BLUE SPHERE CORP. (Form: 8-K, Received: 12/11/2017 17:14:06)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 11, 2017 (December 5, 2017)

Blue Sphere Corporation

(Exact name of registrant as specified in its charter)

Nevada		000-55127		98-0550257
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

301 McCullough Drive, 4th Floor, Charlotte, North Carolina 28262

(Address of principal executive offices) (Zip Code)

704-909-2806

(Registrant’s telephone number, including area code)

(Former Name or Former Address, if Changed since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

☒ Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

As used in this Current Report, all references to the terms “we”, “us”, “our”, “Blue Sphere” or the “Company” refer to Blue Sphere Corporation and its direct and indirect wholly-owned subsidiaries, unless the context clearly requires otherwise.

Item 1.01

Entry Into a Material Definitive Agreement

On December 5, 2017, Blue Sphere Corporation (the “Company”), through its wholly-owned subsidiary in the Netherlands, Blue Sphere Brabant B.V. (“Blue Sphere Brabant”), entered into a Turnkey Agreement for the Design, Construction and Delivery of a Biogas Plant, dated as of December 4, 2017 (the “EPC Agreement”) with Anaergia B.V., a private company with limited liability in the Netherlands (“Anaergia”). Pursuant to the EPC Agreement, Anaergia will perform the design, supply, engineering, procurement, assembly, commissioning and delivery of a biogas plant (the “BSB Facility”) with an upgraded biomethane design output capacity of 24,000,000 Nm3/year (or respectively 2,923Nm³/h), for the fixed price of €22,500,000 payable in accordance with scheduled milestones, with the final payment becoming due upon delivery of a final completion certificate.

The term of the EPC Agreement is based on the project construction and workflow completion plan, subject to amendment pursuant to the terms of the EPC Agreement. Either party may terminate the EPC Agreement upon a substantial breach of performance following a 4-week cure period or the bankruptcy/insolvency of the other party. Blue Sphere Brabant may terminate the EPC Agreement for a gross violation of work quality or safety regulations, subject to a 5-day cure period. Anaergia may terminate the EPC Agreement for a failure of Blue Sphere Brabant to make specified reimbursements or a failure to make requirement payments within 30 days of demand.

Also on December 5, 2017, Blue Sphere Brabant entered into a Service, Maintenance and Operation Agreement, dated as of December 4, 2017, with Anaergia (the “O&M Agreement”), pursuant to which Anaergia will provide the day-to-day operation, service and maintenance at the BSB Facility. The O&M Agreement is for a term of 12 years beginning on the date that the BSB Facility achieves substantial completion, as defined in the EPC Agreement. During the term of the O&M Agreement, Anaergia will receive a fixed fee and pass through costs of €2,741,880 per year exclusive of VAT, paid monthly.

Either party may terminate the O&M Agreement upon a bankruptcy/insolvency of the other party. Blue Sphere Brabant may terminate the O&M Agreement upon Anaergia’s (a) material breach of performance following a 60 day cure period; (b) failure to comply with the Performance Guarantee (as defined below) in any year of operation; or (c) inability to obtain or maintain the insurance coverage required by the O&M Agreement. Anaergia may terminate the O&M Agreement for failure of Blue Sphere Brabant to make three consecutive payments of the monthly fee under the O&M Agreement.

Anaergia guaranteed its performance under the EPC Agreement and O&M Agreement by a Performance Guarantee Agreement, dated as of December 4, 2017 (the “Performance Guarantee”). The Performance Guarantee provides for a guaranteed operation level at the BSB Facility of 22,680,000 Nm³/year, which is 94.5% of the output capacity, and specified maximum consumptions of consumables (electricity, water, caustic soda and diesel).

All obligations by both parties under the EPC Agreement, O&M Agreement and Performance Guarantee are not presently effective, and will become effective upon the Company’s closing of a financing agreement for the construction of the BSB Facility within 18 months.

The foregoing descriptions of the EPC Agreement, O&M Agreement and Performance Guarantee do not purport to be complete and are qualified in their entirety by reference to the full text of the EPC Agreement, O&M Agreement and Performance Guarantee, as filed as Exhibits 10.1, 10.2 and 10.3 hereto, respectively, and incorporated herein by reference.

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

	10.1	Turnkey Agreement for the Design, Construction and Delivery of a Biogas Plant, dated as of December 4, 2017, between Blue Sphere Brabant B.V. and Anaergia B.V.
	10.2	Service, Maintenance and Operation Agreement, dated as of December 4, 2017, between Blue Sphere Brabant B.V. and Anaergia B.V.
	10.3	Performance Guarantee Agreement, dated as of December 4, 2017, between Blue Sphere Brabant B.V. and Anaergia B.V.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

		Blue Sphere Corporation

Dated: December 11, 2017	By:	/s/ Shlomi Palas
		Shlomi Palas
		President and Chief Executive Officer

Blue Sphere Corporation 8-K

Exhibit 10.1

Dated: 4 December 2017

(1) Blue Sphere Brabant B.V.

(2) Anaergia B.V.

turnkey AGREEMENT FOR the design, construction and delivery of a Biogas plant

TABLE OF ARTICLES

1. DEFINITIONS AND INTERPRETATION

2. SUBJECT OF THE AGREEMENT

3. AUTHORITY

4. CONTRACTOR’S REPRESENTATIONS AND WARRANTIES

5. GENERAL OBLIGATIONS AND AUTHORITY OF THE PARTIES

6. CONTRACT PRICE

7. INVOICING AND PAYMENT

8. TIME

9. CHANGES AND ADDITIONAL WORK

10. ADDITIONAL CONTRACTOR’S DUTIES

11. PRINCIPAL’S DUTIES

12. COMMISSIONING AND DELIVERY

13. WARRANTIES

14. PARTIES LIABILITY

15. PRINCIPAL’S LIABILITY

16. INTELLECTUAL PROPERTY RIGHTS

17. CONFIDENTIALITY

18. HEALTH AND SAFETY

19. FORCE MAJEURE

20. VALIDITY AND TERMINATION OF AGREEMENT

21. FINANCE

22. INDEPEDENT CONTRACTOR

23. ASSIGNMENT OF RIGHTS

24. CHANGES TO THE AGREEMENT

25. SEVERABILITY

26. ENTIRE AGREEMENT

27. CONDITION PRECEDENT

28. NOTICES

29. ARBITRATION, JURISDICTION AND APPLICABLE LAW

Annexes to this Agreement

The following Annexes are integral components of this Agreement, and all references to this Agreement shall include all Annexes.

Annex 1	–	Scope of Work
Annex 2	–	Flow chart
Annex 3	–	Preliminary Plans and Specifications
Annex 4	–	List of permits
Annex 5	–	Biogas description
Annex 6	–	Laboratory analysis of the substrates and related procedures
Annex 7	–	Workflow Plan
Annex 8	–	Schedule of Values
Annex 9	–	Insurance certificates
Annex 10	–	Responsibility Matrix
Annex 11	–	Health and safety
Annex 12	–	Performance bonds
Annex 13	–	Guarantee
Annex 13A	–	Certificate of Final Completion
Annex 13B	–	Certificate of Mechanical Completion
Annex 13C	–	Certificate of Biogas Substantial Completion
Annex 13D	–	Certificate of Substantial Completion
Annex 14	–	Table of Quality and Quantity Substrates Deviances
Annex 15	–	Form of Performance Guarantee Agreement
Annex 16	–	Reviewable Design Documents (RDD)
Annex 17	–	Form of Service, Maintenance and Operation Agreement
Annex 18	–	Testing Protocols
Annex 19	–	Form of Consent with Lender regarding Collateral Assignment
Annex 20	–	Form of discharge of payment
Annex 21	–	Lender’s Minimum Insurance Requirements
Annex 22	–	Full Notice to Proceed
Annex 23	–	Ramp Up Schedule
Annex 24	–	GOA

This Turnkey Agreement for the Design, Construction and Delivery of a Biogas Plant is made on 4 December 2017

BETWEEN

	(1)	Blue Sphere Brabant B.V. , a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid) incorporated pursuant to the laws of the Netherlands, with its business address at Singel 250, 1017AB Amsterdam, registered with the Dutch Chamber of Commerce under registration number 66863643 (“ Principal ”); and

	(2)	Anaergia B.V. a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated pursuant to the laws of the Netherlands, with its registered office at Zwollestraat 2 b, Oldenzaal, NL 7575 EP, the Netherlands, registered with the Dutch Chamber of Commerce under registration number 818914324 (“ Contractor “),

(the Principal and the Contractor hereinafter each referred to as a “ Party ” and together the “ Parties ”),

WHEREAS

	A.	The Principal desires to have a Biogas plant with an upgraded Biomethane design output capacity of 24,000.000 Nm3/year or respectively 2,923Nm³/h to be supplied and built at the Site and engages the Contractor to perform the obligations described in Article 2.1 hereof;

	B.	the Contractor declares that it has the appropriate know-how, experience and skills to supply, design, engineer, procure, assemble, build and commission such a Biogas plant at the Site on a turnkey basis in compliance with Applicable Law ( as defined below ) and the terms and conditions of this Agreement;

	C.	the Parties have agreed to define their common obligations regarding the supply and building of such Biogas plant within the scope of this Agreement,

NOW, THEREFORE the Parties have agreed as follows:

DEFINITIONS AND INTERPRETATION

1.1

In this Agreement specific words and expressions shall have the meaning given to them in the following Definitions and as otherwise stated in the Agreement.

“Agreement” means this Turnkey Agreement for the Design, Construction and Delivery of a Biogas Plant between Principal and Contractor, together with all annexes and attachments hereto (each of the foregoing, as amended, supplemented and modified from time to time in accordance with the terms hereof);

“Applicable Law” means all laws, regulations, orders, rules, directions, judgments, and directives in force from time to time, which in any way affects or impinges upon any of the matters relating to the Plant or the Work;

“ Biogas Substantial Completion ” means that, and shall be deemed to have occurred when the Plant has been constructed, successfully tested and commissioned such that, among other things: (a) the Plant (i) is operating within all the specified parameters in the Construction Documents (other than gas generation requirements) and has satisfied all conditions precedent set forth in Article 12.7.1 hereof, (ii) has achieved Mechanical Completion, (iii) has all Permits and Related Rights and (iv) is operating and generating the Minimum Gas Amount as evidenced by Successful Completion of the applicable Performance Tests; (Biogas Substantial Completion shall not occur until a Certificate of Biogas Substantial Completion has been executed by all appropriate parties, including Lender’s Engineer);

“ Biogas Final Completion ” means that, and shall be deemed to have occurred when (i) the punch list has been cleared, (ii) the Plant has all Permits and Related Rights, (iii) the Plant is operating and generating the specified output pursuant to the Construction Documents and the GOA and is supplying upgraded Biogas to the Gas Purchaser in full accordance with the GOA, including satisfaction of the requirements of Commercial Operation; and (iv) Principal shall have received from Contractor satisfactory evidence that all payrolls, bills, and other costs and expenses relating to the work performed under the Construction Documents have been paid or otherwise satisfied (including lien waivers and releases, from every Subcontractor and every other Person who provided labor, material, equipment or supplies for the work or the Plant;

“ Biogas “ means the gas generated in the digesters prior to biogas upgrading;

“Biomethane” means the upgraded Biogas to be generated from the Plant and supplied to the grid of the Gas Purchaser with a designoutput capacity of 24,000,000Nm3/year or respectively 2,923Nm³/h and a quality as described in Annex 5 ;

“Biogas Substantial Completion Date” means the date the Biogas Plant’s Ownership is transferred to the Principal and the Certificate of Biogas Substantial Completion isexecuted by all parties, including Lender’s Engineer;

“ Certificate of Final Completion ” means a Certificate of Final Completion, substantially in the form shown on Annex 13A , which is executed and delivered by Contractor and countersigned by Principal and Lender’s Engineer in accordance with the terms of this Agreement;

“ Certificate of Mechanical Completion ” means a Certificate of Mechanical Completion, substantially in the form shown on Annex 13B which is executed and delivered by Contractor and countersigned by Principal and Lender’s Engineer in accordance with the terms of this Agreement;

“ Certificate of Biogas Substantial Completion ” means a Certificate of Biogas Substantial Completion, substantially in the form shown on Annex 13C , which is executed and delivered by Contractor and countersigned by Principal and Lender’s Engineer in accordance with the terms of this Agreement;

“ Certificate of Substantial Completion ” means a Certificate of Substantial Completion, substantially in the form shown on Annex 13D , which is executed and delivered by Contractor and countersigned by Principal and Lender’s Engineer in accordance with the terms of this Agreement;

“Change Order” has the meaning given to it by Article 9 ;

“Commercial Operation” means that, and shall be deemed to have occurred when, the Plant has achieved commercial operation, as such term is defined in the GOA. This is to happen after the plant received biogas substantial completion, payments are up to date and liquidated damages have been suspended;

“Commissioning” has the meaning given to it by Article 12.5 ;

“Commissioning Date” has the meaning given to it by Article 12.5 ;

“Confidential Information” means all information disclosed, whether or not designated, marked or stamped as confidential, by each Part to the other Part, orally or in writing, embodying or concerning the disclosing Part’s business (or its parent or subsidiary companies’), business plans, investments, equity ownership, customers, strategies, trade secrets, inventions, discoveries, developments, improvements, intellectual properties, manufacturing processes, distributors, operations, records, financial information, assets, technology, software source code and object code, or other data and information that reveals the processes, methodologies, technology or know how by which each Part’s (and their respective parent or subsidiary companies’) existing or future products, services, applications and methods of operation are developed, conducted or operated;

“ Construction Documents ” means (1) all contracts between Principal and Contractor or any Subcontractor, including this Agreement, (2) any subcontracts with Subcontractors, material men, laborers, or any other person for performance of work on the Plant or the delivery of materials to the Plant, and all amendments, modifications and supplements with respect to the foregoing documents and any replacements, renewals, extensions or restatements thereof, and any substitutes therefore, in whole or in part;

“Contractor” means the person named as the Contractor on page 1 of this Agreement;

“Contract Price” means the lump sum contract price as detailed under Article 6.1 of this Agreement and as the same may be varied from time to time in accordance with this Agreement;

“Defect Notice” a written notice from the Principal to the Contractor which includes details of any defect, default or malfunction in the Plant;

“Delay Liquidated Damages ” means the amount of EUR 160,000 (one hundred sixty thousand Euros); that Contractor will pay to Principal for each week that Contractor fails to achieve Substantial Completion after the Substantial Completion Guaranteed Date; provided, however, that delay due by Events of Force Majeure or acts or omissions of Principal, or entities or individuals under Principal’s control, in violation of express obligations in this Agreement (including Principal’s failure to provide the Plant with Sufficient Substrates) will not be counted against Contractor. Delay Liquidated Damages will be the Principal’s sole and exclusive remedies for Contractor’s failure to achieve Substantial Completion by the Substantial Completion Guaranteed Date (Contractor and Principal each agree that the foregoing sets forth a reasonable amount and reasonable formula for calculation of liquidated damages in light of the anticipated harm caused by such delay; that such harm would otherwise be difficult or impossible to calculate or ascertain; and that the foregoing consists of liquidated damages and not of a penalty.

The Liquidated Damages are capped to an aggregate maximum of 10% of the value of the Agreement. Liquidated Damages can be applied against delay in the Work and/or failure to meet Performance. In the event that the liquidation damage cap is reached and the Plant or Work is still not compliant the Principal can claim against the Performance Bond provided by the Contractor;

“Delivered Objects” means all the materials and works to be supplied by the Contractor to the Principal in accordance with this Agreement;

“ Effective Date ” means the date Principal informs Contractor in writing that it has signed a Construction Finance Agreement with the Lender;

“ Equipment ” means the equipment described in the Works Description attached hereto as Annex 1 ;

“Event of Force Majeure” means any occurrence, other than (a) the financial capability of a Party (b) an event caused by the Contractor or any Party over whom it has control, including its Subcontractors or (c) a Party’s ability or inability to sell or to purchase equipment or materials or equivalents thereof or any component thereof to or from a market or customers at any given price, including one that is a more advantageous price, which (i) prevents or delays a Party from performing its obligations under this Agreement (except an obligation to pay any amount) within the time required for the performance of such obligation, (ii) is not due to the fault or negligence of the claiming Party on such occurrence; (iii) at the time of such occurrence, is beyond the reasonable control of the Party required by this Agreement to perform such obligation and such Party is unable to reasonably prevent or provide against such occurrence; and (iv) at the time this Agreement was executed, could not have been reasonably contemplated by the claiming Party on such occurrence; for greater certainty, an Event of Force Majeure shall include, but not be limited to, acts of God such as hurricanes and earthquakes; strikes, lock out or other form of industrial action; outbreak of hostilities; or civil disturbance or acts of terrorism, fire, explosion, flood, theft or malicious damage;

“ Final Completion ” means that, and shall be deemed to have occurred when: (a) Substantial Completion has occurred and all conditions precedent to Final Completion set forth in Article 12.9 have been satisfied in full; (b) the Plant is capable of Commercial Operation on a continuous basis; (c) all Punch List Items have been completed (except for such items that Principal agree in writing may be delayed); (d) all warranties, design materials, operation and maintenance manuals, schematics, spare parts lists, design and engineering documents, performance testing data, “as-built” drawings and surveys, and such other items as are required by the Construction Documents and the Service, Operation and Maintenance Agreement have been delivered to Principal; (e) all other duties and obligations of Contractor and Subcontractors under this Agreement have been fully performed; (f) all of the Subcontractor’s personnel, supplies, equipment, waste materials, rubbish and temporary facilities have been removed from the Site; (g) Principal, shall have received from Contractor satisfactory evidence that all payrolls, bills, and other costs and expenses relating to the work performed under the this Agreement have been paid or otherwise satisfied (including lien waivers and releases, from every Subcontractor and every other person who provided labor, material, equipment or supplies for the work or the Plant and provided that Contractor is allowed the opportunity to provide a bond to satisfy any remaining Subcontractor claims); (h) all other requirements in this Agreement with respect to completion of the Plant have been satisfied (Final Completion shall not occur until a Certificate of Final Completion has been executed by all appropriate parties, including Lender’s Engineer);

“ Final Completion Guaranteed Date ” means the date that is twenty-three (23) months from the Starting Date of Construction as extended due to Events of Force Majeure or delays due to Principal;

“ Full Notice to Proceed ” means a Full Notice to Proceed, substantially in the form shown on Annex 22 , delivered to Contractor in accordance with Article 3.2 of this Agreement;

“ Gas Off-taker Agreement (GOA)” means that upgraded Biogas purchase agreement as contained in Annex 24 , dated 19 September 2017, between Principal and Gas Purchaser and all Exhibits and Schedules attached or to be attached thereto; each as amended, supplemented, modified, replaced, renewed, extended or restated in accordance with the terms hereof;

“ Gas Purchaser ” means GasTerra B.V., a company incorporated pursuant to the laws of the Netherlands, with its business address at Stationsweg 1, 9726 AC Groningen, registered with the Dutch Chamber of Commerce under registration number 02089290. It being understood that delay in signing up a Gas Purchaser will not result in a delay imputable to Contractor and all deadlines shall be modified accordingly in the result of a delay from any scheduled due date for such Principal Permits;

“ Intellectual Property Rights ” shall mean the intangible legal rights, titles and interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery, or improvement thereon, whether or not patentable, but including patents, patent applications and patent disclosures (together with all re- issuances, continuations, continuations-in-part, revisions, extensions, and re-examinations thereof), and (b) any work of authorship, whether or not copyrightable, but including copyrights and any moral rights recognized by law, and (c) all trademarks, trade names, trade dress, trade secrets, know-how and Confidential Information, and (d) any other similar rights, on a worldwide basis;

“ Interconnection Agreement ” means a certain agreement between Principal and grid operator, to be entered into subsequent to the date hereof, and any and all attachments, exhibits and schedules thereto (each as amended, supplemented and modified from time to time in accordance with the terms thereof) setting forth the terms and conditions under which the Plant will be connected to the distribution grid of a local gas grid operator as well as setting forth the specific local requirements as required by this local gas grid operator;

“Layout” means the flow chart attached at Annex 2 ;

“Lender ” means one or more lenders providing debt financing in relation to Plant and its successors and assigns;

“ Lender’s Engineer ” means one or more persons hired or contracted by Lender from time to time for purposes of monitoring and verifying, operational and technical aspects under this Agreement;

“Lender Minimum Insurance Requirements” has the meaning given to it by Article 10.3 hereof;

“Manual” means the manual for operation of the Plant to be provided in accordance with Article 10.2 ;

“ Mechanical Completion ” means that, and shall be deemed to have occurred when: (a) construction of the Plant has been completed in accordance with the Plans and Specifications; (b) all Equipment and other components of the Plant has passed all standard and required electrical testing, hypot, megger testing, flushing and pressure testing of piping, and all other applicable testing, per codes and guides, including any applicable Caterpillar Application and Installation Guides; and (c) the Plant is ready to be tested and commissioned (Mechanical Completion shall not occur until a Certificate of Mechanical Completion has been executed by all appropriate parties, including Lender’s Engineer), as may be bifurcated with the consent of the Lender’s Engineer in accordance with Section 12.4 hereof;

“ Minimum Gas Amount ” means 80% of the design Biomethane flow rate solely used for the Biogas Substantial Completion Milestone;

“Party” means either the Principal or Contractor and “Parties” shall be construed accordingly;

“ Payment Amount ” means a portion of the Contract Price according to the Schedule of Values for which Contractor shall invoice in accordance with Article 7 ;

“Performance Guarantee Agreement” means the performance guarantee agreement pursuant to which Contractor guarantees from the Substantial Completion Date a gross annual production of Biomethane and maximum consumption of consumables for a term of twelve years, as measured in accordance with the Agreement in Annex 15 ;

“Performance Test” means the off-grid and on-grid performance test to be performed on the Plant during the Probation Period as set out in Article 12.6 and in accordance with the terms of Annex 18 Testing Protocols;

“ Permitted Changes ” means such changes as are consented to by Principal in writing;

“ Permits and Related Rights ” means all city, county, state, federal, governmental, or other permits, authorizations, tags, licenses, certificates, and any other documents, instruments, agreements, requisite approvals or rights necessary in order to construct the Plant and in order to use and operate the Plant, including environmental, construction, operating and air permits, licenses and other rights;

“ Plans and Specifications ” means the plans and specifications for the Plant that are referenced in the Construction Documents together with any Permitted Changes;

“Plant” means the Biogas plant to be constructed on the Site and capable of producing upgraded Biomethane with adesign output capacity of 2,923 Nm³/hour or respectively 24,000,000 Nm³/year to be designed, engineered, procured, constructed, tested and commissioned under this Agreement;

“Plant Operational Manager” means the person appointed by the Principal to be the operational manager of the Plant as notified by the Principal to the Contractor;

“ Substantial Completion ” means that, and shall be deemed to have occurred when the Plant has been constructed, successfully tested and commissioned such that, among other things: (a) the Plant (i) has achieved Biogas Substantial Completion and (ii) is operational and generates the specified output pursuant to the Construction Documents and the GOA and issupplying upgraded Biogas to the Gas Purchaser in full accordance with the GOA, including satisfaction of the requirements of Commercial Operation subject to the employer delivering sufficient quantity and quality of substrate as defined in the contract; (b) a successful operational performance test of the Plant for its intended use shall have been completed demonstrating that Plant performance criteria, have been met and are satisfactory;

(Substantial Completion shall not occur until a Certificate of Substantial Completion has been executed by all appropriate parties, including Lender’s Engineer).

“Substantial Completion Date” means the date the Plant’s Ownership is transferred to the Principal and the Certificate of Substantial Completion is executed by all parties, including Lender’s Engineer;

“Substantial Completion Guaranteed Date” means the date that is no later than twenty (20) months after the Starting Date of Construction as extended (if applicable) for so long as necessary (i) for the Gas Purchaser to connect the Plant to the grid; (ii) to account for extreme weather conditions during construction and/or due to other Events of Force Majeure; or (iii) to account for or delays due to Principal including Principal’s delay in providing the Plant with Sufficient Substrates. This date coincides with the start of the liquidated damages if the Contractor is late meeting this guaranteed date.

