Highway 2000 :: Project Agreements

Concession Agreement

THIS CONCESSION AGREEMENT is made the 21st day of November, 2001

BETWEEN:

NATIONAL ROAD OPERATING AND CONSTRUCTING COMPANY LIMITED a company wholly owned by the Government of Jamaica (the "Grantor"); and

TRANSJAMAICAN HIGHWAY LIMITED (a company duly registered under the Jamaican Companies Act), particulars of which are set out in Schedule 1 (the "Developer").

WHEREAS:

(A)    The Grantor is a limited liability company duly incorporated under the Companies Act of Jamaica having its registered office at 11A Oxford Road, Kingston 5 in the parish of St. Andrew, Jamaica.

(B)    The Grantor wishes to make arrangements for the implementation of the Highway 2000 Project and has invited companies to tender for a single contract to design, construct, operate, maintain and finance the Toll Road (the "Project").

(C)     In response to a Request for Proposals dated June, 2000, Bouygues Travaux Publics ("Bouygues") submitted to the Grantor a proposal for the Project dated 15th February, 2001.

(D)    The Grantor appointed Bouygues as preferred bidder on 27th June, 2001 by entering into the preferred bidder appointment dated on that date.

(E)    Pursuant to the preferred bidder's appointment, the Grantor has agreed to enter into this Agreement with the Developer for the carrying out of Phase 1 of the Project as more particularly described in this Agreement. Subject to Clause 6.3 hereof, other phases of the Project will be awarded to such persons as the Grantor in its absolute discretion may select.

(F)    The obligations of the Grantor under the Grantor Documents are guaranteed by the Government of Jamaica pursuant to the Government Guarantee.

(G)    The Grantor requires work to commence on the Early Project part of Phase 1A as soon as possible.

(H)    When Financial Close 1A is achieved the Early Project part of Phase 1A will be consolidated within the Phase 1A Construction Works and refinanced under the Phase 1A Financing Agreements.

(I)    The Parties have agreed (i) that the Contractor for the Project shall be Bouygues Travaux Publics and (ii) that the Operator shall be a company having Bouygues Travaux Publics as shareholder.

NOW IT IS AGREED as follows:

1. INTERPRETATION

1.1 In this Agreement in addition to the terms defined elsewhere in this Agreement:

"Actual Tolled Level" has the meaning it is given in Schedule 15 (Tolling Policy);

"Affiliate" means, in relation to any person, a person that controls, is controlled by or is under common control with such person. As used in this definition the terms "control", "controlled by" or "under common control with" shall mean ownership, directly or indirectly, of more than fifty percent (50%) of the voting securities of such person or the power to direct the management or policies of such person, whether by operation of law, by contract or otherwise;

"Agreed Bank" means a bank which is at all times rated at least AA by S&P or Aa2 by Moody's;

"Agreed Form" means, in relation to any document, the form of that document agreed by the Parties;

"Amended Corridor" means the Corridor as amended to reflect the Reviewed Design Documentation;

"Archaeological Finds" means antiquities, fossils, coins, articles of value, precious minerals, and other remains of archaeological or cultural interest discovered on a Site;

"Base Case" means the base case financial projections as calculated from time to time by the Financial Model;

"Bridging Bank" means the bank providing funds with respect to the Early Project;

"Bridging Financing Agreements" means:

(a) the Bridging Loan Agreement, the Intercreditor Agreement and any other financing agreements entered into (or to be entered into) for Early Financial Close with the approval of the Grantor, not to be unreasonably withheld or delayed; and

(b) any hedging agreement entered into by the Developer before Financial Close 1A with the prior written consent of the Grantor, which consent will not be unreasonably withheld or delayed if that hedging agreement complies with the Hedging Policy, and operated in accordance with the Hedging Policy,

as such agreements may be amended from time to time in accordance with Clause 33.6 (Transfers and Amendments), but shall not include any agreement under which finance is provided to the Developer by a shareholder or any Affiliate of a shareholder of the Developer;

"Bridging Loan" means a term loan of US$ 50,000,000 made by the Bridging Bank to the Developer on the terms of the Bridging Loan Agreement;

"Bridging Loan Agreement" means the loan agreement to be entered into between the Bridging Bank and the Developer pursuant to which the Bridging Loan is made available to the Developer;

"Business Day" means a day (other than a Saturday or a Sunday) on which banks are open for banking business in Kingston;

"Capped Toll Level" has the meaning it is given in Schedule 15 (Tolling Policy);

"Change of Law" means after the date of this Agreement the introduction, amendment, modification or repeal of, or any change in the established practice of the administration of, any Statutory Requirement or Required Consent having effect in Jamaica or any part of it and which is binding upon either of the Parties including:

(i) any change in the interpretation of applicable legislation made by an order or judgment of Jamaica's final appellate court,

(ii) the introduction of conditions to Required Consents which have not been hitherto required as a matter of established practice of the administration of that Required Consent,

(iii) the introduction of any Statutory Requirement or Required Consent controlling the convertibility or transferability of Jamaican Dollars,

but for the avoidance of doubt, does not include:

(a) the entry into force after the date of this Agreement of any Statutory Requirement or Required Consent in existence but not in force at the date of this Agreement; or

(b) the grant or issue of any Required Consent;

(c) the performance or exercise by any statutory or other governmental body of any function or discretion pursuant to any of its functions under applicable law;

(d) the circumstances set out in paragraph 7.1 of Schedule 15; or

(e) the coming into force of the Toll Roads Bill as an Act of the Parliament of Jamaica and/or any regulations promulgated thereunder, to the extent that this legislation and regulations substantially reflects the Toll Roads Principles set out in the Implementation Agreement;

"Change of Law Variation" means a Variation agreed between the Parties or determined by the Expert to be necessary, in each case in accordance with Clause 20.2 (Change of Law), as a consequence of a Change of Law which is not a Qualifying Change of Law;

"Compensation Amount" means a payment made by the Grantor to the Developer of such amount as is calculated in accordance with Clause 40.3 as being necessary to place the Developer in the same Financial Position that it would have been in had the relevant Compensation Amount Event not occurred;

"Compensation Amount Event" means an event described in Clause 19.6 (Grantor Variations), Clause 20.3 (Qualifying Change of Law), Clause 25.6 (Breach by Grantor, Qualifying Force Majeure or Prolonged Force Majeure) which gives rise under those Clauses to an entitlement for the Developer to receive an amount of Compensation Amount;

"Competent Authority" includes, the Toll Regulator, any court of competent jurisdiction and any local, national or supranational agency, inspectorate, department, local authority, minister, ministry, official or public or statutory person (whether autonomous or not) in or of the State or any political subdivision thereof and any other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government;

"Competent Authority Consents" means the consents listed in Part 1 of Schedule 6;

"Completion Certificate" means the certificate issued by the Grantor's Representative pursuant to Clause 16 confirming that the conditions precedent to the completion and opening of one or more Sections of the Toll Road as set out in Schedule 10 (Conditions Precedent and Conditions Subsequent) have been satisfied;

"Concession" means the rights and obligations acquired and assumed by the Developer under this Agreement;

"Concession Award Date" means the date of this Agreement;

"Concession Period" means the period specified in Clause 4 (Concession Period) (as that period may be extended pursuant to Clause 4.2) and for the avoidance of doubt ending upon the expiry or termination of this Agreement;

"Concession Specification" means the specification for the construction, operation and maintenance of the Toll Road, incorporating the Core Requirements, the Technical Specifications, the Required Consents, the Reviewed Design Documentation, the Reviewed Quality Documentation, the Developer's Timetable, and the Outline Design, for and in relation to the Toll Road. For the purposes of this definition, in the event of any conflict between the Grantor's Core Requirements on the one hand and the Developer's Concession Responsibilities on the other, the former shall prevail;

