NATIONAL GOVERNMENT ADMINISTRATIVE

CENTER PROJECT

DRAFT TERM SHEET - EPC AGREEMENT

dated as of September 22, 2018

by and between

Philippine Development Authority (PDA),

as the Owner

and

TUKOD Capital Management Inc.

as the EPC Contractor
 Table of Contents
Introduction .......................................................................................................................................1
Parties ..................................................................................................................................................1
Definition of Terms ..........................................................................................................................1
Commencement and Duration ......................................................................................................9
Scope of the Project ..........................................................................................................................9
Representations ............................................................................................................................. 15
Contractor price ............................................................................................................................. 18
Payment Terms .............................................................................................................................. 18
Construction Start Date and Conditions Precedent to Construction Start Date ........... 19
Design of the Works ...................................................................................................................... 21
Minimum Performance Standards and Specifications ........................................................ 22
EPC Contractor’s Rights and Responsibilities ........................................................................ 23
Owner’s Rights and Responsibilities ........................................................................................ 25
Warranties; Limitation of Liability; Indemnification; Other Liabilities ......................... 26
Commissioning and Acceptance ................................................................................................ 28
Legislative Change ......................................................................................................................... 30
Superior Knowledge ..................................................................................................................... 30
Anti-Corruption and Anti-Bribery ............................................................................................ 30
Ownership of NGAC ....................................................................................................................... 33
Shared Responsibilities ............................................................................................................... 33
Insurance ......................................................................................................................................... 34
Variation and Improvements ..................................................................................................... 36
Independent Consultant .............................................................................................................. 37
Conflict of Interest ......................................................................................................................... 38
Project Steering Group ................................................................................................................. 38
Force Majeure ................................................................................................................................. 38
Delay and Compensation Occurrence of Delay ...................................................................... 41
Warranty Period ............................................................................................................................ 43
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Novation/Assignment................................................................................................................... 43
MAGA ................................................................................................................................................. 44
Default and Termination ............................................................................................................. 44
Cross-Default................................................................................................................................... 46
Compensation for Termination ................................................................................................. 46
Indemnities ..................................................................................................................................... 46
Governing Law; Interpretation .................................................................................................. 47
Dispute Resolution ........................................................................................................................ 47
Miscellaneous Language .............................................................................................................. 49

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List of Acronyms

EPC Engineering, Procurement and Construction

JV Joint Venture

MAGA Material and Adverse Government Action

MPSS Minimum Performance Standards and Specifications

NGAC New Metropolitan City National Government Administrative Center

Operational Readiness, Activation and Transition in relation to the

ORAT Project

PDA Philippine Development Authority

PSP Private Sector Participants

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 NATIONAL GOVERNMENT ADMINISTRATIVE CENTER PROJECT

Term Sheet

This Term Sheet sets out general terms and conditions to be included in an Engineering,
Procurement and Construction contract (the “EPC Agreement”) in respect of the National
Government Administrative Center Project (the “Project”) to be constructed at the New
Metropolitan City, Philippines (the “Project Site”).

The parties are also party or will be party to the Joint Venture Agreement (the “JV
Agreement”) and an agreement with respect to the operation and management (the “O&M
Agreement”) of the Project.

Owner: Philippine Development Authority (“PDA”)

Contractor: TUKOD Capital Management Inc. (“TUKOD”)

1. Parties

[Name of the Joint Venture] (the “Owner”); and

TUKOD Capital Management Inc. (the “EPC Contractor”).

2. Definition of Terms

Each of the following terms shall have the meaning stated below:

2.1. “Aquatics Center” means the Center for indoor and outdoor facilities intended for
swimming, open water swimming, diving, high diving, water polo, artistic swimming
and Masters program sports or events that conforms to the specifications of Federation
Internationale De Natation standards.

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2.2. “Athletics Stadium” means the Stadium for indoor and outdoor facilities with firm,
uniform surface that conforms to the specifications in the IAAF Track and Field
Facilities Manual, intended to be used for Track and Field Athletics or Events.

2.3. “PDA” means Philippine Development Authority, the Philippine government

instrumentality vested with corporate powers under Republic Act No. 8888 and its
amendments.

2.4. “PDA JV Guidelines” means the Guidelines on the Privatization and Disposition of
PDA Properties — Procedures for Entering into Joint Venture (JVs) Agreements with
Private Entities prepared and issued by PDA on July 1, 2018, and which became
effective on July 15, 2018.

2.5. “Business Day” means a day (other than Saturday or Sunday) on which commercial
banks are open for general commercial business in Taguig City, Philippines.

2.6. "Change in Law" means any of the following events occurring after Signing Date as
a result of any action by any Government Authority: (a) a change in or repeal of a Legal
Requirement of national application (for the avoidance of doubt Republic Act No. 7160
as amended, also known as the Local Government Code of 1991, and its
implementing rules and regulations constitute a Legal Requirement of national
application); (b) an enactment or making of a new Legal Requirement of national
application; (c) a change in the manner in which a Legal Requirement of national
application is applied, enforced or interpreted (including for the avoidance of doubt,
any material change in the interpretation or enforcement regime after Signing Date of a
Legal Requirement of national application enacted prior to such date); (d) a change in
the national law (including the Constitution) that would result in Privatization and
Expropriation of the business as well as other related political risks. Change in Law
does NOT include: (a) subject to item (a) above, a change in local taxation; (b) an
increase in the annual income tax for corporations and partnerships in the Philippines;
(c) adjustments in the minimum wage scales and rates in the Philippines; and (d)
introduction or adjustment of value added tax of general application to companies
doing business in the Philippines.
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2.7. “Commissioning and Acceptance Plan” means a detailed plan specifying the
activities to be undertaken by the Parties towards commissioning and acceptance of the
Works.

2.8. “Commissioning and Acceptance Tests” refer to the tests required to be

undertaken to prove the technical, safety and operational integrity of the Works tested.

2.9. “Construction IAC” means the Construction Industry Arbitration Commission, an

arbitration tribunal established under Executive Order No. 1008.

2.10. “Construction” means all works and activities of the EPC Contractor under the
EPC Contract necessary for the construction and development of the NGAC, including
site clearing and development of the Project Site, procurement of equipment, materials,
and labor, and ORAT of the NGAC.

2.11. “Construction and Development Timetable” means the specific construction

schedule and milestones for the financing, design, construction and development of the
Project, as indicated in Schedule __ (Construction and Development Timetable).

2.12. “Construction Start Date” means the day immediately following the date of
issuance of the Notice of Construction Start Date.

2.13. “Contract Price” means capital cost of NGAC Project in accordance with the EPC
Agreement.

2.14. “Delay” is any event which delays the EPC Contractor from completing any part of
the Works in accordance with the EPC Agreement

2.15. “Detailed Design” refers to the detailed engineering design for the Works.

2.16. “Dispute” means any disagreement, dispute, controversy or claim arising out of or
in connection with, or the breach, termination, invalidity or interpretation of the EPC
Concession Agreement, among the Owner, the EPC Contractor and/or the Independent
Consultant.

2.17. “EPC” means engineering, procurement and construction.

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2.18. “EPC Agreement” means this agreement which is entered into between the
Owner and the EPC Contractor designated as such in Schedule __ (Contractors) for the
Construction of the NGAC, and all its annexes, and any and all subsequent amendments
and/or supplements.

2.19. “EPC Contractor” means the contractor who will undertake to deliver the
complete project to the project company for a fixed contract price within a fixed time,
and under a set of project specifications.

2.20. “Final Acceptance Certificate” means the certificate issued by the Independent
Consultant to the EPC Contractor after completion of Works by the EPC Contractor.

2.21. “Finance” means the obligation of the PSP to provide the funds, on its own, or
through any lawful means of raising capital, for the design, building, Construction,
development and commissioning of the Project. It includes all relevant costs of money,
interest charges, inflation and foreign exchange.

2.22. “Financial Closure” means the stage when the conditions of a financing
agreement with Financial Institutions are fulfilled prior to the release of funds for the
Project.

2.23. “Financial Institution” means any person or entity providing financing to PSP for
the Project.

2.24. “Force Majeure” or “Force Majeure Event” shall have the meaning in Item 19.

2.25. “Government Authority” means any national or local agency, instrumentality,

body, official, employee or agent of the Republic of the Philippines exercising executive,
legislative, judicial, quasi-judicial or administrative powers and having jurisdiction or
authority over the matter in question.

2.26. “IAESP” means the Invitation to Apply for Eligibility and to Submit a Proposal
dated September 22, 2018.

2.27. “Independent Consultant” means the joint venture of DCCD Engineering

Corporation (Philippines) and Merx Construction Management Pte Ltd.

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2.28. "Lapse of Relevant Consent (National)" means the denial of, the refusal to
renew, an unreasonable delay in the granting or renewal of or the imposition of any
onerous conditions on the grant or renewal of any Relevant Consent by any national
Government Authority provided in each case (a) that the EPC Contractor has made due
application therefore in accordance with Legal Requirements, (b) that the refusal to
grant or renew or delay in granting or renewing or the imposition of onerous
conditions is not attributable to any breach of any Legal Requirement on the EPC
Contractor’s part, and (c) the refusal or delay to grant or renew any such Relevant
Consent has persisted for thirty (30) days or the period provided by applicable Legal
Requirements from the date of the EPC Contractor’s due application therefore and
complete submission of all requirements therefore.