“Principal” means the person named as the Principal on page 1 of this Agreement;

“Principal Permits” it being understood that delay in obtaining Principal Permits will not result in a delay imputable to Contractor and all deadlines shall be modified accordingly in the result of a delay from any scheduled due date for such Principal Permits;

“Probation Period” means the period of 90 days following the Commissioning of the Plant;

“ Punch List Items ” means, with respect to the Plant, those items of work approved by Principal and Lender’s Engineer, minor in nature, which have not been completed by Contractor as of the date of issuance of the Certificate of Substantial Completion and which are not material to the operation of the Plant in the normal course of business and which can be completed without interfering with the operation of the Plant;

“Retainage” has the meaning given to it by Article 7.7.1 .;

“ Schedule of Values ” means the schedule of the components of the Contract Price which is attached hereto as Annex 8 ;

“Service, Maintenance and Operation Agreement” means the agreement between the Principal and an affiliate of Contractor for the services, maintenance and operation in respect of the Plant in the form attached hereto as Annex 17 ;

“Site” means the business premises (hereinafter called “rented property “) consisting of c. 20,000 sq.m. (partly) metalled outdoor area, located at Pastoor P. Thijssenlaan 41-43 in Sterksel, entered in the land register as municipality of Heeze-Leende, section H number 1193 (in part);

“Stand-By Costs” means the monies that shall be owed by the Principal to the Contractor in the event that they are delayed, suspended or otherwise hindered from carrying out the Works due to the fault, failure or liability of the Principal as defined variously within the Agreement. The Contractor shall be entitled to all reasonable, substantiated costs resulting from these events including, but not limited to; labour, plant/equipment hire, fuel/utility charges, consumables, insurances and overheads. The Contractor shall be required to provide evidence of incurred costs and shall be entitled to apply a 12% mark-up on all costs.

“Starting Date Of Construction” means the date on which construction is commenced, which must be within 15 days following delivery by the Principal of the Full Notice to Proceed (so long as it is legally permissible for the Contractor to commence the Work within such period);

“Subcontractor” has the meaning given to it by Article 5.4.1 of this Agreement;

“ Successfully Complete ” or “ Successful Completion ” means with respect to the Performance Test, that (a) the Performance Test was completed in accordance with Annex 19 Testing Protocols and (b) the results from such Performance Test demonstrate that the performance parameters set forth in the Testing Protocols have been achieved;

“Sufficient Substrates” means substrates having characteristics, ingredients, composition and quantities in line with the recipes defined by Contractor and within the permitted deviances indicated in the provisions of Annex 14 “Table of Quality and Quantity Substrates Deviances”. it being understood that Contractor is not responsible for supply of Substrates and delay in obtaining Sufficient Substrates will not result in a delay imputable to Contractor and all deadlines shall be modified accordingly in the result of a delay from any scheduled due date for such Principal Permits;

“Testing Protocols” means those protocols pursuant to which the Performance Tests shall be carried out as further set forth in Annex 18 to this Agreement (which Testing Protocols shall also include performance parameters that must be met by the Plant in order to achieve Substantial Completion, such as input measures of volatile solids and resulting methane product);

“Turnkey Basis” means the Contractor takes total responsibility for the design and execution of the project. The Contractor carries out all the Engineering, Procurement and Construction (EPC): providing a fully-equipped facility, ready for operation at the “turn of the key”;

“Work” has the meaning set forth in Article 2.1 hereof;

“Works Description” means the Description of the Work as defined in Article 2.2 and attached at Annex 1 ;

“ Working Hours ” means from 8 am till 5 pm for vehicle movement outside the buildings otherwise not limited;

“Workflow Plan” means the workflow plan attached at Annex 7 to this Agreement; and

“Working Day” means a day other than a Saturday or Sunday or a day, which is a public or bank holiday in the Netherlands for vehicle movement outside the buildings otherwise not limited.

1.2

In this Agreement, unless the context otherwise requires:

1.2.1

words in the singular include the plural and vice versa and words in one gender include any other gender.

1.2.2

a reference to a statute or statutory provision includes:

1.2.2.1

any subordinate legislation made under it;

1.2.2.2

any repealed statute or statutory provision which it re-enacts (with or without modifications); and

1.2.2.3

any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it whether such statute or statutory provision comes into force before or after the date of this Agreement;

1.2.3

a reference to:

1.2.3.1

any Party includes it’s successors in title and permitted assigns;

1.2.3.2

a “person” includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality);

1.2.3.3

clauses and schedules is to clauses of and schedules to this Agreement and references to sub-clauses and paragraphs are references to sub-clauses or and paragraphs of the clause or schedule in which they appear; and

1.2.3.4

any provision of this Agreement is to that provision as amended in accordance with the terms of this Agreement.

1.3

Certain Annexes to this Agreement are being provided after execution. Contractor and Principal each: (a) acknowledges and agrees that Lender will require such Annexes to be finalized in form and substance satisfactory to Lender prior to any advance of funds under the loan documents between Principal and Lender; and (b) agrees to cooperate in good faith to finalize such Annexes in a timely manner.

1.4

The Preamble of this Agreement is an integral part thereof.

1.5

The parties declare that they regard this Agreement as a contract for work on goods as referred to in Book 7, Title 12, Section 1 of the Dutch Civil Code.

SUBJECT OF THE AGREEMENT

2.1

The Principal orders from the Contractor and the Contractor agrees to supply, the design, supply, engineering, permitting (as detailed under the Responsibility Matrix - Annex 10 ), procurement, assembly, construction, installation, commissioning and start-up of the Plant on a turnkey basis at the Site and the training of Principal’s staff in the operation of the Plant, all in accordance with the terms of this Agreement (collectively, the “ Work ”). With regard to the requirements which are derived from the specific purpose for which the Works will be used, the parties conclude that they have discussed these requirements sufficiently prior to signing this Agreement and that the said requirements are stated in full in this Agreement and its Annexes. The Principal represents and warrants as of the date of the Full Notice to Proceed that it has the right to use the Site and to construct the Plant thereupon. For the avoidance of doubt, it is agreed that the Contractor will not be responsible for any services or equipment to be provided by the Gas Purchaser in respect of interconnection to the grid, which shall be described in the Interconnection Agreement.

2.2

Contractor agrees that the Work shall conform with the Scope of Work in Annex 1 , the Layout in Annex 2 and the Preliminary Plans and Specifications in Annex 3 .

2.3

The Contractor represents that it has visited and inspected the Site and has observed and become familiar with the local conditions under which the Work is to be performed.

2.4

Precedence

2.4.1

In the event of contradictions between the individual components of this Agreement, the Contractor shall notify the Principal as soon as it becomes aware of such a contradiction, and will seek for an agreed solution with the Principal. If consent is not reached between the Parties, the following order of precedence will apply: (i) this Agreement excluding its annexes, (ii) the Scope of Work in Annex 1 , (iii) the Table of Quality and Quantity Substrates Deviances in Annex 14 , (iv) the Responsibility Matrix in Annex 10 , (v) Plans and Specifications in Annex 3 , (vi) the Work Flow Plan in Annex 7 and, to the extent not listed above, the remaining annexes in the order in which they appear in the Table of Annexes on page 3 above.

2.4.2

Changes in the Applicable Law affecting the Work that become effective after the Effective Date of this Agreement may result in changed specifications and a changed Contract Price, as shall be agreed by the Parties. In the event that such changes result in an increase of at least 10% of the Contract Price, the Principal shall have the right to terminate (by written notice within twenty (20) Working Days from receipt of notice from the Contractor) this Agreement due to such price increase, except of an increase of the Contract Price is due to a change order pursuant to Article 9 . If the Principal seeks to use its right of termination, the Principal shall reimburse the Contractor for proven expenses incurred to-date, plus 12% of the proven expenses amount as reimbursement of Contractor overhead costs (which reimbursement shall not include the increase being sought under the circumstances described in this paragraph). For the avoidance of doubt, dismantling costs to be incurred by Contractor, if any, shall be paid on top of the Principal’s reimbursement under this Article. If the Principal does not terminate the Agreement in strict accordance with the terms of this paragraph within the specified time, the Parties shall enter into a Change Order reflecting the mutually agreed upon adjustment to the Contract Price and the Schedule of Values. The Workflow Plan shall also be amended to reflect any resulting changes. Notwithstanding anything else to the contrary, if the Parties are unable to agree the amount of increase in Contract Price to reflect changed specifications due to changes in Applicable Law, then the Contractor shall perform such work on a cost-plus basis using a rate of fifteen percent ( 15% ) profit thereon or Principal arranges payment for such changed or additional work from sources other than Lender but only if Principal first obtains the written consent of Lender, not to be withheld or delayed unreasonably.

AUTHORITY

3.1

Each of the Parties hereby confirms to each other Party that: (i) it has the requisite corporate power and authority to enter into this Agreement, (ii) its board of directors, managing member or general partner, as applicable, has taken all actions required by any Applicable Law to duly and validly authorize and approve the execution and performance by such Party of this Agreement, (iii) no other corporate proceedings on the part of such Party are, or will be, necessary under any Applicable Law to authorize this Agreement, (iv) neither the execution nor the performance by such Party of this Agreement (a) contravenes or conflicts with such Party’s memorandum of association or articles of association or any other governance document, or (b) contravenes or conflicts with or constitutes a violation of any provision of any Applicable Law binding upon or applicable to such Party, (v) no agreement to which such Party is a party prohibits or imposes any constraints on such Party’s power to execute or perform this Agreement or on such Party’s power to become bound by the terms and provisions of this Agreement, and (vi) this Agreement has been duly and validly executed by such Party and assuming the due authorization, execution and delivery by the other Party, constitutes the legal, valid and binding obligations of the Parties, enforceable against each of them in accordance with their respective terms, subject to laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and rules of law governing specific performance, injunctive relief or other equitable remedies .

3.2.

This Agreement will be valid and in full force from the Effective Date hereof and the Contractor shall be bound to commence the Work in accordance with the terms of this Agreement, including but not limited to the tasks specified under the Responsibility Matrix - Annex 10 hereto. For the avoidance of doubt, upon the later to occur of the Effective Date, the delivery of the documents required pursuant to Article 11.1 hereof, the receipt and execution of the Service, Maintenance and Operation Agreement and the Performance Guarantee Agreement, Principal Permits necessary to commence work, Principal shall deliver a Full Notice to Proceed to Contractor and Contractor shall commence the performance of the Work.

CONTRACTOR’S REPRESENTATIONS AND WARRANTIES

Contractor hereby represents and warrants that:

4.1

Contractor has the knowledge, skill, financial resources, human resources, and experience required for the purpose of performing Contractor’s undertakings pursuant to herein and hereunder and the Contractor shall perform all duties which by the nature of the Agreement are required by law, good faith or usage; the Work shall be carried out by Contractor on a turn-key, lump-sum basis in accordance with the time schedule and performance criteria set forth in this Agreement, subject to adjustments in the Contract Price and to the Substantial Completion Date as may be made from time to time, and in accordance with this Agreement and Applicable Law.

4.2

The consideration with respect to the Plant shall, subject to this Agreement, take into account all risks that may be associated with the Contractor’s duties pursuant to Article 2.1 , which based on the Contractor’s experience might be involved in such a project, and such agreed Contract Price represents the Contractor’s acknowledgement of the sufficiency of the consideration for the Work to be provided with respect thereto.

4.3

The Contractor shall, subject to this Agreement, be solely responsible, and shall bear all liabilities, with respect to the Design, Construction, Commissioning, start-up, and performance test of the Plant from the commencement of the Work and until the Substantial Completion Date (including the supply of all necessary information, documents, materials and assistance in the attainment of applicable gas production permits and licenses) with respect thereto.

4.4

The Contractor shall warn the Principal in writing without delay if the Scope of Work, the Annexes, this Agreement, information provided to the Contractor by the Principal, the land and/or the water put at the Contractor’s disposal by the Principal, goods put at the Contractor’s disposal by the Principal, any variations ordered by the Principal to the Contractor evidently contain or show such faults or defects that the Contractor would be in breach of the requirements of good faith if he were to continue the Work without issuing any warning about such faults or defects.

The contractor will do his best to comply with this responsibility, however if he fails to identify a problem it is acknowledged that he will not be liable for any damaging consequences caused by his failure.

4.5

The characteristics of the Site stated in the documentation provided by the Purchaser, as inspected and assessed by the Contractor and\or by professional experts on its behalf are known to the Contractor, are suitable for the Work and operation of the Plant and for the provision of all other services of the Contractor hereunder. If site conditions are found to vary from those details in the documentation provided by the Purchaser, this shall constitute a Change in the Works and shall be handled in accordance with Clause 9 of the Agreement.

4.6

No proceedings for the bankruptcy, winding up, insolvency, or reorganization of or for any moratorium or scheme of arrangement or any other similar proceedings relating to the Contractor, under any Applicable Law, including according to the country of its incorporation are outstanding, the Contractor is not insolvent or is not expected to become insolvent under the Laws applicable to it according to the country of its incorporation.

4.7

For the purpose of the Agreement, the Contractor shall be required to have domicile in the Netherlands if he is not already established in the Netherlands.

GENERAL OBLIGATIONS AND AUTHORITY OF THE PARTIES

5.1

The Contractor shall exercise the reasonable skill and care to be expected of a prudent contractor undertaking works similar in size, scope, nature and complexity to the Work in performance of, and Contractor shall perform, all of the following:

5.1.1

Check all existing Permits (such as Building Permit, Environmental Permit, Geotechnical Report and any other Permit shared by the Employer prior to contract signature) and Related Rights with regard to the Plant and determined that the Contractor is able to construct and perform the Work with respect to the the Plant in line with the existing Permits and Related Rights. If site conditions are found to vary from those details in the documentation provided by the Purchaser, this shall constitute a Change in the Works and shall be handled in accordance with Clause 9 of the Agreement.

5.1.2

The Contractor and its Subcontractors are responsible to obtain all permits and related rights for construction works of the plant.

5.1.3

Apply for and obtain the additional Permits and Related Rights and/or any amendments of Permits and Related Rights required for the Work and operation of the Plant.

5.1.4

Prepare all documents and\or plans as required in order to perform the construction work and all its other obligations under this Agreement, and submit all required material and applications, for the purpose of obtaining the Permits and Related Rights, through qualified personnel or advisers and in such quality that is required for the obtainment of the Permits and Related Rights and the Contractor shall maintain at all times at its own expense the Permits and Related Rights that are required for the performance of the construction work under Applicable Law.

5.1.5

Take all required safety precautions and measures pursuant to Applicable Law with respect to the performance of Contractor’s undertakings pursuant to this Agreement. The Contractor shall be responsible for the compliance with safety, security and health regulations, all in accordance with Applicable Law. The Contractor shall be considered to be cognizant of all statutory regulations and government orders relating to his Work, in so far as these are in force on the day upon which he submitted his tender. The consequences attached to compliance with the said regulations and orders shall be for the Contractor’s account. The consequences of compliance with any regulations of a special nature shall be for the Contractor’s account, unless it must reasonably be assumed that he was not required to have knowledge of such regulations.

5.1.6

Complete the Work in the Site as explicitly specified under this Agreement in an efficient and professional manner, promptly following receipt of any and all Permits and Related Rights that are required in full and timely accordance with the Workflow Plan, subject to adjustments as provided in this Agreement and good industry practice.

5.1.7

Throughout the entire construction period, be fully responsible for all parts and components, which are delivered to the Site and carry out any action reasonably required for the safekeeping, security, storage, retrieving and cataloguing thereof.

5.1.8

Transfer the Plant to the Principal subject to, and in accordance with, the terms and provisions of this Agreement and in accordance with the specifications set forth in this Agreement.

5.1.9

Remove from the Site, within a reasonable time following the Substantial Completion Date, any instrument, material, part, component, and\or any other object located in the Site, which was brought to the Site by Contractor and\or any person on its behalf, including Subcontractors, and which does not form part of the Plant pursuant to the specifications documents, in such manner that will enable the proper activation and commercial operation of the Plant pursuant to this Agreement, to the satisfaction of the Principal.

5.1.10

Until the Substantial Completion Date, Contractor will (i) perform the Work related to the start-up and commissioning of the Plant, including, but not limited to, feeding-in the substrates (and inoculum) that are supplied by Principal, (ii) arrange and pay for the provision of electricity, water, fire protection, sewage and waste disposal services related to the performance of the Work or any other obligations of Contractor hereunder. (iii) bear and pay 100% of the costs of the Plant and the Work (such as electricity, water, natural gas if needed, wastewater disposal, construction waste disposal and other construction related costs, fuel, consumables). For the avoidance of doubt, Substrate supply during ramp-up will be supplied by the Employer to the Contractor free of charge according to a ramp-up schedule which will be prepared by the Contractor (in the format as attached as Annex 23 ). In this connection, it is agreed and understood that (i) Principal shall not be required to participate in or incur any cost or expense in respect of the Plant or the Work (with the exception of any specific provision stated in this Agreement) until Substantial Completion has been achieved and (ii) Contractor shall be entitled to receive any and all revenues to be generated from or in respect of the Plant until the Substantial Completion Date. Principal shall promptly remit to Contractor any such revenue

5.1.11

Perform ongoing quality tests in accordance with the Testing Protocols, with respect to the works carried out thereby and\or by any Subcontractor in accordance with the provisions of this Agreement

5.1.12

Carry out the Work in compliance with Applicable Law. The Contractor shall also comply with all of its requirements set out in Annex 7 .

5.1.13

If the Contractor or its affiliate is not or ceases to be the party operating the Plant pursuant to the Service, Maintenance and Operation Agreement, provide the Principal and its personnel (up to 5 people) with training and instruction enabling them to fully and safely operate the Plant after the Substantial Completion Date in compliance with Applicable Law and to perform the Operation Services as such term is defined in the Service, Maintenance and Operation Agreement. Such training shall be at Contractor’s expense, last up to three months and fully take place either prior to the Substantial Completion Date or prior to the date on which Contractor ceases to be the party operating or to operate the Plant (whichever the case may be).

5.1.14

Provide the Principal with detailed instructions necessary for the proper and safe use of any materials and/or equipment and/or components supplied and/or used in the Plant and which are necessary to ensure the proper and safe operation of the Plant.

5.1.15

Give all the notices for inspections necessary for the proper execution and completion of the Work pursuant to this Agreement.

5.1.16

Deliver the Plant on a Turnkey Basis when it is operating and after it has achieved Final Completion.

5.1.17

Enter into or cause an affiliate to enter into the Service, Maintenance and Operation Agreement; enter into or cause an affiliate to enter into the Performance Guarantee Agreement; and deliver an insurance policy on the date on which the Performance Guarantee Agreement becomes effective in accordance with its terms, issued by an insurance company acceptable to both Principal and Lender, in support of its obligations with respect to the Performance Guarantee set forth in such Performance Guarantee Agreement.

5.1.18

Maximize the use of equipment for which there is availability of support and spare parts on the open market on commercially reasonable terms and timing. The Contractor declares that the List of Spare Parts as attached to the Service, Maintenance and Operation Agreement under Annex 17 covers the required spare parts to be used during the first year of operation as long as the feedstock is in compliance with the characteristics described in Annex 14 .

5.1.19

Cooperate with the Principal and its nominated parties such as the financing entities in addition to Article 5.3.4 below:

enable third party engineering inspections during normal business hours; and

provide information and data on the Work progress if requested.

5.2

The Principal shall exercise reasonable skill and care to be expected of an experienced principal with respect to similar projects, helping the Contractor to meet his obligations.

5.2.1

Principal has the right to issue the partial “note to proceed” for detail design of the facility after signing the EPC agreement and before financial closing. Contractor should provide to Principal the cost of the detail design work. Principal will compensate Contractor for the detail design work after the financial closing and according to the schedule of project payments. If for some reasons the financial closing of the project is not achieved, the Principal has right to terminate the design work and compensate Contractor for the completed work proportionally according to the cost of the design work.

5.2.2

The Principal shall ensure that all their obligations with respect to feedstock supply, digestate off-take, utility connections and the Gas Off-Taker Agreement (GOA) are in place before the plant is wet commissioned and gas production in initiated. If these are not in place, the Prinipal will not be able to remit the revenues to the Contractor as per clause 5.1.10 above. In this case, the Contractor will suspend commissioning and shall be entitled to claim Stand-By Costs (as defined in Article 1 of the Agreement). The liquidated damages calendar shall be suspended for the duration of any such suspension.

5.3

Quality and Description

5.3.1

Insofar as the brand of the materials and components to be used in the Work and/or in the Plant has not been specified in the Works Description, the Contractor shall choose such new, unused materials and components provided that they are in conformity with the Works Description, are recognized and accredited in the Biogas industry or have similar or better technical characteristics or are of the same or a higher standard than those materials and components included in the Works Description. Notwithstanding the above, the brand of materials and components (to the extent not specified in the Works Description) to be used in the Work and/or in the Plant shall, be approved in advance and in writing by the Principal. The Principal will have five (5) Working Days after receipt of the relevant information to make such approval. If the Principal does not approve the materials or components based on technical reasons or other reasons with clear direct negative impact on the Works, within the said period, then the Contractor shall propose alternative components. The Contractor may replace material or components without waiting for Principal approval if they deem such replacement is time-critical (e.g. to ensure ongoing operations) – this will be done at the Contractor’s risk as Principal approval shall still be required in accordance with this Sub-Article. For the avoidance of doubt, it is agreed that such approval will not relieve the Contractor from any responsibility or liability arising from the brand of materials and components, except for components, which based on the Contractor’s sole discretion are irreplaceable or mandatory for the Site performance. All materials and components specified in the Works Description shall also be new, unused materials and components.

5.3.2

The Contractor shall use the standard of reasonable skill and care to be expected of a prudent contractor undertaking works similar in size, scope, nature and complexity to the Work hereunder to verify that the Work shall:

5.3.2.1

Conform strictly with the quantity, specifications, quality and description of the Work detailed in the Works Description and with all requirements of Applicable Law;

5.3.2.2

Be of sound materials and workmanship;

5.3.2.3

Be in strict compliance with the Plans and Specifications referred to in this Agreement and as set forth in the Works Description, including but not limited to Annexes 1 and 3 ;

5.3.2.4

Comply with the high standard of performance specified in this Agreement.

5.3.3

All Work under this Agreement shall be performed by suitably qualified and competent personnel.

5.4

Representatives of the Parties

5.4.1

Each Party shall designate a person who will represent it in all contact with the other Party. All communications between such designated person and the other Party will be deemed as carried out between the Parties themselves.

5.4.2

The Parties hereby state that their designated representatives set out in this Agreement have the authority to act on their behalf in all matters concerning this Agreement. Each Party may, by giving at least three (3) days prior written notice to the other Party, replace its representative.

5.4.3

The representative may delegate specific tasks to one or more persons appointed by the representative or deputy. In any such case, the other Party’s representative shall be notified of the authority given to such appointed person or persons.

5.4.4

The representatives of the Principal shall be afforded access to the Site during Working Hours. The same access shall be afforded to the persons authorized by the Principal’s representatives prior to the Substantial Completion Date or to the Contractor’s representatives following the Substantial Completion Date.The Principal’s representative or any person authorized by him to access the Site shall comply with reasonable instructions or directions, provided that the Principal and any of its representatives will follow all the health and safety regulations as instructed by the Contractor.

5.5

Subcontracting

5.5.1

Contractor shall be entitled to perform part, but not all, of the Work pursuant to this Agreement, through subcontractors that shall be: (a) hired by Contractor; and (b) have the knowledge, skill, financial resources, human resources, and experience required for the purpose of performing the tasks assigned thereto in a professional manner and in accordance with good industry practice (each, herein, a “ Subcontractor ”). The Contractor shall notify the Principal in writing (by normal or electronic mail) of each and any Subcontractor they intend to select (“Subcontractor Appointment”). The Principal shall respond to any notice of Subcontractor Appointment within seven (7) business days and approval shall not be withheld unless the Principal has clear evidence that the proposed Subcontractor is unable to fulfil their appointed tasks. If the Principal does not respond to a Subcontract Appointment within the agreed timeframe then it shall be deemed to have been approved. The Principal and Lender’s Engineer shall have the right to disapprove any Subcontractor and demand the dismissal and/or replacement of a Subcontractor whose work quality and ability to meet deadlines the Principal has justified reasons to doubt. The Contractor shall remain fully responsible to the Principal in respect of such subcontractors.

5.5.2

The Contractor shall use reasonable efforts to integrate similar terms and conditions as detailed under this Agreement into the subcontracts entered with its Subcontractors. The Contractor shall be responsible to the Principal for the acts and\or omissions of its Subcontractors and\or any employee thereof with respect to the delivery and performance of this Agreement, to the same extent as the Contractor is responsible to the Principal for the acts and\or omissions of the Contractor and its employees and as if such act and\or omission was taken or omitted, as applicable, by Contractor and\or any employee thereof. Entry into any subcontract shall not relieve the Contractor of any of its obligations under this Agreement, including the obligations to perform the Work in accordance with this Agreement.

