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SCHEDULE 1

This is Schedule 1 comprising Definitions and Interpretation referred to in the Public Private Partnership Agreement entered into

between

City of Tshwane Metropolitan Municipality

and

(insert name of preferred bidder)

City of Tshwane of 28New Municipal Headquarters ProjectSchedule 1 [Definitions and Interpretation] February 2014

The following words and/or phrases shall when used in the Agreement and typed in “Title Case” bear the meaning ascribed to them below -

WORDS/PHRASES MEANING

"Account Bank" Has the meaning given to that term in the common Terms Agreement;

"Additional Payment Invoice Report"

Has a meaning given in Clause 7.2.2 of Schedule 13 [Performance Standards and Payment Mechanism] of the Agreement;

"Adjusted Debt" Has a meaning given in Schedule 16 [Compensation on Termination];

"Adjusted Estimated Project Value of the Agreement"

Has a meaning given in Schedule 16 [Compensation on Termination];

"Adjusted Highest Compliant Tender Price"

Has a meaning given in Schedule 16 [Compensation on Termination];

"Affected Branches" Has a meaning given to it in paragraph 1.3.1 of Schedule 27 [Relocation Principles]

"Affected Dates" Has a meaning given to it in paragraph 1.3.1 of Schedule 27 [Relocation Principles]

"Affected Relocation Assets" Has a meaning given to it in paragraph 1.3.2 of Schedule 27 [Relocation Principles]

"Affiliates" Means any person that directly or indirectly through any one or more intermediaries controls, is controlled by or is under common control with any person, where "control" means the ability to direct or cause the direction of the business affairs and management policies or practices of a person, but excludes the Subcontractors and the Lenders in their capacity as such;

"Agreed Form" Means, in relation to any document not executed simultaneously with this Agreement, the terms and conditions of that document have been agreed by the parties and initialled by each of them for identification purposes on or before the Signature Date;

"Agreement" Means this PPP Agreement, entered into between the City of Tshwane Metropolitan Municipality and Tsela Tshweu Private Company Proprietary Limited (RF) and the Schedules thereto;

"Approved Purposes" Has a meaning given in Clause 49.1.1 of the Agreement;

"Arbitrator" Has the meaning given in Schedule 21 [Dispute Resolution]

City of Tshwane of 28New Municipal Headquarters ProjectSchedule 1 [Definition and Interpretation] January 2014

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"Assessed Maintenance Amount" Has a meaning given in paragraph 1.3.4 of Schedule 17 [Final Maintenance Survey];

"Assessed Maintenance Requirements"

Has a meaning given in paragraph 1.3.1 of Schedule 17 [Handback Procedure];

"Availability Certificate" Means the certificate to be issued by the Private Party certifying that the Services are available;

"Background Information" Means any Design Data and any other written information, data and documents (including, to avoid doubt, data and documents concerning the Title Deeds and any rights of any person in respect of the Site) made available or issued to the Private Party or any Private Party Party in connection with the Project by or on behalf of the CoT (or any CoT Party) before the execution of this Agreement;

"Base Case Equity IRR" Means, having regard to the Base Case Financial Model,the real post-tax Equity IRR as at the Signature Date, being [15]%;

"Base Case Financial Model" Means the Financial Model at Financial Close (as defined in the Common Terms Agreement) ;

"Base Price" Has a meaning given in Clause 35.2.2;

"Black Persons" Has the meaning given to that term in Schedule 5;

"Business Day" Means a day other than a Saturday, Sunday or a public holiday in the Republic of South Africa;

"Calculation Costs" Has a meaning given in Part A of Schedule 16 [Compensation in Termination];

"Capital Expenditure" Means any expenditure treated as capital expenditure under IFRS;

"Certificate of Final Completion" Means the certificate to be issued by the Independent Certifier in accordance with Clause 25.4.1 (Completion Certificates) of the Agreement in the form set out in Schedule 22 [Certificates];

"Certificate of Practical Completion" Means the certificate to be issued by the Independent Certifier in accordance with Clause 25.4.1 (Completion Certificates) of the Agreement in the form set out in Schedule 22 [Certificates];

"Change in Control" Means any change whatsoever in Control effected directly, but excluding any exercise by the Lenders (or any security company holding security over the shares of the Borrower to secure a guarantee provided by it to the Lenders) of any of their rights under the Lenders Direct Agreement or the exercise of


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their rights under the Security Documents ;

"Check-In Point" Has a meaning given in paragraph 2.8.1 of Schedule 27 [Relocation Principles]

"Check-Out Point" Has a meaning given in paragraph.8.1 of Schedule 27 [Relocation Principles]

"Collateral Agreements" Means the Construction Subcontractor's Collateral Agreement, and the Operations Subcontractors' Collateral Agreement;

"Commissioning End Date" Means the date by which the parties' commissioning activities on the Facilities are to be completed in accordance with the Final Commissioning Programme;

"Common Terms Agreement" Means the common terms agreement so entitled entered into between [insert name/s of Lenders] and Private Party in respect of the limited recourse debt financing of the Project;

"Compensation Date" Has a meaning given in Schedule 16 [Compensation on Termination];

"Compensation Event" Has a meaning given to it Clause 39.1 of the Agreement;

"Compliant Tender" Has a meaning given in Schedule 16 [Compensation on Termination];

"Confidential Information" Has the meaning given in Clause 50.1.1 of the Agreement;

"Contract Month" Means a calendar month save that:

(a) the first Contract Month shall be the period from and including the Effective Date up to and including the last day of the month during which the Effective Date occurs; and

(b) the final Contract Month shall be the period from and including the first day of the month during which the Expiry Date occurs up to and including the Expiry Date.;

"Contract Year" Means each period of twelve (12) Contract Months;

"Consents" Means all permissions, filings, consents, approvals, notifications, certificates, permits, licences, statutory agreements and authorisations, exemptions, registrations or declarations required by Law, and all necessary consents and agreements from any Responsible Authority (including, without limitation, any planning permission), needed to carry out the Project Deliverables in accordance with this Agreement;