2.29. “Legal Requirement” means any domestic law, statute, ordinance, rule, standard,
administrative interpretation or guideline, regulation, order, writ, injunction, directive,
judgment, decree, Relevant Consent and any requirement of any Government Authority
having jurisdiction over the person, or any of its respective properties, assets or
representatives, or the matter in question, and in each case being of legally binding
effect.

2.30. “Material and Adverse Government Action” or “MAGA” means any act of a
Government Authority, a Change in Law, or Lapse in Relevant Consent (National) or
delay due to action or inaction of any Government Authority, which has a material and
adverse effect on any of the rights and privileges of, or on the enjoyment and/or
exercise thereof by the EPC Contractor under the EPC Agreement, or which has a
material and adverse effect on the EPC Contractor’s ability to comply with its financial
and/or other contractual obligations under the EPC Agreement.

2.31. “Multi-Purpose Indoor Arena” means the Arena particularly designed to

accommodate and can readily and easily be used for multiple types of sports or events.

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2.32. “Minimum Performance Standards and Specifications” or “MPSS” means the
minimum performance or functional standards and specifications that must be
complied in Construction of the NGAC as provided in Schedule __ (MPSS) of the EPC
Agreement.

2.33. “NGAC” means the New Metropolitan City National Government Administrative
Center comprising Phase 1A and Phase 1B.

2.34. “ORAT” means operational readiness, activation and transition in relation to the
Project.

2.35. “Phase 1A” means the 40 hectare parcel of land, including, upon completion of
construction and development, (a) the Aquatic Center, (b) Athletic Stadium, (c) office
and residential buildings, facilities, commercial center, residential housing,
improvements and all other structures, (d) roads, bridges and walkways, (e) utilities,
and (d) plants and trees all located within such as 40 hectare parcel of land, as
specifically described in Part __ of Schedule __ (Project Design and Specifications).

2.36. “Phase 1B” means the 20 hectare parcel of land, including, upon completion of
construction and development, (a) the Multi-Purpose Arena, (b) school buildings, (c)
office and residential buildings, facilities, commercial center, residential housing,
improvements and all other structures, (d) roads, bridges and walkways, (e) utilities,
and (d) plants and trees all located within such as 20 hectare parcel of land, as
specifically described in Part __ of Schedule __ (Project Design and Specifications).

2.37. “Preliminary Design” means project planning documents based on the concept
design submitted by the EPC Agreement during the bidding. The Preliminary Design
will elaborate the architectural concept (including key sub-systems), structural concept,
mechanical and electrical concept, rough material and technical specifications, detailed
functional layout and broad cost estimation per phase / development step with, among
others, the phasing plans, floor plans, sections and elevations, being of an appropriate
scale.

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2.38. “Prohibited Act” means, in relation to the Parties, any (1) violation of any of the
rules governing the bidding for the Project or (2) engaging in any coercive practice,
corrupt practice or fraudulent practice.

2.39. “Project” means the financing, design and engineering, establishment,

construction and development, and operation and maintenance of the NGAC.

2.40. “Project Cost” means the total investment, including necessary or incidental
expenses, to finance, design, build, construct and develop the infrastructures, facilities
and improvements of the NGAC. It includes all relevant costs of money, interest charges,
inflation and foreign exchange.

2.41. “Project Execution Plan” is the plan attached to the EPC Agreement as Schedule
___ (Project Execution Plan).

2.42. “Project Dispute Resolution Board” means the board created in Item 29.

2.43. “Project Site” means the 56.73 hectare property located within the Metropolitan
Special Economic Zone as specifically described in Schedule __ (Project Site).

2.44. “Property Manager” means the entity which entered into the Property
Management Agreement with the Owner and named in Schedule __ (Contractors).

2.45. “Property Management Agreement” means the agreement to be entered into

between the Owner and the Property Manager for the administration and/or
management of the NGAC.

2.46. “Prudent Industry Practice” means, in relation to any undertaking, the exercise
of that degree of skill, diligence, prudence, foresight and care which would reasonably
be expected of an appropriately skilled and experienced (a) person having the same
obligations as the EPC Contractor and (b) owner having the same obligations as the
Owner.

2.47. “QA” means quality assurance.

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2.48. “Readiness for Operation Certificate” means the acceptance certificate issued
by the Independent Consultant for the Works confirming that the Phase 1A and/or
Phase 1B is ready for operation.

2.49. “Relevant Consent” means all national and local consents, permissions,
approvals, authorizations, acceptances, licenses, exemptions, filings, registrations,
notarizations and other matters, which are required by any Legal Requirement or under
the terms of, or in connection with, this JV Agreement (or which would normally be
obtained by a reasonable and prudent person) in connection with the Project from any
Government Authority or third party.

2.50. “Required Construction Start Date” means that date that falls within expiration
[120] days after execution of the EPC Agreement

2.51. “SEC” means the Securities and Exchange Commission.

2.52. “Sports Facilities” means the Aquatic Center, Athletics Stadium, and the Multi-
Purpose Indoor Arena.

2.53. “Termination Date” means the date when any of the following events occurs first:
(i) Termination of the JVA and EPC Agreement due to Non-Occurrence of Effective Date;
(ii) Pre-termination of the JVA and EPC Agreement due to an Event of Default; (iii) Pre-
termination of the JVA and EPC Agreement due to Prolonged Force Majeure Events; (iv)
Mutual Pre-termination; or (v) on Expiry Date.

2.54. “Utilities” means the set of services provided which are consumed and used by
the public: electricity, natural gas, water, sewage, telephone, and transportation. It also
means the commercial activities related to associated electric, natural gas,
telecommunications, water, railroad, rail transit, and/or passenger transportation
companies surrounding these Sports Facilities

2.55. “Variation” has the meaning set out in Item 16.

2.56. “Works” means the Construction of the NGAC.

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 2.57. “Works Timetable” means the timelines pertaining to the execution of the Works
to be updated and submitted by the EPC Contractor along with the Preliminary Design
for approval by the Grantor, and which shall be consistent with the timelines stipulated
in the IAESP.

3. Commencement and Duration

The EPC Agreement will become effective on the date it is signed until the earlier of (i)
all of the obligations of TUKOD therein have been fully performed in accordance with
the EPC Agreement and duly accepted by PDA, and (ii) the termination of the EPC
Agreement.

4. Scope of the Project

4.1. General Scope of Work

The EPC Contractor will provide turn-key design, engineering, licensing, equipment and
materials procurement and quality assurance, construction (including all qualified and
skilled labour, tools, equipment, staging, consumables and commodities), project
management, project cost control, supervision, documentation, commissioning, start-up
and performance testing, (including special equipment), progress reporting, operation,
management and maintenance of the NGAC, and other services necessary or
appropriate for the NGAC in accordance with the Works Timetable.

a. The NGAC shall comprise Phase 1A and Phase 1B. Phase 1A includes the
following works:

• Two seven-storey government building, excluding fit out works,

with a total gross floor area of 15,000 square meters;

• Two seven-storey one-stop-shop center/integrated operations

center, excluding fit out works, with a total gross floor area of
15,000 square meters;

• An aquatic center comprising one 50-meter swimming pool with

10 lanes, one diving pool, one warm-up pool and a permanent

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 seating capacity of 2,000 people, which shall be certified by the
Federation Internationale de Natation (FINA) as compliant with its
Facilities Rules for Swimming Pools for Olympic Games and World
Championships;

• An athletics stadium comprising a stadium capable of hosting

athletics events with a permanent seating capacity of 20,000
people and an outdoor facility to be used by track and field
athletes, which shall be certified as a Class 3 Athletics Facility by
the International Association of Athletics Federations (IAAF);

• An athlete’s village comprising 1,000 units and capable of housing

2,000 people;

• Government housing comprising 1,000 units and capable of

housing 2,000 people;

• Support service facilities;

• Parks and site development;

• Utilities for the foregoing works; and

• Solid waste management during construction.

b. While Phase 1B shall include any and all works, improvements, and
facilities to be constructed within a designated portion of the Project site.

The specific works comprising Phase 1A and Phase 1B shall be set out /
specified in a schedule attached to the JV Agreement and EPC Agreement.

4.2. Major Scope Items

a. Project Management. TUKOD will be responsible for overall project

management and will appoint a qualified project manager with the
authority to manage the Works. The project manager will plan and
manage all activities within the scope of responsibility of TUKOD.

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b. Engineering. TUKOD will be fully responsible for all detailed design,
engineering and systems interface coordination services necessary for
the completion of the NGAC, including specification of equipment,
materials and systems (including all key sub-systems) to be incorporated
into the NGAC. Engineering and design will meet all regulatory
requirements, be in accordance with industry standards and consistent
with good practices.

c. Start-up, Commissioning and Testing. TUKOD will perform the start-up

of equipment and functional verification tests. TUKOD will fully
commission the NGAC and perform all testing of the NGAC required by
the EPC Agreement, including tests necessary to demonstrate each key
sub-systems and each component’s compliance with the performance
guarantees and regulatory standards. TUKOD will prepare a
comprehensive commissioning and testing plan and submit it to the
Independent Consultant for approval.

d. ORAT. TUKOD will provide support to the Owner and any third-party
operator of the NGAC following the successful testing and commissioning
phase.

The Owner will stipulate in the EPC Agreement the specific support that
is required, and will be subject to the following:

1. For a period of [3] months following the issuance of the Final

Acceptance Certificate, TUKOD will provide skilled manpower based
locally to be available during reasonable business hours for the
purpose of supplying technical support to the Property Manager when
required in support of ORAT generally, but likely targeted at
familiarization, induction and training of the relevant operational staff
(“Initial Defect Period”).