5.5.3

Without limiting the scope of Contractor’s liability under Article 5.4.2 hereof, the Contractor further agrees to use reasonable efforts to obtain from its Subcontractors similar warranties to those required from the Contractor under this Agreement.

5.5.4

Whenever possible, The Contractor shall provide the Principal with lien waivers from each Subcontractors (in each case, prior to such Subcontractors undertaking any work on the Plant), effectively waiving the Subcontractors’ rights to claim any liens or encumbrances on the Plant and especially “het recht van retentie” of the Contractor and subcontractors.

5.6

Reviewable Design Documents

5.6.1

The Contractor shall, in accordance with the Workflow Plan, issue to the Principal the Reviewable Design Documents (RDD) listed in Annex 16 for review and approval. The Principal or its engineers shall provide a full response with seven (7) working days of receipt of any RDD and approval shall not be withheld unless the Principal has clear evidence that the design fails to meet the requirements of this Agreement. If the Principal does not respond to an RDD within the agreed timeframe then it shall be deemed to have been approved. For the avoidance of doubt, the Principal’s approval of any design document – whether actually or deemed – shall not release the Contractor from meeting any of their obligations under this Agreement.

CONTRACT PRICE

6.1

The Contractor will be entitled to receive from the Principal the sum of € 22,500,000 (Twenty Two Million and Five Hundred Thousand Euros) exclusive of VAT (the “ Contract Price ”) for the performance of the Work in accordance with this Agreement. The Contract Price is a fixed lump sum price and is not subject to any changes except as otherwise provided in this Agreement.

6.2

Subject to the terms of this Agreement, the Principal shall pay the Contractor the Contract Price as comprehensive, exhaustive, full and complete consideration for the fulfilment of its obligations under this Agreement.

6.3

The Contractor declares that the Contract Price set out under this Agreement is sufficient to fulfil its obligations as detailed under this Agreement and in the Works Description in Annex 1 hereto, based on the Applicable Laws in effect on the date of this Agreement.

6.4

For the avoidance of doubt, any payments made by the Principal under this Agreement shall not constitute a waiver of claims by the Principal or relieve the Contractor in any manner whatsoever of any of the Contractor’s obligations under this Agreement.

INVOICING AND PAYMENT

Payments to Contractor shall be made as follows:

7.1

The Schedule of Values, attached hereto as Annex 8 , establishes the portion of the Contract Price payable in respect of each Payment Amount listed therein (subject to permitted adjustments under this Agreement). The Milestone Payment Schedule is intended to apportion the Work into, and is in sufficient detail to permit the Principal to evaluate, Contractor’s application for payment by the element of the Work to be furnished by each Subcontractor and by Contractor, the cost for such milestone , and such other details as agreed to by the Parties. The Milestone Schedule shall be a basis for evaluating Contractor’s application for payment.For the avoidance of doubt the Contractor shall be entitled to claim for any proportion of any Contract Price element listed in the Milestone Schedule which is completed on the the basis of supporting evidence. `Subject to the provisions of this Article 7 , as and when the relevant Payment Amount is due, Contractor shall submit, for each milestone payment an application and payment request in form and substance satisfactory to Principal, executed by a representative of Contractor, which shall request payment for all Work which has been performed and completed as of the date of the application and payment request and shall be supported by such evidence as Principal shall reasonably require, including monthly progress photos, periodic status reports and a monthly updated construction schedule (collectively, an “ Invoice ”) to Principal for all payments due in relation to all Payment Amounts payable to Contractor at such time. Principal shall use its reasonable efforts to provide Contactor advance, detailed and prompt, written notice as to the form and substance of the evidence to be required in support of each Invoice. If Principal is unable to provide comprehensive information in advance of each Invoice, Principal shall nonetheless provide as much information as possible and as early as possible.

7.2

In order to verify the progress made by Contractor in connection with any Invoice submitted by Contractor, Principal and Lender’s Engineer shall have the right to inspect the Work or any part thereof that Principal or Lender’s Engineer reasonably requests; provided , however , that such inspections shall not delay payment by Principal to Contractor of any undisputed amount set forth on an Invoice. Principal shall only be entitled to withhold disputed amounts if it disputes the amount due reasonably and in good faith and it provides Contractor with a detailed written statement of the basis of the dispute at least fifteen (15) days from receipt of the Invoice.

7.3

On or about the fifth (5th) Working Day of a relevant month after Contractor receives the Full Notice to Proceed, Contractor shall electronically deliver to Principal an Invoice for the Work for the corresponding portion of the Contract Price in the Milestone Schedule

7.4

Each Invoice shall include an executed Conditional Waiver and Release from Contractor and each Subcontractor performing Work for which payment is being sought in Contractor’s invoice in the form of Annex 20 hereto.

7.5

Contractor understands and agrees that any Invoice that is inaccurate or not in accordance with this Article 7 shall not constitute a valid request for payment. Principal shall notify Contractor of any deficiencies in an Invoice within the relevant payment period.

7.6

Within fifteen (15) days after Principal receives an Invoice and all accompanying documentation required by this Article 7 , Principal shall notify Contractor concerning any dispute over the accuracy and entitlement to the amount of the submitted Invoice and the basis for such dispute. If Principal has not notified Contractor within fifteen (15) days after Contractor has provided such invoice of any good faith objection thereto, Principal shall be deemed to have approved such Contractor’s Invoice for purposes of making payment under this Article 7 but, as noted in Article 6.4 hereof, any payments made by the Principal under this Agreement shall not constitute a waiver of claims by the Principal or relieve the Contractor in any manner whatsoever of any of the Contractor’s obligations under this Agreement. Principal shall only be entitled to withhold disputed amounts if it disputes the amount due reasonably and in good faith and it provides Contractor with a detailed written statement of the basis of the dispute and the proposed amount to be withheld or suspended at least fifteen (15) days from receipt of the Invoice. Disputed amounts that are wrongly withheld by the Principal for a period longer than 30 days after receipt of the invoice will bear interest at the prime rate as on 30 days after the date that payment was due, plus one and a half percent (1.5%) per annum, until paid, but not to exceed the maximum rate permitted by Applicable Law (the “ Contract Interest Rate ”). In case of any disagreement in respect of a disputed invoice that is not resolved between them in a timely manner, the Parties shall refer such disputed invoice to the Ruler for final and binding adjudication.

7.7

Payments.

7.7.1

Principal shall make payment to Contractor for the full undisputed amount specified in each Invoice, except as set forth in the following sentence, no later than thirty (30) days following the date of its receipt of Contractor’s Invoice and supporting documentation in the manner and detail and at the time required pursuant to this Article 7 . Contractor acknowledges and agrees that Principal shall be entitled to withhold ten percent (10%) of the amount on each Contractor’s Invoice up to Substantial Completion of the Plant (the “ Retainage ”). For the avoidance of doubt, the Retainage will be released together with Payment for Substantial Completion Milestone according to Annex 8 : Schedule of Values.

7.7.2

In addition to the Retainage, Principal may withhold payment of all or part of any Invoice to such extent as may be necessary to protect itself from loss caused by:

(a)

a claim filed by a Subcontractor or supplier, provided that Contractor is allowed the opportunity to provide a bond or other assurance reasonably acceptable to Principal in lieu of such offset;

(b)

a Contractor default which has occurred and is continuing; and

(c)

Principal shall notify Contractor of such withholding and the grounds therefor and when such grounds are removed or Contractor provides other assurance reasonably satisfactory in form and substance to Principal that payment will be made of the amounts withheld. When deemed reasonable by Principal and after providing Contractor with reasonable notice and an opportunity to cure, Principal may use such funds to rectify the situation giving rise to the withholding of funds. All claims and other disputes shall be handled in accordance with this Agreement and be resolved before final payment hereunder shall be due or payable to Contractor.

7.7.3

All payments to be made to either Party under this Agreement shall be paid in Euro’s and shall be paid electronically (by means of ACH or wire) in immediately available funds. All payments for undisputed amounts referenced in each Invoice shall be due within thirty (30) days of the paying Party’s receipt of the other Party’s Invoice (each, an “ Invoice Payment ”) or, if such date is not a Working Day, on the immediately succeeding Working Day, to such account as may be designated by each Party from time to time by notice to the other Party; provided , however , that banking transfer instructions have been provided by the invoicing Party to the paying Party at least five (5) Working Days before the first payment of the paying Party is due and payable.

7.7.4

Any undisputed payment that is delinquent by more than five (5) Working Days, shall, beginning on the next calendar day, bear interest at the prime rate as on the date that payment was due, plus one and a half percent (1.5%) per annum, until paid, but not to exceed the maximum rate permitted by Applicable Law (the “ Contract Interest Rate ”). The payment of interest unaccompanied by payment of the delinquent payment shall not excuse or cure any default or delay in such payment. Contractor shall be responsible for paying all Subcontractors in connection with the Work completed by such Subcontractor.

7.7.5

Final Invoice. On or after the date on which Contractor delivers to Principal the Final Completion Certificate, Contractor shall submit a final Contractor’s Invoice (a “ Final Contractor’s Invoice ”) which shall set forth all amounts due to Contractor that remain unpaid in connection with the Work (including the aggregate balance of the Retainage). Within fifteen (15) days of Final Completion as confirmed in the Final Completion Certificate issued pursuant to Article 7.7.7 below, Principal shall pay to Contractor the amount due under such Final Contractor’s Invoice (“ Final Payment ”). The Final Contractor’s Invoice shall include an executed Conditional Waiver and Release from Contractor, Conditional Waiver and Releases from all Subcontractors who are to be paid with proceeds of such Final Payment and Unconditional Waiver and Release from all other Subcontractors, in each case, in the form of Annex 21 hereto. Within fifteen (15) days after Contractor receives the Final Payment, Contractor shall deliver an executed Unconditional Waiver and Release from Contractor and all its Subcontractors, in each case, in the form of Annex 20 hereto.

7.7.6

Upon Final Completion of the Plant, Principal shall disburse the aggregate balance of the Retainage to Contractor upon having received or verified the following:

(a)

Punch List Items . Contractor shall have completed the Punch List Items to the reasonable satisfaction of Principal;

(b)

Final Completion . The Plant shall have achieved Final Completion;

Contractor shall have executed and delivered to Principal a Certificate of Final Completion; Principal shall have executed and delivered to Lender such Certificate of Final Completion; and Lender’s Engineer shall have confirmed the occurrence of Final Completion by his countersignature of the Certificate of Final Completion.

7.7.7

Disputes Regarding Payments. Subject to Contractor’s rights and remedies under this Agreement, failure by Principal to pay any amount disputed in good faith until resolution of such dispute in accordance with this Agreement shall not alleviate, diminish, modify nor excuse the performance of Contractor or relieve Contractor’s obligations to perform hereunder. Contractor’s acceptance of any payment (including Final Payment), and Principal’s payment of any amount, shall not be deemed to constitute a waiver of amounts that are then in dispute. Contractor and Principal shall use reasonable efforts to resolve all disputed amounts reasonably expeditiously and in any case in accordance with the provisions of Article 30 . No payment made hereunder shall be construed to be acceptance or approval of that part of the Work to which such payment relates or to relieve Contractor of any of its obligations hereunder. Contractor shall have the right to suspend performance of the Work, without penalty, if Principal withholds at any one time more than EUR 500,000 It is also understood that this suspension of work delays the substantial and final completion dates and thus the liquidated damages calendar. In the event a disputed amount is withheld by Principal and is later determined that such withholding was not warranted Principal shall pay such withheld amount promptly along with interest at the rate set forth in Article 7.7.4 . In the event that it is later determined that such withholding was warranted, in addition to any other remedy Principal may have, Contractor shall pay Principal Delay Liquidated Damages if applicable.

7.7.8

Stand-By Costs, as defined within Article 1 of this Agreement, shall not be subject to retainage or withholdings

TIME

Workflow Plan

8.1

The Work shall be carried out in accordance with the Workflow Plan as well as the agreed milestones subject to any amendment to that Workflow Plan in accordance with the terms of this Agreement. The Workflow Plan shall present the planned course of the Work including the design, the permitting, the construction, the commissioning, the Performance Test of the Plant and the training of Principal’s personnel.

	8.2	The commencement of the Work pursuant to the Workflow Plan is expressly conditioned upon the Principal having submitted to the Contractor the Principal Permits that are required under Applicable Law for such Work to be commenced by Contractor.

	8.3	The date on which the Plant will undergo a successful Performance Test will be not later than 20 months following the Starting Date Of Construction subject to any extension of this date to which the Contractor may be entitled pursuant to any Events of Force Majeure, to Principal’s delays and to any other terms of this Agreement.

Delay

8.4

The Contractor shall be entitled to a reasonable extension of time in which to complete the Work and a reasonable extension to any dates in the Workflow Plan (and an extension to the date specified in Article 8.3 ) if the reason for the Contractor being delayed in carrying out the Work is an Event of Force Majeure pursuant to this Agreement and/or one or more of the following circumstances:

8.4.1

Any impediment, prevention, default or non-cooperation, whether by act or omission, by the Principal or any of the Principal’s employees or agents, or any other person or entity for whose acts the Principal may be liable;

8.4.2

Delays in the delivery of goods and/or services and/or the substrates as specified under Annex 2 and Annex 6 and/or documents and/or information as required under this Agreement by the Principal

8.4.3

Failures or delays made by the authorities to issue or grant Permits and Related Rights unless such failure or delay has occurred solely due to the Contractor’s failure to meet their specific obligations in respect of Permits and Related Rights as detailed in Article 5 of this Agreement.;

8.4.4

Failure by the Principal to fulfill their obligations under this Agreement with respect to feedstock supply, digestate off-take, utility connections or Gas Off-Taker Agreement (GOA)Denial of access to the Site to the Contractor;

8.4.5

A failure of the Principal or its engineers to respond to a Reviewable Design Document or Subcontractor Appointment in accordance with the requirements of, or within the specified timeframes for response, set out in Article 5 of this Agreement.

8.4.6

Incorrect or missing documents submitted by the Principal after being requested by the Contractor, which are necessary for a proper evaluation of the Work and the risk evaluation involved with the construction of the Plant. The necessary events or documents include but are not limited to the following:

8.4.6.1

The approval of the Layout ( Annex 2 )

8.4.6.2

Drawing with connections for water and electricity to and at the Site

8.4.6.3

The Principal’s obligation to supply substrates ( Annex 14 )

8.4.6.4

Building interruptions imposed by the authorities having jurisdiction over the Work, unless such interruptions have been imposed due to the Contractor’s fault.

8.4.6.5

Delays pursuant to Article13.4 of this Agreement.

8.4.6.6

suspension of the Work by the Contractor in accordance with Article 7.7.8 of this Agreement.

8.4.6.7

Any change to the Work, the Plant or the subject matter of this Agreement requested by the Principal to the extent such delay is expressly set forth in the applicable Change Order;

8.4.6.8

Exceptionally adverse weather conditions, which make the continuation of Work on site impracticable or impossible from objective reasons including any weather condition that requires and/or necessitates the temporary suspension of activities due to applicable safety regulations;.

8.4.6.9

civil commotion, riot, war sabotage or the use or threat of terrorism and/or the activities of the relevant authorities in dealing with such event or threat;

8.4.6.10

The exercise after the date of this Agreement by any governmental body of any statutory or regulatory power which completely prevents the performance of the Work.

8.4.6.11

Delays in obtaining the Permits and Related Rights (excluding Principal Permits) due to the reasons beyond the Contractor’s influence or responsibility.

8.5.

In the event that the Contractor is delayed in carrying out the Work due to any event specified in Article 8.4 the Contractor shall issue a notice to the Principal specifying the cause or causes of delay and if practicable in such notice or as soon as reasonably practicable thereafter, give particulars of the expected effects including the expected duration of delay.

8.6

Following receipt of the Contractor’s notice under Article 8.4 , the Principal shall give an extension of time by fixing such later date for completion of the Work and for any dates in the Workflow Plan as reasonably required for the Contractor to complete the Work; notwithstanding the aforesaid, the Contractor shall use its best efforts in order to complete the Work according to the original schedule regardless of any delay and\or extension pursuant to this Agreement. For the avoidance of doubt, this Article 8.6 does not preclude recovery of monetary damages by Contractor.

CHANGES AND ADDITIONAL WORK

9.1

In any case where, after the signing of this Agreement, the Principal requests the Contractor to make any changes in the Work and/or to perform any additional work and/or to provide any additional equipment, the Principal will inform the Contractor in writing of the intention and/or the necessity to do so (a “ Proposed Deviation ”). Changes in the Work resulting from the Contractor encountering conditions at the Site that are subsurface or otherwise concealed physical conditions that differ materially from (i) representations made by the Principal in this Agreement and/or (ii) those indicated in the reports attached to this Agreement shall be considered as changes to be addressed in this Article 9 .

9.2

Upon receipt of a Proposed Deviation, and as soon as practically possible, the Contractor shall prepare and submit to the Principal: (i) a description of the works required in order to implement the Proposed Change Order; (ii) the Contractor’s proposals for any necessary modifications to the specifications documents and the Workflow Plan, if any, or to any of the Contractor’s obligations under this Agreement; and (iii) if the Contractor is of the view that the Proposed Deviation will result in an increase or decrease in the Contract Price, its proposed adjustment to the Contract Price, payment schedule and the extended Workflow Plan (the “ Proposed Change Order ”).

9.3

The Principal may approve the Proposed Change Order in its sole discretion by providing the Contractor with a signed version thereof (a “ Change Order ”), and the Contractor shall be bound to carry out the Change Order as if the provisions of such had been incorporated into this Agreement. All changes resulting from the Change Order, with respect to any adjustment to the Contract Price, the Workflow plan, the penalties, Substantial Completion Date, or passing the Performance Test shall be adjusted accordingly

9.4

The price of any changed or additional work within the scope of this Article 9 shall be on a lump-sum fixed price agreed upon by the Parties in writing; provided that, if the Parties are unable to agree on a fixed price for such changed or additional work and Lender consents in writing to a cost plus arrangement with respect to such changed or additional work or Principal arranges payment for such changed or additional work from sources other than Lender, then the Contractor shall perform such work on a direct cost-plus fifteen percent (15%) basis thereon.

10.

ADDITIONAL CONTRACTOR’S DUTIES

10.1

Substantial Completion Date as detailed under Article 12 below shall occur not later twenty (20) months following the Starting Date of Construction unless such date has been extended in writing in accordance with the terms hereof, including without limitation because of any Events of Force Majeure or a delay caused by Principal.

10.2

Documentation. The Contractor shall provide the Principal with two (2) written copies and one electronic copy of the Manual of Operation for the Plant (the “ Manual ”). The Manual will be drafted in English. The Manual will contain all information, descriptions and diagrams with sufficient details to make it possible for the Principal to operate and maintain the Plant. The Manual will also include spare part lists in the English language.

10.3

Insurance

The Contractor shall purchase and maintain with a reputable insurance company or companies such insurance policies as are set forth below and in Annex 9 for the duration of its activity at the Site and until the Substantial Completion Date. This Annex 9 contains the required insurance policies and an indication of the limits of liability and coverage as specified or required by law, as will be provided by an insurance company recommended by the Lender. For the avoidance of doubt, this does not force or oblige the Contractor to acquire these policies from this insurance company. aslong as any loan documents are in effect between Principal and Lender, Contractor’s insurance must be at least as protective of Lender’s rights as the requirements set forth in Annex 21 in the Sections titled therein as “Applies to all Insurance Policies – General Conditions” and “Specific Insurance Policy Requirements - During Assembly/Packaging/Construction Loan Phase” (“ Lender Minimum Insurance Requirements ”). In the event of any conflict between the terms of the Lender Minimum Insurance Requirements and the terms of this Article 10.3 , the terms of the Lender Minimum Insurance Requirements shall control. Contractor shall maintain any insurance policies and coverage as customarily maintained by a prudent contractor. For the avoidance of doubt, all insurance policies shall be issued by a reputable insurance company with coverage in the Netherlands reasonably acceptable to the Principal and such policies shall contain the usual market terms as used in construction projects in the Netherlands. If Lender’s demands are not known at the time of signing and these increase the insurance cost of the Contractor. These costs will be passed through to the Principal.

10.4

Upon commencement by the Contractor of its Work on the Site, the Contractor shall have the overall sole responsibility for the Site and the Contractor shall ensure the proper organization of the Work on the Site and compliance with all relevant health and safety requirements under Dutch Law and with due observance of the provisions included in Annex 11 (health and safety).

10.5

At any stage of the Work and/or after the Substantial Completion Date, the Contractor shall support the Principal and provide it with any information, documentation or other assistance, as may be reasonably necessary for regulating the relations with authorities having jurisdiction or other third parties, in particular, during the process of applying for Principal Permits.

10.6

The Contractor shall inform the Principal regularly on the progress of the Work and, upon reasonable demand by the Principal, the Contractor shall submit documents and information related to the Work and/or this Agreement. The Contractor shall comply with the requirements included in Annex 10 – Responsibility Matrix.

10.7

Performance Bonds/Guarantee

As security for the fulfilment of Contractor’s obligations regarding the realization of the Works and for the fulfilment of his obligations regarding the realization of the long-term maintenance services and payment by the Contractor of any amount due to Principal pursuant to this Agreement the Contractor will provide the Principal with the following performance bonds and Guarantee which can be called on demand by the Principal, issued by a surety in the format as attached to this Agreement as Annex 12 and Annex 13 . The performance bonds shall be governed by Netherlands law, and are only to secure the performance of Contractor’s obligations as it relates to this Agreement.

•

Design-Build Performance and Payment Bond provided by the local site contractor (“Site Contractor”) in an amount equal to 100% of the value of their scope of the Agreement, to be issued within 3 weeks from the date of the agreement with the Site Contractor, and to be valid until the contractual date of completion and acceptance of the Works.

•

Design-Build Performance and Payment Bond provided by Anaergia, in an amount equal to 100% of the balance of the Works value (calculated as the contract price for the Works less the value of the Site Contractor scope), to be issued within 3 weeks from the date of this Agreement, and to be valid until the contractual date of the completion and acceptance of the Works.

•

Maintenance Performance bond provided by Anaergia, in an amount equal to 100% of the value of the annual maintenance and operation work (excluding pass through costs), to be issued upon the completion and acceptance of the Works, valid for one year and extended, renewed or replaced, so that it remains in effect until the end of the long-term maintenance period.

Notwithstanding any Contractor cure rights in any other parts of this Agreement, if the Principal plans to invoke the security, the Principal shall first notify the Contractor by registered letter with details of the Contractor default. Contractor shall have thirty (30) days from the receipt of such notice to cure applicable defaults detailed in the Principal’s notice. Should the thirty (30) day cure period expire and such default(s) continues uncured, the Principal shall be entitled to invoke the security, unless the Court of Arbitration for the Building Industry or the Dispute Adjudication Board rules otherwise in a dispute to be filed by the Contractor within 14 days of dispatch of the notification referred to in this paragraph.

The Design-Build Performance and Payment Bonds shall remain valid until the actual date of completion and acceptance of the Works, after which they terminate, on the understanding that, in the event of minor defects, the security can be reduced in value to reflect the cost of fixing the defects and shall remain valid until the Contractor has corrected the defects. Principal will not unreasonably withhold acceptance of the Works. If the Principal is of the reasonable opinion that defects are to be corrected, the security shall remain valid until the Contractor has met his obligations.

11.

PRINCIPAL’S DUTIES

11.1

Preliminary Contracts. To enable the Contractor to erect the Plant, the Principal will at its own expense, before the Contractor starts the erection of the Plant supply the Contractor with copies of the signed contracts for the purchase of the Site, the GOA and the supply of substrates. These contracts must be sufficient to build and operate the plant as detailed in this Agreement.

11.2

The Principal will provide the Contractor reasonable and unhindered access to the Site 24/7 for 365 days per year, in such condition as will enable the Contractor to construct the Plant pursuant to this Agreement.

11.3

Access to the Site, Storage

11.3.1

The Principal will provide the Contractor and its employees and Subcontractors and consultants with unlimited access to the Site during all the phases from the start of the Work and until the Substantial Completion Date.

11.3.2

The Principal will provide access to the Site suitable and sufficient for deliveries by trucks and trailers with up to 45-ton load capacities.

11.4

All of the tasks which are indicated in the Responsibility Matrix - Annex 10 - as the Principal’s duties will be provided by the Principal at its own expense and within the time frame as specified in the Workflow Plan - Annex 7 .