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"Consortium Member" Means those persons identified as such in Schedule 3 [Beneficial Ownership of the Private Party] and includes persons to whom shares in the Private Party have been issued or transferred (otherwise than by way of a transfer by way of security for the benefit of the Lenders) in accordance with Clause 48 [Assignment, Sub-Contracting and Changes in Control];

"Construction Period" Means the period from the Signature Date up to and excluding the Service Commencement Date unless this Agreement is terminated earlier in accordance with its terms;

"Construction Quality Plan" Means the document designated as such at Part 2 of Schedule 6 [Specifications: Private Party’s Proposal] as amended pursuant to this Agreement from time to time;

"Construction Regulations" Has a meaning given in Schedule 26 [Section 37(2) Principles];

"Construction Subcontract" Means the contract between the Private Party and the Construction Subcontractor in respect of the Works;

"Construction Subcontractor" Means [insert the name of the construction subcontractor], being the person appointed by the Private Party to undertake the Works;

"Construction Subcontractor’s Collateral Agreement"

Means the collateral agreement between the CoT, the Private Party and the Construction Subcontractor in the form set out in Schedule 9 [Collateral Agreements];

"Control" Means, in relation to any entity, the ability directly or indirectly to direct or cause the direction of the votes attaching to the majority of its issued shares or interests carrying voting rights, or to appoint or remove or cause the appointment or removal of any directors (or equivalent officials) holding the majority of the voting rights on its board of directors (or equivalent body).

"Corrupt Act" Has the meaning given in Clause 52.1.1 (Corrupt Gifts) of the Agreement;

"CoT Additional Works Confirmation"

Has the meaning given in Schedule 15 [Variation Procedure];

"CoT Additional Works Enquiry" Has the meaning given in Schedule 15 [Variation Procedure];

"CoT Additional Works Variation" Has the meaning given in Schedule 15 [Variation Procedure];

"CoT Assets" Means any assets and rights made available by the CoT to the Private Party for use in the Project Deliverables, including the


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Site;

"CoT Events of Default" Has the meaning given in Clause 43.1 (CoT Events of Default) of the Agreement;

"CoT Party" Means any of the CoT's agents, contractors and sub contractors of any tier and its or their directors, officers and employees having access to the Facilities with the authority of the CoT but excluding the Private Party, any Private Party Party and utilities providers, and "CoT Parties" shall be construed accordingly;

"CoT Policies" Means, subject to Clause 32.2 (CoT Policies) of the Agreement, the policies of the CoT relevant to the use of offices or CoT premises, as shall be applicable to other users of the Facilities (including without limitation the CoT personnel), and being of such a nature that they are typically applicable in an office use environment, and/or public access to government or similar administration services or operations, as contained in Schedule [ ];

"CoT's Representative" Means the person so appointed by the CoT pursuant to Clause 14 (Representatives) of the Agreement;

"CoT's Requirements" Means the requirements of the CoT set out or identified in Part 1 of Schedule 6 [Specifications – CoT Requirements] comprising both Part A (Works) and Part B (Services) as amended from time to time in accordance with the terms of this Agreement;

"CoT Service Variation" Has the meaning given in Schedule 15 [Variation Procedure];

"CoT Variation Notice" Has the meaning given in Schedule 15 [Variation Procedure];

"CoT Works Variation" Has the meaning given in Schedule 15 [Variation Procedure];

"CoT Works Variation Notice" Has the meaning given in Schedule 15 [Variation Procedure];

"CPI" Shall have the meaning given to the term “CPI Index” in clause [14.1.1] of Schedule 13 [Performance Standards and Payment Mechanism];

"Debt Amount" Has the meaning given in Part A of Schedule 16 [Compensation on Termination];

"Debt LLCR" Has the meaning given in the Common Terms Agreement;


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"Deduction" Means the amount of the financial penalties which may be deducted from any Gross Monthly Instalments in the circumstances set out in, and in accordance with the provisions of, the Agreement and in particular, Schedule 13 Part 2 [Performance Standards and Payment Mechanism];

"Default Interest Rate" Means :

(a) for all purposes other than Schedule 16 (Compensation on Termination), 2% over the Prime Rate; and

(b) for the purposes of Schedule 16 (Compensation on Termination), the Default Interest Rate as defined in the Common Terms Agreement;

"Defects" Means any defect or fault in the Works and/or the Facilities (not being a Snagging Matter) which occurs due to a failure by the Private Party to meet the CoT's Requirements set out in Schedule 6 Part 1A and/or the Private Party's Proposals or otherwise to comply with its obligations under this Agreement;

"Design Data" Means all drawings, reports, design documents, plans, formulae, calculations and other design data relating to the design, construction, testing and/or operation of the Facilities;

"Design Quality Plan" Means the document designated as such at Part 2 of Schedule 6 [Specifications – Private Party’s Proposal]] as amended pursuant to this Agreement from time to time;

"Dispute" Has the meaning given in paragraph 1 of Schedule 21 [Dispute Resolution Procedure];

"Dispute Resolution Procedure" Means the procedure set out in Schedule 21 [Dispute Resolution Procedure];

"Distributions" (a) whether in cash or in kind, any:

(i) dividend or distribution of share capital;

(ii) reduction of share capital, stated capital, any capital redemption fund or any share premium account;

(iii) cancellation, conversion, redemption or re-purchase of shares or any other variation whatsoever in share capital;

(iv) payment in respect of the Shareholder Loans (whether of principal, interest, breakage costs or otherwise); or

(v) payment, loan or other financial assistance, transfer of


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rights or other assets or receipt of any other benefit to the extent put in place after the Signature Date and not in the ordinary course of business, not on an arm’s length basis or not otherwise on reasonable commercial terms by the Private Party to any of the Private Party’s Affiliates; or

