage (BP%) for the Payment Period in question is equal to:

(i) [ ] % if in the previous 2 (two) Payment Periods the Discount Percentage (DP%) was zero;

(ii) zero (0%) in the Payment Period in which the Commencement Date occurs;

(iii) zero (0%) in the Payment Period following the Payment Period in which the Commencement Date occurs;

(iv) zero (0%) in all other instances.

3.4 Penalty Points

(a) The Contracting Authority may impose Penalty Points in accordance with the following table in the event of an occurrence of a circumstance or an event in a category as listed in this table. If the Contracting Authority opts to impose Penalty Points, these must be in accordance with and not below the number of points listed in the relevant category.


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Category Penalty Points:

Table I. SAFETY

1. An accident has occurred due to a Contractor Default, resulting in one or more deaths or serious injury to persons.

10

2. An accident has occurred due to a Contractor Default, different to the type of accident referred to in 1.

6

3. A situation has arisen, due to a Contractor Default, which has directly or indirectly endangered the safety of road users.

4

4. A situation has arisen, due to a Contractor Default, which has directly or indirectly endangered the safety of third parties (other than road users) and/or Agents.

3

Table II. PROCESS MANAGEMENT

5. A Contractor Default constituting an infringement of Article 8.1 (Management System).

3

6. The occurrence of one or more of the following circumstances:

(a) The performance of Work in the absence of:

(iv) the issuing of Documents as referred to in Requirement [ ] of the Management Specifications; (v) a Project Agreement concluded as specified in Article 6.4 (Third-Party Cables and Pipelines Category 3); (vi) the Contractor has notified the Contracting Authority promptly as specified in Requirement [ ] of the Management Specifications;

(b) [ ].

1

7. A Contractor Default or a derogation as referred to in [ ] of the Management Specifications has not been reported promptly in accordance with the Management Plan.

4

8. Failure to remedy a Contractor Default in accordance with Paragraph (a) of Article 11.1 (Contractor Default), with the exception of the Contractor Defaults outlined in Categories 10 to 15, or failure to correct a deviation as outlined in [ ] of the Management Specifications.

4

9. A Contractor Default pursuant to the provisions outlined in document [ ].9

2 per week

Table III. MAINTENANCE

9 This category is suitable for reference to an overlapping document which sets out requirements in relation to early completion of a part of the Work, for example, as provided for in a Management Agreement.


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Category Penalty Points:

10. (Reserved)

11. A Contractor Default signifying failure on the Contractor’s part to meet the requirements specified in [ ] of the Management Specifications.

The number of penalty points listed in Table I of the relevant Requirement.

12. A Contractor Default signifying that the Correction Deadline, as referred to in subsection a) of the definition thereof, has expired and that the Contractor has failed to comply with [ ] of the Management Specifications.

The same number of penalty points as referred to in Category 11 above, plus 1.

13. A Contractor Default signifying that in the event of an Incident, the requirements referred to in[ ] of the Management Specifications have not been met within the first Correction Deadline.

The number of penalty points listed in Tables I and II of the relevant Requirement.

14. A Contractor Default signifying that the Contractor has failed to meet the requirements within a new Correction Deadline set in accordance with Section 3.5 under (e).

The number of penalty points listed in Category 12, 13 or 15, plus 1.

15. A Contractor Default signifying that in the first [ ] Business Days10 following the Commencement Date, the requirements referred to in[ ] of the Management Specifications have not been met within the first Correction Deadline.

The number of penalty points listed in Table II of the relevant Requirement.

(b) If a Contractor Default comes under more than one category, the Contracting Authority may only impose the Penalty Points relative to one category, being the category in which the highest number can be recorded.

10 In conformity with the number of Business Days specified in Section 2.3 under (b) subsection (iv) of this Schedule.


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3.5 Correction Deadlines

(a) The relevant period in determining whether the Correction Deadline has expired is the period between the date on which the Correction Deadline begins and the date on which the requirements specified in Categories 11 en 12 in the Table under (a) of this Section have been complied with once more.

(b) The start date for the Correction Deadline is determined as follows:

(i) if the requirements specified in [ ] of the Management Specifications have not been met owing to an Incident and in order to remedy this, a Closing will be necessary, the Correction Deadline will begin on the date specified in [ ] of the Management Specifications.

(ii) in all other instances, the earliest of the following dates will apply:

(A) the date on which it is automatically entered and recorded in the Performance Measurement System, or manually entered and recorded if necessary, that the relevant requirement has not been met;

(B) the date on which it is stated in the Contractor’s Correction Report as referred to in [ ] of the Management Specifications that the relevant requirement has not been met;

(C) the date on which the Contractor reports to the Contracting Authority in accordance with [ ] of the Management Specifications;

(D) the date on which the Contractor issues a notification pursuant to [ ] of the Management Specifications; and

(E) the date on which the Contracting Authority notifies the Contractor that the relevant requirement has not been met.

(c) The date on which the requirements specified in Categories 10 to 15 of the Table under Section 3.4 Paragraph (a) are met, shall be the last date of the following:

(A) the date on which it is automatically or manually entered and recorded in the Performance Measurement System that the relevant requirement has been met once more;

(B) the date on which it is stated in the Contractor’s Correction Report as referred to in [ ] of the Management Specifications that the relevant requirement has been met once more;

(C) The date on which the Contractor reports to the Contracting Authority in accordance with the procedure outlined in [ ] of the Management Specifications.

(d) If the Contractor, in order to perform the Work for which a Correction Deadline has been set, has requested a Closing which meets the requirements specified in [procedure governing expedited application for traffic measures] of the Management Specifications and the Contracting Authority has refused to grant said request for the Closing, the Correction Deadline will be extended by a period that equals the period from the refusal of the Closing to the date on which the Contracting Authority deems that the Closing may take place.


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(e) If the Contractor fails within the Correction Deadline to meet the requirements specified in Categories 12, 13 or 15, a new Correction Deadline will be set in this regard, being equal to 20% of the original Correction Deadline. Each time that the Contractor fails to meet the relevant requirements within the new Correction Deadline, a further Correction Deadline is set, equivalent to 20% of the original Correction Deadline.

3.6 Repeat Deduction

(a) Where a Contractor Default for which Penalty Points have been imposed is repeated within the same or the subsequent Payment Period and within the same category, the Contracting Authority may once more impose the same number of Penalty Points, plus 1 (one), and so on.

(b) Where a Contractor Default as referred to in Category 5 of the Table continues for more than one week, the Contracting Authority may impose 1 (one) additional Penalty Point for each week additional to the said week that the Contractor Default continues, up to a maximum of 20 (twenty) additional Penalty Points per Payment Period for the relevant Contractor Default.

4. LUMP-SUM PAYMENT

4.1 Lump-Sum Payment

The amount of € [ ] (the Lump-Sum Payment) becomes due from the Contracting Authority to the Contractor on the date that the Completion Certificate is issued.

4.2 Payment of the Lump-Sum Payment

Within [30] Calendar Days of the Lump-Sum Payment becoming due, the Contractor shall send the Contracting Authority an invoice for same.

4.3 Indexing the Lump-Sum Payment

The Lump-Sum Payment amount is not indexed.

5 INVOICING AND PAYMENT

5.1 Periodic Statement

(a) Within 30 Calendar Days after the end of each Payment Period, the Contractor shall forward to the Contracting Authority a Periodic Statement of the Net Availability Payment and other amounts that are due under the Agreement between the Parties at the end of that Payment Period. The Periodic Statement will be forwarded together with a detailed analysis of how the amounts are determined and with supporting documents, including at least the recorded measurements from the Performance Measurement System.

(b) The Contracting Authority may request further information from the Contractor in order to assess the accuracy of the Periodic Statement. A request for further information does not affect the provisions in Section 5.2 (Invoice and Payment Period).

(c) The Lump-Sum Payment is not included in the Periodic Statement.


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5.2 Invoice and Payment Period

a. The Periodic Statement is forwarded together with an invoice (or a credit note if the statement reflects that the Contractor owes the Contracting Authority a net amount).

b. The invoice or credit note shall be addressed as follows:

[ ]

c. An invoice or credit note must be paid no later than the 30th Calendar Day after the date of the Contracting Authority’s receipt thereof, except for the Lump-Sum Payment, which must be paid within 30 Calendar Days after the date on which the Completion Certificate is issued.

d. The amount of value-added tax owing must be indicated on each invoice or credit note.

5.3 Interest on late payment

Unless explicitly stated to the contrary in this Agreement, interest must be paid on any late payment of an invoice or credit note as from the day after the payment period expiry date, at a rate equal to the default interest rate payable under the Finance Agreements (insofar as this default interest rate conforms to market rates).

5.4 Disputed amounts

The Contracting Authority may suspend payment if it disputes an amount for which an invoice has been issued. In such instances, the Contracting Authority shall promptly notify the Contractor in relation to same, outlining why it disputes the amount. If the Contractor disagrees with this contention, Article 21 (Dispute Resolution) becomes applicable. If it transpires that the Contracting Authority has incorrectly disputed the invoiced amount, it must pay the interest referred to in Section 5.3 (Interest on Late Payment) backdated to the date on which payment would have become due had there been no dispute.

5.5 Setting off

Unless otherwise referred to in this Agreement, the Contracting Authority may set off any amounts owing to the Contractor under this Agreement against amounts that are payable by the Contractor to the Contracting Authority pursuant to the Agreement.

5.6 Euro currency

Invoicing and payment pursuant to this Agreement will be in the euro currency.

5.7 Value added tax

All the amounts stipulated in the Agreement are exclusive of VAT.

5.8 Updating Traffic Lane definitions in the Development Period

In the Development Period, the Contractor will be required to adjust Table 1 of Annex 1 as follows:

(a) At least 3 months prior to any changes occurring in the actual use of the Traffic


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Lanes as defined in Table 1 of Annex 1, the Contractor shall submit a proposal to the Contracting Authority to change this Table and the drawing and specify the date on which the updated version becomes applicable;

(b) the Contractor shall adjust Table 1 of Annex 1 in a manner that clearly shows which Traffic Lanes are being replaced by other Traffic Lanes in accordance with the provisions of Article 4.4. paragraph (a) subsection (i); and

(c) the Contractor must submit the updated version of Table 1 of Annex 1 to the Contracting Authority for its approval.


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ANNEX 1

TRAFFIC LANE DEFINITIONS AND AVAILABILITY REQUIREMENTS IN THE DEVELOPMENT PERIOD

Drawings

A detailed outline of the Routing Sections of the RWS Infrastructure set out in Table 1 in the Development Period can be seen on the following drawings:

[ ]

Table 1. Traffic Lane definitions relative to the Development Period

[ ]

Table 2. Availability requirements relative to the Development Period

[The Availability Requirements in the Development Period (where applicable subject to Schedule 9, Part 2 (Output Specifications).]


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ANNEX 2

TRAFFIC LANE DEFINITIONS AND AVAILABILITY REQUIREMENTS IN THE AVAILABILITY PERIOD

Drawings

A detailed outline of the Routing Sections of the RWS Infrastructure set out in Table 1 in the Availability Period can be seen on the following drawings:

[ ]

Table 1. Traffic Lane definitions relative to the Availability Period

[ ]

Table 2. Availability requirements relative to the Availability Period

[The Availability Requirements in the Availability Period (where applicable subject to Schedule 9, Part 2 (Output Specifications).]


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SCHEDULE 3 COMPENSATION FOR SUPERVENING EVENTS

1. DELAY EVENT

1.1 Compensation

In the case of a Delay Event (not being a Compensation Event), the Contracting Authority must pay the Contractor an amount equalling:

(a) the interest due on the principal amounts outstanding under the Finance Agreements for the relevant Critical Delay period;

plus

(b) the amounts that the Contractor is charged under the Finance Agreements in regard to changes in the dates on which the Contractor is to pay the outstanding amounts under said Finance Agreements, insofar as those changes arise from the Critical Delay in question and insofar as these are in line with market conditions.

plus

(c) daily compensation for each Calendar Day11 during which the respective Critical Delay continues.

1.2 Daily Compensation

The Daily Compensation specified in Section 1.1 of this Schedule under (c) is calculated as follows:

Daily Compensation for Calendar Days up to and including the Commencement Date

Daily Compensation for Calendar Days as and from the Commencement Date

the first 60 Calendar Days of the Critical Delay:

€ [ ] € [ ]

After that: € [ ] € [ ]

1.3 Payment of compensation

Compensation must be paid as from the Payment Period following the Payment Period in which the duration of the Critical Delay is determined. If the full duration of the Critical Delay cannot yet be determined at the end of the Payment Period in which the Critical Delay (also) occurred, the compensation will be paid in the Payment Period following the Payment Period in question and this in proportion to the number of Calendar Days in the Payment Period in which the Critical Delay occurred. Schedule 2 (Payment Mechanism), Part 5 (Invoicing and payment) also applies where relevant.

11 This daily compensation is in connection with the standstill costs that arise during construction works (construction site costs etc.). The daily compensation has nothing to do with the maintenance costs for the Transition Infrastructure to be taken into account by the Contractor: the partial GAP for these maintenance costs continue to remain payable.


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2. COMPENSATION EVENT

2.1 Compensation

(a) The Contracting Authority must compensate the Contractor for the Financial Disadvantage that can be attributed to the corresponding Compensation Event.

(b) In the case of Compensation Events other than a Contracting Authority Change in which the Financial Disadvantage turns out to be negative, the Financial Disadvantage is set to zero.

(c) For purposes of determining the Financial Disadvantage, the Contractor must provide the Contracting Authority with a specification of the Financial Disadvantage in which the following items are included if applicable:

Table x: Specification of Financial Disadvantage

Extra direct costs

Consultancy costs [ ]

Employee and equipment hours [ ]

Materials [ ]

Leasing [ ]

Supplies and Subcontractors [ ]

Additional one-off and time related general construction site costs

Arrangement of construction site facilities, including the installation and removal of huts

[ ]

Maintenance of construction site facilities [ ]

Consumption costs [ ]

Depreciation [ ]

Work administration and supervision [ ]


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Margin

Standard market-conforming margins for general costs [ ]% of the direct costs

Costs of postponement (in the case of Critical Delays)

The interest attributable to the Critical Delay in question accumulated on the principal amounts outstanding under the Finance Agreements

[ ]

The amounts the Contractor is charged under the Finance Agreements with regard to changes in the dates on which the Contractor is to pay the outstanding amounts under said Finance Agreements, insofar as those changes arise from the Critical Delay in question and insofar as these are in line with market conditions

[ ]

Total

[ ]

(d) The Contractor's substantiation of the Financial Disadvantage must be on the basis of the “open book” principle. This means that the Contractor must, insofar as necessary at the first request of the Contracting Authority, substantiate the Financial Disadvantage by providing the Contracting Authority with all the information and documents having any reasonable connection to the relevant increase in future expenditures or decrease in future revenue, whether or not due to third parties (including all Subcontractors referred to in Article 16). In any event, this information includes all the details concerning the planning, prices and financing of the Work associated with the Financial Disadvantage.

(e) The Contractor must ensure that the Financial Disadvantage is traceably connected to the following documents, which the Contractor must make available to the Contracting Authority on the Contract Date:

(i) the agreement concluded with the [the EPC contractor].

(ii) [●].

(f) If the information included in the documents referred to in (e) above is no longer valid, the Contractor must provide the Contracting Authority with the valid information within the 10 Business Days subsequent to the Contractor having learned that the information was out of date.

(g) The costs necessarily incurred by the Contractor in hiring Subcontractors and other third


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parties and constituting a portion of the Financial Disadvantage must be in line with market rates. The Contracting Authority is entitled to have a benchmark study conducted by an independent expert according to the provisions of Article 21.2 (Expert Determination).

2.2 Thresholds

(a) Notwithstanding the provisions of Section 2.1, the Contracting Authority shall only be obliged to pay the amount specified in Section 2.1 in the event of a Compensation Event (not being a Contracting Authority Change, a Contracting Authority Default or the remedying of a Critical Delay or a Critical Delay in Completion at the request of the Contracting Authority) if this amount is larger than or equal to € [ ].]

(b) Insofar as the cumulative amount of the Financial Disadvantage deemed payable by the Contractor pursuant to Paragraph (a) exceeds € [ ] in a Calendar Year, the Contracting Authority must compensate the Contractor for the part that exceeds this amount.


(a) The Contracting Authority may pay the compensation in one of the following ways:

(i) as a lump sum;

(ii) as an amount paid in instalments; or

(iii) by means of an adjustment to the Gross Availability Payment (GAP).

(b) The Contracting Authority shall indicate, on the basis of provisional insight into the extent and time distribution of the compensation, which of the methods as set out under (a) it wishes to adopt.

(c) Where the Contracting Authority elects to compensate the Contractor in the form of an adjustment of the Gross Availability Payment (GAP):

(i) Schedule 10 (Financial Model Adjustment Guideline) will apply where relevant; and

(ii) Schedule 2 (Payment Mechanism) shall be adjusted accordingly.

(d) Section 5 of Schedule 2 (Payment Mechanism) also applies where applicable.

2.4 Financial Benefit regarding a Contracting Authority Change

(a) Where the set Financial Disadvantage occurring in the event of a Contracting Authority Change pursuant to Section 2.1 of this Schedule is negative, thereby resulting in a financial benefit for the Contractor, the Contractor must pass on the said financial benefit to the Contracting Authority.

(b) The financial benefit must be paid to the Contracting Authority in accordance with a payment scheme determined on the basis of the expected actual realisation of that benefit, under the same circumstances.


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3. FORCE MAJEURE EVENT

3.1 Partial Non-Availability Percentage

In the case of a Force Majeure Event, a determination must be made as to the part(s) of the Infrastructure for which the Contractor will be unable to fulfil its obligations due to the event, or the parts for which it will only be able to fulfil its obligations at a Financial Disadvantage. This part is expressed as a Partial Non-Availability Percentage (PNAP %).

3.2 Compensation

In regard to the period during which a Force Majeure Event has occurred:

(a) the Contracting Authority must pay the Contractor all amounts that it owes the latter in respect of said period pursuant to this Agreement, on the understanding that the Gross Availability Payment (GAP) is replaced by the (100% - PNAP %) of the Gross Availability Payment (GAP);

(b) the Contracting Authority must also make an additional payment to the Contractor, equal to the sum of:

(i) PNAP% multiplied by the interest to be attributed to the duration of the Force Majeure Event on the principal amounts outstanding under the Finance Agreements;

(ii) PNAP% multiplied by the amounts payable by the Contractor under the Finance Agreements in regard to changes in the dates on which the Contractor is to pay the outstanding amounts under said Finance Agreements, insofar as those changes arise from the duration of the Force Majeure Event in question and insofar as these are in line with market conditions;

(iii) the costs of the measures taken by the Contractor pursuant to Paragraph (b) under (a) of Article 9.4 (Force Majeure Event); and

(c) if a decision is reached to continue this Agreement after a Force Majeure Event, the Contracting Authority must compensate the Contractor for the Financial Disadvantage (determined pursuant to Section 2 of this Schedule) arising in connection with correcting the damage caused by the Force Majeure Event to the Infrastructure.

3.3 Payment

Schedule 2 (Payment Mechanism), Section 5 (Invoicing and payment) also applies where relevant.

4. POSTPONED COMPLETION EVENT

4.1 Compensation

In the case of a Postponed Completion Event (which is not a Compensation Event or a Force Majeure Event), the Contracting Authority must pay the Contractor an amount equalling:

(a) in regard to the relevant Critical Delay in Completion, the interest payable on the principal amounts that remain outstanding under the Finance Agreements and which would have been settled with the Lump-Sum Payment;

plus


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(b) the amounts that the Contractor is charged under the Finance Agreements in regard to changes in the dates on which the Contractor is to pay the outstanding amounts under said Finance Agreements, insofar as those changes arise from the relevant Critical Delay in Completion and insofar as these are in line with market conditions.


Compensation must be paid as from the Payment Period following the Payment Period for which the duration of the Critical Delay in Completion is determined. If the full duration of the Critical Delay in Completion cannot yet be determined at the end of the Payment Period in which the Critical Delay in Completion (also) occurred, the compensation will be paid in the Payment Period following the Payment Period in question and this in proportion to the number of Calendar Days in the Payment Period in which the Critical Delay in Completion occurred. Schedule 2 (Payment Mechanism), Section 5 (Invoicing and payment) also applies where relevant.


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SCHEDULE 4 COMPENSATION FOR EARLY TERMINATION

1. TERMINATION DUE TO AN IMMEDIATE TERMINATION EVENT OR TERMINATION DUE TO CONTRACTOR DEFAULT

1.1 Compensation for termination prior to Financial Close

In the event of termination owing to Termination due to an Immediate Termination Event or a

Contractor Default prior to attaining Financial Close, the Contractor must pay the Contracting

Authority compensation in the amount of € [amount of the Financial Close Guarantee].

1.2 Compensation for termination after Financial Close

In the event of termination owing to Termination due to an Immediate Termination Event or a

Contractor Default after attaining Financial Close, the Contracting Authority must pay the

Contractor (or, if the compensation is negative, the Contractor must pay the Contracting

Authority) compensation equal to:

(a) compensation for the value (V) of the Work already completed by the Contractor, which amount shall be determined at the Contracting Authority’s discretion according to (A) the re-tendering method or (B) the valuation method.

(A) Re-tendering In the event of re-tendering, compensation is determined as follows: Compensation is equal to the highest amount bid in the re-tendering procedure described below minus the costs of re-tendering, the Contracting Authority’s other transaction costs and all costs pertaining to the termination incurred by the Contracting Authority. Re-tendering will take place as follows:

(i) the re-tendering procedure is contracted by the Contracting Authority, which at the Contractor’s request and subject to the nondisclosure rule shall keep the Contractor informed of the progress being made with the re-tendering;

(ii) the re-tendering takes place pursuant to the provisions of this Agreement on the date that this Agreement expires or subject to terms that are reasonably comparable thereto;

(iii) the (tender) agreement will commence on the date of its award and end on the original Expiry Date;


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(iv) tenderers must submit tenders containing an offer for a lump-sum payment for performing the Agreement in accordance with the provisions under ii and iii, which sum must be paid by the party awarded the contract to the Contracting Authority; and

(v) there must be at least three tenders from different tenderers.

If the Contracting Authority receives fewer than three tenders, it will then apply the valuation method.

(B) Valuation

In the case of valuation, compensation is determined as follows:

(i) The net present value of the payments (calculated using the Weighted Average Cost of Capital) that the Contracting Authority is expected to have made had the Agreement continued until the Expiry Date, in which the anticipated Availability Corrections and Performance Deductions to be applied in determining the expected Net Availability Payments, shall be equal to the average of these deductions over the most recent 12 Payment Periods (or less as the case may be, if the number of whole Payment Periods fall in the period from the Availability Date to the date on which this Agreement is ended);

minus

(ii) the net present value of the payments (calculated using the Weighted Average Cost of Capital) that the Contracting Authority is expected to have made to a replacement contractor that assumes the obligations of the Contractor under the terms of this Agreement, insofar as said obligations must be fulfilled from the day on which this Agreement ends up to and including the Expiry Date, in line with market rates;

minus

(b) a fixed compensation for additional costs (AC) equal to:

(i) € [ ] if this Agreement ends on a date prior to the Availability Date; and

(ii) € [ ] if this Agreement ends on a date after the Availability Date;

minus

(c) the total of the amounts paid by the insurer on the basis of insurances policies (Ins) as specified in Article 14.1 Paragraph (a), insofar as such amounts are not used to repair


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damage to the Infrastructure;

C = V – AC – Ins

The C and V amounts may be negative. The AC and Ins amounts may not be negative.


(a) The compensation must be paid within 30 Calendar Days of receiving the invoice indicating the calculated final amount.

(b) Interest must be paid on the compensation from the date that the Agreement is terminated to invoice date at a rate equal to the default interest rate due under the Finance Agreements (as long as this default interest conforms to market rates).

2. TERMINATION DUE TO CONTRACTING AUTHORITY DEFAULT OR DISCRETIONARY TERMINATION BY THE CONTRACTING AUTHORITY

2.1 Compensation

In the event of termination due to a Contracting Authority Default Event or a Discretionary

termination by the Contracting Authority, the Contracting Authority must pay the Contractor

compensation equal to:

(a) the principal amounts outstanding under the Finance Agreements (PA);

plus

(b) the costs that are charged to the Contractor under the Finance Agreements as a consequence of the termination of this Agreement, insofar as these are in line with market conditions (CFA);

plus

(c) the principal amounts outstanding under the Junior Debt Agreements (JD);

plus

(d) the paid-up and outstanding capital on shares in the Contractor plus any stipulated and paid share premium (Shar);

plus

(e) a return compensation (RC1) resulting in a return percentage after tax on the amounts listed in (c) and (d) for the period from the Contract Date to the date on which this Agreement is ended, equal to the weighted average percentage of the applied return


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requirements listed in the Updated Financial Model after tax on the amounts listed in (c) and (d) for the period from the Contract Date to the date on which the Agreement is ended (J), whereby:

(i) if the actual return percentage realised after tax on the amounts listed in (c) and (d) for this period is higher than the weighted average percentage of the applied return requirements listed in the Updated Financial Model after tax, this amount will be equal to zero;

(ii) in determining this amount, account must be taken of the following:

(A) the contract breakage costs pursuant to agreements entered into by the Contractor with Subcontractors in the performance of the Work, suppliers and consultants and arising in connection with the termination of the Agreement, insofar as these cost are not already accounted for under (b), and provided that they are in line with market conditions, up to a maximum of [ ];

(B) the interest payments already made under the Junior Debt Agreements;

(C) the distributions already made on shares and the posted reserves excluding the share premium;

plus

(f) a return compensation (RC2) equal to the amount resulting in a return percentage after tax on the amounts listed in (c) and (d) equal to the weighted average percentage of the applied return requirements listed in the Updated Financial Model after tax on the amounts listed in (c) and (d) for the period from the date on which the Agreement is ended to the Expiry Date;

minus

(g) the post-tax return that the Contractor can achieve by means of an alternative deployment of the amounts described in (c) and (d) above (AltR);

(i) for the period from the date on which this Agreement expires to the Expiry Date (i.e. the Expiry Date applicable upon full performance of this Agreement pursuant to the Project Planning);

(ii) for investing in investment opportunities that arise at the time of termination of this Agreement; and

(iii) for investment opportunities with characteristics similar to those affecting the performance of this Agreement (including the risk profile);

plus

(h) the amount in tax that the Contractor must necessarily pay in the Netherlands as a consequence of payment of the termination compensation (Tx). The Contracting Authority may pay this amount directly to the Netherlands Tax and Customs Administration.

C = PA + CFA + JD + Shar + RC1 + RC2 – AltR + Tx


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The PA , CFA , JD , Shar , RC1 , RC2, AltR , Tx amounts must not be negative.

2.2 Payment of Compensation


(b) Interest must be paid on the compensation in an amount equal to the weighted average project return for the period from the date that the Agreement is terminated to the invoice date.

3. TERMINATION DUE TO A PROLONGED DELAY EVENT

3.1 Compensation

In the event of termination due to a Prolonged Delay Event, the Contracting Authority must

pay the Contractor compensation equal to:


plus


plus

(c) the principal amounts outstanding under the Junior Debt Agreements (JD);

plus

(d) the paid-up and outstanding capital on shares in the Contractor plus any stipulated and paid share premium (Shar);

plus

(e) a return compensation (RC1*) resulting in a return percentage after tax on the amounts listed in (c) and (d) for the period from the Contract Date to the date on which this Agreement is ended, equal to the average return percentage on ten-year Dutch Government bonds, whereby:

(i) if the actual return percentage realised after tax on the amounts listed in (c) and (d) for this period is higher than the average return percentage on ten-year Dutch Government bonds (as published at the payment date), this amount will be equal to zero;

(ii) in determining this amount, account must be taken of the following:


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(A) the contract breakage costs pursuant to agreements entered into by the Contractor with Subcontractors and with suppliers and consultants in performance of the Work, and arising in connection with the termination of the Agreement, insofar as these cost are not already accounted for under (b), and provided that they are in line with market conditions, up to a maximum of [ ] Subcontractor;

(B) the interest payments already made under the Junior Debt Agreements;

(C) the distributions already made on shares and the posted reserves excluding the share premium;

plus

(f) a return compensation (RC2*) equal to the amount resulting in a return percentage after tax on the amounts listed in (c) and (d) for the period of five years from the date on which the Agreement expires equal to the average return percentage on ten-year Dutch Government bonds (as published on the date on which this Agreement expires);

minus

(g) the total of the amounts paid by the insurer on the basis of insurance policies (Ins) as specified in Article 14.1 Paragraph (a), insofar as such amounts are not used to repair damage to the Infrastructure;

plus

(h) the amount in tax that the Contractor must necessarily pay in the Netherlands as a consequence of the payment of the termination compensation (Tx). The Contracting Authority may pay this amount directly to the Netherlands Tax and Customs Administration.

C = PA + CFA + JD + Shar + RC1* + RC2 – Ins + Tx

The PA, CFA, JD, Shar, RC1*, RC2*, Ins, and Tx amounts must not be negative.



(b) Interest must be paid on the compensation in an amount equal to the weighted average project return for the period from the date that the Agreement is terminated to the invoice date.

4. TERMINATION DUE TO A FORCE MAJEURE EVENT

4.1 Compensation


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In the event of termination due to Contracting Authority Default, the Contracting Authority must pay the Contractor compensation equal to:


plus


plus

(c) the principal amounts outstanding under the Junior Debt Agreements minus interest payments already made on the basis of Junior Debt Agreements (JD*);

plus

(d) the paid-up capital on shares in the Contractor plus any agreed and paid premium minus payments already made on shares (Shar*);

minus

(e) the total of the amounts paid by the insurer on the basis of insurances policies (Ins) as specified in Article 14.1 Paragraph (a), insofar as such amounts are not used to repair damage to the Infrastructure;

plus

(f) the amount in tax that the Contractor must inevitably pay in the Netherlands as a consequence of the payment of the termination compensation (Tx). The Contracting Authority may pay this amount directly to the Netherlands Tax and Customs Administration.

C = PA + CFA + JD* + Shar* – Ins + Tx The PA, CFA, JD*, Shar*, Ins, and Tx amounts must not be negative.



(b) Interest must be paid on the compensation from the date that the Agreement is terminated to invoice date at a rate equal to the default interest rate due under the Finance Agreements (as long as this default interest conforms to market rates).


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SCHEDULE 5 CHANGES

1. Small Changes

1.1 Procedure

(a) The Contracting Authority may submit a request for a Small Change at any time. The Request must include the following details:

(i) a statement to the effect that the proposal involves a Small Change; and

(ii) a description of the Small Change.

The Contractor must process this request within [10] Business Days after it was made and convert it into a proposal for a Small Change as referred to in paragraph (c).

(b) The Contractor may submit a proposal for a Small Change as referred to in paragraph (c) at any time.

(c) The proposal for a Small Change must include the following details:

(i) a statement to the effect that the proposal involves a Small Change;

(ii) a description of the Small Change; and

(iii) a description of the measures and/or Work required in respect of or as a result of the Small Change.

(d) As soon as possible after receiving the proposal for a Small Change as specified in Paragraph (c), the Contracting Authority will inform the Contractor that either:

(i) it agrees with the proposal for a Small Change;

(ii) it does not agree with the proposal for a Small Change;

(iii) the change does not involve a Small Change.

(e) After the Contracting Authority has agreed to a Small Change, the Small Change will form part of the Agreement.

(f) If the Contracting Authority does not agree with the proposal for a Small Change, the Contractor may submit the proposal as an other Contractor Change.

1.2 Determining the Financial Disadvantage due to Small Changes

(a) In the event of a Small Change, the Financial Disadvantage is determined using the prices and margins referred to in the table below.

unit Price [ ]12 [ ]

12 To be completed by the Contracting Authority prior to tendering. If necessary, adjustable during the tendering period.


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(b) The prices in the above table are indexed annually according to Article 19.4 (Indexing other amounts)

2. OTHER CHANGES

2.1 Contracting Authority Change

(a) A Contracting Authority Change may not result in:

(i) Work that no longer has any direct connection with the original purpose of this Agreement; or

(ii) the Contractor having to act contrary to Regulations in performing the Work.

(b) If the Contractor can demonstrate that a Contracting Authority Change will adversely affect the risk profile of the Work, the Contractor or the Lenders, a guarantee must be provided to the effect that any additional risks will be borne or compensated by the Contracting Authority.

(c) Within [20] Business Days of the Contracting Authority making a request for a Contracting Authority Change or if it is established that a change must be effected as a Contracting Authority Change, the Contractor must provide the Contracting Authority with provisional information as stated in Paragraph (d) of this section. This does not apply if the Contractor is able to demonstrate that it is unable to implement the proposed Change.

(d) In the event of a Contracting Authority Change, the Contractor must provide the Contracting Authority with provisional information comprising:

(i) details as to how the Change will result in a Critical Delay or a Critical Delay in Completion;

(ii) an estimate if the matter involves a Small Change or a Large Change; and

(iii) the order of magnitude of the financial consequences of the proposed Change established in accordance with Section 2.9 (Determination of the Financial Disadvantage due to Changes) of this Schedule, (including an estimate of the costs of compiling and developing the Change proposal), which the Contracting Authority must compensate (assuming that this compensation will take place as a lump-sum payment).

(e) Upon receipt of the information provided in accordance with Paragraph (b), the Contracting Authority may request the Contractor to make an initial Change proposal as referred to in Section 2.4 (Change proposal)

2.2 Contractor Change

A Contractor Change may not result in:

(a) the Work falling outside the original generally agreed scope of this Agreement; or

(b) the Contracting Authority having to act contrary to Regulations.

2.3 Provisional information regarding a Contracting Authority Change

(a) In the event of a Contracting Authority Change, the Contractor must provide the


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Contracting Authority with provisional information in accordance with Paragraph (b) of this Section within [20] Business Days of the Contracting Authority making a request for a Contracting Authority Change or if it is established that a change must be effected as a Contracting Authority Change. This does not apply if the Contractor is able to demonstrate that it is unable to implement the proposed Change.

(b) In the event of a Contracting Authority Change, the Contractor must provide the Contracting Authority with provisional information comprising:

(i) details as to how the Change will result in a Critical Delay or a Critical Delay in Completion;

(ii) an estimate if the matter involves a Small Change or a Large Change; and

(iii) the order of magnitude of the financial consequences of the proposed Change established in accordance with Section 2.11 (Settlement of Financial Situation) of this Schedule, (including an estimate of the costs of compiling and developing the Change proposal), which the Contracting Authority must compensate (assuming that this compensation will take place as a lump-sum payment).

(c) The Contracting Authority may request the Contractor to make an initial change proposal as referred to in Section 2.4 (Change proposal) within [ ] Business Days of receipt of the information provided in accordance with (b) above.

2.4 Change proposal

(a) The Contractor must make an initial proposal for a Contracting Authority Change within [20] Business Days of receiving a request as outlined in the preceding Section. The Contractor may at any time make an initial proposal for a Contractor Change. An initial proposal for a Contractor Change or a Contracting Authority Change must comprise at least:

(i) a description of the Change(s) to be incorporated in this Agreement;

(ii) a description of how the Contractor wishes to introduce the Change;

(iii) details as to how the Change will result in a Critical Delay or a Critical Delay in Completion;

(iv) a proposal to process the Change as a Small Change or a Large Change;

(v) in the event of a Contracting Authority Change, a provisional overview of the Financial Disadvantage of the proposed Change established in accordance with Section 2.11 (Settlement of Financial Situation) of this Schedule, (including an estimate of the costs of compiling and developing the Change proposal), which the Contracting Authority must compensate (assuming that this compensation will take place as a lump-sum payment), or else of the Financial Benefit of the proposed Change for which the Contractor must pay the Contracting Authority;

(vi) in the event of a Contractor Change, a proposal to share the financial benefit of the Change with the Contracting Authority.

(b) The Contracting Authority may request additional information from the Contractor within [20] Business Days of receipt of the initial proposal.


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2.5 Contracting Authority Response

(a) The Contracting Authority must state within [20] Business Days of receipt of the proposal (or the additional information) specified in Section 2.4 (Change proposal) if it agrees to the Change proposal.

(b) The Contracting Authority may only withhold its consent to a Contracting Authority Change for which it has received a Change proposal if it is of the opinion that:

(i) the Change can be effected in a different manner as specified by the Contracting Authority, which results in less compensation to be paid by the Contracting Authority to the Contractor (or in more being paid by the Contractor to the Contracting Authority);

(ii) the Change can be effected in a different manner as specified by the Contracting Authority, which results in a smaller Critical Delay or a Critical Delay in Completion; or

(iii) costs charged are not in line with market conditions as stipulated in the definition of Financial Disadvantage or the Contracting Authority does not agree with the Contractor’s proposed manner of processing the Change as a Small or Large Change. In that event, the Parties must consult with each other and if they fail to reach agreement within [40] Business Days, the manner in which the Change shall be effected and the consequences thereof must be determined in accordance with Article 21 (Dispute Resolution).

(c) The Contracting Authority may approve a Contracting Authority Change subject to the right to have the amount of compensation it must pay to the Contractor determined in accordance with Article 21 (Dispute Resolution). In this case, the Contracting Authority must initiate the dispute resolution procedure within [10] Business Days.

(d) The Contracting Authority may attach conditions to its consent to a Contractor Change (such as sharing of the financial advantage of the Change). The Contractor may withdraw a Contractor Change after perusing the Contracting Authority’s conditions.

2.6 Further details

(a) If it has good cause to do so, the Contracting Authority may agree to the proposal subject to its further elaboration and consequent approval by the Contracting Authority. In this case, the Contractor must further elaborate the proposal.

(b) The Contracting Authority may request additional information from the Contractor within [20] Business Days of receipt of the elaborated proposal.

(c) The Contracting Authority must state within [20] Business Days of receipt of the elaborated proposal (or the additional information) if it agrees with the elaborated Change proposal.

(d) If the Contracting Authority does not agree with the elaborated proposal, the Parties must consult with each other and if they fail to reach agreement within [40] Business Days, the manner in which the Change shall be effected must be determined in accordance with Article 21 (Dispute Resolution). In this case, the Contracting Authority must initiate the dispute resolution procedure within [10] Business Days.

(e) The Contracting Authority may approve a Contracting Authority Change subject to the right to have the amount of compensation it must pay to the Contractor determined in accordance with Article 21 (Dispute Resolution).


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2.7 Proposed Change as part of this Agreement

A proposed Change forms part of this Agreement if the Contracting Authority:

(a) consents to the proposal as specified in Section 2.4 (Change proposal) whether or not (in the event of a Contracting Authority Change) such consent is subject to the right to have the amount of compensation that the Contracting Authority must pay to the Contractor determined in accordance with Article 21 (Dispute Resolution);

(b) consents to the elaborated proposal as specified in Section 2.6 Paragraph (c) whether or not (in the event of a Contracting Authority Change) such consent is subject to the right to have the amount compensation that the Contracting Authority must pay to the Contractor determined in accordance with Article 21 (Dispute Resolution); or

(c) the manner in which the Change will be effected and the amount of the compensation that the Contracting Authority must pay to the Contractor is determined in accordance with Article 21 (Dispute Resolution).

2.8 Withdrawal of proposed Change

(a) The Contracting Authority may withdraw a Contracting Authority Change until it becomes part of this Agreement pursuant to Section 2.7 (Proposed Change as part of this Agreement). This does not apply to a Contracting Authority Change that has to be effected pursuant to Article 13.1 (Contracting Authority Change) Paragraph (b) and Article 13.2 (Contractor Change) Paragraph (b).

(b) The Contractor may withdraw a Contractor Change until such time as it becomes part of this Agreement pursuant to Section 2.7 (Proposed Change as part of this Agreement).

2.9 Costs

(a) The costs to be borne by the Contractor in regard to processing a proposal for a Contracting Authority Change shall:

(i) form part of the Financial Disadvantage if the Contracting Authority Change becomes part of this Agreement; or

(ii) be compensated by the Contracting Authority by paying a lump sum if the Contracting Authority Change does not become part of this Agreement.

(b) The costs to be borne by the Contracting Authority in regard to processing a proposal for a Contractor Change must be refunded by the Contractor to the Contracting Authority. In the event of the Parties sharing the financial benefit of the Change, these costs shall be deducted from this benefit before distribution thereof takes place.

2.10 Miscellaneous provisions

(a) If a Party anticipates that a time period stated in this Schedule is not long enough in order for it to complete what it must do in such period, due to the extent or complexity of a proposed Change, the Parties must agree upon a reasonable extension. The Party requiring the extension must advise the other Party thereof as soon as possible (and, in any event, no later than before half of the original period has elapsed).

(b) If a Relevant Change in Law necessitates a Contracting Authority Change, the periods referred to in Sections 2.6 (Further Details) and 2.7 (Proposed Change as part of this Agreement) will be reduced as much as necessary to ensure that the Contracting Authority Change can be implemented before the Relevant Change in Law comes into


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force.

(c) Where any of the procedures outlined in this Schedule are followed, the Parties shall make themselves available for interim discussion so that a Change may be effected as quickly and efficiently as possible.

(d) A Contractor Change previously rejected by the Contracting Authority may not be proposed again by the Contracting Authority as a similar or largely similar Contracting Authority Change.

(e) The Contractor may not postpone the execution of a Contracting Authority Change because the Contracting Authority has given its consent on condition that the amount of compensation it must pay the Contractor is determined in accordance with Article 21 (Dispute Resolution).

2.11 Settlement of Financial Situation

In the event of a Change other than a Small Change, the Financial Disadvantage is calculated

in accordance with the provisions of Schedule 3 (Compensation for Supervening Events),

Section 2 (Compensation Event).


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SCHEDULE 6 DIRECT AGREEMENT

Direct Agreement

between

The State of the Netherlands

Ministry of Transport, Public Works and Water Management

Directorate-General for Public Works and Water Management

and

[Contractor B.V.]

and

[Security Agent]

and

Step-in Entity

(following accession)


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Table of contents

Article Page

1. Definitions 103

2. Relationship between this Agreement and the DBFM Agreement 103

3. No Termination Without Notification Of Termination And Interim Period 103

4. Correction Notice 105

5. Correction Report 105

6. End Of Interim Period 107

7. Step-In Period 108

8. Effecting Restructuring 109

9. End Of Step-In Period 110

10. Liquidation Of The Existing Contractor: Automatic Termination And Replacement 111

11. Liquidation of the Existing Contractor: Payments 111

12. General 113

13. Securities and Payments 113

14. Insurance Proceeds for Material Damage 114

15. Assignment of Rights and Obligations 115

16. Notice, Termination, and Waiver 115

17. Applicable Law and Disputes 115

18. Communication 116

19. Confidentiality 117

20. Jurisdiction And Changes In This Agreement 117

21. Entry of Step-In Entity 118

Annexes Page

ANNEX 1. DEFINITIONS 119

ANNEX 2. RESTRUCTURING NOTICE 122


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This Agreement is dated [date]

THE STATE OF THE NETHERLANDS, whose seat is established in The Hague, Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management [ ] , represented herein by [ ] (the Contracting Authority);

[ ], with its registered office at [ ], represented by [ ] [the Existing Contractor];

[ ] acting on behalf of the Lenders of the Existing Contractor [the Security Agent]; and

[Step-in Entity] (following incorporation and accession by virtue of Article 21) [the Step-in Entity];

jointly referred to as: the Parties

HAVE AGREED TO THE FOLLOWING:

1. Definitions

(a) The definitions are set out in Annex 1 (Definitions).

(b) Any capitalised term in this Agreement, which is not defined in Annex 1 (Definitions), is defined as set out in the DBFM Agreement.

2. Relationship between this Agreement and the DBFM Agreement

2.1 The rights and obligations of the Contracting Authority and the Contractor as set out in the DBFM Agreement shall remain fully valid, insofar as this Agreement does not provide otherwise.

2.2 In the event of inconsistency or conflict between the provisions of this Agreement and the DBFM Agreement, this Agreement shall prevail during the Interim Period and the Step-In Period. The DBFM Agreement shall prevail outside the Interim Period and the Step-In Period.

3. No termination without Termination Notice and Interim Period

3.1 The Contracting Authority may not:

(a) terminate the DBFM Agreement pursuant to Articles 10.1 (Termination due to an Immediate Termination Event) or 10.2 (Termination due to Contractor Default) of the DBFM Agreement;

(b) file for the liquidation of the Contractor; or

(c) make a claim under the Performance Bond or the Hand Back Bank Guarantee,

without notifying the Security Agent and the Contractor of its intention to do so (a Termination Notice).


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3.2 A Termination Notice must state the date on which the Contracting Authority requires termination or the date on which it wishes to file for the liquidation of the Contractor or wishes to make the claim as referred to in Article 3.1.

3.3 Where a Contractor’s payment obligation under a Finance Agreement is called in early, the Security Agent must inform the Contracting Authority thereof without delay (a Notice of Accelerated Payment).

3.4 The Interim Period commences on the earliest of the following dates:

(a) on the date of a Termination Notice as defined in Article 3.1;

(b) on the date of a Notice of Accelerated Payment as defined in Article 3.3; and

(c) on the date of Insolvency.

3.5 A Notice of Accelerated Payment issued as a result of a Termination Notice and a Termination Notice issued as a result of a Notice of Accelerated Payment shall not give cause for a new Interim Period to commence.

3.6 During the Interim Period, the Contracting Authority may not:

(a) terminate the DBFM Agreement pursuant to Articles 10.1 (Termination due to an Immediate Termination Event) or 10.2 (Termination due to a Contractor Default) thereof;


(c) make a claim under the Performance Bond or the Hand Back Bank Guarantee.


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3.7 No earlier than 5 Business Days and no later than 15 Business Days after the commencement of the Interim Period, the Contracting Authority shall submit a detailed list to the Security Agent of all Antecedent Obligations of which it is aware at that time and, if the Interim Period commences with a Termination Notice, of the events or circumstances that led to that notice. This detailed list must be accompanied by an estimate of the Continuation Costs incurred or to be incurred by the Contracting Authority in connection with the implementation of the Work during the Interim Period, if the Contracting Authority performs the Work itself or expects to perform it on the basis of the provisions in Article 3.10 or 3.11.

3.8 In the event that the Contractor initiates proceedings against the Contracting Authority pursuant to Article 17.2 et seq. to establish the lawfulness of a Termination Notice, the period of 15 Business Days as provided for in Article 3.7 shall not commence until the first Business Day following the day that the ruling delivered in the proceedings finds the Termination Notice to be lawful.

3.9 The Contracting Authority is entitled to withdraw a Termination Notice. This brings the Interim Period to an end. The Interim Period or the Step-In Period does not come to an end as a result of the withdrawal of a Notice of Accelerated Payment.

3.10 During the Interim Period the Contracting Authority is not required to wait for the Contractor to correct a Contractor Default within a reasonable period of time before enforcing its right pursuant to Article 11.1 (Contractor Default), Paragraph (c) subparagraph (ii) of the DBFM Agreement to correct the Contractor Default itself or have it corrected by a third party. The Contractor is no longer permitted to correct a Contractor Default itself after it has been notified by the Contracting Authority that the said default is to be corrected by or on the instructions of the Contracting Authority.

3.11 The Contractor shall refrain from carrying out all or specific Work during the Interim Period, as instructed by the Contracting Authority. The Contracting Authority is allowed to carry out such Work itself or have it carried out by a third party.

4. Correction Notice

4.1 The Security Agent may submit a Correction Notice during the Interim Period.

4.2 The Security Agent may withdraw the Correction Notice before the Step-In Date as referred to in Article 7.1.

5. Correction Report

5.1 The Contracting Authority must send an updated review of the Antecedent Obligations and an updated estimate of Continuation Costs to the Security Agent within 5 Business Days after the Security Agent has submitted a Correction Notice.

5.2 The Security Agent must submit a first draft of the Correction Report to the Contracting Authority within 30 Business Days of receiving the review as referred to in Article 5.1.

5.3 The Correction Report must include the following:

(a) all agreed Antecedent Obligations and Continuation Costs;

(b) the Correction Programme that has to be implemented in order to comply as yet with the Agreed Antecedent Obligations or to remove the causes or to limit the consequences of the event that led to the Termination Notice, the Notice of Accelerated Payment or the Insolvency, along with an estimate of the technical aspects of the Work;


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(c) a review of the expected financing required to implement the Correction Programme (and the manner in which this will be provided) and to comply with the current obligations under the DBFM Agreement;

(d) details of all outstanding amounts which the Contracting Authority must pay the Contractor and all other obligations arising from the DBFM Agreement that the Contracting Authority has not yet complied with (as of the date of the Correction Report);

(e) all other matters to be agreed between the Contracting Authority and the Security Agent for inclusion in the Correction Report; and

(f) the duration of the Correction Period.

5.4 Within 3 Business Days of submitting the draft as referred to in Article 5.2, the Contracting Authority must enter into consultation with the Security Agent in regard to:

(a) the said draft;

(b) all other matters which the Contracting Authority or the Security Agent believe still have to be included in the Correction Report; and

(c) if required, the appointment of experts to assist them in the preparation of the Correction Report.

Such consultation must be completed within 15 Business Days of commencement.

5.5 If the Step-In Period commences before the Completion Date, the Correction Period must in any case continue until the Completion Date or, if earlier, until the date on which the Restructuring is implemented. If the Step-In Period commences after the Completion Date, the Correction Period may not last for longer than 6 months, unless the Security Agent can demonstrate that a period of 6 months is unreasonably short in order to execute the Correction Programme.

5.6 The Contracting Authority and the Security Agent must jointly take all necessary measures to carry out inspections and, if necessary, jointly appoint experts to assist them in drawing up the Correction Report. From the date of the Correction Notice, the Contracting Authority and the Security Agent must make themselves available for consultations and exchange of information as soon as one of them considers this necessary or desirable, so as prepare the Correction Report in due time.

5.7 The Contractor shall on request co-operate fully in preparing and completing the Correction Report.

5.8 Within 20 Business Days after finalising the consultations as referred to in Article 5.4, the Security Agent must submit the Correction Report for approval to the Contracting Authority.

5.9 The Contracting Authority shall inform the Security Agent whether it has approved the Correction Report within 20 Business Days of receipt thereof. The Contracting Authority may only withhold its approval if the Correction Report is factually inaccurate or if it has reasonable grounds for believing that the Contractor does not have sufficient financial, technical, logistical and/or organisational resources at its disposal in order to complete the Work (or arrange same) and to comply with its obligations under the DBFM Agreement. Once approved, the Correction Report will be deemed to have been adopted on the date of such approval.

5.10 If the Contracting Authority fails to inform the Security Agent within the deadline stipulated in


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Article 5.9 whether or not it has approved the Correction Report, it will be deemed to have approved same. If it is determined in a binding opinion pursuant to Article 16.2 that the Contracting Authority has wrongly refused approval of the Correction Report, the Contracting Authority must then approve the Correction Report within 5 Business Days of receipt of the binding opinion.

5.11 Approval by the Contracting Authority of the Correction Report shall not:

(a) constitute any liability on the part of the Contracting Authority; and

(b) affect the obligations of the Contractor under the DBFM Agreement or this Agreement, unless the Correction Report explicitly deviates from the DBFM Agreement, having regard to the provisions of Article 13 (Changes) of the DBFM Agreement.

5.12 If, following approval of the Correction Report but before the date on which a Restructuring is implemented as referred to in Article 8, either the Contracting Authority or the Security Agent become aware of an Additional Antecedent Obligation, then either Party shall inform the other thereof. In such an instance the Contracting Authority and the Security Agent must do everything reasonably within their power to reach agreement within 10 Business Days on incorporating the Additional Antecedent Obligation into the Correction Report.

5.13 The costs of the Correction Report (including the costs of the experts as defined in Article 5.6) are payable by the Contractor.

5.14 Upon approval of the Correction Report and proper completion of the Correction Programme contained therein, the Contractor will be discharged of its obligations under the Agreed Antecedent Obligations and the Agreed Additional Antecedent Obligations. The said approval and completion shall not, however, detract from the Contracting Authority's rights in the event of the Contractor’s non-compliance with its other obligations under the DBFM Agreement.

5.15 In the event of inconsistencies between the Correction Programme and one or more provisions of the DBFM Agreement, the provisions of the DBFM Agreement shall prevail over the Correction Programme, unless the Correction Programme explicitly deviates from those provisions. In such instances, the Correction Programme shall prevail.

6. Termination of the Interim Period

6.1 The Interim Period shall end (unless the Contracting Authority and the Security Agent agree to extend it) at the earliest of the following dates:

(a) 10 Business Days after the list referred to in Article 3.7 has been submitted, unless the Security Agent has submitted a Correction Notice as referred to in Article 4.1;

(b) the day on which the Security Agent withdraws the Correction Notice as referred to in Article 4.2;

(c) (if the Contracting Authority has refused the approval referred to in Article 5.9 or is deemed to have refused it in accordance with Article 5.10) the expiry of the time limit referred to in Article 17.3, provided that the Security Agent has not initiated a dispute in this regard;

(d) (if the Contractor has initiated a dispute as described in Article 17.2 paragraph (b)) on the first Business Day after the day on which a binding opinion was issued stating that the refusal to grant the approval was well-founded;

(e) the day on which the Contracting Authority withdraws the Termination Notice in


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question as specified in Article 3.9;

(f) the Step-In Date by which the Step-In Period referred to in Article 7.1 commences;

(g) the first Business Day after the day on which it is determined in the binding opinion, pursuant to Article 17.2 (a), that the Termination Notice in question was unfounded; or

(h) termination of the DBFM Agreement in accordance with Article 10.1.

6.2 The Contracting Authority and the Security Agent may agree that the Interim Period is to end at another time than as stated in Article 6.1.

6.3 If the Interim Period expires before the Step-In Period commences and the Contracting Authority has not withdrawn the Termination Notice,

(a) the DBFM Agreement shall terminate, subject to the stipulations therein and without further notification being made to the Security Agent;

(b) the Contracting Authority may file for the liquidation of the Contractor; and

(c) the Contracting Authority may make a claim on the grounds of the Performance Bond or the Hand Back Bank Guarantee,

but in all instances not before the date referred to in the Termination Notice. Article 3.10 shall then continue to apply until the end of the DBFM Agreement.

7. Step-In Period

7.1 The Step-In Period shall commence on the Step-In Date, which occurs 5 Business Days after the Correction Report has been adopted (the Step-In Date).

7.2 The Contracting Authority's rights as referred to in Articles 3.10 and 3.11 shall terminate on the Step-In Date.

7.3 During the Step-In Period:

(a) the Contracting Authority and the Contractor must send the Security Agent a copy of all notices and inform the Security Agent of all payments between the Contracting Authority and the Contractor; and

(b) the Security Agent must keep the Contracting Authority updated on the manner in which the Contractor’s financing requirements are being met.

7.4 During the Step-In Period, the Contracting Authority may not:

(a) terminate the DBFM Agreement pursuant to Articles 10.1 (Termination due to an Immediate Termination Event) or 10.2 (Termination due to Contractor Default) of the DBFM Agreement;


(c) make a claim under the Performance Bond or the Hand Back Bank Guarantee,

7.5 The Contractor hereby gives the Security Agent an irrevocable mandate and power of attorney, with the right of substitution, to represent the Contractor during the Step-In Period


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vis-à-vis the other Parties to this Agreement and third parties. The Contractor shall, during this period, refrain from any legal act insofar as this has not been approved in advance by the Security Agent in writing. The other Parties to this Agreement may and must regard the Security Agent as the sole representative of the Contractor during the Step-In Period.

7.6 The Contracting Authority may not institute any claim for specific performance of the Contractor's obligations under the DBFM Agreement or the Correction Programme before completion of the Correction Programme.

8. Effecting Restructuring

8.1 At any time during the Step-In Period the Security Agent may:

(a) transfer the Contractor's rights and obligations under the DBFM Agreement (or have them transferred) to a Suitable Substitute Contractor by way of a contract takeover as referred to in Article 6:159 of the Dutch Civil Code; or

(b) implement changes in the contractual structure, the company structure, the management structure or the control structure of, and/or concerning the Contractor (including changes and/or terminations of Finance Agreements and/or contracts with Subcontractors) to the extent that, in the reasonable view of the Contracting Authority, the Contractor can be regarded as being adequately equipped to perform the Work as appropriate throughout the term of the DBFM Agreement.

(both constitute Restructuring).

8.2 The Security Agent must inform the Contracting Authority both promptly and comprehensively in regard to the background of a proposed Suitable Substitute Contractor and the manner in which the Suitable Substitute Contractor is to be financed.

8.3 Within 10 Business Days after receiving the information it requires in order to arrive at the decision in question, the Contracting Authority must announce whether it agrees to the proposed Restructuring, and that it will cooperate with a Restructuring as provided for in Article 8.1 (a).

8.4 The Contracting Authority may only refuse its consent and cooperation as referred to in Article 8.3, stating reasons, if the following has not been sufficiently demonstrated:

(a) that the person to whom the Security Agent wishes to assign the rights and obligations of the Contractor, or have them assigned, on the basis of the DBFM Agreement is a Suitable Substitute Contractor;

or, as the case may be,

(b) that as a result of the changes referred to in Article 8.1 Paragraph (b), there is a safeguard that the defaults which gave rise to the Termination Notice have been removed and will not occur again in the future and that the Contractor is sufficiently well equipped to carry out the Work properly for the remainder of the term of the DBFM Agreement.

8.5 In the event that the Contracting Authority refuses to give its consent or cooperation as referred to in Article 8.3 the Security Agent shall, without prejudice to the time limits stipulated elsewhere in this Agreement, be given the opportunity to adjust its proposals and resubmit them to the Contracting Authority.

8.6 In the event of a Restructuring as referred to in Article 8.1 Paragraph (a), the Contracting


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Authority, the Suitable Substitute Contractor, and the Security Agent must enter into a new direct agreement. This new direct agreement must be identical to this Agreement.

8.7 Where the Contracting Authority reasonably believes that the implementation of the Correction Programme has been completed, then it must, at the request of the Security Agent or the Contractor, confirm the same in writing to the Security Agent and the Contractor.

9. Termination of the Step-In Period

9.1 The Step-In Period shall end (unless the Contracting Authority and the Security Agent agree to extend it) at the earliest of the following dates:

(a) termination by the Contracting Authority pursuant to Article 9.2;

(b) the Step-Out Date as referred to in Article 9.3;

(c) the date on which a Restructuring is effected as referred to in Article 8;

(d) the Expiry Date;

(e) the date on which the Correction Period expires without the Correction Programme having been completed and Restructuring having been effected; or

(f) termination of the original DBFM Agreement in accordance with Article 10.1.

9.2 The Contracting Authority may:

(a) terminate the Step-In Period with immediate effect;

or, as the case may be,

(b) terminate the DBFM Agreement with immediate effect following expiry of the Step-In Period but before completion of the Correction Programme,

(in both instances without a new Interim Period commencing) if the Contractor:

(i) fails to comply with its payment obligations in connection with the Agreed Antecedent Obligations, the Agreed Additional Antecedent Obligations or the Continuation Costs within 10 Business Days after (a) the Step-In Date or (if later) (b) the date on which they become due; and/or

(ii) (following notice of default taking into account a reasonable time limit) continues to be in default:

(A) in taking all substantive measures to implement the Correction Programme; or

(B) in complying with its other obligations under the DBFM Agreement (insofar as no deviations have been agreed in respect of the Correction Report, irrespective of whether these are temporary or not).


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9.3 During the Step-In Period, the Security Agent may at any time give notice of termination of the Step-In Period to the Contracting Authority by a certain date (the Step-Out Date), with due observance of a notice period of not longer than 10 Business Days. Such notice of termination shall not detract from the Contractor's obligations that have arisen up to the Step-Out Date.

9.4 At the time the Step-In Period terminates pursuant to Article 9.1, Paragraphs (a), (b), (d) or (e):

(a) the Contracting Authority may terminate the DBFM Agreement, subject to the stipulations therein and without further notice to the Security Agent;

(b) the Contracting Authority may file for the liquidation of the Existing Contractor; and

(c) the Contracting Authority may make a claim on the grounds of the Performance Bond or the Hand Back Bank Guarantee,

but in all instances not before the date referred to in the Termination Notice. The Contracting Authority must inform the Security Agent about its intention to make use of the aforesaid possibilities.

10. Liquidation of the Existing Contractor: Automatic termination and replacement

10.1 The Original DBFM Agreement terminates automatically on the occurrence of Insolvency (and irrespective of whether a Notice of Termination has been given).

10.2 From the time referred to in Article 10.1, the Existing Contractor and the Contracting Authority shall be discharged from their obligations under the Original DBFM Agreement, with the exception of the obligations referred to in Article 24.6 (Continuous obligations) thereof.

10.3 From the time referred to in Article 10.1, the Replacement DBFM Agreement shall enter into force and the Step-in Entity shall become the “Contractor” as defined in this Agreement.

10.4 The Security Agent may, until no later than the 13th day following the day on which the amount of the Contracting Authority Payment is determined pursuant to Article 11.2, terminate the Replacement DBFM Agreement by notifying the Contracting Authority in writing. In such instances the Contracting Authority and the Step-in Entity will be discharged from all their obligations towards each other under the Replacement DBFM Agreement and the Contracting Authority must, pursuant to Article 11.1(a) make the Contracting Authority Payment in a single lump-sum amount to the Existing Contractor, on the understanding that, if the Contracting Authority Payment is a negative amount, the Existing Contractor must pay this amount to the Contracting Authority. In such instances, Articles 11.2 to 11.7 and 11.9 shall not apply.

10.5 The Contracting Authority, the Step-in Entity, and the Security Agent must enter into a new direct agreement as soon as possible after the time referred to in Article 10.1. This new direct agreement must be identical to this Agreement.

11. Liquidation of the Existing Contractor: Payments

11.1 In the event of automatic termination of the Original DBFM Agreement pursuant to Article 10.1:

(a) the Contracting Authority must pay the Existing Contractor a sum of money (the Contracting Authority Payment); and


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(b) as a consideration for the willingness of the Contracting Authority to enter into the Replacement DBFM Agreement, the Step-in Entity must pay a sum of money to the Contracting Authority equal to the Contracting Authority Payment, in the same instalments and at the same times as the Contracting Authority is obliged to make the Contracting Authority Payment to the Existing Contractor pursuant to Article 11.4; and

(c) the Step-in Entity must pay the Contractor an amount equal to the sum of the Continuation Costs.

11.2 The Contracting Authority Payment is equal to the amount that the Contracting Authority would have had to pay to the Existing Contractor pursuant to Article 10.1 Paragraph (b) (Termination due to an Immediate Termination Event) of the Original DBFM Agreement, if this Agreement had not applied.

11.3 The obligation of the Contracting Authority to pay the Contracting Authority Payment to the Existing Contractor only exists to the extent that the Contracting Authority receives payments from the Step-in Entity under Article 11.1 (b) (irrespective of whether this is a result of setting off).

11.4 The Contracting Authority Payment must, subject to Article 11.5, be paid in instalments to a value equal to 65 per cent of the sum of the payments that are paid periodically to the Step-in Entity under the Replacement DBFM Agreement.

11.5 If, after the time referred to in Article 10.1, the Interim Period terminates other than due to the commencement of the Step-In Period, or the Step-In Period terminates, any remaining part of the Contracting Authority Payment must:

(a) be paid by the Contracting Authority to the Existing Contractor in a single lump-sum amount; or

(b) be paid by the Step-in Entity to the Contracting Authority, but only if:

(i) the Step-In Period is terminated upon a Restructuring being effected by the Step-in Entity; or

(ii) the Contracting Authority makes a payment to the Step-in Entity pursuant to Article 10 (Early Termination) of the Replacement DBFM Agreement,

provided that the Contracting Authority's payment obligation to the Existing Contractor under the circumstances described in (a) above arises only to the extent that the Contracting Authority has received the same amount from the Step-in Entity (irrespective of whether this is a result of setting off).

11.6 If the Contracting Authority Payment is a negative amount, then the following shall apply in derogation of Articles 11.1 to 11.5 inclusive:

(a) the Existing Contractor must pay the Contracting Authority Payment to the Contracting Authority; and

(b) the Contracting Authority must pay the Contracting Authority Payment to the Step-in Entity, on the understanding that the Contracting Authority's payment obligation arises only to the extent that the Contracting Authority is receiving one or more amounts from the Existing Contractor pursuant to provision under (a).

11.7 In the event the Step-in Entity effects a Restructuring as referred to in Article 8.1 (a), the Step-in Entity must pay the Contracting Authority an amount equal to the Additional Payment


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and the Continuation Costs.

11.8 After receiving the amount referred to in Article 11.7 (irrespective of whether this is a result of setting off), the Contracting Authority must pay the same amount to the Existing Contractor. The Contracting Authority's payment obligation towards the Existing Contractor therefore exists only to the extent that the Contracting Authority has received the same amount from the Step-in Entity.

11.9 The amounts owed by the Contracting Authority to the Step-in Entity under the Replacement DBFM Agreement or this Agreement must be set off against the amounts owed by the Step-in Entity to the Contracting Authority pursuant to this Article 11 and vice versa.

12. General

12.1 The Contracting Authority consents to the Security Agent's technical adviser attending inspections, tests, and meetings between the Contracting Authority and the Contractor during the Interim Period and the Step-In Period. The foregoing sentence does not bind the Contracting Authority to carry out inspections and tests or to hold meetings with the Existing Contractor.

12.2 If pursuant to this Agreement the Contracting Authority at a given time is not entitled to make a claim on the basis of a bank guarantee and the time limit (original or as extended pursuant to this Article) of that bank guarantee ends during this period, the Contracting Authority is nevertheless entitled to make such a claim if the time limit of the bank guarantee is not extended by at least 1 month not later than on the third Business Day before the day on which it would expire.

12.3 Where the Contractor has a right to terminate the DBFM Agreement pursuant to Article 10.5 (Termination upon a Prolonged Delay Event) thereof, the same right shall be accorded to the Security Agent. The Security Agent may exercise that right by notifying the Contracting Authority and the Contractor.

12.4 Paragraph (d) et seq. of Article 3.5 (Refinancing) of the DBFM Agreement do not apply in the case of Refinancing obtained in connection with a Restructuring or following Insolvency.

13. Securities and Payments

13.1 The Contracting Authority takes notice of and gives consent, as far as is required, for the establishment of security rights as referred to in the Finance Agreements on the date of Financial Close for the benefit of the Lenders in regard to:

(a) the rights of the Existing Contractor vis-à-vis the Contracting Authority under the DBFM Agreement, this Agreement or the other contracts concluded or to be concluded by the Existing Contractor in order to execute its obligations under the DBFM Agreement and/or the rights of the Existing Contractor in accordance with other project documents (as defined in the Finance Agreements);

(b) the rights of the Existing Contractor under insurance policies concluded in connection with the execution of the Work;

(c) the shares in the capital of the Contractor;

(d) the rights of the Existing Contractor based on the bank accounts it maintains; and

(e) any claims by the Existing Contractor for non-contractual compensation for damage in


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the event of nationalisation or confiscation or comparable deprivation by the authorities of the rights of the Existing Contractor arising from or in connection with the DBFM Agreement.

13.2 The Contracting Authority confirms that, as from the date of this Agreement, it has not been notified that the rights of the Existing Contractor under the DBFM Agreement, insurances and/or this Agreement:

(a) have been encumbered with restrictive rights (as referred to in Article 3:8 of the Dutch Civil Code) in favour of parties other than the Lenders; or

(b) have been assigned to parties other than the Lenders.

13.3 Further to the pledge referred to in Article 13.1, the Contracting Authority shall as and from the date of Financial Close pay the Contractor all monies due to same under and/or in connection with the DBFM Agreement and/or this Agreement by lodgement to one or more bank accounts as designated in writing by the Security Agent. A payment made by the Contracting Authority into such an account shall release the Contracting Authority from its payment obligation to the Contractor. Upon signature of this Agreement, the Existing Contractor grants the Security Agent an unconditional and irrevocable power of attorney to give the instruction(s) referred to in the foregoing sentence and, if the Security Agent deems this necessary, to alter this instruction in writing. The Existing Contractor declares that the Contracting Authority shall only be discharged from its payment obligation by making payment into the designated bank account(s).

13.4 The Contracting Authority may not enforce the pledge as referred to in Article 17.2 (b) of the DBFM Agreement as long as the Interim Period or Step-In period continues.

14. Insurance proceeds for material damage

14.1 The provisions of this Article 14 apply with regard to the insurance concluded or to be concluded by the Contractor with regard to material damage to the Infrastructure.

14.2 No later than on the commencement date of insurance coverage as referred to in Article 14.1, the Contractor shall open an account with the Security Agent (the "Insurance Account"). The Contractor must ensure that all payments made to the policyholder pursuant to an insurance policy as envisaged in Article 14.1, are lodged to the Insurance Account.

14.3 As security for the fulfilment of its obligations under Articles 14.5 and 14.8, the Contractor hereby establishes or undertakes to establish a first pledge in favour of the Contracting Authority prior to the commencement date of insurance coverage as referred to in Article 14.1, in regard to the following:

(a) the rights of the policyholder pursuant to this insurance policy; and

(b) the rights of the Contractor vis-à-vis the Security Agent to the payment of the balance on the Insurance Account.

14.4 The Contracting Authority shall notify the insurer in regard to the first pledge referred to in Article 14.3 (a). The Contracting Authority shall also notify the Security Agent in regard to the first pledge referred to in Article 14.3 (b). The Security Agent acknowledges that its pledge on the Contractor's rights pursuant to the insurance coverage referred to in Article 14.1 and on the Insurance Account balance shall rank below a first pledge established or yet to be established in favour of the Contracting Authority pursuant to Article 14.3. The Security Agent shall waive any potential (existing or future) right to any setoff or suspension and any potential (existing or future) right to rely on a creditor’s default, force majeure or unforeseen


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circumstances that it experiences in connection with the Insurance Account, insofar as these rights diminish the rights of the Contracting Authority pursuant to its pledge under Article 14.3.

14.5 The Contractor may only have access to a receivable on the Insurance Account where the Contractor has outlined in advance that the amount in question is actually to be used responsibly to repair damage to the Infrastructure. The Contracting Authority and the Security Agent will in such instances waive their pledges on the amount in question.

14.6 Insofar as an amount received on the Insurance Account remains according to a joint written determination by the Contracting Authority and the Contractor following repair of the entire damage to the Infrastructure, the Contracting Authority shall waive its pledge on that amount.

14.7 Where an amount has been retained on the Insurance Account upon early termination of the DBFM Agreement, and the Contracting Authority is required to pay compensation to the Contractor under the DBFM Agreement due to the termination, the balance on the Insurance Account shall be paid to the Contractor up to a maximum of the termination compensation amount as soon as possible after the said termination compensation amount has been determined. The Contracting Authority shall in that case waive its pledge on said balance.

14.8 Where an amount has been retained on the Insurance Account upon early termination of the DBFM Agreement, and the Contractor is required to pay compensation to the Contracting Authority under the DBFM Agreement due to the termination, the balance on the Insurance Account shall be paid to the Contracting Authority up to a maximum of the termination compensation amount as soon as possible after the said termination compensation amount has been determined. The Security Agent shall in that case waive its pledge on said balance.

15. Assignment of rights and obligations

15.1 Insofar as not expressly consented to in this Agreement, none of the Parties can or may assign the rights or obligations arising from this Agreement to a third party without the prior written consent of the other Parties.

15.2 The Security Agent may not assign its rights and obligations arising from this Agreement to a subsequent security agent, unless this assignment is permitted under a Finance Agreement or prior consent is obtained for this purpose from the Contracting Authority. The Contracting Authority may not withhold this consent on unreasonable grounds nor shall it delay granting its consent.

15.3 The Contracting Authority must assign its rights and obligations under this Agreement to a third party to which in accordance with paragraph (b) of Article 24.3 (Assignment of rights) of the DBFM Agreement, its legal relationship towards the Contractor has been assigned under the terms of the DBFM Agreement. The other Parties must co-operate with such assignment.

16. Notice, termination, and waiver

16.1 This Agreement shall remain in force until the rights and obligations arising from it have been fully discharged and may not be prematurely terminated.

16.2 As far as this is possible, the Parties shall relinquish their right to rely on this Agreement being or becoming null and void. The Parties are not entitled to demand that this Agreement be rescinded.

17. Applicable Law and Disputes


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17.1 This Agreement is governed by the law of the Netherlands.

17.2 Any dispute concerning:

(a) the validity of a Termination Notice as referred to in Article 3.1; or

(b) the validity of the Contracting Authority’s refusal to approve the Correction Report as referred to in Articles 5.9 or 5.11,

shall be settled by a binding opinion (a determination by a third party as defined in Article 7:900 Paragraph 2 of the Dutch Civil Code). Where applicable, the person giving the binding opinion shall adopt the Correction Report as part of its binding opinion.

17.3 The Contractor or the Security Agent may institute proceedings as provided for in Article 17.2 by notifying the Contracting Authority thereof within 10 Business Days after receiving the Termination Notice or notification from the Contracting Authority that the approval referred to in Article 5.9 has been refused.

17.4 The Contracting Authority and the Contractor or the Security Agent must jointly appoint the third party charged with giving a binding opinion. In the absence of agreement on the said appointment within 5 Business Days after the Contractor or the Security Agent has given the notice to the Contracting Authority as referred to in Article 17.3, the third party charged with giving a binding opinion shall be appointed, at the request of the Contracting Authority or the Contractor or the Security Agent, by the Chairman of the Chamber of Commerce in The Hague.

17.5 The third party charged with giving a binding opinion must resolve the dispute within 20 Business Days of being appointed by issuing a binding opinion and, where applicable, adopt the Correction Report.

17.6 The costs of the third party charged with giving a binding opinion (and any advisers engaged by same) shall be borne by the Contracting Authority and/or the Contractor or the Security Agent on the pro rata basis to be determined by the binding adviser.

17.7 If the third party charged with giving a binding opinion does not adopt the Correction Report, the Restructuring Notice shall be deemed to have been withdrawn.

17.8 All other disputes arising in connection with this Agreement, or in connection with other ensuing agreements, shall be settled in accordance with Article 21 (Dispute resolution) of the DBFM Agreement.

18. Communication

18.1 The Existing Contractor, the Security Agent, and the Contracting Authority must inform each other as soon as is reasonably possible of any Insolvency or threat thereof that comes to their attention.

18.2 The Security Agent must inform the Contracting Authority as soon as is reasonably possible if it becomes aware of the occurrence of any circumstance that results or may be reasonably expected to result in monies becoming prematurely due and payable pursuant to a Finance Agreement.

18.3 The Contracting Authority must send the Security Agent a copy of all notices of default and notifications that it issues in accordance with Paragraph (a) of Article 10.1 (Termination due to an Immediate Termination Event) or 10.2 (Termination due to Contractor Default) of the DBFM


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Agreement.

18.4 Where this concerns the Contracting Authority, all correspondence, declarations, and notices concerning this Agreement shall be directed to the:

Ministry of Transport, Public Works and Water Management

[ ]

18.5 Where this concerns the Security Agent, all correspondence, declarations, and notices concerning this Agreement shall be directed to:

[ ]

18.6 Where this concerns the Existing Contractor, all correspondence, declarations, and notices concerning this Agreement shall be directed to:

[ ]

18.7 Where this concerns the Step-in Entity, all correspondence, declarations, and notices concerning this Agreement shall be directed to:

[address will be provided on accession pursuant to Article 21]

18.8 All notifications, announcements, requests, and other communications pursuant to this Agreement must be in writing. It is the responsibility of the sender to demonstrate that the other Party has received the communication.

18.9 All approvals and consent by a Party that are required pursuant to this Agreement must be received in advance and in writing.

19. Confidentiality

The Parties shall treat this Agreement and all information relating thereto as confidential and not divulge the contents thereof to third parties, except where:

(a) this is necessary for the performance of this Agreement, including the provision of information to arbitrators involved in resolving a dispute;

(b) one of the Parties is required to disclose such information on the basis of statutory regulations or the Finance Agreements; or

(c) the third party is obliged to observe confidentiality owing to its position or rules of professional conduct.

20. Authority to conclude this Agreement and to make changes thereto

20.1 The Contracting Authority declares and guarantees that it is fully authorised to enter into and sign this Agreement and that its obligations under this Agreement shall be lawful and binding.

20.2 The Security Agent declares and guarantees that it is fully authorised to enter into and sign this Agreement and that its obligations under this Agreement shall be lawful and binding.

20.3 The Existing Contractor declares and guarantees that it is fully authorised to enter into and


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sign this Agreement and that its obligations under this Agreement shall be lawful and binding.

20.4 The Step-in Entity declares and guarantees that it is fully authorised to enter into and sign this Agreement and that its obligations under this Agreement shall be lawful and binding.

20.5 Changes to this Agreement shall only be valid if they are confirmed by the Parties in writing.

21. Entry of Step-in Entity

21.1 The Security Agent is entitled to permit a legal entity under Dutch law (the Step-in Entity) to enter into this Agreement. This legal entity assumes all the rights and obligations of the Step-in Entity under this Agreement (including those from the Replacement DBFM Agreement).

21.2 No Grounds for Exclusion or Grounds for Refusal must apply to the Step-in Entity at the time of entering into the Agreement.

21.3 In the event that the Step-in Entity has not entered into this Agreement at the time that Insolvency occurs, Articles 10 and 11 shall not apply and Article 6.3 shall apply as if the Interim Period had expired without a Restructuring Notice having been issued.

Signed in …………………………… Signed in ……………………………

Date …………………………….. Date …………………………….

On behalf of the Contracting Authority, On behalf of the Contractor,

[ ] [ ]

Signed in ……………………………

Date …………………………….. Date …………………………….

On behalf of the Security Agent

[ ]


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ANNEX 1. DEFINITIONS

Additional Payment The amount that remains after the payment received by the Contractor from or on behalf of a Suitable Substitute Contractor for the assignment of the DBFM Contract is used in order to repay all the claims of the Lenders of the Existing Contractor and/or the Step-in Entity.

Contracting Authority Payment See Article 11.2.

Additional Antecedent Obligations

All the Antecedent Obligations that have not, as yet, been included in the Correction Report.

Continuation Costs The costs incurred by or on behalf of the Contracting Authority but payable by the Contractor in the performance of Work as outlined in Articles 3.10 and 3.11.

DBFM Agreement The Original DBFM Agreement or, following an Insolvency and the coming into force of the Replacement DBFM Agreement pursuant to Article 10.3, the Replacement DBFM Agreement.

Suitable Substitute Contractor

A potential substitute contractor regarding whom the Contracting Authority, using reasonable and objective criteria, judges that the following has been demonstrated:

(a) it is authorised to become a party to and to comply with the obligations of the Contractor under the DBFM Agreement;

(b) it will be able to comply with the obligations of the Contractor under the DBFM Agreement;

(c) it does not have the same management team as that of the Existing Contractor on the date, where applicable, of the Termination Notice, the Notice of Accelerated Payment, or the Insolvency date;

(d) the Existing Contractor’s equity capital providers (if any), whose attributable default (in their actions as shareholder, sub-contractor, or partner of]a sub-contractor, or otherwise) has led to the Termination Notice in question, are not a party thereto, and have no involvement therein, unless these providers of equity capital demonstrate that they will be in a position in the future to perform to the required level; and

(e) no Grounds for Exclusion or Grounds for Refusal apply.

Correction Period The permissible duration of the Correction Programme that


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the Contracting Authority and the Security Agent shall agree within the context of adopting the Correction Report, with due observance of Article 5.5.

Correction Programme The Correction Programme as included in the Correction Report.

Correction Report The report specified in Article 5.

Restructuring See Article 8.1.

Insolvency

The circumstance where the Existing Contractor:

(a) files for bankruptcy or is declared bankrupt; (b) applies for a moratorium on payments; or

(c) is dissolved.

Step-in Date See Article 7.1.

Step-in Entity See Article 20.1.

Step-in Period The period that commences as referred to in Article 7.1 and terminates as stipulated in Article 9.1.

Interim Period The period that commences as referred to in Article 3.4 and terminates as stipulated in Article 6.1.

Termination Notice See Article 3.1.

Notice of Accelerated Payment See Article 3.3.

Correction Notice Notice (pursuant to the model provided in Annex 2) of the intention to draw up a Correction Report or to effect a Restructuring.

Original DBFM Agreement The DBFM Agreement of [ ] between the Contracting Authority and the Existing Contractor including the agreed changes thereto.

Contractor (a) the Existing Contractor; (b) in the event of Insolvency and the coming into force

of the Replacement DBFM Agreement pursuant to Article 10.3, the Step-in Entity; or

(c) following a Restructuring as referred to in Article

8.1 (a), the Suitable Substitute Contractor.

Antecedent Obligations At any time, all the Contractor's obligations under the DBFM Agreement that have not been complied with up to that time.


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Agreed Antecedent Obligations The Antecedent Obligations as included in the Correction Report before or on the date that this report is adopted.

Agreed Additional Antecedent Obligations

The Additional Antecedent Obligations as included in accordance with Article 5.12 in the Correction Report after the date that the report has been adopted.

Agreement This direct agreement.

Party The Contracting Authority and/or the Existing Contractor and/or the Security Agent and/or the Step-in Entity, but only after its entry.

Step-Out Date See Article 9.3.

Replacement DBFM Agreement The DBFM Agreement that is considered to have been concluded between the Contracting Authority and the Step-in Entity on the date of entry of the Step-in Entity to this Agreement, under the suspensive condition of an Insolvency taking place and otherwise under the same conditions as the Original DBFM Agreement, insofar as not expressly stipulated otherwise or required in connection with this Agreement. The Replacement DBFM Agreement shall be considered to have been changed every time the Original DBFM Agreement is changed, so that these changes may be deemed to have been included therein.


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ANNEX 2. CORRECTION NOTICE

To: Ministry of Transport, Public Works and Water Management,

Directorate-General for Public Works and Water Management

[ ];

Copy to: [ ]

(address will be provided on entry pursuant to Article 21)

(The Step-in Entity)

Reference is made to the Direct Agreement between the Contracting Authority, the Existing Contractor, the Step-in Entity and the Security Agent, dated [ ]. The terms in this Notice shall have the same meaning as the terms in the aforementioned Direct Agreement.

In accordance with Article 4.1 of the Direct Agreement, we hereby inform you of our intent to proceed to draw up a Correction Report or to implement a Restructuring. You are requested to consider this notification as a Correction Notice.

On behalf of the Security Agent

[ ]


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SCHEDULE 7 MODELS

PART 1

FINANCIAL CLOSE GUARANTEE [Name and other details of bank or financial institution] Guarantee number ([ ]) THE UNDERSIGNED, [Name of bank or financial institution], with its registered office at [place], hereinafter referred to as the “Bank”, WHEREAS: [Contractor B.V.], with its registered office and principal place of business at [address] [postal code] [place], hereinafter referred to as the “Contractor”, and The State of the Netherlands, whose seat is established in The Hague, Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management, represented herein by [ ], hereinafter referred to as “the Contracting Authority”, have entered into a “DBFM Agreement" number [ ], on [contract date] hereinafter referred to as the "Agreement"; the Contractor is obliged under Article 3.1 (Financial Close Guarantee) of the Agreement to provide a bank guarantee in favour of the Contracting Authority as security for the fulfilment of its obligations towards the Contracting Authority in the performance of the Agreement; the Bank is prepared to issue such a guarantee in favour of the Contracting Authority in accordance with the conditions provided below. DECLARES AS FOLLOWS: 1. The Bank hereby irrevocably and unconditionally by way of an independent obligation

guarantees payment to the Contracting Authority of all amounts that the Contracting Authority may claim from the Contractor under the Agreement, up to a cumulative maximum amount of [ ] euro (€ [ ]).

2. The maximum amount referred to in Article 1 of this bank guarantee shall remain unchanged for

the duration thereof. 3. This bank guarantee is an abstract first demand guarantee. The Bank may not under any

circumstances rely on the underlying legal relationship between the Contracting Authority and the Contractor as set out in the Agreement.

4. On first demand in writing by the Contracting Authority and without demanding reasons or

further proof, the Bank shall proceed to pay all monies specified by the Contracting Authority to


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be due from the Contractor under the Agreement, up to the maximum amount as stipulated in Article 1.

5. This bank guarantee shall lapse on the first of the following dates:

(a) three months after [enter: the contract date]; or (b) upon receipt by the Bank of a declaration from the Contracting Authority that this bank

guarantee shall cease to apply. 6. This bank guarantee is governed by the law of the Netherlands. Any disputes arising in relation

to this bank guarantee shall be referred to the competent Court in The Hague. 7. This bank guarantee must be returned no later than the date referred to in Article 5 to the

undersigned at the following address: [address]. [place], [date] [name of bank]


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PART 2

PERFORMANCE BOND

[Name and other details of the bank or financial institution] Guarantee number ([ ]) THE UNDERSIGNED, [Name of bank or financial institution], with its registered office at [place], hereinafter referred to as the “Bank”, WHEREAS: [Contractor B.V.], with its registered office and principal place of business at [address] [postal code] [place], hereinafter referred to as the “Contractor”, and The State of the Netherlands, whose seat is established in The Hague, Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management, represented herein by [ ], hereinafter referred to as “the Contracting Authority”, have entered into a “DBFM Agreement" number [ ], on [contract date] hereinafter referred to as the "Agreement"; the Contractor is obliged under Article 3.4 (Performance Bond) of the Agreement to provide a bank guarantee in favour of the Contracting Authority as security for the fulfilment of its obligations towards the Contracting Authority pursuant to the Agreement; the Bank is prepared to issue such a guarantee in favour of the Contracting Authority in accordance with the conditions provided below. DECLARES AS FOLLOWS: 1. The Bank hereby irrevocably and unconditionally by way of an independent obligation

guarantees payment to the Contracting Authority of all amounts that the Contracting Authority may claim from the Contractor under the Agreement, up to a cumulative maximum amount of [ ] euro (€ [ ]).




4. The Bank shall, on first demand in writing by the Contracting Authority and without demanding

reasons or further proof, proceed to pay all monies specified by the Contracting Authority to be due from the Contractor under the Agreement, up to the maximum amount as stipulated in Article 1.


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(a) one month after [enter: scheduled availability date]; or

(b) upon receipt by the Bank of a declaration from the Contracting Authority that this bank guarantee shall cease to apply.

6. This bank guarantee is governed by the law of the Netherlands. Any disputes arising in relation

to this bank guarantee shall be referred to the competent Court in The Hague. 7. This bank guarantee must be returned no later than the date referred to in Article 5 to the



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PART 3

HAND BACK BANK GUARANTEE

[Name and other details of the bank or financial institution] Guarantee number ([ ]) THE UNDERSIGNED, [Name of bank or financial institution], with its registered office at [place], hereinafter referred to as the “Bank”, WHEREAS: [Contractor B.V.], with its registered office and principal place of business at [address] [postal code] [place], hereinafter referred to as the “Contractor”, and The State of the Netherlands, whose seat is established in The Hague, Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management, represented herein by [ ], hereinafter referred to as “the Contracting Authority”, have entered into a “DBFM Agreement" number [ ], on [contract date] hereinafter referred to as the "Agreement"; the Contractor is obliged under Article 7.3 (Performance Bond) of the Agreement to provide a bank guarantee in favour of the Contracting Authority as security for the fulfilment of its obligations towards the Contracting Authority pursuant to the Agreement; the Bank is prepared to issue such a guarantee in favour of the Contracting Authority in accordance with the conditions provided below. DECLARES AS FOLLOWS: 1. The Bank hereby irrevocably and unconditionally by way of an independent obligation

guarantees payment to the Contracting Authority of all amounts that the Contracting Authority may claim from the Contractor under the Agreement, up to a cumulative maximum amount of [ ] euro (€ [ ]).13




13 Enter indexed amount as per Article 8.3 Paragraph (a).


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4. On first demand in writing by the Contracting Authority and without demanding reasons or further proof, the Bank shall proceed to pay all monies specified by the Contracting Authority to be due from the Contractor under the Agreement, up to the maximum amount as stipulated in Article 1.


(a) [enter: the duration referred to in Article 7.3 Paragraph (b) of the DBFM-Agreement] months after [enter: the Expiry Date]; or

(b) upon receipt by the Bank of a declaration from the Contracting Authority that this bank guarantee shall cease to apply.

6. This bank guarantee is governed by the law of the Netherlands. Any disputes arising in relation

to this bank guarantee shall be referred to the competent Court in The Hague. 7. This bank guarantee must be returned, after the expiry date as referred to in Article 4, to the



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PART 4

CONFIRMATION OF FINANCIAL CLOSE

[LETTERHEAD OF THE FACILITY AGENT / INTERCREDITOR AGENT]

To: The State of the Netherlands, whose seat is established in The Hague, Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management, represented herein by [ ], hereinafter referred to as “the Contracting Authority”, [Contractor B.V.], with its registered office and principal place of business at [address] [postal code] [place], hereinafter referred to as the “Contractor”, [Security Agent] [place], [date] Dear [ ], With reference to the Finance Agreements concluded with [name of Contractor] for a total amount of € [amount] [amount in words] dated [date], with reference [ ], hereinafter referred to as the “Finance Agreements”, we hereby declare that we have duly received the documents and supporting documents set out in the summary below in good order and to our full satisfaction and that ‘Financial Close’ in respect of the ‘DBFM Agreement’ with number [ ] has accordingly been achieved on the date as stipulated above. Yours sincerely, [name of Facility Agent / Intercreditor Agent]


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PART 5

DETERMINATION OF GROSS AVAILABILITY PAYMENT AND WEIGHTED AVERAGE COST OF CAPITAL

THE UNDERSIGNED, The State of the Netherlands, whose seat is established in The Hague, Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management, represented herein by [ ], hereinafter referred to as “the Contracting Authority”, and [Contractor B.V.], with its registered office and principal place of business at [address] [postal code] [place], hereinafter to be referred to as the “Contractor”, WHEREAS: The Contracting Authority and the Contractor have entered into a “DBFM Agreement" number [ ], on [contract date] hereinafter referred to as the "Agreement"; DECLARE AS FOLLOWS: The Contracting Authority and the Contractor have, with reference to the Agreement and for the purpose of attaining Financial Close, jointly determined the Gross Availability Payment (GAP) on the basis of the Financial Model at [ ]. The Contracting Authority and the Contractor have further jointly determined the weighted average cost of capital on the basis of the Financial Model at [ ]. [place], [date] [place], [date] On behalf of the Contractor, On behalf of the Contractor, [ ] [ ]


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SCHEDULE 8 MANAGEMENT PLAN

PART 1

BASIC MANAGEMENT PLAN AND SUBPLANS GOVERNING THE TENDER

1. Basic Management Plan

[The Basic Management plan as presented by the Contractor during the tendering stage.]

2. Subplans governing the Tender

[The Subplans (elaborations of the Basic Management Plan) submitted by the Contractor during the tendering stage.]

PART 2

DETAILED SUBPLANS

[The titles and descriptions of the Subplans (elaborations of the Basic Management Plan) which the Contractor must submit pursuant to Article 8.1 Paragraph (d) together with the conditions and deadlines governing the submission of these Subplans by the Contractor.]


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SCHEDULE 9 PROGRAMME OF REQUIREMENTS

PART 1

INFRASTRUCTURE DEFINITIONS

1. Areas

1.1 RWS Area

[Description (drawings) of the RWS Area in the period from the Commencement Date to the Completion Date and in the period from the Completion Date to the Expiry Date]

1.2 Third-Party Area

[Description (drawings) of the Third-Party Area]

2. Existing Infrastructure

[Summary of objects which inter alia the Existing Infrastructure comprises]


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3. RWS Infrastructure

3.1 Objects not included in the RWS Infrastructure

[Summary of objects that are not included in the RWS Infrastructure]

3.2 RWS Infrastructure Objects

Table 1. RWS Infrastructure Objects

subsystem decomposition

Commencement Date

Availability Date

Completion Date

Expiry Date

object 1 √ √ √

object 2 √ RWS

Infrastructure

(…)


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4. Third-Party Infrastructure

4.1 Objects not included in the Third-Party Infrastructure

[Summary of objects that are not included in the Third-Party Infrastructure]

4.2 Third-Party Infrastructure Objects

Table 2. Third-Party Infrastructure Objects

subsystem decomposition Commencement Date On the date Completion Certificate is issued

object 1 √ √

object 2 √ Third-Party

Infrastructure

(…)


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PART 2

OUTPUT SPECIFICATIONS

14 The Third-Party Infrastructure is not subject to any different Hand Back requirements, and only the Completion Requirements apply hereto. After completion, the Third-Party Infrastructure disappears from the scope of the project.

Table 3. Requirements Breakdown Structure

Requirement Outset requirement

Transition

requirement

Tender Requirement

Completion requirement

Hand Back requirement14

[object a] must [Requirement 1] √ √ √

[object b] must [Requirement 2] √

The RWS Infrastructure RWS must [Requirement 3] √ √

The Infrastructure must [Requirement 4] √

The Third-Party Infrastructure must

[Requirement 5] √ √

[object c] must [Requirement 6] √

[object x + object y] must [Requirement 7] √ √

(…) must (…) √


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PART 3

MANAGEMENT SPECIFICATIONS

[The requirements governing the Management System and descriptions of the procedures to be followed.]


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PART 4

CERTIFICATE PLAN

1. Commencement Certificate

[The conditions governing issuance of the Commencement Certificate, with reference to the documents that may be used by the Contractor in demonstrating that these conditions have been met.]

2. Availability Certificate

[The conditions governing issuance of the Availability Certificate, with reference to the documents that may be used by the Contractor in demonstrating that these conditions have been met.]

3. Completion Certificate

[The conditions governing issuance of the Completion Certificate, with reference to the documents that may be used by the Contractor in demonstrating that these conditions have been met.]

4. Part Completion Certificate

[The conditions governing issuance of the Part Completion Certificate, with reference to the documents that may be used by the Contractor in demonstrating that these conditions have been met.]

5. Hand Back Certificate

[The conditions governing issuance of the Hand Back Certificate, with reference to the documents that may be used by the Contractor in demonstrating that on the Expiry Date, the RWS Infrastructure will be in conformity with the conditions governing issuance of the Hand Back Certificate]


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PART 5

CONTRACTOR’S PROGRAMME OF REQUIREMENTS

[The Contractor’s Programme of Requirements (elaboration of Contracting Authority’s Programme of Requirements), as submitted by the Contractor during the Tender stage.]


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SCHEDULE 10 FINANCIAL MODEL ADJUSTMENT GUIDELINE

PART 1

GENERAL PROVISIONS

1. Updating of Financial Model

(a) Prior to submitting the Updated Financial Model at Financial Close, the Contractor must update the Original Financial Model pursuant to the provisions of Part 1 and Part 2 of this Schedule.

(b) Where the Updated Financial Model is used for purposes of determining the payment due in accordance with Article 9.3 (Compensation Event), the Contractor must update the most recent Updated Financial Model pursuant to the provisions of Part 1 and Part 3 of this Schedule.

(c) In determining the payment due in accordance with Article 10 (Premature Termination), the Contractor must update the most recent Updated Financial Model pursuant to the provisions of Part 1 and Part 4 of this Schedule.

(d) In determining the payment due in accordance with Article 3.4 (Refinancing), the Contractor must update the most recent Updated Financial Model pursuant to the provisions of Part 1 and Part 5 of this Schedule.

(e) In determining the payment due in accordance with Article 20 (Sharing of Excess Profits), the Contractor must update the most recent Updated Financial Model pursuant to the provisions of Part 1 and Part 6 of this Schedule.

(f) When submitting the Updated Financial Model, the Contractor must include a notice, titled “Updating of Financial Model”. The Contractor must provide a summary in this notice in accordance with Article 3.5 Paragraph (c), setting out the adjustments made in the Updated Financial Model.

(g) Adjustments in the Updated Financial Model are subject to joint consultation between the Parties. The Contracting Authority is entitled to verify the adjustments in the Updated Financial Model and to this end, to call in a third-party (financial) expert if necessary.

(h) Within 30 Business Days after receiving the “Updating of Financial Model” notice, the Contracting Authority shall notify the Contractor as to whether or not it shall approve the adjustments in the Updated Financial Model. Where the adjustments in the Updated Financial Model are acceptable to the Contracting Authority, the said adjusted Updated Financial Model will count as the most recent Updated Financial Model.

2. Technical requirements governing the Model in the Updated Financial Model

(a) The Updated Financial Model must meet the following requirements:

(i) the Updated Financial Model must be compatible with the software [ ] or with the replacement software as approved by the Contracting Authority;


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(ii) the Updated Financial Model must be a standalone model and therefore should not include any links to other models or plug-ins or be dependent on other third-party software;

(iii) there must be a clear distinction between input (variable input and fixed input), calculation fields and output;

(iv) where the cells refer to and where they derive from must be traceable. The input cells must be recognisable as distinguished from the derivative cells;

(v) a manual must be available with clear user instructions, including a clear description of the functions.

(b) Where developments in software render usage of the Updated Financial Model impossible, the Contractor shall be required to adjust and upgrade the Updated Financial Model in consultation with the Contracting Authority so as to ensure that the Updated Financial Model remains operable.

3. Technical requirements governing the Updated Financial Model

(a) The Updated Financial Model must be capable of displaying the balance sheet, the profit and loss account and the cash flow statement and be in conformity with generally accepted accounting principles; in this regard, the Contractor is free to make use of the Dutch standard (Book 2, Title 9 of the Dutch Civil Code) or the IFRS standards.

(b) Projected figures must be provided on a quarterly basis (at the end of the quarter), expressed in nominal amounts and displayed up to two years after the Expiry Date.

(c) The Updated Financial Model must (at the very least) include details of:

(i) the Contract Date, the Scheduled Availability Date, the Scheduled Completion Date, and the Expiry Date;

(ii) the Indexation Formula;

(iii) all relevant assumptions such as the (economic) life, depreciation periods (as for each project component), cost structure (as for the capital investments and operational costs for the principal project components in the Development Period and the Availability Period) forecasts of Availability Corrections and Performance Deductions, tax treatment, types of equity (including margins and fees), term loan(s), price and inflation indices, required return on equity after tax and equity structure plus other financial instruments;

(iv) the relevant anticipated financial results such as the weighted average discount rate, the (weighted) average project return, NCW estimate, outline statement of assets, valuation of risks, and the relevant financial ratios such as the DSCR (annual and average) and the LLCR (annual en average);

(v) details of the value added tax amounts, corporate tax and any other tax receivable or payable by the Contractor at various stages during the term of the Contract; and

(vi) The return percentage after tax required in respect of paid-up and outstanding capital on shares in the Contractor plus any share premium due and paid and the capital sums outstanding under the Junior Debt Agreements.

(d) Unless explicitly provided to the contrary, the Updated Financial Model must give details


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of the situation pertaining at the review date.

4. Miscellaneous

(a) In none of the instances in which the Updated Financial Model is adjusted pursuant to this Schedule may any correction take place concerning previously made Availability Payments.

(b) The Updated Financial Model may not be adjusted in connection with macroeconomic developments, expenditures or revenues, unless they arise pursuant to the agreed financial consequences of Refinancing and a Compensation Event (as determined in accordance with the Updated Financial Model).

(c) Usage of the Updated Financial Model may not result in the receipt of a payment which would lead to a situation in which a previously determined payment following a Supervening Event is paid once more either in full or in part.

(d) The Updated Financial Model must be updated insofar as necessary in regard to changes in the Scheduled Availability Date (and likewise in the Scheduled Completion Date and the anticipated Expiry Date) pursuant to Article 9.2 Paragraph (a), and the Scheduled Completion Date pursuant to Article 9.5 Paragraph (a).


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PART 2

SPECIAL STIPULATIONS GOVERNING THE FINANCIAL CLOSE

1. Updating on Financial Close

To facilitate the achievement of Financial Close, the Contracting Authority and the Contractor shall apply the Financial Close protocol incorporated in Annex 1 (Financial Close protocol).


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PART 3

SPECIAL STIPULATIONS GOVERNING COMPENSATION EVENT

1. Adjustment of Updated Financial Model in event of GAP adjustment

When the Contracting Authority informs the Contractor that it proposes to make a payment pursuant to Article 9.3 (Compensation Event) by means of an adjustment in the Gross Availability Payment as provided for in Schedule 3 (Compensation for Supervening Events), Section 2.3, the following stipulations will apply.

(a) The Contractor must adjust the most recent Updated Financial Model so that it gives details of the situation that applied immediately prior to the Supervening Event.

(b) The Contractor processes the part of the Financial Disadvantage that is not being paid by the Contracting Authority pursuant to Schedule 3 (Compensation for Supervening Events), Section 2.2, in the Updated Financial Model provided for under paragraph (a), whereby the Gross Availability Payment (GAP) ensuing from this model remains unchanged.

(c) The Contractor processes the part of the Financial Disadvantage that the Contracting Authority will pay pursuant to Schedule 3 (Compensation for Supervening Events), Section 2.2, in the Updated Financial Model as adjusted pursuant to Paragraph (b). The Contractor then calculates the new GAP based on these new input parameters. The Contractor must demonstrate that there are no other factors influencing the GAP arising from this step other than the payment ensuing from the Financial Disadvantage (including the costs associated with additional financing, if any).

(d) The Contractor must demonstrate that the new GAP being calculated in accordance with Paragraph (c), shall be such that the return percentage after tax in respect of:

(i) the paid-up and outstanding capital on shares in the Contractor plus any stipulated and paid share premium; and

(ii) the principal amounts outstanding under the Junior Debt Agreements

remain unchanged vis-à-vis the situation that pertained immediately prior to the occurrence of the Supervening Event.

(e) The Contractor must take the steps referred to in Paragraphs (a) to (c) within 30 Business Days after receiving the notice from the Contracting Authority referred to under (a). Once these steps have been taken and once the Contracting Authority has informed the Contractor that it has opted to make (full or partial) payment to the Contractor by way of an adjustment in the Gross Availability Payment as referred to in Schedule 3 (Compensation for Supervening Events), Section 2.3 Paragraph (a) subsection (iii), the Updated Financial Model referred to under (c) will then be regarded as the most recent Updated Financial Model.


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PART 4

SPECIAL STIPULATIONS GOVERNING EARLY TERMINATION

1. Termination due to an Immediate Termination Event or Termination due to Contractor Default

In determining the present value of the payments expected to be made by the Contracting Authority pursuant to Schedule 4 Section 1.2 Paragraph (a) subsection (B) (i), the Contractor shall adjust the most recent Updated Financial Model so that this model shows the payments expected to have been made by the Contracting Authority in the event of the Agreement proceeding to the Expiry Date.

2. Termination due to Contracting Authority Default or Discretionary Termination by the Contracting Authority

(a) The Contractor shall update the Updated Financial Model so that on the Expiry Date of the Agreement the Model provides an accurate account of the principal sums that are outstanding under the Junior Debt Agreement as referred to in the compensation component JD and the paid-up and outstanding capital on shares plus any share premium due and paid as provided in the compensation component Shar in Schedule 4 Section 2.1 Paragraphs (c) and (d).

(b) In determining the compensation component RC1 pursuant to Schedule 4 Section 2.1 Paragraph (e), the Contractor shall update the Updated Financial Model as from the date on which the Agreement ends so that the Model provides an accurate account of the financial result for the period from the Contract Date to the date on which the Agreement ends.

(c) In determining the compensation component RC1 pursuant to Schedule 4 Section 2.1 Paragraph (e), the Contractor where necessary shall append to the Updated Financial Model a module which provides a calculation of the compensation component RC1.

3. Termination due to a (prolonged) Delay Event

(a) The Contractor shall update the Updated Financial Model so that on the Expiry Date of the Agreement this provides an accurate account of the principal sums that are outstanding under the Junior Debt Agreement as referred to in the compensation component JD and the paid-up and outstanding capital on shares plus any share premium due and paid as provided in the compensation component Shar in Schedule 4 Section 3.1 Paragraphs (c) and (d).

(b) In determining the compensation component RC1 referred to in Schedule 4 Section 3.1 Paragraph (e), the Contractor shall update the Updated Financial Model as from the date on which the Agreement ends so that the Model provides an accurate account of the financial results for the period from the Contract Date to the date on which the Agreement ends.

(c) In determining the compensation component RC1 pursuant to Schedule 4 Section 3.1 Paragraph (e), the Contractor shall append to the Updated Financial Model a module


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which provides a calculation of the compensation component RC1.

4. Termination due to a Force Majeure Event

The Contractor shall update the Updated Financial Model so that on the Expiry Date of the Agreement this provides an accurate account of the principal sums that are outstanding under the Junior Debt Agreement as referred to in the compensation component JD and the paid-up and outstanding capital on shares plus any share premium due and paid as provided in the compensation component Shar in Schedule 4 Section 4.1 Paragraphs (c) and (d).


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PART 5

SPECIAL STIPULATIONS GOVERNING REFINANCING

1. Financial Model Adjustment in event of Refinancing (Article 3.4)

(a) The discussions concerning the financial benefit and the subsequent payment schedule as referred to in Article 3.4 must lead to agreement as to the manner of adjustment of the Updated Financial Model and the net effect of these adjustments so as to facilitate determination of the said financial benefit.

(b) The determination of the financial benefit must be based on a comparison between the payments that are expected to be made by the Contractor to its shareholders before and after the Refinancing.

(c) To this end, two calculations are made – before and after the Refinancing – based on 2 new Financial Models: (i) the pre-refinancing Updated Financial Model and (ii) the post-refinancing Updated Financial Model. Except for the net effect of the Refinancing proper, all assumptions and formulas must be the same in both of these models.

(d) The pre-refinancing Updated Financial Model gives a projection of the Contractor’s cash flows, including the payments expected to be made by the Contractor to the Shareholders from the proposed Refinancing date to the Expiry Date.

(e) To arrive at the pre-refinancing Updated Financial Model, the Contractor must make use of the most recent Updated Financial Model. The results achieved for the period between the proposed moment of Refinancing and the Expiry Date of Compensation Events and Contracting Authority Changes that have taken place between the moment of Financial Close and the proposed moment of Refinancing must be processed in the pre-refinancing Updated Financial Model. In so doing, the Contractor indexes each amount expressed in euros and indexed in this Agreement in accordance with the system outlined in Article 19 (Indexation). In calculating the Index figures which wholly or partly refer to the period following the date of Refinancing, the development in each price index figure in the Indexation Formula is afforded a growth rate that is equal to the geometric mean for that price index figure over a period of 5 calendar years that precedes the year in which Refinancing takes place.

(f) The post-refinancing Updated Financial Model is obtained by adjusting the pre-refinancing Updated Financial Model in regard to the financing conditions that apply as from the moment of Refinancing.

(g) The financial benefit is then determined and paid as follows:

(i) In regard to the period as from the proposed moment of Refinancing to the Expiry Date, the payments made by the Contractor to its Shareholders on the basis of the pre-refinancing Updated Financial Model are deducted from the payments expected to be made by the Contractor to the Shareholders on the basis of the post-refinancing Updated Financial Model.

(ii) The balance arising in accordance with Paragraph (g) subsection (i) of this Section is distributed in a series of payments for each Quarter as from the date


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of Refinancing to the Expiry Date. This is the series of payments that is referred to in Article 3.4 Paragraph (d) of the Agreement.

(iii) Each quarterly amount from the series of payments provided for in Paragraph (g) subsection (ii) of this Section is increased by 50%. The series of quarterly amounts thus resulting must then be transferred by the Contractor to the Contracting Authority, as desired by the Contractor, as follows:

(A) in quarterly amounts in accordance with the series of quarterly amounts; or

(B) In a lump sum, whereby the series of quarterly amounts is converted into cash at the moment or Refinancing, based on the Weighted Average Cost of Capital arising as a result of the post-refinancing Updated Financial Model.

(iv) The Contracting Authority shall be entitled to set off the payment(s) to be received subject to subsection (iii) against all receivables due from the Contractor.


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PART 6

SPECIAL STIPULATIONS GOVERNING EXCESS PROFIT

1. Financial Model Adjustment in event of Excess Profit (Article 20.2)

For purposes of updating the Updated Financial Model to be provided by the Contractor to the Contracting Authority pursuant to the provisions of Article 20.2, the following stipulations shall apply:

(a) adjustments to the most recent Updated Financial Model shall take place in respect of all agreed or fixed financial consequences of all Supervening Events.

(b) adjustments to the Updated Financial Model shall not take place in respect of costs incurred as a result of payments to the Shareholders of the Contractor that:

(i) were not provided for in the Original Financial Model;

(ii) have no bearing on the services being proposed at the time of entering the Agreement in connection with the performance of the Agreement; or

(iii) are designed to limit the excess profit as provided for in this Agreement.


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ANNEX 1

FINANCIAL CLOSE PROTOCOL

1. Definitions

Capitalised terms used in this Annex 1 shall have the following meaning:

(a) Adjusted GAP: the amount of the Gross Availability Payment resulting from the application of the procedure described in this Annex 1;

(b) FO: the final offer submitted by the Contractor to the Authority on [date];

(c) Base Rates: the EURIBOR and EURIBOR swap rates published by Reuters as included in the Original Financial Model;

(d) Independent Auditor: a register accountant or the equivalent under the law of a member state of the European Union, appointed by the Contractor and acceptable to the Contracting Authority;

(e) Swap Pricing Model: the swap pricing model provided in the Original Financial Model or the swap pricing model referred to in the Original Financial Model;

Other capitalised terms used in this Annex 1 have the meaning ascribed to them or to the equivalent term in the Dutch language in Schedule 1.

2. Notification by the Contractor

(a) The Contractor shall notify the Contracting Authority of the Facility Agent and his swap provider within 7 days after their appointment by the Contractor, but 21 days before the expected date of Financial Close at the latest.

(b) The Contractor shall notify the Contracting Authority of any outstanding conditions precedent which it expects to be included in the Finance Agreements, providing the programme for the fulfilment of such outstanding conditions precedent. The Contractor shall notify the Contracting Authority as soon as possible when any of such outstanding conditions precedent are fulfilled.

3. Preparation of swap procedure

(a) At least [ ] days before the expected date of Financial Close, the Contractor and the Authority shall meet to agree any further details of the process to be followed at Financial Close as may be necessary, including details of one or more dry runs to be held before Financial Close.

(b) 15 days before the expected date of Financial Close and also 1 day before the expected date of Financial Close, the Contractor shall demonstrate provisionally to the Contracting Authority that no other influences will affect the outcome of the Swap Pricing Model than the development of the Base Rates between the date of submission of the FO and Financial Close.

(c) At least 7 days before the expected date of Financial Close and also 1 day before the expected date of Financial Close, the Contracting Authority shall provide insight to the


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Contractor in the working of the swap pricing model which the Contracting Authority will use at Financial Close to benchmark the interest swap rate as referred to in paragraph 4 (f).

(d) 15 days before the expected date of Financial Close and also 1 day before the expected date of Financial Close, the Contractor shall provide the Contracting Authority with a draft for an Updated Financial Model which contains modifications and optimisations on the basis of the definitive financing structure and conditions of the Contractor and taking into account the actual dates changed in the Project Planning as a result of the actual date of the signing of the Agreement, without changing the Gross Availability Payment submitted at FO. The draft for the Updated Financial Model shall be adapted in accordance with article 3.5 and Schedule 10, Part 1 and 2. The changes made in the draft for the Updated Financial Model shall be explained by the Contractor to the Contracting Authority. The Contracting Authority shall inform the Contractor whether the draft for the Updated Financial Model is acceptable to it.

(e) The swap procedure to be followed at Financial Close as described in paragraph 5, shall be tested by the Parties 7 days before the expected date of Financial Close. The draft for the Updated Financial Model shall be adapted in accordance with article 3.5 and Schedule 10, Part 1 and 2. The changes made in the draft for the Updated Financial Model shall be explained by the Contractor to the Contracting Authority. The Contracting Authority shall inform the Contractor whether the draft for the Updated Financial Model is acceptable to it.

(f) The Parties can agree that an additional test of the swap procedure can take place if this is advisable on the basis of the test as described under (d).

4. Swap procedure at Financial Close

At Financial Close, the following steps shall be carried out by the Parties in the order described below:

(a) the Contractor shall provide the Contracting Authority with a statement from the Independent Auditor confirming that no other influences will affect the outcome of the Swap Pricing Model than the development of the Base Rates between the date of submission of the FO and Financial Close;

(b) the Contracting Authority shall notify the Contractor of then current updated Base Rates;

(c) immediately thereafter, the Contractor shall update the Original Financial Model only with:

(i) the actual date of Financial Close and the other actual dates changed in the Project Planning as a result of the actual date of the signing of the Agreement; and

(ii) the updated Base Rates provided by the Authority to the Contractor pursuant to paragraph 4 sub (b).

(d) the Contractor shall obtain interest swap rates for the facilities from his swap providers on the basis of the debt profile resulting from the use of the updated Base Rates in the Original Financial Model as described in paragraph 4 (c), using the Swap Pricing Model.

(e) the Contractor shall notify the Contracting Authority of the interest swap rates for the facilities obtained in accordance with paragraph 4 (d). The Contractor shall provide the Contracting Authority with a statement from the Independent Auditor confirming that


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the interest swap rates for the facilities notified by the Contractor pursuant to this paragraph 4 (e) are correct and that such interest swap rates are the outcome of the same Swap Pricing Model that was included in the Original Financial Model at FO or that was referred to in the Original Financial Model at FO;

(f) at the same time, the financial advisor of the Contracting Authority shall also obtain an interest swap rate for the facilities on the basis of the debt profile resulting from the use of the updated Base Rates in the Original Financial Model as described in paragraph 4 (c), using their swap pricing model;

(g) if the interest swap rate for a facility obtained by the Contractor is more than 5 basis points higher than the interest swap rate for a facility obtained by the financial advisor of the Contracting Authority, then the steps to be carried out at Financial Close according to this paragraph 4 shall be recommenced at step (d) for all the facilities, with a maximum of two such recommencements. If after the second recommencement the interest swap rate for a facility obtained by the Contractor is still more than 5 basis points higher than the interest swap rate for a facility obtained by the financial advisor of the Contracting Authority, then the interest swap rate obtained by the financial advisor of the Authority after the second recommencement shall apply for that facility;

(h) the Contractor shall produce a draft for a further update of the Original Financial Model by adapting the Original Financial Model as described in paragraph 4 (c) so that the applicable interest swap rate for the facilities established in accordance with paragraph 4 (d) to (g) is included hard coded as an input in place of the Swap Pricing Model;

(i) the Contractor shall calculate the Adjusted GAP using the draft for the updated Original Financial Model referred to in paragraph 4 (g). The Contracting Authority shall also calculate the Adjusted GAP and shall confirm whether it accepts the calculation by the Contractor;

(j) the Contractor shall produce a draft for an Updated Financial Model by updating the draft referred to in paragraph 4 (c) with:

(i) the actual date of Financial Close and the other actual dates changed in the Project Planning as a result of the actual date of the signing of the Agreement; and

(ii) the Adjusted GAP accepted by the Authority as referred to sub (i).

(k) the Contractor shall enter into the swap agreement based on the debt profile resulting from the use of the Adjusted GAP as referred to sub (i) in the draft for the Updated Financial Model referred to sub (j);

(l) if between carrying out step (d) and step (k), the yield curve is disturbed materially, the steps to be carried out at Financial Close according to this paragraph 4 shall be recommenced at step (d);

(m) following this process and after approval by the Contracting Authority, the draft for the Updated Financial Model referred to sub (j) will be deemed to be the Updated Financial Model.


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SCHEDULE 11 AGREEMENT GOVERNING INTELLECTUAL PROPERTY RIGHTS

This Agreement is dated [ ].

(1) [name of Subcontractor - ], having its registered office and principal place of business at [address] [postal code] [ place], hereinafter referred to as the “Subcontractor”; and

(2) [name of Contractor], having its registered office and principal place of business at [address] [postal code] [ place], hereinafter referred to as the “Contractor”;

(jointly referred to as: the “Parties”)

WHEREAS:

The Contractor and the State of the Netherlands, Ministry of Transport, Public Works and Water Management, Directorate-General for Public Works and Water Management, Department [Department], with its seat at Koningskade 4, (2596 AA) The Hague, hereinafter referred to as “the Contracting Authority”, have concluded a DBFM Agreement on [date] under number [number] pertaining to the design, construction, financing and maintenance of [description of Road], hereinafter referred to as "the Agreement”;

The Contractor proposes to conclude an Agreement in writing with the Subcontractor pursuant to Article 17.3 of the Agreement in regard to the transfer of the Subcontractor’s Intellectual Property Rights and the use thereof.

HAVE AGREED TO THE FOLLOWING:

Definitions:

Capitalised terms appearing herein are defined as set out below and, if not appearing below, are defined as in the Agreement.

Area means the world.

Use means all communications and reproductions howsoever used or represented and regardless of whether this use or manner of representation is already known at the time that this Agreement comes into effect.

Intellectual Property Rights means all current and future rights pertaining to intellectual property, howsoever wide-ranging (including but not limited to intellectual property rights, patent rights, trademark rights, design rights, domain names, database rights and know-how) that arise in connection with the Design documents, including any Work embodied therein or otherwise ensuing pursuant to this Agreement.

Licence means the permission granted to the Subcontractor to Use the Work in the Area subject to the terms of this Agreement.


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Design documents refer to information produced by the Subcontractor in connection with the performance of the Work, regardless of the type of information carrier used.

Works refers to all work undertaken by the Subcontractor for the Contractor in connection with the performance of the Work by the Contractor.

Stipulations:

1. The Subcontractor hereby grants the Contractor an unconditional, transferable, irrevocable, royalty free Licence that is not limited in time and cannot be terminated to Use the Intellectual Property Rights, including the right to grant sublicenses to third parties.

2. The Subcontractor is familiar with Article 17 of the DBFM Agreement and approves in advance of the Contractor granting a sublicence in accordance therewith to the State of the Netherlands to Use all Intellectual Property Rights. The Subcontractor hereby approves the use by the State of the Netherlands and the Contractor to use the Intellectual Property Rights in accordance with the DBFM Agreement.

3. The Subcontractor warrants that it is the titleholder of the Intellectual Property Rights and that it is entitled to enter into this Agreement.

4. As a guarantee for the fulfilment of the Contractor’s obligations towards the Contracting Authority pursuant to this Article 16 of the DBFM Agreement, the Subcontractor hereby establishes a first pledge on behalf of the Contracting Authority in regard to the Intellectual Property Rights concerning the design of the Infrastructure and to the Performance Measurement System as appertaining to it on the Contract Date. As a guarantee for the fulfilment of the Contractor’s obligations towards the Contracting Authority pursuant to this Article 16 of the DBFM Agreement, the Subcontractor hereby also establishes a first pledge on behalf of the Contracting Authority in regard to the Intellectual Property Rights concerning the design of the Infrastructure and to the Performance Measurement System arising after the Contract Date and appertaining to it. This first right of pledge must be established as and when required by the Contracting Authority and in any event (i) once per 6 months throughout the Development Period, and (ii) during the Availability Period in the event of a change in the design of the Infrastructure or the Performance Measurement System.

5. The Subcontractor expressly warrants that the Intellectual Property Rights are not subject to any other licences, pledges or attachment.

6. The Subcontractor shall indemnify the Contractor against all claims from third parties in respect of the Intellectual Property Rights.

7. The Parties shall immediately inform each other if any infringement of the Intellectual Property rights comes to their attention or if a third party invokes better rights in respect of the works embodied therein or the designs or works ensuing therefrom.

8. The Contractor shall at its own expense institute proceedings against third parties that infringe the Intellectual Property rights or the works embodied therein or the designs or works ensuing therefrom. The Subcontractor hereby grants an irrevocable power of attorney to the Contractor to pursue such infringements at its own expense, both in and out of court. Compensation in


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respect of damage incurred and surrender of profits ensuing therefrom shall accrue to the Contractor.

9. The Subcontractor hereby waives the rights provided for under Article 25, Paragraph 1 subsection a of the Netherlands Copyright Act 1912 in regard to the use by the Contractor of the works embodied in the Intellectual Property Rights or the designs or works ensuing therefrom. The Subcontractor hereby also waives its rights as provided for in Article 25, Paragraph 1 subsections b and c of the Netherlands Copyright Act 1912 in regard to changes in the works embodied in the Intellectual Property Rights or the designs or works ensuing therefrom. Neither shall the Subcontractor resist any other entire or partial revision or destruction of the Documents, work embodied therein or design or work stemming therefrom. Where the personality rights referred to in this Section cannot be waived, the Subcontractor shall not exercise these rights in the absence of prior consultation with the Contractor.

10. This Agreement has been entered into for an indefinite period of time.

11. The Parties hereby waive their right to cancel or terminate this Agreement.

12. This Agreement is subject to Dutch law. Any dispute arising in connection with this Agreement or in connection with other agreements deriving herefrom shall be referred to the competent Court in The Hague.

This Agreement has been drawn up in duplicate and signed at [place] on [date].

[Name of Contractor] [Name of Subcontractor]


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SCHEDULE 12 INSURANCE

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SCHEDULE 13 INFORMATION FURNISHED

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SCHEDULE 14 THIRD-PARTY CABLES AND PIPELINES

PART 1

THIRD-PARTY CABLES AND PIPELINES CATEGORY 1

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PART 2

THIRD-PARTY CABLES AND PIPELINES CATEGORY 2

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SCHEDULE 15 RIGHTS OF THIRD PARTIES TO ACCESS THE RWS AND THIRD-PARTY AREAS DURING THE DEVELOPMENT PERIOD

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