11.5

Substrates quality and characteristics

11.5.1

The Principal undertakes to supply the Plant with Sufficient Substrates, including inoculum as required for the commissioning start up of the Plant. Any deviation from the quantities, characteristics, ingredients and composition of the recipe prepared by Contractor not in line with the indicators stated under the “Table of Quality and Quantities Substrates Deviances” attached under Annex 14 , by mass or by each of the specifications as detailed under such Annex, must be approved in writing by the Contractor prior to such change. If written approval is not provided by the Contractor, the Plant will be considered as operated not in line with the Manual.

11.5.2

Two months prior to Commissioning, the Principal shall provide the Contractor with samples of the substrates to be fed-in and the Contractor shall prepare in consultation with the Principal the initial feed-in recipe to be used during the feeding-in and the Commissioning of the Plant. Such initial feed-in recipe shall be consistent with the samples of substrates previously provided by Principal, so long as such samples are in line with the provisions of Annex 14 . Principal shall supply Sufficient Substrate for the commissioning of the Plant in accordance with the initial feed-in recipe prepared by Contractor. If such substrates are not Sufficient Substrates, Contractor might refuse to perform the Commissioning or shall amend the level of the Performance Test to be reached under Article 12 below and the respective indicators thereof.

11.5.3

If at anytime the Contractor is idle, waiting for the Principal to provide permits, substrate or anything else related to Principal responsibility that is required to finish the work, Principal agrees to pay the Contractor for itsStand-By Costs as per the definition set out in Article 1 of this Agreement. . In this event, the Liquidated Damages calendar is suspended until the situation is corrected by the Principal.

12.

COMMISSIONING AND DELIVERY

Mechanical Completion

12.1

When Contractor believes Mechanical Completion has occurred, Contractor may execute and submit to Principal a Certificate of Mechanical Completion in the form attached as Annex 13B . Within 10 Working Days thereafter, the Contractor and Principal will meet to conduct a technical inspection of the Plant to evaluate whether Mechanical Completion of the Plant has been achieved. Within 10 Working Days of any such inspection, Principal shall: (a) reject the certificate if all conditions to Mechanical Completion have not been achieved and provide written notice to Contractor of all unfinished or deficient Work (“ Notice of Deficiencies ”) which must be completed as a precondition to the Plant achieving Mechanical Completion; or(b) issue the applicable Certificate of Mechanical Completion executed by both Principal and Lender’s Engineer, stating the date on which Mechanical Completion has occurred.

12.2

Where the Contractor’s submission of a certificate is rejected by the Principal or Lender in accordance Article 12.1(a) , Contractor will use its best efforts to remedy, repair and/or complete all incomplete Work needed for the Plant to achieve Mechanical Completion within a reasonable time thereafter (but not to exceed 60 days from the date Principal provided the first Notice of Deficiencies) and inform Principal when Contractor believes the deficiencies have been corrected, at which time the procedure described in Article 12.1 will be repeated (as many times as is necessary) until the Certificate of Mechanical Completion is executed by both Principal and Lender; provided, however, that if the Principal and Lender have not executed the Certificate of Mechanical Completion within 60 days from the date of Principal’s first Notice of Deficiencies, because of Contractor’s negligence or inability to correct the problem, the Principal shall be entitled to engage one or more third parties to perform any work or repairs required to cause the Plant to achieve Mechanical Completion, and any costs to be incurred thereby shall be paid for by Contractor or deducted from what is owed to Contractor.

12.3

The Parties expressly agree that all of the following are conditions precedent to the Plant achieving Mechanical Completion:

12.3.1

Construction of the Plant has been completed in accordance with the Plans and Specifications;

12.3.2

All equipment and other components of the Plant, including the Gas Upgrade System, has passed all standard and required electrical testing, hypot, megger testing, flushing and pressure testing of piping, and all other applicable testing, per codes and guides, including any applicable Caterpillar Application and Installation Guides;

12.3.3

The Plant is ready to be tested and commissioned; and

12.3.4

A Certificate of Mechanical Completion in the form attached as Annex 13B has been executed by Contractor and countersigned by Principal and Lender.

12.4

Principal and Contractor may, agree to a bifurcated Mechanical Completion such that: (a) “ Primary Mechanical Completion ” may be obtained first for the components of the Plant relating to digestion of the feedstock, as opposed to generation of biomethane; and (b) “ Full Mechanical Completion ” occurs after all components of the Plant, including Gas Upgrade System, have reached Mechanical Completion. In the event Principal, Contractor and Lender’s Engineer agree to such a bifurcation of Mechanical Completion, the Certificate of Mechanical Completion shall be revised accordingly into a Certificate of Primary Mechanical Completion and Certificate of Full Mechanical Completion. Such certificates must be in form and substance satisfactory to Principal, Contractor and Lender’s Engineer.

12.5

Commissioning. After the Plant has achieved Mechanical Completion, sufficient start-up feedstock has been delivered to the Plant (which is 100% the responsibility of Principal) and heated, and the methane content has exceeded the level of 50% of the total Biogas production and the temperature within the digester has exceeded 36 degrees Celsius, the Contractor shall notify the Principal with a copy to Lender’s Engineer in writing that the Plant is ready for initial startup and commissioning and the proposed date of such commissioning (“ Start-up Notice ”). Thereafter, Contractor shall commission the Plant by making it produce the initial upgraded Biogas (the “ Commissioning ”). The date on which the Commissioning will take place shall be not later than 19 months following the Starting Date of Construction, provided that it shall be extended if any Events of Force Majeure or a Principal delay occur, and will be known as the “ Commissioning Date ”.

12.6

Performance Test

12.6.1

Performance Test Requirements. Contractor shall perform the Work so the Plant satisfies the performance criteria for Performance Test prior to, and as a condition of, Biogas Substantial Completion or Substantial Completion, as applicable (in each case, in accordance with, and as set forth in Annex 18 , the Testing Protocols).

12.6.2

Performance Test Schedule. Contractor shall agree on a Performance Test schedule with Principal and Lender’s Engineer and shall give notice (which notice may be by email) to Principal with a copy to Lender’s Engineer of the Performance Test at least five (5) Working Days prior to commencing any such test. Representatives of Principal and Lender’s Engineer shall be entitled to observe the Performance Test. Contractor shall keep such representatives continuously apprised of the schedule for the Performance Test and changes in the schedule, the commencement and performance of Performance Test, and shall give such representatives at least two (2) Working Days advance notice (which notice may be by email) of the re- performance of any Performance Test; provided , however , that such period of advance notice may be reduced at the sole discretion of the Principal’s representative at the Site.

12.6.3

Test Report. Contractor shall submit a test report for the Performance Test performed by Contractor within five (5) Working Days after the completion of such Performance Test, which report shall provide the Performance Test results, together with a comparison to, and showing of compliance with, the applicable performance criteria and other testing requirements and criteria set forth in Annex 18 , as applicable. Contractor shall cause such report to contain the test data and calculations to allow Principal to verify the conclusions of such report.

12.6.4

Non-Conforming Work and Failure to Pass Performance Test. If the Plant does not pass the Performance Test, Contractor shall, at Contractor’s sole cost and expense, in accordance with the Testing Protocols, take such corrective actions to the Plant, as the case may be, to address such failure to pass the Performance Test; provided that all such corrective action shall otherwise be in compliance with the requirements for the Work hereunder. At any time during and promptly after completion (whether or not successful) of the Performance Test (or any re-performance of any Performance Test or pursuant to any remedial plan adopted pursuant to the Testing Protocols), each Party shall advise the other Party in writing of any defect that was discovered during the Performance Test. Contractor shall, at Contractor’s sole cost and expense, correct any defect and promptly provide notice to Principal that such corrective measures have been completed.

12.6.5

If the Performance Test fails because of the quality and/or quantity of the Substrate do not comply with the Annex 14 “Table of Quality and Quantity Substrates Deviances”, , Contractor will suggest to Principal a corrective action plan to be approved and covered under the change order before the work starts. In this case, the liquidated damages calendar will be suspended until the issue is resolved and a further undertaking of the Performance Test has been completed.

12.6.6

Certificate of Completion of Testing. Upon the Successful Completion of the Performance Test as demonstrated by a test report delivered to Principal by Contractor and accepted by Principal and Lender’s Engineer, Principal shall issue a notice that such test has been Successfully Completed.

12.6.7

Post Test Modifications. If prior to Biogas Substantial Completion or Substantial Completion, as applicable:

(a)

A Performance Test has been Successfully Completed for the Plant;

(b)

A certificate of completion of such Performance Test has been issued pursuant to Article 12.6.5 ; and

(c)

Either Contractor or any Subcontractor makes any modification to the Plant, as the case may be;

then, unless otherwise waived by Principal in writing, the Performance Test shall be a re-run as a condition to the Plant achieving Biogas Substantial Completion or Substantial Completion, as applicable.

12.7

Plant Substantial Completion.

12.7.1

Conditions to Biogas Substantial Completion . The following are the conditions precedent for Biogas Substantial Completion:

The Plant has been constructed, successfully tested and commissioned such that: (i) the Plant (A) is operating within all the specified parameters in the Construction Documents (other than gas generation requirements), (B) has achieved Mechanical Completion, (C) has all Permits and Related Rights required for Commercial Operation and (D) is operating and generating the Minimum Gas Amount as evidenced by Successful Completion of the applicable Performance Tests; (Biogas Substantial Completion shall not occur until a Certificate of Biogas Substantial Completion has been executed by all appropriate parties, including Lender’s Engineer);

12.7.2

Biogas Substantial Completion Certificate . When Contractor believes Biogas Substantial Completion has occurred, Contractor may execute and submit to Principal a Certificate of Biogas Substantial Completion in the form attached as Annex 13C . Within 10 Working Days thereafter, the Contractor and Principal will meet to conduct a technical inspection of the Plant to evaluate whether Biogas Substantial Completion of the Plant has been achieved. Within 10 Working Days of any such inspection, Principal shall: (a) reject the certificate if all conditions to Biogas Substantial Completion have not been achieved and provide written notice to Contractor of all unfinished or deficient Work which must be completed as a precondition to the Plant achieving Biogas Substantial Completion; or (b) issue the applicable Certificate of Biogas Substantial Completion executed by both Principal and Lender’s Engineer, stating the date on which the Biogas Plant ownership is transferred to the Principal and the Substantial Completion has occurred. Where the Contractor’s submission of a certificate is rejected by the Principal or Lender, Contractor will use its best efforts to remedy, repair and/or complete all incomplete Work needed for the Plant to achieve Biogas Substantial Completion as soon as practicable and inform Principal when Contractor believes the deficiencies have been corrected, at which time the foregoing procedure will be repeated until the Certificate of Biogas Substantial Completion is executed by both Principal and Lender.

12.8

Conditions to Substantial Completion . The following are the conditions precedent for Substantial Completion:

The Plant has been constructed, successfully tested and commissioned such that, among other things:

the Plant (i) has achieved Biogas Substantial Completion and (ii) is operating and generating the specified output pursuant to the Construction Documents and is supplying upgraded Biogas to the Gas Purchaser in full accordance with the GOA, including satisfaction of the requirements of Commercial Operation;

A successful operational performance test of the Plant for its intended use has been completed demonstrating that Plant performance criteria of upgraded biogas generation and emission levels have been met and are satisfactory;

the Work has been performed in accordance with this Agreement and the Plant as a whole is capable of being operated in a safe and proper manner;

all civil works are complete and meet the requirements of this Agreement except for those civil works (if any), which are required to be performed after Substantial Completion to the extent that the same are Punch List Items;

the Performance Test as defined in Annex 18 has been Successfully Completed;

Contractor has obtained, and Principal has received copies of, all Permits and Related Rights necessary for the commencement and ongoing operation of the Plant in a safe, efficient, and reliable manner and otherwise in accordance with Applicable Law and otherwise required to be obtained by Contractor hereunder as of such time, such Permits and Related Rights are in full force and effect, and Contractor shall have completed all requirements under each such Permit and Related Right required to be completed as of such time; and

Contractor has procured and submitted to the Principal the Performance Bond set forth in Annex 12 hereto issued by a reputable bonding company authorized to do business in the jurisdiction in which the Plant is located covering the warranty period specified under Article 14 below.

A Certificate of Substantial Completion in the form attached as Annex 13D has been executed by Contractor and countersigned by Principal and Lender’s Engineer.

Substantial Completion Certificate . When Contractor believes Substantial Completion has occurred, Contractor may execute and submit to Principal a Certificate of Substantial Completion in the form attached as Annex 13D . Within 10 Working Days thereafter, the Contractor and Principal will meet to conduct a technical inspection of the Plant to evaluate whether Substantial Completion of the Plant has been achieved. Within 10 Working Days of any such inspection, Principal shall: (a) reject the certificate if all conditions to Substantial Completion have not been achieved and provide written notice to Contractor of all unfinished or deficient Work which must be completed as a precondition to the Plant achieving Substantial Completion; or (b) issue the applicable Certificate of Substantial Completion executed by both Principal and Lender’s Engineer, stating the date on which the Plant’s equipment ownership is transferred to the Principal and the Substantial Completion has occurred. Where the Contractor’s submission of a certificate is rejected by the Principal or Lender, Contractor will use its best efforts to remedy, repair and/or complete all incomplete Work needed for the Plant to achieve Substantial Completion no later than the Substantial Completion Guaranteed Date and inform Principal when Contractor believes the deficiencies have been corrected, at which time the foregoing procedure will be repeated until the Certificate of Substantial Completion is executed by both Principal and Lender. All unfinished or deficient Work in the Plant, which is not required for Substantial Completion but is required for Final Completion, will then be recorded in a Punch List Items report, which will be prepared by Contractor and signed by both the Contractor and the Principal (the “ PLI Report ”). The PLI Report will also include an estimated value for each deficient item or unfinished Work and the expected date of repair or delivery. The Principal has the right to refuse to sign the PLI Report if in its reasonable discretion the PLI Report is incomplete, erroneous or contains items, which are required for Substantial Completion. Any failure of Principal to sign the PLI Report shall not relieve Contractor of its obligation to effect a prompt remedy and repair of any item necessary for Substantial Completion.

Delay Liquidated Damages . Contractor agrees that if Substantial Completion is not achieved by the Substantial Completion Guaranteed Date (as extended due to Events of Force Majeure or acts or omissions of Principal, or entities or individuals under Principal’s control, in violation of express obligations in this Agreement (including Principal’s failure to provide the Plant with Sufficient Substrates or Sustrates of Quality), then Contractor shall pay Delay Liquidated Damages for each day that Contractor fails to achieve Substantial Completion. Delay Liquidated Damages together with the Performance Bond described in Articles 1 and 10.7 are the Principal’s remedies to be compensated for delays and lack of performace, unless there is fraudulent or willful misconduct on the part of Contractor.

12.9

Final Completion

12.9.1

Conditions to Final Completion. Final Completion shall be deemed to have occurred only if all of the following conditions shall have occurred:

(a)

Substantial Completion has occurred;

(b)

the Plant is capable of Commercial Operation

(c)

all Punch List Items have been completed, or Contractor shall have paid Principal in accordance with Article 14.8 for Principal’s correction or remediation of such items;

(d)

all warranties, design materials, operation and maintenance manuals, schematics, spare parts lists, design and engineering documents, performance testing data, “as-built” drawings and surveys, and such other items as are required by the Construction Documents and the Service, Operation and Maintenance Agreement have been delivered to Principal;

(e)

Principal has received from Contractor reasonably satisfactory evidence that all payrolls, bills, and other costs and expenses relating to the work performed under the Construction Documents have been paid or otherwise satisfied (including lien waivers and releases, from every Subcontractor and every other Person who provided labor, material, equipment or supplies for the work or the Plant);

(f)

Contractor shall have paid all Delay Liquidated Damages, if any, due and payable pursuant to Article 12.8.c ;

(g)

Each of the following shall have occurred: (i) Subcontractors’ personnel shall have left the Site, (ii) all surplus materials, waste materials, hazardous materials (for which Contractor is responsible), rubbish, Contractor equipment and temporary work, other than those to which Principal holds title, shall have been removed from the Site, (iii) any temporary structures on the Site built by or on behalf of the Contractor or its Subcontractors shall have been torn down and removed, (iv) the area disturbed by the Work shall have been re-graded and restored as required by the Permits and Related Rights and (v) any permanent facilities used by Contractor and the Site shall have been restored to the same condition that such permanent facilities and the Site were in on the Full Notice to Proceed Date, ordinary wear and tear excepted;

(h)

Principal shall have received and accepted all items, materials and services to be provided or performed by Contractor in relation to the Plant;

(i)

Contractor shall have delivered an executed Conditional Waiver and Release from Contractor, Conditional Waiver and Releases from all Subcontractors who are to be paid with proceeds of such Final Payment and Unconditional Waiver and Release from all other Subcontractors, in each case, in the form of Annex 20 hereto;

(j)

To the extent any Permit or Related Right is required to be “closed out” or is subject to a similar process by the applicable governmental authority, Contractor has satisfied all such requirements for each Permit or Related Right that is the responsibility of Contractor;

(k)

All other duties and obligations of Contractor and Subcontractors under this Agreement have been fully performed;

(l)

A Certificate of Final Completion in the form attached as Annex 13A has been executed by Contractor and countersigned by Principal and Lender’s Engineer;

(m)

all other requirements in this Agreement with respect to completion of the Plant have been satisfied.

12.10

Final Completion Certificate . When Contractor believes Final Completion has occurred, Contractor may execute and submit to Principal a Certificate of Final Completion. After receipt of the Contractor’s submission of such a certificate, the Principal shall, within ten (10) Working Days after the receipt of the same: (a) reject the certificate, giving reasons and specifying the work required to be done by the Contractor; or (b) issue the applicable certificate executed by both Principal and Lender’s Engineer, stating the date on which Final Completion has occurred. Where the Contractor’s submission of a certificate is rejected by the Principal in accordance with the foregoing, Contractor shall not re-submit a certificate until the deficiencies are remedied. If Final Completion does not occur by the Final Completion Guaranteed Date, the Principal shall be entitled to engage one or more third parties to perform any work or repairs required to cause the Plant to achieve Final Completion, and any costs to be incurred thereby shall be paid for by Contractor or deducted from what is owed to Contractor.

12.10

Risk and loss for Damages

12.10.1

Care, Custody and Control . Until the Substantial Completion Date, Contractor shall have care, custody and control of the Plant, except as otherwise expressly provided in this Agreement. In event this Agreement is terminated, Principal shall have care, custody and control of the Plant.

12.10.2

Risk of Loss . Until the Substantial Completion Date (except to the extent otherwise provided herein upon the earlier termination of this Agreement), and subject to the provisions of this Article 12 , Contractor assumes risk of loss, and full responsibility, for the cost of replacing or repairing any damage to the Work related thereto and assumes risk of loss, and full responsibility, for the cost of replacing or repairing any damage to, any maintenance equipment (including temporary materials, equipment and supplies) which is purchased by Contractor for permanent installation in, or for use during the construction of the Work as it relates to the Plant. It is however agreed that damages to the Work caused by Principal and/or its employees, partners, owners or agents shall not fall within Contractor’s liability.

12.10.3

Risk of Loss After Substantial Completion . Principal shall bear the risk of loss for, and full responsibility for, the cost of replacing or repairing any damage to the Plant from and including the Substantial Completion Date or the earlier termination of this Agreement.

12.11

Warranties . Warranties required by this Agreement shall commence on the Substantial Completion Date unless a different date of commencement is expressly stated in this Agreement for a particular piece of equipment in the Plant or a portion of the Plant.

13.

WARRANTIES

13.1

Contractor warrants to the Principal that the materials and\or components used in the construction of the Plant shall be of good quality and new unless this Agreement requires or permits otherwise. Contractor further warrants that the Work will conform to the requirements of this Agreement and shall be free of any design, manufacturing or other defect whatsoever in material or workmanship. Work, materials, or components not conforming to these requirements may be considered defective. Except as otherwise indicated in this Article 14, such warranties will remain in full force and effect for a period of one year from the Substantial Completion Date.

13.2

Subject to Article14.4 below the Contractor, as of Substantial Completion Date and for the period set forth below with respect to each item below (the “ Warranty Period ”), Contractor shall repair at Contractor’s expense any damage, defect and\or fault in material or workmanship as contemplated in Article 14.1 above (“ Damage ”):

13.2.1

Flame-swept parts of the Plant: two (2) years from the Commissioning Date.

13.2.2

Machine and electro-technical parts of the Plant: two (2) years from the Commissioning Date.

13.2.3

Concrete parts of the Plant – 10 years from the Start-Up Notice, provided that the Principal will carry out an inspection and maintenance the inner coating of digesters as instructed in writing by the Contractor every five (5) years.

13.3

The Contractor’s liability shall cease in respect of each part of the Plant specified in Articles 14.2.1 - 14.2.4 after the expiration of the relevant warranty period specified in such clauses.

13.4

The warranty does not include materials used or consumed in the ordinary course of business and natural wear and tear and the Principal shall be responsible for the provision of and cost of any such consumables.

13.5

The warranties contained in Article14.2 are subject to and expressly conditioned upon strict compliance with the following conditions:

13.5.1

The input substrates used for the operation of the Plant must be within the Deviation List as detailed under Annex 14 and as described in Article 11.6 , Annex 2 and Annex 6 . If the Contractor requests, the Principal will send the Contractor a sample from the input substrates in order to perform a laboratory analysis. A refusal of the Principal to provide the Contractor with such samples permits the Contractor to terminate or void all relevant warranties.

13.5.2

Machinery breakdowns and shutdowns must be recorded by the Principal according to their type and scope, and be immediately reported to the Contractor as soon as reasonably practicable following applicable breakdown and\or shutdown of the Plant.

13.5.3

The Contractor must be granted access to the Plant and to Plant data in order to control the Plant’s proper operation and to make the necessary repairs. Any delays and/or avoidance in such access due to the Principal will absolve the Contractor from any responsibility to repair the damages or from resultant damages until such access is granted.

13.5.4

The warranty shall not include immaterial deviations in the construction of the Plant, immaterial impairment of use, and natural wear and tear. Variations, changes and tolerances within the framework of the ANSI or DIN standards or standards superseding them shall be seen as insignificant variations.

13.6

The Principal shall issue a Defect Notice to the Contractor as soon as reasonably practicable after the Principal becomes aware of any defect, default or malfunction in the Plant.

13.7

The Contractor is obliged to respond to any Defect Notice received during the relevant warranty period within two (2) Working Days of receipt thereof. The Contractor shall provide the Principal with a provisional solution enabling the ongoing operation of the Plant and its components, including the Gas Upgrade System, and shall remedy such defects, defaults and malfunctions as soon as technically and commercially possible, but, in any event, no later than 30 days, unless ordered parts are longer lead than 30 days. In this case, the Contractor needs to show that parts have been ordered within reasonable time (can take longer than 2 days if design work is necessary) .

13.8

If the Contractor has not corrected defects and shortcomings in the Plant within the terms stated in Article 14.7 above, the Principal shall be entitled to employ another contractor to correct such defects and shortcomings and to recover the reasonable cost from the Contractor unless the Contractor’s failure to repair such defects and shortcomings is due to an Event of Force Majeure or any act, omission, written instruction or material act of prevention by the Principal in which case the period within which the Contractor is obliged to rectify any defect or shortcoming in accordance with Article14.7 shall be extended by a period equivalent to the length of the Event of Force Majeure or the length of time which the Principal prevents the Contractor from rectifying such defect or shortcoming. In the event that both Principal and Contractor pre-agree, it is also possible to remedy this defect by making a commercial agreement.

13.9

Limitation of warranties

The Parties agree that:

(i)

the Contractor’s liability under this Agreement shall not exceed the Contract Price.

(ii)

Except as otherwise provided herein and in respect of Delay Liquidated Damages, Contractor shall not be liable for any special, indirect, incidental, consequential, punitive or exemplary damages regardless of the theory of recovery.

(iii)

warranties in this Agreement are exclusive and Contractor disclaims all other warranties of any kind, whether statutory, express, or implied. The remedies in this Agreement are the exclusive remedies of Principal for any failure by Contractor to comply with its warranty obligations in this Agreement, provided however that nothing herein shall abrogate any obligation of the Contractor pursuant to the Service, Maintenance and Operation Agreement or the Performance Guarantee Agreement.

14.