(b) the premature release of any liability of any of the Shareholders or their Affiliates, in any form other than a discharge of such liability, in respect of their financial obligations to the Private Party and/or the Lenders (or any security company or trust holding any security in respect of the Debt for the benefit of the Lenders). Such release shall be deemed to be a cash amount for the purpose of calculating the Refinancing Gain;

"Early Works" Means works carried out by the Early Works Contractor in terms of the Early Works Agreement;

"Early Works Agreement" Means the agreement concluded on 19 October 2012 between the CoT and the Early Works Contractor for the performance of the Early Works;

"Early Works Contractor" Means Tsela Tshweu Construction Joint Venture;

"Economic Reinstatement Test" Means the Economic Reinstatement Test set out in Clause 35.7 of the Agreement;

"Effective Date" Means the date of commencement of the Agreement in accordance with Cause 3.1 (Commencement and Duration) of the Agreement;

"Emergency Reaction Plan" Means the plan set out in Schedule 4 [Emergency Reaction Plan];

"Employee" Has a meaning given in Schedule 26 [Section 37(2) Principles];

"Equity" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Equity IRR" Means the projected real, post tax internal rate of return, as reflected in the Financial Model, to the Shareholders over the full Project Term, having regard to the Distributions made and forecast to be made;

"Estimated Increased Maintenance Costs"

Has a meaning given in Clause 30.2.2(b) of the Agreement;

"Estimated Project Value of the Agreement"

Has a meaning given in Part A of Schedule 16 [Compensation on Termination];


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"Exempt Refinancing" Means any Refinancing:

(a) that effects a sale or cession of the whole or any part of Equity or the Shareholder Loans or securitisation of the rights attaching to the Equity or the Shareholder Loans; provided that this exemption shall not limit the application of Clause 48.3 (Changes in Control) of the Agreement;

(b) that was taken account of fully in the calculation of the Unitary Payment;

(c) that arises solely from a change in taxation or accounting treatment;

(d) that comprises a waiver, approval or any similar action taken in respect of breaches of any provisions or warranties or representations or the late or non-provision of required information, and which occurs in the ordinary day-to-day administration of the Project Documents, other than the PPP Agreement or to the extent that the purpose of such action is to prevent the occurrence of a breach of or an event of default under the Financing Agreement; or

(e) that effects any syndication, sell-down, cession or grant of any rights of participation or security by the Lenders (or any agent acting on their behalf, or any security company or trust holding any security in respect of the Debt for the benefit of the Lenders) of or in relation to any of its rights under any of the Financing Agreements in favour of any Qualifying Financial Institution.

"Existing Facilities" Means the CoT premises as at the Signature Date located at [insert];

"Expiry Date" Means the 27th (twenty seventh) anniversary of the Effective Date being the date on which this Agreement will terminate in accordance with Clause 44.2 (Expiry) of the Agreement;

"Facilities" Means the buildings and other facilities, together with all supporting infrastructure including the plant, equipment and amenities located on the Site as required to enable the Private Party to exercise its rights and comply with its obligations included in the Project Deliverables under this Agreement, all as the same may be varied, amended or supplemented from time to time in accordance with this Agreement;

"Fast Track Dispute Resolution Procedure"

Means the procedure referred to in paragraph 6 of Schedule 21 [Dispute Resolution Procedure];


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"FF&E" Means the fixtures, furniture and equipment to be installed at the Facilities and/or which form part of the Reviewable Design Data;

"Final Commissioning Programme" Means the programme to be jointly developed and agreed by the CoT and the Private Party in accordance with the provisions of Clause 25.1 (Final Commissioning Programme) of the Agreement in relation to the Works;

"Final Completion" Means completion of the Snagging Matters , in accordance with this Agreement, enabling the issuance of the Certificate of Final Completion;

"Final Completion Date" Means the date on which Snagging Matters have been completed, as such date shall be stated in the Certificate of Final Completion or, in the event of dispute, as such date may be determined in accordance with Schedule 21 [Dispute Resolution Procedure];

"Final Completion Inspection" Has a meaning given to in Clause 26.3.1 of the Agreement;

"Final Maintenance Bond" Has a meaning given in paragraph 1.5 of Schedule 17 [Final Maintenance Survey];

"Final Maintenance Survey" Has a meaning given in paragraph 1.1 of Schedule 17 [Final Maintenance Survey];

"Financial Model" Means the financial base case for the Project as reflected in the computer model on a read only disk, which is used by, and shall be held for the Project Terms and which model incorporates the forecast cash flow statements of the Private Party including all expenditure, revenues, taxation and financing of the Project Deliverables together with the statement of financial documents and statement of financial position for the Private Party over the Project Term, and details of all assumptions, calculations and methodology used in the compilation thereof, as amended from time to time in accordance with the Financing Agreements;

"Financial Year" The financial year of the CoT being 1 July in one year to 30 June in the next succeeding year, other than in respect of the first year after Signature Date which shall commence on the Effective Date and end on the next 30 June;

"Financing Agreements" Means all or any of the agreements or instruments to be entered into by the Private Party relating to the limited recourse debt financing of the Project Deliverables (including the Common Terms Agreement, the Security Documents, and the agreement(s) entered into by the Private Party in respect of the


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Mezzanine Debt , any agreements or instruments to be entered into by the Private Party relating to the rescheduling of their indebtedness owed to Lenders or the refinancing of the Project Deliverables) and shall include any hedging arrangements, agreements, confirmations or transactions entered into by the Private Party in order to hedge against interest rate and/or exchange rate risks and liabilities;

"First Inspection" Has a meaning given to it in Clause 25.3.4 of the Agreement;

"Force Majeure" Has the meaning given in Clause 41.1 (Force Majeure) of the Agreement;

"Funding Shortfall" Has the meaning given in Schedule 15 [Variation Procedure];

"Good Industry Practice" Means using standards, practices, methods and procedures conforming to the Law and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances and under documents which are the same or similar to the Project Documents;