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 2. For a period of [6] months, following the Initial Defect Period,
TUKOD will provide skilled manpower to be transferred to the NGAC
to rectify major faults and equipment malfunctions on the request of
the Property Manager (“Mid-Defect Period”).

3. For a period of twelve (12) months following the Mid-Defect Period,

TUKOD will provide skilled manpower based remotely for the
purpose of rectifying major faults and equipment malfunctions on the
request of the Property Manager.

e. Operation, Management and Maintenance. TUKOD will operate the

facility over a fixed term, as agreed upon by the Parties, during which it is
allowed to charge facility users appropriate fees, rentals and charges in
order to recover its investment and operating and maintenance cost in
the project.

f. Preparation of Documentation. TUKOD will provide all documentation

(including all the engineering plans/designs and manuals) in electronic
format as well as paper copies of drawings. All documentation will adhere
to necessary quality assurance and quality control requirements, and all
other requirements stipulated in the IAESP. The Owner will have the right
to review and approve certain documentation as set out in the EPC
Agreement to ensure conformity with such requirements.

g. Secure Permits and Licenses. TUKOD will be responsible for all

interfaces with regulatory authorities (including obtaining consent and
approvals) and implement all design changes for the NGAC required by
such regulatory authorities.

h. Intellectual Property Rights. TUKOD will allow for the

assignability/transferability of any intellectual property rights (at no
cost) to the Owner or its assignees/successor companies, including the
Property Manager at the end of the fixed term of the thirty (30) years, as

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 stipulated in the Operation, Management, and Maintenance Concession
Agreement.

i. Procurement. TUKOD will be responsible for all procurement and the

performance of all subcontractors and vendors. The EPC Agreement will
set out a list of approved suppliers. The said list will be agreed by both
parties. If TUKOD wishes to source any materials from any other
supplier, it must obtain the approval of the Owner and the
Independent Consultant. TUKOD will, taking into account the above,
nominate a list of approved subcontractors and vendors (who should be
of good legal and financial standing) for major service quality critical
equipment and materials based on predetermined specification criteria
(detailed definition to be included in the IAESP). The list of
subcontractors and vendors will be subject to approval by the Owner,
such approval not to be unreasonably withheld. Qualifications and
experience requirements for approved subcontractors and vendors will
be included in the EPC Agreement and the IAESP. All equipment and
materials will be new, and of high quality and of proven design, in
accordance with the parameters provided in the IAESP. Certification of
equipment that is required to be certified by law will be the responsibility
of TUKOD.

j. QA. TUKOD shall develop and implement a QA Program before ordering

any equipment in connection with the NGAC and will maintain the QA
Program for the duration of the EPC Agreement. The QA Program shall be
in accordance with parameters and requirements stipulated in the IAESP,
and will be submitted for the Independent Consultant’s review and
approval.

k. Construction. TUKOD will be responsible for the performance of all

construction services and activities required for the timely scheduled
skilled labour, equipment, tools, consumables, spare parts, temporary
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 facilities and utilities necessary for such construction. Construction does
not include the following:

1. Relocation and Functional Replication of Existing Facilities;

2. Relocation of Utilities; and

3. Relocation of Informal Settlers.

l. Compliance with Laws. TUKOD will execute the Works, and conduct its
operations and activities, in compliance with all applicable laws and
regulations, government approvals, licenses and permits.

m. Construction Timetable. TUKOD shall prepare and submit the Works

Timetable to the Owner as part of the Project Execution Plan and shall
subsequently submit an updated Works Timetable no later than 30 days
after the EPC Agreement is signed.

n. Relocation and Functional Representation of Existing Facilities. PDA

shall be responsible for the relocation and functional representation of
the existing military facilities.

o. Relocation of Utilities and Informal Settlers. PDA shall be responsible

for the relocation of all lines for power, water, sewer, communication, gas,
and all other utilities. Likewise, PDA shall be responsible for the
relocation of informal settlers in the area prior to construction start date.

p. Provide the Project Site. PDA shall make available the Site to TUKOD for
the purpose of the construction and operation, management and
maintenance of the NGAC at no cost to TUKOD for the period from the
Effective Date until the Transfer Date and PDA shall be responsible for the
payment of all real estate taxes and assessments, rates and other charges
in respect of the Site and the buildings and improvements thereon. PDA
shall be responsible for providing the project site sufficient with a Land
Titles and a Certification from the appropriate government agency that

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 such land is not in the hazard or disaster zone and free from all forms of
geohazards.

q. Costs. All costs of PDA in connection with its obligations under Clause
4.2(n), 4.2(o), 4.2(p) shall be borne by PDA.

5. Representations

5.1. Representation by the EPC Contractor

The EPC Contractor represents that:

a. Organization and Qualification. TUKOD Capital Management Inc. is a

holding corporation, duly organized and validly existing under the laws of
Singapore. It has full legal power, authority and right to execute and deliver the
EPC Agreement and to perform its obligations hereunder.

b. Project Implementation. The Project will be implemented through TUKOD

Design and Development Corp., an 85% owned domestic subsidiary, duly
organized and validly existing under the laws of the Philippines.

c. Operation, Management and Maintenance. The operation, management and

maintenance of the project will be through TUKOD Property Management Inc.,
a subsidiary of TUKOD Design and Development Corp., which is duly organized
and validly existing under the laws of the Philippines.

d. Financial Capacity. TUKOD has the financial standing, resources, and capacity
to fund its obligations under the EPC Agreement.

e. Acceptance of all Conditions. TUKOD has satisfied itself with and accepted all
conditions relating to requirements for the NGAC.

f. Authorization, approvals, no defaults. The execution, delivery and

performance of the EPC Agreement by TUKOD (1) has been duly authorized by
all requisite company action, (2) will not conflict with any provisions of
applicable Law, and (3) will not conflict with any legal or contractual obligation
to which it is a party or by which it or its property is affected.
15
g. Enforceability. This Agreement constitutes the legal, valid, direct and binding
obligations of TUKOD, enforceable against TUKOD in accordance with its terms,
save as enforceability may be limited by applicable bankruptcy, insolvency, and
moratorium or similar laws affecting the rights of creditors generally and by
general principles of equity. The EPC Agreement is in satisfactory and proper
legal form under the laws of the Republic of the Philippines and the Republic of
Singapore.

h. Legal proceedings. There is no action, suit or proceeding, at law or in equity, or

official investigation by or before any governmental authority, arbitral tribunal
or any other body pending or, to the knowledge TUKOD threatened, against or
affecting TUKOD or any of its properties, rights or assets, which could
reasonably be expected to result in a material adverse effect on TUKOD’S ability
to perform its obligations under this Agreement or on the validity or
enforceability of this Agreement.

i. Necessary Rights. TUKOD owns or will obtain the legal right to use all patents,
rights to patents, trademarks, copyrights and licenses necessary for the
performance of this Agreement and the transactions contemplated hereby,
without any material conflict with the rights of others.

j. Relevant Consents. TUKOD has the requisite knowledge or information for the
issuance of any Relevant Consents, and has obtained or shall obtain all Relevant
Consents in accordance with due process as may be applicable, or exemptions
under applicable Legal Requirements, on or before the date they are required to
enable TUKOD to perform its obligations under the EPC Agreement in a timely
manner.

k. Qualification. TUKOD (including where applicable, through its relationships

with Subcontractors and its Affiliates) possesses the know-how and wherewithal
to oversee the design, engineering, procurement and construction work needed
to complete construction of the Facility.

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5.2. Representation by the Owner

The Owner represents that:

a. Organization and qualification. Philippine Development Authority is an

instrumentality of the Republic of the Philippines duly organized and validly
existing under the laws of the Philippines. PDA has all the requisite legal power,
authority and right to execute and deliver the EPC Agreement and to perform its
obligations under the EPC Agreement.

b. Suability. The entry into and the performance of their obligations under the EPC
Agreement constitute commercial or proprietary acts of PDA, and PDA can sue
and be sued in relation to its dealings with TUKOD, its subcontractors and
affiliates, limited to the NGAC Project.

c. Private Acts. The execution, delivery and performance by PDA of the EPC
Agreement are private and commercial acts and not governmental acts, and,
thus, subject to civil and commercial law.

d. Appropriate Legal Actions. PDA has taken all appropriate legal and/or other
actions required and/or appropriate to authorize the execution, delivery, and
performance of the EPC Agreement and all other agreements, instruments, or
documents contemplated hereunder.

e. Suitability of Project Site. The physical condition, roads, access rights, utilities,
topographical conditions and air quality conditions of the project site is suitable
for the undertaking of the construction and operation and management of the
project and is certified to be free from all geohazards. All reasonable
investigations necessary to determine that the Site is suitable for the
construction and installation of the Facility are undertaken by PDA.

f. Authorization, approvals, no defaults. The execution, delivery and

performance of this Agreement by PDA (1) has been duly authorized by all
requisite company action, (2) will not conflict with any provisions of applicable

17
 Law, and (3) will not conflict with any legal or contractual obligation to which it
is a party or by which it or its property is affected.

g. Enforceability. This Agreement constitutes the legal, valid, direct and binding
obligations of PDA, enforceable against PDA in accordance with its terms, save as
enforceability may be limited by applicable bankruptcy, insolvency, and
moratorium or similar laws affecting the rights of creditors generally and by
general principles of equity. The EPC Agreement is in satisfactory and proper
legal form under the laws of the Republic of the Philippines and the Republic of
Singapore.

h. Legal proceedings. There is no action, suit or proceeding, at law or in equity, or

official investigation by or before any governmental authority, arbitral tribunal
or any other body pending or, to the knowledge of PDA threatened, against or
affecting PDA or any of its properties, rights or assets, which could reasonably be
expected to result in a material adverse effect on PDA’s ability to perform its
obligations under this Agreement or on the validity or enforceability of this
Agreement.