PARTIES’ LIABILITY

14.1

Each Party shall have full responsibility for, and agrees to indemnify and hold the other Party and any of its affiliates, their officers, directors, partners, agents, employees, successors and assigns (collectively, the “ Indemnitees ”) harmless from, any and all liabilities, claims, losses, costs, expenses, demands, suits, actions or damages, including without limitation, damage to any third party or loss of third party property, attorney fees and other litigation expenses, incurred by the Indemnitees or any of them as a result of act and/or omission by such Party, any of its affiliates, officers, directors, partners, agents, employees, subcontractors, successors and assigns (in this Section, collectively, “ Agents ”), which constitutes a breach of its undertakings hereunder and/or the provisions of any Applicable Law or arising from injury or damage caused by such Party or its Agents to persons or property, in connection with such Party’s or its Agents’ performance hereunder, including without limitation injury or damage arising as a result of any malfunction or defect in the Delivered Objects, or arising as a result of any action or proceeding based on a claim that the Work (or any part thereof) infringe any third party’s Intellectual Property Rights. The aforementioned indemnification undertakings shall not apply in the event the liabilities, claims, losses, costs, expenses, demands, suits, actions or damages with respect to which indemnification is sought, arises out of non-intentional act of the Principal or the Contractor or anyone acting on their behalf.

14.2

Principal shall indemnify and hold Contractor Indemnitees harmless from, any and all liabilities, claims, losses, costs, expenses, demands, suits, actions or damages, attorney fees and other litigation expenses, incurred by the Indemnitees or any of them as a result of any environmental liability arising out of the condition of the Site before the Starting Date of Construction.

14.3

It is agreed that in the event of claim against either Party, the indemnifying Party shall have the right to select legal counsel and control the defense and settlement of any third party claim that is covered by the indemnity in this Article 15 .

15.

PRINCIPAL’S LIABILITY

The Principal shall compensate the Contractor for the following additional expenses incurred by Contractor:

15.1

Additional expenses resulting from Changes in the Work to the extent reflected pursuant to a Change Order in accordance with Article 9 above;

15.2

Additional expenses incurred by Contractor that directly result from a delay in the Contractor’s performance caused by the Principal.

16.

INTELLECTUAL PROPERTY RIGHTS

16.1

Upon full payment of the Works, The Contractor grants to the Principal a paid-up, royalty-free, non-exclusive project specific license to use, all plans, drawings, specifications, calculations, designs, graphs, sketches, design details, models, computer programs, photocopies, brochures, reports, notes of meetings, codes, data, documents and other written or recorded material produced by or on behalf of the Contractor in connection only with the Work (whether in existence or to be made) and all amendments to them and any works, designs or inventions of the Contractor incorporated or referred to in them for all purposes relating to the Work or the Site, including the construction, completion, repair, maintenance, use and advertisement of the Work. For the avoidance of doubt, such license may be assigned to the Lender without the prior written consent of the Contractor. The Contractor shall not be liable for the use of any of the documents or other materials referred to in this Article 18.1 for any purpose other than that for which they were prepared; for the avoidance of doubt, any improvement to the Work (of any kind whatsoever) following the Substantial Completion Date shall be the sole property of the Principal and Contractor shall have no right to such future improvements unless Contractor makes such improvements, in which case Principal’s license shall extend to and include such Contractor-made improvements, as well.

16.2

The Contractor represents and warrants that the Work shall not violate or otherwise infringe on the Intellectual Property Rights of any third party. If either one of the Parties learns of a claim that the Work, or any part thereof, infringes on or otherwise violates the Intellectual Property Rights of a third party, the Party became aware of such possible violation or infringement shall promptly give notice with respect to such claim to the other Party.

16.3

If the Principal’s use of the Work for the purpose of owning and operating the Plant at the Site, or any part thereof, is enjoined due to a claim made by any third party, the Contractor shall either (i) procure for the Principal the right to continue using the affected Work or (ii) replace such Work with a non-infringing item of a similar function or performance. The Contractor shall further indemnify and hold harmless Principal from any and all claims, losses, damages, fees (including reasonable cost of counsel), expenses and other liabilities arising from or relating to such third-party claim.

16.4

The Contractor agrees upon request at any time made by the Principal to give the Principal or any persons authorized by the Principal access to and at the Principal’s expense copies of the material referred to in Article 18.1 and\or which are related to the Plant and\or Work for the sole purpose of owning the Plant and operating it.

16.5

This license only grants the right to the Principal to use the plant, technology and associated material for the purpose to which it was designed and built for and the license does not grant the right to use, market, provide, share the license with any other party.

17.

CONFIDENTIALITY

17.1

Each Party undertakes to keep in strict confidence any Confidential Information disclosed to any such Party during the negotiations, the permitting process, the construction, the delivery the commissioning or the performance of this Agreement, and neither Party shall disclose Confidential Information to any third party and shall only release the Confidential Information to those of its directors, officers, employees or subcontractors on a “need to know basis” for the purpose of this Agreement only (the “ Purpose ”). Each receiving Party shall treat Confidential Information with the same degree of care and apply no lesser security measures than it affords to its own confidential information. The receiving Party warrants that these measures provide adequate protection against unauthorized disclosure, copying or use.

17.2

The receiving Party shall make no commercial use of the Confidential Information or use it otherwise than for the Purpose.

17.3

Confidential Information may be disclosed if and to the extent:

17.3.1

it is required by law, by any relevant securities exchange(s), court order or other authority of competent jurisdiction or any regulatory or government authority to which the receiving Party is subject, but in each case only to the extent required and for the purpose of such disclosure;

17.3.2

the receiving Party reasonably considers it necessary to disclose the information to its professional advisers, auditors or bankers for the purpose of this Agreement provided that it does so on terms protecting the information;

17.3.3

the information has entered the public domain through no fault of the receiving Party;

17.3.4

the information was previously disclosed to the receiving Party without any obligation of non-disclosure; or

17.3.5

the disclosing Party has given its consent in writing to such disclosure.

17.3.6

The provision of this clause shall continue to apply notwithstanding the termination of this Agreement and/or the completion of the performance of the Work.

18.

HEALTH AND SAFETY

18.1

The Contractor shall, subject and pursuant to Applicable Law, perform the Work and all its undertakings hereunder having regard to the health and safety of persons involved in the use, construction, occupation, maintenance, repair, modification or demolition of the Work and\or the Plant all with due observance of Annex 11.

19.

FORCE MAJEURE

19.1

Neither of the Parties shall be considered in breach of an obligation under this Agreement or otherwise liable to the other by reason of any delay in performance or non-performance of any of its obligations under this Agreement to the extent and insofar such delay or non-performance is due to an Event of Force Majeure.

19.2

The Party affected by the Event of Force Majeure shall, as soon as possible, notify the other Party in writing of the nature and extent of the Event of Force Majeure. The notice shall set out the circumstances constituting the Event of Force Majeure event, the obligations which are thereby delayed or prevented, and shall include an estimate of the anticipated delay arising from the Event of Force Majeure. The Party affected by the Event of Force Majeure shall take all reasonable steps to alleviate its effects and shall resume performance as soon as reasonably practicable and shall notify the other Party when the Event of Force Majeure has ended.

19.3

In case of an Event of Force Majeure, each Party shall cover its costs caused by the Event of Force Majeure.

19.4

Within 14 days after the Event of Force Majeure has ceased, the Contractor shall present its claim, if any, for adjustment of the Workflow Plan in accordance with Article 8.4 herein. Any adjustments to the Workflow Plan shall be made with due regard to the delay caused by the Event of Force Majeure.

19.5

Nothing herein shall excuse non-performance of those contractual obligations not affected directly or indirectly by the Event of Force Majeure.

19.6

If a Party is affected by an Event of Force Majeure and the written notice in relation to the Event of Force Majeure has not been withdrawn within 120 Days, either Party may terminate this Agreement by serving written notice on the other. The service of such notice shall be without prejudice to any rights or obligations, which have accrued prior to termination.

20.

VALIDITY & TERMINATION OF AGREEMENT

20.1

The Principal may terminate this Agreement if not all the Permits and Related Rights have been obtained by four months from the Effective Date provided that such a termination was done before the date of Full Notice to Proceed. In such case the Principal shall pay to the Contractor that portion of the Contract Price which is fairly and reasonably attributed to the services and Work that the Contractor has performed pursuant to this Agreement up to the date of such termination.

20.2

The Principal may terminate this Agreement before its expiry in the event any one of the following circumstances arises:

20.2.1

the Contractor becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against it,or carries on business under a receiver, trustee or manager for the benefit of its creditors, or if any act is done or event occurs which (under Applicable Law) has a similar effect to any of these acts or events; the Contractor loses its individual license or permit necessary for performing the Work and such lost of permit or license could not be retrieved within a period of 30 days following the date it was lost or expired;

20.2.2.

the Contractor is at fault by gross negligence or breach provisions of this Agreement in relation to work quality or safety regulations and the fault has not been remedied within five (5) Working Days of a written demand from the Principal;

20.2.3

the Contractor substantially violates the terms of this Agreement and has not ceased this violation and remedied the consequences thereof within four (4) weeks of a written demand from the Principal; and

20.3

The Contractor may terminate this Agreement before its expiry in the event any one of the following circumstances arises:

20.3.1

the Principal becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against it or carries on business under a receiver, trustee or manager for the benefit of its creditors, or if any act is done or event occurs which (under Applicable Law) has a similar effect to any of these acts or events;

20.3.2

the Principal substantially violates terms of this Agreement and has not ceased this violation and remedied the consequences thereof within four (4) weeks of a written demand from the Contractor;

20.3.3

the Principal fails to reimburse the Contractor in accordance with Article 2.4.2 of this Agreement;

20.3.4

the Principal does not pay Contractor any amount due under this Agreement within 30 days after receiving Contractor’s written demand for payment.

20.4

Termination of this Agreement due to any reasons must be notified to the other Party by giving proper reasons and substantiated by all relevant documents.

20.5

As soon as practicable after the notice under Article 20.3 has taken effect, the Parties shall determine the value of the Work that have been executed by the Contractor prior to the notice of termination, the value of the Delivered Objects or the works performed by the Contractor, and the financial obligations the Contractor has been entered into which could not be terminated and the value of the materials and equipment for which the Principal has made payment.

20.6

In the event that this Agreement is terminated due to any of the reasons mentioned herein (save under Article 20.1 and 20.2 ), the Principal shall pay to the Contractor for performed work, including any reasonable committed costs that are related to the state of the Work as of the date of termination less any amount which the Principal has already paid to the Contractor in consideration of the Contractor undertaking the Work pursuant to this Agreement.

21.

FINANCE

Contractor acknowledges its consent to cooperate with the Principal or any person on its behalf, with respect to the following, to the extent reasonably required for the purpose of allowing the Principal to obtain debt finance with respect to the construction of the Plant: (i) assignment and/or pledge of Principal’s rights hereunder, or any of them to any finance provider or any trustee or agent of any financer as collateral security, (ii) rendering any information with respect to the Work, to the financing parties and otherwise fully and promptly reasonably co-operate with the financing parties, (iii) providing assistance to the financing parties which they may reasonably require in order to evaluate the Plant, the Work, this Agreement and all other matters related to the Plant. The Contractor shall execute and deliver to such financer any consents and/or other documents and/or any changes to this Agreement reasonably requested by such financer. Any additional costs resulting from this request will result in a reasonable change of contract price and could cause a project delay and may require an extention to the liquidated damages schedule.

22.

INDEPENDENT CONTRACTOR

The Contractor is acting in the performance of this Agreement as an independent Contractor, and there shall be no employer-employee relationship between him and/or his employees and the Principal. The Contractor shall not be deemed an agent of the Principal and shall not act on the Principal’s behalf and shall not make the Principal liable for its acts or omissions.

23.

ASSIGNMENT OF RIGHTS

Except to or at the direction of the Lender, to or at the direction of any party purchasing or benefiting from the investment tax credit applicable to the Plant or any party purchasing the Plant and as set forth in this Article 23 , this Agreement may be assigned only with the prior written consent of the other Party which consent shall not be unreasonably withheld. The Principal may collaterally assign and/or pledge this Agreement and any rights or obligations thereunder to any finance provider or any trustee or agent of any financer as collateral security; the Contractor shall execute and deliver to such financer any consents and/or other documents and/or any changes to this Agreement reasonably requested by such financer. Any additional costs resulting from any such action will result in a reasonable change of contract price and could cause a project delay and may require an extention to the liquidated damages schedule.

Notwithstanding the foregoing, Principal may, without prior consent, assign its rights hereunder to a lender and/or trustee acting on behalf of a lender, or any financing entity, which acquires a security interest in Principal or the Plant (collectively, the “ Security Lenders ”) in connection with any financing involving the Plant. In the event of an assignment of Principal’s rights hereunder to any Security Lenders, Contractor shall take such further actions and execute such documents as are reasonably requested by such Security Lenders to effectuate such assignment including, without limitation, a consent agreement containing customary terms and conditions in the form attached hereto as Annex 20 . Such customary terms and conditions shall include, but not be limited to, provisions related to extended notice and cure periods to be provided to the Security Lenders; consent, inspection and other rights for the benefit of the Security Lenders; and other terms and accommodations to Security Lenders as are customary for non-recourse project financings. Solely with respect to any Security Lender which acquires a security interest in Principal or this Agreement, and provided Contractor has received written notice from Principal of such interest and request, Contractor shall give written notice to such Security Lender of any default or event of default by Principal under this Agreement.

Each of the Parties will have the right to assign in full or in part its rights under this Agreement to a wholly owned subsidiary owned by it with the prior written consent of the other Party, which consent will not be unreasonably withheld.

24.

CHANGES TO THE AGREEMENT

Changes, amendments and corrections to this Agreement shall be made in writing and signed by both Parties.

25.

SEVERABILITY

25.1

Should any provision in this Agreement be found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction that provision shall be deemed not to be a part of this Agreement and it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.

25.2

The Parties agree furthermore to replace an invalid provision by one, which most closely approximates the invalid provision in a legally permissible way.

26.

ENTIRE AGREEMENT

26.1

This Agreement, its annexes and schedules sets out the entire agreement and understanding between the Parties and supersedes all prior agreements, understandings or arrangements (whether oral or written) in respect of the subject matter of this Agreement.

26.2

Each Party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained in this Agreement, its annexes and schedule and save as expressly set out in this Agreement neither Party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.

27.

CONDITION PRECEDENT (“ Opschortende Voorwaarde ”)

This Agreement is subject to the satisfaction on or prior to the end of eighteen (18) months after the date of this Agreement (“ Long Stop Date ”) of signing a Construction Finance Agreement with the Lender in relation to the Plant (“ Facility ”) (“ Condition ”).

Fulfilment of conditions precedent

The Principal will use all reasonable efforts to obtain the Facility on or prior to the Long Stop Date and the Contractor will use all reasonable efforts to provide the Principal with such information as is necessary for the Principal to do so.

Termination

If the Condition is not satisfied or waived on or before the Long Stop Date, this Agreement will not constitute rights and obligations and parties shall not have any claim against the other Party under it, save for any claim arising from breach of any obligation contained in Article 27 under “Fulfilment of conditions precedent”.

28.

NOTICE

All notices, consents, waivers and other communications in connection with this Agreement must be in writing in English and delivered by hand or sent by registered mail, express courier or e-mail to the appropriate addresses set out below, or to such addresses as a Party may give notice to the other Party from time to time. A notice shall be effective upon receipt and shall be deemed to have been received (i) if delivered by hand, registered mail or express courier, at the time of delivery, or (ii) if delivered by e-mail, at the time of successful transmission.

[ ]

29.

ARBITRATION, JURISDICTION, APPLICABLE LAW

	29.1	Subject to any provisions of this Agreement, all disputes or claims between the Parties arising out of or related to this Agreement, its subject matter and/or its validity will be decided by binding arbitration which, unless the Parties mutually agree otherwise in writing, shall be administered by the Arbitration Board for the Building ( Raad van Arbitrage voor de Bouw ).

	29.2	This Agreement shall be governed by Netherlands law.

	29.3	The language of the arbitration will be English.

THUS this Agreement has been duly executed by the Parties on the day and year first above written

For and on behalf of the Contractor

/s/ Diana Benedek

Anaergia B.V.

By: Diana Benedek

Title: Managing Director

December 5th, 2017

For and on behalf of the Principal

/s/ Roy Amitzur

Blue Sphere Brabant B.V.

By: Roy Amitzur

Title: Director

December 5th, 2017

Blue Sphere Corporation 8-K

Exhibit 10.2

Dated: 4 December 2017

(1)

Blue Sphere Brabant B.V.

(2)

Anaergia B.V.

SERVICE, MAINTENANCE AND OPERATION AGREEMENT

TABLE OF CONTENTS

Article		Page

1.	RECITALS AND ANNEXES	3
2.	OBJECT OF THE AGREEMENT	4
3.	TECHNICAL DATA	5
4.	OPERATION SERVICE	5
5.	S&M SERVICE	8
6.	Personnel of the SM&O Contractor	11
7.	On-call service	11
8.	OBLIGATIONS OF CLIENT	11
9.	OBLIGATIONS OF SM&O CONTRACTOR	12
10.	CLIENT MANAGER	13
11.	INSURANCE COVERAGE	13
12.	PERSONNEL SAFETY AND HYGIENE	14
13.	TERM OF THE AGREEMENT AND TERMINATION	15
14.	PLANT PERFORMANCE, EXPENSES AND OPERATION SERVICE COMPENSATION	16
15.	S&M SERVICE COMPENSATION	16
16.	RIGHTS OF SM&O CONTRACTOR	17
17.	REPRESENTATIONS OF CLIENT	19
18.	SUBCONTRACT	19
19.	WARRANTY	19
20.	SEVERABILITY OF PROVISIONS - REPRESENTATIONS	20
21.	AMENDMENTS	20
22.	AMENDMENTS TO THIS AGREEMENT BY THE LENDER	21
23.	NOTIFICATION AND PROCESSING OF DATA	21
24.	FORCE MAJEURE EVENT	21
25.	ASSIGNMENT OF RIGHTS	22
26.	PROCEDURE FOR DECISION OF DISPUTS BY THE RULER	23
27.	ARBITRATION, JURISDICTION, APPLICABLE LAW	23

Annexes:

Annex 1

- Maintenance Plan

Annex 2

- Plan of Analyses

Annex 3

- Plant Manual of operation

Annex 4

- Form of Performance Guarantee Agreement

Annex 5

- Schedule of feedstock arrivals

Annex 6

- Table of feedstock deviation quality and quantity

Annex 7

- [intentionally left blank]

Annex 8

- Form of Insurance Policies

Annex 9

- Performance Bond

Annex 10

- Guarantee

THIS AGREEMENT is made on 4 December 2017

BETWEEN

BLUE SPHERE BRABANT B.V. , a private company with limited liability, incorporated under the laws of the Netherlands, having its seat in Amsterdam, and its registered office at Singel 250, 1017AB Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under registration number 66863643 (the “ Client ”);

Anaergia B.V. , a private company with limited liability, incorporated under the laws of the Netherlands, having its seat in Oldenzaal, and its registered office at Zwollestraat 2 b, Oldenzaal, NL 7575 EP, the Netherlands, registered with the Dutch Chamber of Commerce under registration number 818914324 (the “ SM&O Contractor ”); and

The Client and the SM&O Contractor are also jointly defined as the “ Parties ” and individually as a “ Party ”.

WHEREAS:

(a)

On even date herewith, Client and Contractor , an affiliate of the SM&O Contractor, entered into a turnkey agreement for the design, construction and delivery of a biogas plant with a nameplate capacity of 24,000,000 Nm³/year or respectively 2,923 Nm³/h, including all machinery, processes and equipment necessary for its complete functionality and full operation (the “ Plant ”) to be built and operated in Pastoor P. Thijssenlaan 41-43 in Sterksel, entered in the land register as municipality of Heeze-Leende, section H number 1193 (in part) (the “ EPC Agreement ”).

(b)

All capitalized terms used but not defined herein have the meanings assigned to such terms in the EPC Agreement.

(c)

The feedstock of Plant will consist of manure, organic solid and liquid waste (“ OSW ”) as described in Annexes 2, 5 and 6 hereto.

(d)

Once construction of the Plant reaches Substantial Completion in accordance with the EPC Agreement, the Client desires for SM&O Contractor to operate, maintain, and service the Plant.

(e)

The SM&O Contractor represents that it has the technical know-how, experience and capacity required to perform the full service and maintenance and operation of the Plant as contemplated by the EPC Agreement and that it has personnel with adequate professional qualifications for the nature and complexity of the services required.

Client desires to engage SM&O Contractor to perform service and maintenance and operation in respect of the Plant, and SM&O Contractor desires to accept such engagement

Now therefore, the Parties have agreed and accepted as follows:

RECITALS AND ANNEXES

1.1

The recitals and annexes constitute an integral and substantive part of this service, maintenance and operation agreement (this “ Agreement ”).

1.2

The annexes are as follows:

	Annex 1	Maintenance Plan (including the technical documentation provided with the Biogas Upgrade Units (as defined in Article 5.1(b))
	Annex 2	Plan of Analyses
	Annex 3	Plant Manual of operation (the “ Manual of Operation ”)
	Annex 4	Form of Performance Guarantee Agreement pursuant to which SM&O Contractor guarantees from the Substantial Completion Date a gross annual production of up to 24,000,000 nm3 of upgraded biogas for a term of twelve years (the “ Performance Guarantee ”).
	Annex 5	Schedule of feedstock arrivals (the “ Logistic Plan ”)
	Annex 6	Table of feedstock deviation quality and quantity (the “ Table of Deviances ”)
	Annex 7	Form of waivers of claims to be provided by sub-contactors prior to the performance of any part of the Service (the “ Form of Waiver ”)
	Annex 8	Form of Insurance Policies (the “ Form of Insurance Policies ”)
	Annex 9	Performance Bond
	Annex 10	Guarantee

For the avoidance of doubt, the Parties agree that Annexes 5 and 6 will be prepared and inserted after definitive feedstock supply agreements are entered into in respect of the Plant. Performance guarantees will be reviewed and finalized after receiving Annexes 5 and 6.

1.3

This Agreement is a binding commitment as of the date executed but the obligations of the parties to perform hereunder shall commence on the Substantial Completion Date. For purposes of clarity, this Agreement may not be terminated prior to the Substantial Completion Date except to the extent provided in Article 13 .

OBJECT OF THE AGREEMENT

2.1

The Client hereby engages the SM&O Contractor to perform all activities relating to the day-to-day operation and management (the “ Operation Service ”) and service and maintenance (both scheduled ordinary maintenance and extraordinary maintenance) (the “ S&M Service ”) of the entire Plant as described in more detail in below in Articles 4 and 5 , respectively, on the terms and subject to the conditions of this Agreement. The Operation Service and the S&M Service are collectively referred to as the “ Service ”.

2.2

The SM&O Contractor hereby accepts the engagement to perform the Service on the terms and subject to the conditions of this Agreement.

2.3

In the performance of the Service, the SM&O Contractor shall operate the Plant in a commercially reasonable manner and shall maintain and preserve the Plant in good working order and condition, in accordance with its design and originally intended purposes.

2.4

In performing the Service, the SM&O Contractor shall follow, and shall cause its subcontractors to follow, the applicable guidelines and instructions contained in the Plant usage manuals, the Manual of Operation and any other applicable manuals or instructions applicable to the Plant.

2.5

SM&O Contractor shall be obliged to comply with, and shall cause all subcontractors to comply with, all laws and regulations relating to the performance of the Service, with special but not exclusive reference to tax, workplace safety and environmental legislation.

2.6

SM&O Contractor shall perform, and shall cause its subcontractors to perform, all Service hereunder in a manner consistent with (a) the original equipment manufacturer recommendations and manuals (such as the Application Guidelines, Operation and Maintenance Manuals and related Service Bulletins available with respect to the Equipment), including operation and maintenance guidelines as recommended by the manufacturer (“ OEM Guidelines ”); and (b) all requirements of insurance defined in Article 11 maintained with respect to the Plant.

2.7

SM&O Contractor warrants that all repairs, replacements, and other Services to be performed by or on behalf of SM&O Contractor in accordance with the terms of this Agreement shall be performed: (i) in a competent manner by qualified personnel using the reasonable skill and care to be expected of a prudent contractor undertaking similar work and in accordance with all applicable training requirements promulgated by the applicable equipment manufacturer; and (ii) in a manner consistent with all other requirements promulgated by the applicable equipment manufacturer that are necessary or desirable to preserve any and all manufacturer’s warranties.