"Government" Means the government of the Republic of South Africa;

"Gross Monthly Instalment" Has the meaning given to it in Schedule 13 [Performance Standards and Payment Mechanism];

"Highest Compliant Tender Price" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"ICT" Means information and communication technology, including, desktop computers, printers, servers, network equipment and communications devices;

"ICT Interface Agreement" Means the agreement concluded between the Private Party, [the CoT] and the ICT service provider substantially in the form of the in agreement in Schedule 25 [ICT Interface Agreement];

"ICT Project" Means the work relating to the ICT to be undertaken by the ICT service provider [●];

"ICT service provider" Means the entity or entities selected to provide the services for the ICT Project;

"Independent Certifier" Means the independent certifier appointed jointly by the parties pursuant to Clause 24 (Independent Certifier) and who is responsible, inter alia, for issuing the Certificate of Final Completion declaring that the Works have been completed;


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"Independent Certifier Agreement" Means the contract substantially in the form set out in Schedule

12 [Independent Certifier Agreement] between the CoT, the Private Party and the Independent Certifier;

"Insurances" Means, as the context requires, all or any of the insurances required to be procured and maintained by the Private Party pursuant to this Agreement;

"Insurance Proceeds Account" Means the account designated as such and held in the joint names of the Private Party and the CoT with the Account Bank;

"Intellectual Property" Means all registered or unregistered trademarks, service marks, patents, registered designs, utility models, applications for any of the foregoing, copyrights, unregistered designs, the sui generis rights of extraction relating to databases, trade secrets and other confidential information or know-how;

"Intellectual Property Rights" Means the Intellectual Property created specifically for the delivery of the Project Deliverables;

"Invoice Date" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Law" Means:

(c) any applicable statute or proclamation or any delegated or subordinate legislation;

(d) Any applicable guidance, direction or determination with which the CoT and/or the Private Party is bound to comply to the extent that the same are published and publicly available or the existence or contents of them have been notified to the Private Party by the CoT; and which has the force of law in South Africa;

(e) Any applicable judgement of a relevant court of law which is a binding precedent in the Republic of South Africa; and

(f) The South African common law as applied and decided upon by a court of law which is binding in the Republic of South Africa,

and in each case in force in the Republic of South Africa;

"Lenders" Means any hedging counterparty under the Finance Agreements and / or any person providing limited recourse debt


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financing to the Private Party under the Financing Agreements or to whom the rights of any person (other than the Private Party) under a Financing Agreement are transferred or ceded in whole or in part;

"Lenders’ Direct Agreement" Means the agreement to be entered into between the CoT, the Lenders and the Private Party in the form set out in Schedule 20 [Direct Agreement];

"Licensed Intellectual Property Rights"

Means all Intellectual Property Rights to be used under licence from any third party by the Private Party or the Subcontractors in the execution of the Project Deliverables;

"Long Stop Date" Means 7 months after the Scheduled Services Commencement Date;

"Maintenance Surveyor" Has a meaning given in Clause 30.3.2 of the Agreement;

"Maintenance Works" Means any works for maintenance or repair of the Facilities that are necessary to ensure that the Facilities are maintained in accordance with CoT’s Requirements (including, without limitation, the renewal or replacement of any Plant or equipment) throughout the Project Term;

"Mandatory" Has a meaning given in Schedule 26 [Section 37(2) Principles];

"Major Contingency" Means an emergency or substantial incident requiring the Private Party to instigate contingency plans for the provision of the Services as set out in Schedule 4 [Emergency Reaction Plan];

"Maximum Unitary Payment" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

["Mezzanine Debt" Has a meaning given to it in Part A of Schedule 16 [Compensation on Termination];]1

"Monthly Test Programme" Has a meaning given to it in Clause 25.1.6(a) of the Agreement;

"Municipal Finance Management Act"

Means the Municipal Finance Management Act 56 of 2003 as amended from time to time, and MFMA shall mean the Municipal Finance Management Act and in each case together with any regulations promulgated thereunder;

"Net Present Value" Means the aggregate of the discounted values, calculated as at the estimated date of the Refinancing, of each of the relevant projected Distributions, in each case discounted using

1 Use of this term is subject to finalisation of Schedule 16.


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the Base Case Equity IRR and NPV shall mean the Net Present Value;

"New Agreement" Has a meaning given in Schedule 16 [Compensation on Termination];

"New Private Party" Has a meaning given in Part F of Schedule 16 [Compensation on Termination];

"Non-Default Interest Rate" Has a meaning given in Part F of Schedule 16 [Compensation on Termination];

"OHSA" The Occupational Health and Safety Act, 1993;

"Operating Cost" Has a meaning given in Schedule 15 [Variation Procedure];

"Operations Subcontract" Means the contract between the Private Party and the Operations Subcontractor in respect of the Services;

"Operations Subcontractor" Means [insert name];

"Operations Subcontractors' Collateral Agreement"

Means the collateral agreements between the CoT, the Private Party and the Operations Subcontractor in the form set out in Part 2 of Schedule 9 [Collateral Agreements];

"Outline Commissioning Programme"

Means the programme setting out the standards, specifications, procedures and other requirements for the carrying out and completion of the commissioning activities of the parties in relation to the Works set out in outline in Schedule 10 [Outline Commissioning Programme];

"Outstanding Required Work" Has a meaning given in Clause 30.3.4(a) of the Agreement;

"Outstanding Required Work Notice"

Has a meaning given in Clause 30.3.4 of the Agreement;

"Outstanding Required Work Time" Has a meaning given in Clause 30.3.4(b) of the Agreement;

"Packed Box" Means a move box supplied by the Private Party and packed and sealed pursuant to these Relocation Principles;

"Pass Through Costs" Has the meaning given to that term in Schedule 13 [Performance Standards and Payment Mechanism];

"Parties" Means the CoT and Private Party and "Party" shall mean either of them as the context may require;