"Construction Contract" means the construction contract in respect of Phase 1 between the Developer and the Contractor, in the Agreed Form;

"Construction Phase" means collectively or individually the Early Project Construction Phase, the Phase 1A Construction Phase and the Phase 1B Construction Phase;

"Construction Timetable" means the construction timetable, based on the Developer's Timetable as submitted by the Developer pursuant to Schedule 10 (Conditions Precedent and Conditions Subsequent), as the same may be amended or revised in accordance with Clause 14 (Timetable) or extended pursuant to Clause 12 (Time for Completion);

"Construction Warranty" means the warranty agreement to be entered into between the Grantor and the Contractor in respect of the Construction Contract and relating to certain obligations of the Contractor;

"Construction Works" means the Early Studies, the Early Project Construction Works, the Phase 1A Construction Works and the Phase 1B Construction Works;

"Contractor" means Bouygues Travaux Publics or any replacement thereof appointed to carry out the Construction Works in accordance with Clause 35.2 (Sub-Contractors);

"Contractor's Equipment" means all appliances or things of whatsoever nature required for the purposes of the construction of the Toll Road but does not include Contract Plant, materials and other things intended to form or forming part of the Toll Road;

"Contract Plant" means machinery, computer hardware and software, apparatus, materials, articles and things of all kinds to be provided under this Agreement and intended to form or forming part of the Toll Road and/or for the purposes of operating and maintaining the Toll Road;

"Core Design and Construction Requirements" means the specified requirements for the design and construction of the Toll Road, as set out in Part 1 of Schedule 2 (Core Requirements);

"Core O&M Requirements" means the specified requirements for the operation and maintenance of the Toll Road, as set out in Part 2 of Schedule 2 (Core Requirements);

"Core Requirements" means the Core Design and Construction Requirements and the Core O&M Requirements as the same may be amended from time to time by a Grantor Variation;

"Corridor" means the corridor of land of 100 metres in width centred on the projected line of the Toll Road as shown in the Outline Design;

�Cost Centre� means each cost centre as described in Clause 24A;

"Custodian" means the person appointed as Custodian by the parties under the Custody Agreement.;

"Custody Agreement" means the agreement in Agreed Form for the custody of the Financial Model between the Grantor, the Developer and the Custodian;

"Delay Events" has the meaning given to it in Clause 12.2 (Time for Completion);

"Design and Construction Specification" means the technical standards and design and construction specifications for the Toll Road as set out in Part 1 of Schedule 3, that the Parties agree, as at the date hereof, satisfy the Core Requirements;

"Design Documentation" means preliminary and detailed design drawings, diagrams, details, documents, specifications, samples, models or information (including calculations, logic or sequence overview diagrams and functional design specifications for computer software) and all amendments and revisions thereto prepared by the Developer in connection with the design of the Toll Road;

"Design for Approval" means the design to be developed from the Outline Design in respect of each Phase or Section of the Construction Works so as to allow Detailed Design of that Phase or Section to be effected in accordance with the Concession Specification and so as to obtain the Competent Authority Consents as set out in Schedule 6;

"Detailed Design" means the detailed design to be developed from the Design for Approval in respect of each part of a Phase or Section of the Construction Works so as to allow construction of that part in accordance with the Concession Specification;

"Developer's Concession Responsibilities" means the Technical Specifications and the Outline Design as may be amended from time to time by a Developer Variation;

"Developer Senior Debt" means the Developer Senior Early Project Debt, the Developer Senior Phase 1A Debt and the Developer Senior Phase 1B Debt;

"Developer Senior Early Project Debt" means all amounts outstanding at the date of termination of this Agreement including interest accrued as at that date, from the Developer to the Bridging Bank or the Hedging Counterparty under the Bridging Financing Agreements, to the extent that such amounts have been expended solely for the purposes of fulfilling the Developer's obligations under this Agreement in respect of the Early Project or in hedging floating interest rates under the Bridging Loan Agreement, less:

(i) all cash held by the Developer at the Termination Date;

(ii) any insurance or bond proceeds to the extent not forming part of the aforementioned cash balances irrevocably received by the Developer at the Termination Date; and

(iii) any sums irrevocably received from third parties as at the Termination Date to the extent not forming part of the aforementioned credit balances;

"Developer Senior Phase 1A Debt" means all amounts outstanding at the date of termination of this Agreement including interest accrued as at that date, from the Developer to the Lenders or the Hedging Counterparty under the Phase 1A Financing Agreements, to the extent that such amounts have been expended solely for the purposes of fulfilling the Developer's obligations under this Agreement in respect of Phase 1A or in hedging floating interest rates under the Phase 1A loan agreement, less:

(i) all cash held by the Developer at the Termination Date;

(ii) any insurance or bond proceeds to the extent not forming part of the aforementioned cash balances irrevocably received by the Developer at the Termination Date; and

(iii) any sums irrevocably received from third parties as at the Termination Date to the extent not forming part of the aforementioned credit balances;

"Developer Senior Phase 1B Debt" means all amounts outstanding at the date of termination of this Agreement including interest accrued as at that date, from the Developer to the Lenders or the Hedging Counterparty under the Phase 1B Financing Agreements, to the extent that such amounts have been expended solely for the purposes of fulfilling the Developer's obligations under this Agreement in respect of Phase 1B or in hedging floating interest rates under the Phase 1B loan agreement, less:

(i) all cash held by the Developer at the Termination Date;

(ii) any insurance or bond proceeds to the extent not forming part of the aforementioned cash balances irrevocably received by the Developer at the Termination Date; and

(iii) any sums irrevocably received from third parties as at the Termination Date to the extent not forming part of the aforementioned credit balances;

"Developer's Representative" means the person appointed by the Developer in accordance with the provisions of Clause 37 (Developer's Representative);

"Developer's Timetable" means the timetable identifying the order in which the Developer intends to carry out the investigations, design, construction, commissioning, testing, operation, maintenance and related works appearing in the Concession Specification set out in Schedule 4 (Developer's Timetable) as the same may be amended or revised with the approval of the Grantor's Representative in accordance with Clause 14 (Timetable) or extended pursuant to Clause 12 (Time for Completion);

"Developer Variation" means any change to the Developer's Concession Responsibilities whether by addition, modification, omission or otherwise, made in accordance with Clause 19A of this Agreement;

"Early Financial Close" means the date on which bridging financing made available to the Developer in respect of the Early Project Construction Works becomes unconditional pursuant to the Bridging Loan Agreement;

"Early Project" means that part of the Toll Road comprising the dualisation of Old Harbour Bypass and the construction of the section of the Toll Road from Kingston to Sandy Bay as more particularly described in Schedule 3 (Specification);

"Early Project Construction Phase" means the period of time commencing on the Effective Date and ending on the Early Project Handover Date;

"Early Project Construction Works" means all the work concerning the detailed design, specification, construction and completion of the Early Project in accordance with the provisions of this Agreement;

"Early Project Cost" means the overall cost of the Early Project;

"Early Project Final Completion Certificate" means the Final Completion Certificate issued in respect of Early Project;

"Early Project Handover Date" means the date of issue by the Grantor's Representative of the Early Project Final Completion Certificate;

"Early Project Land Documents" means the licences, leases, sub-leases, schedules and other agreements in the Agreed Form as listed in Part 1A of Schedule 9 (Land Documents) to be entered into by the Grantor and the Developer pursuant to Clause 7 (Land issues and other Grantor obligations);

"Early Project Sites" means:

(a) that part of the Corridor required for the construction of the Early Project;

(b) any additional land required for the construction of interchanges in the Early Project as reflected in the Reviewed Design Documentation; and