2.8

The Client is responsible for the quality and the quantity of the feedstock, removal of the digestate and rejects, continuous connection to the gas grid and supply of water and electricity. Failure to perform these responsibilities according to the limits set in Annex 6 could result in loss of gas production, delays and damages to the equipment. In such cases the SM&O contractor will do his best to repair and remediate the problem in a timely manner and try to make up for the loss of gas production, however SM&O contractor will not be financially responsible for any of these costs or losses and the Client will be invoiced accordingly.

TECHNICAL DATA

During the term of the Agreement, SM&O Contractor will generate or obtain any data necessary for the performance of the Service, bearing any cost necessary for the determination or receipt of such data.

OPERATION SERVICE

SM&O Contractor agrees to use its best efforts to perform the Operation Service described in more detail below so as to enable the Plant to be operated in a continuous and optimal manner to generate up to 24,000,000 Nm³/year of upgraded biomethane each year starting from the Substantial Completion Date subject to availability of appropriate quantity and quality of substrate as per Annex 6 ,timely removal of the digestate and rejects, continuous connection to the gas grid and supply of water and electricity . Operation activities will be performed by SM&O Contractor within the operating hours given in Table 1. or such other times as may be agreed in writing by SM&O Contractor and Client. For the avoidance of doubt, it is up to the SM&O Contractor to define the operating hours, which are needed to conduct the SM&O services as specified in this contract, within the permitted operating hours given in Table 1. SM&O Contractor will also provide on-call Operation Service during weekends and holidays and otherwise outside of normal working hours.

	Feedstock delivery	Plant Operators / vehicle movement inside reception hall (no truck or front end loader movement outside the buildings)	Service/repairs, vehicle movement outside the buildings*	Service/repairs, vehicle movement inside the buildings*
Mo – Fr	7am – 7pm (12h)	24/7 h/d	7am – 11pm (16h)	24/7 h/d
Sa	7am – 13 am (6h)	24/7 h/d	7am – 11pm (16h)	24/7 h/d
Su	-	24/7 h/d	Only when need	24/7 h/d

Table 1: Permitted operating hours

The components of the Operation Service include:

4.1

Operation and Supervision of the Plant

●

Operation

SM&O Contractor will:

Coordinate feedstock arrivals, registering arrivals, treatment and processing of feedstock. For the avoidance of doubt, the client is responsible for the supply of appropriate quantity and quality of feedstock to site

●

Perform constant monitoring, tuning and maintenance

●

Coordinate loading and shipping of digestate residues. For the avoidance of doubt, the client is responsible for the offtake for all residues and liquids.

●

Execute daily routine analyses for process control in house lab

●

Monitor and record the Plant’s emissions

●

Provide the hardware, software and instrumentation for connecting and using the continuous, high-speed internet connection provided by the Client to meetthe requirements of the S&M Service

●

If the party providing service and maintenance in respect of the Plant is not the SM&O Contractor, allow such party and its personnel to access the Plant’s software, including via telephone connection, and for such purpose install a telephone connection which works with auto select that extends to the control panel of the motor and it is capable of transmitting/sending via fax and of dialling a phone number

●

Operate the equipment, machinery, components and processes of the Plant in accordance with their respective functions and operation manuals to ensure the constant operation of the Plant and achievement of the Guaranteed Operational Level (as defined below)

●

Order and purchase all chemicals, spare and wear parts and other materials necessary for proper and continuous Plant operation and ensure that such chemicals and materials are available on-site at all times in the correct quality and quantity (it being understood and agreed that (i) SM&O Contractor will use its best efforts to obtain such chemicals and other materials at the lowest price available on the market (provided that the quality and quantity of such chemicals and other materials are not compromised and the supply terms are compatible with the Plant operation needs), (ii) Client will reimburse SM&O Contractor for the actual cost of the chemicals and materials purchased for Plant operation and, in this connection, SM&O Contractor will invoice Client on a monthly basis for all chemicals and other materials purchased during the previous month, which shall be payable within 10 business days of receipt and (iii) if Client does not make such reimbursement, then, after written notice is made to Client, Client shall have an additional five (5) business days to make such reimbursement and if in this second period of five (5) business days no reimbursement is made, SM&O Contractor shall be entitled to suspend the Operation Service until full reimbursement is made and the stand-by costs will be payed by the Client.

●

Perform all the daily and routine measures, checks and tests to ensure the continuous operation of the Plant

●

Record the weight and identity of the transporter based on information from the business park weighbridge office of all deliveries of feedstock to the Plant, analyse a spot sample of the content thereof and supply accurate records thereof to Client (it being understood that Client will be responsible for all other aspects of feedstock delivery, supply and billing). If feedstock is not in accordance with Annex 6 , SM&O contractor will inform Client as soon as it aware of such a deviation (immediately if the deviation is determinable by on-site testing, but sometimes only after laboratory results are available) and will request direction on how to proceed.

●

Maintain all records and reports necessary for the proper recording of Plant data and secure it in a safe and proper manner so that it is accessible to Client and third-parties, including Lender

●

Take such other actions as are necessary to ensure at all times the full and optimal operation of the Plant without the management and operation assistance or participation of the Client

●

Process and laboratory activities and advice

A) Activities in the Plant

The SM&O Contractor process engineer shall be present at least monthly for an inspection of the Plant. The condition of (i) the digesters, (ii) the feedstock, (iii) the biogas upgrade system shall be assessed during the inspection. Samples shall be taken from fermenters and the operating temperatures shall be checked. The SM&O Contractor will perform the analyses listed in the Annex 2 – Plan of Analyses.

Routine analyses shall be executed by SM&O Contractor’s personnel to monitor routinely the performance of the plant.

Following inspection and analysis, the results shall be provided to the Client in diagram and table form. The process manager shall also prepare a document indicating any corrective measures necessary for the best operation of the Plant.

B) Laboratory activities

The SM&O Contractor undertakes to provide the following laboratory service on a monthly basis :

(i)

definition and analysis of the operation of the Plant;

(ii)

analysis of the Feedstock entering the Plant provided by the Client;

(iii)

determination of the energy potential for different types of feedstock by means of a “Standard Labscale Methane Production Test” (up to a maximum of 4 tests per year );

(iv)

a quarterly report on how the operation of the Plant can be improved.

C) Assessment of operating data

Each month , the SM&O Contractor, through its process engineer, shall analyze the operating data of the Plant and provide Client a monthly performance report on the same.

The data, which can be obtained from the Plant’s operating software shall consist of:

(i)

the daily quantity of feedstock;

(ii)

a theoretical calculation of daily biogas production;

(iii)

a determination of actual production and composition of biogas;

(iv)

a comparison of the theoretical and real data; and

(v)

a diagram of the Plant management parameters.

●

To the extent not mentioned elsewhere in this Agreement, SM&O Contractor agrees to perform any and all other actions and services required to operate the Plant in accordance with this Agreement.

4.2

Operations Reporting

During the term of the Agreement, the SM&O Contractor shall keep the Client informed of the performance of the Plant, of any qualitative and/or quantitative changes in production, and of any anomalies and unscheduled extraordinary maintenance interventions, by means of a monthly report issued to Client and, at Lender’s request (which may be a standing request), to Lender. SM&O Contractor shall also inform Client if any feedstock values are out of specifications. Operational and analysis data shall be provided in Excel tables with graphs indicating the main parameters and any variations thereof.

The SM&O Contractor shall compile a detailed monthly report of the operation of the Plant, indicating:

●

Feedstock fed in (quantity and quality)

●

average degradation yield

●

biogas produced and its composition

●

upgraded biogas generated

●

any faults and maintenance

The above data shall be regularly monitored and recorded.

S&M SERVICE

SM&O Contractor guarantees that the S&M Service as described below is sufficient to cover the full service and maintenance requirements of the Plant provided that there are no material deviations in the operation of the Plant from the information contained in Annexes 2, 5 and 6 . To the extent that any service and maintenance actions that are necessary or reasonably desirable for the Plant to operate as designed and to preserve the equipment or other components of the Plant in accordance with manufacturer warranties or prudent industry standards are omitted from or not stated clearly in this Agreement, SM&O Contractor hereby undertakes to perform such service and maintenance actions on the terms and subject to the conditions of this Agreement for no extra compensation (provided, again, that there are no material deviations in the operation of the Plant from the information contained in Annexes 2, 5 and 6 ).

In the event that SM&O contractor is not capable of meeting performance guarantees, the SM&O contractor has the right to modify the plant at its own costs to enhance plant operations and ensure that minimum guarantees are met. All such changes shall be treated as Amendments and will need to be pre-approved by the client, such approval shall not be unreasonably withheld. Lacking an amicable agreement between the Parties, the dispute will be submitted to the Ruler for adjudication in accordance with the rules and procedure set forth in Article 32 below.

5.1

The S&M Service shall consist of:

Maintenance of the Plant

●

Ordinary Scheduled Maintenance of the Plant

The SM&O Contractor shall perform, at its expense, the interventions and service and maintenance activities indicated in the Manual of Operation and any manuals of operation or similar documents in respect of any components, equipment or parts of the Plant in accordance with the terms and conditions indicated therein.

In particular, SM&O Contractor undertakes to perform the following activities:

●

Use of equipment consumable materials as indicated in the ordinary maintenance schedule and according to the type recommended by manufacturers.

●

Supply of the necessary replacement and consumable materials for installed equipment according to the ordinary replacement schedule indicated by manufacturers.

●

Functional inspection of equipment and instruments.

●

Routine scheduled inspection and if necessary cleaning and calibration of probes and instruments.

●

Scheduled inspection and verification of current electrical draw.

●

Repair of any Plant wear and tear and replacement of any Plant components or equipment due to wear and tear.

●

Analysis of any faults and identification of methods to solve them.

●

Repair of any faults, stoppages, problems, malfunctions, failure to work, non- performance or any other issues in respect of any equipment, component or process of the Plant.

●

Regular biological tests and laboratory analysis of the feedstock used in the Plant and the digestate generated by it; and

The following are explicitly excluded from the obligations of the SM&O Contractor and therefore are the responsibility of Client:

●

modifications and/or additions to the Plant, unless requested by the SM&O Contractor to enable the plant to meet performance guarantees, in which instances SM&O Contractor will pay for the modification/additions;

●

supply of water and electrical energy necessary for interventions and service and maintenance activities;

●

compilation of tax records.

●

And any other obligation of the client defined in article 8. Of this document.

As part of its regular S&M Service, the SM&O Contractor shall every 5 years perform, at its expense, an inspection and maintenance of the inner coating of each digester of the Plant (the “ Digester Inner Coating Maintenance ”). During Digester Inner Coating Maintenance, each digester will be stopped for 20 days during which the biogas production of the individual digester will be stopped completely and the Plant biogas production will be reduced to 75%.

On conclusion of each ordinary scheduled maintenance activity, SM&O Contractor shall describe the activity performed in the “ General Maintenance Schedule for the Plant”.

For the correct operation of electromechanical equipment, electric motors and motor reducers, the SM&O Contractor shall notify Client of and perform any intervention or service and maintenance activity it deems advisable and/or necessary (even if not strictly indicated in the Manual of Operation or any other manuals of operation or similar documents in respect of the Plant) in order to extend the durability and prolong the lifespan of the equipment.

●

Ordinary Scheduled Maintenance of the biogas upgrade system (BUS) and related equipment (the “ BUS Units ”)

SM&O Contractor undertakes to perform, at its expense, all scheduled ordinary maintenance of the BUS unit as indicated in the Maintenance Plan (i.e., Annex 1 ) and as required by OEM Guidelines, including, without limitation, non-routine but scheduled maintenance actions .

In addition, SM&O Contractor undertakes to provide the following materials:

●

materials in accordance with the ordinary maintenance schedule of the manufacturer;

●

Wear parts;

●

materials in accordance with the schedule and of the type suggested by the manufacturer;

●

Equipment used by personnel for the performance of ordinary maintenance activities;

●

Lubricants, oils and other liquid materials required or useful for the performance of the Plant

●

Laboratory tests of lubricants;

●

Purchase (at its own expense) and supply of all chemical reagents and materials necessary for S&M Service and ensuring a sufficient stock thereof (it being understood that the expenses for the chemical reagents necessary for the Operation Service will be reimbursed to SM&O Contractor by Client, as provided for in Article 4.1(a) );

The following are explicitly excluded from the obligations of the SM&O Contractor and therefore are the responsibility of Client:

modifications and/or additions to the BUS requested by the Client (including Membrane replacement for optimization purposes unless membranes needs to be replaced due to defects) unless requested by the SM&O Contractor to enable the plant to meet performance guarantees, in which instances SM&O Contractor will pay for the modification/additions;

●

Unscheduled extraordinary maintenance

The SM&O Contractor undertakes to perform at its expense (except as expressly stated below) any and all unscheduled extraordinary service and maintenance (i.e. accidental damage, damage caused by third parties and/or by Client) as quickly as practicable. Prior to or at the same time of the performance of such extraordinary service and maintenance, SM&O Contractor will send written notification thereof to Client specifying the expected scope of work. If the required extraordinary service and maintenance is not reasonably foreseeable and not caused by SM&O Contractor or others under its control (“ Unforeseeable Maintenance Work ”), SM&O Contractor shall be entitled to request additional compensation. If SM&O Contractor believes that extraordinary service or maintenance constitutes Unforeseeable Maintenance Work, SM&O Contractor shall send to Client, together with the written notification provided for above, a quote for the additional compensation. If Client disputes: (A) SM&O Contractor’s contention that the extraordinary service and maintenance required constitutes Unforeseeable Maintenance Work, and/or (B) the amount of the quote provided by SM&O Contractor, it shall inform SM&O Contractor in writing and, lacking an amicable agreement between the Parties, the dispute will be submitted to the Ruler for adjudication in accordance with the rules and procedure set forth in Article 30 below. Notwithstanding any entitlement to request additional compensation above, SM&O Contractor shall first invoice against the relevant Insurance. Only if not covered by an Insurance, costs will be invoiced to Client. Under no circumstance will SM&O Contractor wait to perform the required extraordinary service and maintenance work until adjudicated by the Rule. Instead such extraordinary service and maintenance work shall be performed as soon as possible and any claims for additional compensation shall be decided in parallel or afterward. In case the required extraordinary service and maintenance work will exceed fifty-thousand (50.000€) Euros, the SM&O Contractor will notify the Client immediately in which case the Client shall provide all necessary finance to complete the worksuntil liability is established by Ruler.

5.2

S&M Reporting

During the term of the Agreement, SM&O Contractor shall issue monthly reports to Client (and, at Lender’s request (which may be a standing request), to Lender) detailing any and all S&M Service activities performed by SM&O Contractor and the underlying issues, faults or problems requiring S&M Service in such period.

Personnel of the SM&O Contractor

The SM&O Contractor undertakes to assign specialised staff with the requisite experience and skill-set), to perform the Service, including personnel satisfying the requirements necessary or desirable to preserve any and all manufacturer’s warranties, taking responsibility for all relevant expenses (such as, for example, transportation, travel, food and accommodation, etc.). SM&O Contractor’s staff shall be equipped with the necessary operating, service and maintenance resources for the provision of the Service. SM&O Contractor’s staff will be present on the Project site and monitor the Plant on a daily basis within the permitted operating hours given in Table 1 and for so long as is necessary to fulfil all obligations of the SM&O Contractor under this Agreement whether during or outside of normal working hours, including weekends and holidays. SM&O Contractor agrees that it shall not be entitled to any extra compensation for any time spent at the Plant by its staff outside of normal working hours or on weekends or holidays.

Professional Positions:

●

Laboratory technician defines the analytical procedures and methods applied in the laboratory to perform the analytical tests and executes them. He is also responsible for the study and selection of the optimal conditions for plant performance and assistance in the resolution of any operating anomalies, for official on-site sampling and analysis procedures carried out by external agreed laboratories. The Laboratory technician shall verify process operating data, prepare monthly reports on the performance of the Plant. Presence: daily on site.

●

Site manager is responsible for coordination and execution of all aspects of the Service, assigning tasks and giving instructions to the SM&O Contractor’s operating and support staff. He verifies plans for scheduled and unscheduled maintenance operations on the facilities and oversees them with the help of the personnel available on site. He is also responsible for monitoring and optimization of electricity consumption in the operation of the Plant. Presence: daily on site.

●

Plant Engineer is responsible for the management and performance of all engineering aspects of the Service.

●

Operation personnel A team will perform all aspects of the Service under the coordination and instruction of the Site Manager. Presence: daily on site.

On-call service

The SM&O Contractor shall provide a 24 x 7 telephone service with direct and immediate access to a person with relevant expertise in order to take necessary actions and/or in the event of urgent operational, service and maintenance requirements. The SM&O Contractor undertakes to perform Service, whenever necessary, within 24 hours, day or night including holidays and weekends, from communication in respect of the Plant. The SM&O Contractor shall provide a telephone number at which it shall be available on a 24-hour basis, seven days a week, 365 days a year. To enable the SM&O Contractor’s online support, the Client will in accordance with Article 8 b below maintain or procure the maintenance of a 24/7, continuous high-speed internet connection, enabling the SM&O Contractor to log on to the online control system of the Plant and perform required interventions and Service. SM&O Contractor shall provide in writing the exact type of high-speed internet connection required for the purpose of this Agreement separately to Client.

OBLIGATIONS OF CLIENT

Without prejudice to any other provision of this Agreement, Client undertakes, at its own expense, to perform or cause one or more third parties to perform the following activities:

(a)

to supply the Plant at its own expense with quality and quantity of feedstock in accordance with Annexes 2, 5 and 6 and according to table 2 below . The SM&O contractor will organize for the deliveries directly with the feedstock providers however the Client needs to specify the conditions of Annex 5 to the Feedstock providers

(b)

to inform SM&O contractor in advance of introducing any new Feedstock or appointing any Feedstock supplier to enable Contractor to carry out some testing.

(c)

To register feedstock arrivals and weigh each truck in/out at the central weighing bridge of the business park

(d)

to perform unloading of the feedstock at the dedicated permitted positions of the plant (under the direction and supervision of the Contractor’s personnel)

(e)

to provide and maintain a continuous, high-speed internet connection that meets all reasonable requirements of the SM&O Contractor;

(f)

to dispose of digestate and unsuitable feedstock in accordance with applicable specifications and according to the needs of the plant to ensure continuous operations

(g)

to carry out an inspection of the Plant on a monthly basis without interrupting the operation of the plant, using its own personnel or through a third party other than SM&O Contractor;

(h)

maintain all permits needed for the proper running of the plant;

(i)

refrain from any modification and/or direct and/or third party service and maintenance that is not provided for in the Agreement;

(j)

make available, free of charge and for the entire term of this Agreement, the Plant where the personnel of SM&O Contractor may store the materials and tools necessary for the performance of the Service as established in this Agreement;

(k)

ensure that SM&O Contractor has direct access to the registers/meters/accounting books that indicate the amount of upgraded biomethane produced and consumed by the Plant each month;

(l)

bear the cost of chemicals and materials to be used in the Operation Service, including, but not limited to water and electricity for Plant operation; and

(m)

ensure that the Plant is supplied with electrical power and is connected to the water mains (water supply and sewer).

(n)

Site security

(o)

Take full responsibility for disposal of digestate, unsuitable feedstock, wastewater from the operation of the plant.

OBLIGATIONS OF SM&O CONTRACTOR

9.1

Without prejudice to other provisions of this Agreement, SM&O Contractor generally undertakes to fulfil all the obligations that it has assumed under this Agreement in compliance with Client’s permits and the provisions of law, including without limitation environmental legislation.

In particular, SM&O Contractor undertakes to perform the following activities insofar as is reasonably practicable:

(a)

to assist Client in its relations with the competent authorities, both public or private (including the off-taker and, if different, the utility providing power to the plant), providing technical information on the Plant and on the Service from time to time;

(b)

to provide all the personnel necessary for the performance of the Service and the fulfilment of the obligations under this Agreement. Each member of SM&O Contractor’s staff and of any subcontractors (including specialised and qualified technicians) shall have appropriate experience in the performance of their duties and activities;

(c)

to use equipment and parts that complies with all applicable standards and technical rules.

(d)

use lubricating oil exclusively according to the machinery supplier’s instructions;

(e)

Provide equipment for the utilization of internet and telecommunication on site. Client is responsible to provide and shall allow the connection;provide and pay for the equipment to be used to create the Plant’s internet connection; bear the cost of chemicals and materials to be used in the S&M Service, which, for the avoidance of doubt, to the extend specified in this contract will be passed through to the client on a monthly basis as defined in article 4; and

(f)

prior to the performance by any sub-contractor of any part of the Service, provide Client with waivers of claims against or in respect of the Plant or Client.

9.2

Operations and Maintenance Performance Bond/Guarantee

As security for the fulfilment of the SM&O’s Contractor’s obligations regarding the realization of the Service and any payment by the SM&O Contractor of any amount due to the Client pursuant to this Agreement the SM&O Contractor will provide the Client after Substantial Completion with a Guarantee and an Operations & Maintenance Performance Bond which can be called on demand by the Client, for an amount equal to EUR 1,575,578 (one million five hundred seventy five thousand five hundred and seventee-eight Euros)] valid for one year and extended, renewed or replaced, so that to remain in place for a period of 12 (twelve) years, issued by a surety in the format as attached to this Agreement as Annex 9 and Annex 10 . The performance bondshall be governed by Netherlands law and are only to secure the performance of SM&O Contractor’s obligations as it relates to this Agreement.

If the Client plans to invoke the security, he shall first notify the SM&O Contractor by registered letter with details of the Contractor default. Contractor shall have thirty (30) days from the receipt of such notice to cure applicable defaults detailed in the Client’s notice. Should the thirty (30) day cure period expire and such default(s) continues uncured, the Client shall be entitled to invoke the security, unless the Arbitration Board for the Building Industry ( Raad van Arbitrage voor de Bouw ) rules otherwise in a dispute to be filed by the SM&O Contractor within 14 days of dispatch of the notification referred to in this paragraph.

The Operations & Maintenance performance bondshall remain valid until the actual date of the end of the O&M Contract, on the understanding that, in the event of minor defects, the security can be reduced in value to reflect the cost of fixing the defects and shall remain valid until the SM&O Contractor has corrected the defects. The Client will not unreasonably withhold acceptance of the works. If the Client is of the reasonable opinion that defects are to be corrected, the security shall remain valid until the Contractor has met his obligations.

In the case that the SM&O Contractor contests the notice as referred to in article 9,1, the term for curing the noticed default by the SM&O Contractor is suspended pending a decision by the arbitration board for the Building Industry.

10.

CLIENT MANAGER

Client shall appoint a manager to liaise with SM&O Contractor. Such manager shall act as the interface with SM&O Contractor and shall sign for technical acceptance the invoices sent by SM&O Contractor to Client. Client Manager shall not interfer with the operation of the plant or the SM&O Contractor’s subcontractors By either communicating directly with the employees or given instruction to the operator. Client should only communicate through person of charge of the operation of the plant at that time.

11.

INSURANCE COVERAGE

11.1

Principal will maintain ‘machinery breakdown’ insurance and a ‘machinery breakdown business interruption’ insurance policy covering all the following risks and damages and will present the Client with valid insurance policies and/or certificates.

11.2

‘Machinery breakdown’ insurance is insurance covering:

●

all Risk coverage including, but not limited to:

(i)

machinery breakdown;

(ii)

unforeseen natural hazards (including, but not limited to fire, hail, windstorm, weight of snow and ice, inundation, flood, landslide and earthquake perils) burglary/robbery/vandalism/riot mass commotion (civil unrest and looting);

(iii)

operating error, unskillfulness, construction-, material errors, short- circuit fault, over-current, over-voltage, failure of measuring and control devices, security devices; water-, oil- or lubricant-shortage;

(iv)

breakage by centrifugal force;

(v)

high-/low-pressure;

(vi)

storm, ice, freeze.

●

The insurance protection will be applied to all the machinery/equipment/ electronics/ movable property situated at the Plant.

●

The protection will cover also the debris removal and clean-up costs in a min. amount of EUR 600,000 and the extra costs of a minimum limit of EUR 300,000 .

●

The deductible will not exceed EUR USD 10,000.

11.3

‘Machinery breakdown business interruption’ is defined as:

●

Business interruption losses defined as a loss of revenue caused by an event insured under the Machinery breakdown insurance coverage.

●

The guarantee period should amount to 6 months for machinery breakdown claims and 12 months for unforeseen natural hazards (including, but not limited to fire, hail, windstorm, weight of snow and ice, inundation, flood, landslide and earthquake perils)

●

The coverage should be applicable also to utility business interruption, contingency business interruption and denial of access with a minimum guarantee period of 6 months.