"Payment Date" Means in respect of each Contract Month after the Service


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Commencement Date, the twenty fifth (25th) Business Day after the date on which the Unitary Payment Invoice Report and the Additional Payment Invoice Report (or, if such is not a Business Day, the first Business Day thereafter) for that Contract Month are presented to the CoT;

"Performance Guarantees" Means the guarantees to the Private Party in respect of the Construction Subcontract, the Operations Subcontract and in the case of the Operations Subcontract, guarantees, bonds, funding shortfall and support arrangements relating thereto;

"Performance Standards" Means the CoT requirements in relation to the Services as specified in Schedule 13, Part 1 [Performance Standards];

"Permitted Borrowing" Means, at any time after the Signature Date, any advance made to the Private Party under the Financing Agreements for the purpose(s) specified therein;

"Plant" Means the plant and equipment to be provided and/or maintained by the Private Party pursuant to this Agreement;

"Post Termination Service Amount" Has a meaning given in Part F of Schedule 16 [Compensation on Termination];

"PPP" Means the public private partnership programme as described in the Regulations passed in terms of the Municipal Finance Management Act 56 of 2003 or any similar replacement initiative;

"PPP Agreement" Means this public private partnership agreement between the Parties, being a public private partnership agreement as contemplated in Regulation 309 of 1 April 2005 issued under the Municipal Finance Management Act, 56 of 2003 and the term Agreement shall mean the PPP Agreement;

"Practical Completion" Means completion of the Works, excluding Snagging Matters, in accordance with this Agreement;

"Practical Completion Date" Means the date on which the Works, excluding Snagging Matters, have been completed in accordance with this Agreement, as such date shall be stated in the Certificate of Practical Completion or, in the event of dispute, as such date may be determined in accordance with Schedule 21 [Dispute Resolution Procedure];

"Prime Rate" Means the publicly quoted basic rate of interest per annum at which Standard Bank of South Africa Limited will lend on overdraft, from time to time;


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"Private Party Events of Default" Has the meaning given in Clause 42.1 [Private Party Events of Default] of the Agreement;

"Private Party Party" Means the Private Party's agents and Sub-Contractors (including without limitation the Construction Subcontractor and the Operations Subcontractors) and its or their sub-contractors of any tier and its or their directors, officers, employees and workmen in relation to the Project and "Private Party Parties" shall be construed accordingly;

"Private Party's Post-CompletionCommissioning"

Means the commissioning activities in relation to the Facilities for completion of Snagging Matters and issuance of Certificate of Final Completion, to be carried out in accordance with Clause 26.3 (Private Party’s Post-Completion Commissioning) of the Agreement;

"Private Party's Pre-CompletionCommissioning"

Means the commissioning activities in relation to the Facilities for purposes of issuance of the Certificate of Practical Completion, to be carried out in accordance with Clause 25.2 (Private Party’s Pre-Completion Commissioning and Inspection) of the Agreement;

"Private Party's Proposal" Means the documents in Part 2 of Schedule 6 [Specifications – Private Party Proposal], as amended from time to time in accordance with the terms of this Agreement;

"Private Party Variation Response" Has a meaning given in Schedule 15 [Variation Procedure];

"Programme" Means the programme set out in Schedule 7 [The Programme] as revised and issued by the Private Party (or on its behalf) from time to time pursuant to Clause 23.2 (The Programme) of the Agreement;

"Programmed Maintenance" Means the maintenance work which the Private Party is to carry out in accordance with the Schedule of Programmed Maintenance;

"Programmed Maintenance Information"

Has the meaning given in Clause 30.1.3 (Maintenance) of the Agreement;

"Project" Means the twenty seven (27) year concession for the carrying out of the Works and the provision of the Services at or in respect of the Site and all other obligations of the Private Party under this Agreement from time to time and the financing thereof;

"Project Assets" Means all moveable, corporeal assets required to operate and/or maintain the Project and/or provide the Services which do not form part of or accede to the Facilities, including,


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without limitation, assets required for the operation and/or maintenance of the Facilities, any books and records, any spare parts and tools, but excluding the CoT Assets and all cash;

"Project Data" Means:

(g) all Design Data;

(h) all drawings, reports, documents, plans, formulae, calculations and other data; and

(i) any other materials

created specifically for this Project, but excluding any Licensed Intellectual Property Rights;

"Project Deliverables" Means the carrying out of the Works the operation and maintenance of the Facilities (including the renewal or replacement of Project Assets), the management and provision of the Services and the exercise and performance of all other obligations of the Private Party under this Agreement from time to time;

"Project Documents" Means this Agreement, the Financing Agreements, the Shareholders Agreement, the Subcontracts, the Lenders Direct Agreement and all other contracts or documents described in Schedule 18 relating to the performance of the Project Deliverables, each executed by the parties thereto simultaneously with this PPP Agreement or otherwise in the Agreed Form or amended in accordance with the provisions of this Agreement;

"Project Term" Means the period from the Effective Date to the Expiry Date or the Termination Date, whichever occurs first, subject to any extension in accordance with this Agreement;

"Protected Names" Has a meaning given in Clause 49.3.6 of the Agreement;

"Qualification Criteria" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Qualifying Financial Institution" Means a bank as defined in section 1 of the Banks Act, 1990, any pension fund or provident fund registered in terms of the Pension Funds Act, 1956, any collective investment as defined in section 1 of the Collective Investment Scheme Act, 2003, any long-term insurer as defined in section 1 of the Long-term Insurance Act, 1998, or any short-term insurer being a person


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registered or deemed (in terms of the Short-Term Insurance Act, 1998) to be registered as a short-term insurer in that statute;

"Qualifying Variation" Has the meaning given in Schedule 15 [Variation Procedure];

"Quality Plans" Means the Design Quality Plan, Construction Quality Plan and the Services Quality Plan, as required to be implemented by the Private Party in accordance with Clause 27.1 (Quality Assurance) of the Agreement each as amended from time to time in accordance with the Agreement;

"Range of Finishes" Has the meaning given in Schedule 8 [Review Procedure];

"Rectification Costs" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Redundancy Payments" Has a meaning given in Schedule 16 [Compensation on Termination];

"Refinancing" Means, at any time after the Effective Date:

(a) any amendment, assignment, novation, replacement or supplementing of or any of the Financing Agreements (or the Agreed Form thereof, if any such agreement has not been executed by the Signature Date), whether independently or in combination with any connected arrangements;

(b) the grant of any waiver indulgence under any of the Financing Agreements (other than a Permitted Borrowing);

(c) the disposition or encumbering (by whatever means) of any of its rights under any of the Financing Agreements or the creation or granting of any other benefit or interest in any of the Financing Agreements or any of the Private Party’s other contracts, Project revenues or Project Assets by the Private Party otherwise than as permitted in terms of this Agreement; or

(d) any other arrangements having any of the effects in paragraph (a) to (c) (inclusive)

to the financial advantage of the Private Party, any of the Shareholders or any affiliate of the Private Party or their Shareholders;

"Refinancing Gain" Means in relation to any Refinancing (other than an Exempt Refinancing), an amount equal to the greater of nil and


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[(A - B) - C], where:

A = the Net Present Value of the Distributions forecast immediately prior to such Refinancing (having regard to the Financial Model, as updated to that time), taking into account the effect of the Refinancing, including the costs of the Refinancing, to be made over the remaining Project Term;

B = the Net Present Value of the Distributions forecast immediately prior to such Refinancing (having regard to the Financial Model, as updated to that time), not taking into account the effect of the Refinancing or the costs of the Refinancing, to be made over the remaining Project Term; and

C = any adjustment required to raise the Equity IRR calculated immediately prior to such Refinancing (having regard to the Financial Model, as updated to reflect all changes in the operating assumptions for the Project, and taking into account the actual performance of the Project to that time) to the Base Case Equity IRR.

"Refinancing Notice" Means a notice from the Private Party to the CoT advising the CoT of an intended Refinancing and which:(a) in the case of Exempt Refinancing, indicates that the

proposed Refinancing is an Exempt Refinancing

(b) proposes the amount of the CoT’s share of the Refinancing Gain in respect of the Refinancing;

(c) provides particulars of the computation of the Refinancing Gain;

(d) is accompanied by the financial model used in connection with that Refinancing; and

(e) provides reasonable particulars of the terms of that Refinancing;

"Registrar of Deeds" Means the Registrar designated as such in terms of the Deeds Registry Act, for the purposes of registration and lodging of title deeds over movables and immovable property, or its successor;

"Reinstatement Plan" Has the meaning given in Clause 36.6.1(b) (Reinstatement) of the Agreement;


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"Reinstatement Proceeds" Has the meaning given in Clause 36.7.1 of the Agreement;

"Reinstatement Works" Has the meaning given in Clause 36.6.1(b) (Reinstatement) of the Agreement;

"Relevant Incident" Means single event (or a series of related events) which does damage to, or causes destruction of, all or a material part of the Facilities;

"Relevant Proceeds" Has the meaning given in Clause 36.6.1(c)(iii) (Reinstatement) of the Agreement;

"Relief Events" Has the meaning given to it in Clause 40.1 (Relief Events) of the Agreement;

"Relocation" Means the staged physical move and the relevant logistical arrangements of the Relocation Assets from the Existing Facilities in accordance with Schedule 27 [Relocation Principles], to the Facilities, which shall commence after the issue of a Certificate of Practical Completion but prior to the issue of the Availability Certificate, in accordance with the Relocation Principles;

"Relocation Assets" Means all items located within the Existing Facilities as detailed in the asset register contemplated in Schedule 27 [Relocation Principles] including all Packed Boxes to be moved to the Facilities, but excluding safes, specialised electronic equipment requiring specialist service providers for Relocation purposes, any fixed assets and office equipment at the Existing Facilities, artwork requiring specialist removal capabilities and all items to be warehoused in terms of paragraph 3.4.2 of Schedule 27 [Relocation Principles] and all ICT equipment contemplated in paragraph 3.3.3 of Schedule 27 [Relocation Principles];

"Relocation Completion" Means the completion of Relocation, after the issue of a Certificate of Practical Completion, subsequent to the Private Party having notified the CoT of same in writing and the CoT having confirmed that Relocation has been completed in accordance with Schedule 27 [Relocation Principles];

"Relocation Completion Date" Means the date one Business Day after the day on which Relocation Completion has been confirmed by the CoT;

"Relocation Date" Means the specified date in the Relocation Plan on which the Relocation Assets at a particular specified current facility shall be relocated;

"Relocation Plan" Has the meaning given in paragraph 9 of Schedule 27


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[Relocation Completion];

"Relocation Principles" Those principles set out in Schedule 27 [Relocation Principles];

"Responsible Authority" Means any ministry, any minister, any organ of state, any official in the public administration or any other governmental or regulatory department, commission, institution, entity, service utility, board, agency, instrumentality or authority (in each case, whether national, provincial or municipal) or any court, each having jurisdiction over the matter in question; but including for all purposes, the CoT exercising its statutory duties;

"Review Procedure" Means the procedure set out in Schedule 8 [Review Procedure];

"Reviewable Design Data" Means all those documents or plans relating to the design of the Facilities not submitted as final documents or plans or not submitted at all on the Effective Date, to be prepared and/or supplied by the Private Party to the COT for comment or approval in terms of this Agreement;

"Room Data Sheets" Has the meaning given in Part [•] of Schedule 6 [Specifications: Construction Matters];

"Schedule of Programmed Maintenance"

Means the programme maintenance to be submitted to the CoT's Representative by the Private Party in accordance with Clause 30.1 [Maintenance];

"Schedule of Small Works Rates" Has a meaning given in Schedule 15 [Variation Procedure];

"Scheduled Service Commencement Date"

Means that date set out in Schedule 7 [The Programme] as the day after the date on which the Availability Certificate is scheduled to be issued (as such may be amended in accordance with this Agreement);

"Security Documents" Has the meaning given to that term in Schedule 20 [Direct Agreement];

"Selection Period" Has the meaning given in Schedule 8 [Review Procedure];

"Senior Debt "2 Means the facilities provided under the Financing Agreements, excluding the Mezzanine Debt;

"Service Commencement Date" Means the Business Day following the day on which the Availability Certificate is issued by the Private Party;

2 Senior Debt Amount is defined in Schedule 16, therefore cannot define it here.


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"Service Period" Means the period during which the Services are rendered to the CoT which period commences on the Service Commencement Date and ends on the Termination Date or Expiry Date whichever is the earlier to occur, subject to the terms of this Agreement;

"Service Variation" Has the meaning given in Schedule 15 [Variation Procedure];

"Services" Has the meaning given to it in Part 1 B of Schedule 6 [Specifications];

"Shareholder(s)" Means the holders of the Equity as listed in Schedule 3 [Beneficial Ownership of the Private Party] as changed from time to time in accordance with this Agreement;

"Shareholders Agreements" Means the agreement or agreements between the Shareholders relating to the Private Party, including any agreement relating to the subscription of equity (or other shareholder funding) by the Shareholders in the Private Party;

"Shareholders Equity" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Shareholders Loans" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Signature Date" Means the date of signature of this Agreement by the last signing Party;

"Site" Means Erf 3200 Pretoria, made available to the Private Party for the conduct of the Project Deliverables, which is located in the block bordered by Sisulu Street, Madiba Street, Lilian Ngoyi Street and Johannes Ramokhoase Street in the Pretoria central business district and, any portion of the Sammy Marks office development incorporated into the Project, or any other sites and/or the facilities as more fully depicted in Schedule 23 [The Site];

"Site Conditions" Has a meaning given in Clause 17.1 (Condition of the Site) of the Agreement;

"Small Works" Has the meaning given in Part 1A of Schedule 15 [Variation Procedure];

"Snagging Matters" Means minor items of outstanding work (including in relation to landscaping) which would not materially impair the CoT's use and enjoyment of the Facilities or the performance of the Services by the Private Party;


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"Snagging Notice" Means the notice to be issued by the Independent Certifier in accordance with Clause 25.4.3 of the Agreement;

"Snagging Period" Means the period referred to in Clause 26.1 of the Agreement;

"Subcontracts" Means the contracts entered into by or between the Private Party, the Construction Subcontractor and/or an Operations Subcontractor;

"Subcontractors" Means the Construction Subcontractor and the Operations Subcontractor(s) who enters into any Subcontract;

"Submission Requirements" Means the submission requirements set out in Schedule [●] [Submission Requirements];3

"Subsidiary" Has the meaning given to it in the Companies Act 71 of 2008;

"Target Completion Date" Means the date indicated in Schedule 7 [The Programme], (as such may be amended in accordance with this Agreement), as the date on which the Works are scheduled to reach Practical Completion;

"Tender Costs" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Tender Process" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Tender Process Monitor" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

3 Drafting Note: CoT will determine the details of the “Submission Requirements” in discussion with the Preferred Bidder. Details such the type or scales or size of plans will need to be addressed in the Submission Requirements.


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"Tender Requirements" Means the form and requirements of the tender documents to be delivered to Tenderers, including:

(a) the terms and conditions under which the Services will be contracted;

(b) a statement of the Tender Validity Period;

(c) the submission of tender prices;

(d) details of the Evaluation Criteria;

(e) information relating to employees and their conditions of employment; and

(f) the information that a tenderer is required to provide.

"Tender Validity Period" Means a reasonable period within which tenders from prospective Tenderers must be received if they are to be valid in accordance with the Tender Requirements;

"Termination Amount" Means the amount agreed or determined to be payable to the Private Party in terms of Schedule 16 [Compensation on Termination];

"Termination Date" Means any date on which this Agreement is terminated in accordance with its terms, other than by effluxion of time;

"Termination Date Discount Rate" Has a meaning given in Part A of Schedule 16 [Compensation on Termination];

"Third Party Shareholder" Means [definition of non-sponsor equity providers];

"Third Party Utilities" Means those services, owned by any person other than the CoT that affect the Site and include but are not limited to the services provided by the following service providers:

(a) Eskom;

(b) Telkom;

(c) Rand Water pipelines (all pipe sizes); and

(d) any other providers and/or owners of utilities.

"Title Deeds" Means the certified copies of the title deeds to the Site which have been supplied to (and examined by) the Private Party and with which the Private Party is deemed by its execution of this


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Agreement to be satisfied with regard to their content, validity and completeness;

"Unforeseeable Conduct" Has a meaning ascribed to it in Clause 37.1 (Definition of Unforeseeable Conduct) of the Agreement;

"Uninsurable Risk" Means a risk against which the Private Party is required to insure by Clause 35 (Insurance) of the Agreement (other than any risks insured under any professional indemnity insurances) and for which:

(a) insurance is not generally available within the South African and Lloyds insurance market with reputable insurers of good standing in respect of that risk; or

(b) even if the insurance is available from reputable insurers of good standing in the South African and Lloyds insurance market, the insurance premium payable for insuring that risk has increased (at no fault of the Private Party prior to or during this Agreement) to such a level or the terms on which it is available are so onerous the scope of the insurance cover is so reduced that the risk is no longer being insured against in the South African and Lloyds insurance market;

"Unitary Payments" Has the meaning given in paragraph [2] of Schedule 13, Part 2 [Performance Standards and Payment Mechanism];

"Unitary Payment Invoice Report" Has the meaning given to such term in clause 7.2.1 of Schedule 13 [Performance Standards and Payment Mechanism];

"Unprogrammed Maintenance Works"

Has the meaning given in Clause 30.2.3(a) (Programmed and Unprogrammed Maintenance) of the Agreement;

"Variation" Has the meaning given in Schedule 15 [Variation Procedure];

"Variation Acceleration Saving" Has the meaning given in Schedule 15 [Variation Procedure];

"Variation Capital Costs" Has the meaning given in Schedule 15 [Variation Procedure];

"Variation Confirmation" Has the meaning given in Schedule 15 [Variation Procedure];

"Variation Construction Costs" Has the meaning given in Schedule 15 [Variation Procedure];

"Variation Construction Saving" Has the meaning given in Schedule 15 [Variation Procedure];

"Variation Delay Cost" Has the meaning given in Schedule 15 [Variation Procedure];


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"Variation Memorandum" has a meaning given to it in Schedule 15 [Variation Procedure];

"Variation Operating Cost" Has the meaning given in Schedule 15 [Variation Procedure];

"Variation Operating Saving" Has the meaning given in Schedule 15 [Variation Procedure];

"VAT" Means value added tax at the rate prevailing at the time of the relevant supply charged in accordance with the provisions of the Value Added Tax Act No. 89 of 1991;

"Warning Notice" Has the meaning given in Schedule 13 Part 2 [Performance Standards and Payment Mechanism];

"Works" Means the design (including the preparation of all Design Data), construction, testing, commissioning and completion of the Facilities (including any temporary works) to be performed by the Private Party in accordance with this Agreement and shall for the avoidance of doubt include, but not be limited to the Early Works, the supply, installation of Plant and FF&E (as varied, amended or supplemented from time to time in accordance with this Agreement);


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SCHEDULE 1

Part 2: Interpretation

This Agreement shall be interpreted according to the following provisions, unless the context requires

a different meaning:

1. The headings of Clauses, Sub-Clauses and Schedules are included for convenience only and shall not affect interpretation of this Agreement.

2. References to Clauses, Sub-clauses, paragraphs, sub-paragraphs, parts and Schedules are references to Clauses, Sub-clauses, paragraphs, sub-paragraphs and parts of and Schedules to this Agreement and references to Sections, Appendices and Attachments (if any) are references to Sections, Appendices and Attachments to or contained in this Agreement.

3. The Schedules to this Agreement are an integral part of this Agreement and a reference to this Agreement includes a reference to the Schedules.

4. Words importing persons shall, where the context so requires or admits, include individuals, firms, partnerships, trusts, corporations, governments, governmental bodies, authorities, agencies, unincorporated bodies of persons or associations and any organisations having legal personality.

5. Where the context so requires words importing the singular only also include the plural and vice versa and words importing the either gender or neuter shall be construed as including both genders or the neuter or vice versa.

6. The language of this Agreement is English. All correspondence, notices, drawings, Design Data, test reports, certificates, specifications and information shall be in English. All operating and maintenance instructions, name plates, identification labels, instructions and notices to the public and staff and all other written, printed or electronically readable matter required in accordance with, or for purposes envisaged by, this Agreement shall be in English.

7. References to any agreement or document include (subject to all relevant approvals and any other provisions of this Agreement concerning amendments to agreements or documents) a reference to that agreement or document as amended, supplemented, substituted, novated or assigned.

8. References to any Law are to be construed as references to that Law as from time to time amended or to any Law from time to time replacing, extending, consolidating or amending the same provided that the provisions of this paragraph shall be without prejudice to the operation of Clause 38 [Unforeseeable Conduct] and Schedule 15 [Variation Procedure] which shall operate in relation to a Unforeseeable Conduct on the basis set out in this Agreement.

9. References to a Responsible Authority or any public organisation (other than the CoT) shall be deemed to include a reference to any successor to such public organisation or any organisation or entity which has taken over either or both the functions and responsibilities of such public organisation. References to other persons (other than the CoT) shall include their successors and assignees.


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10. The words in this Agreement shall bear their natural meaning. The parties have had the opportunity to take legal advice on this Agreement and no term shall, therefore, be construed contra proferentem.

11. Reference to "parties" means the parties to this Agreement, including the parties’ respective successors-in-title and references to "a party" mean one of the parties to this Agreement.

12. In construing this Agreement, the rule known as the ejusdem generis rule shall not apply nor shall any similar rule or approach to the construction of this Agreement and accordingly general words introduced or followed by the word "other" or "including" or "in particular" shall not be given a restrictive meaning because they are followed or preceded (as the case may be) by particular examples intended to fall within the meaning of the general words.

13. All of the Private Party's obligations, duties and responsibilities shall be construed as separate obligations, duties and responsibilities owed to the CoT and to be performed at the Private Party's own cost and expense.

14. References to amounts or sums expressed to be "index linked" shall be construed in accordance with the provisions of clause 14.1 of Schedule 13 [Performance Standards and Payment Mechanism].

15. Reference to a document being in the Agreed Form is a reference to the form of the relevant document agreed between the parties and for the purpose of identification initialled by each of them or on their behalf.

16. Where this Agreement states that an obligation shall be performed "no later than" or "within" or "by" a stipulated date or event which is a prescribed number of Business Days after a stipulated date or event the latest time for performance shall be 15h00 on the last Business Day for performance of the obligations concerned.

17. Where this Agreement states that an obligation shall be performed "no later than" or "by" a prescribed number of Business Days before a certain date or "by" a date which is a prescribed number of Business Days before a base date, the latest time for performance shall be 15h00 on the last Business Day for performance of the obligations concerned.

18. Without prejudice to the ordinary meaning of the terms "reasonable" and “unreasonable, in all instances where the CoT is required to not act unreasonably or to act reasonably, the CoT shall not be deemed to have acted unreasonably or shall be deemed to act reasonably where the CoT acts as is required for the purposes of complying with the Municipal Finance Management Act, 56 of 2003 and regulations promulgated thereunder.


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