6. EPC Contract Price

The contract price is 12.6 Billion Pesos which will be considered as the capital cost for
the project, subject to any additional payment in accordance with the EPC Agreement,
agreed upon by PDA and TUKOD.

7. Payment Terms

7.1. Repayment Scheme. For the Financing, Construction, Operation, Management and
Maintenance of the Project, TUKOD shall be repaid by authorizing it (TUKOD) to charge
and collect reasonable tolls, fees, and rentals for the use of the project facilities not
exceeding those incorporated in the JV Agreement, and where applicable.

7.2. Revenue Sharing. The provisions on revenue sharing will be defined in the JVA.

18
 7.3. Fixed Term. The imposition and collection of tolls, fees, rentals, and other charges
by TUKOD shall be for a fixed term of thirty (30) years, as stipulated in the Operation,
Management, and Maintenance Concession Agreement.

7.4. Adjustments of Tolls/Fees/Rentals/Charges. The tolls, fees, rentals, and other

charges shall be subject to adjustment during the life of the EPC Agreement based on
predetermined formula using official price indices and included in the JV Agreement.

8. Construction Start Date and Conditions Precedent to Construction Start Date

8.1. Conditions Precedent to be satisfied by the EPC Contractor. It shall be a

condition precedent that within one hundred twenty (120) days or such later date as
the parties may agree, the following are supplied to PDA by TUKOD, each in form and
substance satisfactory to PDA or that such a condition precedent is waived by PDA.
Except when otherwise prevented by MAGA or Force Majeure, failure by TUKOD to
fulfill its conditions precedent by a certain date shall render it liable to pay liquidated
damages for each day of delay counted from the expiration of the date [120] days after
execution of the EPC Agreement (“Required Construction Start Date"):

a. The Construction Performance Security;

b. Evidence of required insurance coverage;

c. Evidence that all Relevant Consents required for Construction of the NGAC have
been so obtained;

d. Name of appointed representative on the Project Dispute Resolution Board;

e. Proof of financial capacity; and

f. A Parent Company Guarantee which will be furnished by TUKOD Capital

Management Inc., Singapore.

8.2. Conditions Precedent to be satisfied by the Owner. It shall be a condition

precedent that within one hundred twenty (120) days or such later date as the parties
may agree, the following are supplied to TUKOD by PDA, each in form and substance
satisfactory to TUKOD or that such a condition precedent is waived by TUKOD. Except
19
when otherwise prevented by MAGA or Force Majeure, failure by PDA to fulfill its
conditions precedent by a certain date shall render it liable to pay liquidated damages
for each day of delay counted from the expiration of the date [120] days after execution
of the EPC Agreement (“Required Construction Start Date"):

a. Certification from relevant government agency or other authority in the

Philippines of peaceful and exclusive possession of Project Site;

b. Name of appointed representative on the Project Dispute Resolution Board;

c. Copies of the Charter and By-Laws of PDA, and of resolutions adopted by its
Board of Directors authorizing the execution delivery and performance by PDA
of the Agreement, each certified by the corporate secretary of PDA in a manner
satisfactory to TUKOD;

d. Notice to proceed or commence the construction, issued to TUKOD

e. Certification from the relevant government agency or other authority in the

Philippines of the suitability and safety of the Project site and it is geohazard
free.

f. A bond or guarantee of a financial institution acceptable to TUKOD in respect of

PDA’s obligations in Clause 4.2(n), 4.2(o), 4.2(p), representations under Clause
5.2 and fulfillment to the conditions precedent in Clause 8.2.

8.3. Right to Terminate.

a. If the Conditions Precedent to the Construction Start Date are not satisfied on
the Required Construction Start Date, the Party that has fulfilled all its
obligations in relation to achieving the Construction Start Date may by notice to
the other Party terminate the EPC Agreement or if neither Party has fulfilled all
its obligations in relation to achieving the Construction Start Date, then either
Party may give written notice to the other Party of its intention to terminate the
EPC Agreement.

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 b. If the termination of the EPC Agreement is due to failure of TUKOD to fulfill all
its obligations in relation to achieving the Construction Start Date (which is not
attributable to Force Majeure Event or MAGA) and provided that PDA has
satisfied its Conditions Precedent, TUKOD shall pay PDA the equivalent amount
of ten percent (10%) of the Project Cost, as damages.

c. If the termination of the EPC Agreement is due to failure of PDA to fulfill all its
obligations in relation to achieving the Construction Start Date (which is not
attributable to Force Majeure) and provided that TUKOD has satisfied its
Conditions Precedent, PDA shall pay TUKOD the equivalent amount of ten
percent (10%) of the Project Cost, as damages.

8.4. Construction Start Date.

a. Each Party shall notify the other Party in writing on achievement of their
obligations.

b. Upon satisfaction of PDA to TUKOD’s notice that all the Conditions Precedent to
Construction Start Date are fulfilled or explicitly waived by either Party in
writing, PDA shall issue a Notice of Construction Start Date within a prescribed
period.

c. The Construction Start Date shall be on the day immediately following the date
the Notice of Construction Start Date is issued by the Owner.

9. Design of the Works

9.1. Preliminary Design and Project Execution Plan.

a. TUKOD shall prepare and submit for approval of PDA, with a copy to the
Independent Consultant, the Preliminary Design and Project Execution Plan
within [60 – 90] days from the date of signing of the EPC Agreement. The
Preliminary Design and Project Execution Plan shall be prepared in accordance
with the MPSS.

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 b. The Preliminary Design shall be prepared by TUKOD pursuant to consultations
with stakeholders.

c. Upon receipt of the Preliminary Design and Project Execution Plan, as soon as
reasonably practicable but in any case within 30 days upon such receipt, the
Independent Consultant shall, after taking into account any observations from
the Owner, provide to TUKOD, a written notice approving the Preliminary
Design and Project Execution Plan or rejection of the Preliminary Design and
Project Execution Plan including the reasons for such rejection.

9.2. E&S Impact Assessment. No later than 120 days after approval of the Preliminary
Design by the Independent Consultant or PDA, as the case may be, TUKOD shall conduct
an environment and social impact assessment and shall submit its report to PDA.

9.3. Detailed Design. Within 30 days from the date of approval of the Preliminary
Design and Project Execution Plan, TUKOD shall prepare and submit the Detailed
Design to PDA, with a copy to the Independent Consultant, for approval. The Detailed
Design prepared by TUKOD shall be in accordance with the approved Preliminary
Design and Project Execution Plan.

10. Minimum Performance Standards and Specifications

TUKOD shall demonstrate that all the Works, equipment and systems procured or
carried out give the required performance are designed and specified against standards
as may be prescribed by Legal Requirements.

10.1. TUKOD shall comply with the following:

a. Design and Construction

1. Program compliance

2. Drawing and design documentation submissions

3. Health, safety and quality assurance

4. Environmental compliance

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 b. ORAT

1. A set of criteria will be defined that relates to the quality and design of the
Works.

2. A set of criteria will be defined that relate to the timeliness of EPC

Contractor’s response to rectifying faults and malfunctions during the ORAT
phase.

c. Performance Security and Warranty

1. Construction Performance Security. TUKOD shall submit and ensure that

the Construction Performance Security in the form of an irrevocable letter of
credit equal to an amount of PhP15 Billion delivered by TUKOD as a
condition to the issuance of the Notice of Award, is at all times in full force
and effect in accordance with the terms of the EPC Agreement.

2. Warranty Security. On or before the date of issuance of the Final Acceptance

Certificate, the TUKODS shall deliver a Warranty Security in the amount of
PhP15 Billion, inflation-indexed, to PDA as security that the NGAC will meet
the project technical specifications/agreed system features, performance
standards and services for a period of not less than [5] years from the
turnover of the NGAC to PDA or its assignee or the Property Manager. In
addition, TUKOD shall provide PDA the warranties received for the
individual equipment from the suppliers/vendors.

11. EPC Contractor’s Rights and Responsibilities

11.1. Construction of the Works.

a. TUKOD shall obtain an Environmental Compliance Certificate from the

Department of Environment and Natural Resources (as may be required) and
shall procure all other Relevant Consents required to initiate the Construction.

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 b. TUKOD shall construct and complete the Works in accordance with the
requirements of the MPSS, the approved Detailed Design, Legal Requirements,
and prudent industry practice.

11.2. Subcontracting.

a. TUKOD may subcontract any portion of the Work to one or more Subcontractors
and Suppliers.

b. TUKOD shall submit an initial list of Subcontractors and Suppliers to PDA. Both
parties shall agree to the final list of Subcontractors and Suppliers who must be
in possession of all Relevant Consents necessary for it to carry out the
obligations subcontracted to it.

c. TUKOD shall submit complete certified copies of all subcontracts to PDA.

d. Notwithstanding the appointment of any subcontractor, TUKOD shall retain full

responsibility and obligation for Construction of the NGAC and shall remain fully
liable to PDA for the acts and omissions of any subcontractor in connection with
the Works as if they were the EPC Contractor's own acts or omissions.

11.3 Contractor’s Responsibility to Owner. TUKOD covenants that in carrying out its
duties on behalf of PDA under the EPC Agreement, TUKOD will at all time proceed in
accordance with Good Utility Practice, will protect the interests of PDA in any dealings
with TUKOD’ affiliates.

11.4. Confidentiality.

a. TUKOD shall make available to PDA any record produced or collected under the
EPC Agreement.

b. PDA agrees to treat as confidential materials, all materials that TUKOD

reasonably identified, and clearly designated, as confidential.

c. PDA agrees that if it shall receive an order (in whatever form) compelling it by
Law to disclose any such confidential record produced or collected under the
EPC Agreement, it shall (to the extent permitted by Law) afford TUKOD, and any
24
 Subcontractors who were the source of the requested record, notice of such
request to afford TUKOD or such others an opportunity to contest the order.

d. PDA shall be liable for liquidated damages in an amount, equal to at least ten
percent (10%) of the cost of the project in any event of breach of confidentiality
mentioned above.

11.5. Insurance. TUKOD shall obtain and maintain insurance as set forth in Clause
20.1.

11.6. Delays during the Construction.

a. Responsibility for delays. TUKOD shall be responsible for the delays during the
construction attributable to the fault of TUKOD and the subcontractors. TUKOD
shall not be liable for the delays or faults attributable to PDA such as but not
limited to, delay in under Clause 4.2 (n), 4.2 (o) and 4.2 (p), Clause 8.2.

b. Delays. Delays do not include Force Majeure Events or MAGA.

c. Approval by Independent Contractor. If the Independent Consultant has

reasonably determined that the progress of Works is such that the project
milestone dates are not likely to be achieved, it shall notify the EPC Contractor
and the Owner to this effect.

12. Owner’s Rights and Responsibilities

12.1. Transfer of Control Responsibility to Owner. After the expiration of the fixed
term of thirty (30) years, PDA, through TUKOD Property Management Inc. and in
accordance with the terms of a separate O & M Agreement, shall assume sole
responsibility for the dispatch and control of the Facility.

12.2. Owner’s Responsibilities during the Project. PDA shall:

a. Provide the necessary assistance (including the provision of any documents or

information) that may be required for the issuance of the Environmental
Compliance Certificate or such other Relevant Consents.

25
 b. Cooperate with TUKOD and provide any other assistance necessary to enable
TUKOD to perform the Work as required in the EPC Agreement.

c. Provide adequate temporary construction easements and permanent easements

for the Facility and any necessary support facilities for the Facility.

d. At all times promptly respond, including making appropriate representatives

available with decision-making authority, to any reasonable requests by any of
the Parties to the EPC Agreement for meetings, for review and comments
regarding relevant documents provided to them for review and comment.

e. At all times, use commercially reasonable efforts to proceed in a manner that

supports the Project Schedule.

f. Promptly take all actions reasonably requested by Contractor to assist

Contractor in obtaining any Authorizations for the Facility.

g. Not unreasonably withhold their support from other actions reasonably

requested by TUKOD to promote the timely completion of the Facility or to
promote the completion of the Facility within the Project budget.

13. Warranties; Limitation of Liability; Indemnification; Other Liabilities

13.1. Contractor’s Warranties. TUKOD warrants to PDA as follows:

a. All Works shall conform to the terms, conditions and obligations specified
under the EPC Agreement.

b. The warrantee under any manufacturers’ and any other warranties procured
by TUKOD, from the day such warranties are issued and shall be responsible
for the installation of any materials covered by manufacturers’ warranties in
accordance with any associated specified requirements. If a manufacturer
fails to honor its warranty based in whole or in part on a claim of defective
installation by the TUKOD, the EPC Contractor shall be liable for the cost of
the associated removal, replacement, rebuilding and repair.

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 c. TUKOD shall perform the Work, including its design and engineering
services, and will procure all materials using its best skill and attention, in
accordance with Good Utility Practice associated with engineering and
procurement of facilities such as the Facility.

d. TUKOD shall perform its construction services in a good and workmanlike

manner and otherwise in accordance with Good Utility Practice associated
with constructing facilities such as the Facility. The Facility will, at all times
through the Commercial Operation Date, comply with all Laws. TUKOD shall
have no obligation for breach of warranty under this Clause 13.1 to the
extent any deficiencies are the result of Force Majeure, normal wear and tear,
misuse or negligence by PDA or someone other than TUKOD acting on PDA’s
behalf.

e. All materials procured or furnished by TUKOD shall be new (unless

otherwise agreed by PDA in writing), of good quality and in accordance with
the specifications set forth in the EPC Agreement.

f. APART FROM THE GUARANTEES AND OTHER REMEDIES PROVIDED IN THE

EPC AGREEMENT, TUKOD DISCLAIMS ANY OTHER WARRANTIES, OR
PERFORMANCE GUARANTEES, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.

13.2. Limitation of Liability. Notwithstanding any provision in the EPC Agreement to

the contrary, in no event shall the total liability of TUKOD for liquidated damages
exceed in the total contract price, provided that this limitation shall not apply to direct
damages following an Contractor Event of Default, or indemnification obligations
pursuant to Clause 13.3, and this limitation in no way affects TUKOD’s absolute
obligation to bring the Facility to Mechanical Completion.

13.3 Indemnification.

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 a. Indemnification by the Owner. PDA shall assume and retain all liability,
including claims, demands, losses, costs, damages and expenses of every kind
and description, or damages to persons or property arising out of or in
connection with or occurring during the course of the EPC Agreement, where
such liability is proximately caused by the acts or omissions of any of the
officers, employees or agents of PDA while acting within the scope of their
employment.

b. Indemnification by the EPC Contractor. TUKOD shall indemnify PDA against

any and all loss or damages that PDA may incur as a result of any claim of
Persons other than Owner, Contractor, or their respective employees and agents,
to the extent same (a) arise out a breach by TUKOD of its obligations under the
EPC Agreement, or (b) are caused by the negligence or intentional or willful
misconduct of TUKOD, the Subcontractors or their agents or employees.

c. Other Indemnification. Both parties are entitled to other indemnification

stipulated in the EPC Agreement, aside from the indemnification stated in Clause
13.3.

13.4 Other Liabilities.

a. In the event that, in breach of its obligations, TUKOD fails to construct the
Project, TUKOD shall indemnify PDA for all costs and liabilities incurred.

b. Liability for adverse ground conditions at the project site shall be solely borne by
PDA pursuant to Clause 5.2 (e) and Clause 8.2 (f).

14. Commissioning and Acceptance

14.1. Obligation to perform. TUKOD shall be solely responsible for ensuring that the
commissioning and acceptance of the Works is planned and executed for all of the
facilities, systems and equipment installed as part of the NGAC in accordance with the
requirements of the EPC Agreement. Trial running of the NGAC and ORAT shall be an
integral part of the commissioning and acceptance process.

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14.2. Commissioning and Acceptance Plan. Within twelve (12) months from the
Construction Start Date, TUKOD shall develop and submit to PDA the Commissioning
and Acceptance Plan, which shall include as a minimum:

a. The scope and objectives of the Commissioning and Acceptance Tests;

b. Organizational and administrative responsibilities for undertaking the

Commissioning and Acceptance Tests;

c. Pre-conditions, conditions and logistical support requirements for undertaking

the Commissioning and Acceptance Tests;

d. Schedule for the detailed Commissioning and Acceptance Tests for each of the
Work tested;

e. The procedures and data collection, collation, analysis methodology and report
documentation for the Commissioning and Acceptance Tests; and

f. Commissioning and Acceptance Tests criteria.

14.3. No relief from liability. Any review by PDA or the Independent Consultant of the
Commissioning and Acceptance Tests shall not relieve TUKOD of any of its obligations
under the EPC Agreement.

14.4. As Built Drawings. No later than 60 days after the issuance of the Final
Acceptance Certificate, TUKOD shall submit to PDA the As Built Drawings of Works as
completed in both electronic and hard copy formats in sufficient detail.

14.5. Readiness for Operation Certificate. Within 10 days of the issuance of the
Commissioning and Acceptance Notice, the Independent Consultant may issue a
Readiness for Operation Certificate, subject to the conditions in the EPC Agreement.

14.6. Punch List Rectification Program. TUKOD shall send to PDA and the
Independent Consultant, within 10 days of receipt of a Readiness for Operation
Certificate, a program specifying how it intends to rectify or complete the punch list
items specified in the Readiness for Operation Certificate relating to the Work tested.

29
 14.7. Final Acceptance Certificate. Within 7 days of rectification of the Punch List
Items as certified by the Independent Consultant, PDA shall issue the Final Acceptance
Certificate to TUKOD.

15. Legislative Change

15.1. Adjustment to Contract Price. The Contract Price shall be adjusted to take
account of any increase or decrease in Cost resulting from a change in the Laws of the
Philippines (including the introduction of new Laws and the repeal or modification of
existing Laws) or in the judicial or official governmental interpretation of such Laws,
made after the Base Date, which affect TUKOD in the performance of obligations under
the EPC Agreement.

15.2. Extension of Time Due to Changes in Laws. If TUKOD suffers (or will suffer)
delay and/or incurs (or will incur) additional Cost as a result of these changes in Laws,
made after the Base Date, TUKOD shall give notice to PDA and shall be entitled to an
extension of time for any such delay.

15.3. Base Date. The base date shall be thirty (30) days prior to the scheduled signing
of the EPC Agreement.

16. Superior Knowledge

16.1. Superior Knowledge of the Owner. If PDA has superior knowledge of a material
fact which would likely impact TUKOD’s cost, and fails to disclose relevant information
to TUKOD, TUKOD may be entitled to recover the additional costs incurred by reason of
the undisclosed fact as indemnity. This includes but not limited to withholding
technical/non-technical material facts relevant to TUKOD’s cost or performance such as
design defects or defective work installed by another contractor.

16.2. Indemnification. The indemnification shall be the equivalent amount of ten

percent (10%) of the Project Cost, as damages with respect to Clause 16.1.

17. Anti-Corruption and Anti-Bribery

17.1. Undertaking against Corruption and Bribery.

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 a. The Parties undertakes that, on the date of the entering into force of the EPC
Agreement, itself, its directors, officers or employees have not offered, promised,
given, authorized, solicited or accepted any undue pecuniary or other advantage
of any kind (or implied that they will or might do any such thing at any time in
the future) in any way connected with the EPC Agreement, and that it has taken
reasonable measures to prevent subcontractors, agents or any other third
parties, subject to its control or determining influence, from doing so.

b. The Parties agree that, at all times in connection with and throughout the
course of the EPC Agreement and thereafter, they will comply with and that
they will take reasonable measures to ensure that their subcontractors, agents
or other third parties, subject to their control or determining influence, will
comply with the Anti-Corruption and Anti-Bribery provisions.

17.2. Prohibited Practices.

a. Parties will prohibit the following practices at all times and in any form, in
relation with a public official at the international, national or local level, a
political party, party official or candidate to political office, and a director, officer
or employee of a Party, whether these practices are engaged in directly or
indirectly, including through third parties:

1. Bribery is the offering, promising, giving, authorizing or accepting of any

undue pecuniary or other advantage to, by or for any of the persons listed
above or for anyone else in order to obtain or retain a business or other
improper advantage, e.g. in connection with public or private procurement
contract awards, regulatory permits, taxation, customs, judicial and
legislative proceedings.

Bribery often includes:

i. Kicking back a portion of a contract payment to government or party

officials or to employees of the other contracting Party, their close
relatives up to the third civil degree, friends or business partners or

31
 ii. Using intermediaries such as agents, subcontractors, consultants or
other third parties, to channel payments to government or party
officials, or to employees of the other contracting Party, their
relatives, friends or business partners.

2. Extortion or Solicitation is the demanding of a bribe, whether or not

coupled with a threat if the demand is refused. Each Party will oppose any
attempt of Extortion or Solicitation and is encouraged to report such
attempts through available formal or informal reporting mechanisms,
unless such reporting is deemed to be counter-productive under the
circumstances.

3. Trading in Influence is the offering or Solicitation of an undue advantage in

order to exert an improper, real, or supposed influence with a view of
obtaining from a public official an undue advantage for the original instigator
of the act or for any other person.

4. Laundering the proceeds of the Corrupt Practices mentioned above is the

concealing or disguising the illicit origin, source, location, disposition,
movement or ownership of property, knowing that such property is the
proceeds of crime.

“Corruption” or “Corrupt Practice(s)”, as used in this ICC Anti-corruption

Clause, shall include Bribery, Extortion or Solicitation, Trading in Influence
and Laundering the proceeds of these practices.

17.3. Acts of Third Parties. With respect to third parties, subject to the control or
determining influence of a Party, including but not limited to agents, business
development consultants, sales representatives, customs agents, general consultants,
resellers, subcontractors, franchisees, lawyers, accountants or similar intermediaries,
acting on the Party’s behalf in connection with marketing or sales, the negotiation of
contracts, the obtaining of licenses, permits or other authorizations, or any actions that
benefit the Party or as subcontractors in the supply chain, Parties should instruct them

32
 neither to engage nor to tolerate that they engage in any act of corruption; not use them
as a conduit for any corrupt practice; hire them only to the extent appropriate for the
regular conduct of the Party’s business; and not pay them more than an appropriate
remuneration for their legitimate services.

17.4. Necessary Remedial Action. If a Party, as a result of the exercise of a

contractually-provided audit right, if any, of the other Party’s accounting books
and financial records, or otherwise, brings evidence that the latter Party has been
engaging in material or several repeated breaches of Clause 17.2 and Clause 17.3 above,
it will notify the latter Party accordingly and require such Party to take the necessary
remedial action in a reasonable time and to inform it about such action. If the latter
Party fails to take the necessary remedial action or if such remedial action is not
possible, it may invoke a defense by proving that by the time the evidence of
breach(es) had arisen, it had put into place adequate anti-corruption preventive
measures, adapted to its particular circumstances and capable of detecting corruption
and of promoting a culture of integrity in its organization. If no remedial action is taken
or, as the case may be, the defense is not effectively invoked, the first Party may, at its
discretion, either suspend or terminate the Contract, it being understood that all
amounts contractually due at the time of suspension or termination of the Contract will
remain payable, as far as permitted by applicable law.

17.5. Authority to Determine the Contractual Consequences. Any entity, whether

an arbitral tribunal or other dispute resolution body, rendering a decision in
accordance with the dispute resolution provisions of the EPC Agreement, shall have the
authority to determine the contractual consequences of any alleged non-compliance
with this Anti-corruption Clause.

18. Ownership of NGAC

Ownership of the NGAC shall vest in PDA after the expiration of the fixed term of thirty
(30) years.

19. Shared Responsibilities

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 19.1. Access to the Project Site. PDA shall provide TUKOD, its employees,
subcontractors and advisors with the required access to the Project Site and all
necessary utilities are made available at the Site as necessary for the construction,
testing and commissioning of the NGAC. From the date of provision of such access to the
Project Site until the completion of the Works or the termination of the EPC Agreement
(whichever occurs first), PDA shall not unreasonably hinder TUKOD in the performance
of the Works in accordance with the obligations in the EPC Agreement. TUKOD
acknowledges that access will not be exclusive and will need to be shared with other
stakeholders.

19.2. Interface Protocol. An interface protocol will be developed and administered by

the Independent Consultant. TUKOD shall comply with this protocol and compliance
shall not entitle it to any extension of time or additional cost.

19.3. Site Inspection. Throughout the construction and testing period, TUKOD shall
enable PDA to inspect any part of the Project Site where the Works are being performed
as long as the site to be inspected can be safely and reasonably accessed.

19.4. Readiness for Operation. In order that the Works shall be in the condition
required by the EPC Agreement by the expiry date of the relevant defect liability period
stated in the EPC Agreement, the TUKOD shall:

a. Complete any work which is outstanding or which requires rectification on the

date stated in the Readiness for Operation Certificate; and

b. Execute all works required to remedy any defects, deficiencies, or damage (to
the extent that such damage is attributable to, or is the responsibility of the EPC
Contractor under the EPC Agreement), discovered after the issuance of any
Readiness for Operation Certificate, as may be notified by PDA.

19.5. Defect Liability. All work related to the completion of outstanding Works and
remedying of defects shall be executed at the risk and cost of TUKOD, unless such work
is attributable to any breach of the EPC Agreement by PDA.

20. Insurance
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20.1. EPC Contractor Required Insurance. TUKOD shall maintain at its own cost at all
times, and with PDA as beneficiary:

a. All risk insurance in respect of the NGAC, in an amount equal to the full
replacement cost of assets destroyed or damaged;

b. Construction all risk insurance, at least up to the full replacement value of the
Works;

c. Third party liability insurance;

d. Worker’s compensation insurance;

e. Appropriate insurance against terrorist attacks for any event and in the
aggregate in respect of material damage; and

f. Marine cargo insurance

20.2. Owner Required Insurance. PDA shall obtain and, during the progress of the
Work, maintain in force the policies of insurance described in this Clause 20.2, with the
JV as named insured. The actual policies of insurance may be examined by TUKOD upon
request to PDA. This insurance applies only to the Work performed in connection with
the EPC Agreement:

a. Property insurance written on a builder’s risk “all-risk” or equivalent policy form

in the amount of the Compensation, plus value of subsequent Contract
modifications and cost of materials supplied or installed by others, comprising
total value for the entire Work at the site on a replacement cost basis without
optional deductibles. Such property insurance shall be maintained, unless
otherwise provided in the EPC Agreement or otherwise agreed in writing by all
persons and entities who are beneficiaries of such insurance, until no person or
entity other than PDA has an insurable interest in the Work.

b. Failure of PDA to comply with the insurance requirement shall be considered as

default on the part of PDA.

35
 c. Failure of PDA to comply with the insurance requirement within 60 days after
the start of construction shall be considered as default on the part of PDA.

20.3. Miscellaneous.

a. No Other insurance policies not listed above shall be required by either PDA or
TUKOD after the execution of the EPC Agreement.

b. Nothing in this clause limits the obligations, liabilities or responsibilities of

TUKOD or PDA, under the other terms of the EPC Agreement or otherwise. Any
amounts not insured or not recovered from the insurers shall be borne by
TUKOD and/or PDA in accordance with these obligations, liabilities or
responsibilities.

21. Variation and Improvements

21.1. Areas for Variation. Subject to Legal Requirements, either Party may submit
proposals for any of the following, at any time over the course of the EPC Agreement,
with each approved proposal leading to an amendment to the EPC Agreement
(“Variation”):

a. Changes in MPSS for Works;

b. Changes in performance specifications;

c. Inclusion of additional Works; and/or

d. Change in the Detailed Design.

A procedure for Variation and the necessary approvals shall be included in the EPC
Agreement.

21.2. Compensation.

a. If PDA proposes a Variation, TUKOD shall be entitled to request PDA for

compensation through a mechanism agreed upon in the EPC Agreement in which
the PDA shall pay the cost of the Variation including all overhead and

36
 transactional costs. PDA may, at its discretion, also mobilize its own funding to
cover the full cost of the agreed Variation.

b. If the Variation proposed by PDA (or by TUKOD which variation is accepted by

PDA) results in net savings to the Project Cost, such net savings should be shared
by the TUKOD with PDA.

c. If TUKOD proposes a Variation which does not lead to cost savings and such is
accepted by PDA, the additional costs will be for the account of TUKOD.

21.3. Approval of Variation. PDA, in its absolute discretion, may approve, disapprove,
or approve subject to any required modification (provided such modification is
acceptable to TUKOD), an application for Variation proposed by TUKOD within 60 days
from receipt of the Independent Consultant’s complete assessment and approval of the
proposal for the Variation, subject to the conditions provided in the EPC Agreement.

22. Independent Consultant

For the purposes of the EPC Agreement and the Work, the Independent Consultant shall
not be the agent or employee of PDA or TUKOD.

22.1. Services of the Independent Consultant. Subject to the terms of the EPC
Agreement and Relevant Rules and Procedures, PDA and TUKOD shall (as a condition to
the Construction Start Date) procure the services of the Independent Consultant.

22.2. Period of Appointment. The period of appointment of the Independent

Consultant shall commence from the date of signing of the contract with the
Independent Consultant.

22.3. Findings of the Independent Consultant. The findings of the Independent

Consultant shall be binding on the Parties.

22.4. Dispute on the Findings. Either Party may dispute such findings in accordance
with the dispute resolution procedure in the EPC Agreement.

22.6. Fees and Expenses. The fees and expenses of the Independent Consultant, in
relation to the EPC Agreement, shall be shouldered by the EPC Contractor.
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23. Conflict of Interest

23.1. Responsibility of the EPC Contractor. TUKOD shall exercise reasonable care and
diligence to prevent any actions or conditions which could result in a conflict with the
PDA’s best interests. This obligation shall apply to the activities of TUKOD and its
Subcontractors, Affiliates and their respective employees and agents, in their relations
or dealings with the employees of PDA and their families, and other third parties,
arising from the Contract or the performance of the Work. The efforts made by TUKOD
in this regard shall include, but shall not be limited to, establishing reasonable
precautions to prevent Subcontractors, Affiliates and their respective employees from
offering, or providing entertainment, gifts, loans, payments or other considerations to
PDA’s employees, consultants and agents or their family members up to the third civil
degree.

23.2. Responsibility of the Owner. PDA shall establish reasonable precautions to

prevent its employees from offering, or providing entertainment, gifts, loans, payments
or other considerations to TUKOD or any Subcontractor, Affiliates or their respective
employees, consultants and agents or their family members up to the third civil degree.

24. Project Steering Group

A project steering group shall be formed comprising of representatives from PDA and
TUKOD.

25. Force Majeure

25.1. Events of Force Majeure. “Force Majeure” or “Force Majeure Event” refers to an
event or a circumstance which cannot be foreseen or even though foreseen is beyond
the reasonable control of a Party or is unavoidable despite the exercise of due diligence,
the cause of which event is not due to the fault of a Party, and which wholly or partially
prevents or delays such Party from performing and fulfilling its obligations under the
EPC Agreement.

Causes of Force Majeure Events may include without limitation the following:

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a. any war, declared or not,

b. hostilities,

c. blockade,

d. embargo,

e. revolution,

f. insurrection,

g. riot,

h. public disorder, political violence or acts of sabotage or terrorism,

i. export or import restrictions,

j. closing of harbors, docks, canals or other assistance to or adjuncts of shipping or

navigation of or within any place,

k. rationing or allocation, whether imposed by law, decree or regulation by, or by

compliance of industry at the insistence of, any Government Authority, in each of
the above cases,

l. fire,

m. severe flood,

n. drought,

o. earthquake,

p. volcanic eruption,

q. storm,

r. lightning,

s. tide (other than normal tide),

t. tsunami,

u. air crash,

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 v. discovery of any archaeological finds on the Project Site,

w. discovery of any hazardous materials on the Project Site,

x. unexploded ordnance,

y. nuclear contamination,

z. epidemic,

aa. quarantine,

bb. any natural event or instance analogous to the foregoing, or any event, matter or
thing, wherever occurring.

25.2. Exceptional Event or Circumstance. Force Majeure also means exceptional

event or circumstance:

a. which is beyond a party’s control,

b. which such party could not reasonably have provided against before entering
into the Contract,

c. which, having arisen, such party could not reasonably have avoided or
overcome, and

d. which is not substantially attributable to the other Party.

25.3. Burden of Proof. The burden of proof in showing the occurrence of a Force
Majeure Event and its effect on the performance of obligations or the delivery of
services lies with the Party that issued the notice of Force Majeure.

25.4. Termination. If the Force Majeure Event persists for more than 12 months, then
TUKOD shall be entitled to terminate the EPC Agreement.

25.6. Damage Caused by Force Majeure. All insurance proceeds in respect of

insurances from physical damage received by or payable under any insurance policy
shall be applied to the damage caused by Force Majeure.

25.7. Continuous Performance.

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 a. Upon the occurrence of any Force Majeure Event, TUKOD shall continue to be
responsible for performing such of its obligations as are still possible to be
performed, whether wholly or partially. Irrespective of the occurrence of a Force
Majeure Event, TUKOD shall exercise diligence to ensure the safety of the Works.

b. If TUKOD is completely prevented from performing its obligations under the EPC
Agreement during the Force Majeure Event, then TUKOD shall commence the
performance of the obligations upon conclusion of the Force Majeure Event.

c. TUKOD shall be entitled to time extension equal to the period of the Force
Majeure or such excess time as may be agreed between the Parties or
determined by the Independent Consultant.

25.6. Non-Insurable Force Majeure Event

a. If a Force Majeure Event constitutes an event which is not insurable, then on the
occurrence of such Force Majeure Event, TUKOD shall have the right to
terminate the EPC Agreement by giving 60 days’ notice to PDA.

b. Within a period of 60 days of the receipt of the termination notice from TUKOD,
if PDA, or the Independent Consultant on behalf of PDA, has determined that
restoration of the NGAC would be technically feasible and economically viable,
PDA may, at its discretion, provide TUKOD the FM Restitution Amount. Once an
agreement has been reached on the FM Restitution Amount, TUKOD shall not be
entitled to terminate the EPC Agreement. Subject to one-time payment of the FM
Restitution Amount by PDA, TUKOD shall carry out the Works in accordance
with the EPC Agreement.

c. TUKOD shall be entitled to time extension equal to the period of the Force
Majeure or such excess time as may be agreed between the Parties or
determined by the Independent Consultant.

26. Delay and Compensation Occurrence of Delay

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26.1. Delays by the EPC Contractor. If any Delay occurs, TUKOD shall promptly notify
PDA of:

a. the cause of the Delay;

b. its estimate of change in capital costs caused by the Delay;

c. its estimate of the impact of the Delay on the probability that the Works
Timetable will be met; and

d. the action it has taken or proposes to take to mitigate the effects of the Delay.

The burden of proving the existence, extent and the effect of delay is on the EPC
Contractor.

26.2. Communication of Delay. TUKOD shall provide regular updates to PDA, no less
frequently than monthly, if applicable, of any occurrence of Delay including as to the
effects of the incident, the likely Delay to be caused thereby, and the steps that it is
taking or proposes to take to mitigate the effects of the incident.

26.3. Mitigation of Delay. TUKOD shall take all reasonable action necessary to mitigate
the consequences of a Delay and resume performance of its obligations as soon as
practicable.

26.4. Compensation for Delay.

a. Subject to a curing period to be stipulated in the EPC Agreement, in case of any

Delay attributable to TUKOD (i.e., a Delay that is not attributable to Force
Majeure Event or MAGA), PDA shall be entitled to receive liquidated damages
from TUKOD in an amount, equal to at least one tenth (1 /10) of 1% of the cost
of the unperformed portion of the works for every day of delay.

b. Should TUKOD fail to pay the above liquidated damages within 10 days from
written demand by PDA, PDA may draw the corresponding amounts from the
Construction Performance Security. If the Construction Performance Security
has been depleted and the liquidated damages due to PDA remain unpaid in full

42
 or in part, PDA shall then be entitled to charge interest on the unpaid amount at
a rate to be provided in the EPC Agreement.

c. If any amounts are drawn from the Construction Performance Security by the
Owner in accordance with the EPC Agreement, TUKOD shall, on or before the
date that is 10 days after the date the value of the Construction Performance
Security has fallen below fifty percent (50%) of the required amount, deliver an
additional irrevocable standby letter of credit in an amount equivalent to the
amount drawn by PDA, such that the amount of the Construction Performance
Security does not fall below the thresholds identified in the EPC Agreement.

d. TUKOD’s liability to pay liquidated damages for a Delay attributable to the EPC
Contractor is capped at the contract price.

e. To be entitled to such liquidated damages, PDA needs to prove that it has

incurred actual damages.

27. Warranty Period

27.1. General. PDA, its assignee, or the Property Manager shall have a period of five (5)
years from the Completion Date of the NGAC to PDA or its assignee or Successor
Company to raise any defects to be remedied by TUKOD at its own account. This will be
without prejudice to TUKOD’S liability to rectify defects as may be required by any
Legal Requirements.

28. Novation/Assignment

28.1. Assignability Period. TUKOD agrees that PDA may transfer its rights under the
EPC Agreement to any successor agency or Property Manager after the fixed period of
fifty (50) years.

28.2. Release of all Proprietary Information. In addition, upon the Transfer Date,
TUKOD shall deliver and make available to PDA at no cost all proprietary information,
patents, and licenses of TUKOD related to the NGAC.

43
 28.3. Transfer of Operations to the Property Manager. TUKOD further agrees that
PDA may transfer operations of the completed facilities to the Property Manager in
which event all such warranties and licenses shall be made available to the Property
Manager at no cost to PDA or the Property Manager.

29. MAGA

MAGA relieves TUKOD from performing the affected obligation during the period of
existence of the MAGA, and TUKOD shall be entitled to time extension equal to the
period of existence of the MAGA. To the extent that the MAGA will result in additional
cost exceeding a materiality threshold, then this shall be compensated by PDA.

30. Default and Termination

30.1. EPC Contractor Events of Default.

a. TUKOD fails to complete the Works by May 20, 2022.

b. Any false representation or warranty made by TUKOD or inaccurate in any

material respect and this is reasonably likely to have a material adverse effect on
the ability of TUKOD to carry out the Works;

c. TUKOD files for corporate rehabilitation, insolvency, liquidation or dissolution,

or is the subject of an application filed by third parties for its corporate
rehabilitation, insolvency, liquidation or dissolution and, in case of such
applications filed by third parties, such application has not been dismissed
within 120 days from the filing of the application;

d. TUKOD abandons Construction of the NGAC;

e. TUKOD becomes subject to any litigation, arbitration or administrative

proceeding, and a final and executory judgment or order is issued against
TUKOD that when implemented has a material adverse effect on the ability of the
TUKOD to carry out Construction of the NGAC;

f. Any insurance required to be effected by TUKOD under the EPC Agreement is

not, or ceases to be, maintained in full force and effect, or any event or
44
 circumstance occurs which may entitle the insurer to avoid or otherwise reduce
its liability under the relevant policy

g. TUKOD fails to effect, maintain, replenish or replace any performance security in

accordance with the EPC Agreement;

h. A Prohibited Act is committed by TUKOD or its officers, employees, shareholders

and/or agents;

i. TUKOD fails or refuses, after reasonable notice from PDA, to rectify any
deficiency or otherwise perform its obligations in accordance with the EPC
Agreement;

j. TUKOD fails to submit the reports in accordance with the EPC Agreement;

k. TUKOD fails to submit the As Built Drawings of Works; and

l. Material breach by TUKOD of any of its obligations under the EPC Agreement.

30.2. Owner Events of Default.

a. PDA is dissolved, reconstituted or abolished, and the EPC Agreement ceases to

be enforceable against it, or any step is taken by any person for the dissolution,
reconstitution or abolition of PDA, unless the obligations of PDA are assumed by
the Government or by an entity owned by the Government;

b. Failure to pay, upon 180 Business Days' notice, a sum that is above a specified
threshold;

c. Failure of PDA to comply with Clause 4.2(n), 4.2(o), 4.2(p).

d. Any false representation by PDA or inaccurate in any material respect and this is
reasonably likely to have a material adverse effect on the ability of TUKOD to
carry out the Works;

e. Violation in the Anti-Corruption and Anti-Bribery Clause under Clause 17.

f. Interruption of the TUKOD’s possession of the Project Site; and

g. Material breach by PDA of any of its obligations under the EPC Agreement.
45
31. Cross-Default

The termination of the JV Agreement due to a PSP Event of Default shall likewise result
in the termination of the EPC Agreement.

32. Compensation for Termination

32.1. Termination Payments for Owner Event of Default. TUKOD is entitled to be

paid for the Works executed, cost of equipment which has been delivered or which
TUKOD is liable to accept, cost of removal of TUKOD’s equipment and people from the
Project Site, any other cost reasonably incurred plus a premium, the amount of which
shall be specified in the EPC Agreement.

32.2. Termination Payments for the EPC Contractor Event of Default. TUKOD is
entitled to be paid for the Works executed, cost of equipment which has been delivered
or which the EPC Contractor is liable to accept, cost of removal of EPC Contractor’s
equipment and people from the Project Site, any other cost reasonably incurred less
some deduction, the amount of which shall be specified in the EPC Agreement.

32.3. Termination Payments for Force Majeure Event. TUKOD may be compensated
for any assets constructed/acquired, but at the maximum only to the extent of the fair,
market, appraised, replacement value of any assets (as these may be damaged by a
Force Majeure Event) taking into consideration the actual, reasonable and duly-audited
costs incurred by TUKOD, as assessed by the Independent Consultant. TUKOD is
entitled to reimbursement of reasonable costs incurred due to termination resulting to
Force Majeure Events.

33. Indemnities

33.1. Indemnity by the EPC Contractor. TUKOD shall indemnify, defend, save and hold
harmless PDA against any and all losses (to be defined in the EPC Agreement) arising
out of the performance by or on behalf of TUKOD of any of its obligations under the EPC
Agreement.

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 33.2. Indemnity by the Owner. PDA shall indemnify and hold harmless TUKOD, its
Personnel, and their respective agents, against and from all claims, damages, losses and
expenses (including legal fees and expenses) in respect of:

a. bodily injury, sickness, disease or death, which is attributable to any negligence,

willful act or breach of the Contract by PDA, PDA’s Personnel, or any of their
respective agents, and

b. the matters for which liability may be excluded from insurance cover.

34. Governing Law; Interpretation

(The term under this clause was not agreed upon by the parties.)

35. Dispute Resolution

35.1. Consultation. Any Dispute shall be settled by the Parties arising out of or in
connection with this Agreement. If the Dispute cannot be settled through amicable
means within a prescribed period, either Party may refer it to a Project Dispute
Resolution Board.

35.2. Project Dispute Resolution Board.

a. The Project Dispute Resolution Board shall be composed of (a) a representative

to be chosen by PDA, (b) a representative to be chosen by TUKOD, and (c) a
representative to be appointed by the two representatives chosen.

b. Either Party’s disagreement with the action, decision, or resolution of the Project
Dispute Resolution Board shall be a Dispute and may be referred to Arbitration.

35.3. Arbitration.

(The term under this clause was not agreed upon by the parties.)

35.4. Continuation of Works. While any Dispute under the EPC Agreement is pending,
including the commencement and pendency of any Dispute referred to arbitration, the
Parties shall continue to perform all of their respective obligations under the EPC
Agreement.

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36. Miscellaneous Language

36.1. Language. The EPC Agreement and all written and oral communication and
documents relating to the EPC Agreement exchanged by the Parties shall be in English.
Supporting documents and printed literature that are part of the EPC Agreement may
be in another language, but any documents provided in another language must be
accompanied by an accurate translation into English from a qualified and independent
translator agreed by the Parties.

36.2. Notices. Notices or other communications between the Parties with respect to the
EPC Agreement shall only be effective if it is in writing in the English language, and
addressed and delivered by the sending / issuing Party to the receiving Party, as
follows:

Owner:

Juan Dela Cruz

Chairperson, for the JVSC for the National Government Administrative
Center – New Metropolitan City
Philippine Development Authority
2nd Floor Bonifacio Technology Building, 31st Street, Fort Bonifacio Camp, Taguig
City Contact No.: 09167394962
Email: ibt.epc.employer@gmail.com

EPC Contractor:

Sheila Lou R. Ceballos

Lead Counsel – TUKOD Capital Management Inc.
TUKOD Capital Management Inc.
796 Johns Ave. Singapore 504742
Fax: +65 8722 4274

With a copy to:

TUKOD Design and Development Corp.

48
 M.Cuenco Ave. Banilad, Cebu City, Philippines 6000
Attention: Manelle Paula Gutierez
Fax: +6332 234 8200

Any notice given shall, in the absence of earlier receipt, be deemed to have been duly
given as follows:

a. if delivered personally, on delivery; and

b. if sent by registered post to the aforesaid address of a Party, it shall be deemed

to be received at the time when it would have been delivered in the ordinary
course of post.

c. Any notice given outside the business hours in the place to which it is addressed
shall be deemed not to have been given until the start of the next period of
business hours in such place.

36.3. Modification or Amendment. The EPC Agreement may only be released,

discharged, supplemented, interpreted, amended, varied or modified by an instrument
in writing signed by a duly authorized officer or representative of each of the Parties.

36.4. No waiver. No course of dealing, nor any failure to exercise, nor any delay in
exercising any right, power or privilege hereunder shall operate as a waiver thereof,
unless it is in writing signed by the Party granting the waiver.

36.5. Acknowledgement. Each Party acknowledges that in signing the EPC Agreement
it does not rely on, and shall have no remedies in respect of, any representation or
warranty not set out therein.

Nothing in this Section shall limit or exclude any liability for fraud or willful
misconduct.

36.6. Severability. If any provision of the EPC Agreement is determined to be invalid,

unenforceable or illegal, that provision (or the defective part thereof) shall be deleted
or modified as the Parties may agree in order to eliminate such defect and give effect to

49
the Parties' intentions expressed herein. The unaffected provisions of the EPC
Agreement shall remain in force.

36.7. Counterparts. The EPC Agreement may be executed in any number of

counterparts, and by the Parties to it on separate counterparts, but shall not be effective
until each Party has executed at least one counterpart.

Each counterpart shall constitute an original of the EPC Agreement, but all the
counterparts shall together constitute but one and the same instrument.

36.8. Survival. The provisions on Dispute resolution will survive the termination or
expiry of the EPC Agreement.

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