●

The deductible will not exceed 7 days.

12.

PERSONNEL SAFETY AND HYGIENE

12.1

The personnel of SM&O Contractor shall observe the hygiene standards required for the Plant. In this respect, SM&O Contractor shall provide its personnel with the necessary material, such as gloves, shields, etc.

12.2

SM&O Contractor shall comply with all safety standards established by applicable safety regulations, taking responsibility for personnel training.

12.3

SM&O Contractor shall be responsible for the maintenance and restoration after use of safety devices such as fire extinguishers, lifebuoys, masks, first aid kits, etc. required at the Plant.

12.4

SM&O Contractor undertakes to obtain all authorizations, permits, registrations and licenses not under Client’s responsibility, required by applicable law and regulations that are necessary to fulfil its obligations pursuant to this Agreement prior to commencing the Service. In addition, SM&O Contractor undertakes:

●

to comply with, and to cause any subcontractors to comply with legislation on social insurance and tax obligations, whether contributory, remunerative, welfare, social security or concerning safety

●

to pay, and to cause any subcontractors to pay its employees regularly and pay the statutory contributions and charges, as well as any amounts due by law in relation to employment, welfare, social security and the use of labor force

●

to pay, and to cause any subcontractors to pay contributions due pursuant to law to every competent entity in relation to employment, welfare, social security and the use of labour force,

●

SM&O Contractor is furthermore obliged to provide Client with a copy of the lists of its personnel and of any subcontractors personnel, who operate on the site, indicating their status pursuant to social security, welfare, insurance and accident prevention legislation, immediately notifying Client in writing of any up-date or change of status.

●

In the event that SM&O Contractor fails to fulfil the obligations indicated in this Article 10 or fails to provide proof of the fulfilment of such obligations on the part of any subcontractors, it shall hold Client harmless from any consequences. In particular, SM&O Contractor undertakes to hold Client harmless from any claim whatsoever, right or action made by anyone in relation to the remunerative, social security, insurance and tax status of its employees and/or associates, and those of any subcontractors and providers of services. SM&O Contractor shall be solely responsible for any damage limited by the provisions of Article 11 of this Agreement caused to Client by any failure on the part of its own personnel to comply with safety regulations, provided that such damage is not attributable to facts and/or conduct directly attributable to Client.

●

Client, SM&O Contractor and its subcontractors agree to a non-poaching policy for a period of 3 years

13.

TERM OF THE AGREEMENT AND TERMINATION

13.1

The Agreement is a binding commitment as of the date executed but the obligations of the parties to perform hereunder shall commence on the Substantial Completion Date. The term shall continue until the date that is 12 years after the Substantial Completion Date subject to the following:

(i)

The provision of the Operation Service will terminate 12 years from the Substantial Completion Date if not renewed in writing signed by both Parties for successive periods of one year; and

(ii)

The provision of the SM&O Service will terminate 12 years from the Substantial Completion Date if not renewed in writing signed by both Parties for successive periods of one year.

The provision of the Operation Service or the S&M Service may be terminated as follows:

13.2

Client may terminate the provision of the Operation Service or the S&M Service upon 14 days’ notice in any of the following cases:

(i)

the insolvency, bankruptcy, petition for a suspension of payments, or commencement of voluntary/involuntary liquidation proceedings in respect of SM&O Contractor;

(ii)

failure on the part of the SM&O Contractor to obtain or maintain any required insurance coverage;

(iii)

a material breach by the SM&O Contractor in the performance of the Service under this Agreement that is not cured within 60 days of written notice of such material breach; and/or

(iv)

failure to comply with performance guarantees that causes the loses to the client higher than annual compensation limit as defined in Annex 4 (Performance Guarantee Agreement) of this Agreement in any year of operation

13.3

SM&O Contractor may terminate the provision of the Operation Service or the S&M Service upon 14 days’ notice in any of the following cases:

(i)

non-payment by the Client of three consecutive instalments of the applicable monthly fee by the established deadline; and/or

(ii)

the insolvency, bankruptcy or commencement of voluntary/involuntary liquidation proceedings in respect of Client.

13.4

In the event of a termination of the Operation Service pursuant to Article 13.2 , Client will be able to work directly with SM&O operating sub-contractor.

13.5

if possible, SM&O Contractor agrees to train at its own expense Client’s personnel (who shall have appropriate technical qualifications for a Plant of this nature) in the operation and management of the Plant and if possible, for a price, perform first interventions and service and maintenance activities in the event of failure or malfunction. Such training shall last up to three months.

14.

PLANT PERFORMANCE, EXPENSES AND OPERATION SERVICE COMPENSATION

14.1

SM&O Contractor will use its best efforts to perform the Operation Service so as to enable the Plant to be operated in a continuous and optimal manner as defined in the Performance Guarantee Agreement of this contract each year starting from the Power Substantial Completion Date.

14.2

In the event that SM&O Contractor does not render the Operation Service as set forth in this Agreement, after written notification and refusal of SM&O Contractor to fix the problem within 7 days, Client shall be entitled to deduct from the Operating Fee any reasonable amount it spends or is out of pocket to remedy such omission. These amounts need to be reasonable and justified with invoices. For the avoidance of doubt, Client will not terminate SM&O Contractor for a non-material breach of this Agreement.

15.

COMPENSATION

15.1

The parties hereto agree that the compensation in respect of the Operation, S&M Services and Insurance set as follows:

Operation and S&M Services:

Fix Monthly fee:

Net Price: EUR 1,575,578 /year exclusive of VAT

Payed monthly at EUR 131,298 /month exclusive of VAT.

Excluding Pass Through Costs.

Pass Through Costs:

Estimated at EUR 1,166,303 /year exclusive of VAT.

Payed monthly according at EUR 97,192 /month exclusive of VAT.

Total Net S&M and Operation Compensation: EUR 2,741,880 / year exclusive of VAT

15.2

The Client is required to pay the total net price referred to in Article 15.1 within five working day after receving the payment from SDE of the month following that in which the Services were performed, but no later than 30 days from the Invoicing date, independently if SDE is received or not, whichever comes first.

15.3

In the event that SM&O Contractor does not render the SM&O Service as set forth in this Agreement, after written notification and refusal of SM&O Contractor to fix the problem within 7 days, Client shall be entitled to deduct from the Operating Fee any reasonable amount it spends or is out of pocket to remedy such omission. These amounts need to be reasonable and justified with invoices. For the avoidance of doubt, Client will not terminate SM&O Contractor for a non-material breach of this Agreement.

15.4

The pricing set out in this contract is based on the laws governing this type of facility and operation in the Netherlands as at the date of signing of this Agreement. In the case of any subsequent change in law that impacts the cost of operating the Plant, the SM&O Contractor has the right to request and receive an increase in the Compensation for such additional costs without mark-up.

15.5

If the Client disputes an invoice or a part thereof:

(a)

it shall pay the undisputed part on the due date;

(b)

it shall pay all invoices and/or disputed amounts which are held in a judicial decision or an arbitral award to be due, no later than ten (10) Business Days after receipt of the decision or award. For the avoidance of doubt, Interest shall be due from the date set out in Clause 15.7.

15.6

Interest

In the event of late payment of due invoices or parts thereof (including in the event that the invoice has been disputed but the disputed amount is found to have been effectively due), Interest shall automatically and without need for a formal demand for payments ( ingebrekestelling ) be due as from the due date set forth in Clause 15.2.

15.7

Taxes

All fees and amounts due under or in relation to this Agreement are expressed exclusive of value added tax or any other applicable sales taxes, VAT, duties or levies which shall be added to the relevant invoices at the time of the invoice.

All taxes related to the Site and/or the Plant and their operations, including property taxes, shall, as between the Parties, be the responsibility of the Client and the Client shall reimburse the Operator therefor if and to the extent that the Operator is required to pay the same.

16.

INDEXATION OF COSTS

16.1

Unless otherwise specified in this Agreement, the fixed fee shall automatically and without formal demand or notice, be indexed annually up to a maximum of 1.5% starting from the second year of operation according to numbers published by Centraal Bureau voor de Statistiek (“CBS”), SBI 2008, 24-30,33 Metalektro, binnenlandse afzet;

16.2

For the avoidance of doubt, indexation shall never result in a reduction of any fee.

17.

RIGHTS FOR RECOVERY OF PENALTIES AND INCENTIVES

17.1

As stipulated in the Performance Guarantee Document, the SM&O contractor will be penalized in case of not achieving its Performance Guarantees with regard to Biomethane production and Consumables/utilities consumption (In the following paragraph, Consumables and Utilities have the same meaning and are referred to as Consumables in general). This risk will be mitigated by allowing the SM&O Contractor to be compensated for excess biomethane produced or consumables/utilities consumed in the following years. Recovery of Penalties will be calculated annually as follows:

Biomethane Production:

(Volume of biomethane produced per year-– X Nm3/year) x 0,72 €/Nm³

With X = biomethane potential of feedstock fed during this year.

Consumables Consumption:

(Consumption of Consumables – X t/year) x average market price of Consumable in same year.

With X = Contractually guaranteed consumption of respective Consumable.

The value of recovery payments is limited to the amount of penalties the Contractor has payed in previous years.

17.2

Performance Incentive:

The SM&O Contractor will only be entitled to receive Performance Incentive payments in case the Plant is either:

Producing more than the target Biomethane Production of 24,000,000 Nm³/year; or

Consume less Consumables/Utilities than guaranteed

For the avoidance of doubt, this mechanism shall only apply in the event that the SM&O Contractor has either none, or has recovered all cumulative Performance Compensation across the term of the Agreement. In this instance, the following calculation shall apply:Biomethane Production:

(Volume of biomethane produced per year—24,000,000 Nm3/year) x additional profit from excess Biomethane sales [€/Nm³]* x 50%

Consumables Consumption:

(Consumption of Consumables – X t/year) x average market price of Consumable in same year x 50%

With X = Contractually guaranteed consumption of respective Consumable.

18.

RIGHTS OF SM&O CONTRACTOR

It is understood that the performance of the Service by SM&O Contractor is necessarily conditional on the exercise of the following rights:

●

the right of access and control at any time to the area in which Plant, its associated facilities and the premises where the components are located

●

the right to verify the status of the Plant and to perform maintenance or other operations or necessary activities

●

the right to have a key or equivalent means of access to the Plant and the surrounding area, with authorization to use the access means for regular maintenance of the biogas plant and connected plants, in particular in the event of a fault or emergencies

●

the right to perform ordinary scheduled maintenance or repairs during normal working hours from Monday to Friday between 7:00 am and 7:00 pm and outside of the aforementioned working hours and days in the event of an emergency or other necessity

●

the right to replace or supplement the maintenance plans or other equivalent documents with a different maintenance schedule in the event of replacement of parts or components for technical reasons.

●

The right to review the feedstock agreements’ quality and quantity contractual clauses to ensure that they will be suitable for the supply and smooth operation of the plant

●

The right to analyze the proposed feedstock sources to ensure that they will be suitable for the operation of the plant

●

The right to modify the plant at its own cost if the plant is not meeting performance guaranties. Any modification is to be submitted to the Client for approval which should not be unreasonably withheld by the Client. It is understood that the SM&O Contractor will bear the capital and operational cost of any such modification

19.

REPRESENTATIONS OF CLIENT

Client acknowledges that it has been informed of the fact that during the performance of the Service it may be necessary to shutdown the Plant (including the shutdown of the BUS with a consequent interruption in biomethane production). Client holds SM&O Contractor harmless from any liability for loss or damage arising from a required shutdown of the Plant during the performance of the Service, provided that the duration of such shutdown is minimized. In the event that Client is obliged to modify or replace the equipment and/or technology that forms part of the Plant, resulting in changes to the maintenance plan and/or changes in the use of spare parts or consumables, Client undertakes to agree any such changes with SM&O Contractor and SM&O Contractor reserves the right to modify the conditions of this Agreement if such changes cause SM&O Contractor to incur additional expenses. Client, its associates and all its personnel who have access to the zone where work is performed shall comply with SM&O Contractor instructions during the performance of ordinary scheduled maintenance works (e.g. prohibition of entry, workplace safety measures, extra protective equipment) without any right to compensation for any damages.

20.

SUBCONTRACTING

21.

Notwithstanding anything else herein to the contrary, Client hereby authorizes SM&O Contractor to subcontract the SM&O Service or part of the SM&O Service to one or more Subcontractors, in each case, subject to the advance, written approval of Client with such approval not to be withheld or delayed unreasonably. The technical management of the Plant, analytical operations, and the supervision of the Plant shall not be subcontracted without prior approval by the Client. Subcontractors shall be selected from companies with proven experience in the sector.

22.

NON SOLICITATION

During the Term and, for two year after expiry or early termination of this Agreement, the Client and their respective Affiliates shall not, without the prior written consent of the SM&O Contractor and/or the Operator, directly or indirectly, solicit, hire or attempt to hire or persuade any employee, independent contractor, subcontractor or agent performing Services or otherwise employed by the Operator or any of its Affiliates to terminate its relationship with the Operator or any of its Affiliates.

23.

ENVIRONMENTAL MATTERS

The SM&O Contactor, the Operator and the Client shall jointly establish an environmental baseline report regarding the Plant and its site ( Baseline Report ). The Baseline Report shall describe the situation at the Operational Period Commencement Date. The costs in connection with the Baseline Report shall be shared equally between the Parties. Client authorizes and participates in the establishment of such Baseline Report.

The SM&O Contactor and its subcontractors shall have no liability for all pre-existing environmental pollution on or under the site of the Plant. Pre-existing environmental pollution includes the pollution identified in the Baseline Report and any pollution which is proven to date from before the start of the Operational Period.

The Client shall be liable for all pollution arising at, under or from the Plant or the Site which is not proven to be caused by the SM&O Contactor and its subcontractors negligent act or omission or breach of the Law and/or this Agreement.

The Client shall indemnify SM&O Contactor and its subcontractors for any loss, damage or expense (including reasonable defense costs) that the Operator may suffer as a result of any actual or potential claim for environmental pollution or breach of environmental Law, Consents or third party consents relating to the Plant or the Site and in particular any such matter of which the origin did not occur while the Agreement was in effect.

The SM&O Contactor and its subcontractors shall operate the Plant in accordance with any applicable environmental Laws. Subject to any applicable exclusions as to the scope of the Services, SM&O Contactor and its subcontractors shall remove any materials, debris, wastage, discharge or rubbish arising from the performance of the Services at its own cost to an approved dumping ground and in accordance with applicable Laws.

Notwithstanding anything to the contrary in this Agreement, the SM&O Contactor and its subcontractors shall only be responsible for environmental pollution and/or liability if and to the extent that the same results from negligence or breach of the Law.

The SM&O Contactor and its subcontractors shall indemnify the Client for any loss, damage or expense (including reasonable defence costs) that the Client may suffer as a result of any environmental pollution or breach of environmental Law, Consent (to the extent communicated to the Operator) relating to the Plant or the Site to the extent caused by the Operator’s negligent act or omission or breach of the Law and/or this Agreement.

24.

WARRANTY

With respect to the SM&O Service, SM&O Contractor warrants that the parts, materials and/or components used in the repair or replacement of any portion of the Plant shall be of good quality, new, and free of any defect whatsoev er in material or workmanship, and that, without limiting SM&O Contractor’s other obligations hereunder, SM&O Contractor will repair at SM&O Contractor’s expense any damage, defect and/or fault in material or workmanship for a period of two (2) years after such work is performed. SM&O Contractor further covenants that it will use original parts, materials and/or components consistent with OEM Guidelines so long as such parts, materials and/or components are available on the market.

25.

SEVERABILITY OF PROVISIONS - REPRESENTATIONS

25.1

In the event that one of the terms or conditions of this Agreement is deemed invalid or in any case not executable, such circumstance shall not entail the invalidity of the remaining terms and conditions of the Agreement, which shall continue to be fully valid and effective.

25.2

This Agreement constitutes the entire agreement of the Parties with respect to subjects regulated herein and supersedes and replaces any prior made arrangements or understandings (whether verbal or written) in this respect. The Parties warrant that they have actually discussed, negotiated and agreed each individual and specific clause of this Agreement.

26.

AMENDMENTS

26.1

Any derogation of or amendment to the Agreement shall be valid and effective only if set forth in a written document duly signed by the Parties .

26.2

If, after the date of this Agreement, there shall be enacted or brought into force a change in, or addition to, any applicable law, legislation (including any climate-change measures) or any other statutory measure this shall require an amendment to this AgreementThe SM&O Contractor shall be entitled to an appropriate adjustment of the compensation as part of this amendment and, as applicable, the implementation of such an amendment shall constitute an Excluded Event for the purposes Annex 4 of this Agreement.

26.3

If any amendment requested by the Client exceed the level of work or force the SM&O to incur new and non budgeted expendutures, these costs will be charged back to the Client at cost + 15% mark-up.

27.

AMENDMENTS TO THIS AGREEMENT BY THE LENDER

The Parties acknowledge and accept that the Lender may request or demand that certain terms of this Agreement be revised or new terms be added and each Party hereby declares its willingness to negotiate in good faith any such amendments insofar as the requests of the Lender are reasonable.

28.

NOTIFICATION AND PROCESSING OF DATA

All communications and the other notifications under the Agreement shall be formulated in writing and shall be deemed duly notified if delivered personally, including by courier, or if sent by registered letter with return receipt, or if transmitted by fax to the Parties at the following addresses:

[ ]

29.

FORCE MAJEURE EVENT

29.1

The following events constitute force majeure (each a “ Force Majeure Event “) so long as such events are not reasonably foreseeable and are beyond the control of the affected party: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the European Union or the government of the Netherlands or its departments, agencies, political subdivisions or officials, or any civil or military authority; insurrections; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; tornadoes; storms; droughts; floods; arrests; restraint of government and people; explosions; breakage, malfunction or accident to facilities, machinery not comprising the Plant, transmission pipes or canals; partial or entire failure of utilities; shortages of labor, materials, supplies or transportation.

29.2

In the event that for any period of time after the Substantial Completion Date, the Plant is completely inoperable due to the occurrence of a Force Majeure Event, SM&O Contractor shall immediately notify Client of such Force Majeure Event in reasonable detail. SM&O Contractor’s obligations under this Agreement shall be suspended from the date of such Force Majeure Event until it is no longer in existence; provided that SM&O Contractor complies with the obligations set forth in Article 24.4 ; provided, further, that the SM&O Contractor shall at all times use all reasonable efforts to ensure that the Plant commences partial operation, as well as full operation, as soon as possible after the Force Majeure Event occurs. SM&O Contractor shall provide Client with notice to Lender with periodic updates, at such intervals as Client may request, but in no event less frequently than monthly, on the status of the Force Majeure Event and the steps that SM&O Contractor is taking to restore the Plant to full operation.

29.3

Notwithstanding anything else to the foregoing, the following shall not be deemed Force Majeure Events:

(i)

the absence of materials, manpower or service, unless such absences are attributable to an event of force majeure

(ii)

site closures imposed by the competent authorities as a result of failure on the part of the SM&O Contractor to comply with applicable legislation and regulations in as far as compliance is the SM&O Contractor responsibility under this agreement.

(iii)

strikes limited to the establishments and employees of the SM&O Contractor and Subcontractors, including the states of agitation, and participation by employees of the SM&O Contractor and Subcontractors in strikes of any kind that are not of a national and sectoral nature. This is not applicable in the case of a wider strike that do not only affect SM&O Contractor and its subcontractors but workers in the region at wide.

29.4

The Party affected by an event of Force Majeure shall not be deemed to have defaulted only if:

(i)

it informs the other Party of the Event of Force Majeure within 24 (twenty four) hours of the occurrence of the Event, providing an adequate explanation of the Event of Force Majeure and its foreseeable duration

(ii)

it has in full effect and force an insurance policy covering up to EUR 22,500,000 of the damage, loss and/or claims caused by or related to such Event of Force Majeure, it makes all relevant communications to the respective insurance companies in a proper and timely manner and uses its best efforts to obtain and transfer the proceeds of such policy to Client after a claim is duly made therefor

(iii)

it has done all in its power to prevent or mitigate the Event of Force Majeure that is an obstacle to its fulfilment.

29.5

Force Majeure Events which only partly prevent the fulfilment of the contractual obligation of one Party shall not release the said Party from making every reasonable effort to fulfil its obligations for any element of the plant not hindered by the said Force Majeure Event. In such instance the obligations of each party will then need to be revised and agreed.

29.6

In the event of a Force Majeure, the Contractor will suspend its normal operation but make every reasonable effort to sustain a basic level of maintenance of the plant to try to keep it alive and easier to restart once possible to restart. The cost of this shall be first charged to the insurance but if not successful to the Client.

29.7

In the event that the Event persists for more than 360 (three hundred and sixty) days, each Party shall have the right to withdraw from the Agreement. In such an event, SM&O Contractor shall only be entitled to receive the part of the consideration due for the part of Service performed up to the date of exercise of the withdrawal.

30.

ASSIGNMENT OF RIGHTS

Except to or at the direction of the Lender, to or at the direction of any party purchasing or benefiting from the investment tax credit applicable to the Plant or any party purchasing the Plant and as set forth in this Article 30 , this Agreement may be assigned only with the prior written consent of the other Party, which consent shall not be unreasonably withheld. The Client may collaterally assign and/or pledge this Agreement and any rights or obligations thereunder to any finance provider or any trustee or agent of any financer as collateral security; the SM&O Contractor shall execute and deliver to such financer any consents and/or other documents and/or any changes to this Agreement reasonably requested by such financer. Any additional costs resulting from any such action will result in a reasonable change of contract price and could cause a project delay and may require an extension to the liquidated damages schedule.

Notwithstanding the foregoing, Client may, without prior consent, assign its rights hereunder to a lender and/or trustee acting on behalf of a lender, or any financing entity, which acquires a security interest in Client or the Plant (collectively, the “ Security Lenders ”) in connection with any financing involving the Plant. In the event of an assignment of Client’s rights hereunder to any Security Lenders, SM&O Contractor shall take such further actions and execute such documents as are reasonably requested by such Security Lenders to effectuate such assignment including, without limitation, a consent agreement containing customary terms and conditions. Such customary terms and conditions shall include, but not be limited to, provisions related to extended notice and cure periods to be provided to the Security Lenders, and other terms and accommodations to Security Lenders as are customary for non-recourse project financings. Solely with respect to any Security Lender which acquires a security interest in Client or this Agreement, and provided SM&O Contractor has received written notice from Client of such interest and request, SM&O Contractor shall give written notice to such Security Lender of any default or event of default by Client under this Agreement.

In case of change of ownership of SM&O Contractor, SM&O Contractor has to be able to re-assign its rights.

31.

CONDITION PRECEDENT (“ Opschortende Voorwaarde ”)

This Agreement is subject to the satisfaction on or prior to the end of eighteen (18) months after the date of this Agreement (“ Long Stop Date ”) of signing a Construction Finance Agreement by the Principal with the Lender in relation to the Plant (“ Facility ”) (“ Condition ”).

Fulfilment of conditions precedent

The Client will use all reasonable efforts to obtain the Facility on or prior to the Long Stop Date and the SM&O Contractor will use all reasonable efforts to provide the Client with such information as is necessary for Client to do so.

Termination

32.

PROCEDURE FOR DECISION OF DISPUTES BY THE RULER

The “ Ruler ” is any other person nominated pursuant to a written agreement among the Parties. In the absence of such agreement by the seventh (7) working day following a written request made by any Party for the nomination of the Ruler, the Ruler shall be appointed by the chairman of the Arbitration Board for the Building Industry ( Raad van Arbitrage voor de Bouw ). With respect to any disputes relating to a technical Issue and\or of a technical nature under this Agreement (including any annexes thereof):

(i)

the relevant technical matter (including without limitation, unless explicitly indicated otherwise herein) with respect to any financial aspects thereof shall be exclusively decided by the Ruler,

(ii)

the Ruler’s opinion shall be final, undisputable and non-appealable, and the Parties will be finally bound thereby, and

(iii)

the Ruler shall give reasons for its ruling, but wlll not be subject to any procedural Law;

(iv)

Ruler’ fees shall be borne by the losing party, or as decided by the Ruler;

(v)

the Ruler shall give its decision within 7 working days form his appointment.

33.