"Early Studies" means the Design for Approval and the environmental impact assessment performed for the purpose of constructing the Toll Road between Kingston and Sandy Bay, the traffic studies performed for the purposes of Phase 1, and all due diligence performed in order to reach Early Financial Close;

"EFC Developer Conditions Subsequent" means the conditions subsequent set out in Part 2 of Schedule 10 (Conditions Precedent and Conditions Subsequent) and any Effective Date Condition Precedent which becomes an EFC Condition Subsequent by the operation of Clause 2.2;

�EFC First Payment� shall have the meaning ascribed thereto in Schedule 19, 1.2.1 (b);

"EFC Grantor Conditions Subsequent" means the conditions subsequent set out in Part 4 of Schedule 10 (Conditions Precedent and Conditions Subsequent);

"EFC Joint Conditions Subsequent" means the conditions subsequent set out in Part 3 of Schedule 10 (Conditions Precedent and Conditions Subsequent);

"EFC Long Stop Date" has the meaning set out in Clause 2.2 (Conditions Subsequent regarding Early Financial Close);

"Effective Date" means the date this Agreement becomes unconditional in accordance with Clause 2.1 (Conditions Precedent and Effective Date);

"Effective Date Conditions Precedent" means the conditions subsequent listed in Part 1 of Schedule 10 (Conditions Precedent and Conditions Subsequent);

"Emergency Services" means the police, ambulance, medical, fire, civil defence, military and other emergency services of the State;

�Environmental Documentation� means the environmental documentation to be developed from the strategic environmental assessment (the �SEA�) in accordance with the procedures and requirements of the relevant Parish Councils and the Natural Environmental and Planning Authority under the Environmental Permit and License (P&L) System including, inter alia, environmental impact assessments and an environmental management plan;

"Estimated Capital Cost" means, in relation to a Grantor Variation or a Qualifying Change of Law Variation, the estimated capital cost of that Grantor Variation or Qualifying Change of Law Variation as agreed between the Parties, or determined by the Expert;

"Estimated Operating Cost" means, in relation to a Grantor Variation or a Qualifying Change of Law Variation, the estimated increase or reduction in operating costs for each year remaining in the Concession Period due to that Grantor Variation or Qualifying Change of Law Variation, as agreed by the Parties or determined by the Expert;

"Existing Road Section" means each of the following sections of the Toll Road to be leased to the Developer by the Grantor in accordance with this Agreement and the Leases (in the Agreed Form):

(a) Portmore Causeway;

(b) Old Harbour Bypass; and

as more specifically set out in the Core Requirements;

"Existing Road Transfer Date" means, in relation to each Existing Road Section, the date on which the Land Documents leasing the land comprising such Existing Road Section are executed by the Grantor;

"Expansion Schemes" means the future upgrades and additional lanes to be made or added to the Toll Road as set out in Part 1 of Schedule 17;

"Expansion Scheme Trigger Event" means the trigger events applicable to each of the Expansion Schemes as set out in Part 2 of Schedule 17;

"Expert" means an expert appointed under Clause 47 (Expert Determination);

"Expiry Date" shall have the meaning given in Clause 4.1 (Concession Period);

"Final Completion Certificate" has the meaning given to it in Clause 16.10 (Construction Completion);

"Financial Close 1A" means the date on which financing on terms reflected in the Financial Model, or such other terms as the Parties may agree, is made available to the Developer in respect of the Phase 1A Construction Works becomes unconditional;

"FC1A Developer Conditions Subsequent" means the conditions listed in Schedule 10 Part 5;

"FC1A Grantor Conditions Subsequent" means the conditions listed in Schedule 10 Part 6;

"FC1A Joint Conditions Subsequent" means the conditions listed in Schedule 10 Part 7;

"FC1A Long Stop Date" has the meaning set out in Clause 2.3 (Conditions Subsequent regarding Financial Close 1A);

"Financial Close 1B" means the date on which financing on terms reflected in the Financial Model, or such other terms as the Parties may agree, is made available to the Developer for the Phase 1B Construction Works becomes unconditional;

"FC1B Developer Conditions Subsequent" means the conditions listed in Schedule 10 Part 8;

"FC1B First Payment" shall have the meaning ascribed thereto in Schedule 19, 1.3.1;

"FC1B Grantor Conditions Subsequent" means the conditions listed in Schedule 10 Part 9;

"FC1B Joint Conditions Subsequent" means the conditions listed in Schedule 10 Part 10;

"FC1B Long Stop Date" has the meaning set out in Clause 2.4 (Conditions Subsequent regarding Financial Close 1B);

"Financial Model" means the financial model provided by the Developer and agreed by the Grantor and as amended from time to time in accordance with Clause 40.3, embodied in its financial model software setting out the basis on which the financing of the Project and/or the costs and revenues from the Project have been calculated by the Developer (including without limitation the assumptions used, the cell logic network for the financial model software and any accompanying documentation necessary to operate the financial model), whether embodied on tape, disk or other electronic storage medium;

"Financial Position" in relation to the Developer, includes, without limitation, the Developer's capacity, immediately before the relevant event, to make payments when due under the Financing Agreements and to pay dividends that will enable the Shareholders to achieve the Internal Rate of Return as and when forecasted in the Financial Model;

"Financing Agreements" means the Bridging Financing Agreements, the Phase 1A Financing Agreements, and the Phase 1B Financing Agreements;

"Fixed Cost Centre" shall have the meaning ascribed thereto in Schedule 19, 1.1.1;

"Fixed Cost Centre Task" means a task set out in the Schedule of Tasks;

"Force Majeure Event" means any event or circumstances (or combination of events and/or circumstances) beyond the reasonable control or not due to the misconduct of the affected Party (or any of its subcontractors in the case of the Grantor, or Material Subcontractors in the case of the Developer) and which the affected Party could not reasonably foresee at the date of the signing of this Agreement or reasonably provide against which:

(a) causes material and unavoidable physical damage or destruction to the Toll Road or, without limitation, its toll facilities or functions;

(b) materially delays the scheduled time of completion of the Toll Road without opportunity to otherwise repair the schedule; or

(c) materially interrupts the full and regular operation of all or any material portion of the Toll Road, including, without limitation, its toll collection facilities or functions,

and which has a materially adverse impact on the Financial Position of the Developer, including (but without limitation) any of the following occurring in Jamaica if the affected Party could not reasonably foresee them at the date of the signing of this Agreement or reasonably provide against them and they have the effects set out in paragraphs (a), (b) or (c) above:

(1) war, civil war, armed conflict or terrorism;

(2) riot or civil commotion or actions of Protestors (other than the use by Protestors of stationary vehicles or other obstacles in the Toll Road as part of their protest except where in the reasonable opinion of the Developer's Representative, due to the security situation, the removal of such vehicles or obstacles by the Developer would risk physical injury to members of the Developer's or any of its subcontractors' staff);

(3) any nationwide (i) official or unofficial strike; (ii) lockout; (iii) go-slow; or (iv) other dispute, or any such dispute which generally affects the road network in Jamaica or a significant sector of it;

(4) earthquake, tidal wave, hurricane, tornado, or landslide (except collapse of the Construction Works or landslide within the Sites);

(5) fire, explosion, lightning, storm, tempest, flood, earthquakes or other act of God;

(6) any epidemic or plague; or

(7) expropriation, sequestration or requisition (by a single or a series of events) of any part of the Toll Road, the Contract Plant, the Construction Works, or the Contractor's Equipment by the Government of Jamaica;

PROVIDED THAT:

(i) such event shall not constitute a Force Majeure Event hereunder to the extent that it could have been prevented or overcome by the affected Party through the exercise of such diligence and reasonable care as would be exercised by a prudent person under similar circumstances;

(ii) none of the following events shall constitute a Force Majeure Event:

(A) strikes by employees of (1) the Developer, (2) the Contractor and/or its sub-contractors, (3) the Operator and/or its subcontractors or (4) any other company undertaking any part of the operation and maintenance of the Toll Road (unless the strike also generally affects the road network in Jamaica or a significant sector of it; or the strike was caused by the actions of the State acting in a discriminatory manner);

(B) geotechnical and ground risks other than the discovery of Ground Contamination, or ground conditions that could not have been foreseen by an experienced contractor or Archaeological Finds at the Sites; and

"GCT" means general consumption tax as provided for in the General Consumption Tax Act;

"Good Engineering and Operating Practices" means the standards, practices, methods and procedures conforming to all applicable laws and that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced contractor, engineer or operator, as the case may be, engaged in the same or similar type of undertaking under the same or similar circumstances;

"Government Guarantee" means the parliamentary guarantee of the Grantor's obligations under this Agreement in the Agreed Form dated on or about the date of this Agreement given by the Government of Jamaica in favour of the Developer;

"GPD Loan Agreement" means the loan agreement of today's date between the Grantor and the Developer pursuant to which the Grantor agrees to make certain loans available to the Developer on a basis which is subordinated to the rights of the Lenders under the Financing Agreements;

"GPD Monthly Amount" means the amount of Grantor Procured Debt that must be paid in accordance with the monthly invoices;

"Grantor Documents" means this Agreement, the Implementation Agreement, the GPD Loan Agreement, the Construction Warranty, the Head Lease, the Leases, the Shareholders Equity Undertaking, the Grantor Working Capital Reserve Agreement, the Custody Agreement, the O&M Warranty, the Intercreditor Agreement and the Subordinated Debt Agreement;

"Grantor EFC Letter of Credit" means a letter of credit of a face amount equal to the Grantor Working Capital Reserve and the Grantor Early Project Commitment (as defined in the GPD Loan Agreement) less the amount of the Preliminary Payment in the Agreed Form;

"Grantor FC1A Letter of Credit" means a letter of credit of a face amount equal to the Grantor Working Capital Reserve in the Agreed Form;

"Grantor FC1B Letter of Credit" means a letter of credit of a face amount equal to the Grantor Phase 1B Commitment in the Agreed Form;

�Grantor Procured Debt� means the funds provided by the Grantor to the Project through the GPD Loan Agreement;

"Grantor's Proportion" means with respect to a payment, the proportion of that payment payable by the Grantor pursuant to Schedule 19, Item 1.2.3;

"Grantor's Representative" means the person appointed by the Grantor in accordance with Clause 36 (Grantor's Representative);

"Grantor Termination Notice" has the meaning given to it in Clause 28.1 (Grantor Termination;

"Grantor Variation" has the meaning given to it in Clause 19.1 (Grantor Variations);

"Grantor Working Capital Reserve" means the amount of the commitment of the Grantor to lend established under the Grantor Working Capital Reserve Agreement;

"Grantor Working Capital Reserve Agreement" means the Agreement between the Grantor and the Developer dated as of Early Financial Close under which the Grantor agrees to provide a working capital facility to the Developer of up to US$3,500,000 from Early Financial Close and up to US$10,000,000 from Financial Close 1A on terms which are subordinated by the Intercreditor Agreement to the rights of the Lenders under the Financing Agreements;

"Ground Contamination" means the presence of any polluting or toxic substance, material or waste in, on or under the Sites which is injurious to plant or animal life and which is subject to regulation under the Natural Resources Conservation Authority Act of Jamaica;

"Handover Date" means, in relation to each Section, the date of issue by the Grantor's Representative of the Completion Certificate for that Section;

"Head Lease" means the lease in the Agreed Form by which the Commissioner of Lands leases the land for the Sites to the Grantor for the purpose of subleasing that land to the Developer;

"Hedging Counterparty" means a counterparty to the Developer under any hedging agreement entered into with the agreement of the Grantor pursuant to the Hedging Policy;

"Hedging Policy" means the policy agreed between the Grantor and the Developer for the hedging by the Developer of floating rate hedging risk as set out in Schedule 13 (Hedging Policy);

"Implementation Agreement" means the agreement of today's date between the Government of Jamaica and the Developer under which the Government of Jamaica agrees to procure that the Developer is granted the necessary rights to collect Tolls from users of the Toll Road and/or to perform its obligations under this Agreement;

"Independent Engineer" means the engineer jointly appointed by the Developer and the Lenders under the Financing Agreements pursuant to the Construction Contract;

"Indexed" means increased on each anniversary of the date of this Agreement in line with the index specified in paragraph 1 of Schedule 20;

�Indicative Payment Schedule� means the milestones schedule set out in Schedule 19;

"Initial Toll Levels" means the initial Toll Levels set out in paragraph 4 of the Tolling Policy;

"Insolvency Event" means the occurrence of any of the following events:

(a) a petition is presented (which is not discharged within 14 days or such other time as such period is extended by a court of competent jurisdiction) or an order is made or a resolution is passed for the winding-up or dissolution of the Developer;

(b) the Developer becomes insolvent or is deemed unable to pay its debts within the meaning of the Companies Act of Jamaica or stops or threatens to stop making payments generally or declares a moratorium on all or any part of its debts;

(c) any preparatory or other steps are taken by any person to appoint an administrative or other receiver or similar official over the Developer or any of its property or assets;

(d) the Developer entering into any compromise or arrangement with any of its creditors which, in the reasonable opinion of the Grantor, jeopardises the ability of the Developer to complete or operate and maintain the Toll Road; or

(e) anything analogous to any of the above stated events occurs in respect of the Developer in any other jurisdiction or any Affiliate of the Developer which, in the reasonable opinion of the Grantor, jeopardises the ability of the Developer to complete the Toll Road;

"Insurance Certificates" means certificates evidencing the entry into the insurance policies required pursuant to Clause 42 (insurance) hereof;

"Intellectual Property Rights" means all rights in inventions, patents, copyrights, design rights, trade marks and trade names, service marks, trade secrets, know-how and other intellectual property rights (whether registered or unregistered) and all applications for any of them, anywhere in the world;

"Intercreditor Agreement" means the Deed of Subordination and the Deed of Postponement between the Lender, the Developer and the Grantor, pursuant to which the grantor's rights against the Developer in relation to the Developer in relation to the Grantor Procured Debt are subordinated to the Lender's rights under the Bridging Loan Agreement;

"Internal Rate of Return" or "IRR" means the value that solves the following equation:

where:

(a) 0 is the reference period;

(b) N is the period in which IRR is calculated;

(c) Ki is the equity amount disbursed by the Shareholders in year i in equivalent US Dollars at the date of payment; and

(d) Di is the amount of Shareholder�s distributions received by them in year i in equivalent US Dollars at the date of payment.

Where the IRR is described as "nominal", the calculation of the IRR shall take into account the Ki and Di flows in nominal terms;

Where the IRR is described as "real", the calculation of the IRR shall take into account Ki and Di flows which have been discounted on the basis of the US CPI rate documented by the US Bureau of Labor Statistics; and

Where the IRR is described as "before tax", the calculation of the IRR shall take into account Ki and Di flows before corporate tax or withholding tax of any kind on dividends, while an IRR described as "after tax" shall take into account Ki and Di flows net of any corporate tax or withholding tax of any kind on Shareholder�s distributions

For the purposes of calculating the IRR component of any termination sum under Clause 31 of this Agreement,

(a) "Ki" shall mean the equity amount which has been disbursed at the date of payment of that Termination Sum in accordance with the Grantor Documents; and

(b) the IRR takes the value given in Schedule 12;

"Jamaican Dollars" and "Jam$" means the lawful currency from time to time of the State;

"Land Documents" means the master lease described in Part 1 of Schedule 9 (Land Documents), the Early Project Land Documents, the Phase 1A Land Documents, and the Phase 1B Land Documents;

"Latest Time for Early Project Completion" means the date falling twelve months after the Time for Early Project Completion;

"Latest Time for Phase 1A Completion" means the date falling twelve months after the Time for Phase 1A Completion;

"Latest Time for Phase 1B Completion" means the date falling twelve months after the Time for Phase 1B Completion;

"Leases" means the leases, the schedules and the sub-leases listed in Schedule 9;

"Lender" means any person providing finance to the Developer under any Financing Agreement (but for the avoidance of doubt shall not include any shareholder or Affiliate of any shareholder of the Developer);

"Lenders' Agent" means the agent for the Lenders appointed under the terms of the Financing Agreements;

"Material Sub-contractor" means any sub-contractor (whether or not employed directly by the Developer) that has responsibility for not less than 10% of the Construction Works or the O&M Works;

"Milestone" means a proportion or an identified part of the works, part of a Fixed Cost Center, as defined in the Construction Contract and/or the Construction Timetable;

"Modification" means:

(a) a Grantor Variation;

(b) a Qualifying Change of Law Variation;

(c) a Change of Law Variation; or

(d) a Developer Variation,

and a Modification shall be deemed to be "made" on the date on which it is agreed between the Parties or determined by an Expert to be required;

"Monthly Statement" has the meaning given in Clause 24A.2;

"Moody's" means Moody's Investors Services Limited;

"NRCA" means the Natural Resources Conservation Authority;

"NWA" means the National Works Agency;

"O&M Contract" means the operation and maintenance contract in respect of the Toll Road between the Operator and the Developer, in the Agreed Form;

"O&M Specification" means the technical standards and operation and maintenance specification set out in Part 2 of Schedule 3 and in Schedule 21 (Technical Standards) that the Parties agree, as at the date hereof, satisfy the Core Requirements;

"O&M Term Sheet" means a term sheet agreed by the Operator and the Developer and in the Agreed Form setting out the principal commercial terms of the O&M Contract;

"O&M Warranty" means the warranty agreement to be entered into between the Grantor and the Operator and relating to certain obligations of the Operator;

�O&M Works� means the design planning and execution of all works and functions associated with the operation, repair and maintenance of the Toll Road and its facilities;

"Operator" means a company having Bouygues Travaux Publics (together with any affiliate or parent company) as majority shareholder or any replacement thereof appointed in accordance with Clause 35.3 (Sub-Contractors) for the operation and maintenance of the Toll Road;

"Outline Design" means the design as set out in Schedule 22 that the Parties agree, as at the date hereof, satisfies the Core Requirements;

"Party" means a party to this Agreement;

"Payment Schedule" means the Schedule set out in Part 2 of Schedule 19;

"Penalty Points" means points awarded pursuant to Clause 17 (Operation and Maintenance);

"Performance Bond" means each of the on-demand bonds in the Agreed Form issued by an Agreed Bank and provided to the Developer and assigned to the Grantor and the Lenders by the Contractor and by the Operator;

"Permitted Security Interest" means:

(a) any lien arising by operation of law in the ordinary course of business and securing amounts not more than 30 days overdue; and

(b) any security interest arising under the Financing Agreements;

"Phase" means (if Financial Close 1A is not achieved) the Early Project and (if Financial Close 1A is achieved) Phase 1A and, if the Phase 1B Commencement Notice has been given, Phase 1B;

"Phase 1" means Phase 1A and Phase 1B;

"Phase 1A" means that part of the Toll Road comprising the Early Project, the tolling and dualisation of Portmore Causeway and the Dyke Road as more particularly described in Schedule 3 (Specification) ;

"Phase 1A Construction Phase" means the period of time commencing on the Effective Date and ending on the Phase 1A Handover Date;

"Phase 1A Construction Works" means all the work concerning the detailed design, specification, construction and completion of Phase 1A in accordance with the provisions of this Agreement;

"Phase 1A Final Completion Certificate" means the Final Completion Certificate issued in respect of Phase 1A;

"Phase 1A Financing Agreements" means:

(a) the financing agreements entered into (or to be entered into) for Phase 1A with the approval of the Grantor, not to be unreasonably withheld or delayed ;

(b) any hedging agreement entered into by the Developer with the prior written consent of the Grantor, not to be unreasonably withheld or delayed if that hedging agreement complies with the Hedging Policy, and operated in accordance with the Hedging Policy,

"Phase 1A Handover Date" means the date of issue by the Grantor's Representative of the Phase 1A Final Completion Certificate;

"Phase 1A Land Documents" means the licences, leases, sub-leases, schedules and other agreements in the Agreed Form as listed in Part 1B of Schedule 9 (Land Documents) to be entered into by the Grantor and the Developer pursuant to Clause 7 (Land issues and other Grantor obligations);

"Phase 1A Sites" means:

(a) that part of the Corridor required for the construction of Phase 1A;

(b) any additional land required for the construction of interchanges in Phase 1A as reflected in the Reviewed Design Documentation; and

"Phase 1B" means that part of the Toll Road between Sandy Bay and Williamsfield as more particularly described in Schedule 3 (Specification);

"Phase 1B Commencement Date" means the date for the commencement of the Phase 1B Construction Works;

"Phase 1B Commencement Notice" has the meaning it is given in Clause 6.1 (Phase 1B Construction);

"Phase 1B Construction Phase" means the period of time commencing on the Phase 1B Commencement Date and ending on the Phase 1B Handover Date;

"Phase 1B Construction Works" means all the work concerning the detailed design, specification, construction and completion of the Phase 1B of the Toll Road in accordance with the provisions of this Agreement;

"Phase 1B Final Completion Certificate" means the Final Completion Certificate issued in respect of Phase 1B;

"Phase 1B Financing Agreements" means:

(a) the financing agreements entered into (or to be entered into) for Phase 1B with the approval of the Grantor, not to be unreasonably withheld or delayed; and

(b) any hedging agreement entered into by the Developer with the prior written consent of the Grantor not to be unreasonably withheld or delayed if that hedging agreement complies with the Hedging Policy and operated in accordance with the Hedging Policy,

"Phase 1B Handover Date" means the date of issue by the Grantor's Representative of the Phase 1B Final Completion Certificate;

"Phase 1B Land Documents" means the licences, leases, sub-leases, schedules and other agreements in the Agreed Form as listed in Part 1C of Schedule 9 (Land Documents) to be entered into by the Grantor and the Developer pursuant to Clause 7 (Land issues and other Grantor obligations);

"Phase 1B Long Stop Date" has the meaning set out in Clause 6.1 (Phase 1B Construction);

"Phase 1B Sites" means:

(a) that part of the Corridor required for the construction of Phase 1B;

(b) any additional land required for the construction of interchanges in Phase 1B as reflected in the Reviewed Design Documentation; and

"Phase 2" means Phase 2A and Phase 2B;

"Phase 2A" means all the work concerning the detailed design, specification, construction, completion, operation and maintenance of a toll road extending between Bushy Park Junction and Ocho Rios;

"Phase 2B" means all the work concerning the detailed design, specification, construction, completion, operation and maintenance of a toll road extending between Williamsfield and Montego Bay, with the exception of the Montego Bay bypass;

"Preliminary Payment" shall have the meaning ascribed thereto in Schedule 19, paragraph 1.21;

"Prohibited Act" means:

(a) offering, giving or agreeing to give to any servant of the Grantor or the Government any gift or consideration of any kind as an inducement or reward:

(i) for doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Agreement or any other contract with the Grantor; or

(ii) for showing or not showing favour or disfavour to any person in relation to this Agreement or any other contract with the Grantor;

(b) entering into this Agreement or any other contract with the Grantor in connection with which commission has been paid or has been agreed to be paid by the Developer or on its behalf, or to its knowledge, unless before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed in writing to the Grantor;

(i) under the Corruption Prevention Act 2000; or

(ii) under any Statutory Requirement creating offences in respect of fraudulent acts; or

(d) defrauding or attempting to defraud or conspiring to defraud the Grantor or the State;

"Project Agreements" means the Construction Contract and the O & M Contract;

"Prolonged Force Majeure Event" shall have the meaning given in Clause 26.5 (Force Majeure);

"Protestor" means any person engaged in protest action against the construction or operation of the Project or against the construction or operation of tolled highways generally;

"Qualifying Change of Law" means a Change of Law if and to the extent that it is:

(a) the introduction of, or a change in, (and not merely the expiry by effluxion of time of an exemption relating to) a Tax imposed by reference to, or which has effect solely and specifically in relation to, the specific activity carried on by the Developer in its capacity as developer, builder, owner or operator of a toll road (or on its income as such) (and for these purposes a change by any Commissioner appointed pursuant to the Revenue Administration Act of Jamaica (or any other competent taxing authority) of any published practice, guideline or instruction in relation to any such Tax shall constitute a change in such a Tax);

(b) the introduction of any Statutory Requirement or Required Consent controlling the convertibility or transferability of Jamaican Dollars,

(c) a Change of Law (other than one relating to Tax) the terms of which apply expressly to or which has effect specifically in relation to:

(i) the Developer and not other firms;

(ii) the design, construction, operation, maintenance or financing of the Toll Road and not other roads; or

(iii) the design, construction, operation, maintenance or financing of toll roads and not other roads,

but excluding:

(A) any Change of Law that arises as a result of breach by the Developer of any of its obligations under this Agreement or the Land Documents;
(B) any amendment or renewal of an existing, or issue of a new, Required Consent except to the extent due to:
(i) a Qualifying Change of Law relating to a Statutory Requirement; or
(ii) a change of policy of a Competent Authority which, if it were a Change of Law, would be a Qualifying Change of Law;
(C) any amendment or renewal of an existing, or issue of a new, Required Consent required as a consequence of a Modification to the extent that it has been compensated for by the payment of or an adjustment to, the Compensation Amount as a result of the Modification; and
(D) any Change of Law relating to a Required Consent which is due to:

(i) a Change of Law relating to a Statutory Requirement which itself would not be a Qualifying Change of Law; or

(ii) a change of a policy of a Competent Authority which, if it were a Change of Law, would not be a Qualifying Change of Law;

"Qualifying Change of Law Variation" means a Variation agreed between the Parties or determined by the Expert to be necessary, in each case in accordance with Clause 20.2 (Change of Law), as a consequence of a Qualifying Change of Law;

"Qualifying Force Majeure Event" means a Force Majeure Event arising directly from:

(a) the discovery of any Ground Contamination or Archaeological Finds at the Sites;

(b) delay without good reason in the importation of equipment and materials at Jamaican customs and provided that such delay is not due to any failure of the Developer or its sub-contractors to follow the relevant importation regulations and procedures or due to any breach of contract or negligence on the part of the Developer or its sub-contractors;

(c) delay without good reason in the issue of any Required Consent and provided that such delay is not due to any failure of the Developer, the Contractor, the O&M Contractor or any of their or its sub-contractors to follow the relevant regulations and procedures or due to any breach of contract or negligence on the part of the Developer or its sub-contractors;

(d) delay or inability of the Developer without good reason to obtain work permits for foreign employees and provided that such delay is not due to any failure of the Developer or its sub-contractors to follow the relevant work permit application procedures or due to any breach of contract or negligence on the part of the Developer or its sub-contractors;

(e) events required to be insured against pursuant to Clause 42 (Insurance) which although insurable on the Concession Award Date cease to be insurable on reasonable commercial terms during the Concession Period, other than as a result of any act or omission on the part of the Developer or its sub-contractors;

(f) failure of the police, after a request for assistance to control Protestors, to take appropriate action to do so within 7 days of that request; and

(g) expropriation, sequestration or requisition (by a single or a series of events) of any part of the Toll Road, the Contract Plant, the Construction Works, or the Contractor's Equipment by the Government of Jamaica;

"Quality Documentation" means the quality manuals, quality plans, quality procedures, calibration, sample, trial, inspection and test plans, work instructions or like documentation, as appropriate, which describe and define a quality management system under the quality management plan for the design, construction, operation and management of the Toll Road in accordance with the Concession Specification and include the health and safety management plan and the environmental management plan as set out in Schedule 5;

"Reference Rate" means the interest rate set out in paragraph 2 of Schedule 20;

"Related Dispute" has the meaning given in Clause 49.

"Related Contract" has the meaning given in Clause 49.

"Relocation Schedule" has the meaning given in Clause 8.1;

"Remedial Period" has the meaning given in Clause 17.4(b);

"Request for Proposals" means the request for proposals dated June 2000 as reissued by the Grantor in December 2000;

"Required Consents" means all consents, licences, authorisations, permissions, approvals and permits of any Competent Authority which are necessary for the construction or operation of the Toll Road or for the performance of any of the Developer's obligations under this Agreement, including the Competent Authority Consents;

"Reviewed Design Documentation" means the draft or revised design information, drawings and manuals submitted to the Grantor and returned to the Developer marked as "reviewed without comments" in accordance with Clause 13.2 (Design Information, Drawings);

"Reviewed Quality Documentation" means the draft or revised Quality Documentation submitted to the Grantor and returned to the Developer marked as "reviewed without comments" in accordance with Clause 13A.2 (Quality Documentation);

"S&P" means Standard & Poor's Rating Services, a division of the McGraw-Hill Companies Inc;

"Schedule of Tasks" means the schedule in the Agreed Form setting out, with respect to each Fixed Cost Centre, the tasks comprising that Fixed Cost Centre and the value of that task as a percentage of the CCLS for that Fixed Cost Centre;;

"Secondary Developments" means construction works of any kind on the Sites which are not included in the Project and which are intended to facilitate the use of the Toll Road, including, without limitation, the provision of petrol stations and ancillary services, or which relate to electricity and telecommunications cables and fibre optics;

"Section" means each of the following stand alone portions of the Toll Road which can be operated prior to completion of the whole phase:

(a) as part of the Early Project:

(i) Old Harbour Bypass; and

(ii) Kingston to Spanish Town;

(iii) Spanish Town to Bushy Park; and

b) as part of Phase 1A:

Portmore Causeway; and

(i) Sandy Bay to May Pen;

(ii) May Pen to Williamsfield,

as more particularly described in the Core Requirements;

"Shareholders" means the Sponsor and the other shareholders of the Developer;

"Shareholder Contribution Amount" means the amount equal to the aggregate of all amounts paid by the Shareholders to the Developer by way of subscription for shares in the capital of the Developer less any amount paid to the Shareholders in reduction of the capital of the Developer;

"Shareholders EFC Letter of Credit" means a letter of credit of a face amount equal to the Shareholders Early Project Commitment (as defined in the Shareholder Equity Undertaking) less the amount of the Preliminary Payment in the Agreed Form;

"Shareholders Equity Undertaking" means the undertaking dated on or about the date of this Agreement between the Shareholders relating to the subscription of equity in and/or the advance of money to, the Developer;

"Shareholders FC1A Letter of Credit" means a letter of credit of a face amount equal to the Shareholders FC1A Commitment in the Agreed Form;

"Shareholders FC1B Letter of Credit" means a letter of credit of a face amount equal to the Shareholders Phase 1B Commitment in the Agreed Form;

"Sites" means the Early Project Sites, the Phase 1A Sites and the Phase 1B Sites;

"Snagging Matters" means minor items of outstanding work which would not materially impair the use and enjoyment of the Toll Road or its maintenance and operation by the Developer;

"Snagging Notice" means a notice to be issued by the Grantor's Representative in accordance with Clause 16.5 (Construction Completion);

"Sponsor" means Bouygues Travaux Publics;

"State" means Jamaica;

"Statutory Requirements" means all applicable statutes, laws, regulations, rules, by-laws, guidelines, standards, proclamations, schemes, notifications, directions, notices, forms or orders and any other requirements from time to time having the force of law;

"Step-In Security Agreement" means the agreement between the Grantor and the Developer by which the Developer grants the Grantor security over the Developer's rights and obligations under this Agreement and the Project Agreements, subordinated to the rights of the Lenders under the Financing Agreements;

"Subordinated Debt Agreement" means the agreement between the Developer and the Grantor pursuant to which the Developer agrees to repay the development costs (including, but not limited to, amounts paid to acquire land necessary to construct the Project, preliminary design and development work during the tender process and costs associated with the Grantor's consultants on the Project) to the value of US$20,000,000 incurred by the Grantor in connection with the Project;

"Tax" means any kind of tax, duty, levy, charge, contribution, impost or any similar charge, whether or not similar to any in force at the date of this Agreement and whether imposed by a local, municipal, governmental, state, federal or other body or authority in Jamaica or elsewhere;

"Technical Specifications" means the Design and Construction Specification and the O&M Specification as described in Schedule 3;

"Termination Date" means any date of termination of this Agreement in accordance with Clauses 26.6 (Force Majeure), 27.2 (Termination by Developer), 28.3 (Termination by Grantor) and 29 (Bankruptcy and Insolvency);

"Time for Early Project Completion" means the date falling on the earlier of 33 months after the Effective Date or 31 months from Early Financial Close, subject to any extensions of time permitted under Clause 12.2 (Time for Completion);

"Time for Completion" means the Time for Early Project Completion, the Time for Phase 1A Completion or the Time for Phase 1B Completion as the case may be;

"Time for Phase 1A Completion" means the date falling 27 months after Financial Close 1A, subject to any extensions of time permitted under Clause 12.2 (Time for Completion);

"Time for Phase 1B Completion" means the date falling 34 months after Financial Close 1B, subject to any extensions of time permitted under Clause 12.2 (Time for Completion);

"Time Related Cost Centre" shall have the meaning ascribed thereto in Schedule 19, 1.1.2;

"Toll Levels" means the levels of Tolls the Developer is entitled to charge in accordance with Clause 22 (Toll Revenues) and the Tolling Policy;

"Tolling Authority" means, when enacted into law, the authority responsible for the regulation of Tolls on users of the Toll under the Toll Roads Bill;

"Toll Revenues" means the revenues earned by the imposition of Tolls on users of the Toll Road;

"Toll Road" means the road to be designed, constructed, operated and maintained by the Developer in accordance with the terms of this Agreement;

"Toll Roads Bill" means the Bill to be laid before the Parliament of Jamaica which will set out the legal framework applicable to the construction, operation and maintenance of Toll Roads in Jamaica;

"Tolling Policy" means the tolling policy set out in Schedule 15;

"Tolls" means the tolls charged to users of the Toll Road in accordance with Clause 22 (Toll Revenues);

"US$", "US Dollars" and "USD" means the lawful currency for the time being of the United States of America;

"Utilities" means water, wastewater, electricity, irrigation and telecommunications and where the context so requires, conduits, pipes, cables, transmission lines and other infrastructure relating to the supply or transmission of the same;

"Variable Cost Centre" shall have the meaning ascribed thereto in Schedule 19, 1.1.3;

"Variation" means any change to the Concession Specification whether by addition, modification, omission or otherwise made in accordance with this Agreement.

1.2 Where the context requires words importing the singular shall include the plural and vice versa.

1.3 Where the context requires words importing persons shall include firms and corporations.

1.4 A reference in this Agreement to any Clause, paragraph, Schedule or part is, except where it is expressly stated to the contrary, a reference to such clause, paragraph, schedule or part of this Agreement.

1.5 Headings are for convenience of reference only.

1.6 Each reference to this Agreement or to any other document, contract or agreement shall include a reference to each permitted variation of, or supplement to, this Agreement and such other document, contract or agreement as amended, varied, supplemented or novated from time to time.

1.7 Each reference to this Agreement refers to this Agreement together with the Schedules hereto.

1.8 References to any statute or statutory provision shall include any statute or statutory provision which amends or replaces or has amended or replaced it and shall include any subordinate legislation made under any such statute.

1.9 A person includes its successors and permitted assignees or transferees.

1.10 In the event of any conflict between any provision of this Agreement (other than the Schedules) and the Schedules, the provisions of this Agreement (other than the Schedules) shall prevail over the Schedules.

1.11 For the purposes of this Agreement, a month shall mean a calendar month and a year shall mean a calendar year.

1.12 Any reference in this Agreement to the "termination" of this Agreement shall, where the context so permits, include the expiry of this Agreement pursuant to Clause 4.1 (Concession Period) and the verb "terminate" shall be construed accordingly.

2. CONDITIONS PRECEDENT, EFFECTIVE DATE, CONDITIONS SUBSEQUENT AND FINANCIAL CLOSES 1A AND 1B

2.1 Conditions Precedent to Effective Date

With the exception of Clause 1 (Interpretation), this Clause 2 and Clauses 3 (Representations and Warranties), 9 (Own Enquiries), 41 (Indemnity), 44 (Confidentiality), 46 (Notices Provisions), 47 (Dispute Resolution and Expert Determination), 48 (Arbitration), 49 (Joinder), 50 (Costs and Expenses) and 51 (Governing Law) which shall be immediately enforceable on signature of this Agreement, the provisions of this Agreement are conditional upon the Effective Date Conditions Precedent being satisfied or waived by both Parties. If any Effective Date Condition Precedent is waived by both Parties, that Effective Date Condition Precedent shall immediately become an EFC Joint Condition Subsequent, an EFC Developer Condition Subsequent, or an EFC Grantor Condition Subsequent as agreed by the Parties at the time of the waiver.

2.2 Conditions Subsequent regarding Early Financial Close

In the event that:

(a) any of the EFC Developer Conditions Subsequent have not been satisfied by the Developer or been waived by the Grantor;

(b) any of the EFC Grantor Conditions Subsequent have not been satisfied by the Grantor or been waived by the Developer; or

on or before the date falling three months after the Effective Date (or such later date as the Parties may agree) (the "EFC Long Stop Date") this Agreement shall be terminable by written notice given to the other Party by the Grantor in the case of paragraph (a) above; by the Developer in the case of paragraph (b) above; and by either party in the case of paragraph (c) above.

2.3 Conditions Subsequent regarding Financial Close 1A

In the event that:

(a) any of the FC1A Developer Conditions Subsequent have not been satisfied by the Developer or been waived by the Grantor;

(b) any of the FC1A Grantor Conditions Subsequent have not been satisfied by the Grantor or been waived by the Developer;

on or before the later of the date falling 21 months after the Effective Date (or such later date as the Parties may agree) and the date falling 18 months after the EFC Long Stop Date (the "FC1A Long Stop Date") this Agreement shall be terminable with effect from the Time For Early Project Completion by written notice given to the other Party by the Grantor in the case of paragraph (a) above; by the Developer in the case of paragraph (b) above; and by either Party in the case of paragraph (c) above.

2.4 Conditions Subsequent regarding Financial Close 1B

In the event that the Phase 1B Commencement Notice has been issued and:

(a) any of the FC1B Developer Conditions Subsequent have not been satisfied by the Developer or been waived by the Grantor;

(b) any of the FC1B Grantor Conditions Subsequent have not been satisfied by the Grantor or been waived by the Developer;

on or before 36 months after the FC1A Long Stop Date (or such later date as the Parties may agree) (the "FC1B Long Stop Date") this Agreement shall be terminable with respect to Phase 1B by written notice given to the other Party, by the Grantor in the case of paragraph (a) above; by the Developer in the case of paragraph (b) above; and by either Party in the case of paragraph (c) above.

3. REPRESENTATIONS AND WARRANTIES

3.1 The Developer represents and warrants to the Grantor that (subject, in the case of paragraphs (a), (b), (d), (e) and (f) and (i) below, with respect to the matters covered by the Toll Roads Bill, to the entry into force of that Bill as an Act of the Parliament of Jamaica):

(a) it is a private company incorporated under the Companies Act of Jamaica duly organised, validly existing and in good standing under the laws of Jamaica, and has the necessary power and authority to enter into and perform its obligations under this Agreement;

(b) this Agreement constitutes the legal, valid and binding obligation of the Developer, enforceable against the Developer in accordance with the terms hereof except as such enforceability may be limited by laws affecting the rights of creditors generally;

(c) there are no actions, suits or proceedings pending or, to the Developer's knowledge, threatened, against or affecting the Developer before any court or administrative body or arbitral tribunal that, if decided adversely, could have a material adverse effect on the ability of the Developer to meet and to carry out its obligations under this Agreement;

(d) the execution, delivery and performance by the Developer of this Agreement have been duly authorised by all requisite corporate action, and will not contravene any provision of, or constitute a default under, any other agreement or instrument to which it is a party or by which it or its property may be bound;

(e) in the entering into of this Agreement by the Developer, the Developer or any Affiliate, agent, officer or employee thereof has not committed any Prohibited Act;

(f) all acts, conditions and things required to be done, fulfilled and performed in order:

(i) to enable the Developer lawfully to enter into, exercise the Developer's rights under, and perform and comply with the obligations expressed to be assumed by the Developer in, this Agreement; and

(ii) to ensure that the obligations expressed to be assumed by the Developer in this Agreement are legal, valid, and binding,

have been done, fulfilled and performed;

(g) the Project Agreements have been, or when entered into will be, duly executed by the Developer and the relevant counterparties and when entered into, will be binding in accordance with their terms;

(h) it has not taken any corporate action or any other steps nor have any legal proceedings been started or (to the best of its knowledge and belief) threatened in writing against it for its winding-up, dissolution, administration or re-organisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues;

(i) its execution of this Agreement and its exercise of its rights and performance of its obligations hereunder do not:

(i) conflict with any agreement, mortgage, bond or other instrument or treaty to which it is a party or which is binding upon it or any of its assets;

(ii) conflict with its constitutive documents and rules and regulations; or

(iii) conflict with any applicable law, regulation or official or judicial order of Jamaica;

(j) The Sponsor is the sole beneficial owner of the equity in the Developer issued to it free of all liens, charges, encumbrances or other third party rights. All of the issued and allotted share capital of the Developer on the date of this Agreement is held by the Sponsor.

(k) The Sponsor has the resources to provide the equity under the Shareholders Equity Undertaking in due time under the Shareholders Equity Undertaking.

3.2 The Developer acknowledges that the Grantor has entered into this Agreement in reliance on the representations and warranties made by the Developer herein.

3.3 The Grantor represents and warrants to the Developer that (subject, in the case of paragraphs (a), (b), (d), (e) and (g) below, with respect to the matters covered by the Toll Roads Bill, to the entry into force of that Bill as an Act of the Parliament of Jamaica):

(a) it is a private company incorporated under the Companies Act of Jamaica duly organised, validly existing and in good standing under the laws of Jamaica, and has the necessary power and authority to enter into and perform its obligations under this Agreement;

(b) this Agreement constitutes the legal, valid and binding obligation of the Grantor, enforceable against the Grantor in accordance with the terms hereof except as such enforceability may be limited by laws affecting the rights of creditors generally;

(c) there are no actions, suits or proceedings pending or to the Grantor's knowledge, threatened, against or affecting the Grantor before any court or administrative body or arbitral tribunal that, if decided adversely, could have a material adverse effect on the ability of the Grantor to meet and to carry out its obligations under this Agreement;

(d) the execution, delivery and performance by the Grantor of this Agreement have been duly authorised by all requisite corporate action, and will not contravene any provision of, or constitute a default under, any other agreement or instrument to which it is a party or by which it or its property may be bound;

(e) all acts, conditions and things required to be done, fulfilled and performed in order:

(i) to enable the Grantor lawfully to enter into, exercise the Grantor's rights under, and perform and comply with the obligations expressed to be assumed by the Grantor in, this Agreement; and

(ii) to ensure that the obligations expressed to be assumed by the Grantor in this Agreement are legal, valid, and binding (including but without limitation fulfilment of the requirements of Jamaican law concerning public procurement),

have been done, fulfilled and performed;

(f) it has not taken any corporate action or any other steps nor have any legal proceedings been started or (to the best of its knowledge and belief) threatened in writing against it for its winding-up, dissolution, administration or re-organisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues;

(g) its execution of this Agreement and its exercise of its rights and performance of its obligations hereunder do not:

(i) conflict with any agreement, mortgage, bond or other instrument to which it is a party or which is binding upon it or any of its assets;

(ii) conflict with its constitutive documents and rules and regulations; or

(iii) conflict with any applicable law, regulation or official or judicial order of Jamaica;

(h) it has a valid title sufficient to grant the rights conferred by the Land Documents; and

(i) it has the resources to provide the loans under the GPD Loan Agreement in due time under the GPD Loan Agreement.

3.4 The Grantor acknowledges that the Developer has entered into this Agreement in reliance on the representations and warranties made by the Grantor herein, and in reliance on the undertakings of the Government under the Implementation Agreement and the Government Guarantee.

4. CONCESSION PERIOD

4.1 The Concession Period shall commence on the Concession Award Date and shall, subject to Clause 4.2, end on the date which is thirty-five years after the Concession Award Date (the "Expiry Date") unless terminated earlier by mutual agreement or in accordance with the express terms of any other provision of this Agreement.

4.2 The period of thirty-five years referred to in Clause 4.1 shall be automatically extended by:

(a) any period of extension granted to the Developer under Clause 12.2 (Time for Completion);

(b) any period during which the Developer was unable to operate a material part of the Toll Road resulting in a material reduction in revenues due to a breach by the Grantor of its obligations under this Agreement or any Force Majeure Event; and

(c) any period of time after EFC Long Stop Date by which the entry into force of the Toll Roads Bill as an Act of the Parliament of Jamaica has been delayed.

provided that no day of delay may be counted more than once in calculating any extension.

5. GENERAL AND CONSTRUCTION OBLIGATIONS

5.1 From the Effective Date, the Developer shall have the right and obligation at its cost, with due care and diligence and in accordance with Good Engineering and Operating Practices, to carry out the Early Studies.

5.1A From Early Financial Close, the Developer shall have the right and obligation at its cost, with due care and diligence and in accordance with Good Engineering and Operating Practices, to design, build, operate, partially finance and maintain the Early Project subject to and in accordance with the provisions of this Agreement.

5.1B From Financial Close 1A, the Developer shall have the right and obligation at its cost, with due care and diligence and in accordance with Good Engineering and Operating Practices,