ARBITRATION, JURISDICTION, APPLICABLE LAW

1.1

With the exception of those disputes to be decided by the Ruler, all disputes or claims between the Parties arising out of or related to this Agreement, its subject matter and/or its validity will be decided by binding arbitration which, unless the Parties mutually agree otherwise in writing, shall be administered by the Arbitration Board for the Building Industry ( Raad van Arbitrage voor de Bouw ).

1.2

This Agreement shall be governed by Netherlands law.

1.3

The language of the arbitration will be English.

THUS this Agreement has been duly executed by the Parties on the day and year first above written.

/s/ Diana Benedek
Anaergia B.V.
By: Diana Benedek
Title: Managing Director
December 5th, 2017


/s/ Roy Amitzur
Blue Sphere Brabant B.V.
By: Roy Amitzur
Title: Director
December 5th, 2017

Blue Sphere Corporation 8-K

Exhibit 10.3

PERFORMANCE GUARANTEE AGREEMENT

THIS PERFORMANCE GUARANTEE AGREEMENT , dated as of 4 December 2017 (this “ Agreement ”), is by and among:

Anaergia B.V. , a private company with limited liability, incorporated under the laws of the Netherlands, having its seat in Amsterdam, and its registered office at Zwollestraat 2 b, Oldenzaal, NL 7575 EP, the Netherlands, registered with the Dutch Chamber of Commerce under registration number 818914324 (the “ SM&O Contractor ”); and

Client and Contractor are jointly defined as the “ Parties ”.

WHEREAS:

(a)

On the date of this agreement, Client and Contractor entered, into a turnkey agreement for the design, construction and delivery of a biogas plant with a capacity of 2,923 Nm³ /h or respectively 24,000,000 Nm³/year of upgraded biomethane including all machinery, processes and equipment necessary for its complete functionality and full operation (the “ Plant ”) to be built and operated in in Pastoor P. Thijssenlaan 41-43 in Sterksel, entered in the land register as municipality of Heeze-Leende, section H number 1193 (in part) (the “ EPC Agreement ”) and the Parties entered into a Service, Maintenance and Operation Agreement relating to Contractor’s obligations to provide certain operation, service and maintenance functions on the Plant once constructed in accordance with the EPC Agreement (the “ O&M Agreement ”);

(b)

Capitalized terms used herein without definition shall have the meaning ascribed thereto in the O&M Agreement;

(c)

Client requires Contractor to provide a Performance Guarantee (as hereinafter defined) regarding the minimum annual gross upgraded biogas production from the Plant; and

(d)

Contractor is willing to provide such a Performance Guarantee in accordance with the terms below.

Now therefore, the Parties have agreed and accepted as follows:

Section 1. Contractor hereby guarantees (the “ Performance Guarantee ”) from the Substantial Completion Date:

1.1

a gross annual production of upgraded biomethane for a term of twelve years (the “ Guaranteed Operation Level ”). The actual upgraded biomethane output will be measured in accordance with the provisions of Section 2 below. The Guaranteed annual production of upgraded biomethane is defined as follows:

Guaranteed Operation Level = 24,000,000 Nm³/year x 94,5% = 22,680,000 Nm³/year

Excluded events will be deducted from the guaranteed yearly production by adjusting the performance guarantee level proportionally by the time-extent of each excluded event. For the avoidance of doubt, all excluded events shall be reported monthly. At the end of each year, the total sum of all excluded event hours will be calculated and deducted from the design availability of 8,200 operation hours per year. The guaranteed annual production with taking into account the excluded events should be calculated as following:

Guaranteed Operation level, nM3/year =22,680,000 nM3/year x ((8,200-Y)/8,200)

Where :

Y, hours – the total sum of all excluded event hours during the year.

8,200 hours – design operation hours per year.

Reduced Methane Potential of the feedstock processed in the same year due to lower quantity or quality will reduce the guaranteed yearly Biomethane production proportionally by applying the actual Biomethane Potential of the relevant feedstocks processed over the year to the design parameters given in Annex 6 (“Table of Quality and Quantity of Substrates and Deviations”).

1.2.

An annual maximum consumption of consumables required for the operation and maintenance of the facility as follows (the “Guaranteed Maximum Consumption of Consumables” ):

Consumable	Expected Consumption	Guaranteed Maximum Consumption (+10%)
Electricity	14,984	16,482	MWh/year
Water	5,131	5,644	m³/year
Caustic Soda (20%)	366	403	m³/year
Diesel	53,159	58,475	l/year

Section 2. At the end of each year of operation following the Substantial Completion Date, the Parties will calculate the actual upgraded biogas output of the Plant and actual consumption of the consumables based on the following documents and information:

(a)

The total amount of upgraded biogas produced by the Biogas Upgrade System will be recorded based on the online, control system measuring and metering the gas production (“ Gas Control System ”) as detailed under subsection (b) below

(b)

Reports from the Control Systems will be printed indicating the total amount of upgraded biogas produced during the preceding 12-month period;

(c)

Actual invoices paid or due to be paid for the consumables during the preceding 12-month period;

(d)

Contractor and Client will then sign a protocol indicating the actual annual upgraded biogas output and consumable’s consumption;

(e)

If Client refuses to sign the protocol, Contractor will send to Client a detailed report supported by all relevant documents and/or evident substantiating its calculation and the parties will submit the dispute to the Ruler for adjudication in accordance with the rules and procedures applicable to the Ruler as set forth in this Agreement.

Section 3. The Guaranteed Operational Level and Guaranteed Maximum Consumption of Consumables is subject to the following conditions and qualifications:

(a)

Correspondence of the feedstock to the required quantity and quality as defined in Annex 6 to the O&M Agreement (subject to any permitted variations). In case of a lack of correspondence (subject to any permitted variations), Client acknowledges that actual upgraded biogas output may decrease below the Guaranteed Operational Level. If so and such decrease is attributable to such lack of correspondence (subject to any permitted variations), Contractor shall bear no liability in respect of such decrease. To bring the actual upgraded biogas output back to the Guaranteed Operational Level, Client may correct the quality and quantity of feedstock supplied to the Plant up to the respective specification defined in the contractual feedstock specification as given in Appendix 6 If the Client fails to deliver feedstock as per the contractual feedstock specification (quality and quantity) given in Appendix 6 the Guaranteed Operational Level and Guaranteed Maximum Consumption of Consumables will need to be re-calculated based on the actual feedstock data.

(b)

Compliance with all parameters and conditions of the Plant’s Manual of Operation, all reasonable instructions given by Contractor’s personnel and all contractual and technical requirements relating to the operation of the Plant; provided, however, this Section 3(b) shall be inapplicable in the event the Plant is operated by Contractor, a subcontractor, or an affiliate of Contractor.

(c)

If the Plant is operated by an entity or person other than Contractor or an affiliate or subcontractor, then (i) Client (or other entity operating the Plant) has employed a qualified operator (i.e., a person who has received training provided for in Section 5.1.12 of the EPC Agreement) and (ii) the operator must have the skills and competencies to manage the tasks detailed within the Manual of Operation provided to Client as a part of the EPC Agreement.

(d)

Contractor or his affiliate is performing the S&M Service unless Contractor’s engagement to perform S&M Service is validly terminated under the O&M Agreement or Contractor has breached any of its S&M Service obligations under the O&M Agreement.

(e)

The availability of a continuous, 24-hour remote control monitoring of the Plant or in case of a disruption the restoration of such monitoring as soon as commercially practicable.

Section 4. The Parties agree that the occurrence and volume of any claim for compensation shall be subject to the compliance with the terms and conditions set forth in Section 5 below. Contractor shall ensure that the Insurance Policy shall be in the form and substance set forth in Annex 8 hereto. Contractor shall further ensure that the Lender’s advisor shall be provided with sufficient documentation to be able to perform the required review prior to the issuance of its statement as to the compliance of the Insurance policy with the terms set forth herein and to be able to use the claims under such Insurance Policy as a pledge or otherwise as a security in favor of the Lender. Once issued, any subsequent changes to the Insurance Policy shall have any effect on Client’s claims hereunder only after such change shall have been approved in writing by Client. Should the Insurance Policy be issued or subsequently modified in breach of this Section 4, Client’s claims for compensation shall be governed exclusively by the terms hereof and any reference to the Insurance Policy limiting Client’s claims hereunder shall be deemed void.

Section 5a. Should the upgraded biogas output be less than the Guaranteed Operational Level, it is agreed as follows:

(a)

Contractor undertakes to pay Client the total rate combined in sum of SDE rate, upgraded biogas market price and green certificate rate to the Plant (limited to a maximum of 74€/MWh), multiplied by the difference in Nm³ of upgraded biogas between the Guaranteed Operational Level and the actual upgraded biogas output of the Plant (the “ Compensation ”);

(b)

Should any of the insured (co-insured) under the Insurance Policy receive any amount under the business interruption policy (the “ Satisfied Claim ”), a portion of Client’s claim for Compensation of the business interruption losses and/or loss of revenues for other reasons covered by the business interruption policy in the amount equivalent to the Satisfied Claim shall cease and be deemed to be fully satisfied (the “ Ceased Claim ”). In the event that the Ceased Claim was previously satisfied by Contractor, Client shall be obliged to return the amount corresponding to the paid Ceased Claim to Contractor without undue delay. For the avoidance of doubt, it is understood that the amount, which Client shall keep after the Ceased Claim is repaid (if repaid) shall in no event be less than the Compensation calculated according Section 5(a). Client shall promptly inform the Lender on the occurrence of any Ceased Claim after it becomes aware of its existence.

(c)

Contractor shall keep the Insurance Policy valid and effective for no less than twelve years after the Substantial Completion Date and shall provide to Client a confirmation issued by the insurer providing the Insurance Policy stating the same without undue delay after being notified to do so. Contractor shall inform Client without undue delay on any claim made under the Insurance Policy and on any monies paid under the Insurance Policy on account of the occurrence of the insured risk. Should Contractor default on its obligation to maintain a valid and effective Insurance Policy as stated above, Contractor’s obligations to pay the Compensation to Client shall remain intact with any reference to Insurance Policy hereunder deemed void as of the moment of premature termination or failure by Contractor to maintain the Insurance Policy.

Section 5b

Should the actual annual consumption of the consumables be higher than the Guaranteed Maximum Consumption, it is agreed that Contractor undertakes to compensate Client the difference in cost between the Guaranteed Maximum Consumption and actual annual consumption according to the annual average market price of the consumables.

Section 5c

It is understood and agreed that the following limits shall apply to any compensation due from the Contractor and their Subcontractors to the Client under the terms of this Agreement:

The total compensation applicable to any one (1) year of operation shall not exceed the total net yearly fixed fee due to the Contractor as per Article 15.1 of the SM&O Agreement

Section 5d

In the event that the compensation cap is reached and the SM&O Services still not compliant the Client can claim against the Performance Bond provided by the Contractor. For the avoidance of doubt, this is the only circumstance the Client can call the Performance bond except for gross breach of contract by the Contractor as defined in the SM&O Agreement.

Section 6. It is understood and agreed that the Performance Guarantee shall not apply in any case of fraud or gross negligence by Client and in connection with the following conditions (together with cases of fraud and gross negligence, each, an “ Excluded Event ”):

any interruption to the energy supply network, including interruptions due to energy supply companies cutting off electricity supplies to guarantee grid security (so called grid security management), or breakdown of the feed-in meter;

ii.

any works or alterations in the Plant, including any interruption to performance caused by such, performed by Client which materially differ from those specified or approved in writing by Contractor;

iii.

third party influences such as vandalism and theft;

iv.

technical defects and power surges caused by outside sources;

war, warlike events, civil war, revolution, rebellion, insurrection, acts of government or civil unrest or similar events;

vi.

earthquakes, nuclear attack, nuclear radiation or radioactive substances;

vii.

floods and/or increased groundwater levels, or any similar events;

viii.

any other Force Majeure Event (as defined below);

ix.

any effects of corrosive gases or particulates produced by any other facility on, or surrounding, the site;

any reduction in the Services or Plant output instructed by the Client, any utility operator or any governmental authority

xi.

any reduction in the Service or Plant output resulting from a change in law, legislation or any other statutory measure, or;

xii.

any defect and deficiencies in any part of the Plant provided by the Client, or any failure of the Client to meet their stated obligations in relation to this Agreement (such as but not limited to digestate discharge, gas offtake, removal of unsuitable feedstock, utilities).

The Contractor shall promptly notify the Client upon become aware of an Excluded Event. The Contractor shall keep accurate records of its extents and implications that shall be submitted to the Client.

Section 7. SEVERABILITY OF PROVISIONS - REPRESENTATIONS. In the event that

one of the terms or conditions of this Agreement is deemed invalid or in any case not executable, such circumstance shall not entail the invalidity of the remaining terms and conditions of the Agreement, which shall continue to be fully valid and effective. The Parties warrant that they have actually discussed, negotiated and agreed each individual and specific clause of this Agreement. On conclusion of the negotiations, the Parties decided to sign two original copies of the Agreement.

Section 8. AMENDMENTS.

Any derogation of or amendment to the Agreement shall be valid and effective only if set forth in a written document duly signed by the Parties.

Section 9. NOTIFICATION AND PROCESSING OF DATA

All communications and the other notifications under the Agreement shall be formulated in writing and shall be deemed duly notified if delivered personally, including by courier, or if sent by registered letter with return receipt and if transmitted by e-mail to the Parties at the following addresses:

[ ]

Section 10. FORCE MAJEURE EVENT

10.1 The following events constitute force majeure (each a “ Force Majeure Event ”) so long as such events are not reasonably foreseeable and are beyond the control of the affected party : acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or of the State or any state or any of their departments, agencies, political subdivisions or officials, or any civil or military authority; insurrections; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; tornadoes; storms; droughts; floods; arrests; restraint of government and people; explosions; breakage, malfunction or accident to facilities, machinery not comprising the Plant, transmission pipes or canals; partial or entire failure of utilities; shortages of labor, materials, supplies or transportation.

10.2 In the event that for any period of time after the Substantial Completion Date and up to a maximum of 360 consecutive days, the Plant is completely inoperable due to the occurrence of a Force Majeure Event, Contractor shall immediately notify Client with a copy to Lender of such Force Majeure Event in reasonable detail. Contractor ‘s obligations under this Agreement shall be suspended from the date of such Force Majeure Event until it is no longer in existence; provided that Contractor complies with the obligations set forth in Section 10.4 of this Agreement; provided, further, that Contractor shall at all times use all reasonable efforts to ensure that the Project commences partial operation, as well as full operation, as soon as possible after the Force Majeure Event occurs. Contractor shall provide Client with notice to Lender with periodic updates, at such intervals as Client may request, but in no event less frequently than monthly, on the status of the Force Majeure Event and the steps that Contractor is taking to restore the Plant to full operation. Contractor shall have the right to terminate this Agreement by written notice in the event that the Force Majeure Event lasts for more than 360 consecutive days.

10.3 Notwithstanding anything else to the foregoing, the following shall not be deemed Force Majeure Events:

(i)

the absence of materials, manpower or service, unless such absences are attributable to an event of force majeure

(ii)

site closures imposed by the competent authorities as a result of failure on the part of Contractor to comply with applicable legislation and regulations

(iii)

strikes limited to the establishments and employees of Contractor and Subcontractors, including the states of agitation, and participation by employees of Contractor and Subcontractors in strikes of any kind that are not of a national and sectoral nature.

10.4 The Party affected by an event of Force Majeure shall not be deemed to have defaulted only if:

(i)

it informs the other Party of the Event of Force Majeure within 24 (twenty-four) hours of the occurrence of the Event, providing an adequate explanation of the Event of Force Majeure and its foreseeable duration;

(ii)

it has in full effect and force an insurance policy covering up to $2,500,000 of the damage, loss and/or claims caused by or related to such Event of Force Majeure, it makes all relevant communications to the respective insurance companies in a proper and timely manner and uses its best efforts to obtain and transfer the proceeds of such policy to Client after a claim is duly made therefor; and

(iii)

it has done all in its power to prevent or mitigate the Event of Force Majeure that is an obstacle to its fulfilment.

10.5 Force Majeure Events which only partly prevent the fulfilment of the contractual obligation of one Party shall not release the said Party from its obligation to fulfil obligations that are not hindered by the said Force Majeure Event.

Section 11. ASSIGNMENT OF RIGHTS

Except to or at the direction of the Lender, to or at the direction of any party purchasing or benefiting from the investment tax credit applicable to the Plant or any party purchasing the Plant and as set forth in this Section 11, this Agreement may be assigned only with the prior written consent of the other Party which consent shall not be unreasonably withheld. The Client may collaterally assign and/or pledge this Agreement and any rights or obligations thereunder to any finance provider or any trustee or agent of any financer as collateral security; the SM&O Contractor shall execute and deliver to such financer any consents and/or other documents and/or any changes to this Agreement reasonably requested by such financer. Any additional costs resulting from any such action will result in a reasonable change of contract price and could cause a project delay and may require an extention to the liquidated damages schedule

Notwithstanding the foregoing, Client may, without prior consent, assign its rights hereunder to a lender and/or trustee acting on behalf of a lender, or any financing entity, which acquires a security interest in Client or the Plant (collectively, the “ Security Lenders ”) in connection with any financing involving the Plant. In the event of an assignment of Client’s rights hereunder to any Security Lenders, Contractor shall take such further actions and execute such documents as are reasonably requested by such Security Lenders to effectuate such assignment including, without limitation, a consent agreement containing customary terms and conditions. Such customary terms and conditions shall include, but not be limited to, provisions related to extended notice and cure periods to be provided to the Security Lenders, and other terms and accommodations to Security Lenders as are customary for non-recourse project financings. Solely with respect to any Security Lender which acquires a security interest in Client or this Agreement, and provided Contractor has received written notice from Client of such interest and request, Contractor shall give written notice to such Security Lender of any default or event of default by Principal under this Agreement.

Section 12. PROCEDURE FOR DECISION OF DISPUTES BY THE RULER.

The Ruler is any other person nominated pursuant to a written agreement among the Parties; in the absence of such agreement by the seventh (7) working day following a written request made by any Party for the nomination of the Ruler, the Ruler shall be appointed by the chairman of the Arbitration Board for the Building Industry. With respect to any disputes relating to a technical issue and\or of a technical nature under this Agreement (including any annexes thereof): (i) the relevant technical matter (including without limitation, unless explicitly indicated otherwise herein) with respect to any financial aspects thereof shall be exclusively decided by the Ruler, (ii) the Ruler’s opinion shall be final, undisputable and non-appealable, and the Parties will be finally bound thereby, and (iii) the Ruler shall give reasons for its ruling, but will not be subject to any procedural Law; (iv) Ruler’ fees shall be borne by the losing party, or as decided by the Ruler; (v) the Ruler shall give its decision within 7 working days form his appointment.

Section 13. CONDITION PRECEDENT (“ Opschortende Voorwaarde ”)

This Agreement is subject to the satisfaction on or prior to the end of eighteen (18) months after the date of this Agreement (“Long Stop Date”) of signing a Construction Finance Agreement of the Principal with the Lender in relation to the Plant (“Facility”) (“Condition”).

Fulfilment of conditions precedent

Termination

Section 14. GUARANTEE

As security for the fulfilment of SM&O Contractor’s obligations regarding this Agreement and payment by the SM&O Contractor of any amount due to Client pursuant to this Agreement the SM&O Contractor will provide the Client with a Guarantee which can be called on demand by the Client, in the format as attached to this Agreement as Annex I .

Section 15. ARBITRATION, JURISDICTION, APPLICABLE LA5.

With the exception of those disputes to be decided by the Rule, all disputes or claims between the Parties arising out of or related to this Agreement, its subject matter and/or its validity will be decided by binding arbitration which, unless the Parties mutually agree otherwise in writing, shall be administered by the Arbitration Board for the Building Industry in accordance with its Construction Industry Arbitration Rules in effect on the date of this Agreement.

The venue of the arbitration will be in the State where the Plant is located.

The applicable law will be the law of The Netherlands the arbitrator shall: (i) apply substantive applicable Law; (ii) shall not be bound by any rules of procedure and\or evidence; and (iii) shall give reasons for his ruling.

The language of the arbitration will be English.

The Parties have signed this Agreement

Anaergia B.V., the SM&O Contractor

/s/ Diana Benedek

Anaergia B.V.

By: Diana Benedek

Title: Managing Director

December 5th, 2017

BLUE SPHERE BRABANT B.V, the Client

/s/ Roy Amitzur

Blue Sphere Brabant B.V.

By: Roy Amitzur

Title: Executive VP

December 5th, 2017

Annex I - GUARANTEE

Anaergia Inc., a company incorporated pursuant to the laws of [ ], whose principle place of business is at [ ], registered under number 764109-5 (“ Anaergia ”),

irrevocably, primarily, absolutely and unconditionally guarantees to Blue Sphere Brabant B.V. (“ Principal ”) and its successors and assignees, for the benefit of the foregoing and lenders, the prompt and complete payment and performance when due of the obligations, commitments, undertakings, warranties and indemnities (such obligations, commitments, undertakings, warranties and indemnities jointly the “ Guaranteed Obligations ” and “ Guaranteed Obligation ” each of them) of Anaergia B.V. (“ Contractor ”) under or pursuant to the Performance Guarantee Agreement between the Principal and SM&O Contractor dated on or around the date hereof, including all amendments, modifications, renewals or extensions thereto (“ Agreement ”), without regard to the liability or defenses of any other person or the existence of any other security for or guarantee in respect of this Agreement. Anaergia hereby agrees that any claimant under this guarantee that was not paid within 30 days of demand as referred to hereinafter, may proceed directly to a claim of any amount due to it by Contractor directly from Anaergia provided that (i) it has sent a notice of claim to Contractor and (ii) Contractor has not cured within 30 days from receipt of the notice. This Guarantee is a guarantee of payment and performance of Contractor under the Agreement and so that the same benefits shall be conferred on Principal as it would have received if the Guaranteed Obligations had been duly performed and satisfied by Contractor.

This Guarantee is to be a continuing guarantee and accordingly is to remain in force until all the Guaranteed Obligations shall have been performed or satisfied. This Guarantee is in addition to and without prejudice to and not in substitution for any rights or security which the Principal may now or hereafter have or hold for the performance and observance of the Guaranteed Obligations.

Anaergia hereby waives presentment, protest and notice of acceptance, non-payment and any and all other notices and demands whatsoever to which Anaergia may be entitled and agrees that consent of Anaergia shall not be required in connection with any modification of or waiver with respect to the Agreement or Contractor’s obligations under the Agreement , provided however, Anaergia shall have all the rights, liabilities and defenses available to Contractor. No delay in making demand on Anaergia shall prejudice any claimant’s rights hereunder. Anaergia additionally agrees to pay all costs and expenses including attorneys’ fees, incurred by any claimant in enforcing this Guarantee.

The liability of Anaergia under this Guarantee shall not be affected, impaired, reduced or released by:

any variation of the Guaranteed Obligations;

any forbearance, neglect or delay in seeking performance of the Guaranteed Obligations or any granting of time for such performance;

the illegality, invalidity, unenforceability or, or any defect in, any provision of the Agreement or any obligation thereunder on Contractor;

any insolvency or similar proceeding; or

any other fact or event which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release or a defence to a guarantor.

Save as provided in the next sentence, this Guarantee and the benefit thereof shall not be assigned without the prior written consent of Anaergia. The Principal may collaterally assign and/or pledge this Guarantee and any rights thereunder to any finance provider or any trustee or agent of any financier as collateral security and in connection with the financing of the Principal in relation to the works under the Agreement. Anaergia shall execute and deliver to such financier any consents and/or other documents and/or any changes to this Guarantee reasonably requested by such financer.

Notwithstanding the foregoing, Anaergia has all the rights and defenses available to the Contractor and its obligations under this Guarantee are limited to the obligations of the Contractor under the Agreement.

This Guarantee and any obligations arising out of or in connection with it is governed by and construed in accordance with the laws of the Netherlands. All disputes ensuing from or connected with this Agreement or additional agreements will be decided by binding arbitration which, unless the Parties mutually agree otherwise in writing, shall be administered by the Arbitration Board for the Building (Raad van Arbitrage voor de Bouw).

Anaergia Inc.

Signature:

By:

Name:

Position:

Date:

Please take into account the following legalisation requirements when executing this guarantee:

a copy of the valid passport/driver’s license of the individual(s) signing this document (each: a “Signatory”);

the genuineness of the signature(s) of the/each Signatory must be legalised by a notary;

an independent lawyer or notary must issue the confirmation statement that the signatory/signatories is/are authorised to represent Anaergia Inc.

For agreement and acknowledgement

__________________________________

Blue Sphere Brabant B.V.

Name:

Title: